https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7134

Karisa v Republic (Criminal Appeal E107 of 2024) [2026] KEHC 7134 (KLR) (13 May 2026) (Judgment) Neutral citation: [2026] KEHC 7134 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E107 of 2024 JN Njagi, J May 13, 2026 Between Karisa Chengo Karisa Appellant and Republic Respondent (Appeal from Original conviction and sentence by Hon. S. D. Sitati, SRM in Kilifi SPM`s Court Sexual Offence Case No. 63B of 2022 delivered on 15/12/2022) Judgment 1.The Appellant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between February 2020 and August 2020 at [Particulars Withheld] area in Kilifi Sub County in Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of ME (hereinafter referred to as the complainant), a child aged 15 years. 2.The Appellant was sentenced to serve fifteen years imprisonment. He was aggrieved by the conviction and the sentence and lodged an appeal on the following grounds;1.That the learned trial magistrate erred in law and in fact in failing to find that the prosecution failed to discharge the burden of proof to the required threshold.2.The Honourable Magistrate erred in law and fact in shifting the burden of proof to the accused.3.That the learned trial magistrate erred in law and in fact by relying on evidence by the prosecution witnesses that was unreliable and did not link the Appellant to the commission of the offence.4.That the learned trial magistrate erred in law and in fact by failing to consider the evidence tendered by the defence. Prosecution case 3.The case for the prosecution was that the complainant, PW1, was at the material time a form 4 student of the age of 17 years. She was living with her mother. 4.It was the evidence of the complainant that she used to see the Appellant in her locality. That in the month February 2020 she met him and started a love relationship with him. That in May 2020 the appellant invited her to his home. She went there and they engaged in sex in his house whereby he inserted his penis into her vagina. They subsequently engaged in sexual intercourse at the sisal arm. That he would call her whenever his wife was away or meet him in the sisal plantation. That she thereafter missed her menses. She reported to the appellant who gave her some concoction (shubiri) for her to abort. She took the substance and developed stomach ache and bleeding. She reported to her mother who took her to hospital and she was admitted. Later, they had sex in the month of August 2020 in the sisal plantation. Her mother found out and reported to the police. 5.It was the evidence of the complainant that she was born on the 3rd November 2004. 6.A clinical officer at Kilifi County Referral Hospital PW2 testified that the complainant`s Post Rape Care form was completed at Vipingo Health centre and the P3 form in court was completed by his colleague clinical officer at Kilifi County Referral Hospital. That on examination her hymen was found to be broken with no injuries. That the incident occurred on 22/8/2020. PW3 produced the Post Rape Care Form and the P3 form as exhibits P.Exh.1 and 2 respectively. 7.The case was investigated by PC Cecilia Ochieng, PW2 of Vipingo police station. It was her evidence that the case was reported at the station by the complainant while in the company of her mother on 24/8/2020. She interrogated them and the complainant told her that she was being defiled by the Appellant. She later realized that she was pregnant. She reported to him and he gave her a concoction to procure an abortion. That she was taken to hospital where she was examined and found to have had a partial abortion. The appellant was arrested and charged. 8.During the hearing of the case in court the investigating officer produced the complainant’s birth certificate as exhibit, P.Exh.3. It indicated that she was born on 3/11/2004. 9.The mother to the complainant did not testify in the case. She was reported to be have moved to Saudi Arabia for work. Defence Case 10.In his defense, the Appellant stated that he is a casual laborer at Vipingo Company. That the victim’s mother had a grudge with him. That they were working together in one section at the company and were neighbors at the company houses. That at one time, she told him that she would teach him a lesson. That on one particular day he went to work and the secretary informed him that the police were looking for him and he was not allowed to work there anymore. He went to the police and met the OCS. The complainant`s mother went there and entered the office of the OCS. They talked for a long time and when she came out she told him that he will rot in jail. The OCS ordered that he be arrested. He was arrested and was not given the reason for his arrest. He was charged. He stated in cross-examination that he did not know the complainant or where they lived. He said that his dispute with her mother is that she envied his higher salary. Submissions 11.The appellant submitted that the prosecution failed to discharge the burden of proof in the case. He submitted that the medical evidence that was presented before the trial court did not prove that there was any penetration on the complainant. He submitted that the clinical officer who testified in the case is not the one who prepared the P3 form and he did not explain his connection with the officer who prepared the document and whether he was familiar with his handwriting. It was submitted that it was not safe to convict on the medical evidence presented before the court. 12.It was also further submission of the Appellant that the court did not consider that the entire evidence relied upon by the trial court and particularly that of the complainant was not credible. 13.The Appellant submitted that the complainant did not report the incidents to anybody. That her mother did not testify in the case. 14.The Respondent on the other hand submitted that the prosecution proved its case beyond reasonable doubt. That all the ingredients of the offence were proved. That the age of the complainant was proved by the Birth Certificate that showed that she was born 3/11/2004 thus making her 15 years at the time the offence was committed. That the element of penetration was proved by the testimony of the complainant which was corroborated PW2, the Clinical Officer. That identification was equally proved as the appellant was well known to the complainant since they were neighbours. 15.The Respondent further submitted that the complainant and the Appellant had engaged in sexual intercourse on several occasions. That the trial court considered the provisions of Section 124 of the Evidence Act and concluded that the testimony of the complainant was reliable, consistent and credible. Analysis and determination 16.This being the first appellate court in the matter, the court is guided by the principles set out in the case of David Njuguna Wairimu –vs- Republic (2010) eKLR where the Court of Appeal stated;“That the duty of the 1st appellate court is to analyze and re-evaluate evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the circumstances of the case come to the same conclusions as those of the lower court. It may rehash those conclusions as those of the lower court. We do not think that there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision.” 17.In criminal cases, the burden of proof is on the prosecution to prove the case against an accused person beyond reasonable doubt. 18.I have considered the grounds of appeal, the record of the trial court and the respective submissions filed by the parties. The ingredients of the offence of defilement are proof of the age of the victim, penetration and proper identification of the perpetrator – see George Opondo Olunga vs. Republic (2016) eKLR. 19.On the element of age, it is trite that the age of a victim of defilement may be proved in various ways as was stated by the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR that:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 20.In the present case, the prosecution produced the complainant`s birth certificate, P.Exh.3, that showed that she was born on 3/11/2004. She was thereby of the age of 15 years at the time of the offence. Consequently, the age of the complainant was proved at 15 years at the time of the alleged act. 21.On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 22.Penetration may be proved by the oral evidence of the victim or by circumstantial evidence. Such evidence may be corroborated by circumstantial evidence. 23.The trial magistrate in his judgment stated that the medical evidence adduced before the court indicated that the complainant`s hymen was broken which was confirmation that the complainant had been penetrated vaginally. 24.The complainant was examined at hospital and was found with a broken hymen with no injuries. The law is that the mere absence of hymen is not proof of defilement, see the Court of Appeal decision in PKW v Republic (2012) eKLR. There were no injuries on the genitalia of the complainant to suggest recent penetration. This means that there was no medical evidence to support penetration on the complainant. The trial magistrate therefore misdirected himself on that point of law. 25.However, absence of medical evidence is not fatal to a charge of defilement as the charge can be proved by other relevant evidence such as by the oral evidence of the victim or by way of circumstantial evidence. The only evidence available in the case was that of the complainant that the Appellant penetrated her. It was her testimony that she started a love relationship with the Appellant in February, 2020. That they engaged in sexual intercourse in his house and did so for a second time at the sisal farm. The question is whether the complainant was telling the truth on this evidence. 26.Section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for such a finding. 27.The trial court in convicting the Appellant of the offence stated that the complainant knew the Appellant very well and that he was working with [particulars withheld] company. That she had been to his house which she said is about 5 minutes` walk from her mother`s house. That she said that the Appellant used to see her when she was coming from school. Further that he used to fetch water at a public water joint behind her parents` house. That she had sex with him in his house once and another time at the sisal farm. That the appellant did not shake this evidence. That his defence that he had a grudge with the mother of the complainant was false and unsupported. That the charge against him was proved beyond reasonable doubt. 28.I have re-examined the reasons given by the trial court in convicting the Appellant of the offence. It was evident that the Appellant was well known to the complainant. He was from her locality and his house was 5 minutes walk from her house. She knew that he was working at [Particulars Withheld] company. Whereas the Appellant in his defence stated that he did not know her, he did not put such a question to her when he cross-examined her in court. This can only mean that the allegation was an afterthought. 29.The appellant said that the case was fabricated due to his differences with the complainant`s mother. The Appellant never put such a question to the complainant during cross-examination. The fact that he raised that issue at the tail end of the case can only lead to the conclusion that the issue was an afterthought and a fabrication. Even after the abortion, the Appellant proceeded to have sex with the complainant in the month of August 2020. All this evidence cannot be a fabrication. 30.The Appellant argued that the trial court did not consider his defence. I find this not to be supported by the judgment of the trial court. It is clear from the judgment that the trial court considered the evidence of the complainant and weighed it against the defence evidence and believed the evidence of the complainant that she was telling the truth. I have no reason to differ with the finding of the trial court. The complainant had no reason to lie against the Appellant. I find that the evidence of the complainant was sufficient to prove the ingredients of penetration as well as identification of the Appellant. Penetration and identification were thereby proved beyond reasonable doubt. 31.In view of the foregoing, I find that the charge of defilement was proved against the Appellant beyond reasonable doubt. Consequently, I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 13TH DAY OF MAY, 2026.J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch HB for Ngina Mutua for RespondentAppellant - present virtually at GK Prison MalindiCourt Assistant - Rahma