https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7107

Katana v Republic (Criminal Appeal E079 of 2024) [2026] KEHC 7107 (KLR) (13 May 2026) (Judgment) Neutral citation: [2026] KEHC 7107 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E079 of 2024 JN Njagi, J May 13, 2026 Between Mwalimu Kazungu Katana Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon. Olga Onalo, RM, in Malindi Sexual Offence Case No. 57 of 2020 delivered on 27/2/2023) Judgment 1.The Appellant was charged with the offence of defilement contrary to Section 8(1) (3) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve a 20 years imprisonment term. The particulars of the offence were that on the 20th day of August 2020 at (name withheld) area in Malindi Sub County within Kilifi County, he unlawfully caused his penis to penetrate the vagina of SS (herein referred to as the complainant), a girl aged 13 years. 2.Aggrieved by the conviction and the sentence of the trial court, the Appellant lodged an appeal on the following grounds;1.That the learned trial magistrate erred in law and in fact in failing to consider that the prosecution failed to discharge the burden of proof to the required threshold.2.The Honourable Magistrate erred in law and fact by shifting the burden of proof to the Appellant.3.That the learned trial magistrate erred in law and in fact in relying on evidence of the prosecution witnesses that did not link him to the commission of the offence.4.That the learned trial magistrate erred in law and in fact in imposing a sentence that was harsh and excessive in the circumstances.5.That the learned trial magistrate erred in law and in fact by failing to consider the evidence tendered by the defence. 3.The prosecution called 5 witnesses in the case while the Appellant defended himself and did not call any witness. Prosecution case 4.The case for the prosecution was that the complainant was at the material time aged 13 years and had some mental challenge. She was living with her mother PW2. 5.It was the evidence of the complainant who was PW1 in the case that she was on the material day sent to buy a loaf of bread at a nearby shop but she did not find it. That as she returned to her house, she saw the Appellant cutting grass outside their fence. He was putting it in a sack. He had a bicycle nearby. That the Appellant followed her and held her by her hand and led her to the bush. He removed his shirt and laid it on the ground and asked her to lie down. That she did so. He unaddressed her and he inserted his penis into her vagina. That she told him that she was feeling pain but he told her to calm down. Then she heard the shopkeeper calling at her and the Appellant let her go. She went to the shop, bought bread and went back home. Later her mother returned home and the shopkeeper lady told her mother to check on her. She was taken to the police station and to hospital. 6.The shopkeeper PW2 testified that on that day she was at her shop when the complainant PW1 was sent to buy bread from her. She did not have bread so she told her to check later. She went back to check at 1pm but she still did not have it. She went back towards her house. That as she was entering her gate, she saw a man standing in front of her. She knew him as he used to cut grass in the area. That after about 10 minutes, the house maid for the complainant went to the shop looking for her. She, the shop keeper, knew that the girl had a mental challenge. She left her shop and went along the road calling at her but she did not find her. As she was going back to the shop, she saw the complainant coming back. She asked her where she was coming from and she answered that she was coming from the bush. When the complainant’s mother returned home, she asked her to check on her daughter. She later learnt that she had been defiled in the bush by the man who was cutting grass behind their house. 7.The mother to the complainant PW3 testified that on the morning of the material day, she gave the complainant money to buy bread. She went to the shop but did not find it. She PW3 left for the market. She later went back home and the shopkeeper PW2 asked her to check on the complainant. She went and enquired from the complainant who told her that the man who was cutting grass in the area had taken her to the bush and defiled her. They came out of the house and the complainant identified the Appellant and he started running. He was arrested and taken to the police. She took the complainant to hospital. 8.It was the evidence of PW3 that the complainant was born on 14/1/2007 and was at the material time aged 13 years. 9.A clinical Officer at Malindi sub county hospital PW4 testified that he attended to the complainant at their medical facility on 20/8/2021. She complained of having been defiled. He conducted a physical examination on her and found there was vulva edema, tenderness and pain on touch on both the labias. The hymen was however intact. A vagina swab was done that showed epithelial cells which meant that she had an infection. There was no indication of semen. He concluded that there was partial vaginal penetration. He filled her P3 form. 10.The case was investigated by a police officer PW5 of Malindi police station. It was her evidence that the matter was reported on 21/8/2020 by the complainant in the company of her mother. That the complainant reported that she went to buy bread and on her way back to her house, she met the appellant who lured her into a bush where he defiled her. That when she was heading back home a shop attendant saw her and inquired where she was coming from and she said that she was coming from the bush. That the shopkeeper later reported the matter to her mother and asked her to check on her. She later described to her mother the person who took her to the bush. She identified the person, the Appellant, and he was arrested. She PW5 issued her with a P3 form. She charged the Appellant with the offence of defilement. 11.During the hearing of the case in court the investigating officer produced the complainant`s birth certificate as exhibit. The clinical officer produced the treatment notes and P3 form as exhibits. Defence case 12.The Appellant in his defence stated in a sworn testimony that he slashes grass. That on the material day he was cutting grass That he had 5 bags. That when he had one remaining sack to be filled, a mzee suddenly got hold of his hand. He tried to inquire what the issue was but he did not get a response. The man pulled him upto his bicycle and told him to sit down. He was hit with a log and within no time, a crowd came to see what was happening. He was later forced into a tuk tuk motor vehicle and taken to the police station at Malindi. He denied that he defiled the complainant. 13.The appeal was canvassed by way of written submissions. Submissions 14.The appellant submitted that the prosecution failed to discharge the burden of proof beyond reasonable doubt. He contended that the alleged act of sexual intercourse stated by the complainant contradicted the evidence of the medical officer PW3. He submitted that the ingredient of penetration was not satisfied since there was no medical evidence linking him to the offence. 15.The Appellant submitted that the complainant did not present herself as a credible witness and that her evidence was rife with inconsistencies, contradictions and omissions thereby rendering it unsafe for the purpose of sustaining a conviction. It was his submission that the trial court failed to weigh the evidence of the complainant as regards the issue of contradictory evidence. 16.The Appellant submitted that the history of the case given to the clinical officer who examined the complainant was that she was defiled by an unknown person. Further that the evidence adduced against him did not meet the threshold as provided under section 124 of the Evidence Act. 17.The Respondent on the other hand submitted that the prosecution had proved its case beyond reasonable doubt. That all the ingredients of defilement of the age of the complainant; penetration and identification were all proved. That the age of the complainant was proved via the Birth Certificate produced by PW5 that proved that the complainant was a minor of 13 years. That penetration was proved by the evidence of the complainant and the clinical officer. 18.It was submitted that the incident occurred during the day and the minor was able to positively describe the appellant and as such, there was no chance of mistaken identity. Analysis and determination 19.This being a first appeal, this court has a duty to revisit the evidence that was adduced before the trial court, re-evaluate and analyse it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record. See Okeno v R (1972) EA 32 and Eric Onyango Odeng’ v R (2014) eKLR. 20.I have considered the grounds of appeal, the record of the trial court and the respective submissions for the parties, The issue for determination is whether the prosecution proved its case against the Appellant beyond reasonable doubt. 21.In order for the offence of defilement to be proved, the prosecution must prove all the three elements of defilement being the age of the complainant, proof of penetration and the positive identification of the perpetrator, see Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013. 22.On the element of age of the complainant herein, the investigating officer PW5 produced the complainant`s birth Certificate that showed that the complainant was born on 14/2/2007 thereby placing the age of the complainant in August 2020 at 13 years. The element of age was therefore proved. 23.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.” 24.The prosecution has a duty to establish that the complainant was partially or fully sexually penetrated by the Appellant. The same can be proved by way of oral evidence or by circumstantial evidence. In Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the Court of Appeal held that:-“….the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”. 25.Such evidence can be corroborated by medical evidence. 26.The trial magistrate in convicting the appellant of the offence held that the evidence of the complainant was corroborated by the evidence of the clinical officer who examined her. The court cited the case of Alex Chemvotei Sakong v Republic (2018) eKLR where the court cited the Court of Appeal decision in Mark Oiruri vs. Republic Criminal Appeal 295 of 2012 [2013] eKLR to the effect that penetration need not be deep inside the girl’s organ. That so long as there is penetration whether only on the surface, the ingredient of the offence is proved. 27.The clinical officer PW4 who examined the complainant found her with swollen labias that were tender and painful to touch though the hymen was intact. The clinical officer formed the opinion that there was partial vaginal penetration. 28.The evidence of the complainant was that the Appellant inserted his penis into her vagina. The clinical officer found the complainant with an intact hymen but there were injuries on the vulva. This can only mean that the appellant partly entered his penis into the vagina of the complainant. Partial insertion of the penis into the vagina of a female by definition of the law amounts to penetration. In the case of Mark Oiruri vs. Republic Criminal Appeal 295 of 2012 [2013] eKLR, the Court of Appeal opined thus:“…In any event the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ…” 29.In view of the foregoing, I agree with the finding of the trial court that penetration was proved against the Appellant. 30.On the element of identification of the Appellant as the perpetrator of the offence, the trial court stated that the offence was committed during the day. That the complainant had sufficient time to identify the Appellant from when she saw him cutting grass in their compound to when he released her after defiling her. 31.I have re-examined the evidence on identification of the Appellant. It is clear that the offence was committed in clear day light. It was the evidence of the complainant that she first saw the Appellant cutting grass in her compound. That as she was going back from the shop the appellant followed her, held her hand and took her to the bush where he defiled her. 32.The complainant`s neighbour and shop attendant PW2 said that the Appellant was cutting grass in the compound. That when the complainant was getting back to her house from her shop, she saw her at her gate and saw the Appellant next to her. She was later informed by the complainant`s house help that the complainant had not reached their house. She PW2 went out upto the road calling on her but she did not answer. She later saw her returning home and asked her where she was coming from and answered her that she was from the bush. 33.The complainant in her evidence stated that while the Appellant was defiling her in the bush, she in fact heard PW2 calling at her and that that is when the Appellant released her. 34.There is no reason to doubt all this evidence. There was no doubt that the Appellant was cutting grass in the complainant`s compound on the material day. He admitted as such. He was arrested within the vicinity while cutting grass. The complainant identified him when he was arrested. Besides this, the shop attendant PW2 saw the complainant returning home and when she asked her where she was coming from, she told her that she was coming from the bush. The complainant in fact heard PW2 calling at her when the Appellant was defiling her in the bush. She said that the Appellant released her when the shop keeper called at her. This would explain why there was partial penetration. The Appellant was interrupted in his tracks by the call from PW2. There is no doubt that the Appellant penetrated the complainant. 35.As to the identity of the Appellant as the perpetrator of the offence, the Appellant was identified by the complainant as the person who defiled her. The shopkeeper PW2 saw him next to the complainant before the complainant disappeared from home. The Appellant was arrested within the vicinity after the incident. The evidence on identification of the Appellant as the perpetrator of the offence was proved beyond reasonable doubt. The Appellant`s defence amounted to a mere denial. 36.The Appellant submitted that the history of the case given to the clinical officer who examined the complainant was that she was defiled by an unknown person. However, the report was that she was defiled by a person not known to her who was cutting grass in her compound. It is the Appellant who on the material day cutting grass in the complainant`s compound. Nothing therefore comes out of this argument. 37.The Appellant argued that the evidence adduced against him was contradictory and did not meet the threshold as provided under section 124 of the Evidence Act. 38.Section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole basis of the evidence of the child victim if the court is satisfied that the child is telling the truth and gives reason for believing the evidence. The trial court in the against the Appellant believed that the child was telling the truth. I have on my part re-evaluated her evidence and find that she was indeed telling the truth and was a credible witness. Her evidence that she was defiled on that day was corroborated by the medical evidence of the clinical officer PW4. The Appellant was arrested within the vicinity after defiling the complainant. The Appellant did not point out any material contradictions in the case. There were sufficient reasons to support a conviction on the Appellant. 39.In view of the foregoing, I find the case against the Appellant to have been proved beyond reasonable doubt. There is no 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 Miss Ngina Mutua for RespondentAppellant – present virtually at GK Prison MalindiCourt Assistant - Rahma