https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8887

Katana v Republic (Criminal Appeal E142 of 2024) [2026] KEHC 8887 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8887 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E142 of 2024 JN Njagi, J June 19, 2026 Between Kenga Moses Katana Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon. I. Thamara, RM, in Malindi Chief Magistrate’s Court Sexual Offence Case No. 97 of 2023 delivered on 31/10/2024) Judgment 1.The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 15 years imprisonment. The particulars of the offence were that on diverse dates between 1st January, 2022 and 30th November, 2022 at (name witheld) area in Malindi Sub County within Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of M.K.N. (herein referred to as the complainant), a girl aged 16 years. 2.Aggrieved by the sentence and the conviction, the Appellant lodged an appeal on the following amended grounds of appeal:1.That the learned trial magistrate erred in both law and facts by failing to consider the need for DNA test.2.That the learned trial magistrate erred in both law and facts by failing to consider the contradictions and inconsistences in the prosecution case.3.That the learned trial magistrate erred in both law and facts by violating provisions of section 109 and 110 of the Evidence act.4.That the learned trial magistrate erred in both law and facts by failing to find that the case was poorly, shoddily and inadequately investigated.5.That the learned trial magistrate erred in both law and facts by failing to appreciate that there was breach of Article 50(2) of the Constitution of Kenya 2010. Prosecution’s case. 3.The case for the prosecution was that the complainant, PW1 in the case, was at the material time a secondary school student. The Appellant was a tenant at her mother`s (PW2) rental houses. That in the year 2020 she started a love affair with the Appellant. In the year 2022 they started to engage in sex at his house. They had sex more than ten times. Later in November 2022 she missed her menses and informed the Appellant who then moved out of their house on 16th November 2022. That one day she was at school when she felt like fainting. She informed her class teacher who contacted her mother. She was taken to Malindi sub county hospital but she was not examined as they did not have money. They went home. They did a pregnancy test and she was found to be 6 months pregnant. The Appellant was later arrested. 4.The mother to the complainant PW2 testified the Appellant was a tenant at her rental houses. That in the month of March 2023 she was called by the complainant`s school and she was informed that the complainant was vomiting at the school. She went and picked her and took her to Malindi sub county hospital where she was examined and found to be pregnant. The complainant told her that the Appellant was responsible for the pregnancy. The Appellant disappeared from her premises in March 2023. They reported the matter to the police. The Appellant was later arrested. 5.The doctor who examined the complainant, PW3, testified that he examined her on 2nd May, 2023 and found her to be 6 months and 19 days pregnant. He completed the complainant`s P3 form to that end. 6.The case was investigated by PC Marian Hussein PW4 of Malindi police station. It was her evidence that the case was reported at the station on 4/5/2023 by the complainant who was in the company of her mother. She (the complainant) reported that she had been defiled by the appellant who was their tenant. That they had been in a sexual relationship from January to November, 2022. 7.It was the evidence of PW4 that the appellant fled when he learnt of the pregnancy. That he was later arrested at Furunzi. He was charged. 8.During the hearing of the case in court, the clinical officer PW3 produced the complainant`s P3 form, treatment notes, ultra sound report, lab request and x-ray report as exhibits, P.Exh.1-5 respectively. The investigating officer PW4 produced the complainant`s birth certificate as exhibit, P.Exh.6. Defence case 9.When placed to his defence, the Appellant stated in a sworn testimony that he hails from Bamba. That in 2022 he was at school and had rented a house from the mother of the complainant as from January 2022 to May 2022. That he was occupying the house with three colleagues who left after three months. They left him there and he stayed there for another month. The landlord came thrice asking for rent but he did not have it. She threatened him. He left for Mombasa in May 2022 where he stayed for one month. He later went home at Bamba in November, 2023. He denied having a relationship with the complainant. He stated that he worked at Lawford from April 2022 to May 2022. Appellant`s submissions 10.The Appellant submitted that the prosecution failed to prove the exact age of the complainant as both the complainant and her mother said that she was aged 16 years while the birth certificate produced by the investigating officer indicated that she was born on 24/10/2007. More so that the investigating officer did not tell the court where he got the birth certificate from as it was not identified by the complainant and her mother. That the trial court said that the complainant was at the time of the alleged offence aged both 14 and 15 years. 11.The Appellant submitted that he was charged with defiling the complainant on diverse dates between 1st January 2022 and 30th November 2022. That the complainant initially stated that she had sex with him in 2023 but later changed this to the year 2022. That even then she did not state the exact dates they had sex in the year 2022. He wondered where the investigating officer got the dates stated in the charge sheet. That without knowing the exact date the offence was committed he could not offer a proper defence. That he was prejudiced by the manner the charge sheet was drawn. He submitted that the charge was fatally defective as it was not possible for him to formulate any kind of defence. He relied on the Court of Appeal decision in Benard Ombuna v Republic (2019) eKLR where it was held that:In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence. 12.It was submitted that the medical evidence of PW3 was of no evidential value as it only indicated that the complainant was pregnant. He faulted PW3 for producing the ultra sound report in court when he was not the maker of the document and he never laid basis under section 77 of the Evidence Act for its production. He found fault in the trial court relying on the evidence of PW3. 13.The Appellant faulted the prosecution for not calling the complainant`s teacher as a witness in the case. He faulted the trial court for not assessing the credibility of the complainant as required by section 124 of the Evidence Act. 14.It was submitted that no DNA test was conducted to prove that he defiled the complainant and that he made her pregnant. That without a DNA test to confirm paternity in this case, there was no other way of proving that he committed the offence. The Appellant made reliance in the case of Aminga v Republic (Criminal Appeal E009 of 2023) (2024) KECA 480 (KLR) (Reasons) where the Court of Appeal held that:We think, with respect, that both courts below fell into error when they determined that a DNA test was not necessary in the matter. While it is trite that DNA testing is not mandatory to prove a sexual offence, we are of considered view that in such a case as the instant one where a child was born out of the alleged defilement, and there was no other medical evidence, DNA testing ought to have been done to establish beyond reasonable doubt that the appellant was the biological father of the child hence connected to the defilement. We, moreover, note that the investigating officer did not testify to shed light on the nature of investigations that were carried out, and explain the basis upon which the appellant was charged. Whist the child who was born out of the alleged offence has since passed away, evidence on record also shows that she was alive for a period of about 2 years. 15.The Appellant urged the court to find that it was important to do a DNA test in the case. 16.It was submitted that there were discrepancies on the dates the Appellant was alleged to have defiled the complainant. That the complainant at first stated that it was in the year 2020 but changed this to 2022. That her mother said that it was 2020. That the investigating officer said he fled on 7th August 2023 yet PW2 said it was in March 2023. Respondent`s submissions 17.The Respondent submitted that the trial court was correct in dismissing the Appellant`s defence and convicting the Appellant. On the issue of a DNA test, it was submitted that the same is not a mandatory requirement for a conviction in defilement cases as section 36 of the Sexual Offences Act is not couched in mandatory terms. Reliance was placed in the Court of Appeal decision in Hadson Ali Mwachongo v Republic (2016) eKLR where it was held that DNA evidence is only necessary where identity of the offender is in doubt. That in this case the identity of the offender was through recognition as he was in a sexual relationship with the complainant. 18.On contradictions in the prosecution evidence, it was submitted such contradictions were minor and did not go to the root of the charge. That though there was a slight variance in the complainant`s age between her testimony and the birth certificate, the trial magistrate correctly found that she was a minor. Analysis and determination 19.This being the first appellate court in the matter, the court is guided by the principles established in David Njuguna Wairimu v Republic [2010] eKLR where the Court of Appeal held: -“The duty of the first appellate court is to analyze and re-evaluate the 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 facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think 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 decisions.” 20.The ingredients of the offence of defilement are: proof of the age of the victim, proof of penetration and proper identification of the perpetrator, see George Opondo Olunga vs. Republic [2016] eKLR. 21.In the present case, the trial court found that the complainant was at the time of the offence aged 14 and 15 years. 22.The complainant told the court that she was born on 14/10/2007. Her mother PW2 said that the complainant was of the age 16 years and that she was born on 24/10/2007. The birth certificate produced by PW4 showed that she was born on 24/10/2007. This shows that the complainant was aged between 14 and 15 years when the incidents were alleged to have taken place between 1st January, 2022 and November 2022. The trial court was therefore correct in holding that the complainant was of the age 14 and 15 years when the offence was committed. I therefore find the age of the complainant was proved at between 14 and 15 years at the time of commission of the offence. 23.With regard to penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs of a person into the genital organs of another person. The prosecution had to prove penetration or act of sexual intercourse to sustain a charge of defilement. 24.Penetration can be proved through the evidence of the victim which can be corroborated by medical evidence. 25.The trial court found the complainant to have been penetrated and that she identified the Appellant as the person who penetrated her. 26.The doctor who examined the complainant PW3 found her to have been 6 months pregnant. The fact of pregnancy meant that the complainant had been penetrated. However, there was nothing in the evidence of the doctor to link the Appellant with the penetration on the complainant or her pregnancy. The evidence of the doctor was confined to the fact of pregnancy and nothing more. There being no medical evidence to support the evidence of the complainant that the Appellant penetrated her, the prosecution case only rested on the credibility of the complainant on whether the Appellant penetrated her. 27.Section 124 of the Evidence Act allows the court to convict on the sole evidence of the child victim in sexual offences involving children where the court is satisfied that the child is telling the truth and the court records reasons for such a finding. 28.It was the evidence of the complainant that the Appellant was her mother`s tenant from the year 2020. That she started a boyfriend/girlfriend relationship with him in that year. That they started to engage in sexual intercourse in his house in the year 2022. They had sexual intercourse in his house for more than 10 times and in November 2022 she missed her menses. She was later examined in hospital and found to be pregnant. 29.It was the evidence of the mother to the complainant PW2 that the Appellant rented her house in the year 2020 and that he fled from the rental house after he impregnated the complainant. 30.Though the Appellant stated that he occupied PW2`s house in January 2022 and stayed there until April 2022, he did not put such a question to the prosecution witnesses during cross-examination. He did not put any question to the witnesses that he left the house in May 2022. I am satisfied that the complainant and her mother were telling the truth that the Appellant was a tenant in PW2`s house since 2020 until when the complainant got pregnant in 2022. I am satisfied by the evidence of the complainant that the Appellant was her boyfriend since the year 2020 and that they started to engage in sexual intercourse in the year 2022. There was no reason for the complainant to fabricate the evidence against the Appellant. There was no grudge between them. Penetration was thereby proved. 31.The fact that a DNA test was not conducted to determine the paternity of the child born to the complainant did not negate the act of defilement on the complainant. Such evidence would have been necessary if there was no sufficient evidence to prove the charge of defilement against the Appellant. The contradictions that were there in the case as to the age of the complainant were minor and were dispelled by the birth certificate. 32.The Appellant was charged with committing the offence on a particularized period between January and November 2022. The charge was not misleading in any way. It was proved that during this period the Appellant was staying at the rental houses of the complainant`s mother. There was no defect in the charge. 33.There is no doubt that the Appellant was well known to the complainant as they were boyfriend and girlfriend. There was no possibility of mistaken identity. The Appellant was positively identified as the perpetrator. 34.The upshot is that I do not find any merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 19TH DAY OF JUNE, 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - Rahma