https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12671

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MALINDI CRIMINAL APPEAL NO. E014 OF 2026 DAVID NGUMBAO KENGA……………………………………………………………………APPELLANT VERSUS REPIBLIC………………………………………………………………………………………. RESPONDENT **JUDGMENT** ***(Being an Appeal from decision by Hon. R.M Amwayi Principal Magistrate in Kaloleni S.O No. E016 of 2023 dated 23rd October, 2023)*** **Introduction.** 1. The appellant was charged before Kaloleni Principal Magistrate’s Court with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The appellant was found guilty on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He was convicted and subsequently sentenced to serve 15 years imprisonment. 2. The particulars of the main charge in which the appellant was found guilty were that on 22nd day of May, 2023 at (particulars withheld) in Kilifi County intentionally caused his genital organ namely penis to penetrate into the female organ namely vagina of J.V a child aged 14 years. 3. The appellant was aggrieved by the conviction and sentence and he lodged this appeal in the High Court. The appellant raised several grounds in his petition of appeal and amended grounds of appeal contained in his undated submissions. Those grounds can be compressed to four grounds. Firstly, the charge sheet was defective. Secondly, that the essential ingredients of the offence of defilement to wit age of the victim, proof of penetration and positive identification were not proved beyond reasonable doubt. Thirdly, the prosecution case was marred by inconsistencies and contradictions. Finally, that the trial court did not consider his defence. 4. From the submissions, the appellant concentrated on the grounds that the ingredients of the offence were not proved as required and that the prosecution evidence was contradictory and inconsistent. It appears that the appellant abandoned the other grounds. **Prosecution Case.** 1. The prosecution case was based on the evidence of five witnesses. The prosecution case was that at the material time the complainant was a child aged 14 years and was in grade 6 at (particulars withheld). She testified that on 22nd May, 2023 at noon she was send home from school for school fees. 2. When she got home she found the appellant with his brothers. The appellant told her to cook vegetables and ugali which she did. After that the appellant told her to go and eat in his house. while eating the appellant locked the door. 3. After eating, the appellant took her to his bed and defiled her. After he was through Lewis came and pushed the door and found her on the bed with the appellant. The appellant told Lewis that they had finished eating. 4. The complainant said she felt pain and later informed her aunt PW2 who informed the village elder PW3. PW3 was called to the home by Samuel Katana. PW3 arrested the appellant and called the police. 5. The complainant was thereafter taken to Mariakani Sub County hospital treatment and medical examination. The complainant was admitted for one day in the hospital and continued with check up after discharge. 6. The complainant was examined by PW1 who found that her underpants were blood stained. She had painful tender thighs. The external genitalia and labia were normal. There was however vaginal tear at 6 O’clock 2cm. The hymen was absent and the complainant was bleeding from the vagina. He concluded that there was penetration into the complainant’s vagina. 7. PW1 produced in court as exhibits the P3 Form, treatment notes, laboratory reports, PRC Form, gender-based violence Form and Child health card of the complainant. 8. PW4 investigated the case after the report was made at the police station. He interrogated the complainant who narrated to him what had happened to her. He produced in court as exhibits the blood stained bed sheet and pants. PW4 said the pants were given to him by the complainant and the bed sheet was recovered from the bed of the appellant. he said the complainant and the appellant were related. **Defence Case.** 1. The appellant was the only witness in his case. He said he is a palm wine tapper and on the material date he started work at 5.00am up to 3.00pm then he went home. 2. On the way he met with Kahindi who accompanied him home arriving at 5.00pm. He found the villager elder and Lewis at home who arrested him and tied him with ropes. They took him to Kaloleni police station where he was interrogated and later taken to court. 3. He said no one saw him committing the offence and he attributed the allegations to a land dispute between Lewis Kenga’s parents and his parents. 4. He admitted that the complainant was his cousin. He denied that the bed sheet which is alleged to have been recovered from his house was not his. **Finding of the Trial Court.** 1. The trial court after evaluating the evidence adduced before her she identified the essential elements of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act to wit, the age of the complainant, proof of penetration and positive identification of the perpetrator. 2. The trial court after reviewing various decisions of the superior courts on how age is proved, found that age was proved as required by the evidence of the complainant and the child health card produced in court as exhibit. 3. The trial court also found that the penetration was proved by the evidence of the complainant, the medical evidence adduced by PW1 and recovery of blood stained bed sheet and underpants of the complainant. 4. Further the trial court found that the appellant was a cousin to the complainant and as such there was no doubt that he was positively identified as the perpetrator. 5. Finally, the trial court found the appellant’s defence of alibi as an afterthought and it did not displace the evidence adduced by the prosecution in support of the charge. **Appellant’s Submissions.** 1. The appellant submitted that age was not proved as required. He argued that when he was arraigned in court he was supplied with statements and copies of P3 Form, birth certificate and treatment notes. However, he argued that during the hearing the prosecution did not avail the birth certificate but instead produced a child health card allegedly belonging to the complainant. 2. He questioned why the child health card was never supplied to him during the pre-trial, the chain of custody of the same as to who collected it from the facility when issued, who had custody of the same until it was produced in court. He further argued that the said health card was never identified by any witness before it was produced in court. He termed the document as highly questionable. 3. Regarding penetration the appellant questioned the foundational facts leading to the admissibility of the blood stained garments which were produced in court by PW4. He submitted that it was not laid down how they were recovered, who recovered them, whether what was said to be blood stains was really blood and from who. He added that the PRC Form did not indicate that any clothes were recovered. 4. On identification, the appellant submitted that the same was based on familiarity. He argued that the existence of grudges because of land dispute prompted these charges. 5. The appellant cited contradictions in the prosecution case. Firstly, he submitted that if the door locked, it was not clear who opened the same for Lewis to come in and find him with the appellant in the bed as alleged. He further submitted that PW2 contradicted herself when she said that the appellant had defiled the complainant before only to retract that in her evidence and state that it was the first incident. 6. The appellant further submitted that there were inconsistencies on the recovery of the blood stained garments. He argued that although the complainant was taken to hospital the same day of the alleged incident, it is curious why it was not indicated in the PRC Form that there were clothes recovered. He termed the line of evidence on recovery of the blood stained clothes as fabrication. **The Respondent’s Submissions.** 1. The respondent on its part submitted that all the elements of the offence were proved as required. On the age the respondent cited the case of ***Francis Omuroni vs Uganda Criminal Appeal No. 2 of 2000*** on how age can be proved in a defilement case and submitted that the prosecution produced the child health card which proved the element of age conclusively. 2. On penetration the respondent cited Section 2 of the Sexual Offences Act on what is penetration and submitted that the complainant’s evidence that the appellant defiled her was corroborated by the medical evidence adduced by PW1 in form of treatment notes, P3 Form and PRC Form. 3. On identification, the respondent submitted that the appellant was well known to the complainant and identification was by recognition. They relied on the case of ***Anjononi & Others vs Republic (1980) KLR*** where the Court of Appeal held that recognition of assailant is more satisfactory, more assuring and more reliable than identification of a stranger as it depends on the personal knowledge of the assailant in some form or another. 4. The respondent further termed the sentence imposed on the appellant as unlawful and cross-appealed. The respondent argued that under Section 8(2) of the Sexual Offences Act, which is the penal section for defilement of child under the age sixteen years provides for minimum sentence of twenty years. The respondent urged the court to allow the cross appeal and sentence the appellant to twenty years. 5. Finally, the respondent argued that the appellant’s defence was duly considered by the trial court and was found to be an afterthought and the trial court rightly rejected the same. **Analysis and Determination.** 1. This being a first appeal to the High Court, and as expected I have examined the record, re-evaluated the evidence adduced before the trial and drawn my own independent conclusions. I have done so bearing in mind that I did not have the advantage of seeing or hearing the witnesses testify before the trial court. ***(See Okeno vs Republic (1972) E.A 32*** and ***Njoroge vs Republic (1987) KLR 19).*** 2. Further I have reminded myself of the cardinal principle in criminal law that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt as restated in numerous decisions of this court and superior courts like in the case of ***Stephen Nguli Mulili vs Republic (2014) e KLR*** where the court cited the case of ***DPP vs Woolmington (1935) UKHL 1*** and reiterated that it is the duty of the prosecution to prove its case and that remains the Kenyan position. 3. The appellant was convicted of the charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act which provides: ***“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.*** ***8(3) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”*** 1. From the foregoing provision and court decisions like the case of ***Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013*** among other decisions, the essential elements of the offence of defilement which the prosecution must prove beyond reasonable doubt are the age of the victim, proof of penetration and identification of the perpetrator. 2. In the instant case the appellant argued that age of the complainant was not proved and therefore the trial court erred in finding that the same was proved. The basis of his argument is that the prosecution though they had supplied him with a birth certificate of the complainant during the pre-trial, they never produced the same but they relied on the child health card of the complainant. He further argued that no basis was laid for the production of the same by PW1. 3. In the case of ***Edwin Nyambogo Onsongo vs Republic (2016) e KLR*** the Court of Appeal in discussing the proof of age in defilement cases held: ***“…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 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.”*** 1. It is clear from the record that the prosecution indicated during the pre-trial that it had supplied the appellant with among other pre-trial materials birth certificate of the complainant. However, during the trial the same was not produced. Instead, the prosecution produced child health card to prove the age of the complainant. That child health card was produced by PW1. There was no basis laid on the production of the same by PW1. 2. I agree with the appellant that the production of the child health card by PW1 without proper nexus or identification by the victim, parents or investigating officer weakens proof of age. However, as held in the case of ***Edwin Nyambogo Onsongo vs Republic (supra)*** age of victim may be proved by oral evidence of the child if the child is sufficiently intelligent. In this case the trial court conducted *voire dire* examination and found that the complainant was sufficiently intelligent and allowed her to give evidence on oath. The complainant testified that she was aged 14 years at the time of the incident. It is my finding that the complainant was intelligent enough to know her age. 3. In any case, the appellant although he said he was supplied with a copy of birth certificate, which I presume was in his possession during the trial, he did not bring out the issue of the discrepancy between the birth certificate and the child health card so as to challenge the production of the child health card. I am satisfied that age was proved as required and that ground of appeal must fail. 4. Regarding penetration, Section 2 of the Sexual Offences Act defines penetration to mean: ***“Partial or complete insertion of the genital organ of a person into the genital organ of another person.”*** 1. In this case the appellant submissions primarily centered on the production of the blood stained garments which he argued that the prosecution did noy tender evidence on how the same were recovered and who recovered them as PW4 the investigating officer did not lay basis on how they were recovered hence the such evidence was inadmissible. 2. I agree with the appellant that the investigating officer did not lay the basis for the production of the same. None of the witnesses including the complainant identified them during the trial. It is not clear who collected, discovered or originally identified them. It is further curious that the PRC Form did not indicate that any clothes were handed over to the police at the time of the report. In the circumstances the chain of custody becomes legally vulnerable for failure to prove continuous safe custody of the said exhibits. 3. It is imperative to state that if the investigating officer produces items he did not seize or identify and the original finder did not identify them or testify, such evidence lacks direct proof, reducing the weight of admissibility of such exhibits. 4. However, from trial court judgment, it is clear that she did not rely solely on the blood stained clothes produced in court by PW4. The trial court relied on the evidence of the complainant who stated that the appellant defiled her. There was also the evidence of PW2 who upon checking the complainant’s genitalia she noted that the complainant was bleeding from her vagina. There was also corroboration from the medical evidence adduced by PW1 that there was vaginal tear at 6 O’clock. 5. I have relooked at the evidence adduced regarding penetration and as found by the trial court, I am satisfied that the element of penetration was properly proved as required and I have no reason to fault the trial court. 6. On identification, it is clear from the evidence adduced before the trial court that the appellant was cousin to the complainant. He was well known to the complainant. The complainant whom the court found was sufficiently intelligent narrated how the appellant lured her to his house and defiled her. The incident was investigated almost immediately and the complainant was found to be bleeding from her vagina. 7. Again, this was identification by recognition which is satisfactory, more assuring and reliable than identification of a stranger. It is my finding that the appellant was properly identified as the perpetrator. 8. The appellant raised defence of alibi. It is notable that the same was raised during the defence hearing. The trial court termed it as an afterthought and rejected the same. 9. It is trite that the burden of proof lies with the prosecution throughout. It never shifts to an accused person. The mere fact that an accused person raises defence of alibi during the defence hearing, the court cannot simply ignore it. It must be considered and weighed against the totality of the prosecution case. 10. In the instant case it is clear that the trial court considered the defence of alibi by the appellant and rejected the same as an afterthought. I similarly weighed the said defence by the appellant against the evidence adduced by the prosecution and I find the same as an afterthought. The appellant did not raise it during cross-examination of the witnesses so as the same can be interrogated by the prosecution. 11. From the foregoing, I find the appeal by the appellant unmerited. 12. The respondent cross appealed on the sentence. It is notable that the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(3) is the penal provision. It provides for the sentence of not less than fifteen years where the child is between the age of sixteen and eighteen years. From the evidence adduced, it emerged that the child was aged fourteen years. The penal provision where the child is aged between twelve and fifteen years provides for minimum sentence of twenty years. 13. It is clear that the appellant ought to have been charged under Section 8(2) of the Sexual Offences Act in view of the fact that the complainant was aged fourteen years. The minimum sentence under the said provision is twenty years. In the circumstances I find the cross appeal merited and I substituted the sentence of fifteen years with a sentence of twenty years. 14. The upshot is that the appellant’s appeal herein is disallowed and the finding of the trial court is upheld save that the sentence is enhanced to imprisonment for twenty years. **Dated, signed and delivered virtually this 6th day of August, 2026.** **Francis Kyambia** **Judge of the High Court.**