https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7153

Kitsao v Republic (Criminal Appeal E125 of 2024) [2026] KEHC 7153 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7153 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E125 of 2024 JN Njagi, J May 22, 2026 Between Masha Mkutano Kitsao Appellant and Republic Respondent (Appeal from original conviction and sentence by Hon. R. Amwayi, Principal Magistrate in Kaloleni PM`s Court Sexual Offence Case No.E032 of 2024 delivered on 28/10/2024) 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 1st February 2024 to 18th July 2024 at (name withheld) area in Rabai sub county within Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of A.N. (herein referred to as the complainant), a child aged 15 years. 2.The Appellant was sentenced to serve twenty years imprisonment. He was aggrieved by the conviction and the sentence and lodged an appeal on the following amended grounds;1.That the learned trial magistrate erred in law and in fact by failing to find that there was contravention of sections 70 and 72 of the Evidence Act.2.That the learned trial magistrate erred in law and in fact by failing to find that the defence under section 8(5) of the Sexual Offences Act was available to the Appellant.3.That the learned trial magistrate failed to note that the sentence she imposed on the Appellant was harsh. Prosecution case 3.The case for the prosecution was that the complainant PW5 was at the material time age 15 years and was a primary school pupil in class 8. She was living with her grandmother, PW 4. 4.It was the evidence of the complainant that sometimes in the month of February 2024 the Appellant approached her and seduced her. They became lovers. In the month of March 2024, they started to engage in sex in his house whereby he would insert his penis into her vagina. She subsequently went to his house on 3 occasions and engaged in sex with him. In the month of April 2024, she missed her menses. In June 2024 she went to a local dispensary where she was examined and found to be pregnant. Her grandmother was informed who informed her parents, her mother PW2 and her father PW4. Her parents went and took her to Mariakani sub county hospital and reported to the police. 5.The complainant was examined at Mariakani sub county hospital by a clinical officer PW1 who found her to be pregnant. 6.The case was investigated by PC Kadzo of Rabai police station. The complainant led her to where the Appellant was working and he was arrested. He was charged with the offence. 7.It was the evidence of the complainant that she suffered miscarriage. During the hearing of the case in court the clinical officer PW1 produced the P3 form, Post Rape Care form, Lab request and results, scan report, birth notification and immunization as exhibits, P,Exh,1 - 6 respectively. The complainant mother PW3 identified the immunization card during the heating. Defence case 8.The Appellant when placed to his defence stated in a sworn statement that he seduced the complainant in the year 2024 and she became his girlfriend. That she told him that she was 19 years old. They were engaging in sexual intercourse. That he was later arrested and he was told that she was pregnant. That he had ended the relationship by the time he was arrested. 9.The appeal was canvassed by way of written submissions. Submissions 10.The Appellant submitted that the clinical officer who produced the P3 form in court was not the maker of the document. That he did not say whether he was familiar with the handwriting of the officer who made the document. The appellant ought to have been given the benefit of doubt for failure to call the maker of the document. 11.The Appellant submitted that the defence under section 8(5) of the Sexual relations Act was open to him as his relationship with the complainant was confirmed by the complainant herself. That the complainant took long to report the matter to the police. 12.The Appellant submitted that the sentence imposed on him was harsh. 13.The Respondent on the other hand submitted that the ingredients of the offence of defilement of proof of the age of the complainant, penetration and identity of the perpetrator was proved beyond reasonable doubt. It was submitted that the sentence of 20 years is lawful. Analysis and determination 14.This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.” 15.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. 16.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.” 17.In the present case, the complainant and her parents PW2 and PW3 stated that the complainant was at the material time aged 15 years. Her child immunization card was produced in court that indicated that she was born on 27/4/2009. This placed her age in July 2024 at 15 years. In my view a child immunization card showing the date of birth of a child is a credible way of proving the age of the child. The age of the complainant was therefore proved at 15 years. 18.On the element of penetration, Section 2 of the Sexual Offences Act defines the same as:“..the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 19.The Appellant submitted that the clinical officer who produced the P3 form was not the maker of the document and he did not identify the person who made the document. However, the clinical officer PW1 said that he is the one who attended to the complainant and wrote the treatment notes and filled the Post Rape Care form. Though he is not the one who subsequently filled the P3 form, its contents were as per the Post Rape Care form that he prepared. Besides this, the Appellant was not denying to having engaged in penetrative sex with the complainant. The argument thereby does not hold any water. 20.The evidence of the complainant was that the Appellant was her boyfriend since February 2024. That they used to engage in penetrative sex. Though the Appellant in his defence admitted as much, he raised a defence that the complainant had told him when they started the affair that she was aged 19 years. That he had penetrative sexual intercourse with her thinking that she was of the age of 19 years. He stated in cross-examination that she never told him that she was in school. That he never asked her for any document to prove her age. He stated that they were living in the same village. 21.The trial court in dismissing the Appellant`s defence stated that a defence under section 8(5) of the Sexual Offences Act is to be determined having regard to all the circumstances of the case. The court cited the case of Luka Waithaka Ndegwa v Republic (2017) eKLR where the court held that:Therefore once it is proved that the complainant was below the age of 18 years the offence is completed and it is immaterial that she or he consented to sex. The defence afforded by section 8 (5) of the Sexual Offences Act does not refer to consent, but rather to reasonable belief that the complainant was above the age of majority…. That she consented to the sexual intercourse is not sufficient to exonerate the appellant of the offence. It is not the consent of the child that exonerates the appellant from the offence but the reasonable belief that she was above the age of majority therefore capable of consenting, and the evidence of steps taken to establish this fact. There was no evidence of any steps that the appellant took to ascertain the age of the complainant. This ground of appeal must fail. 22.The trial court thereupon stated that the Appellant did not take any step to ascertain the age of the complainant. The court consequently dismissed his defence as an afterthought. 23.Section 8(5) of the Sexual Offences Act provides as follows:It is a defence to a charge under this section if-(a)It is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence, and(b)the accused reasonably believed that the child was over the age of eighteen years. 24.Section 8(6) states as follows:-The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant. 25.So as to benefit from the defence under section 8(5) of the Sexual Offences Act, an accused person must prove that the victim deceived him into believing that he/she was above the age of 18 years and that the accused reasonably believed that the victim was of above that age. Such believe is required to be considered having regard to all circumstances of the case such as the steps the Accused took that made him believe that victim was of the age of above 18 years. The law places the burden of proof on the accused to prove the defence. 26.The complainant told the trial court that she told the Appellant that she was a minor and he told her that she was of the age of 14 to 15 years. 27.I have taken note of the fact that the Appellant was represented by an advocate during the trial at the lower court. Counsel never asked the complainant in cross-examination on whether she deceived the Appellant that she was at the time aged 19 years. The issue was not raised when counsel cross-examined the investigating officer PW6. Neither was the defence raised when PW6 was investigating the case. It is also worth noting that both the Appellant and the complainant come from the same village. There is no way that the Appellant would have failed to know that she was a pupil at their local primary school which would most likely point to her being a minor. The Appellant did not prove that he took any step to ascertain the age of the complainant. His defence was raised for the first time during the Appellant`s defence in court. I am in agreement with the trial magistrate that the defence was an afterthought. The trial court did not err in dismissing the defence. 28.The Appellant was sentenced to the minimum sentence of 20 years for defiling a child of the age of 15 years. A minimum sentence cannot be said to be harsh. The sentence is thereby upheld. 29In view of the foregoing, I find the charge against the Appellant to have been proved beyond reasonable doubt. The appeal is bereft of merit and is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 22ND 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