https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6889

Mageto v Republic (Criminal Appeal E044 of 2025) [2026] KEHC 6889 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6889 (KLR) Republic of Kenya In the High Court at Marsabit Criminal Appeal E044 of 2025 FR Olel, J May 20, 2026 Between Victor Anyona Mageto Appellant and Republic Respondent (Being an appeal arising from the conviction and sentence delivered on 14.11.2025, delivered by Hon Christine Wekesa (SPM) in Marsabit MCSO No E006 of 2025) Judgment A. Introduction 1.The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8(4) of the Sexual Offences Act No 3 of 2006. The particulars of the offence were that on diverse dates of April 2025 at Laisamis sub county within Marsabit county intentionally caused his penis to penetrate the vagina of F.W.M a child aged 17 years. 2.In the alternative, he was charged with the offence of committing an indecent Act with a child contrary to section 11(1) of the Sexual Offences Act, No 3 of 2006. The particulars of the offence were that on diverse dates of April 2025 at Laisamis sub county within Marsabit county, intentionally touched the vagina of F.W.M a child aged 17 years with your penis. 3.The Appellant took plea and denied the charges faced. The prosecution called five witnesses, and on being placed on his defence, the Appellant gave sworn evidence. The trial magistrate considered the evidence proffered and found the Appellant guilty 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 after mitigation, proceeded to convict him and sentenced him to serve 15 years imprisonment. B. Evidence At Trial 4.PW1 F.W confirmed that he knew the appellant and stated that they had worked together at Mama Juniors, who was a scrape metal dealer. She further confirmed that they became romantically involved and opted to stay together, such that by the time they were arrested they had been staying together as husband and wife for 6 months and had engaged in sexual intercourse over the said period of time. she further confirmed that she was born on 22.06.2008 and after her arrested, she had been taken to hospital for examination, where it was confirmed that she was two months pregnant. She reiterated that she did not have a problem with the appellant and would not mind if he is released to help her take care of their unborn child. 5.Under cross examination, PW1 confirmed that the relationship between them had been ongoing and that there was a point when she became pregnant and the appellant had helped her to secure an abortion, but the incident was not known by her parents. She further confirmed that she willingly entered into a relationship with the appellant though he did not ask her about her age. Initially they had arrested over a different offence of obtain money by false pretence, since they had used her mother’s identity card to obtain money but that case had been dropped and the appellant had been charged with defilement. 6.PW2 Joyce Nyambura testified that on 18.04.2025, she was summoned to go to DCI Marsabit police station and upon presenting herself she was informed that her child (PW1) had obtained money using one of her SIM cards. Subsequently the phone PW1 was using was tracked to Merille, where the police officer arrested her daughter and the accused person, who were found to be residing together. PW2 produced her child’s birth certificate (Serial No 2504016) and confirmed that she was born on 22.06.2008. 7.She further confirmed that in December 2024, PW1 had called her while in hospital and she had come to learn that she had miscarried. Later she (PW1) left home without her knowledge and she did make a report to the OCS Liasamis about her disappearance. Over the said period she would talk to PW1 on phone, and she would tell her that she was in Bomet or Nairobi and was not aware of her daughter relationship with the appellant until they were arrested. Under cross examination she reaffirmed her evidence and further confirmed that she was present, when they were both arrested by DCI officer’s. The appellant had even refused to open the door and the said police officer’s had to forcefully open the said door to effect arrest. 8.PW3 Mohammed Rasso, a clinical officer based at Marsabit level 5 hospital confirmed that he examined PW1 on 21.04.2025 and noted that she was generally in good health. On genital examination she had whitish discharge on the labia majora, and lacerations were noted on both labia majora, Libia minora and on the posterior part of the hymen. Her clitoris and cervix were normal, and her hymen was not intact. The presence of white discharge was probably as a result of fungal infection. He did fill in the P3 form and PRC form and produced them into evidence. 9.PW4 Cpr Fred Leperes of DCI-Marsabit confirmed he in April 2025 he was tasked by sub county criminal investigation officer CIP Patrick Gitonga, to go arrest a suspect involved in a case of obtaining money by false pretence. They did proceed to Lisamais where they arrested the accused and PW1 who was found to be residing together . Upon further inquiry it was established that PW1 was still a minor and the appellant was charged with the offence before the court. 10.PW5 PC Omondi Okumu, recalled that on 08.04.2025 he was assigned to investigate a case of obtaining money by false pretence which had been reported by one Maina Mwangi vide OB NO 17/8/4/2025, and he had claimed to have sent Kshs.35,000/= to PW1, through her phone Number 0716016912, but she had failed to deliver the goods sought. They traced the said phone number at Merille and initially when they went to trace PW1 she did switch off the said phone and they were unsuccessful at tracing her. 11.They returned to Marsabit and contacted PW2, and after explaining to her what had transpired, she offered to assist in tracing her child, On 18.04.2025 she did go to Merille shopping centre and spotted where the minor was staying and alerted them. On the following day they raided the said house early in the morning and arrested both the minor and the appellant and escorted them back to Marsabit police station. While at the police station, PW2 mediated and settled her daughters case of obtaining by false pretence, but since the appellant had been found to be residing with a minor, who was pregnant, he decided to charge him with the offence of defilement. C. Defence case 12.The appellant was placed on his defence and gave sworn evidence. He stated that on 19.04.2025, PW1 had called her and informed him that she had been arrested for obtaining money by false pretence and was at Marsabit police station. When he went to see her, he was also arrested and was later wrongfully charged with the offence he faced before the court. He strenuously denied defiling the minor and insisted that there was no evidence linking him to the said crime nor was there any formal complaint made against him at an any police station that he had defiled PW1. 13.He also pointed out that PW1, PW2 and PW5 had given contradictory statements relating to the events leading to his arrest and defilement and thus were not credible witnesses who could be relied upon. The particulars in the chargesheet also did not state the date when the offence occurred and the laboratory result forms too were not presented as evidence to corroborate the defilement charge. He therefore urged the court to find that no concrete evidence had been placed before the court to support the charge and therefore he should be acquitted. 14.The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of defilement and, after mitigation, sentenced the Appellant to serve fifteen years imprisonment. D. The Appeal 15.Dissatisfied by the conviction and sentence passed, the Appellant filed the following grounds of Appeal that;a.That the learned trial magistrate erred in matters of law and fact in holding that the prosecution had proved their case beyond reasonable doubt.b.That the learned trial magistrate erred in matters of law and fact by considering the contradiction, discrepancies and inconsistencies from the prosecution case which were numerous and none were flagged out or highlighted by the trial Magistrate.c.The learned trial magistrate erred in matters of law and fact by not considering the defence the appellant submitted to the trial court which had discredited that of the prosecution case and its veracity.d.That the trial court failed to consider that the case charged against the appellant was a clear case of him being framed, pure lies hence the court failed to evaluate that the witnesses were compelled to give false evidence to the trial court.e.That the learned trial magistrate erred in matters of law and fact by not considering that the chargesheet and exhibits used in the trial court were defective even though he submitted on the same in defence, the same was not considered.f.That the sentence that was meted upon the appellant was harsh considering the circumstances of the case even where the complainant in the case never reported it but came to court to adduce evidence that were never reported by her to the police station.g.That No DNA test was established for a proof beyond reasonable doubt. 16.The Appellant prayed that his Appeal be allowed, the conviction and sentence be set aside, and he be set free. E. Submission Appellants' Submissions 17.The appellant filed two sets of submissions, which this court has considered. He submitted that the prosecution’s case was not proved beyond reasonable doubt as there was contradicting evidence, omissions and discrepancies (which he enumerated in the said submissions) which the trial magistrate failed to consider. Secondly PW3, the clinical officer who examine the minor had admitted in cross examination that he could not confirm if he was the one who had committed the offence nor had he presented before court the results of the high virginal swab or DNA test result to support the prosecution case. The inference to be drawn was that the said result would not support the prosecutions case. 18.The P3 form and PRC form produced into evidence also did not mention that PW1 was pregnant and the totality of the prosecution evidence, when examined created a serious evidential gap that should have been resolved in his favour. It also confirmed his worst fears that his case was being prosecuted based on the self-interest of other parties, who were hell bent of fixing him, the effect thereof being that his rights to fair hearing which was guaranteed under Article 50(2) of the Costitution of Kenya was infringed upon. Reliance was placed in the case of Miller Vs Ministry of Pensions (1994) 2, ASL, ER 372, Ramancal Trambkial Vs Rep (1957) EA 332 & John Mutua Munyoki Vs Republic (2017),(KECA) 376 KLR for emphasis. 19.Secondly, the appellant submitted that the chargesheet was defective as it did not specify the period when the offence is alleged to have occurred. The third issue raised by the appellant was that the trial court was biased and failed to recuse herself from handling the matter, despite his request for her to do so. PW5 too was biased as the case he was investigating was completely unrelated related to the defilement case subsequently sustained and he had also interfere with exhibits recovered from his house during arrest. Further the said investigating officer had proceeded to obtain evidence in a manner that violates Article 50(4) of the Constitution of Kenya and the same ought to have been excluded since it rendered his trial to be unfair. 20.Finally on sentence the appellant stated that the same was harsh, and melted out without considering the peculiar circumstances of the case before the trial court. The appellant thus urged the court to find that his conviction and sentence was not safe and be pleased to quash the same and have him release. ODPP Submissions 21.The state opposed this appeal and stated that the appellant had a chance to cross examine all witnesses and when placed on his defence testified at length and thus could not be heard to complain of unfair trial. On recusal the trial court had given the appellant a chance to file for review before the high court but he had failed to take up the said opportunity. The evidence adduced before the court was cogent and did establish the prosecutions case beyond reasonable doubt. 22.Finally on the sentence passed, the same was not harsh since it was the minimum statutorily provided for as per section 8 of the sexual offences Act, No 3 of 2006.The respondent thus prayed that the court finds that this appeal lacks merit and be pleased to dismiss the same . Analysis & Detrmination 23.This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up with its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanour. This court relies on the finding of the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, where they stated thus:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 24.In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh Vs State of M. P. (2002)4 SCC 85 was cited as follows:-“The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining whether all or any of the accused has committed any offence or not.” 25.I have considered the entire record of Appeal, the trial bundle record and the submissions on record filed by the parties and I find that the issues for determination are;a.Whether the offence of defilement was provenb.Whether the sentence should be quashed and/or set aside Whether the offence of defilement was proven. 26.The Appellant was found guilty of defilement in contrast to section 8 (1) as read together with section 8 (4) of the Sexual Offences Act, No 3 of 2006. The said sections provide that;8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(4) “A person who commits an offence of defilement with a child aged sixteen years and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years” 27.Three elements to be proven in such a case are;a.Age of the complainant;b.Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; andc.Positive identification of the assailant 28.On this question of age, I rely on the case of Fappyton Mutuku Ngui vs. Republic [2012] eKLR where it was held that:“conclusive” proof of age in cases under the Sexual Offences Act does not necessarily mean a certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases” 29.The victim and her mother testified and stated that she was born on 22.06.2008 and was 17 years old. This was corroborated by production of her birth certificate serial Number 2504016 which confirmed this fact. Age was therefore sufficiently proved beyond reasonable doubt. 30.On the issue of proof of penetration, Section 2(1) of the sexual offences Act defines penetration as follows;“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 31.PW1 confirmed that they were arrested while residing together with the appellant as husband and wife and that they had stayed together for several months and during the said period had engaged in sexual intercourse on numerous occasions. She referred to the appellant as her husband in court and requested the court to help her by having the appellant released so that he could help her take care of her unborn child, which they were expecting. PW3 also examined PW1 and established that she was pregnant, hymen was not intact and that she had lacerations on the Libia Majora, Libia minora and on the posterior part of the hymen. The evidence of PW1 pregnancy and the medical report without doubt established penetration. 32.The third element is that of identification. PW1 confirmed that she and the appellant resided together as husband and wife. PW2 and PW4 were also present during arrest and found the two residing together at Liasamis, where they were arrested. In defence the appellant denied this fact and alleged that he was arrested when he went to visit PW1 at the police station, his contention is not true as he had vigorously protested during pretrial and complained of the items confiscated from him during arrest at his house. This was therefore a case of recognition by a consenting child, who referred to the appellant as her husband and was the person responsible for her pregnancy. 33.In defence that appellant submitted at length that his conviction was unsafe since the prosecution evidence was littered with inconsistencies and inaccuracies which he highlighted at length in his submissions. Amongst the issues raised were that the minor and her mother original home was in Nyeri and thus doubted the authentic of the birth certificate which indicated that PW1 was born in Marsabit in 2008, PW2 was not sure when her daughter deserted home, the P3 form did not indicate who accompanied the minor to hospital, inconsistency as to whether the minor was examined on a public holiday or not, the P3 form indicated that the minors husband was 22 years old amongst others, all of which pointed out to shoddy investigation and provided grounds to place doubt on the veracity of the prosecution’s case. 34.The law as regards the issues of contradiction and discrepancies is very clear. It is trite law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. (see Uganda Vrs Rutaro (1976) HCB ; Uganda Vs George w. Yiga (1979) HCB 217). In trying to shade light as to why there might be minor discrepancies between two witnesses testifying on the same case, the high court of Kenya in Philip Nzaka watu V Republic (2016) CR APP 29 OF 2015, had this to say:“The first question in this appeal is whether the prosecution case was riddled with contradiction and in consistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gain said that found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent version of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this court, some inconsistencies in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies’ in evidence render it believable or otherwise must turn on the circumstances of each case and the mature and extent of the discrepancies’ and inconsistencies’ in question. 35.In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) the Court of Appeal held that: -“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.” 36.In this case, I have myself subjected the evidence adduced to fresh scrutiny and though it is true that there were minor inconsistencies in the evidence of the said witnesses, which is common, I am unable to find that the same were material enough to warrant interference with the decision. 37.Further the appellant alleged that the trial court was biased because she refused to recuse herself from the case and did not follow through on his complaint about the arresting police officers taking his Kshs.94,000/= and other personal items during arrest, which he demanded should be returned. He also faulted the trial court for failing to note that the case complained of was one for obtaining money by false pretense and not defilement and he had been fixed due to an existing grudge between him and the OCS Liasamis. 38.All these complaints have no basis as the appellant application for the court to recuse herself was refused and he had an option to file for review at the high court and did not do so. PW2, PW5 also explained how the charge of defilement came up and when granted an opportunity to defend himself did not bring forth evidence to support his contention that he had been set up. 39.Considering the totality of the evidence adduced, I do find that the prosecution did ably discharge the burden of proof and established that it was the appellant who defile the complainant. The offence of defilement was therefore proved and his appeal against conviction therefore lacks merit and is hereby dismissed. Whether the sentence should be quashed and/or set aside 40.Section 8 (4) of the sexual offences act, No 3 of 2006 provides that a person who commits an offence of defilement with a child aged sixteen years and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 41.The appellant was sentence to serve a term of fifteen (15) years, which is the minimum sentence as provided for under section 8(4)of the Sexual Offences Act. In Republic Vs Joshua Gichuki Mwangi; Intiative for strategic litigation in Africa (ISLA) & 3 others (Amicus Curiae),{2024} KESC 34 (KLR) the Supreme court reiterated its decision in Muruatetu II that the sentences in the Sexual offences Act were legal and went on to overturn a reduction of sentence imposed by the Court of Appeal. 42.In Ndungu Vrs Republic (Criminal Appeal No 57 of 2019),(2025)KECA 1094 (KLR), the court of Appeal held that;“The above provision falls into the category of statutory provisions which create mandatory maximum/minimum sentences. Undoubtedly, the legislature can bind the sentencing court by laying down the minimum sentence (not less than) and it can also lay down the maximum sentence. If the minimum sentence is laid down, the sentencing court has no option but to impose a sentence, “not less than” that the sentence provides for. Therefore, the words, “not less than” must be given their natural and obvious meaning which is to say, not below a minimum threshold and in the case of Section 8(3) of the sexual offences Act, these words must be understood to mean the offence under Section 8(3) is punishable with a minimum of 20 years. 43.It has not been shown that the said sentence was excessive and/or harsh nor was there any misdirection by the trial court in handing down the same. Disposition 44.The upshot, having considered the entire record of Appeal and parties submissions, I do find that the Appeal as against conviction and sentence fails and is hereby dismissed. 45.Right of Appeal 14 days. 46.It is so ordered JUDGMENT READ, SIGNED AND DELIVERED IN OPEN COURT AT MARSABIT THIS 20TH DAY OF MAY 2026.FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 20th Day of MAY, 2026.In the presence of:-Present in court …………………..AppellantMr. Mburugu ………………….For O.D.P.PMr. Jarso …..……………….Court Assistant