https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12361

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E113 OF 2025** **HARRISON MANJAMA …………………….………1ST APPELLANT** **VERSUS** **REPUBLIC …………….…………………….……………. RESPONDENT** **CONSOLIDATED WITH** **CRIMINAL APPEAL NO. E112 OF 2025** **ISMAEL NZAKA …………………….……………………2ND APPELLANT** **VERSUS** **REPUBLIC …………….………………..…..………………. RESPONDENT** ***(Being an appeal against the conviction and sentence by Hon. Ritah Amwayi (PM) in Kaloleni PM (SO) Case No. E031 of 2024)*** **JUDGEMENT** 1. The 1st and 2nd appellants herein Harrison Manjama and Ismael Nzaka, were jointly charged and convicted on 20 January 2025 by the Principal Magistrate’s Court, Kaloleni for the offence of Gang Defilement contrary to section 10 of the *Sexual Offences Act, No. 3 of 2006.* They were both sentenced to serve 15 years imprisonment. 2. The particulars of the offence are that on diverse dates of 1st July 2024 and 17th July 2024 at Buni area Rabai district Kilifi County within the coast region, jointly unlawfully and intentionally committed an act which caused penetration their male genital organ namely penis to penetrate the anus of A.R.M a child aged 13 years. They also faced an alternative count of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act with particulars stating that on diverse dates of 1st July 2024 and 17th July 2024 at Buni area Rabai district Kilifi County within the coast region, unlawfully and intentionally touched the anus of A.R.M a child aged 13 years using their penis. 3. Aggrieved, both appellants filed separate but similar appeals on 11 November 2025 challenging both conviction and sentence. Both appeals were opposed and heard by way of written submissions. The two Appellants amended their grounds of appeal and filed separate but similar written submissions which they relied on during hearing. On 3 June 2026, the two appeals were consolidated *suo motu* for good order and to prevent issuance of contradictory orders as the facts upon which they were convicted arose from the same trial. 4. The appellants raised the following grounds of appeal; 5. That the trial court erred in law and fact by failing to find that the charge sheet is fatally defective. 6. The trial court erred in law and fact by failing to find that penetration was not proved beyond reasonable doubt. 7. That the trial court erred in law and fact by failing to find that the evidence tendered by the prosecution was inconsistent and insufficient to sustain a conviction. 8. That the trial court erred in law and fact by failing to find that evidence of identification was insufficient. 9. That the trial court erred in law and fact by failing to note that crucial evidence was not adduced. 10. That the trial court erred in law and fact by failing to consider the many extenuating factors in favour of the appellants. 11. At the hearing of the appeal, the appellant submitted that that charge sheet was defective since the evidence tendered by the prosecution was at variance with the date of the offence contrary to section 214 (2) of the *Criminal Procedure Code.* It was argued that the particulars of the offence indicated that the offence was committed on diverse dates between 24th July 2024 to 29th July 2024 yet evidence showed that the offence was reported to have been committed before then. The appellants made reference to the evidence by PW4 PC Purity Cherobon who testified that the offence was reported on 17 July 202, PW1 Dr Chigulu’s who testified that the complainant was examined on 7 July 2024 and PW3 testified who that she discovered the offence on 15 July 2024. 12. The appellants contended that the defect was fatal and could be cured under Section 382 of the *Criminal Procedure Code*. The case of ***Jason Akumu Yungo vs Republic (1983) KLR 31***9 was cited in support. 13. The appellants also submitted that the prosecution’s witnesses offered contradictory evidence with regard to the testimony of PW2 who testified that the offence occurred in November 2023 during half term and the fact that he was medically examined on 7 July 2024. It was argued that there was a substantial time lapse between when the offence is said to have occurred and when the complainant was medically examined which affected the reliability of the medical evidence. The cases of ***Langat Dinyo Domokonyang vs Republic (2017) KLR*** and ***Mark Oiruri Mose vs Republic (2013) eKLR*** were cited in support. 14. It was submitted that evidence by the complainant contradicted the statement of particulars in the charge sheet since the complainant was very specific about a particular date while the charge sheet stated the event occurred on diverse dates. It was submitted that the complainant was not consistent in his evidence which raised suspicion and doubt as to his credibility and trustworthiness. Reliance was placed on the case of ***Ndun’gu Kimani vs Republic (1979) KLR 282.*** It was contended that the requirement underSection 124 of the *Evidence Act* were not met and that the prosecution did not prove its case beyond reasonable doubt. The court was urged to quash the conviction and set aside the sentence. 15. The Respondent opposed the Appeal and filed written submissions which they relied on. It was submitted that this being the first appeal, the court was duty bound to re-evalaute and re-analyse the evidence afresh in order to arrive at its own conclusion on whether or not to support the findings of the trial court. See ***Okeno vs Republic(1977) EALR 32*** and ***Mark Oiruri Mose vs Republic (2013) eKLR.*** 16. Concerning the allegation that the charge sheet was defective, it was submitted that the charge sheet was drafted in accordance with Section 134 of the *Criminal Procedure Code*, that it contained a statement of offence that disclosed specific particulars that provided the appellants with reasonable information as to the nature of the charge, that there was no evidence that the appellants suffered any prejudice on account of any defect in the charge sheet and that Section 382 of the *Criminal Procedure Code* provides guidance on how to deal with convictions on defective charge sheets. 17. The Respondent submitted that all ingredients of the offence were proved beyond reasonable doubt; that age was proved by the birth certificate, exhibit 5, that penetration was proved by evidence of prosecution witnesses and corroborated by medical evidence, and that the appellants were properly identified as perpetrators through recognition. Reliance was placed in the cases of ***Francis Omuroni vs Uganda , Court of Appeal Cr App No. 2 of 2000*** and ***Republic vs Turnbull and others 919760 3 ALL ER 549*** 18. As regards the contention that crucial evidence was not adduced and extenuating factors were not considered, it was submitted that pursuant to Section 143 of the *Evidence Act*, the prosecution relied on four (4) witnesses who provided cogent, consistent and corroborated evidence to prove its case. It was further argued that the appellants did not seek to recall or summon any witnesses and that their evidence in defence did not outweigh or controvert the evidence provided by prosecution witnesses. The Respondent urged the court to find in its favour and dismiss the appeals. ***Analysis and determination*** 1. This being the first appeal, this court is duty bound to re-evaluate and examine the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See ***Okeno Vs Republic [1972] EA 32*** and ***Oiruri Mose Vs Republic (2013) eKLR*.** 2. The court of appeal, in ***Kiilu & Another V Republic [2005]1 KLR 174***, 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; it must make its own findings and draw its own 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.”* 1. Having considered the trial court proceedings, judgement, petitions of appeal together with the submissions on record, I narrow down the issues for determination as follows: 2. Whether the charge sheet is defective and what is the import thereof 3. Whether the prosecution has proved its case beyond reasonable doubt 4. ***Whether the charge sheet is defective and what is the import thereof*** 5. The appellants have submitted that charge sheet was defective since the evidence tendered by the prosecution was at variance with the date of the offence contrary to section 214 (2) of the *Criminal Procedure Code.* The main contention relates to the fact that the particulars of the offence state that the offence was committed on diverse dates between 24 July 2024 to 29 July 2024 yet evidence showed that the offence was reportedly committed before 7 July 2024 when the PW2 was first examined and 17 July 2024 when it was reported to the police as per PW4’s evidence. This, it was argued, prejudiced the appellants. 6. Article 50 (2) (b) of the *Constitution* provides that every accused person has the right to a fair trial, which includes the right to be informed of the charge with sufficient detail to answer it. Section 134 of the *Criminal Procedure Code* on the other hand, provides as follows regarding framing of charge sheets; *“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”* 1. Section 137 (f) of the said Act, provides as follows on the general rule as to description; *“subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.”* 1. The form and substance of a charge sheet is provided by law. Consequently, in order to determine if a charge sheet is defective, a court must consider the defect in a charge from a two-step test. First is *to* ***determine whether the charge is defective*** and if so, ***whether such defect can be remedied*.** The court of appeal in ***Peter Ngure Mwangi V Republic [2014] eKLR*** stated thus: *“On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not.”* 1. In can be deduced from the above that not all defects in a charge sheet are fatal. In ***Bernard Ombuna vs Republic [2019] eKLR***, the court of appeal gave guidance on how to determine whether a defect in a charge is fatal as follows: *“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.”* 1. Having set out the law above and the effect thereof, this court will consider whether the charge sheet is defective. The record of proceedings show that the appellants were first arraigned on 22 July 2024 where they pleaded not guilty. The charge sheet then showed that the offence was committed on diverse dates between 24 July 2024 and 29 July 2024. On 18 November 2024, before the close of the prosecution’s case, the prosecution applied to amend the charge sheet. The appellants who were represented by Mr Kiseu, learned counsel did not object to the application. The trial court allowed the prosecution to amend the charge sheet and the appellants took a fresh plea to which they both pleaded not guilty. The trial court explained the right to recall witnesses to the appellants and they stated that they will not be recalling any witness.The hearing proceeded and the prosecution closed their case. 2. The amended charge sheet states that the offence occurred on diverse dates of 1st July 2024 and 17th July 2024 at Buni area Rabai district Kilifi County within the coast region. The charge sheet accorded with the evidence by witnesses and formed the basis for the judgement. Section 214 of the *Criminal Procedure Code* allows for amendment of charges at any time. In this case, the charge sheet was duly amended and the provisions regarding taking of plea on the amended charge and the right to recall witnesses were duly complied with. The court find this ground to be devoid of merit. 3. ***Whether the prosecution has proved its case beyond reasonable doubt*** 4. Section 10 of the *Sexual Offences Act* provides thus as pertains gang defilement: ***“Any person who commits the offence of rape or defilement under this Act in association with another or others, or any person who, with common intention, is in the company of another or others who commit the offence of rape or defilement is guilty of an offence termed gang rape and is liable upon conviction to imprisonment for a term of not less fifteen years but which may be enhanced to imprisonment for life.”*** 1. Arising for the law, in order to prove the offence of gang defilement, the prosecution is required to prove beyond reasonable doubt four (4) ingredients. These are *age of the minor/victim,* *penetration of the genitalia,* *the act being done by more than one person in turns and identity of the perpetrator*. In ***Aura Alias Pach V Republic (Criminal Appeal E053 of 2024) [2025] KEHC 4298 (KLR)****,* the court held; *“A number of decided court cases have addressed the definition of gang rape. As submitted by counsel for the Respondent on appeal herein, one of these cases is the case of Francis Matonda Ogeto versus Republic (2019) eKLR where the court stated inter alia as follows:-* *“ 25. Under Section 10 of the Sexual Offences Act, the ingredients of gang rape are rape or defilement under the Act; committed in association with others or committed in the company of another or others who commit the offence of rape or defilement with common intention. It is therefore clear that defilement which is committed in association with others or with common intention notwithstanding the fact that the accused may not have defiled the victim amounts to gang rape according to the said section. It therefore matters not whether the offence was rape or defilement as long as the conditions under Section 10 are found to exist.” The definition of ‘’gang’’ in section 2 of the Act means two or more persons. Under section 10 of the Act, the Respondent was under a duty to prove four elements of the offence which are inter alia; that there was commission of rape; that the rape was without consent; that the rape was in association with another person or others or any with common intention who commit the offence of rape; that there was positive identification of the perpetrator. The Act provides a scenario where the gang rape can occur where one or more persons engage in the sexual act upon the victim in turns or where one person engages in the act while another keeps watch as they have a common intention of committing the said offence.”* ***Proof of age of the victim*** 1. It is of utmost importance to prove the age of the victim in a case of defilement. In the case of ***Hadson Ali Mwachongo V Republic (2016) eKLR***, the court of appeal held that: *“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”* 1. The age of a victim of defilement may be proved in various ways. The court of appeal in ***Edwin Nyambogo Onsongo vs Republic (2016) EKLR*** stated: *“ ... 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.”* 1. PW2 the victim testified that he was born on 2 February 2011 and was 13 years old. This was confirmed by the victim’s birth certificate No. 212497 produced as exhibit 5 by PW4 meaning the he was 13 years and 5 months at the time of commission of the offence. The court finds that age was proved. ***Proof of penetration*** 1. On penetration, Section 2 (1) of the *Sexual Offences Act* defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. Genital organs are defined to include the whole or part of male or female genital organs including the anus. 2. Penetration can be proved through the victim/complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See ***Bassita Vs Uganda S.C Cr[iminal Appeal No. 35 of 1995](https://kenyalaw.org/akn/ke/judgment/keca/1995/115%22%20%5Ct%20%22_blank)***. 3. The court of appeal in ***Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa)*** held: - *“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”.* See also***Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).*** 1. PW2 the complainant gave evidence that in November 2023, during half term, he was staying at his aunt’s house in Buni where he was accosted by the appellants who were well known to him. After a brief engagement in a conversation, the 1st Appellant (Harrison) grabbed his hands while the 2nd Appellant (Ismael) held his legs. They forced him to the ground making him lie on his stomach, the 1st Appellant removed his trouser and inserted his penis inside his anus while the 2nd Appellant was holding his legs. Once the 1st Appellant was done, the 2nd appellant lowered his trouser to his knees, removed his under-wear and inserted his penis on the complainant’s anus. At this time, the 1st Appellant was holding his hands. After they were both done, they dressed and left. 2. The complainant dressed up and walk home. He felt pain on while walking. He told his aunt who instead beat him up. The next day in the morning, he went to school and while he was there PW3 his mother went with the police and the chief who took him to the police station and thereafter to the hospital where he was examined and the appellants who were his neighbours were subsequently arrested. The complainant was adamant and firm during cross examinations that the two appellants jointly defiled him as explained above. 3. PW3 Irene Juma Nyaboke the complainant's mother testified that the complainant was living with her sister and she knew the two appellant’s who were her sister’s neighbours. She testified that on 15 July 2024, she went home and found the complainant sleeping. On inquiry, he told her that he was unwell since he had a boil and had difficulty going for long call. She took him to the hospital where during examinations, he started crying and informed the doctor that he had been defiled. It was her evidence that the medical examination proved there was penetration which led to the subsequent arrest of the Appellants. 4. PW1 clinical officer working at Mariakani Sub-County hospital testified that the complainant was first attended at Rabai Hospital on 7 July 2024 with allegations of having been sexually abused by people known to him. Medical examination revealed that he had healing scars on the buttocks, anal abrasions at 9 oclock position, loose anal sphincter muscles and visible fecal matter, leading to the conclusion that there was anal penetration. He produced the P3 form (exhibit 1), PRC form (exhibit 2) lab requests and test form (exhibit 3) and treatment notes (exhibit 4). The court has examined the medical documents and noted that they were all filled on 17 July 2024. 5. PW4 PC Purity Cherobon the investigation officer testified that on 17 July 2024 at 7.00 am, she received information concerning a boy who had been defiled at Chirabani dispensary the previous day. She went to Rabai hospital but found that the victim had not been presented there. She traced him to Shika Adabu area where she found the victim’s mother PW3 who led her to the school where the complainant had gone. In the company of the chief, they went to the school, took the complainant to Rabai Health centre where he was examined and after confirming that he had been defiled, he identified the appellant’s as responsible whereupon she arrested and charged them. 6. The appellants submitted that the prosecution case was fraught with inconsistencies, contradictions as to the date when the offence is said to have been committed rendering the witnesses to loose credibility. They pointed out that PW2’s evidence was that he was defiled in November 2023, PW1 testified that he examined the complainant on 7 July 2024 whereas PW3 and PW4 talked of 17 July 2024. 7. The court has critically examined the case and finds that all prosecution witnesses were corroborative and provided a consistent account of events. While indeed the complainant stated that the offence occurred in November 2023, the events surrounding the case as well as medical evidence by PW1, evidence of PW3 the complainant’s mother and PW4 the investigating officer leaves no doubt that the offence was committed between 1st July 2024 and 17th July 2024. The court takes into account the fact that the complainant was beaten by his aunt when he first reported the incident which most likely informed his subsequent conduct. Further, it took the intervention of PW4 to have the matter properly attended to. The confusion on the dates by the complainant is explainable owing to his tender age and the trauma he had undergone. 8. The complainant’s evidence was cogent and consistent through out the case. It was duly corroborated by medical evidence which proved anal penetration.This explains the pain in passing stool that he experienced and gives credence to his testimony that he had pain after the defilement. All medical documents adduced as exhibit 1 to 4 shows that the complainant was examined on 17 July 2024 and not 7 July 2024 as per PW1. This variance is excusable as an error either by the court in recording or the witness. Taken as a whole, the evidence firmly leads to the conclusion that there was anal penetration. 1. The court has considered the defence by the Appellants and find that it has not challenged or dislodged the evidence by the prosecution witnesses. There was no evidence to show that the entire dispute was informed by a disagreement on payments. PW4 was gave evidence on how she received the report, investigated the case which led her to PW3 and eventually the complainant. The satisfied that this element was duly proved. ***Proof of identification of the perpetrator*** 1. On the issue of identification, the complainant’s evidence was that he knew the Appellants who were his neighbour very well. He constantly refereed to them by names and consistently identified them as perpetrators. The offence occurred during day time, he had engaged them in a conversation before the incident and was familiar with them since they were neighbours. 2. Recognition is generally stronger than identification of a stranger. In ***Anjononi & Others vs Republic [1980] KLR 59****,* the Court of Appeal stated: ***“Recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger.”*** 1. This case was based on recognition and based on the evidence adduced, the court is satisfied that the appellants were properly identified. ***Proof that the act was done by more than one person in turns*** 1. The final element of the offence involves proof that act of defilement was done by more than one person in turns or with a common intention. The complainant testified that the 1st and 2nd Appellants jointly defiled him one after another, acting in unison. He recalled how the incident occurred and gave a detailed account of how the two, while acting in unison pinned him to the ground, removed his trousers and held his hands and legs while the other was defiling him. The evidence clearly show acts of two people which fits the definition of gang rape set out in law. 2. The upshot is that the court finds that all ingredients of the offence of gang defilement were proved beyond reasonable doubt and the conviction was safe. No appeal was made on the sentence and the court finds no reason to interfere. 3. In light of the above, the court makes the following orders: - 4. Appeals No. E113 of 2025 and E112 of 2025 against conviction and sentence lacks merit and are accordingly dismissed. 5. The conviction and sentence by the trial court is upheld 6. It is so ordered. Dated, Signed and Delivered Virtually at Nairobi on this 31st day of July2026 **JOSEPH KIPKOECH BIOMDO** **JUDGE**