https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10538

Matho v Republic (Criminal Appeal E027 of 2025) [2026] KEHC 10538 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 10538 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E027 of 2025 JN Njagi, J June 24, 2026 Between Shauri Charo Matho Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon.J.S.Wesonga, Principal Magistrate, in Malindi Chief Magistrate’s Court Sexual Offence Case No.E049 of 2024 delivered on 14/3/2025) Judgment 1.The Appellant herein 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 diverse dates between 1st January 2024 and 11th day of May 2024 at (name withheld) area in Malindi sub-county within Kilifi county he intentionally and unlawfully caused his penis to penetrate into the vagina J.K.J.C (herein referred to as the complainant) a child aged 13 years. 2.The Appellant was sentenced to serve 20 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of as per the Appellant`s amended grounds of appeal are that:1.That the learned trial magistrate erred in law and facts by upholding the while conviction failing to consider that the charge sheet as laid before the court was incurably defective contrary to Section 134 and 137(f) of the Criminal Procedure Code.2.That the learned trial magistrate erred in law and facts by upholding the conviction while failing to consider that voire dire on the minor was not properly conducted contrary to section 19(1) of the Oaths and Statutory Declaration Act hence the resultant trial was a nullity.3.That the learned trial magistrate erred in law and facts by upholding the conviction while failing to consider that the Appellant was not clearly indicated in the coram indicating the provisions of Article 50(2)(m) of the Constitution and Section 231(3) of the Criminal Procedure Code.4.That the learned trial magistrate erred in law and facts by upholding the conviction while failing to consider that Section 200(4) of the CPC was not complied with.5.That the learned trial magistrate erred in law and facts by upholding the conviction while failing to consider that the medical evidence did not support allegations of defilement. Case for prosecution 3.The case for the prosecution was that the complainant was at the material time a primary school pupil aged 13 years. She was living with her parents. Her father was PW4 in the case. The Appellant was their neighbour. 4.It was the evidence of the complainant that in the year 2023 the Appellant started to send emissaries to her that he wanted her to be his lover. That one day he gave her Ksh.1,000/=. That on 11/1/2024 he took her to a guest house in Malindi town where he engaged in sexual intercourse with her whereby he inserted his penis into her vagina. After the incident he returned her home. That in the month of February he had sexual intercourse with her in his house after which he gave her Ksh.500/=. That on 20/4/2024 he took her to a guest house and had sexual inter course with her. After 3 days he gave a girl called Juliet Ksh.1,000/= to take to her. That on 11/5//2024 she told her parents that she was going to the home of her grandmother. She instead went with the Appellant to a guest house where they spent the night and they had sexual intercourse. He took her back home on the following day. He parents interrogated her on where she had been and she disclosed it. Her father took her to the chief. On the following day she was taken to the police station where she stated what the Appellant had been doing to her. She was taken to Malindi sub county hospital where she was examined 5.An aunt to the complainant PW3 testified that the complainant went missing from home on 11/5/2024 and returned home on the following day. She told them that she had been with the Appellant and she had engaged in sex with him. She PW3 and the her father took her to hospital. 6.The father to the complainant PW4 told the trial court that on the 11/5/2024 she sent the complainant to her grandmother but she did not come back. On the following morning he went to her grandmother`s home but he did not find her. That he went back home. That at 2.30 pm her grandmother called him and told him that the complainant had just arrived at her home. He grandmother reported to him that she had been with the Appellant at a guest house at Kakuyuni. Her grandmother took her to his home. He took her to the police station and to hospital. 7.A doctor at Malindi sub county hospital PW5 testified that the complainant was examined by a doctor colleague at the hospital on 24/5/2024 with a history of defilement. The hymen was found broken. The examining doctor filled a P3 form. 8.The case was investigated by Cpl Ogutu PW6 of Malindi police station. It was his evidence that the report was made at the police station on 14/5/2024. The complainant presented treatment notes from Malindi sub county hospital. He interrogated the complainant and she said that she had engaged in sex with the Appellant on diverse dates between 1/1 2024 and 11th May 2024. He obtained the complainant`s birth certificate that indicated that she was born on 3/5/2011. He charged the Appellant with the offence 9.During the hearing the doctor PW5 produced the treatment notes, the P3 form, the Post Rape Care form and the lab results as exhibits, P.Exh.1 -4 respectively. The investigating officer PW6 produced the complainant`s birth certificate as exhibit, P.Exh.5. Defence case 10.The Appellant in his defence stated that the complainant is his neighbour. That he heard rumours that she had disappeared from home. After 3 days policemen went and arrested him. He was taken to the police station and charged. He said in cross-examination that he has a land dispute with the complainant`s family. He admitted in cross-examination that he took the complainant and his minor daughter to Malindi for shopping. That he did so without permission from her parents. He denied that he used to give the complainant money. 11.The appeal was disposed of by way of written submissions. Submissions 12.The Appellant submitted that the law requires the charge sheet to be clear so that the accused understands what he is facing so as to enable him prepare his defence. That in this case the charge was too general in terms of time and for want of specifics in that it charged the Appellant with committing the offence over a period of five months between January and May 2024. That the charge was incurably defective and prejudiced the Appellant. Reliance was placed in the case of Bernard Ombuna v Republic (2019) eKLR where the court 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. 13.It was submitted that the voir dire examination conducted by the court did not meet the standard required under section 19(1) of the Oaths and Statutory Declarations Act. That in a voir dire examination the inquiry should be made on the ability of the child to understand the solemnity of the oath and the nature of it. That in taking the same the court is under duty to record the terms on which it was persuaded and satisfied that the child understands the nature of oath. 14.It was submitted that the language used by the complainant was not clearly indicated in the coram section. That the magistrate who convicted him did not comply with section 200(3) when he took over the case from the preceding magistrate. 15.The Appellant took issue with the medical evidence adduced in the case and submitted that the complainant was examined 5 days after the last incident. That the doctor did not see anything in the complainant`s genitalia and therefore his evidence did not support the charge. 16.The Appellant urged the court to uphold the appeal. 17.The Respondent on the other hand submitted that the age of the complainant was proved by the birth certificate produced in the case. That penetration was proved by the evidence of the complainant that the Appellant penetrated her in the months of January, February, April and May 2024. That the same was corroborated by medical evidence whereby she was found with a broken hymen. That the Appellant was positively identified by the complainant as he is her neighbour. 18.The Respondent in their submissions did not respondent to the other issues raised by the Appellant in his amended grounds of appeal. Analysis and determination 19.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.” 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.The trial magistrate in convicting the Appellant of the offence found that the age of the complainant was proved by the birth certificate. That penetration was proved by the oral evidence of the complainant that was supported by medical evidence. That the Appellant was a neighbour and was identified as the perpetrator of the offence. That his defence that the case was a fabrication due to a land dispute was not raised when he cross-examined the prosecution witnesses and the defence was an afterthought. 22.I have considered the grounds of appeal, the submissions and the reasons given by the trial court in convicting the appellant of the offence. 23.The age of the complainant in this case was proved by the birth certificate produced in the case. The age of the complainant was thereby proved at 13 years. 24.On penetration, the complainant testified that the Appellant penetrated her on various dates between 1/1/2024 and 11/5/2024. That on the last occasion she slept out in a guest house with the Appellant and went back home on the following day when she was interrogated and she revealed her sexual affair with the Appellant. 25.The Appellant submitted that the alleged defilement was not supported by medical evidence as the examining doctor only found the complainant with a broken hymen and did not find any evidence implicating him with the offence. The law is however that defilement can be proved in other ways other than by way of medical evince. In the case of Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the Court of Appeal held that:-“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”. 26.In addition, section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of a child victim if the court is satisfied that the child is telling the truth and gives reasons for so holding. 27.The fact that the complainant herein went missing from home on the night of 11th and 12th May 2024 was corroborated by her aunt PW3 and her father PW4. It was the evidence of her father that on the morning of 12/5/2024 he went to the home of her grandmother to check on her and found that she had not spent the night there. The complainant resurfaced on the afternoon of that day. 28.There was no doubt that the complainant was having a sexual affair with the Appellant. She gave the various dates she engaged in sexual intercourse with him and the places where the same took place. There was no reason to disbelieve the evidence. Her evidence was consistent, cogent and credible. I find that the trial did not err in believing the evidence of the complainant that she was telling the truth that the Appellant penetrated her on the dates stated. 29.The Appellant was a neighbour to the complainant and was well known to her. Though the Appellant said that he has a land dispute with the complainant`s family this was raised when he was cross-examined by the prosecution during his defence. He did not raise the issue in his evidence-in-chief. The same can only have been an afterthought. The trial court rightly dismissed the defence. I find the Appellant to have been positively identified as the perpetrator. 30.The appellant submitted that the charge was defective as it charged him in committing the offence on diverse dates. The Appellant was charged with committing the offence over a specified period of time. The dates the offences were committed were stated in the evidence of the complainant. The charge was not confusing in any way and could not prejudice the appellant in putting up an appropriate defence. I do not find any defect in the charge. 31.The appellant alleged that a proper voire dire examination was not conducted in the case. I have examined the voir dire examination conducted by the court. The court used the question and answer format in conducting the same. The court asked the child her age, whether she was attending school and in which grade, where she worshipped and whether she knew what an oath is. The complainant answered all these questions and said that if one takes an oath is required to speak the truth. Arising from the examination the trial court made a finding that the child understood the veracity of oath and ordered that she gives sworn testimony. I find that the questions put to the witness were sufficient for the court to form an opinion on the capacity of the complainant to testify under oath. The voir dire examination was properly conducted. 32.The appellant argued that the convicting magistrate did not comply with the provisions of section200 CPC when he took over the case from the preceding magistrate. I have examined the record of the trial court and find that the same was complied with on 19th September 2024. The Appellant in fact stated that he wanted the case to proceed from where it had reached. 33.The Appellant further raised an issue on the language used by the court. I have perused the whole of the record and noted that the language of the court was stated as English/Kiswahili. There was a court interpreter throughout the trial. There was no violation of fair trial in the case. 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 24TH DAY OF JUNE 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - Rahma