https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13015

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIBERA** **CRIMINAL APPEAL NO. E035 OF 2026** **PETER MUKONO………………………..……………..……………...APPELLANT** **VERSUS** **REPUBLIC………….……………………………….………………. RESPONDENT** *(Being an appeal against the original conviction and sentence delivered on 25th March 2026 by Hon. C.M Njagi (PM) at Kibera Chief Magistrate’s Court Sexual Offences Case No. E134 of 2024 Republic vs Peter Mukono)* **JUDGEMENT** 1. The appellant was charged 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. The particulars of the offence were that, on diverse dates between 7th and 13th October 2024, at Gitokaa area in Westlands Sub-County within Nairobi County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.W., a child aged 14 years. Following a full trial, he was convicted and sentenced to twenty (20) years’ imprisonment. 2. Aggrieved by both his conviction and sentence, the appellant lodged an appeal challenging the totality of the prosecution evidence. He contended that the ingredients of the offence were not proved beyond reasonable doubt; that his defence under section 8(5) and (6) of the Sexual Offences Act was disregarded; and that the sentence imposed was manifestly harsh and disproportionate. He urged this Court to quash the conviction and set aside the sentence. 3. This being a first appeal, the duty of the Court is to analyse and re-evaluate the evidence adduced before the trial court and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated by the East African Court of Appeal in **Okeno v R [1972] EA 32.** 4. The prosecution called four (4) witnesses. PW1, M.W., testified on oath following a voir dire examination. She stated that on 7th October 2024, instead of delivering food to her grandfather as instructed, she passed by the appellant’s house. She remained there for a week, during which they engaged in sexual intercourse on several occasions, and returned home on 13th October 2024. She identified the appellant in court. She further testified that she had last attended school in April 2023 and had informed the appellant that she was over eighteen years old and attending college. 5. When the complainant failed to return home, her mother, PW2, Agnes Mutheu, reported her missing at Loresho Police Station and was given a contact number to use if she located her. On the Sunday following the report, after attending church, she found the complainant at her doorstep. When she sought to establish where she had been, the complainant declined to disclose her whereabouts. The following day, PW2 reported the matter at the Chief’s Office and thereafter accompanied the complainant to Nairobi Women’s Hospital. She confirmed that the complainant had last attended school in April 2023. Although she wished her daughter to return to school, the complainant had since enrolled in a beauty course. 6. PW4, John Njuguna, a clinician at Nairobi Women’s Hospital, produced the complainant’s PRC and P3 forms on behalf of his colleague, Daniel. The medical documents recorded abnormal redness on the vaginal wall, a freshly torn hymen and blood in the vagina. 7. PW3, Inspector Mary Letapukali, testified that after receiving medical treatment at Nairobi Women’s Hospital, the complainant and her mother reported the matter at Loresho Police Station. The appellant was subsequently arrested and identified by the complainant as her boyfriend. 8. At the close of the prosecution case, the trial court found that a prima facie case had been established and placed the appellant on his defence. He testified that he had met the complainant in August 2024 after she initiated contact through Instagram. She subsequently visited his house, where they engaged in sexual intercourse. He stated that she had told him that she was nineteen years old and a student at Purple Heart College in Kangemi, undertaking a beauty course. He further maintained that her conduct and demeanour led him to believe that she was an adult. 9. Upon considering the evidence, the trial court convicted the appellant and sentenced him accordingly. 10. I have re-evaluated the evidence on record, considered the written submissions and the applicable law. 11. To sustain a conviction for defilement, the prosecution must prove that the appellant committed an act which caused penetration with a child. Section 2 of the Sexual Offences Act defines “penetration” as “**the partial or complete insertion of the genital organs of a person into the genital organs of another person.”** 12. Sections 8(1) and (3) of the Sexual Offences Act provide: **8. Defilement** **(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.** **(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.** 1. As regards age, the investigating officer produced the complainant’s birth certificate, which indicated her date of birth as 12th April 2010. She was therefore fourteen (14) years old at the time of the alleged offence and, therefore a child. 2. On the element of penetration, the complainant testified that she repeatedly engaged in sexual intercourse with the appellant over a period of one week. Her evidence was corroborated by the medical evidence produced by PW4, which recorded abnormal redness and blood on the vaginal wall and a freshly torn hymen. This was also not disputed by the appellant. The element of penetration was therefore proved. 3. The evidence further established that the complainant was familiar with the appellant. She had communicated with him extensively and referred to him as her boyfriend. She was consequently able to recognise him and identify him in court. This was a case of recognition, and the identification requirement was accordingly satisfied. 4. The appellant, however, relied on the defence provided under section 8(5) and (6) of the Sexual Offences Act. He contended that the complainant conducted and represented herself as an adult and thereby led him to believe that she was over eighteen years of age. He particularly relied on her representation that she was undertaking a beauty course at college, her communications with him through Instagram, and her general conduct, physical maturity and demeanour. 5. The main issue is whether, in the circumstances of this case, the Appellant established the defence contemplated under section 8(5) and (6) of the Sexual Offences Act. Section 8(5) provides for the defence of deception and reasonable belief, while section 8(6) requires the reasonableness of that belief to be determined having regard to all the circumstances, including any steps taken by the accused to ascertain the complainant’s age. The statutory defence was therefore available to the Appellant and ought to have been considered. 6. The complainant’s own evidence was central to that inquiry. She testified, verbatim: **“I told him that i had finished school life and that I am in college at Purple Heart College. I told him I am doing a beauty course. I told him I am an adult over 18 years.”** 1. This was a positive representation of adulthood, not merely an omission to disclose her true age. The complainant told the Appellant that she had finished school, was in college undertaking a beauty course and, most significantly, expressly stated that she was over 18 years. The evidence further shows that she had in fact been out of school since April 2023, whereas she and the appellant first physical interaction on 7th October 2024, more than one year after dropping out of school. Her representation that she had completed school was therefore not false in that respect and, viewed in the context of her representation that she was in college and over 18 years, was capable of creating a reasonable impression that she was an adult. 2. The circumstances are material when considered against the principles stated by the Court of Appeal in **Eliud Waweru Wambui v Republic [2019] KECA 906 (KLR).** The Court stated: *“We think also that it stands to reason that a person is more likely to be deceived into believing that a child is over the age of eighteen if the said child is in the age bracket of 16 to 18 years old, and that the closer to 18 years the child is, the more likely he deception and the more likely the belief that he or she was over the age of eighteen years.”* 1. The Court further observed: *“It was also germane to point out that a child need not deceive by way of actively telling a lie that she was over the age of 18 years.”* 1. The principle is particularly pertinent here. Deception for purposes of section 8(5) need not consist of an elaborate or deliberate falsehood. It may arise from conduct or representations which create a mistaken impression as to age. In the present case, however, the complainant went further and expressly represented that she was over 18 years. That representation, coupled with her assertion that she had completed school and was attending college, provided an evidential basis upon which the Appellant could have formed the belief that she was an adult. 2. The Appellant was 19 years old at the material time. He was therefore himself a teenager and only marginally older than the complainant. This is not a case of a significantly older adult dealing with a child. His own age in proximity to the complainant, and the circumstances in which they met were relevant considerations in determining the reasonableness of his belief. The trial court ought to have assessed the matter from the perspective of the circumstances confronting a 19-year-old Appellant, rather than retrospectively from the established fact that the complainant was below 18 years. 3. There was also evidence concerning the complainant’s conduct and the circumstances surrounding the interaction. The complainant initiated the conversation with the Appellant via Instagram. She presented herself as having completed school, attending college and undertaking a beauty course. Her mother subsequently testified that, upon the complainant’s disappearance, they went to look for her at the place where she was undertaking the beauty course. This evidence independently corroborated the complainant’s representation that she was engaged in a post-school course and reinforced the appearance of maturity conveyed to the Appellant. 4. The trial court nevertheless failed to interrogate these circumstances. It did not adequately consider or record the complainant’s demeanour, maturity, physical appearance, and conduct in initiating the conversation, or the Appellant’s own age and proximity to that of the complainant. These were not peripheral matters. They are core to the Appellant’s defence that he believed that the Complainant was over 18 years. 5. In **Charo v Republic [2016] KEHC 5619 (KLR),** the Court emphasised the importance of examining the circumstances surrounding the interaction, observing that “**what was of great importance was the circumstances of the case**” and that “**the behaviour of the complainant and his/her evidence in court usually gave the circumstances of the case.**” The Court was clear that the defence under section 8(5) and (6) does not require an accused person to demonstrate that he undertook extraordinary measures to ascertain the complainant’s age. What is required is an assessment of all the circumstances relevant to the reasonableness of the belief. 6. In the present case, the trial magistrate’s finding that section 8(6) did not apply effectively excluded a statutory defence which the Appellant was entitled to invoke. The consequence was that the court did not undertake the assessment mandated by section 8(6). Had it done so, it would have been required to consider the complainant’s express representation that she was over 18 years, her statement that she had completed school and was undertaking a beauty course, the fact that she had been out of school since April 2023 and met the Appellant in October 2024, her mother’s evidence concerning the beauty course, her conduct in initiating the conversation, her demeanour, maturity, size and appearance, and the Appellant’s age of 19 years. 7. These circumstances, considered cumulatively rather than in isolation, materially support the Appellant’s contention that he was deceived as to the complainant’s age and reasonably believed that she was over 18 years. The trial court’s failure to consider the above facts, coupled with its erroneous conclusion that section 8(6) was inapplicable, rendered the evaluation of the defence inadequate. In my view, the defence was not properly evaluated and the resulting conviction cannot safely stand. 8. In the premises, the appeal is allowed. The appellant’s conviction is quashed and the sentence of twenty (20) years imprisonment is set aside. The appellant is set at liberty unless otherwise lawfully held. Orders accordingly. **Judgement dated and delivered virtually this 18th day of August 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **D. KAVEDZA** **JUDGE**