https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6156

Mulongo v Republic (Criminal Appeal E019 of 2025) [2026] KEHC 6156 (KLR) (5 May 2026) (Judgment) Neutral citation: [2026] KEHC 6156 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E019 of 2025 REA Ougo, J May 5, 2026 Between Moses Mulongo Appellant and Republic Respondent (Being an appeal from the judgment, conviction, and sentence of Hon. H.M. Getenga RM delivered on 21/02/2025 in S. O. case No. e066 of 2024) Judgment 1.The appellant was charged with defilement contrary to section 8 (1) as read with 8 (3) of the Sexual Offences Act. The particulars of the charge were that on the 9/7/2024 at around 2200hrs at [Particulars Withheld] village in Kimaeti sub-county within Bungoma County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of FNW, a child ages 15 years. 2.The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 3.The appellant pleaded not guilty, and the matter proceeded to trial. The prosecution called a total of 6 witnesses in support of its case, while the appellant gave sworn testimony in his defence. At the end of the trial, the trial court convicted and sentenced the appellant to 20 years’ imprisonment. 4.Being aggrieved by the conviction and sentence imposed by the trial court, the appellant filed the instant appeal dated 23/3/2025, raising the following grounds.a.The learned honourable magistrate erred in law and fact in finding the appellant guilty of the offence of defilement despite there existing overwhelming evidence as to the accused having been deceived.b.The learned honourable magistrate took into account considerations of which she ought not to have taken account in finding that the accused’s evidence might be entirely choreographed to paint a narrative to the effect that the complainant’s actions led the accused to believe she was an adult capable of consenting to sexual intercourse.c.the learned honourable magistrate failed to take into account considerations which she ought to have taken into account in order to arrive at a just conclusion.d.The learned honourable magistrate erred in law and fact in convicting and imposing a harsh sentence in the circumstances of the case. 5.In support of its case, the appellant submitted that although all the elements of defilement were proven, the circumstances and the totality of the evidence on record raised a defence under section 8(5) of the Sexual Offences Act, as held in Mwongela v Republic (Criminal Appeal E049 of 2023) [2024] KEHC 6905 (KLR) (19 March 2024). 6.This being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to arrive at its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.) 7.The complainant, FNW, testified as Pw1. She was born on 6/8/2008. She testified that she is an orphan adopted by TWJ. She met the appellant in 2023, when she was in Grade 5 at [Particulars Withheld] Primary School, at which stage she stopped her schooling. From February 2024, she stayed with her aunt M for a period of one week, not 3 weeks. While at her aunt’s place, she met the appellant, who was previously known to her. She sought out the appellant and asked to live with him, as she was suffering at home. The appellant agreed to live with her and to enrol her in training as a salonist at [Particulars Withheld] Polytechnic. She called the appellant on 9/6/2024 and asked to go live with him, and on 10/6/2024, she parked her belongings and went to his place. She did not inform her aunt M where she had gone and lived with her for about 5 months, after which T reported her to the police, who came and took both the accused and herself. The accused lived in his mother’s homestead. On 17/6/2024, she went back home to her adoptive parents, but the situation was unbearable, so she went back to the appellant. 8.It was her further testimony that she did not know why the appellant was arrested, as she refused to give a statement to the police. The second time, she lived with the appellant for about 4 months as his wife. The appellant was arrested on 9/7/2024. That she had consensual sex with the appellant and that she was pregnant with his child. 9.In cross-examination, the complainant admitted to knowing the appellant. When they first met, she informed him that she was not a student and that she was 21 years old. She admitted lying about her age. The appellant continually asked whether she was a student for a period of 2 weeks, but she denied each time. She admitted to informing him that she had been chased from home. Her father told him to sell his land and pay him Kshs. 500,000/- for him not to pursue the matter but he could not manage it. 10.In re-examination, the complainant reiterated that her parents mistreated her, leaving her with a child to look after and chores to do, but when they returned and found the chores undone, they would beat her up and chase her away. 11.Pw2 HNW testified that the complainant was her second-born child and that the complainant was in Grade 8 at Machwele. The complainant was born on 23/8/2008. She was last in school on 24/5/2024, and it was not true that the complainant dropped out of school in Grade 5. The complainant went missing on 24/5/2024. On 7/7/2024, they learned that she was living with the appellant, so they reported the incident at Kimwanga Police Station. The police arrested the complainant and the appellant on 9/7/2024. They took the complainant to Siboti Health Centre, where she received medical attention, and the doctor told them she was not pregnant. The complainant came to court with the appellant’s family members, and she did not know their relationship. 12.During cross-examination, Pw2 stated that she first saw the appellant on 9/7/2024, when he was arrested. She denied asking the appellant for money. 13.Pw3 TJ testified that she is the complainant’s father. That the complainant went missing and that on 7/7/2024 he was informed that she had been spotted. In the early morning of 9/7/2024, he went and reported the incident. After that, in the company of the police, they proceeded to the appellant’s house, where the appellant and the complainant were found together. That the appellant stated that the complainant was his wife. That the complainant was born on 6/8/2008. 14.In cross-examination, Pw3 admitted knowing the appellant at the time of his arrest. Pw3 also stated that when the complainant returned home on 9/7/2024, she stayed for a day before running away. 15.Pw4 Benjamin Machani Oruko testified that on 7/7/2024, Pw3 informed him that his daughter was missing, so he advised him to report the matter to the police. On 9/7/2024, he accompanied Pw3 to the station with two police officers and headed to the Kitabisi area, where they were shown the appellant’s house and, inside, found the complainant and the appellant. 16.Pw5 Peris Mukhebi, a clinical officer at Siboti Model Health Centre, produced a P3 form for the complainant. The complainant attended the centre on 10/7/2024, accompanied by three people, and reported a history of defilement. She was examined and found to be pregnant. A high vaginal swab revealed spermatozoa; her hymen was absent, and she had whitish, odourless vaginal discharge. 17.In cross-examination, Pw5 testified that he was told the complainant was a student, but that she was not wearing a uniform when she was attended to at the hospital. 18.Pw6 No. 22xxx9, Cpl. Abinery Kana Opondo from Kimwanga Police Station, testified that the complainant was reported missing from home on 24/5/2024 and again on 7/7/2024. They subsequently went to the appellant’s homestead, where they found the appellant and the complainant locked together in a room. The appellant asked why he was being arrested, noting that the complainant was his wife. Pw6 produced the birth certificate showing that the complainant was born on 6/8/2008. 19.When placed on his defence, the appellant testified that he did not force the complainant to have sexual intercourse with him. He met her at Kitabisi market, where she was selling vegetables, and she asked to use his phone. Subsequently, the complainant called him, they met, and she told him she was seeking employment and wanted his assistance. The complainant then called him and asked whether they could live together, as he could not get her a job. The complainant informed him that she was 19 years old and that she had nowhere to go, as her aunt was mistreating her. The complainant visited him once, then refused to return to her home. Upon interrogation by his mother, she revealed that her parents had passed away, that she was not a student, and that she had finished school two years ago. He was arrested on 9/7/2024. While at the police station, the complainant’s alleged parents requested that he pay them Kshs. 350,000/- within two days. As he could not raise the funds, he was charged with the offence herein and brought to court. 20.The ingredients of the offence of defilement were not contested; however, the Appellant raised a defence under section 8(5) of the Sexual Offences Act. 21.The Act provides as follows in sections 8(5) and (6):“(5)It is a defense to a charge under this section if-(a)it is proved that such a 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 offense and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)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." 22.Section 8(5) of the Sexual Offences Act provided that it was a defence to a charge of defilement if the child deceived the accused into believing that she was over the age of 18 years and the accused reasonably believed that she was over 18 years old. 23.The appellant’s sworn evidence in the instant case was that the complainant informed him that she was 19 years old. He further testified that the complainant repeatedly informed him that she was not a student and reiterated this before his mother. The defence concurs with the complainant's testimony that she voluntarily went to the Appellant's place and stayed. 24.The complainant testified that she had consensual sex with the appellant on multiple occasions. She lived with the appellant for about 4 months, during which she told him she was 21 years old. She further testified that she was the one who pursued the appellant and that she was not a student, as her parents had stopped paying school fees. 25.The defense raised by the Appellant was anchored on Section (8) (5) (a) (b) and Section 6 Sexual Offences Act No. 3 2006 Laws of Kenya. 26.Section 42 of the Sexual Offences Act provides that "A person consents to he/she agrees by choice, and has freedom and capacity to make that choice. i.e., in the absence of coercion or deceit. Capacity refers to age and mental ability." 27.It is not disputed that consensual sex is lawful in Kenya; thus, it is incumbent upon the accused to establish the defence stipulated in Section 8 (5) (a) and (b) and establish that under Section 6 of the same Act, the steps he took to ascertain the victim as not a minor. The victim admitted she presented herself as an adult. That she voluntarily entered into a relationship in which sexual intercourse was undertaken. 28.Once the Appellant has established the aforesaid defence, it was incumbent upon the prosecution to rebut it. The defence under Section 8 (5) (a) and (b) and sub-Section (6) is intended to establish the degree of probability that the action taken by the Appellant was based on the belief that the victim was of age. 29.In the case of Meshack Nyongesa V Republic [2016] eKLR, the Court of Appeal had to consider the defense under Section 8(5) of the SOA and stated:“10.Section 8(5) of the Sexual Offences Act provides a complete defense to a charge of defilement if it is shown that the accused believed that the child was 18 years or above. The learned Judges went on to state:11.We take judicial notice of the fact that these days, children, especially females, appear older than they actually are. In the circumstances, given the fact that this is a defense that few non-lawyers know about, it is our considered view that when a young man is charged with defiling a girl child above the age of 16 years, the trial court should ascertain whether he had reason to believe that the girl was 18 years or above.” 30.For the reasons set out herein, this Court finds that the Appellant's conviction was unsafe given the full circumstances of the case. 31.The upshot of this is that I find the appeal merited, allow the appeal, quash the conviction, and set aside the sentence. Accordingly, the Appellant shall be set at liberty forthwith unless otherwise lawfully held. DATED, SIGNED AND DELIVERED VIRTUALLY ON THE 5TH DAY OF MAY 2026.R. OUGOJUDGEIn the presence of:Moses Mulongo/ ApellantMiss Wakoli for the AppellantMiss Matere - For the RespondentWilkister - C/A