https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11583

Mwananje v Republic (Criminal Appeal E140 of 2024) [2026] KEHC 11583 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 11583 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E140 of 2024 JN Njagi, J June 24, 2026 Between Evans Mwamuye Mwananje Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon.I. Thamara, Resident Magistrate, in Malindi Chief Magistrate’s Court Sexual Offence Case No.E144 of 2022 delivered on 5/12/2024) Judgment 1.The Respondent herein was convicted 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. The particulars of the offence were that on diverse dates between March 2023 and 8th August 2023 at (name withheld) area in Magarini sub-county within Kilifi county he intentionally and unlawfully caused his penis to penetrate into the vagina AJK (herein referred to as the complainant) a child aged 16 years. 2.The Appellant was sentenced to serve 15 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal as per the Appellant`s amended grounds of appeal are that:1)The learned Magistrate erred in Law and facts in failing to appreciate that the complainant took than 5 months to report the matter the police station.2)The learned Magistrate erred in Law and facts in failing to date of delivery of judgment.3)The learned Magistrate erred in Law and facts in failing to appreciate that the appellant is a lay man and does not know the stipulation of section 215 of Criminal procedure Code.4)The learned Magistrate erred in Law and facts in failing to appreciate that there were family issues existed between the complainant’s mother and the accused/appellant.5)The learned Magistrate erred in Law and facts in failing to appreciate that there was no description of nature the alleged penetration.6)The learned Magistrate erred in Law and facts in failing to appreciate that the prosecution did not prove their case beyond reasonable doubt.7)The learned Magistrate erred in Law and facts in failing to appreciate that the young girl have been married to a man before determination of the case.8)The learned Magistrate erred in Law and facts in failing to appreciate that the clinical officer informed the Court that the complainant had sustained injuries without describing where the injuries were inflicted.9)The learned Magistrate erred in Law and facts in failing to appreciate that swollen vagina was not a proof of penetration.10)The learned Magistrate erred in Law and facts in to appreciate that the appellant adducted evidence which shacked the prosecution case. 3.The prosecution called 4 witnesses in the case while the Appellant defended himself and did not call any witness. Case for prosecution 4.The case for the prosecution was that the complainant was at the material time a junior secondary school student. She was living with her mother PW2. The Appellant was their neighbour. 5.It was the evidence of the complainant that in the year 2023 she met the complainant who started to seduce her. She accepted him as a boyfriend and they started to engage in sexual intercourse whereby he was inserting his penis into her vagina. The same was taking place at a certain house. They did it on 5 occasions. That on the fifth occasion she slept with the Appellant in the said house and engaged in sex with him. At 5am he escorted her home. She was confronted by her mother who demanded to know where she was coming from at that hour. She did not tell her. On the following day her mother reported the incident at her school and she was referred to the police at Marafa police station. She was taken to the police station. She told the police of her sexual affair with the Appellant. She was taken to Marafa Hospital where she was examined and found to be one month pregnant. She was taken to Malindi sub county hospital. 6.The mother to the complainant PW2 testified that on the 7th August 2023 at midnight she went to the sleeping place of the complainant and found her missing. She waited for her. She returned home at 5am. She asked her where she was coming from. She told her that she had been with the Appellant. She went to her school and then took her to hospital where she was examined and found to be pregnant. 7.A doctor at Malindi sub county hospital, Dr. Rimba, PW4 told the trial court that the complainant was seen at Marafa health on 10/8/2023 where examination revealed that she was pregnant. She was referred to Malindi sub county hospital where she was seen on 11/8/2023. The history given was that she had a sexual relationship with a man known to her. Tests were done at Malindi sub county hospital. PW4 completed her P3 form and formed the opinion that the complainant was pregnant at the age of 16. 8.The case was investigated by PC Beth Kagendo PW3 of Malindi police station which she commenced on 11/8/2023. She summoned the complainant to the police station. By then she has been examined at the hospital. She recorded her statement in which she said that she was in a sexual relationship with the Appellant. That on 8/8/2023 she escaped from home and met the appellant for sex and returned home in the morning. Her mother confronted her and she revealed her sexual affair with the Appellant. She, PW3 issued her with a P3 form which was completed at Malindi sub county hospital. She was examined and found pregnant. Age assessment was also done at the hospital. The Appellant went underground. He was traced in November 2023 and he was charged with the offence. 9.During the hearing of the case the doctor PW4 produced the P3 form, the Post Rape Care form, the ultra sound and treatment notes as exhibits, P.Exh.1 - 4 respectively. Defence case 10.The Appellant when placed to his defence stated in a sworn statement that he is a boda boda rider. That the complainant is his neighbour. That he has no differences with her mother. He denied that he defiled the complainant. 11.The appeal was disposed of by way of written submissions. Submissions 12.The Appellant submitted through counsel that the age of the complainant was not proved. That the mother to the complainant said that she did not know the date of birth of the complainant. 13.It was submitted that the doctor who testified in the case PW4 did not state the methodology he used to come up with the age stated in the assessment report. That he had no qualifications to prepare the age assessment report and the same is speculative. 14.It was submitted that the complainant was examined 5 months post incidence. That there was no medical evidence to support penetration. That there was evidence that the complainant had procured an abortion. 15.It was submitted that the complainant was beaten to implicate the Appellant. That failure to conduct a DNA test means that the case was not proved beyond reasonable doubt. 16.The respondent on the other hand submitted that the ingredients of the offence of defilement were proved beyond reasonable doubt. That the age of the complainant was proved by the complainant who said that she was aged 16 years though she did not state the year she was born. That the same was proved by the age assessment report though the doctor PW4 did not state the methodology he used to ascertain the age of the complainant. That PW4 was not a dentist but he captured the age of the complainant in the P3 form at 16years. That this was sufficient proof of the age of the complainant. Reliance was placed in the case of Munene v Republic (2023) KECA 812 (KLR) where the doctor relied on the treatment notes that indicated the age of the complainant at 9½ years. The court in that case said that the state had sufficiently proved the age. 17.The respondent submitted that the evidence of the complainant that she had a sexual relationship with the complainant was truthful as she was 7/8/2023 caught by her mother returning home at 5am. 18.On the issue of identification of the appellant it was submitted that the appellant admitted that he was a neighbour to the complainant and they were therefore well known to each other. 19.I was submitted that a DNA analysis is not a necessary requirement in defilement cases. Reference was made to the Court of Appeal decision in Salim v Republic (2025) KECA 811 (KLR). Further reliance was made in the case of AML V Republic (2012) eKLR where the same court held that the fact of rape or defilement is not proved by way of a DNA test but by way of evidence. Analysis and determination 20.This being a first appeal, this court has a duty to revisit the evidence that was adduced before the trial court, re-evaluate and analyse it and come to its own conclusion while at the same time bearing in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record, See Okeno v R (1972) EA 32. 21.I have considered the grounds of appeal, the record of the trial court and the submissions tendered by the parties. The issues for determination are whether the ingredients of the offence of defilement were proved against the Appellant. 22.The three elements of the offence of defilement are proof the age of the complainant/victim, proof of penetration and the positive identification of the perpetrator, see Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013. 23.The trial court in its judgment found that the age of the complainant was proved by the age assessment report and the evidence of the complainant and her mother. That penetration was proved by the complainant who testified that the appellant inserted his penis into her vagina which was corroborated by medical evidence. That the appellant was identified by the complainant as he was her boyfriend. 24.The Appellant submitted that the doctor who prepared the assessment report did not state the methodology he used to arrive at the age of the complainant. 25.Indeed the medical personnel who signed the age assessment report P.Exh.5 did not state the methodology used to arrive at the conclusion that the complainant was aged 16 years. The age assessment report is not reliable. 26.However, the complainant in her evidence stated that she was at the time aged 16 years. Her mother PW2 stated the same thing. The doctor who completed the P3 form PW4 did not indicate the estimated age of the complainant in that document. That notwithstanding, it is trite that the age of a child can be proved by the parent or by the child if the child is intelligent enough to know his/her age. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR held as follows on the subject:“... 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.” 27.The complainant was a grade 8 junior secondary school student. This was a pointer to her possible age. The treatment notes indicated that the complainant was aged 16 years. I am satisfied that the complainant and her mother were truthful on the age of the complainant. Their evidence coupled by the age indicated in the treatment noes proved that the complainant was of the age of 16 years. 28.On the element of penetration, 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.” 29.The complainant testified that she met the complainant in the year 2023 and they had sex on 5 occasions. That on the last occasion she spent the night with him upto 5am when he escorted her home. On getting home she was confronted by her mother who demanded to know where she was coming from at that hour. She eventually disclosed that she had been having a sexual affair with the Appellant. 30.The mother to the complainant PW2 testified that the day she discovered that the complainant was missing from home at night was 7/8/203 and she returned home at 5am. The fact that the complainant was away from home on the night of 7th/8th August 2023 corroborates the evidence of the complainant that she was on that night sleeping with the Appellant at a certain house and engaged in sexual intercourse with him. The evidence of the complainant that the Appellant was her boyfriend and that they engaged in sexual intercourse on 5 occasions, the last being on the aforesaid night, must have been true. There was no reason for her to fabricate the evidence against the Appellant. Penetration was thereby proved. 31.The Appellant was a boyfriend to the complainant. He admitted that the complainant is a neighbour. There were no differences between the complainant and her mother on the one hand and the Appellant on the other hand. The Appellant was positively identified as the perpetrator. The defence by the Appellant was a mere denial that did not dislodge the overwhelming evidence of the prosecution witnesses. The conviction is thereby upheld. 32.The appellant faulted the prosecution for failing to conduct a DNA analysis in the matter. However, there was no evidence that there was a child born to the complainant. No such evidence was led by either of the parties. In any case a DNA analysis is not mandatory in a defilement case, see Salim v Republic (2025) KECA 811 (supra). There was no substance in the argument. There was no evidence that the complainant was beaten to implicate the appellant as submitted by counsel for the appellant. 33.In view of the foregoing, I find that the case against the Appellant was proved beyond reasonable doubt. There is no merit in the appeal and the same is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 24TH JUNE 2026.J.N. NJAGIJUDGEIn the presence of:Mr. Oluoch for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant - Rahma