https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7511

Mwandeka v Republic (Criminal Appeal E091 of 2024) [2026] KEHC 7511 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 7511 (KLR) Republic of Kenya In the High Court at Mombasa Criminal Appeal E091 of 2024 WM Kagendo., J May 15, 2026 Between Bakari Matano Mwandeka Appellant and The Republic Respondent (Being an appeal from original conviction and sentence in SOA case at Mombasa CMCR (SO) no 55 of 2018 delivered on 17/12/2024 by Hon Alex Ithuku) Judgment 1.The Appellant, Bakari Matano Mwandeka, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act of 2006. The particulars of the offence are that on diverse dates of June 2018 at [Particulars Withheld] intentionally and unlawfully caused his penis to penetrate the vagina of MR a child aged 12 years. 2.The accused person also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars are that on diverse days of June 2018 at [Particulars Withheld] in Likoni sub-county within Mombasa County unlawfully and intentionally did an indecent act by touching the vagina of MR a child aged 12 years, with his penis. 3.The appellant was convicted on the main count and sentenced to serve 20 years’ imprisonment. 4.The appellant was not satisfied with the judgment of the trial court and thus sought this appeal. 5.The appellants’ grounds of appeal are summarized as follows;i.That the learned trial magistrate erred in law and fact by failing to serve upon me the documentary evidence, contrary to Section 62 of the Appellate Jurisdiction.ii.The trial court erred in law and fact by failing to comply with Section 200 Criminal Procedure Code.iii.The trial court erred in law and fact by failing to appreciate that the circumstances under which the offence was committed depicted the complainant as a person who consented to the relationship between herself and myself.iv.The trial court erred in law and fact by failing to observe Section 3 of the Sexual Offences Regulations, 2008.v.The trial court erred in law and fact by failing to consider the mitigating and extenuating factors that I presented. Prosecution’s case 6.PW1 MR (minor) the complainant herein testified that she is in June 2016 she went for a short call at about 2.00am and the appellant came and held her hand. She went to use the common toilet also used by her two neighbors. Bakari and another lady are their neighbors. She said that she got into his house and did a bad thing to her in his bed. She said that he penetrated her vagina with his mdudu. Nobody else was in the room. After the act she went back to the house where she was sleeping with her sister and brother. Their parents were away to attend a wedding. The following morning, she went to school. 7.She told the court that in August 2018 her mother took her to the hospital and the doctor told her that she is pregnant. That is when she told the Doctor and her mother about the incident. She said that she was taken to the police station where she recorded her statement and then she went to Manyatta Hospital where she was issued a p3 form. She told the court that she has been going for ante natal clinic and she identified Bakari in the dock. In cross-examination she told the court that they had sexual intercourse later the same month. 8.PW2 BM told the court that on 1/8/2018 she went to the market. The previous day she had found her daughter who is 12 years lying down. She told the court that her daughter told her that she was unwell and she took her to the hospital. The doctor informed her that pw1 was 3 months pregnant. She told the court that she doesn’t know when the sexual assault occurred. The minor told her that the accused took her to his room and had sexual intercourse with her many times. PW2 told the court that the appellant called her to confirm if pw1 was pregnant and he informed her that he wanted to marry her if she is pregnant. PW2 produced a DNA report. 9.PW3 Hamedu Abed a government analyst told the court that they conducted a DNA test and it was established that the appellant was the father to the minor. The report was prepared on 10/7/2019. 10.PW4 Stephen Kalai working at Likoni sub-county hospital told the court that on 7/8/2018 the complainant aged 12 years was brought to the hospital with a history of defilement and pregnancy. He said that pw1 told her that the accused lured her to his house. He would have sex with her and that he threatened to kill her if she ever spoke about it. She told her that the accused person is well known to her. A pregnancy test was done and it was in the affirmative. He produced the P3 form, PRC form and lab form. 11.PW5 PC David Makau told the court that on 7/8/2018 while at the station a lady came in accompanied by her daughter and reported that she suspected that her 12- year-old daughter was pregnant. He said that he recorded their statements where the minor told her that while going to the toilet Bakari got hold of her talked to her and persuaded her and led her to his house. It is Bakari who had sex with her.He said that the date of birth is 9/6/2006 and he produced a copy of her birth certificate. Defence case 12.DWI Bakari Matano the accused person testified under oath that the complainant was working as a waiter in a hotel and the became lovers. She became pregnant and he had planned to marry her. He said that he was to take care of the pregnancy. He said that he did not know that she was 12 years old as she had an identity waiting card. In cross-examination he told the court that he knew the complainant as they are neighbors but, he did not know that she was in school nor did he know her age. 13.DW2 Mustaafa Bakari Mwafulusi the accused person’s father told the court that he has nothing to say. 14.DW3 Bakari Mohamed told the court that the accused person is his brother and that he has nothing to tell the court. 15.In light of the above, the issues for determination before this court are; -i.Whether the prosecution proved their case beyond reasonable doubt. Analysis and Determination 16.The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570. It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support 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 finding 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 witnesses, See Peters v Sunday [1958] E.A 424.” Whether the prosecution proved their case beyond reasonable doubt 17.Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;“ 8.Defilement1.A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2.A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.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.4.A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 18.Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms;“ 11.Indecent act with child or adult (1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” Penetration 19.Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case the minor stated that the appellant did tabia mbaya to her using his dudu. On examination her hymen was broken and she was pregnant. This clearly indicates that there was penetration in the minor’s genital. 20.In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995, the court held: -“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 21.In the above foregoing, I find that the evidence of the victim and that of the Doctor was consistent and sufficient to prove the element of penetration thus there is no reason to disturb the finding of the trial court. I affirm that penetration was proved beyond a reasonable doubt. The minor conceived and even delivered a child. Age of the victim 22.Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: -“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 23.The child’c clinic card on record shows that the minor was born on 9/6/2006. I find that the minor was aged 12 years old at the time of the incident. Positive identification of the assailant 24.PW1 stated that the appellant did a bad thing to her in his bed. Bakari penetrated her vagina with his ‘mdudu’. The doctor confirmed that the minor’s hymen was not intact and that she was pregnant. The court ordered for a DNA test of the child and it was confirmed that the appellant is the father to the baby. 25.In his defence the appellant stated that the complainant was working as a waiter in a hotel and they became lovers. She became pregnant and he had planned to marry her. He said that he was to take care of the pregnancy. He said that he did not know that she was 12 years old as she had an identity waiting card. In cross-examination he told the court that he knew the complainant as they are neighbors but, he did not know that she was in school nor did he know her age. 26.In light of the above, the court notes that the appellant admitted that he had a sexual relationship with the minor. He admitted that he impregnated her, his admission is corroborated by the DNA report. The child was only 12 years old and not even close to the age which one could have been mistaken for a mature and a person of age. They were close neighbours and he could have ascertained her age. he diid not tell the court the steps he took towards this .I therefore find no reason to disturb the trial court’s finding. 27.The upshot is that the prosecution proved their case beyond reasonable doubt. 28.The appeal lacks merit and the same is dismissed. 29.It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY 2026. WENDY KAGENDO - JUDGEIn the presenceThe Appellant in personMr Sirima for the StateBebora Court AssistantSigned By/for:HON. LADY JUSTICE WENDY MICHENITHE JUDICIARY OF KENYA MOMBASA HIGH COURTHIGH COURT CRIMINAL DATE: 2026-05-19 18:14:10