https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11908

Mwanza alias Gadafi v Republic (Criminal Appeal E033 of 2026) [2026] KEHC 11908 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 11908 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E033 of 2026 DR Kavedza, J July 29, 2026 Between Boniface Mwanza Alias Gadafi Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered by Hon. A. Ogonda (PM) on 26TH February 2026 at Kibera Chief Magistrates Court Sexual Offences NO. E038 of 2025) Judgment 1.The Appellant was charged with 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 were that on the 3rd of August 2024, at around 1500hrs at [particulars Withheld], Langata Sub-County within Nairobi County, being a male person caused his penis to penetrate the vagina of S.N.A a female child aged 16 years old. After a full trial, he was convicted and sentenced to serve fifteen (15) years imprisonment. 2.Aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. The appellant contended that the trial court failed to consider his mitigation and that the sentence imposed was harsh and excessive. 3.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence that was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4.The prosecution case was as follows. The complainant, S.N.A., gave sworn evidence. She stated that she was in a romantic relationship with the appellant. On the material day she met him at a club where he paid for a room. She entered the room with him. The appellant removed her skirt, shirt, panty and brassiere, removed his own clothing, lay on top of her and proceeded to defile her. In her own words, “he inserted his penis into my vagina.” 5.She testified that the appellant knew she was a minor. Although she had told him she was 24 years old, she was in fact 16 years of age. He was aware that she attended school because she would telephone him while at school. She went home without disclosing the incident. In November she missed her monthly periods and informed her mother, who advised a pregnancy test. The test was positive and she was found to be five months pregnant. She further stated that sexual intercourse with the appellant had not been limited to that occasion; it had commenced while she was in Form Three. 6.Her mother demanded to know the identity of the father. When the complainant refused to name him, her mother insisted on obtaining the telephone number of the person with whom she had been communicating. The number belonged to the appellant. The complainant thereafter informed the appellant of the pregnancy; he told her not to terminate it. Her mother confiscated the telephone on which the appellant had been sending money for the child’s upkeep and took her to report the matter at Langata Police Station. 7.In cross-examination the complainant confirmed that she and the appellant had agreed to meet. 8.PW2, EA, the complainant’s mother, testified that the complainant was born on 26th August 2008. She knew the appellant as a customer at her grocery shop and had heard rumours of a romantic relationship between him and her daughter. When she enquired about the complainant’s periods, the complainant disclosed that she had missed them. A pregnancy test at a chemist proved positive. While at school the complainant named the man who had impregnated her and supplied his telephone number, which belonged to the appellant. 9.On 3rd February 2025 the mother and daughter reported the matter at Langata Police Station. The complainant gave birth on 16th March 2025. The appellant could not be located until 13th August 2025, when PW2 found him at a shop on the bypass and summoned the investigating officer, who effected the arrest. 10.In cross-examination PW2 stated that in 2023 a teacher informed her that the complainant possessed a SIM card used to communicate with peers. Upon investigation she discovered that the card was registered in the appellant’s name. Following discovery of the pregnancy the complainant confessed that the appellant had defiled and impregnated her. 11.PW3, Eileen Kimuyu, a clinical officer at Coptic Hospital, produced the medical documents. The complainant presented with a history of defilement. A pregnancy test was positive. An ultrasound performed at Kinani Medical and Dental Care confirmed a single viable intrauterine pregnancy of 20 weeks and 6 days. On examination the labia majora, labia minora and clitoris were normal. The hymen was torn with an old tag; the vagina was normal and contained a whitish discharge. There was evidence of penile penetration. The patient was otherwise in good general condition and was referred for antenatal care. 12.PW4, Corporal Walter Asugo, attached to Langata Police Station (Bypass Post), testified that he received a call from PW2 reporting that she had sighted the appellant at Raila Slums and requesting his arrest. He found the appellant, who identified himself as Boniface. The appellant was taken to Bypass Police Post and thereafter transferred to Langata Police Station with the approval of the investigating officer. 13.PW5, Senior Sergeant Peris Makio, in charge of the gender desk at Langata Police Station, corroborated the evidence of PW1, PW2, PW3 and PW4. She summoned the complainant, her parents and the child, referred them for DNA sampling, and produced the DNA report which established a 99.999 per cent probability that the appellant is the biological father of the child. 14.When placed on his defence the appellant denied defiling the complainant. He stated that he had relied on information from her twin brother that she had completed Form Four, although the brother remained in school owing to poor grades. The complainant telephoned him while he was at a bar. On arrival she found the place crowded and suggested a more private venue. He obtained a lodging room. Being tipsy, he remarked that it was not a place for children; she replied that she was not a child. He fell asleep. On waking he suspected that sexual intercourse had occurred and asked her age; she stated that she was 17 years old. He took her to a chemist and obtained medication to prevent pregnancy. He maintained that he was unaware that the complainant was still attending school and that she had never told him she was a minor. 15.After a full trial, the appellant was convicted and sentenced accordingly. 16.The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them. 17.To succeed in a prosecution for defilement, it must be proven that the appellant committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, "the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 18.Further, section 8(1) and (4) of the Sexual Offences Act, No. 3 of 2006 provides thus:8. Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(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. 19.On the element of age, the complainant (PW1) produced a birth certificate establishing her date of birth as 26th August 2008. At the material time she was therefore sixteen years of age. The age ingredient under section 8(4) of the Sexual Offences Act was accordingly proved beyond reasonable doubt. 20.On the element of penetration, the Court relies upon the clear and detailed testimony of PW1. Section 2 of the Sexual Offences Act defines penetration as any partial or complete insertion. PW1 gave a resolute account that the appellant took her to a lodge and defiled her by inserting his penis into her vagina. That account was not disputed by the appellant in his defence. Her narrative remained unshaken under cross-examination. Her identification of the appellant, reinforced by her mother (PW2), was certain and left no possibility of mistaken identity. PW1 thereafter became pregnant. 21.The investigating officer produced a DNA report establishing a 99.999 per cent match implicating the appellant as the biological father of the child. The appellant did not challenge that report. The DNA evidence further confirms that penetration occurred. 22.The trial court carefully considered the appellant’s defence, in which he feigned ignorance of the complainant’s minority and claimed to have believed her to be an adult. Upon evaluating the whole of the evidence, the trial magistrate found PW1’s testimony to be credible, detailed, coherent and consistent. It withstood cross-examination. 23.Pursuant to section 124 of the Evidence Act (Cap. 80), which permits a conviction in a sexual offence case upon the uncorroborated evidence of the victim alone where the court is satisfied that she is telling the truth and records the reasons for that belief, the magistrate expressly believed PW1 and relied upon her evidence. The defence was rejected as failing to raise any reasonable doubt. All elements of the offence of defilement contrary to section 8(4) of the Sexual Offences Act were proved beyond reasonable doubt. The conviction was proper and is affirmed. 24.The appellant was sentenced to fifteen years’ imprisonment. In sentencing, the trial court considered the pre-sentence report, the appellant’s mitigation and the fact that he was a first offender. There is no basis upon which to interfere with the sentence. 25.The appeal is devoid of merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2026...................................D. KAVEDZAJUDGEIn the presence of:Appellant AbsentMutuma for the RespondentKarimi Court Assistant.