https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11911

Mwaro v Republic (Criminal Appeal E106 of 2025) [2026] KEHC 11911 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11911 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E106 of 2025 FN Kyambia, J July 23, 2026 Between Mweri Charo Mwaro Appellant and Republic Respondent (Being an Appeal from the decision by Hon. D. Wasike Principal Magistrate in Kilifi S.O No. E064 of 2024 dated 23rd July, 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. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The appellant was found guilty of the main charge of defilement, convicted and sentenced to life imprisonment. 2.The particulars of the main charge in which the appellant was convicted were that on diverse dates of April, 2024 (particulars withheld) within Kilifi County unlawfully and intentionally caused his genital organ namely penis to penetrate into the genital organ namely vagina of R.C.D a child aged 17 years. 3.The appellant being aggrieved by the conviction and sentence of the trial court lodged this appeal to the High Court. The appellant raised several grounds of appeal in his petition of appeal and amended grounds of appeal contained in his submission. 4.Those grounds can be compressed to five grounds: Firstly, the trial court erred in law and fact by failing to find that the charge sheet was fatally defective; Secondly, the trial court erred in law and fact for failing to consider that age was not proved; Thirdly, the trial court erred in law and fact for failing to consider that the prosecution case was riddled inconsistencies and contradictions; Fourthly, the trial court erred in law and fact for failing t0 consider his defence; and Finally, the trial court erred in law and fact to consider his mitigations in imposing the sentence. 5.In short the appellant contends that the prosecution failed to discharge the legal and evidential burden, and as such the conviction and sentence should be set aside. 6.The appellant relied on his undated submissions. He argued that the charge sheet was defective pursuant to Section 134 of the Criminal Code. His argument is that the prosecution failed to proof that the complainant was a minor. The basis of his argument is that the no basis was laid on the production of the age assessment report by PW4 as he did not tell the court who prepared it and whether the maker was competent to prepare it. 7.Further the appellant submitted that the charges were not proved as required. According to him the evidence adduced which the trial court ignored, indicated that the complainant was not a minor so as for the offence of defilement to be proved. His argument is that even the parents of the complainant believed she was of mature age to be married off. 8.On sentence he faulted the trial court on heavily relying on the pre-sentence and the victim impact report to enhance the sentence ignoring the provision of the law regarding the charge. 9.The respondent contested the appeal relying on submissions dated 17th March, 2026. 10.On the defect of the charge sheet, the respondent submitted that the same disclosed a known offence to the law and the particulars were clearly laid down and the appellant answered to it. It was further argued that the evidence adduced by the prosecution proved the charge as laid down. It was further argued that the appellant never raised an issue with the charge sheet during the trial. Reliance as placed on Section 382 of the Criminal Procedure Code. 11.The respondent further submitted that there were no inconsistencies or contradictions as alleged by the appellant. To the contrary the prosecution case was supported by cogent, consistent and corroborative evidence. It was submitted that in the unlikely event that the court finds that there were inconsistencies and contradictions, the same were not material so as to affect the prosecution case. Reliance was placed on the case of Erick Onyango Ondeng’ vs Republic (2014) e KLR where the Court of Appeal cited with approval the Ugandan case of Twehangane Alfred vs Uganda Criminal Appeal No. 139 of 2001 (2003) UGCA where the court held that inconsistencies and contradictions unless material to the prosecution case to affect the substance of the case, are minor and the evidence of a witness cannot be rejected. 12.The prosecution maintained that the trial court considered the appellant’s defence and found that it did to dislodge or controvert the watertight evidence adduced by the prosecution. 13.Finally, the prosecution submitted that the trial court considered the appellant’s mitigation before imposing the sentence. 14.This is a first appeal to the High Court. Guided by the principles laid down in the case of Okeno vs Republic (1972) E.A 32 I have examined the record, re-evaluated the evidence adduced before the trial court and drawn my own independent conclusions. I have done so not overlooking the fact that I did not have the advantage of hearing or seeing the witnesses testify. 15.The appellant was charged and convicted with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. These Sections provides:“8(1)Any person who commits an act causing penetration with a child is guilty of an offence termed defilement.8(4)A person who commits an offence of defilement with a child aged between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term not less than fifteen years.” 16.Further in considering the foregoing provisions the court in the case of Simon Oloo vs Republic (2022) e KLR the court held:“To sustain a conviction in a defilement charge, certain elements must be proved beyond reasonable doubt. The first element is whether there was penetration of the complainant’s genitalia; second is whether the complainant is a child and of what age; finally, whether the penetration was done by the appellant.” 17.Flowing from the above the essential ingredients of the offence of defilement are age of the victim, proof of penetration and positive identification of the perpetrator. Age of the complainant is critical because it determines the punishment to be meted considering that punishment depends on the age of the victim. 18.I will start by considering whether the complainant in this case was a child. The appellant argued that age was not proved as required because the trial court relied on the age assessment report produced by the investigating officer. His argument is that no basis was laid for the production of the said report as the same was not produced by the maker. 19.The law on the importance of prove of age has been restated in numerous case law. For instance, the Court of Appeal in the case of Joseph Kiet Seet vs Republic (2014) e KLR stated:“It is trite that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni versus Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, it was held thus; In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.” 20.The charge sheet indicated that the complainant was aged 17 years at the time of the commission of the alleged offence. The complainant in her testimony told the trial court that she did not know her age. The investigating officer who testified as PW4 produced age assessment report indicating that the complainant approximate age was between 16-17 years. PW2 who rescued the complainant testified that although the complainant could not tell her age she looked young given her body physique and intellectual abilities. 21.Further to the foregoing the appellant in his defence and that of his witnesses referred to the complainant as a child who had come for treatment to the appellant. 22.The trial court in her finding on the aspect of the age stated that though the complainant did not know her age, from her conduct, physical appearance and speech she certainly appeared to be even less that 17 years. The trial court further held that there was age assessment report produced by PW4 giving the approximate age of the complainant at between 16 and 17 years. The trial court also found that the appellant and her witnesses all referred the complainant as a minor. On that basis the trial court found that the element of age was proved beyond reasonable doubt. 23.Much as I agree with the appellant that the maker of the age assessment report was never called, which would have been prudent, either to explain the methodology of arriving at the approximate age of the complainant, from the evaluation of the evidence I find that the trial court correctly found that age was proved. As indicated in the case of Joseph Kiet Seet vs Republic (supra) age can be determined in many ways, one of them being common sense. The trial court which had the opportunity to see and hear the complainant testify was convinced from the physical appearance, the evidence of PW2 and the appellant’s defence that the complainant was truly a minor. The trial court was bound by the said evidence. 24.In my own evaluation of the evidence adduced before the trial court, I have no reason to fault the trial court on the finding of the age of the complainant. Failure to call the maker of the age assessment report did not water down the evidence adduced by the prosecution that the complainant was aged 17 years which is within the penal provision of Section 8(4) of the Act under the appellant was charged. 25.I will next consider whether the element of penetration was proved. Penetration is defined under Section 2 of the Sexual Offences Act to mean; “The partial or complete insertion of the genital organ of a person into genital organ of another person.” 26.It is settled law that proof of penetration in sexual offences does not rest solely on medical evidence. The court in the case of Kamau vs Republic (2025) KEHC 42 (KLR) reiterated that position when it stated that defilement may be proved by medical, oral or circumstantial evidence. 27.In the instant case, the prosecution case rested primarily on the evidence of the complainant and PW5 who produced the medical evidence to support penetration. The complainant was categorical that she used to live with the appellant having met him in February, 2024. The appellant told her to marry him. Though she refused her mother told her told her that she has to marry the appellant. The appellant even gave dowry. She said as a wife they slept together and had sex. 28.The medical evidence adduced by PW5 showed that the complainant had been penetrate as the hymen was broken. PW2 who rescued the complainant said he found her at the appellant’s home having been informed by the village elder that there was a minor the appellant was living with claiming to be his wife. PW4 the investigating officer said that the minor was found locked in a house. Upon interrogation she said she was the wife of the appellant. 29.The foregoing was not only the evidence of the complainant that she the appellant penetrated her, but the same is corroborated by the medical evidence and the circumstantial evidence adduced by PW2 and PW4. 30.Even the appellant in his defence and that of his witnesses placed the complainant at his home where he alleged that she had gone to seek treatment. The appellant’s defence that she was defiled by some other people including nephew of the chief and other crooks is an afterthought as the chief testified as PW2 but the appellant never made those allegations to him on cross-examination. It was clear from the appellant’s defence that he was reported by his wife. 31.Having re-evaluated the evidence adduced before the trial court, I agree with the trial court that the element of penetration was properly proved as required. The complainant herself said the appellant had taken her as his wife. She was rescued at the appellant’s home. The medical report revealed that she had been penetrated. I cannot fault the trial court for finding that the element of penetration was proved beyond reasonable doubt. 32.Again, from the evaluation of the evidence adduced before the trial court, it is clear that the complainant was found at the appellant’s home. The appellant admitted that as much in his defence which was supported by his witnesses. The complainant herself said the appellant had taken her as his wife. All this negates any possibility of mistaken identity of the appellant as the perpetrator. Consequently, the element of identification was correctly proved as required. 33.The appellant complained that the charge sheet was fatally defective. Section 134 of the Criminal Procedure Code provides:“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the offence or offences with which the accused is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 34.In the instant case, I have perused the charge sheet and I find that the narrative in the charge sheet was sufficient and the appellant cannot say he did not understand the nature of the charge he was facing. From the cross-examination of the witnesses and in his defence, it cannot be said that the appellant was prejudiced so as to conclude that the charge sheet was defective. 35.The appellant alleged that the prosecution case was riddled with contradictions and inconsistencies. He however did not point out the said contradictions and inconsistencies. From my evaluation of the evidence adduced before the trial court, I find nothing contradictory or inconsistent as alleged by the appellant. The prosecution case was consistent that the appellant lured the complainant and kept her as his wife. The complainant that the appellant treated her as his wife by having sex with her. The complainant was also found at the appellant’s home. The appellant and his witnesses did not dispute these facts in his defence. 36.As I have indicated hereinabove, the accused defence was considered by the trial court and it was found to be too weak to rebut the prosecution case. I have also looked at the appellant’s defence and I find the same was a red herring. It was clear from the defence that the complainant was found at the appellant’s home. This is supported by his witnesses who said that the complainant had come to the appellant home for treatment but the appellant turned against her and sexually preyed on her. The trial court cannot be faulted for finding that the appellant’s defence did not rebut the watertight evidence adduced by the prosecution. 37.Regarding the sentence, it is trite that the appellate court will reluctantly disturb the sentence of the trial court unless the same is manifestly excessive or extremely lenient. 38.In the instant case, the penal provision of the Sexual Offences Act which the appellant was charged under is Section 8(4) of the Sexual Offences Act which provides for a sentence of not less than fifteen years imprisonment. The trial court imposed a sentence of life imprisonment. 39.The trial court seems to have been influenced by the pre-sentence and the victim impact report. This is clear from the ruling the trial court delivered on sentencing. I agree with the trial court the appellant took advantage of a vulnerability of the complainant. It is also revealed from the report that the appellant was HIV+ which might have influenced the trial court to hand the appellant life imprisonment. 40.In the circumstances of this case and considering the pre-sentence and victim impact reports, I am reluctant to disturb the sentence imposed. 41.Consequently, I find that the appeal has no merit and the same is dismissed and the finding of the trial court both on conviction and sentence is upheld. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JULY, 2026FRANCIS N. KYAMBIAJUDGEIn the presence of:Appellant appearing virtually from Malindi G.K PrisonMs. Mutua Prosecution counsel for the respondent appearing virtuallyMs. Otwo Court Assistant.FRANCIS N. KYAMBIAJUDGE