https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11370

Ndolo v Republic (Criminal Appeal E063 of 2025) [2026] KEHC 11370 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11370 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E063 of 2025 JK Biomdo, J July 23, 2026 Between Felix Ndolo Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. O.A Nyandusi (RM) in Makindu SPMC (SO) Case No. E041 of 2023) Judgment 1.The appellant herein Felix Ndolo, was convicted by the Senior Principal Magistrate’s Court at Makindu for the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006 and sentenced to 15 years imprisonment. The particulars of the offence are that on diverse dates between 11 November 2022 and 23 December 2022 at [Particulars Withheld] area in Kibwezi sub-county within Makueni county, intentionally and unlawfully caused his penis to penetrate into the vagina of F.M.I a girl child aged 17 years. 2.The appellant was also charged with an alternative offence of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act in that on diverse dates between 11 November 2022 and 23 December 2022 at [Particulars Withheld] area in Kibwezi sub-county within Makueni county, intentionally and unlawfully caused his penis to touch the vagina of F.M.I a girl child aged 17 years. 3.At the trial court, the appellant denied the charges prompting the trial in which the prosecution to called five (5) witnesses. PW1, the complainant testified that she was born on 19 December 2006 and a Form 3 student in a day school. On 10 November 2022 at 8pm she met the appellant who was her neighbour. He told her that his wife had left and proposed to be her boyfriend but she declined. The following day, she went to his house where he took her to the bedroom and they had sex after which he gave her Ksh.500. They met again on 17 November 2022, 5 December 2022, 8 December 2022 and 17 December 2022 where they had sex but he did not give her any money prompting her to terminate the relationship. 4.On 14 April 2023 she discovered she was pregnant after conducting test which outcome was later confirmed at AMREF. She told her parents that the appellant was responsible and that he (the appellant) had denied responsibility. She subsequently delivered and that DNA was conducted in Mombasa revealed that the appellant was the father of the child. 5.PW2, the complainant’s father Isaac Munyao Ndunge stated that on 14 April 2023 he discovered PW1 was pregnant and she told him that the appellant was responsible. On 23 April 2023, he reported the matter to the Children Department and thereafter to Kibwezi Police Station. He went on to say that DNA conducted in Mombasa confirmed the appellant as the father of PW1’s child. 6.PW3 Mercy Wambui the investigating officer attached to Kibwezi Police Station Gender Based Section’s evidence was that on 23 May 2025, PW2 accompanied by PW1 reported that PW1 had been defiled by the appellant. She escorted PW1 to AMREF where examination revealed that she was 6 months pregnant. On 6 December 2023, PW1, the appellant and the new born baby were subjected to DNA testing pursuant to an order of the court with the results showing that the appellant was the father of PW1’s child. She produced PW1’s birth certificate (exhibit 4) showing that she was born on 19 December 2006 meaning she was 17 years at the time of commission of the offence. She arrested and charged the appellant. 7.PW4 Mwidadi Omar, a government analyst from the Government Chemist testified that on 6 December 2023, he conducted a DNA test from PW1, PW1’s child and the appellant with the results showing the appellant was the father on PW1’s child. He produced the DNA report dated 15 December 2023 as evidence (exhibit 5). 8.PW 5 Abulduzazi Amhed Ali a medical officer at Kambu hospital examined PW1 on 23 May 2023 and established that her hymen was broken and had an old scar, and she was 22 weeks pregnant. He produced the P3 form (exhibit 2), Ultra sound report and obstetric report (exhibit 3 a. and b) and Post Rape Care Form (exhibit 4). 9.At the close of the prosecution case, the court found that a prima facie case had been established and placed the appellant on his defence. 10.The appellant vide unsworn testimony denied the charge and stated that he was married but had been separated from his wife. That he had a land dispute with PW2 which informed the charges. That between 11 November 2022 and 23 December 2023, he was not at his home in Kibwezi but was working at Makindu Regional Teachers College as a school bus driver and used to carry the wife of the school’s Director Ms Eliza which a person named Maina and the Director Sammy Paul. That during that period, he would live his house at Kangeso at 6.30 am and return at 10 pm but that on weekends he was always at home although PW1 lied about having sex with him. He did not call any witness. 11.At the close of the trial, the court after weighing the evidence, convicted the appellant and sentenced him to fifteen (15) years imprisonment. Aggrieved, the appellant filed the present Appeal where he raised the following grounds:i.The trial court erred in both law and fact by relying on hearsay evidence by the prosecution witnesses as well as failing to note that the charges were born out of malice and ill will.ii.The trial court erred in both law and fact by failing to test the prosecution evidence which was riddled with inconsistencies, discrepancies and lacked probative value.iii.The trial court erred in both law and fact by convicting him despite the complainant convincing the appellant that she was an adult.iv.The trial court erred in both law and fact by failing to find that the prosecution case was not proved beyond reasonable doubt.v.The trial court erred in both law and fact by overlooking the fact that witnesses gave false evidence on oath.vi.The trial court erred in both law and fact by relying on PW1 evidence which was tendered long after the offence had been reported.vii.The trial court erred in both law and fact by shifting the burden of proof to the appellant.viii.The trial court erred in both law and fact by failing to consider the appellant’s defence and awarding a harsh and excessive sentence. 12.The appeal was argued by way of written submissions which both parties duly filed. The appellant submitted that the trial court erred by relying on suspicious and fictitious evidence. He argued that the complainant testified under duress and that the charges were malicious owing to the dispute between the appellant and the mother of PW1. 13.The appellant contended that the trial court relied on testimonies of prosecution witnesses that were untruthful, based on hearsay and full of inconsistencies. It was submitted that no evidence of strangulation, injury sustained by the complainant on her body or genital organs to support the allegations. 14.The appellant challenged the investigation which he termed shoddy and founded on fabrications and mere allegations which were not supported by evidence. He further contended that the trial court shifted the burden of proof to the appellant. 15.On the sentencing, it was argued that the sentence was draconian, excessively punitive and oppressive in contravention of Article 47 of the Constitution. He urged the court to find in his favour, set aside the conviction and sentence. 16.The respondent opposed the appeal and affirmed that the conviction was proper and that the prosecution had proved all three ingredients of the offence of defilement, that is, age of the victim, penetration and identification of the perpetrator beyond reason doubt. 17.On age, it was submitted that the victim’s age was proved by the birth certificate produced by PW4 as exhibit 2 which showed that the PW1 was born on 8 August 2008 and was 16 years when the offence was committed. On penetration, it was submitted that the element was proved by PW1 evidence as corroborated by PW2’s evidence. On identity of the perpetrator, it was contended that PW1 clearly identified the appellant as the perpetrator as having been neighbour and corroborated by PW2. 18.Regarding the issue of inconsistencies, it was argued that the variance between the P3 form and the testimony of PW5 concerning the timing was minor and did not go to the root of the case. That it is not in dispute that the incident was reported and medical evidence on record proved penetration. The case of MTG vs Republic (2022) KEHC 189 KLR was cited in support thereof. The Respondent urged the court to dismiss the appeal and uphold the conviction and sentence. Analysis and determination 19.This being the first appeal, the duty of this court, as set out in Okeno Vs R [1972] EA 32 and affirmed in various decisions including the case of Mark Oiruri Mose vs Republic (2013) eKLR, is to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. 20.The court of appeal, in Kiilu & Another V Republic [2005]1 KLR 174, stated thus;“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the 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 findings 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 the witnesses.” 21.Having considered the grounds of appeal, the evidence adduced in the lower court, the trial court’s judgement, the record of proceedings and the rival submissions of parties, I find the main issues for determination to be;i.Whether the offence of defilement was proved beyond reasonable doubt;ii.Whether there were material inconsistencies and contradictions in the prosecution’s case;iii.Whether the sentence was illegal, harsh or excessive. Whether the offence of defilement was proved beyond reasonable doubt 22.The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The said Act provides:“8(1)A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement.(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.” 23.The specific ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration; age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013. 24.Age of the victim is a critical ingredient of the offence and must be proved. For the offence of defilement under Section 8 (1) of the Act to crystalize, it must be proved that the victim was a child, that is, below the age of 18 years. 25.The High Court in Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) held;“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.” 26.Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vsRepublic Criminal Appeal No. 21 of 2015 [2017]. 27.In this case, PW1 the complainant testified that she was born on 19 December 2006 meaning she was between 16 years 11 months when the offence first occurred. Her evidence was corroborated by her Birth Certificate produced as exhibit 4 by PW3. The court finds that complainant was a child within the definition of the law. 28.On the issue of penetration, Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. 29.“Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. 30.To prove penetration, it must be established that the appellant inserted his penis into the vagina of the complainant either partially or completely. Being a minor, the complainant was incapable of consenting hence it is immaterial that she may have agreed to the act. 31.Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Criminal Appeal No. 35 of 1995. 32.The court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR)." 33.The complainant, PW1 testified that on 10 November 2022 at 8pm, she met the appellant who was her neighbour. He told her that his wife had left and proposed to be her boyfriend but she declined. The following day, she went to his house where he took her to the bedroom and they had sex after which he gave her Ksh.500. They met again on 17 November 2022, 5 December 2022, 8 December 2022 and 17 December 2022 where they had sex but he did not give her any money prompting her to terminate the relationship. On 14 April 2023 she discovered she was pregnant after conducting test which outcome was later confirmed by medical examinations. She subsequently delivered and that DNA conducted on 6 December 2023 revealed that the appellant was the father of the child. 34.PW1 ‘s evidence was corroborated by PW5, a medical officer at Kambu hospital who examined PW1 on 23 May 2023 and established that her hymen was broken, that she had an old scar and was 22 weeks pregnant. He produced the P3 form (exhibit 2), Ultra sound report and obstetric report (exhibit 3 a. and b) and Post Rape Care Form (exhibit 4). Additionally, the DNA test conducted by PW4 a government analyst from the Government Chemist on 6 December 2023 confirmed that the appellant was the father of PW1’s child. The DNA report dated 15 December 2023 was produced as exhibit 5. The cumulative evidence produced by the prosecution proves beyond any doubt that the appellant penetrated PW1 as alleged. 35.The court has analysed the appellant's defence and noted that it corroborated PW1’s evidence that he was separated from his wife at the material time, was a neighbour to her but denied the allegations. While he testified the during the period in question he was away working as a bus driver at Makindu Regional Teachers College, he averred that he was in his house during weekends, which placed him at the crime scene. Additionally, none of person’s mentioned testified to corroborate his testimony and no evidence of disagreement or malice between the appellant and PW1’s family was provided. The totality of the evidence leaves no doubt that the appellant had sexual intercourse with the PW1. 36.As regards the DNA test, Section 36 of the Sexual Offences Act provides as follows;“36.(1)Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence”. 37.The trial court granted an order for DNA testing on 19 October 2023 upon an application by the prosecution pursuant to Section 36 (1) of the Sexual Offences Act. The DNA was conducted on 9 December 2023 and the DNA certificate dated 15 December 2023 was produced as evidence by PW 4. The DNA, while not mandatory, provided additional evidence that ascertained the father of PW1’s child and assisted the court in resolving the conflicting positions by the parties on the issue of penetration. 38.On the issue of identification, PW1 testified that she had sex with the appellant in his house severally and identified him as responsible for her pregnancy. Her testimony was corroborated by the DNA test produced as exhibit 5 which proved that the appellant was the father of PW1’s child born out of the sexual intercourse. The two were neighbours as confirmed by PW2 and the appellant in his defence. The court finds that the appellant was sufficiently identified by PW1 through recognition. The court finds that taken as a whole, the three ingredients constituting the offence of defilement as charged was proved beyond reasonable doubt. Whether there were material inconsistencies and contradictions in the prosecution case 39.The appellant contended that the trial court relied on testimonies of prosecution witnesses that were untruthful, based on hearsay and full of inconsistencies. It was submitted that there was no evidence of strangulation, injury sustained by the complainant on her body or genital organs to support the allegations. The respondent argued that the variance between the P3 form and the testimony of PW5 concerning the timings was minor and did not go to the root of the case. That it is not in dispute that the incident was reported and medical evidence on record proved penetration. 40.The Court has considered the prosecution evidence and did not find material contradictions that went to the root of the case. Any inconsistencies noted were minor and the testimonies by the prosecution witnesses constituted direct evidence that was cogent, consisted and corroborated by medical and other documentary evidence. Whether the sentence was unlawful, harsh and excessive 41.The appellant submitted that the sentence was draconian, excessively punitive and oppressive in contravention of Article 47 of the Constitution. The appellant was charged under Section 8 (1) & (3) of the Sexual Offences Act. However, the evidence on record shows that the victim was 16 years at the time of commission of the offence meaning that the correct section was 8 (4) and not 8 (3). 42.Section 8 (4) of the said Act sets a minimum mandatory sentence of 15 years imprisonment where an accused is found guilty of defiling a child between 16 and 18 years. The complainant fits in this category. 43.The constitutional validity on mandatory minimum sentences under section 8 of the Sexual Offences Act was addressed by the Supreme Court in petition E018 of 2023 Republic vs Joshua Gichuki Mwangi (2024) KESC 34 (KLR) where the court held that the minimum sentences set out in Section 8 of the Sexual Offences Act are lawful. The court further clarified that the decision in Francis Muruatetu & Another vs R; Katiba Institute & 5 Others (2021) eKLR is limited to the mandatory nature of the death penalty under Section 204 of the Penal Code and does not extend to other statutes. 44.The appellant was sentenced to 15 years imprisonment which is the mandatory minimum sentence set by law. The court finds no evidence that it was unlawful, excessive or harsh to warrant intervention. Final Orders 45.In view of the above, the court makes the following orders;i.The appeal against conviction and sentence lacks merit and is accordingly dismissed.ii.The sentence of 15 years imposed by the trial court is upheld. DELIVERED AND SIGNED AT NAIROBI ON THIS 23RD DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE