https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9717

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **HCCRA No. E027 of 2025** **PETER KIRII KIMANI………………………….………….…APPELLANT** **VRS** **REPUBLIC……………………………...……………….…...RESPONDENT** **(Being an appeal from the original conviction and sentence in Sexual Offences Case No.E029 of 2022 at Kigumo Law Courts before Hon. J Irura (SPM)** **JUDGMENT** 1. The appellant was charged, tried and convicted at the Senior Resident Magistrate's Court at Kigumo for the offence of defilement contrary to Section 8(1)(4) of the Sexual Offences Act No.3 of 2006. 2. Being dissatisfied with the findings of the trial court, the appellant has now preferred an appeal before this court vide a petition of appeal dated 24th March,2025. In the aforesaid petition, the appellant has advanced seven grounds of appeal upon which he contests the decision of the trial court and seeks to have the same overturned. 3. Parties disposed of the appeal by written submissions. The appellant filed submissions dated 12th February,2026 while the respondent filed submissions dated 14th January,2026. **The Appellant’s Submissions:** 1. The appellant relies on the case of **Charo vs Republic** **{2016}KEHC 5619 (KLR)** in the case the court considered that: *Although the victim was a young lady aged 14 years, she was behaving like a full-grown woman who was already engaging and enjoying sex with men. She seemed not to have been complaining about the incident. She only went to the appellant’s house to have sex and went back home only for her brothers to interfere. She opted to run away to the appellant’s parents’ home where they continued having sex for three days. She then decided to go home. She told her father where she was.* *Under Sexual Offences Act, a child below 18 years old cannot give consent to sexual intercourse. However, where the child behaves like an adult and willingly sneaks into men's houses for purposes of having sex, the court ought to treat such a child as a grown up who knows what she is doing. The appellant was 23 years old when the incident occurred as per the pre bail report. It would be unfair to have the appellant serve 20 years behind bars yet PW1 was after sex from him. The evidence does not show that the appellant knew that PW1was a student or that the appellant took advantage of PW1 being a young girl. It is clear to me that PW1 started engaging in sex way before that date.* 1. The appellant relies on the cases of **Lucas Nyangweso Bichange v Republic [2019] KEHC 2451 (KLR)** where the court held that: *“The complainant testified that that was not the first time the appellant had gone to their home and stated the two of them had sex on three occasions between 8th September 2018 and 18th September 2018. She narrated how the accused would pick her from home and take her to her uncle’s house which was unoccupied and they would have sex. She stated that he had come to their home for the same reason when he was caught.”* *…evidence by the complainant that she used to open the door for the appellant whenever he knowcked and that the first time they went and had sex in her uncl’s house proved that she conducted herself as an adult but not a child and the appellant ought not have been convicted.* 1. It is further the appellant’s submissions that the complainant does not paint a picture of a minor who was defiled rather she now stands in line with previous minors before who willingly sneaked into men’s lives to have sex and as such she ought to be treated as an adult. The appellant therefore urges the court to note that there was no formal complaint on defilement on the date the complainant confirmed to have sex with the appellant on 26th April,2022. 2. It is the appellant’s case that the defence under section 8(5)of the Sexual Offences Act was ignored and disregarded by the Trial Magistrate as she sat to write the judgement. *Section 8(5) and (6) of the Sexual Offences Act created a defence to a charge of defilement /For defence under section 8(5) to apply, courts should have regard to the circumstances of the case including the steps taken by the accused.* 1. The appellant in his submissions drew the Court’s attention to page 32 of the Record of Appeal and more specifically to the response of the minor complainant upon cross examination PW1 Joan Waithera stated as follows; ***‘I know the accused person as my boyfriend. I met him in the Year 2022……,.*** ***‘We were talking about love and marriage, People who are married live together and engage in Sexual Intercourse’*** ***‘We had talked with the accused on 9/5/2022 and I packed my clothes and went to his house’*** ***‘That was the first time I had sexual intercourse’*** 1. The appellant relied on the determination in **Charo vs Republic {2016}KEHC 5619 (KLR)** where the court held that; “**Children *are not meant to enjoy sexual intercourse. Whenever they do, then that becomes the behavior of an adult. Although the public will frown upon an adult who engages in sex with such a child, we should not forget that circumstances have changed. Young children engage in sex at very young age. This is not out of defilement. “*** 1. He went ahead to submit that he relied heavily on**Charo vs Republic {2016}KEHC 5619 (KLR)(Supra)** which has to date never been overturned where Justice Chitembwe held as follows: *Conviction of a defiler should be based on actual circumstances and proof that the complainant was indeed defiled. This is more so when one considers the lengthy sentences imposed by the law for such an offence. It is unfair to send someone to 20 years imprisonment yet the complainant was enjoying the relationship.* *The appellant falls within the defence under section 8(5) of the Sexual Offences Act. It is PW1 who behaved like an adult and engaged in sexual intercourse. The appellant was not expected to inquire from several people about the age of the complainant. The relationship continued for quite along time to the extent that age became a non-issue.* 1. He submits that the court did not give reasons in law as to why he meted the sentence against the appellant and when he stated that "*Accused defense is not sufficient to raise doubt. I consider them as afterthoughts. From the above, accused's innocence is incompatible with facts and evidence. As a result, I hereby convict him on the main count. The alternative hangs in abeyance."* The court did not consider any mitigation by the applicant in arriving at the sentence. 2. On the issue as to whether the appellant took any steps to ascertain the age of the complainant the appellant relies on **Charo vs Republic {2016}KEHC 5619 (KLR)(Supra)** when the Learned Judge considered that: *“Even if the appellant did not give evidence as to the steps he took to ascertain the age of the complainant, the circumstances are that the complainant behaved like an adult. She left her parents' home and went to the appellant's house purposely to have sex. The appellant should not be condemned for the voluntary acts of the complainant. The complainant was enjoying the relationship.* *I do find that the appellant falls within the defence under section 8(5) of the Sexual Offences Act. It is PW1 who behaved like an adult and engaged in sexual intercourse. The appellant was not expected to inquire from several people about the age of the complainant. The relationship continued for quite a long time to the extent that age became a non-issue. I do find that the appeal is merited and is hereby* *allowed. The appellant shall be set at liberty unless otherwise lawfully held.”* # Finally the appellant urged the court in the alternative to consider the findings of Justice Mumbua T. Matheka in the case of **John Ndungu Mbai v Republic [2020] KEHC 5060 (KLR) where the Learned Judge held that :** *“The only thing for consideration is the sentence. Here the circumstances will come into play now with the* ***Muruatetu*** *Case and* ***Dismas Wafula Kilwake*** *case, in determining how the offence was committed so as to determine the sentence. In* ***Dismas Kilwake*** *the Court of Appeal held that the mandatory nature of the minimum sentences in the Sexual Offences Act were unconstitutional. The court therefor acting under s. 354(3)(b) has the powers, on appeal to reduce or increase the sentence. In this case the appellant was a first offender, there were no aggravating circumstances and he expressed remorse for the offence.* *In upshot, the conviction is sustained taking into consideration of the circumstances of the case, the appeal is allowed on the sentence alone. The sentence of 15 years is substituted with 8 years’ imprisonment including any period the appellant spent in remand before sentence by the lower court.* 1. **In Dismas Wafula Kilwake (2018) eKLR**, the Court of Appeal set out the factors to be considered in sentencing under Sexual Offences Act as follows; *"(We) hold that the provisions of Section 8 of the S.O.A must be interpreted so as not to take away the discretion of the court in sentencing.* *Those provisions are indicative of the seriousness with which the legislature and the society take the offense defilement. In appropriate case therefore, the court, freely exercising its discretion in sentencing, should be able to impose any of the sentences prescribed, if the circumstances of the case so demand it. The argument that mandatory sentences are justified because sometimes courts impose unreasonable or lenient sentences which do not deter commission of the particular offences is not convincing, granted the express right of appeal or revision available in the event of arbitrary or unreasonable exercise of discretion in sentencing.* *The Sentencing Policy Guidelines require the court, in sentencing an offender to a non-custodial sentence to take into account both aggravating and mitigating factors. The aggravating factors include use of weapon to frighten or injure the victim, use of violence, the number of victims involved in the offense, the physical and psychological effect of the offense on the victim, whether the offense was committed by an individual or a gang and the previous convictions of the offender. Among the mitigating factors are provocation, offer of restitution, the age of the offender, the level of harm or damage inflicted the role played by the offender in the commission of the offense and whether the offender is remorseful."* **The Respondent's Submissions;** 1. In opposing the appeal the Respondent submits that the offence of defilement is rooted on three main ingredients being the: 2. Age of the victim(must be a minor) 3. Penetration 4. Proper Identification of the perpetrator 5. It is the respondent’s submissions that the ingredients are provided for under Section 8(1) as read with Section 8(2) of the sexual offences act No.3 of 2006 and must each be proven for a conviction to ensue. 6. This was restated in **George Opondo Olunga vs Republic {2016} eKLR**. It is the respondent’s submissions that the ingredients were sufficiently proved beyond reasonable doubt. 7. On the issue of ageit is it's case that during further cross examination PW1 the victim stated that she met the accused in 2022when she was in form 2, when she was 16 years old. This means that she was born in 2006. 8. Further, it was the respondent’s submissions that PW2 who is the victim’s mother stated that the victim was born on 2nd February,2006 and that she was 17 years old at the time of giving evidence in the court on 14th November,2023. The offence happened in May,2022 and hence she was 16 Years old at the time of the offence. 9. The respondent further submitted that PW3 who was the investigating officer produced a Clinic Health Card for the victim as exhibit which indicated that she was born on 2nd February,2006. The victim’s age was also captured in the P3 Form and treatment notes where the doctor who examined her indicated that she was a teenager. 10. It was therefore the respondent’s case that there was no material error on the issue of age of the victim since there are several ways to prove age as held in various precedents. Production of a Birth Certificate is not the only way to prove age as alleged. 11. The respondent relied on the case of **Edwin Nyambongo Osongo (2016) eKLR** *where it was held that age can be proved in various ways including by way of documents, birth certificate, baptism card or oral evidence of the child if the child is sufficiently intelligent or by evidence of guardians or parents or by medical evidence.* 12. On the issue of penetration or indecent act, it was submitted that PW1 who was the victim stated that on 26th April,2022 she met the accused and they had sexual intercourse. She stated that in May2022 she got pregnant and when she found out she was pregnant, they rented a house together and had started living as husband and wife and that they were having sex during the time they were staying together. 13. PW2-The Doctor stated that he examined and treated the victim on 15th May,2022 at Maragua Sub County Hospital. The victim claimed to have had sexual intercourse without protection and without force with the accused on 26th March,2022,11th May,2022 and 14th May,2022. 14. On examination of her private parts/genitalia, he noted that the hymen was broken but not freshly broken. There was whitish discharge. The pregnancy test was positive and ultra sound scan showed that she was 6 weeks pregnant. Urinalysis revealed presence of puss cells. HVS showed presence of epithermal cells. The doctor concluded that the girl had been defiled and was exposed to HIV. 15. The Doctor who also examined the accused voluntarily when he subjected himself to tests. He admitted having had sexual intercourse with the victim on several occasions, tests showed that he was HIV Positive and there was epithermal cells in HVS tests. The doctor produced the P3 form, treatment notes, PRC forms and ultra sound scan results as exhibits. 16. The respondent submitted that lack of DNA examination did not compromise the prosecution’s case in that it’s not a requirement to prove the ingredients of the subject offence. It only adds weight to the case if done. The prosecution already had a strong solid case against the accused. The court stated evidence of DNA was not material in this case since absence of medical evidence is immaterial and defilement can be proved by oral evidence of victim or by circumstantial evidence. 17. On the issue of Identification of the perpetrator, the respondent submitted that PW1 the victim stated that she was in a relationship with the accused and they had even stated staying together as husband and wife having rented a house. She stated that the accused was a pastor in their church and she knew that he had a wife and a child. She also knew his full names as Peter Kiiri Kimani. She came to know him when he started coming to the home of the victim for prayers. She stated that she had known him for about 2 months. She identified her in the dock. 18. PW2 the victims mother corroborated her evidence in that the accused was their pastor who had been in their church for around three months. The mother also found the pastor and he daughter together in a rented house at Kabati at the time of arrest and she identified her in the dock. 19. It is the respondent’s further submissions that the identification of the appellant was that of recognition. He was someone well known to the victim and thus there was no likelihood of error. They relied in the case of **MW vs Republic {2019} eKLR** the High Court at Kajiado sated as follows: *“The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity.”* 1. The respondent urged the court to adopt the above position and that the said elements of defilement were conclusively proved as submitted earlier. 2. It was the respondent’s position that the fact that the both parties lived as husband and wife and had consensual sex is immaterial given that the victim was underage at the time of the offence and the accused was an adult. There are plenty of precedents that reiterates that a minor victim has no capacity to consent to sexual acts. 3. It is for the accused to give and proof the defence provided for in **Section 8(5) of the Sexual Offences Act** that he did not know that the victim was underage either by reasonably believing so or by being deceived by the victim that she was an adult. 4. Furthermore, the victim had informed the accused that she was a student and that she was 16 years old. Notably, there is overwhelming evidence that the accused had met the victim and her mother at home and at church hence we conclude that he knew the victim was a minor. 5. The prosecution cited Section 8(5) of the Sexual Offences Act which states that” *“It is a defence to a charge under this section if –* 1. *It is provided that such child, deceived the accused person into believing that he or she was over the age of eighteen years”* 2. *“The accused reasonably believed that the child was over the age of eighteen years “* 3. Section 8(6) of the Sexual Offences Act states that: *“The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances including any steps the accused person took to ascertain the age of the complainant”.* 1. In this case the accused failed to prove that he was unaware that the victim was underage or that the victim deceived him that she was an adult during the defence hearing and during cross examination. 2. The respondent further submitted that there were no inconsistencies and contradictions in the testimony of prosecution witnesses as alleged. 3. From the proceedings, the court gave the defence/accused chances to test the evidence of each witness through cross examination. The evidence given by each victim was credible. 4. On the issue of mitigation, the respondent submitted that from the proceedings, it’s evidence that the court considered that he was a first time offender and in his mitigation that he was apologetic, had a dependent child, an elderly parent and that he was sick hence the prayer for leniency. On the other hand, the court noted that he took advantage of the school going child as a pastor yet he ought to protect her. 5. Finally, the respondent submitted that the conviction and sentence passed was appropriate and therefore urged the court not to disturb it and concluded that the appellant failed to give sufficient grounds of appeal to warrant quashing of the conviction and setting aside the sentence by the honorable court. **Analysis and Determination;** 1. This being a first appeal, this court is guided by the principles set out in the case of **David Njuguna Wairimu vs Republic [2010] eKLR** where the Court of Appeal stated:- *“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.* 1. Similarly in the case of **Okeno vs Republic [1972] EA 32** where the Court of Appeal set out the duties of the appellate court as follows:- “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 vs Republic (1957) EA 336)*** *and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). 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 finding and 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,* ***see Peters vs Sunday Post [1958]EA 424****.” This was also set out in the case of* ***Kiilu & Another vs Republic [2005] KLR 174*** 1. The issue for determination is whether the application has merit. 2. In the instant case, the applicant was charged of Defilement contrary to section 8(1)(4) of Sexual Offences Act where upon going through full trial process, the applicant was sentenced to mandatory minimum sentence of (15) years imprisonment as imposed by law. 3. In addressing my mind to the question whether there was a penetration I have considered the evidence of PW4 the clinical officer. In his evidence, The Doctor stated that he examined and treated the victim on 15th May,2022 at Maragua Sub County Hospital. The victim claimed to have had sexual intercourse without protection and without force with the accused on 26th March,2022,11th May,2022 and 14th May,2022. 4. On examination of her private parts/genitalia, he noted that the hymen was broken but not freshly broken. There was whitish discharge. The pregnancy test was positive and ultra sound scan showed that she was 6 weeks pregnant. Urinalysis revealed presence of puss cells. HVS showed presence of epithermal cells. The doctor concluded that the girl had been defiled and was exposed to HIV. 5. The Doctor who also examined the accused voluntarily when he subjected himself to tests. He admitted having had sexual intercourse with the victim on several occasions, tests showed that he was HIV Positive and there was epithermal cells in HVS tests. The doctor produced the P3 form, treatment notes, PRC forms and ultra sound scan results as exhibits. 6. During cross examination he testified that the approximate age of the injuries was weeks and the defilement had taken place more than once. 7. I have also considered evidence of PW3 the investigating officer on 14/11/23 who recorded her statement. She testified that officers from Kabati police station arrested the victim and the accused person on 15/5/2022 and she and other officers collected them from Kabati police station and took them to Kaharati Police Post thereafter escorted the complainant to Maragua hospital for treatment where it was revealed that the complainant had been defiled and was about 2 weeks pregnant. 8. From the above evidence the court is satisfied that there was positive identification and penetration. 9. In determining the issue of the age I am guided by the case of **Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal** where it was held that: - *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. "* 1. PW2 who is the victim’s mother testified that the victim was born on 2nd February,2006 and that she was 17 years old at the time of giving evidence in the court on 14th November,2023. The offence happened in May,2022 and hence she was 16 Years old at the time of the offence. 2. PW3 who was the investigating officer produced a Clinic Health Card for the victim as exhibit which indicated that she was born on 2nd February,2006. The victim’s age was also captured in the P3 Form and treatment notes where the doctor who examined her indicated that she was a teenager. 3. The victim herself testified that she was 16 years of age and was in form 2 at the time the offence was committed. I therefore find that there was no material error on the issue of age of the victim since there are several ways to prove age as held in various precedents. Production of a Birth Certificate is not the only way to prove age. 4. Needless to say therefore that, in addition to the documents set out in Rule 4 of the sexual offences rules, the age of a minor for purposes of the [Sexual Offences Act](https://kenyalaw.org/akn/ke/act/2006/3) can also be proved by the oral evidence of the minor’s mother, by way of age assessment as well as by observation and common sense. Hence, in [**P.M.M. vs. Republic**](http://kenyalaw.org/caselaw/cases/view/151106) **[2018] eKLR,** it was held thus:“…*whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…"* 5. Section 8(1)(4) provides that; 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. 6. On the issue of identification of the perpetrator, PW1 the victim stated that she was in a relationship with the accused and they had even stated staying together as husband and wife having rented a house. She stated that the accused was a pastor in their church and she knew that he had a wife and a child. She also knew his full names as Peter Kiiri Kimani. She came to know him when he started coming to the home of the victim for prayers. She stated that she had known him for about 2 months. She identified her in the dock. 7. PW2 the victim’s mother corroborated her evidence in that the accused was their pastor who had been in their church for around three months. The mother also found the pastor and he daughter together in a rented house at Kabati at the time of arrest and she identified her in the dock. 8. It is my finding that the identification of the appellant was that of recognition. He was someone well known to the victim and thus there was no likelihood of error. In **MW vs Republic {2019} eKLR** the High Court at Kajiado sated as follows: *“The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity.”* 1. I am therefore satisfied that there was credible evidence placed before the lower court connecting the appellant with the crime. He was therefore positively identified as the culprit. 2. On the issue of contradictions in the testimony I have considered that the appellant argued that the prosecution case was riddled with contradictions. **The Uganda Court of Appeal in Twehangane Alfred vs Uganda** held that it is not every contradiction that warrants rejection of evidence. As the court put it:- *"With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case. (Emphasis ours).* 1. Further, the witness testimonies were not contradictory even upon being subjected to cross examination by the defence. Further contradictions which are not deliberate do not affect the main substance of the prosecution's case. 2. In his cross examination of the witness, the appellant failed to challenge the alleged inconsistencies and discrepancies. Thus, it is settled law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witnesses being rejected. It is my finding that this ground should fail since there are no contradictions. 3. In addressing the issue of the minor consenting to sex I note that under the Kenyan legal framework, particularly the Sexual Offences Act and the Children Act, a child is a person under the age of 18 years. Any sexual act with a child is generally treated as the offence of defilement, regardless of whether the child appeared to agree to or willingly participated in the act. 4. It was for the accused to give and proof the defence provided for in **Section 8(5) of the Sexual Offences Act** that he did not know that the victim was underage either by reasonably believing so or by being deceived by the victim that she was an adult. 5. Furthermore, the victim had informed the accused that she was a student and that she was 16 years old. Notably, there is overwhelming evidence that the accused had met the victim and her mother at home and at church hence we conclude that he knew the victim was a minor. 6. PW1 The victim testified that she was 16 years of age and it was her first time engaging in sex activities contrary to the facts in the case of **Charo vs Republic {2016} KEHC 5619 (KLR)** relied upon by the appellant. 7. In his written submissions the appellant made the assertion that the act complained of was consensual; and therefore he ought not to have been convicted thereof. It is however trite that, for purposes of the [Sexual Offences Act](https://kenyalaw.org/akn/ke/act/2006/3), for a person to give consent, he or she must agree by choice, and must have both the freedom and capacity to make that choice. It is for this reason that a person under 18 years is presumed by law to be incapable of giving consent. Hence, **Section 43(4)(f) of the** [**Sexual Offences Act**](https://kenyalaw.org/akn/ke/act/2006/3) stipulates that: “*The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act … a child.”* 8. Accordingly, I am in complete agreement with the position taken by Hon. Korir-Lagat in [**Luka Waithaka Ndegwa v Republic**](https://kenyalaw.org/akn/ke/judgment/kehc/2017/661) **[2017] eKLR,** that: *“In the offence of defilement, the law presumes that a child being one who is below the age of 18 years is incapable of giving consent to sex. I do not agree with the* ***Martin Charo case****(supra) that the conduct of the child is relevant to the offence of defilement. Children are among the vulnerable members of our society by reason of their age, their inability to protect and provide for themselves and also are unable to appreciate dangerous situations. It is for these reasons that the law presumes that they are incapable of consenting to sexual intercourse. In enacting this provision, the legislature was only discharging its duty to act in the best interest of the child.* 1. Therefore, once it is proved that the complainant was below the age of 18 years the offence is completed and it is immaterial that she or he consented to sex. The defence afforded by **Section 8 (5)** of the [**Sexual Offences Act**](https://kenyalaw.org/akn/ke/act/2006/3) **d**oes not refer to consent, but rather to reasonable belief that the complainant was above the age of majority…That she consented to the sexual intercourse is not sufficient to exonerate the appellant of the offence. It is not the consent of the child that exonerates the appellant from the offence but the reasonable belief that she was above the age of majority therefore capable of consenting, and the evidence of steps taken to establish this fact. There was no evidence of any steps that the appellant took to ascertain the age of the complainant. This ground of appeal must fail." 2. A similar stance was taken by **Hon. Mwongo, J. in** [**Peter Charago vs. Republic**](https://kenyalaw.org/akn/ke/judgment/kehc/2019/8708) **[2019] eKLR,** that: *“Unless there is proof that the complainant deceived the appellant, any sexual act between the two is treated as non-consensual sex and therefore amounted to defilement, as the complainant was a child under the age of 18 years and incapable of giving consent in law. Even where a minor behaves like an adult, the law still recognizes that person as a child.”* 3. In the premises, the argument that the sexual act was consensual is untenable. 4. It is my finding that a child legally lacks capacity to consent to sexual activity thus a child’s apparent willingness is legally irrelevant to the question of defilement. Consent is not a defence to a charge of defilement where the complainant is under 18 Years. 5. The appellant also urged the Court to take an adverse view of the fact that no DNA test was conducted to medically link him with the alleged crime. He was therefore of the view that, without a DNA test, the Prosecution could not be said to have proved penetration beyond reasonable doubt. While it is true that DNA testing is provided for in section 36 of the [Sexual Offences Act](https://kenyalaw.org/akn/ke/act/2006/3), that provision is not mandatory. It provides thus in Subsection (1):“...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 testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence." (Emphasis added) 6. Hence, in [**Evans Wamalwa Simiyu vs. Republic**](https://kenyalaw.org/akn/ke/judgment/keca/2016/555) **[2016] eKLR,** for instance, the Court of Appeal was of the view that:“...section 36 of the [Sexual Offences Act](https://kenyalaw.org/akn/ke/act/2006/3) that gives the trial court powers to order an Accused person to undergo DNA testing uses the word “may”. Therefore, the power is discretionary and there is no mandatory obligation on the court to order DNA testing in each case. In our view, in the case of the appellant DNA testing was not necessary. This is because the minor complainant identified the appellant who was known to her as the person who sexually violated her. The trial magistrate who saw and assessed the demeanor of the witnesses believed the complainant that it was the appellant who violated her. 7. Thus, the Court of Appeal reiterated its stance in **Mbogo Raphael Chengo v Republic(supra):** “...*the ground that no DNA was conducted on the complainant has no substance. The appellant was identified by way of recognition as the person who committed the offence as alleged.”* 1. I similarly find that the appellant’s complaint that no DNA test was ordered for by the lower court is of no substance; and that credible inculpatory evidence of recognition was adduced by the complainant before the lower court that linked the appellant with the defilement of the complainant. 2. It is therefore my finding that sufficient material was placed before the lower court to prove beyond reasonable doubt that the complainant was a minor for purposes of Section 8(3) of the [Sexual Offences Act](https://kenyalaw.org/akn/ke/act/2006/3); that she was defiled and that the defilement was perpetrated by the appellant. 3. On the issue of sentencing, The Supreme court in the case of **Republic v Mwangi**; Initiative for Strategic Litigation in Africa **(ISLA) & 3 others (Amicus Curiae) [20241 KESC 34 (KLR)** affirmed that mandatory sentences are lawful and as such this honorable court is bound by virtue of the principle of stare decisis. 4. In the [**Joshua Gichuki Mwangi v Republic**](https://kenyalaw.org/akn/ke/judgment/kehc/2015/1424) , the Court was clear in its mind that the sentences prescribed under the [Sexual Offences Act](https://kenyalaw.org/akn/ke/act/2006/3) are not unconstitutional and can still be meted out in deserving cases. We therefore disabuse the notion that the sentences prescribed under the [Sexual Offences Act](https://kenyalaw.org/akn/ke/act/2006/3) are unconstitutional. The Court only held that when imposed merely because they are mandatory without considering the circumstances of the case, then just like in Muruatetu 1 they contravene the constitutional principles. 5. The following guidelines with regard to mitigating factors are applicable in a re-hearing sentence as per the Judiciary sentencing policy guidelines: (a) age of the offender; (b) being a first offender; (c) whether the offender pleaded guilty; (d) character and record of the offender; (e) commission of the offence in response to gender-based violence; (f) remorsefulness of the offender; (g) the possibility of reform and social re-adaptation of the offender; (h) any other factor that the court considers relevant. 1. These guidelines in no way replace judicial discretion. They are also aimed at promoting public understanding of the sentencing process. 2. It is the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it is the duty of the prosecutor and defence counsel to inform the court of existing guideline judgments on an issue before it. 3. The appellant has failed to demonstrate how the trial Court acted illegally in arriving at the impugned sentence. 4. In that regard, taking into consideration the nature and circumstances of the offence, the mitigation given by the appellant and the ramifications of the appellant’s actions on the complainant’s future, it is my considered opinion that the sentence of fifteen years was commensurate to the offence. The sentence is within the law and is neither harsh nor excessive. This court upholds the sentence accordingly. **Determination**; 1. The appeal is devoid of merit. **Order;** The appeal is dismissed. It is so ordered. **Dated, signed and delivered virtually at Eldoret this 1st day of July, 2026** **.........................................** **J.M. CHIGITI (SC)** **JUDGE**