https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9731

Peter v Republic (Criminal Appeal E061 of 2025) [2026] KEHC 9731 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9731 (KLR) Republic of Kenya In the High Court at Machakos Criminal Appeal E061 of 2025 EN Maina, J June 30, 2026 Between Alex Sila Peter Appellant and Republic Respondent (Being an appeal against the Judgment, conviction and sentence by Hon. S. A. Opande (PM) in Kangundo Chief Magistrate’s Court in Criminal Case SO No. E071 of 2021 delivered 31st October 2024) Judgment 1.The Appellant is serving a sentence of fifteen (15) years imprisonment for the offence of Defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual offences Act. 2.The prosecution’s case was that on various dates between mid 2020 to 27th November 2021, he unlawfully caused his penis to penetrate the vagina of MKN who was then aged 16 years. The prosecution led evidence through the complainant, that the Appellant approached her and that they had sexual intercourse during the period in issue. As a result of those relations with the Appellant the victim became pregnant. Her teacher noticed the pregnancy and reported the matter whereupon the Appellant was arrested and charged with the offence. The prosecution also led medical evidence that the victim had indeed been defiled and that she had given birth to a child whose paternity matched that of the Appellant. 3.When the Appellant was placed on his defence he readily admitted that he had had sexual intercourse with the victim on various occasions but alleged that the size of her body had deceived him into believing that she was an adult. He urged the court to mete out a non-custodial sentence so that he could take care of his child. 4.Upon considering and evaluating the evidence by both sides, the learned Magistrate, found that the Appellant knew the victim was a minor as they were neighbours and dismissed his defence and proceeded to convict him. 5.Being aggrieved by the conviction and sentence the Appellant preferred this appeal his main ground, as per the amended grounds being that the learned Magistrate did not consider his defence yet it is a valid defence under Section 8(5) (a) and (b) of the sexual Offences Act. The Appellant placed reliance on the case of Republic v Howard [1965] ALL ER 684 at 685 and the case of Charo v Republic (Criminal Appeal 32 of 2015 [2016] KEHC 5619 (KLR) where it was held:“The offence of defilement should not be limited to age and penetration. If those were to be taken as conclusive proof of defilement, then young girls would freely engage in sex and then opt to report to the police whenever they disagree with their boyfriends. The conduct of the complainant plays a fundamental role in a defilement case. One can easily conclude that the complainant was defiled after hearing her evidence.” 6.The Appellant urged this court to find that the victim consented and did not report the matter anywhere a sign that she was capable of giving consent. He also urged this court to be persuaded by the finding of the court in the case of Eliud Waweru Wambui v Republic [2019] eKLR where the court observed:“Where to draw the line for what is elsewhere referred to as statutory rape is a matter that calls for serious and open discussion. In England, for instance, only sex with persons younger than the age of 16, which is the age of consent, is criminalized and even then the sentences are much less stiff, at a maximum of 2 years for children between 14 to 16 years of age. The same goes for a great many other jurisdictions. A candid national conversation on this sensitive yet important issue implicating the challenges of maturing, morality, autonomy, protection of children, and the need for proportionality is long overdue. Our prisons are teeming with young men serving lengthy sentences for having had sexual intercourse with adolescent girls whose consent has been held to be immaterial because they were under 18 years old. The wisdom and justice of this unfolding tragedy call for serious interrogation Appeal allowed, conviction quashed and sentence set aside. The appellant to be set at liberty unless otherwise lawfully held” 7.The Appellant further urged this court to find that as the victim did not report the matter until it was discovered she was pregnant, she enjoyed the act as an adult; that her physical body size reasonably deceived him into believing she was above 18 years, and further that the fact that she enjoyed the act means that she was not a victim. Further, that as was held in the case of Charo v Republic (supra), it would be unfair to send someone to jail for 20 years yet the complainant was enjoying the relationship and hence the Appellant was within the defence under Section 8(5) of the Sexual Offences Act. He urged this court to consider releasing him as the victim had herself complained he was not supporting their child; that this will be a means of restorative justice which focuses majorly on mending the relationship affected by the offence. 8.Mr. Masila, learned Counsel for the State, however urged this court to dismiss the appeal and uphold the conviction and sentence of the lower court. Analysis and determination 9.The appellant readily admits that he had a sexual relationship with the victim herein and that that relationship culminated in a pregnancy. The medical notes and the P3 form produced in evidence all put the age of the victim at 16 years. Under the law she was therefore incapable of consenting to the sexual act(s). The Appellant knows this very well hence the reason he sought to raise the defence under Section 8(5) of the Sexual Offences Act. The Section states:“(8)8] Defilement…………………….(5)It is a defence to a charge under this section if—(a)It is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)The accused reasonably believed that the child was over the age of eighteen years.…………………” 10.I have carefully reconsidered and evaluated the evidence in the court below so as to arrive at my own independent conclusion albeit taking into account that I did not see or hear the witnesses myself. I have also considered the grounds of appeal, the submissions, the cases cited and the law. See the case of Boru & Another v Republic [2005] 1 KLR pg 649- 650 where it was held:“(4)A duty is imposed on a court hearing a first appeal to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld, as well as to deal with any questions of law raised on the appeal.” 11.What arises for determination is whether the defence in Section 85 of the Sexual Offences Act avails to the Appellant. 12.An accused who wishes to rely on the defence under Section 8(5) that the child deceived him/her into believing that he or she was over the age of eighteen years at the time of the commission of the offence and that he/she reasonably believed that the child was over the age of eighteen years must satisfy the court that he was not only deceived, but that he took steps to satisfy himself that she was not a child. This is because Sub-section (6) provides that the belief in Section 5(6) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant. In the case of Irene Atieno Ochieng v Republic [2017] eKLR the court stated as follows in regard to the defence:“[20]From the above provisions, it can be seen that whenever an accused person opts to rely on the said defence then the evidential burden of proof shifts to that accused person to satisfy the conditions attached to that defence. It therefore remains the duty of an accused person to demonstrate that: -(a)That it was the child who deceived the accused person into believing that he/she was over the age of eighteen years at the time of the alleged commission of the offence;(b)That the accused person reasonably believed that the child was over the age of eighteen years; and(c)That when all the circumstances are brought on board and duly interrogated, they point to the conclusion that the belief on the part of the accused person was reasonable.(21)The accused person will first have to prove deception by the child in respect of the child's age. That deception can be by way of words or actions on the part of the child. In this case, the appellant admits that she attended a meeting convened by their Church Pastor where she was warned over the relationship with the complainant since the complainant was still a young child. The Appellant therefore knew that despite of how the complainant appeared in terms of physical appearance and complexion and his ability to discharge any and/or all the roles of a man worth of a head of a house the complainant was still but just a minor. Therefore, if there had been any prior deception by the complainant on the Appellant that the complainant was an adult that deception ended on the day of the meeting” 13.In this case the Appellant alleges that he was deceived into believing the victim was above 18 years by the size of the body. He does not state that the victim herself deceived him regarding her age. Section 8(5) of the Sexual Offences Act provides that the child/victim must herself/himself have deceived the accused she was above eighteen years. It is not the size of the body but what the victim tells or does so as to deceive him. It is also not sufficient in my view to state that she consented given that a child is incapable of giving consent hence the reason why defilement is otherwise referred to as statutory rape. That she enjoyed the sexual acts and hence did not complain is also not sufficient. She must have done something more to deceive the accused and the accused must have also taken efforts to ascertain her age. The Appellant has not alluded to having taken any steps to ascertain her age. Moreover, they were neighbours for a long time and like the trial magistrate, I am not convinced that he did not know she was a child. It is therefore my finding that the circumstances of this case taken in their entirety, do not avail the defence to the Appellant. This defence was also taken into consideration by the learned magistrate. I am not satisfied that he acted on a wrong principle. I am not persuaded by the decisions cited by the Appellant. 14.The upshot is that the appeal on conviction has no merit and it is dismissed. 15.The sentence prescribed for the offence is exactly what was imposed by the trial court. It is neither unlawful, harsh or excessive. The Appellant urged this court to impose a non-custodial sentence but it would not be appropriate in light of the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) and the case of Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment)where the Supreme court has ruled that the courts may not impose sentences below the minimum provided under the Sexual Offences Act. The appeal on the sentence must therefore also fail. 16.The upshot is that the appeal is dismissed in its entirety and the conviction and sentence of the leaned magistrate are upheld save that, as the trial court did not consider the period spent in remand custody, the sentence shall be computed to run from the date of arrest, which is 2nd December 2021, in order to comply with Section 333(2) of the Criminal Procedure Code. It is so ordered. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 30TH DAY OF JUNE, 2026.E. N. MAINAJUDGEIn the presence of:Madam Otieno for the StateThe Appellant (in person but at Kitengela prison)Benson - Court Assistant/Interpreter