https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11445

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E019 OF 2025** **CHARO ALIAS BABA BORIS RAZAAK..……………….. APPELLANT** **VERSUS** **REPUBLIC ………………………………………………. RESPONDENT** ***(Being an appeal against the conviction and sentence by Hon. E K Usui (CM) in Malindi CM (SO) Case No. E035 of 2024)*** **JUDGEMENT** 1. The appellant herein, Charo Bulushi Razaak alias Baba Boris, was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the *Sexual Offences Act,* *No. 3 of 2006.* 2. The particulars of the offence are that on 1 March 2024 at Karima area in Malindi Sub-County within Kilifi County intentionally and unlawfully caused his penis to penetrate into the vagina of A.S.K, a child aged 13 years. He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the *Sexual Offences Act* with particulars stating that on 1 March 2024 at Karima area in Malindi Sub-County within Kilifi County intentionally and unlawfully by touching the vagina of A.S.K, a child aged 13 years using his penis. 3. He denied the allegations prompting the trial where the prosecution called four (4) witnesses to prove its case. PW1 the complainant testified that she was 13 years and lived with her parents and four siblings. On 11 March 2024 at about 9.00pm he went to shower in the toilet since someone was inside the bathroom. When she finished showering, the appellant who was his neighbour, knocked on the door and asked her to open it. She declined and he left but shortly thereafter, the toilet lights were switched off from outside while she was still inside. 4. The appellant forced his was in, pinned her on the floor, closed her mouth and nose removed his towel inserted his penis in her vagina and had sex with her. She screamed and the appellant’s wife (DW2) went to find out what was happening. On hearing steps approaching, the appellant got out. DW2 then opened the toilet door and asked her what she was doing where she answered that she was showering. She (DW2) then opened the bathroom door and asked the appellant why he had taken long. 5. PW1, went to bed without disclosing to the appellant wife’s what had happened since the appellant had threatened her of dire consequences if she told anyone. She also did not inform her parents the following day when they got home. Three days later, PW2 went to her school where she was summoned by the Deputy Headteacher who inquired what had transpired on the material day. She disclosed to them and they reported to Malindi Police Station where they were referred to Malindi Sub -county hospital for examinations and treatment. She later learnt that the appellant’s wife is the one that informed her parents. 6. PW2, the complainant’s mother testified that on 15 March 2024 the appellant’s wife, DW2 inquired if the complainant had disclosed anything. She then told her that on 11 March 2024, the complainant went to the bathroom and the appellant went to the toilet at the same time. As she was going to the neighbour’s house, she heard people talking outside the toilet and recognized the appellant’s voice. She went to the toilet where she found the appellant wearing a pant only while the complainant was naked. She asked the appellant why he went inside the toilet while the compliant was there. On hearing that, PW2 informed her husband, they went to the school and talked to the complainant who confessed that the appellant had defiled her, they reported the matter to the police and took her to hospital. 7. PW3 Moses Rimba a clinical officer at Malindi Sub County Hospital testified that the complainant was examined on 15 March 2024 at the hospital after it was reported that she had been defiled. It was established that her hymen was missing leading to the conclusion that there was sexual penetration. He produced the P3 form (exhibit 3), treatment notes (exhibit 2) and birth certificate (exhibit 1). 8. PW4 PC Walter Chuze based at Malindi Police station testified that on 15 March 2024 at 12.24 pm, it was reported by PW2 who was accompanied her husband and PW1 that on the night of 11 March 2024, PW1 was defiled by the appellant. He investigated the case where he established that the appellant and complainant were neighbours. He interviewed the appellant and recorded her statement but could not get her to testify. He subsequently arrested and charged the appellant with the offence. 9. At the close of the prosecution’s case, the court found that a *prima facie* case had been established and placed the appellant in his defence. 10. In defence, the appellant denied committing the offence and testified that on the material day, he went home at about 8.30 - 9.00 pm, found her family seating outside and told them he was unwell. He then went to the toilet where he found the door locked. He stood outside the toilet and switched off the lights so as to signal whoever was inside to get out. His wife, DW2 saw him outside the toilet, asked him what he was doing and he said he was waiting to use the toilet. As they spoke, the door opened and the complainant came out from the toilet and DW2 asked her why she had taken long in the toilet. He entered the toilet and left the two talking. He was subsequently arrested on 5 April 2024 and charged. 11. DW2 Zainabu Sulubu the appellant’s wife’s testimony was that on the material day, the appellant arrived home at 9.00pm which was earlier than usual and said he was unwell. PW2 had gone for a burial and had asked her to watch over her children. The complainant informed her she was going to the bathroom and shortly thereafter, the appellant asked her to get him water for showering. As she went to get charcoal from the neighbour, saw the appellant outside the toilet, asked him what he was doing there, he answered that he wanted to use the toilet before showering. Shortly afterwards, the complainant came out of the toilet and went to their house. During cross examination, she admitted that she recorded a statement at the police station and that she did not know what transpired inside the bathroom. 12. At the close of the trial, the appellant was found guilty of defilement and sentenced to 20 years imprisonment. Aggrieved, he filed the present appeal where he raised the following grounds of appeal: 13. The trial court erred in law and fact by convicting the appellant on the basis of PW1’s evidence which was inconsistent, uncorroborated, contradictory and unreliable. 14. The trial court erred in law and fact by failing to properly evaluate material contradictions by PW1, PW2and DW2’s testimonies. 15. The trial court erred in law and fact by failing to find that the appellant was not properly identified due to the prevailing circumstances. 16. The trial court erred in law and fact by failing to draw negative inference occasioned by the failure of the prosecution to call DW2 as a witness. 17. The trial court erred in law and fact by failing to find that the medical evidence was insufficient and inconclusive to prove penetration. 18. The appellant’s constitutional rights to a fair trial under Article 50 (2) ( c) and (j) were violated by the failure to supply him with witness statements and evidentiary material in advance to enable him prepared for his defence. 19. The trial court erred in law and fact by rejecting his defence without cogent reasons. 20. That the sentence of 20 years imprisonment was excessive, harsh and unjustified. 21. The appellant filed written submissions which they relied on at the hearing of the appeal. He submitted that PW1’s testimony was riddled by inconsistencies and contradictions that fundamentally undermined her credibility. He challenged identification which he contended was solely based on voice recognition. He cited the cases of ***Ndungu Kimani vs Republic (1979) KLR 282*** and ***Choge vs Republic (1985) KLR 1*** to buttress her arguments. 22. He further submitted that contradictions between the evidence of PW1 and DW2 on what transpired on the material night fatally undermined the prosecution’s case and PW1 ‘s credibility. The cases of Joseph ***Ngumbao Nzaro vs Republic (1982) KLR 212*** and ***Sawe vs Reoublic (2003) KLR 364*** were cited. 23. It was further submitted that PW1’s behavior of failing to disclose or report the incident weakened her credibility rendering her unreliable. This raised reasonable doubt which ought to have been applied in favour of the appellant. 24. The appellant argued that the medical evidence did not meet the required threshold to prove penetration as defined in section 2 of the *Sexual Offences Act.* It was contended that PW1 was examined four days after the incident and the examinations revealed that her hymen was missing without any other finding. He argued that based on the current jurisprudence established in the case of ***Mark Oururi Mose vs Republic (2013) eKLR***, that finding was sufficient to prove penetration. 25. The appellant submitted that he was supplied with witness statements, medical reports or any other prosecution documents used in trial against him, thereby violating his constitutional rights under Article 50 (2) (c) and (j). He cited the case of ***Patrick Gilbert Cholmondeley vs Republic (2008) eKLR.*** 26. He contended that his defence was not considered and no reasons were given for rejecting it contrary to section 169 (2) of the *Criminal Procedure Code.* He went on to say that his defence was coherent, consistent and fully corroborated by DW2. He urged that court to allow his appeal, quash the conviction and sentence, and acquit him. 27. The respondent opposed the appeal, stated that they had filed and served their submissions dated 5 May 2026. However, the said submissions were not in the CTS or court file by the time of writing the judgement. ***Analysis and determination*** 1. This being the first appeal, the duty of this court is to examine and 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. See ***Okeno vs Republic [1972] EA 32*** and ***Kiilu & Another v Republic [2005]1 KLR 174***. 2. 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.* 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.* *(2)……………….* *(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.”* 1. The specific elements of the offence of defilement arising from section 8 (1) of the *Sexual Offences Ac*t 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 v Republic, Criminal Appeal No. 72 of 2013***. 2. Drawing from the above, the issues for determination in this appeal are as follows: - 3. Whether the appellant’s constitutional rights to fair trial under Article 50 (2) ( c) and (j) were violated 4. Whether penetration was proved. 5. Whether the Appellant was positively identified. 6. Whether the age of the complainant was proved. 7. Whether the sentence was excessive, harsh and unjustified. ***Whether the appellant’s constitutional rights to fair trial under Article 50 (2) ( c) and (j) were violated*** 1. The appellant submitted that he was supplied with witness statements, medical reports or any other prosecution documents used in trial against him, thereby violating his constitutional rights under Article 50 (2) (c) and (j). He cited the case of ***Patrick Gilbert Cholmondeley vs Republic (2008) eKLR.*** 2. Article 50 of the *Constitution* guarantees fair hearing. This Article cannot be limited by dint of Article 25 of the *Constitution* and forms the foundation upon which all trial’s rest upon. A violation of Article 50 (2) of the ***Constitution*** typically leads a higher court to **quash convictions**, invalidate proceedings, or **exclude tainted evidence**. If the breach is severe enough to compromise the entire trial process, it will result in an **acquittal** or, in limited cases, an order for a **retrial. *See John vs Republic (Cr App No. E036 of 2025) 2022 KEHC 410 (KLR).*** 3. Article 50 (2) (c) and (j) of the *Constitution* provides; “*50* *(1) Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court or, if appropriate, another independent and impartial tribunal or body.* *(2) Every accused person has the right to a fair trial, which includes the right: -* *……………………………………….* *(c) to have adequate time and facilities to prepare a defence;* *………………………………………* *(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;”* 1. The appellant contended that he was not supplied with witness statements, medical reports or any other prosecution documents used in trial against him. The court has examined the record of proceedings before the trial court. It shows that on 23 April 2024, the appellant was supplied with a copy of the charge sheet, copies of three (3) witness statements, P3 form and the lab request form by the prosecuting counsel, Mr Baraka to which he duly acknowledged receipt in court. This was one (1) month before PW1 testified. He was able to actively participate on the hearing and engaged all witnesses in cross examination. He did not raise the issue at any time during hearing before the trial court. The court finds no evidence to support the allegation of violation of constitutional rights. ***Whether there was proof of Penetration*** 1. 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*. “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.* 2. 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 Cr[iminal Appeal No. 35 of 1995](https://kenyalaw.org/akn/ke/judgment/keca/1995/115%22%20%5Ct%20%22_blank)***. 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).*** 1. PW1’s evidence was that on 11 March 2024 at about 9.00pm, the appellant went inside the toilet where she had finished showering, forced his way in, found her naked, pinned her to the ground while covering her mouth, removed his towel and pant, inserted his penis in her vagina and had sex with her. Her testimony was corroborated by DW2, the appellant’s wife whose testimony placed the appellant on the crime scene. 2. PW2 the appellant’s mother testified that she was approached by DW2 on 15 March 2024 who after inquiring if the complainant had told her anything, informed her that on 11 March 2024, she saw the appellant and complainant go inside the toilet at the same time. She went there and found the complaint naked while the appellant was in a pant. 3. PW3 who examined the complainant on 15 March 2024 established that her hymen was missing and based on the history, concluded that there was penetration in her vagina through sexual intercourse. The appellant’s testimony corroborated PW1, PW2 and DW2’s evidence. He confirmed being at the toilet at the same time as the complainant, that he is the one who switched off the lights and although he denied the offence, there was overwhelming evidence against him. Taken in totality, PW1’s evidence was sufficiently corroborated by PW2, DW2, the appellant’s evidence and medical evidence by PW3 leading to the conclusion that there was penetration. 4. The appellant contended that there were inconsistencies in the prosecution’s case. The court has analyzed the evidence on record and did not find any material inconsistencies in the prosecution’s case but rather minor deviations in some instances that did not go to the root or substance of the case. The prosecution witnesses provided a consistent account of events that was corroborated by the evidence. The court finds penetration has been proved beyond reasonable doubt. ***Whether there was proof of age of the victim*** 1. It is of utmost importance to prove the age of the victim in a case of defilement. In ***Hadson Ali Mwachongo vs Republic (2016) eKLR****,* the Court of Appeal held that: *“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”* 1. The age of a victim may be proved in various ways. In ***Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR***, the court stated: *“ ... 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. The complainant testified that she was 13 years old at the time the offence occurred. This was corroborated by PW2 who testified that she was born on 2 August 2010. PW3 produced the complainant’s birth certificate as exhibit 1 which shows that she was born on 2 August 2010 meaning that she was 13 years and 7 months at the time the offence occurred. The appellant did not challenge the authenticity of the birth certificate and the court finds no reason to doubt it. The court finds that age of the complainant was proved beyond any reasonable doubt. ***Whether there was identification of the appellant as the perpetrator*** 1. On the issue of identification, the evidence shows that the complainant and the appellant were neighbours and well known to each other. PW1 testified that the appellant used to visited their house as a neighbour, had heard him severally talking to neighbours and knew his voice. She recognized his voice his voice when he told her to open the toilet door on the material day. DW2 corroborated this by stating that she found the appellant and complainant at the toilet where she engaged the appellant in a conversation. Further, the appellant confirmed he was at the scene together with the complainant. Having analyzed the circumstances and facts of the case, the court finds that the appellant was positively identified by recognition. 2. The appellant contended that the trial court disregarded his defence without offering cogent reasons. The trial court stated as follows in its judgement concerning the appellant’s defence; ***“The court has considered the accused defence that the charges were fabricated against him. The court however, finds the complainant’s testimony consistent and well corroborated. Both the accused and complainant families had a good relationship prior to this incident and in fact it was the accused wife who raised the alarm when she reported what she saw to the complainant’s mother. The accused was well known to the complainant. He had the opportunity to commit the offence. There is no reason whatsoever to fabricate the charges.”*** 1. The trial court did indeed consider the appellant’s evidence in defence, weighed it against the evidence by the prosecution and found that it was not sufficient to dislodge it. This court could not agree more. 2. This court is therefore satisfied that the trial court properly found that the prosecution had proved all ingredients of the offence beyond a reasonable doubt, finds the conviction by the trial court safe and upholds it. ***Whether the sentence was excessive, harsh and unjustified*** 1. The appellant contends that the sentence of 20 years imprisonment is excessive, harsh and unjustified. The appellant was convicted of defilement contrary to section 8 (1) and (3) of the *Sexual Offences Act.* Section 8 (3) of the *Act* provide minimum sentence of 20 years. 2. Sentencing is an exercise of discretion by the trial court and the High Court would not interfere with the sentence imposed unless it finds that it was illegal, unlawful or founded on a wrong principle of law. In ***Bernard Kimani Gacheru Vs. Republic (2002) eKLR*** it was thus held: *“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”* 1. Mandatory minimum sentences under the *Sexual Offences Act* remain lawful. See SC Petition ***E018 of 2023, Republic Vs Joshua Gichuki Mwangi*** and ***Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR.*** The trial court did not have any discretion to award any sentence lower than 20 years. The sentence is lawful and this court finds no reason to interfere with it. 2. The upshot is that the appeal against conviction and sentence lacks merit and is hereby dismissed in its entirety. Dated, signed and delivered virtually at Nairobi on this 15th day of July 2026 **JOSEPH KIPKOECH BIOMDO** **JUDGE**