https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1502

Kazungu v Republic (Criminal Appeal E013 of 2024) [2026] KECA 1502 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1502 (KLR) Republic of Kenya In the Court of Appeal at Malindi Criminal Appeal E013 of 2024 F Tuiyott, KI Laibuta & GW Ngenye-Macharia, JJA July 24, 2026 Between Shadrack Katana Kazungu Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Malindi (Githinji, J.) delivered on 19th September 2023 in Criminal Appeal No. E029 of 2021) Judgment 1.Shadrack Katana Kazungu (the appellant) was charged in the Senior Principal Magistrate’s Court’s at Kilifi in Sexual Offence Case No. 75 of 2020 with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. 2.The particulars of the offence were that, on diverse dates between 1st January 2019 and 2nd September 2020 at [Particulars withheld] area within Kilifi County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of SMC, a child aged 16 years. 3.In the alternative, the appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(A) of the Sexual Offences Act in that, between the afore-stated dates and at the same place, he intentionally and unlawfully touched the vagina of SMC, a child aged 16 years with his penis. 4.In proof of its case, the prosecution called four witnesses. In summary, and according to PW1, SMC, the complainant, she developed a friendship with the appellant which led to both of them having sexual relations. PW1 went to the appellant’s home on two different occasions where they engaged in sex on 1st January 2019 and on 2nd September 2020. She testified that she had sex with the appellant on her own volition; that she was in a relationship with the appellant for about 4 years; and that it was her mother, PW2, SZ, who caused the appellant to be arrested. 5.PW2 confirmed that indeed she is the one who reported the matter to the police when, on 2nd September 2020 at 10.00 p.m., she woke up only to find that the complainant was missing from the house; that, when the complainant returned home, she told her that she had been with the appellant, who was their neighbour; and that that is when she reported the incident to Kilifi Police Station. Thereafter, PW1 was referred to Kilifi County Hospital where she was examined. 6.PW1 was examined by a Dr. Sidi Dzitso, but who, as at the time of the trial, had left the hospital. The PRC dated 3rd September 2020 and the Medical Examination Report (P3 form) were therefore produced in evidence by PW3, Dr. Ruth Nyangi on her behalf. Both medical reports showed that PW1’s hymen was broken and that she had a whitish discharge in her vagina. 7.The case was investigated by PC Francis Tanui (PW4) of Kilifi Police Station manning the Gender Based Violence Desk, and who basically summed up the prosecution’s case. In addition, he produced the complainant’s Birth Certificate into evidence. 8.At the close of the prosecution case, the trial court found that a prima facie case had been established and, accordingly, put the appellant on his defence. He gave a sworn statement of defence by which he stated that the complainant went to his home at Plantation area seeking forgiveness after he had ambushed her with another boy; that they did not agree and, as a consequence, he sent her away; that this was the second time that the complainant had escaped at night from her home; and that, on her way home, she met with her mother. The appellant took issue with the fact that the complainant testified that she was defiled once, but that the doctor stated that she had had sex severally. 9.It was the appellant’s further defence that he cast doubt on the complainant’s age because she had repeated severally while in primary school and, secondly, because her boyfriend was his friend; and that, according to her boyfriend, PW1’s mother had requested him to allow PW1 who was then aged 18 years to first complete school because she was one year behind him. The appellant added that PW1’s boyfriend was then aged 19 years. 10.Upon conclusion of the trial, the learned Magistrate (S. D. Sitati, RM) held that the prosecution had proved all the ingredients of the offence of defilement, namely penetration, the age of the complainant and positive identification of the appellant as the culprit. As regards penetration, the trial court held that it was proved by the oral evidence of the complainant and the medical evidence produced by PW3, namely the PRC and P3 forms, which confirmed that her hymen was broken; that her age was proved by the Birth Certificate, which showed that the complainant was born on 26th October 2003 and, therefore, was aged 16 years as at the time of the incidence. As to identification, the trial court held that the complainant candidly stated that she knew the appellant, who was their neighbour, and that, by her age, she was capable of knowing with whom she had had sex; and that, in any case, the appellant in his sworn defence confirmed that he was with the complainant, but on a different agenda, being that he had caught her with another boyfriend, and that she went to him to ask for forgiveness. 11.The learned trial Magistrate dismissed the appellant’s defence that the complainant was not pregnant, terming such an assertion as of no help to him as pregnancy is not an element required to be established in the offence of defilement. Be that as it may, the learned Magistrate observed that the PRC form confirmed that the complainant was pregnant upon examination. 12.In the end, the appellant was found guilty of the main count of defilement and sentenced to serve 15 years imprisonment. 13.Aggrieved, the appellant preferred an appeal to the High Court at Malindi, being Criminal Appeal No. E029 of 2021. He raised the grounds that the age of the victim was not properly established; that penetration was not proved due to lack of spermatozoa in the complainant’s vagina; that DNA was not conducted to establish who impregnated the victim; that the victim delayed in reporting the alleged defilement to her mother; that the minimum sentence under Section 8(4) of the Sexual Offences Act is discriminatory and unconstitutional; and that the matter was not properly investigated. 14.In his Judgement (Githinji, J. delivered on 19th September 2023, the learned Judge held that all the three ingredients of the offence of defilement, namely the age of the victim, penetration and identification of the perpetrator were established. In making a finding on the defence that the appellant was not the complainant’s only boyfriend, it was held that it mattered not whether someone else may have committed a similar offence; and that what was crucial was whether the appellant himself committed the offence with which he was charged. It was held that going by the appellant’s defence, the complainant could only have gone to seek forgiveness in the appellant’s home since she was caught in another relationship, and that that could not have happened if the appellant and the complainant were not in a relationship. Hence, the appellant had a sexual relationship with the complainant in which he penetrated her. The learned Judge also concluded that the appellant was well known to the complainant. The Judge was satisfied that the prosecution proved its case beyond reasonable doubt and upheld the conviction. 15.As to the issue of sentence, the learned Judge held that the 15 years imprisonment meted out was the minimum provided by law for the offence of defilement committed against a victim of 16 years old, and the same was equally upheld. Accordingly, the appeal was dismissed in its entirety. 16.Further dissatisfied, the appellant has proffered this second and perhaps the last appeal. In a home-made undated Memorandum of Appeal, he raised 9 grounds of appeal, but which, in his written submissions dated 20th January 2025, he condensed into three grounds, namely that the prosecution case was marred with contradictions and inconsistencies with respect to proof of age of the victim, penetration and identification of the appellant; that the appellant’s defence was never considered; and that the learned Judge erred in upholding the sentence as meted out by the trial court. 17.When we heard this appeal on 22nd October 2025, learned counsel Mr. Kizambo Mwadilo was present for the appellant while learned State Counsel Mr. Kariuki appeared for the respondent. Both parties opted to rely on their respective parties’ written submissions. As at the date of writing this Judgment, only the appellant’s submissions were on record. Almost five months after hearing the appeal, the respondent had not supplied to us with its submissions, which Mr. Kariuki stated were dated and filed on 21st October 2025. We made efforts to call for them from the registry, the latest call by email being on 15th March 2026 to no avail. The Judgment is therefore written without consideration of the respondent’s submissions. 18.In his submissions dated 20th January 2025, the appellant contended that, if he had defiled the victim on 1st January 2020 as alleged, she (the complainant) would have been pregnant and given birth by 2nd September 2020; further that, if the complainant would have been defiled on 2nd September 2020 as alleged, there would have been presence of spermatozoa by the time she was being examined; that it is impossible for a medical report to show positive pregnancy result 4 days after having sex; and that, accordingly, the two courts below failed to consider these glaring inconsistencies, which, if they were considered, would have vindicated him. 19.The appellant also contended that the age of the complainant as indicated in the PRC and P3 forms to be 17 years contradicted the age that was indicated in the Birth Certificate, being 16 years. To the appellant, the two courts below erred in upholding the Birth Certificate as sufficient proof of age of the victim without having regard to the inconsistencies in the prosecution case in this regard. 20.While faulting the trial court for convicting him, and the first appellate court in upholding the conviction, the appellant submitted that the two courts failed to take into consideration the fact that he and the complainant were in a love relationship; that, furthermore, the complainant had testified that she had been sexually active two years prior to the date of the offence; that she was in the relationship with him (the appellant) willingly; and that the two courts, on this score, should have vindicated him. 21.On the issue of sentence, the appellant submitted that the mandatory minimum sentence of 15 years imprisonment meted out on him was unconstitutional and contrary to Article 28 of the Constitution as was held by the High Court in Maingi & 5 Others vs. Director of Public Prosecution & Another (2022) KEHC 13118 (KLR). The appellant also referred to the decision of this Court in Wambui vs. Republic (2019) KECA 906 (KLR) where the Court examined the criminalization of sexual conduct among children below the age of 18 years; that the Court observed that, inasmuch as victims and culprits may be below the age of majority, more so from the age of 16 years onwards, they may be possessed of sufficient intelligence to make discretionary and informed decisions on whether to engage in sexual activities; and that, on this ground, the Court quashed the conviction, set aside the sentence and set the appellant free. The appellant contended that he had been in a relationship with the complainant who testified that she had been sexually active since the year 2018 while the alleged defilement took place in the year 2020; and that, since the complainant had engaged in the relationship voluntarily, this Court ought to set him at liberty. 22.The appellant thus prayed that the appeal be allowed in its entirety. 23.This is a second appeal and, by dint of Section 362(1)(a) of the Criminal Procedure Code, this Court concerns itself with matters of law only, the issues of fact having been settled in the two courts below. The Court explained its mandate in a second appeal as follows in Dzombo Mataza vs. Republic (2014) KECA 831 (KLR):“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court...By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 24.We have carefully considered the record of appeal, the appellant’s written submissions and the authorities cited. The two issues that fall for our determination are: whether the prosecution discharged its burden of proving the offence of defilement to the required standard; and whether the sentence meted out on the appellant was lawful and proper. 25.In an offence of defilement, the prosecution is obligated to establish the fact of the age of the victim, penetration and positive identification of the perpetrator. It is also trite law that pursuant to the proviso to Section 124 of the Evidence Act, a court can convict an accused person solely on the basis of uncorroborated evidence of the complainant as long as it is convinced that the minor victim was speaking the truth. The proviso states as follows:Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth. 26.On the issue of the complainant’s age, the appellant argued that the prosecution’s evidence was inconsistent and contradictory. The appellant took issue with the fact that the PRC form indicated that the complainant was 17 years old as at the time of examination on 3rd September 2020, whereas the Birth Certificate showed that she was then aged 16 years. In Kennedy Mavindu Kyengo vs. Republic (2019) KECA 1024 (KLR), this Court referred to the decision of Kaingu Elias Kasomo vs. Republic in Malindi Criminal Appeal No. 504 of 2010 (unreported) where the Court acknowledged that age may be established in many ways thus:“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved in 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 upon conviction will be dependent on the age of the victim.” 27.In the case of Francis Omuromi vs. Uganda Court of Appeal Criminal Appeal No. 2 of 2000, it was held that:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….” 28.In this instance, the two courts below took the Birth Certificate to be sufficient proof of the age of PW1. We have scrutinized it; it was issued on 18th August 2015, and it indicates that the complainant was born on 26th October 2003. The alleged offence as per the charge sheet took place between 1st January 2019 and 2nd September 2020. It therefore means that PW1 was between the age of 16 and 17 years. Hence, it cannot be said that the PRC form was incorrect in indicating that the complainant was 17 years old.We also take note of the fact that the P3 form accorded with the Birth Certificate as it indicated the complainant’s age as 16 years. Our view is that, since there was documentary evidence in the form of a Birth Certificate, which was the first in time to be issued, no better evidence would have been considered as sufficient proof of the age of the victim. 29.That aside, even if it was to be assumed that the complainant was 17 years old, no prejudice has so far been occasioned to the appellant. This is because, in an offence of defilement, the sentence is determined by the age of the victim. Section 8(4) of the Sexual Offence Act, which determines the sentence and with which the appellant was charged reads: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. 30.Therefore, whether or not the complainant was 16 or 17 years old, is a distinction without a difference in the circumstances of this case. We find no fault in the two courts below arriving at a factual finding that the complainant was 16 years old, and that the Birth Certificate was sufficient proof of her age. The appellant’s contention that the age of the complainant was not proved thus lacks merit. 31.Turning to the issue of penetration, in her testimony the complainant stated that she was in a relationship with the appellant. The appellant confirmed that the complainant was at his home but on a different mission, and that he advised her to go back home. In this appeal, the appellant also admits that he was in a relationship with the complainant. It is trite law that a minor does not have the capacity to consent to sex. Indeed, consent or lack of it is not a prerequisite to proof of defilement. Section 4 (2) of the Sexual Offences Act provides:For the purposes of this Act, a person consents if he or she agrees by choice, and has the freedom and capacity to make that choice. 32.In this instance, the complainant was a minor as at the time when the offence was committed and, therefore, she did not have the capacity to consent. It matters not that there was conflicting evidence given by the complaint and her mother as regards the age of the complainant. Of paramount importance is the fact that she was a minor at time of the commission of the offence, and she thus lacked the capacity to consent. Furthermore, the appellant knew that the complainant was a student, but went ahead and took advantage of her vulnerability. Crucially, the medical reports confirmed that the complainant had a broken hymen, which was opined to be as a result of penetration. We thus hold, just as the two courts below did, that penetration was established beyond reasonable doubt, and we have no reason upon which we should interfere with concurrent findings of fact by the two courts. 33.As to identification of the appellant, PW2 testified that when she woke up at 10.00 p.m., she found that the complainant was not at home. When the complainant appeared, she stated that she was from the appellant’s home. PW2 further testified that the appellant was their neighbour. PW1, on her part, testified that she had known the appellant for quite some time, and that their relationship blossomed into sexual acts. The appellant indeed confirmed that the complainant was with him on the night of 2nd September 2020 when they had an argument over the complainant’s unfaithfulness. Hence, the identification of the appellant was by way of recognition which is more assuring and satisfactory as was held by Madan. JA. in Anjononi and Others vs. The Republic [1980] KLR in the following words:“……This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 34.Further, in Lesarau vs. R, 1988 KLR 783, this Court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name. The complainant recognized the appellant as the perpetrator by the name Shadrack, whom she said asked her to be his girlfriend. 35.We accordingly find that the prosecution proved the offence of defilement beyond reasonable doubt. 36.As regards the sentence, Section 8 (4) of the Sexual Offences Act provides that a person who is found guilty of the offence of defilement of 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. The appellant argues that the mandatory minimum nature of the sentence is unconstitutional. 37.However, the arguments surrounding sentencing under the Sexual Offences Act are now well settled. The Supreme Court in Republic vs. Manyeso (2025) KESC 16 (KLR) affirmed that its earlier decision in Muruatetu & Another vs. Republic; Katiba Institute & 5 others (Amicus Curiae) (2021) KESC 31 (KLR) did not invalidate mandatory or minimum mandatory sentences as provided under the Penal Code, the Sexual Offences Act, or any other statute. 38.In Ngao vs. Republic (2021) KECA 154 (KLR), this Court observed as much in finding that:“Regarding the issue of exercise of discretion in sentencing, on 6th July 2021 the Supreme Court in Francis Karioko Muruatetu and Another vs Republic [2021] eKLR gave some guidelines to the effect that the Muruatetu case cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the Constitution. The implication thereof is that upon conviction, courts must pass the mandatory sentences that are prescribed under the Sexual Offences Act. We have already stated that the appellant ought to have been convicted for defilement, in which event he would have been sentenced to a jail term of not less than fifteen years as prescribed under section 8 (4) of the Sexual Offences Act.” 39.We find no reasons upon which to fault the concurrent finding of fact of the two courts below as regards the sentence that was meted out on the appellant. The same was both lawful and proper, and we uphold it. 40.In conclusion, we find that the appeal is devoid of merit and is hereby dismissed in its entirety. We uphold the Judgment of the High Court at Malindi (Githinji, J.) dated and delivered on 19th September 2023.Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.F. TUIYOTT……………………………JUDGE OF APPEALDR. K. I. LAIBUTA, CArb, FCIArb……………………………JUDGE OF APPEALF. W. NGENYE-MACHARIA……………………………JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR