Sammy v Republic (Criminal Appeal E026 of 2023) [2026] KEHC 5229 (KLR) (14 April 2026) (Judgment)

Sammy v Republic (Criminal Appeal E026 of 2023) [2026] KEHC 5229 (KLR) (14 April 2026) (Judgment) Neutral citation: [2026] KEHC 5229 (KLR) Republic of Kenya In the High Court at Makueni Criminal Appeal E026 of 2023 CJ Kendagor, J April 14, 2026 Between Steven Wambua Sammy Appellant and Republic Respondent (An appeal from the conviction and sentence in the SPM Magistrates Court at Makindu, Sexual Offence Case No. 11 of 2017, Judgment delivered on 28 th February, 2023 by Hon. A. Ndungu, SRM) Judgment 1.The Appellant was charged before the subordinate court with the offence of defilement contrary to Section 8(1) as read with Section 8 (4) of the Sexual Offences Act. 2.The particulars were that on 23ʳᵈ March, 2017 at [particulars Withheld] Village within Kibwezi Sub-County in Makueni County, he intentionally caused penetration with B.W, a child aged 17 years. 3.The prosecution called five (5) witnesses. PW1 testified that she knew the Appellant prior to the incident. She stated that on 25ᵗʰ March, 2015, while attending school games, the Appellant took her away on a bicycle and they went to a bush where he had sexual intercourse with her. She further stated that they remained together thereafter, moved to different locations, and lived together for a period of about two years, during which she became pregnant and gave birth. 4.PW2, a medical doctor, produced the P3 form and treatment notes. He testified that the Complainant was not a virgin and that no physical injuries were noted at the time of examination. 5.PW3 and PW4 testified that the complainant left home for school games on 25ᵗʰ March, 2015 and did not return. They later learnt that she had been seen leaving with the Appellant. She was eventually traced in 2017 after the Appellant was apprehended. 6.PW5, the investigating officer, testified on the steps taken during investigations, including the report of a missing child and attempts to trace the Complainant. 7.At the close of the prosecution case, the trial Court found that a case had been established requiring the Appellant to be placed on his defence. The Appellant elected to remain silent and did not call any witnesses. 8.Upon considering the evidence, the trial Court convicted the Appellant and sentenced him to fifteen (15) years’ imprisonment. Aggrieved by both conviction and sentence, the Appellant preferred this appeal on the following salient grounds:a)That the learned trial magistrate erred in both law and fact in relying on suspicious and fictitious evidence.b)That the learned trial magistrate erred in law and fact in convicting the Appellant on mere allegations and presumptions.c)That the learned trial magistrate failed to properly test the evidence of the prosecution witnesses and to exercise due caution.d)That the learned trial magistrate erred by shifting the burden of proof to the Appellant and by failing to observe that investigations were inadequate.e)That the prosecution failed to prove its case beyond reasonable doubt.f)That the sentence imposed was manifestly harsh, excessive, punitive, and oppressive in the circumstances, and offended the provisions of Article 47 of the Constitution. Submissions: 9.The Appellant, in his written submissions dated 19ᵗʰ March, 2025, challenged both conviction and sentence. He argued that the trial Court relied on what he termed as suspicious, fictitious, and hearsay evidence, and failed to properly evaluate the prosecution case. He contended that the evidence was inconsistent, uncorroborated, and insufficient to sustain a conviction. 10.He further submitted that the prosecution failed to prove its case beyond reasonable doubt and that the burden of proof was improperly shifted onto him. He relied on the principle in Miller v Minister of Pensions (1947) 2 All ER 372 on the standard of proof. 11.He also argued that the evidence of the prosecution witnesses was not properly tested and that the trial Court failed to exercise caution before relying on it. He questioned the adequacy of investigations, contending that no material evidence linked him to the offence and that vital witnesses were not called. 12.The Appellant further asserted that the complaint was motivated by malice arising from a dispute over dowry, maintaining that the Complainant’s parents were aware of their relationship. 13.On sentence, he contended that the term imposed was harsh, excessive, punitive, and oppressive, and urged the Court to quash the conviction and set aside the sentence, or in the alternative, to allow the appeal. 14.The Respondent, in submissions dated 22ⁿᵈ May, 2025, opposed the appeal. It was submitted that the prosecution proved its case beyond reasonable doubt through consistent and corroborated evidence of the Complainant and supporting witnesses. 15.The Respondent submitted that the age of the Complainant was proved by the birth certificate, penetration was established through both the Complainant’s testimony and medical evidence, and the Appellant was positively identified as the perpetrator. 16.It was further submitted that the Appellant was afforded an opportunity to challenge the prosecution case but elected to remain silent, and therefore could not fault the trial Court. 17.On the complaint regarding investigations and burden of proof, the Respondent maintained that investigations were properly conducted and that the burden of proof remained with the prosecution throughout. 18.On sentence, it was submitted that the term imposed was lawful, being the statutory minimum under Section 8 (4) of the Sexual Offences Act, and that there was no basis for interference. 19.The Respondent urged the Court to dismiss the appeal and uphold both conviction and sentence. Analysis & Determination: 20.The issues for determination are as follows:a)Whether the prosecution proved the charge of defilement beyond reasonable doubt.b)Whether the sentence imposed was lawful and warranted. 21.This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify, and must therefore give due allowance for that. This duty was succinctly stated in Okeno v Republic [1972] EA 32, where the Court of Appeal held:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination… and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.” 22.Let me begin by saying that it is plainly discernible from his written submissions dated 19ᵗʰ March, 2025, that the Appellant asserted that the Complainant’s parents were aware of his relationship with PW1, the very basis of the charge before the trial Court, and that they treated it as a marriage, and that a dispute arose after he failed to pay dowry. 23.This phenomenon is not new and, regrettably, reflects a deep-seated societal issue where grown men, and in some instances women, purport to engage in relationships with minors under the guise of affection or so-called “boyfriend” and “girlfriend” arrangements. Such conduct is unlawful and must be firmly condemned, as it exposes minors to lasting harm. 24.The law, and indeed morality, does not envision a scenario where an adult can cloak a relationship with a child under the pretext of mutual affection or consent. Children are presumed by law to lack the capacity to make such decisions, and any such purported relationship is nothing but exploitation. It is for this reason that the Sexual Offences Act imposes strict liability on adults who engage in such conduct, regardless of any purported consent or willingness on the part of the child. 25.It behoves the Appellant, as the adult in this scenario, to steer clear of any involvement with a child, regardless of any purported affection or voluntary association on her part. The law places the burden squarely on adults to avoid such conduct, and any failure to do so can only attract criminal liability. 26.Were the elements of the offence proved, then? It is now settled that for the offence of defilement to be established, the prosecution must prove the age of the child, proof of penetration, and the identity of the perpetrator. 27.On the question of age, PW1 testified that she was born on 12ᵗʰ February, 2000. PW3 produced a birth certificate confirming that date of birth. PW2 also testified that the estimated age of PW1 at the time of examination was 17 years. I am satisfied that the age of the child was proved. 28.On penetration, PW1 testified that the Appellant engaged in sexual intercourse with her. The medical evidence produced by PW2 indicated that PW1 was not a virgin, though no physical injuries were noted. 29.Further, the evidence shows that PW1 returned home in 2017 with a child whom she had given birth to during the period she had been away. PW3 and PW4 confirmed this fact, and PW4 testified that upon arrest, the Appellant admitted that they had lived together and that PW1 became pregnant and gave birth during that period. 30.On identification, PW1 testified that she knew the Appellant prior to the incident. Her evidence was therefore one of recognition. She also testified that she remained with the Appellant for an extended period, living with him and moving to different locations. 31.This account was supported by PW3 and PW4, who testified that PW1 left home on 25ᵗʰ March, 2015 and did not return until 2017. PW4 further testified that upon arrest, the Appellant provided contact information for PW1, following which she was contacted and returned. 32.I have also considered the Appellant’s complaints regarding inconsistencies, alleged hearsay, and insufficiency of investigations. Upon re-evaluating the record, I find that the evidence of PW1 was consistent on material particulars. The evidence of PW3 and PW4 corroborated her disappearance and eventual tracing, while PW5 outlined the investigative steps taken. 33.I am therefore satisfied that the prosecution proved the essential elements of the offence beyond reasonable doubt. 34.On sentence, the appellant was sentenced to 15 years, the minimum prescribed under Section 8 (4) of the Sexual Offences Act. Disposition: 35.In the end, I find no merit in this appeal. Accordingly:a)The appeal against conviction is hereby dismissed.b)The conviction is upheld.c)The appeal against sentence is hereby dismissed.d)The sentence of fifteen (15) years’ imprisonment imposed by the trial Court is upheld. 36.It is so ordered. DATED, DELIVERED AND SIGNED AT NAIROBI THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM ON THIS 14TH DAY OF APRIL, 2026..........................................HON. C. KENDAGORJUDGEIn the presence of:Court Assistant: BerylAppellant – presentMs. Musango, ODPP