https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11465

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CRIMINAL APPEAL NO. E075 OF 2025** **AMANI KADENGE THOYA.………………….……….APPELLANT** **VERSUS** **REPUBLIC……………………………………………..…..RESPONDENT** *Being an appeal from the original conviction and sentence by Hon. L. N.Wasige, Principal Magistrate in Kaloleni Senior Principal Magistrate’s Court Sexual Offence Case No.E001 of 2021 delivered on 31/1/2022)* **J U D G M E N T** 1. The Appellant was convicted for the offence of defilement contrary to Section 8 (1) as read with section 8(3) of the Sexual Offences Act No.4 of 2006. The particulars of the offence were on diverse dates between that on 26th November 2020 and 3rd January 2021 at (name withheld) village in Kaloleni sub county within Kilifi County, he intentionally and unlawfully caused his penis to penetrate the vagina of K.S. (herein referred to as the complainant), a child aged 14 years. 2. The Appellant was sentenced to serve 20 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. 3. The grounds of appeal are that; 4. That the learned trial magistrate erred in law and fact by failing to admit the Appellant’s defense raised under Section 8(1) as read with 8(5) of the Sexual Offences Act No. 3 of 2006. 5. That the learned trial magistrate erred in law and fact by failing to lay out the effect of the Appellant’s mitigation on his sentence during sentencing. 6. That the learned trial magistrate erred in law during sentencing by stating that Section 8(1) as read with 8(3) of the Sexual Offences Act does not provide discretion while other superior courts have held to the contrary. 7. That the learned trial magistrate erred in law and fact by failing to take into account the period the Appellant had spent in remand custody contrary to section 333(2) of the Criminal Procedure Code. **Case for prosecution** 1. The evidence of the complainant PW1 is that she was at the material time aged 14 years. That she and Appellant hail from the same locality. That sometimes in the month of March 2020 she met the Appellant who seduced her and they became friends. She started to visit him at his house in the evenings. That on one of the evenings she engaged in sex with him. It was during the school holiday. Later her mother and her brother learnt of the affair and reported to the police. She was taken to hospital. On the first occasion she was examined and found not to be pregnant. On the second occasion she was examined and found to be pregnant. She told her mother that it is the Appellant who was responsible. 2. A brother to the victim PW3 testified that the Appellant is the younger brother to his father and is therefore an uncle to him and to the victim. That his home is about a kilometer from their home. That sometimes in the month of September 2020 he received information from a fellow villager that the victim was having an intimate affair with the Appellant. He inquired from the appellant and he denied it. He informed his mother PW2 who investigated and found the information to be true. They reported to the police. The victim was taken to hospital two times and on the second occasion she was found to be pregnant. 3. The mother to the victim PW2 testified that in the month of November 2020 she was away from home as she had a patient at Mariakani sub county hospital. That she was informed by her son PW2 that the complainant had spent some nights away from home. She went home and she did not find the complainant. The complainant returned home on the following day. She lied to her where she had been. She decided to investigate. In one of the nights, the complainant left home secretly and she followed her. She went upto the house of the Appellant. She confronted her. She said that the Appellant was her friend and she will start living with him. She refused to accompany her home and threatened to commit suicide if she took her home by force. She, PW2, reported the matter at Kaloleni police station. The complainant was taken to hospital and was examined. Pregnancy results were negative. She continued her affair with the Appellant. She escaped from home and PW2 found her at the house of the Appellant. She reported to the police again. The appellant was arrested. The victim was taken to hospital and was found pregnant. She said that it is the Appellant who had made her pregnant. 4. The case was investigated by PC Otieno PW4 of Kaloleni police station. It was his evidence that the mother to the victim PW2 and a brother to the victim PW3 reported at the police station that the victim was having a sexual relationship with the Appellant. He took the complainant to hospital where she was examined and found to have been defiled. Her P3 form was filled. He did not get the Appellant. He later received a report that the Appellant was continuing his sexual relationship with the complaint. On 8/4/2021 he arrested the Appellant who was with the complainant in his house at night. He took the victim to hospital where she was examined and found to be 6 weeks pregnant. A second P3 form was filled. PW 4 obtained her birth certificate that indicated that she was born on 24/12/2006, thereby placing her age at 14 years. He charged the appellant with the offence. 5. A clinical officer at Mariakani sub county hospital PW6 testified that he examined the complainant on 2/12/2020 and found her with a normal external genitalia and a missing hymen. A laboratory examination returned negative results. That on 11/1/2021 the complainant was taken back to the hospital and upon examination she was found pregnant. A scan was done that showed that she was 6 weeks pregnant. 6. During the hearing the clinical officer PW6 produced the treatment notes, both P3 forms and the scan report as exhibits, P.Exh.2, 3, 4 and 5 respectively. 7. The testimony of the government analyst at Mombasa government laboratory PW5 was that on 17/9/2021, the victim PW1, the Appellant and a baby born to the victim were escorted to their laboratory by PC Elvis Otieno. He PW5 took buccal swabs from them. He generated DNA profiles from the buccal swabs and formed the opinion that there was 99.99 chances that the Appellant was the father to the baby born to the victim herein. He prepared a DNA report to that end. During the hearing he produced his report as exhibit, P.Exh.6 **Defence case** 1. When placed to his defence the Appellant stated in a sworn statement that he was aged 26 years. That he was a casual employee. That The complainant was known to him as they live in the same village. That they are not related. That the victim herein was his friend. That she would visit him at his house. She did so severally but they only engaged in sex once. He had met her at a party in March 2020 and they agreed to be lovers. That he did not know she was under 18 years when he met her. That on 18/1/2021 he was at his lace of work when he was arrested by 5 police men. He did not know the reason for the arrest. He was taken to Kaloleni police station and charged. He said in cross-examination that he did not do anything to confirm whether the complainant was a child or not. **Submissions** 1. The appellant submitted that the act of the complainant sneaking to his house at night, lying to her mother as to where she had been and threatening to commit suicide shows that the complainant was behaving and carrying herself as an adult and not like a child. That he could not tell that she was a child from the way she dressed. 2. The appellant submitted that the trial court wrongly interpreted section 8(3) of the Sexual Offences Act to hold that it did not have discretion to impose a lesser sentence than stipulated in the Act. 3. It was stipulated that the trial court when sentencing him did not consider the time spent in custody. 4. The respondent on the other hand submitted that all the ingredients of the offence of prove of the defilement of age, penetration and identification of the offender were proved beyond reasonable doubt. 5. On whether the trial court erred in failing to consider the Appellant`s defence, the Respondent submitted that the Appellant confirmed that the victim was his friend as they come from the same village. That he confirmed that he had sex with the victim and there was a DNA report that he was the biological father to the victim`s baby. 6. It was submitted that the sentence for defiling a child of the age of 14 years is 20 years imprisonment. That the Supreme Court in the case of **Francis Muruatetu & another v Katiba Institute & others (amicus curiae) (2021) eKLR** clarified that the decision did not invalidate mandatory minimum sentences.t 7. The respondent conceded that the trial court erred in not considering the time spent in custody awaiting trial. **Analysis and determination** 1. This being a first appeal, this court has a duty to revisit the evidence that was adduced before the trial court, re-evaluate and analyze it and come to its own conclusion. Further, the court has to bear in mind that unlike the trial court, it did not have the benefit of seeing the demeanor of the witnesses and the Appellant during the trial and can therefore only rely on the evidence that is on record. See **Okeno v R (1972) EA 32** 2. I have considered the grounds of appeal, the respective submissions, and the record of the trial court. The appeal is based on the grounds that the trial court failed to consider the Appellant`s defence raised pursuant to section 8(5) of the Sexual Offences Act; that the trial court erred in stating that he did not have discretion in sentencing over the matter; that the court failed to consider his mitigation and that the court failed to take into account the time spent in custody. 3. Section 8(5) of the Sexual Offences Act provides that it is a defence for a charge of defilement where the accused person proves that the child deceived the accused person into believing that the child was over the age of 18 years at the time of the alleged commission of the offence and that the accused reasonably believed that the child was over the age of 18 years. 4. Sub section (6) provides that the believe referred to in subsection 5(b) is to be determined having regard to all circumstances, including any steps the accused person took to ascertain the age of the complainant. 5. Subsection (8) provides that the provisions of sub section (5) shall not apply if the accused is related to the child within the prohibited degrees of blood or affinity. 6. The mother to the victim PW2 testified that the Appellant is the younger brother to her husband and hence he is her brother-in-law. The brother to the complainant PW3 testified that the Appellant is his uncle and thus the complainant is a niece to the Appellant. The Appellant stated in his evidence that he lives in the same village with the complainant. It is not thereby possible that he did not know of his relationship with the complainant. The complainant being his niece, their relationship came within the prohibited degrees of affinity under section 20(1) of the Sexual Offences Act which creates the offence of incest and makes it an offence to have sex with a niece. Consequently, the defence of the Appellant under section 8(5) was not applicable in the circumstances. 7. Besides that, the Appellant continued to engage in his sexual affair with the complainant even after the mother to the complainant reported the matter to the police. The Appellant admitted that he did not do anything to ascertain the age of the complainant even after the complaint was raised. 8. The Appellant said that he did not think that the complainant was under the age of 18 years due to her dressing and that he could not tell whether she was an adult or not. He did not explain how the dressing of the complainant deceived him into believing that she was an adult. The complainant was at the material time in primary school. Being related to her, it is not possible that he did not know that she was in primary school. I find no evidence that the complainant deceived him into believing that she was over the age of 18 years. I do not find any merit in the Appellant`s defence. 9. The appellant argued that the trial court had discretion in sentencing him and that the court failed to exercise that discretion. 10. The Appellant was convicted of the offence of defilement contrary to section 8(3) of the Sexual offences Act that provides for a minimum sentence of 20 years for defiling a child of the age of 14 years. A birth certificate was produced that showed that the complainant was at the material time aged 14 years. 11. The Supreme Court in the case of **Republic vs Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34 (KLR) (delivered on 12th July, 2024)** decreed that the mandatory minimum sentences in the Sexual Offences Act are not unconstitutional and that trial courts have no discretion to impose anything below the minimum sentences as set in section 8 of the Sexual Offences Act. In view of this the argument by the Appellant does not hold any water. 12. The Appellant further argued that the trial court did not consider the time spent in custody. 13. I have perused the proceedings of the lower court and noted that the Appellant`s bond was cancelled on 23/4/2021 and he remained in custody until when he was sentenced on 31/1/2022. He was therefore in custody for a period of more than 9 months before he was sentenced. Section 333(2) of the Criminal Procedure Code requires a sentencing court when sentencing an accused who has been in custody awaiting trial to consider such time spent in custody when imposing the sentence. The provisions of the section are mandatory. The trial court did not comply with the provisions of the section. I therefore order that the period spent in custody between 24/4/2021 and 31/1/2022 be discounted from the Appellant`s sentence of 20 years. 14. Save for the order relating to time spent in custody, I do not find any merit in the appeal and the same is dismissed. **Delivered, dated and signed at GARSEN this 17th day of July, 2026.** **J.N. NJAGI** **JUDGE** **In the presence of:** Mr. Oluoch for Respondent Appellant – present virtually at G.K. Prison Malindi Court Assistant - Farhan