https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6239

Waladi v Republic (Criminal Appeal E031 of 2024) [2026] KEHC 6239 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6239 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E031 of 2024 JN Njagi, J May 8, 2026 Between Hamadi Ahmed Waladi Appellant and Republic Respondent (Being an appeal from original conviction and sentence by Hon. Onalo J. K. Olga, SRM in Malindi Chief Magistrate’s Court Sexual Offence Case No. E064 of 2024 delivered on 22/7/2024) Judgment 1.The appellant was convicted of the offence of defilement contrary to section 8(1) as read with Section 8(4) of the Sexual Offences Act No.3 of 2006 and sentenced to serve 9 years imprisonment. The particulars of the offence being that on the 6th day of November, 2018 at (name withheld) within Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of RNY (herein referred to as the complainant), a child aged 16 years. 2.The Appellant was aggrieved by the conviction and the sentence of the trial court and lodged the instant appeal on the following grounds:1.That the learned trial magistrate erred both in law and fact by misdirecting himself on the provisions of Section 36(1) of the Sexual Offices Act.2.That the learned trial magistrate erred in law and fact by failing to find that the prosecution did not discharge its burden of proof to the legal standard as required by law.3.That the learned trial magistrate erred both in law and in facts in failing to consider the Appellant’s defence. 3.The prosecution called 4 witnesses in the case while the Appellant defended himself and called 2 witnesses. Prosecution’s case. 4.The case for the prosecution was that the complainant was at the material time a form two Secondary school student aged 17 years. That she had known the appellant since November 2017 when she met him at Jacaranda beach. That he started to seduce her but she informed him that she was in school. He was not daunted and he continued to seduce her whenever she would go to the beach. 2018. 5.That on 6th November 2018 at 4pm, the complainant left her home to fetch water. On the way she met the Appellant riding a motor cycle. He stopped, got hold of her and pulled her to the nearby bushes. He removed her clothes and removed his pair of shorts. He dropped her down and had penetrative sex with her. After he finished, he dressed up and warned her not to tell anybody of what had taken place. He further told her that in case she got pregnant to look for him. He went away. The complainant dressed up. She fetched water and went home. She did not disclose the incident to anybody. Later in the month of April 2019 she realized that she was pregnant. She told her mother PW2 that it is the Appellant who was responsible. Her mother took her to Marie Stopes where a scan confirmed that she was 5 months and 2 weeks pregnant. They made a report at Watamu police station. Further examination was done at Malindi sub-county hospital. She gave birth prematurely on 10/6/2019. The appellant was arrested on 9/6/2019. 6.The complainant’s mother PW2 testified that her daughter reported to her that she had a running stomach. She bought her medicine but she continued to complain of pain. That she later found out that she was pregnant. She later informed her that it was the appellant who was responsible. They reported the matter at Watamu police station. 7.A doctor at Malindi Sub County Hospital PW4 told the court he completed the P3 form of the complainant on 8/5/2019 at Malindi Sub County Hospital. She complained to have been defiled by a person known to her. She was at the time 22 weeks pregnant. His conclusion was that there was vaginal penetration on the complainant. 8.The case was investigated by PC PC Selinna Wafula PW3 of Watamu police station. It was her evidence that the matter was reported at the station on 7/5/2019 by the complainant’s mother in the company of the complainant. She issued a P3 form to the complainant. She arrested the Appellant and charged him with the offence. During the hearing of the case in court the doctor PW4 produced the complainant`s the P3 form, birth notification card, lab request and report and obstetric scan as exhibits, P.Exh. 2 – 5 respectively. Defence Case 9.In his defence, the Appellant stated in a sworn statement that he was a fisherman. That every year they go to Lamu for fishing of lobster. That on 6/11/2018 he was at Lamu where he had travelled on 4/11/2018 on a fishing mission. He stayed there for 2 weeks and returned to Jacaranda on 17/11/2018. Therefore, that on the day of the alleged incident he was not there. He denied committing the offence. It was his further evidence that the complainant and her mother were known to him as they were neighbors. 10.DW2 said that he lives in Jacaranda and that he is also a fisherman. That on 4/11/2018 the appellant left for Lamu for work. He escorted him as he was leaving with fishing equipment and left him in the boat. That he came back on 17/11/2018. 11.DW3 told the court that the charges against the appellant were untrue. That on 4/11/2018 he was holding a wedding for his daughter. That the Appellant had promised to attend. That he picked him on 4/11/2018 at Forodhani in Lamu. That after the wedding he left to go fishing. He went back after 11 days. He slept at his place and on the following day he escorted him to travel back home. 12.The appeal was canvassed by way of written submissions. Appellant`s submissions 13.The appellant submitted that the complainant did not present herself as a credible witness as her evidence was rife with inconsistencies, contradictions and omissions thereby rendering it unsafe for the purpose of sustaining a conviction. The appellant took issue with the gestation period of the complainant’s pregnancy suggesting that the trial court ought to have come up with a finding that the matter was not proved beyond reasonable doubt as there was doubt as to who defiled her. 14.He submitted that when a witness is found to be dishonest or unreliable in material particulars, the entire testimony becomes suspect and unsafe to act upon. He submitted that the burden of proving the paternity of the child rested on the prosecution and it did not shift to him. He relied on the case of Joseph Kinyua Nyaga v Republic CRA APP No. 42 of 2016 where the court held that:“We are not satisfied that the identification of the Appellant as the perpetrator was out and dry as the two courts below found why we say so from the record. It is clear that the minor did not report the incident immediately and got confused when she discovered that she was pregnant.in addition the two courts below believed that she has engaged in sexual intercourse with the appellant. The possibility that she could have done as with any other person apart from the Appellant cannot be ruled out. Similarly, it is quite probable that any other person could be responsible for the pregnancy in the circumstances of the case we deem that it would have been necessary for DNA test or medical evidence to be produced to connect the Appellant to the rumours pregnancy for the prosecution to conclusively prove the case beyond reasonable doubt through DNA test. On my part after analyzing the evidence that was presented before the court the conclusion is that the conviction and sentence of Appellant was unsafe.” 15.He submitted that DNA evidence was not produced to corroborate PW1’s evidence and as such, the court ought to have found that there was no sufficient evidence for convicting him for the offence of defilement. 16.The Respondent on the other hand submitted that the prosecution proved its case beyond reasonable doubt. That the prosecution discharged its burden of proving all elements of the offence beyond reasonable doubt as was in the case of Jacob Saidi Simiyu vs Republic (2022) eKLR. That the age of the victim was proved by the Acknowledgement of Birth (Exhibit 5) confirming that the offence was committed when she was 16 years old as she was born on 10/8/2002. 17.That penetration was proved by the testimony of PW3 who confirmed that the minor was 22 weeks pregnant at the time of examination. She submitted that identification was by way of recognition since the victim knew the Appellant. Analysis and determination 18.This being a first Appeal, this Court has a duty to evaluate the evidence, analyze it afresh and draw its own conclusions while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify as did the trial Court. In David Njuguna Wairimu vs Republic [2010] eKLR, the Court of Appeal stated that:“…the duty of the first appellate court is to analyse and reevaluate evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the circumstances of the case come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision”. 19.In criminal cases before a trial Court one of the fundamental duties of the Court is to establish whether the burden of proof and standard of proof has been discharged beyond reasonable doubt against an accused person. The issue of proof is a matter of evidence. In R v Subordinate Court of the FirstClass Magistrate at City Hall (2006) EA 330 it was held that:“When a person is bound to prove the existence of any fact it is the Law that the burden of proof lies on that person.” 20.The general provisions on the legal and evidential burden are to be found in Section 107, 108 and 109 of the Evidence Act. It is trite Law that the state or the prosecution in criminal cases has the burden of proof to prove the existence of certain facts that the accused is guilty contrary to the right on presumption of innocence under Article 50 (2) (a) of the Constitution. The state has to discharge any given issue in an offence framed against an accused to create a doubt in the mind of the Court that he cannot be entitled a right of presumption to innocence. 21.Having stated that, this being a first appeal, this court has a duty to revisit the evidence that was before the trial court, reevaluate and analyse 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, Eric Onyango Odeng’ v R (2014) eKLR. 22.I have considered the grounds of appeal, the judgment of the trial court and the respective submissions of the parties. The issue for determination is whether the prosecution proved its case against the Appellant. 23.The prosecution in a case of defilement has the duty to prove all the three elements of defilement being the age of the complainant, proof of penetration and the positive identification of the perpetrator as was held in Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013. 24.On the element of age, the complainant PW1 testified that she was at the material time of the age of 16 years. The acknowledgement of birth produced by PW4 showed that she was born on 10/8/2002 thereby making her 16 years at the time of the alleged incident in November 2018. The age of the complainant was satisfactorily proved. 25.On the element of penetration, Section 2 of the Sexual Offences Act defines penetration as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 26.The prosecution has a duty to establish that the complainant was partially or fully sexually penetrated by the Appellant. The same can be corroborated by medical evidence. 27.The trial court made a finding that the evidence of the complainant was corroborated by medical evidence. The doctor who examined the complainant PW4 only made a finding that the complainant was 22 weeks pregnant. There was no evidence connecting the Appellant with the pregnancy. Nor was there medical evidence connecting the appellant with defilement on the complainant. The trial court erred in holding that the evidence of the complainant was corroborated by medical evidence. 28.However, absence of medical evidence in support of defilement is not fatal to a charge of defilement as the same can be proved by oral evidence of the victim or by way of circumstantial evidence, see Kassim Ali v Republic, Criminal Appeal No. 84 of 2005. In addition, Section 124 of the Evidence Act allows the court in sexual offences involving children to convict on the sole evidence of the child victim if the court is satisfied that the child is telling the truth and gives reasons for such a finding. The plain meaning of the section is that corroboration is not required on evidence of a victim of under the age of 18 years in sexual offences. 29.The trial magistrate in convicting the Appellant of the offence stated that the complainant was a truthful witness. That the complainant had known him since 2017 when he started seducing her. That the incident occurred at 4pm when there was sufficient lighting and the complainant identified the Appellant. That the identification was by recognition as the complainant knew the Appellant before the date of the incident. That there was further evidence in the form of a DNA that showed that the Appellant was the biological father of the baby born to the complainant. 30.The complainant narrated the events of 6/11/2018 that she was heading to fetch water when she met with the Appellant who pulled her to the bushes and defiled her. The Appellant raised a defence of alibi that he was on the material day in Lamu where he had travelled on 4/11/2018 and returned home on 17/11/2018. The trial court believed the evidence of the complainant that the Appellant defiled her on the material day. 31.I have on my part re-examined the evidence adduced against the Appellant and weighed it against his defence. Though the trial court made reference to a DNA report, the proceedings do not show that such a document was produced during the hearing. The trial court misdirected itself on that finding. 32.I do however agree with the finding of the trial court that the complainant was a truthful witness. The Appellant was a person well known to the complainant. There was no evidence of there being any bad blood between them. The Appellant told the trial court that the Appellant had even given her his phone number which they called after the complainant got pregnant but after he learnt of the pregnancy, he stopped picking their calls. The defilement took place during the day and the complainant clearly identified the Appellant as the perpetrator. There is no reason for the complainant to lie against the Appellant. Her evidence was not shaken in cross-examination. I find her evidence to have been credible and reliable. The argument by the Appellant that her evidence was not so has no basis. 33.The duty of proving the falsity of the defence of alibi falls on the prosecution. In Karanja v Republic (1983) KLR 501, the Court of Appeal held that a trial court may in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that the accused had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. In the instant case, there was no evidence that the Appellant raised the defence of alibi when he was arrested by the police. He did not allude to the defence when he cross-examined the prosecution witnesses in court. The only conclusion that can be made for failure to raise the defence early enough in the proceedings is that it was an afterthought and I so find. 34.In view of the foregoing and taking the evidence in totality, I find that the evidence adduced against the Appellant proved the case against him beyond reasonable doubt. Consequently, I find that the Appeal lacks merit and is hereby dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 8TH DAY OF MAY 2026.J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch HB for Miss Ngina Mutua for RespondentAppellant present virtually at GK Prison MalindiCourt Assistant - Nasra