https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1147

Wandera v Republic (Criminal Appeal E048 of 2021) [2026] KECA 1147 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1147 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E048 of 2021 J Mohammed, HA Omondi & LK Kimaru, JJA June 12, 2026 Between Judith Khayosa Wandera Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Kisumu (F. A. Ochieng, J.) dated 7th February, 2019, in Criminal Appeal No. 5O of 2018 Criminal Appeal 50 of 2018 ) Judgment 1.Judith Khayosa Wandera (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 particulars of the offence were that 5th July, 2017, at [Particulars Withheld], Kisumu Township within Kisumu County, the appellant intentionally caused her vagina to be penetrated by the penis of S.D.M., a child aged 16 years. 2.In the alternative, the appellant was accused of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the charge were that on the same date and place, the appellant intentionally and unlawfully committed an indecent act to S.D.M., a child aged 16 years, by making his penis touch her vagina. 3.The prosecution called seven (7) witnesses to establish its case.The complainant (PW1) testified before the trial court that the appellant was his girlfriend and that they had been in a relationship for approximately one and a half years prior thereto. He stated that his parents disapproved of the relationship and attempted, unsuccessfully, to persuade him to end it. He further testified that he occasionally spent nights at the appellant’s residence, during which time they engaged in sexual intercourse. On one occasion, while at her residence, they were arrested by the police and taken to the police station, where they were warned and advised to terminate the relationship, but they did not comply. Upon a subsequent arrest, the appellant was arraigned before the trial court. 4.The complainant’s mother, CW (PW3), testified that the complainant was a troublesome child who had dropped out of school, and was using drugs (bhang). She stated that he had run away from home and that after searching for hi whereabouts, she was informed that he was staying with an older lady (the appellant). She went to the appellant’s house. She found the complainant. She informed the appellant that the complainant needed to go back home. She and her husband decided to take the complainant to their rural home in Tanga Corner, but were forced to bring him back to Kisumu when he threatened to commit suicide. She testified that the complainant was sixteen (16) years of age when the appellant defiled him. 5.PW2, Austine Ouma, a clinical officer at Jaramogi Oginga Odinga Teaching and Referral Hospital, produced the complainant’s Post Rape Care form. It was his evidence that he examined the complainant on 11th July, 2017. The complainant informed him that on 3rd July, 2017, he was chased away from home by his parents and sought refuge at the appellant’s house where they had sex on 4th July, 2017. PW2 testified that upon examination of the complainant’s genitals, he noted the presence of pus cells which was consistent with recent sexual activity. PW4, Dr. Philip Kilimo, filled the complainant’s P3 form. It was his testimony that he examined the complainant on 12th July, 2017, and that his genital area was normal with no notable injuries. 6.PW5, Police Constable David Ojwang, and PW6, Police Constable Linet Mbalaka, told the court that PW3 reported that her minor son was staying with an adult female at [Particulars Withheld]. They testified that on 7th July, 2017, they went to the appellant’s house where they found the appellant and the complainant sleeping on a mattress on the floor. They arrested them and took them to Central Police Station. The appellant informed them that the complainant was her husband. The complainant had been staying at her house. They had been engaging in sexual intercourse. 7.PW7, Richard Kimutai Langat, a Government analyst from the Government Chemist in Kisumu, stated that on 16th August, 2017, he received exhibits from PW6 namely: vaginal swab from the appellant; and a penal swab from the complainant. He was required to determine whether the DNA in the two exhibits matched. His findings were that the vaginal swab did not generate any DNA profile. 8.The appellant was placed on her defence. She gave sworn evidence. It was her testimony that she met the complainant at a night club, where they exchanged contacts and started dating. The complainant informed her that he was a bodaboda operator. One day as he was visiting her, the police came and arrested them. She was informed that she was engaged in a sexual relationship with a minor. She testified, however, that she could not, from the complainant’s physique, tell that he was a minor. She admitted that they engaged in sexual relations. 9.At the end of the trial, the appellant was found guilty with respect to the main charge of defilement. She was accordingly convicted, and sentenced to serve fifteen (15) years’ imprisonment. 10.The appellant was dissatisfied by the decision of the trial court.She lodged an appeal before the High Court, challenging her conviction and sentence, on grounds that: the evidence on record was insufficient to sustain a conviction; the sentence imposed by the trial court was excessive; she was denied her right to a fair trial provided under Article 50 of the Constitution; and, that the decision of the learned magistrate was erroneous and untenable in law. 11.Her appeal on conviction before the first appellate court was dismissed. The learned Judge found that the prosecution sufficiently proved the main charge of defilement against the appellant. Her appeal on sentence was similarly dismissed. 12.The appellant, aggrieved by the decision of the learned first appellate Judge, filed a second appeal before this Court. The appellant faulted the learned Judge for upholding her conviction and sentence, without considering: that the prosecution’s case was full of contradictions; her statutory defence; that the Government analyst report failed to establish the element of penetration; and, that the prosecution’s case was not proved to the required standard of proof beyond reasonable doubt. 13.The appeal was heard by way of written submissions. The appellant appeared in person. It was her submission that the expert witness evidence adduced by PW2 and PW4 was inconsistent. While PW2 noted the presence of pus cells on the complainant’s genitals, PW4 made no such findings. She asserted that the Government analyst report also failed to corroborate the complainant’s evidence on penetration. She submitted that her defence was anchored on Section 8(5) of the Sexual Offences Act, asserting that she reasonably believed the complainant was at the material time an adult. She pointed out that she met the complainant at a nightclub typically frequented by persons over the age of eighteen, and that he purchased alcoholic drinks for her. 14.The appellant further argued that her belief as to the age of the complainant was reinforced by the fact that the complainant was a bodaboda operator, which led her to assume that he possessed a valid driving licence. It was her submission that the complainant’s assertion that they had been severally warned to end the relationship was not corroborated by the evidence of the arresting or investigating officers. She urged that the trial court did not properly invoke Section 124 of the Evidence Act, as no reasons were recorded to support the trial court’s belief of the sole evidence of the complainant. For these reasons, the appellant argued that the case against her was not sufficiently established by the prosecution to warrant her conviction on the charge. 15.In rebuttal, learned Assistant Director of Public Prosecutions, Mr. Okango, submitted that the element of penetration was sufficiently established, and that the appellant admitted to have engaged in sexual intercourse with the complainant on countless occasions. He stated that the inconclusive evidence by the Government analyst did not weaken the prosecution’s case. He maintained that the appellant’s identification was not in contention, and the final element of age was established by the complainant’s mother, as well as his birth certificate produced by the prosecution in evidence. 16.It was his further submission that the appellant’s statutory defence was properly considered and dismissed by the two courts below. He explained that the defence was not absolute, and that the appellant was required to demonstrate that she was ‘deceived’ by the complainant into believing that he was an adult. He asserted that despite several warnings to the appellant to desist from engaging in a sexual relationship with a minor, the appellant chose to disregard the said warnings and continued her illicit affair with the minor. He was of the view that the appeal lacked merit and ought to be dismissed. 17.This being a second appeal, our mandate is confined to matters of law only. We are guided by the well-settled principle in Section 361(1) of the Criminal Procedure Code, and we will not interfere with concurrent findings of fact by the two courts below unless it is demonstrated that such findings were based on no evidence, or on a misapprehension of the evidence, or that the courts acted on wrong principles. (See the case of Dzombo Mataza v Republic [2014] eKLR). 18.We have considered the record of appeal, the submissions made by the parties and the law. It is our view that the appellant’s appeal turns on the following issues:i.Whether the charge against the appellant was proved beyond reasonable doubt;ii.Whether the appellant’s statutory defence was properly considered. 19.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. The ingredients of the offence are settled: proof of age of the complainant, proof of penetration, and proof of the identity of the perpetrator. 20.On the issue of age, the evidence of PW3, the complainant’s mother, was categorical that the complainant was sixteen (16) years at the material time. This was further supported by documentary evidence in the form of a birth certificate. There was no rebuttal to this evidence. We are satisfied, as were the two courts below, that the age of the complainant was proved beyond reasonable doubt. 21.On penetration, the appellant’s contention that the medical evidence was inconsistent does not avail her. PW2 observed the presence of pus cells, which he opined was consistent with recent sexual activity. While PW4 noted no visible injuries, that does not negate penetration. More importantly, the complainant gave direct evidence of repeated sexual intercourse, which was corroborated by the appellant herself, who admitted that they engaged in sexual relations. In terms of Section 124 of the Evidence Act, the evidence of a complainant in sexual offences may suffice if the court believes the complainant and records reason for such belief. In the present case, there was not only explanation of such belief, but also material corroboration from medical evidence and the appellant’s own admission. We find that the element of penetration was proved to the required standard of proof. 22.As regards identity, this was not in dispute. The appellant admitted to have been in a sexual relationship with the complainant and to have engaged in sexual intercourse with him. The arresting officers (PW5 and PW6) found the appellant and the complainant living together in her house. The element of identification of the perpetrator was therefore firmly established. 23.The crux of this appeal turns on the appellant’s reliance on the statutory defence under Section 8(5) of the Sexual Offences Act, namely, that she reasonably believed the complainant to have been an adult at the material time. The said section provides as follows:5.“It is a defence to a charge under this section if:a.it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and,b.the accused reasonably believed that the child was over the age of eighteen years.” 24.Section 8(6) goes ahead to expound that:5.“The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.” 25.From the foregoing, that defence imposes a burden on the appellant to demonstrate that such belief was both honest and reasonable, and that she was in fact deceived by the complainant as to his age, or that she reasonably believed him to be an adult at the material time. The circumstances of this case do not support such a defence. First, the relationship between the appellant and the complainant was not a fleeting encounter; it endured for a period of approximately one and a half years, according to their evidence. Secondly, the appellant was aware that the complainant lived with his parents. She was expressly warned, upon the first arrest, that she was involved in an illicit sexual intercourse with a minor and was advised to terminate the relationship. Despite this, she persisted with the relationship. Thirdly, the complainant’s mother traced him to the appellant’s residence, met the appellant and told her that the complainant needed to go back home, a fact that ought to have put the appellant on inquiry as to the complainant’s age and circumstances. 26.In those circumstances, the appellant cannot be heard to say that she reasonably believed the complainant to be an adult. Her submissions to the effect that she met the complainant at a nightclub, that he purchased her alcohol, and his alleged engagement as a bodaboda operator, fall short of discharging the statutory threshold, particularly in the face of direct warnings and the prolonged nature of the sexual relationship.She failed to demonstrate the steps she took to ascertain the complainant’s age. We are satisfied that this defence was rightly rejected by the two courts below. 27.In the end, we have no doubt that the prosecution proved the charge of defilement against the appellant beyond any reasonable doubt. The appellant’s statutory defence was properly considered and correctly dismissed. The concurrent findings of the trial court and the first appellate court are sound in law and fact, and we find no basis to interfere with the same. The sentence meted by the trial court was lawful. The appellant’s appeal lacks merit and is hereby dismissed. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.JAMILA MOHAMMED................................ JUDGE OF APPEALH.A. OMONDI................................ JUDGE OF APPEALL. KIMARU.........................JUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR