Aubrey Mumo v Republic

5. Upon considering the evidence placed before the trial court, the Appellant was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to 20 years imprisonment on 29th March 2023. B. Petition of Appeal & Amended Grounds of Appeal 6. Being aggrieved with both the conviction and sentence the Appellant filed an undated petition of appeal and amended grounds of appeal in his submissions. Generally, the Appellant’s position is that the trial court erred by failing to consider that the prosecution did not prove its case beyond reasonable doubt as there were sharp contradictions and that the trial court further failed to adequately consider his defence. 7. As a first appellate Court, I have also subjected the evidence adduced before the trial magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32. 8. The facts of the case according to the prosecution are that the Complainant was a 14 years old class 8 pupil at [Particulars withheld] Primary School at the material time. PW1’s mother asked her to go back home with her younger sister to do their homework. She carried her stock back to the house thrice. While on her way she was caught and taken to the Appellant’s house. It was PWI 's evidence that when she got to the house the Appellant covered her mouth and told her not to scream lest he killed her. She states that he raped her. He removed her clothes and removed is clothes. She stated that the Appellant removed his penis and put in inside her vagina. When he was done, he asked her to go outside. When she went out side she went to the house. She did not tell her mother as she feared the Appellant threat to kill her. PW1 stated that she told the head teacher in school who called the police officers from Mlolongo police station. PW1 further stated that she tried to scream but no one heard her screams from the Appellant's house. She was tied on her mouth with a piece of cloth. 9. PW1 stated that she missed her menstrual period and told her teacher in June 2021. She told her June 2021 that she was not feeling well and then told the teacher in September 2021 that she was pregnant. Her mother found out that she was pregnant when she was told by the ladies at the stall. 10. PW2 testified that she found out about PW1 pregnancy in September 2021. She was informed by her neighbours and when she asked PWI she at first denied it. She went to the school and PWI admitted it when the head master asked her. She took PWI for tests and it was confirmed that she was pregnant. PW2 testified that PW1 informed her that the shop keeper the Appellant was responsible for the pregnancy. 11. PW4 who is a clinical officer testified on behalf of the clinical officer who examined PWI and was allowed to testify on behalf of his colleague by virtue of Section 33 of the Evidence act, Cap 80. He testified that upon clinical examination of PW1, the hymen was not intact and she had not previously conceived. On lab examination the pregnancy test was positive and produced the P3 Form and PRC Form PExt.I and PExt.2 respectively. On cross examination PW4 stated that according to the report, she got pregnant in May. PW5 the government analyst testified that bical swab samples were collected from the Appellant, PWI and PW1's child. 12. PW5 testified that based on the DNA profiles generated from the samples there was 99.99+ more chances that the Appellant is the biological father to PW 1 child. The government analyst report was produced as PExt.5. The Complainant gave birth to her child before the trial concluded. 13. Both the Appellant and Respondent filed their respective submissions which I have duly considered. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14395/eng@2025-06-18 2

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14. To sustain a conviction for the offense of defilement, the prosecution has to prove three ingredients. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013. The Court in that case stated: “ The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant”. 15. In his defence, the Appellant admitted to the offence. He admitted that he had sex with the Complainant and made her pregnant. With this admission, 2 ingredients were proved, namely that the Complainant was defiled as there was penetration. Further that the perpetrator of the defilement was the Appellant. 16. As regards the age of the Complainant, the prosecution’s case is that she was 14 years old at the material time and her Birth Certificate showing that she was born on 27/11/2007 was produced in evidence as PExt.4. 17. The Appellant faults the trial court for not considering his defence. The Appellant, in his defence stated that: “ I did not know the Complainant’s age but from her body structure she did not seemingly look young. She would give me confidence that she could discharge what she had undertaken to do. I had never seen her in uniform and I only came to learn later she was a minor......it was only until around August that I saw Dorcas in uniform. I started being so much careful and would ignore her and became harsh to her. At the time I did not know that something was looming until I was arrested. Between June; July and August Dorcas became very social to me. I was equally social to her. One day she even told me that she knew where I resided and she told me she would tell me one day how she knew. One day whilst in the house; the door was open. She came to my door without knocking. She entered the house. I was preparing to go to the bathroom. She then told me that her mum was waiting for her and she left. Another day, she did the same. They were unexpected visits. This time she was not in a hurry and she even sat. She stated my house was not properly arranged. I asked her if she could get someone to organize the house and wash my clothes. She proposed her aunt. The 3rd day she came and found me preparing to go take a shower on me was a shirt and a towel. She held my hand and insisted that we go to the bathroom together. I declined. Later I was overpowered and I found-myself caressing her and that was the beginning of my problem because we slept together. That same day she said she was expecting and would come and stay with me. I was hesitant because my first marriage had broken down. It did not take long before I saw her wearing uniform. This surprised me a lot and was wondering when to take off or notify the parents. Due to fear I kept silent and withdrew from her. I was subsequently arrested. I regret what happened. I never went on with the relation after I discovered she was school going. I apologize to court; the public and the parents of the child for the things I did without knowledge. I had no intention to defile her. Given the chance I wish to participate in raising the new born.” 18. Although the trial court was not persuaded that the Complainant by her conduct led the Appellant to believe that she was an adult as it is apparent from the defence, that the advancing of credit preceded the Complainant’s visits to the Appellant’s house and found the defence unreliable, I note that the trial court said nothing about the Complainant’s appearance having had the benefit of seeing the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14395/eng@2025-06-18 3

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Complainant during trial. The Appellant stated that what reasonably made him believe that PW1 was over the age of eighteen years was her big size and the manner in which she presented herself as an adult. 19. Belief that a Complainant is an adult is a defence under Section 8 (5) of the SOA which provides as follows. (5) (6) 20. 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. 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. What has caught this court’s attention is the Complainant’s responses during her re-examination that: “ The accused person would give me money to go buy any item I did not have. The accused person and I had a boyfriend and girlfriend relationship. We started dating in June. We only slept together once. I am the one who took myself to the accused person's house. He promised me to go and he would give me something. I voluntarily removed my clothes he did not remove my clothes and did not tie me. I had slept with him twice. The 1st time was in April and the 2nd time in May. I also slept with him in July 2021. My last menstrual period was on 27/4/21. I was to have my periods on 27/5/21 which I missed. I would go to Mumo because my mum would insult me whenever I asked for items such as pens.” 21. Looking at the testimony of the Complainant both at examination in chief and during re-examination, she was not consistent and candid with what she stated. A witness in a criminal case upon whose evidence it was proposed to rely should not create an impression in the mind of the court that he was not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicated that he/she was a person of doubtful integrity, and therefore an unreliable witness which made it unsafe to accept his/her evidence. The evidence of PW1, properly evaluated, would have been in the category of an unreliable witness. 21. In the case of Meshack Nyongesa v Republic [2016] eKLR, the Court of appeal had occasion to consider the defence under Section 8(5) of the SOA and stated: “ Section 8(5) of the Sexual Offences Act provides a complete defence to a charge of defilement if it is shown that the accused believed that the child was 18 years or above” 21. The learned judges went on to state: “ We take judicial notice of the fact that these days, children, especially females, appear older than they actually are. In the circumstances, given the fact that this is a defence which few non-lawyers know about, it is our considered view that where a young man is charged with defiling a girl child above the age of 16 years, the trial court should ascertain whether he had reason to believe that the girl was 18 years or above”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14395/eng@2025-06-18 4

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21. The High court criminal appeal No. 32 of 2015 at Malindi, Martin Charo v the State it was held: “ It is true that under the Sexual Offences Act, a child below 18 years cannot give consent to sexual intercourse. However, where the child behaves like an adult and willingly sneaks into men 's house for purposes of having sex, the court ought to treat that child as a grown-up who knows what she is doing. " 21. The Appellant herein raised the defence under Section 8(5) of the SOA that he believed that due to her size, the Complainant who took herself to his house was an adult. Although there is nothing on record about her appearance, the Complainant may very well have appeared an adult as the she claimed before the trial court. The onus is always upon the prosecution to clear any doubts that may arise, failure to which the benefit would go to the Appellant. Had the trial court considered this defence, it may not have convicted the Appellant. Accordingly, I find that the trial court erred in failing to consider the Appellant’s defence. 21. In the end, after reevaluating the evidence, my finding is that the Appellant ought to have benefitted from the defence under Section 8(5)(b) which he raised in the trial court. In the premises, I quash the conviction and set aside the sentence. The Appellant is hereby set at liberty unless otherwise lawfully held. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 18TH JUNE 2025 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 18TH JUNE 2025 In the presence of: In person........... for Appellant Ms. Agatha.......... for Respondent Milly.............. Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14395/eng@2025-06-18 5

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