Brian Masinde Wafula v Republic

Evidence 4. According to the trial Court, the victim was noted to have been 16 years old, the Court found no need to conduct a voire dire. 5. The victim testified as PW1. She told the Court that she was a student at (particulars withheld) Secondary School and that she was 16 years old as she was born in 2008. According to her, she met the Appellant on the road on 26th December 2021, and after his pursuits she decided to date him. Their relationship continued until April 2022 when the victim got pregnant delivering a baby in December 2022. She told the Court that mid-April she visited the Appellant’s house and he slept with her and that it was the first time she slept with him. 6. She testified that the Appellant herein told her to remove her clothes and underwear and he also removed his trouser and boxer and he lay on top of her on his bed, and inserted his penis into her vagina. After that, she told the Court that the Appellant took her back home on his motorcycle. It was her testimony that the Appellant herein did not force her into sex and that she did not inform anyone of what transpired. She testified that after one week she learnt that she was pregnant and shared the same information with her mother and that the Appellant was responsible. 7. She stated that her mother escorted her to the police where the matter was reported and was later escorted to Nalondo Dispensary. She told the Court that she knew the Appellant herein as he was her boyfriend for one year. She availed her birth certificate in Court which indicated that she was born on 10th March 2008. Further, she testified that she was never admitted at the hospital and that she successfully delivered her baby. She did a dock identification of the Appellant herein and told the Court that the Appellant started to provide for the child. 8. On cross-examination, she told the Court that she was 15 years old and that she met the Appellant at the market on 26th December 2021and that she became pregnant in mid-April 2022, and that she was not falsely accusing the Appellant. 9. On re-examination, she told the Court that she had given birth on 16th December 2022, and that she started having sex with the Appellant herein in March 2022. 10. At the conclusion of PW1’s testimony the trial magistrate noted that it was satisfied with the truthfulness of the victim (PW1). 11. PW2 EMM testified that the victim was her daughter and that the Appellant herein was in a relationship with PW1 while she was in class 8. She told the Court that she advised the Appellant to let the victim study as she was young but he was persistent and then she learnt that the victim was pregnant. She told the Court that the Appellant ran away and only came back when PW1 had given birth and that she later learnt that even after the victim gave birth the Appellant continued to sleep with her. 12. She stated that she reported the matter at the police station where they were issued with a P3 form and proceeded to Nalondo Dispensary for medical examination. She told the Court that the victim gave birth on 5th December 2022, and that at the start of their relationship, the victim was 14-year-old and that she was then 15 years old. 13. On cross-examination, she told the Court that she did not know when their relationship started and that when the school administration learnt she was pregnant they alerted her. She insisted that she did not know that the victim was pregnant and only learnt of the same when she was about to give birth. She told the Court that she was called from her school in September 2022. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18146/eng@2025-11-14 2

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14. She insisted that she was not falsely accusing the Appellant and that the Appellant was the father of the victim’s child and that she had no proof that the Appellant was the father of the child but knew that the Appellant’s mother came to acknowledge the child as her grandchild by shaving the child. 15. PW3 Godfrey Wanyala Khaembe testified that he was a clinician from Nalondo Medical health center and that he was in Court to produce the P3 form and treatment booklet for the victim. He told the Court that at the time of the examination, she was 14 years old and that he observed that the victim was at her 20 gestation weeks and was placed on maternity clinic. Further, he observed that the victim had a broken hymen, her private parts were normal and had no scratches and that she had a urinary tract infection and that tests showed she was pregnant. 16. He told the Court that the P3 form was filled on 15th August 2022. He produced in Court the victim’s treatment notes as PEXH 2 and the P3 form filled on 15th August 2022, as PEXH 3. 17. On cross-examination, he told the Court that the Appellant was never tested and that he did not know who defiled the victim. He testified that based on the last monthly period as communicated by the victim, it was clear she was 2 weeks pregnant. 18. PW4 NO. 57067 CPL Daniel Chacha testified that at the time of the incident he was based at Nalondo Police Station and that he was the investigating officer in this matter. According to him, on 13th August 2022 at about 6 pm the victim in the company of her brother lodged a defilement report. It was his testimony that PW1 reported that in December 2021, the Appellant approached her for a relationship. That on 22nd February 2022, they met again and began their relationship wherein the Appellant would visit the victim’s house when her parents were away and he would take her to his house where they would have sex. 19. He told the Court that he gave her a p3 form and sent her to the hospital and begun his investigations. The Appellant on learning that the police were looking for him, he ran away to Mombasa and only came back in May 2023, wherein PW1 escorted him to the Appellant’s home. He told the Court that the victim was born on 10th March 2008 as per her birth certificate and was still a student. He told the Court that the victim gave birth on 16th December 2022. 20. On cross-examination, he told the Court that he arrested the Appellant in his mother’s house and that PW1 identified the Appellant as the perpetrator of the crime. 21. In his defense, the Appellant denied committing the offence, he testified that PW2 had called him to her house and gave him Kshs. 10,000/= to purchase some items for her but on the way, he lost the money. He proceeded back to PW2’s house to report the same and proposed to pay her back Kshs. 1,000/= per month. He told the Court that he relied on his motor cycle to earn his living and upon defaulting in making payments the same was repossessed meaning that he could no longer pay PW2 who threatened him with legal action. He told the Court that he was surprised of his arrest and maintained his innocence. 22. The trial Court after considering the evidence adduced by both parties found that the Respondent had proved their case against the Appellant beyond reasonable doubt. The Appellant was convicted and sentenced to serve Fifteen (15) years in prison. Appeal 23. Aggrieved by the conviction and sentence, the Appellant filed his undated Petition of Appeal, in which he raised the following grounds of appeal: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18146/eng@2025-11-14 3

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a. That he is a first offender and remorseful for the offence committed. b. That the sentence of 15 years as meted out upon him is rather harsh and excessive as per the circumstances. c. That he is family man with siblings who rely on him as the daily bread winner. d. That this Court be pleased to reduce the sentence imposed on him on humanitarian grounds. e. That he wishes to adduce more grounds at the hearing thereof. 24. He prayed that this Court allows his appeal in its entirety and consider the same in terms of what he prayed for. 25. In response to the Petition of Appeal, the Respondent herein filed a Notice of Enhancement of sentence in accordance with Section 354(II) of the Criminal Procedure Code. The Respondent based the same on the following grounds: a. The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. b. Section 8(3) of the Sexual Offences Act provides: “A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” c. That the trial Court erred in law by sentencing the Appellant herein to serve Fifteen (15) years imprisonment, and failed to consider the provision of the Sexual Offences Act and the circumstances of the case including the mental, physical and emotional pain suffered by the victim. 26. The appeal was canvassed by way of written submissions. Both parties complied. 27. The Appellant filed amended grounds of appeal with his written submissions and preferred the following grounds: 28. a. That the trial Court erred in both law and facts in not considering the conduct of the Complainant before, after and during the offence. b. That the trial Court erred in both law and facts by not considering the circumstances of the entire case which could lead to acquittal of the Appellant. He prayed that this Court quashes his sentence, set aside his appeal and set him free. Also, that this Court makes any other justifiable order that it deems fit. Determination 29. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the submissions and the applicable law. it is my view that the issues for determination are as follows: i. Whether the Prosecution’s case against the Appellant was proven beyond reasonable doubt; ii. Whether the Appellant was entitled to the statutory defence under sections 8(5) and 8(6) of the Act; and iii. Whether the sentence meted out on the Appellant was excessive and harsh. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18146/eng@2025-11-14 4

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Whether the Prosecution’s case against the Appellant was proven beyond reasonable doubt 30. The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act. The section provides that: “ (1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2)A person who commits an offence of defilement with a child between the age of twelve and fifteen is liable upon conviction to imprisonment for a term not less than twenty years.” 31. To sustain the charge of defilement against the Appellant, the Prosecution needed to prove the following essential ingredients of the offence of defilement: a. That the Complainant was, at the material time, a child as defined under section 2 of the Children’s Act and of the age between 12 years and 15 years b. That there was penetration of the child’s vagina; and; c. That it was the appellant who caused such penetration of the complainant’s vagina or genitalia. 32. On age, the victim at the time of testifying told the Court that she was 16 years old having been born on 10th March 2008. PW4 testified that as per the victim’s birth certificate (which he produced in Court as PEXH1) the victim was born on 10th March 2008, which meant that as of 26th December 2021, she was still aged 13 years 9 months 16 days and according to her evidence she started having sexual intercourse with the Appellant herein in March 2022 meaning that she was 14 years old as of 10th March 2022, the time of the incident. 33. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal stated as follows: “ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 34. In the absence of any other evidence to the contrary, I find that victim was aged 14 years when the incident occurred. I note that age has not been contested by the Appellant. 35. On penetration, Section 2(1) of the Sexual Offences Act defines penetration as: “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 36. In the instant case, the victim gave sworn testimony that she met the Appellant on the road on 26th December 2021, and after his pursuits she dated him. It was her testimony that she started having sex with the Appellant in March 2022. Their relationship continued until April 2022 when she got pregnant and delivered the baby in December 2022. She told the Court that she was still in a relationship with the Appellant and he was providing for their child. 37. The Appellant in his evidence denied the claims by the victim and alluded to the fact that his failure to pay the Kshs. 10,000/= he lost belonging to PW2 was the reason for his predicaments as PW2 had promised to deal with him legally. On the P3 form availed in Court by PW3, it was noted that the minor https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18146/eng@2025-11-14 5

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had a broken hymen, she had no tear or laceration, there was no visible discharges with the urinalysis test revealing presence of urinary tract infection. The clinician observed that she was 20 weeks pregnant. 38. This evidence confirmed that the victim was penetrated and even conceived hence corroborated. Notably, the trial Court found that victim was a credible witness. It was convinced that she was telling the truth and that there was no reason for her to frame the appellant considering that she had been in a relationship with him for a year. I find her evidence sufficient to prove penetration in accordance with Section 124 of the Evidence Act. 39. In the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the Court stated thus; “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 40. Consequently, I find that the victim’s evidence and that of the Clinical Officer was sufficient to proof the ingredient of penetration; there is no reason to disturb the finding of the trial Court. 41. On the issue of identification I do find that the appellant was identified by way of recognition and he did not dispute that fact; that he was acquainted to the victim. Whether the Appellant was entitled to the statutory defence under Section 8(5) and 8(6) of the Act 42. In this appeal, the Appellant submitted that he was entitled to the statutory defence under Sections 8(5) of the Act. Subsection (5) states that it is a defence to a charge of defilement if the child deceived the Appellant into believing that she was over the age of 18 years and the Appellant reasonably believed that she was over 18 years. 43. In his appeal he focused on the victim’s conduct submitting that for a child under the age of 18 the victim exhibited the behavior of an adult and by opting to frequently visit his house for sexual intercourse then proceed back to her home. It was his submission that children ought not to enjoy sexual intercourse and if they do so, the same becomes the behavior of an adult. He finally submitted that the victim moved from her parents’ home to his home mainly to have sex. He asserted that the victim’s conduct made him reasonably believe that she was an adult. 44. While the Appellant raises the statutory defence under Section 8(5) and (6) of the Act, it is pertinent to note that this defence was not raised during the trial at the lower Court. As established in Okeno v. R [1972] EA 32(supra), the duty of this appellate Court is to reanalyse and re-evaluate the evidence presented at the trial Court, not to consider new evidence or defences introduced for the first time on appeal. Therefore, the Appellant's assertion that he was deceived into believing victim was over the age of 18 must be examined based on the evidence available in the trial record. 45. In this case, the victim, testified that she met the Appellant on 26th December 2021, and after his pursuits she started dating him. Their relationship continued until April 2022 when the Appellant got her pregnant and she delivered in December 2022. She told the Court that mid-April, she visited the Appellant’s house where they had sex for the first time. 46. She testified that the Appellant herein told her to remove her clothes and underwear as he also removed his trouser and boxer and he lay on top of her. It was her testimony that the Appellant did not force her into the act. She testified that after one week she learnt that she was pregnant and shared the same information with her mother. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18146/eng@2025-11-14 6

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47. During her evidence-in-chief, she identified the appellant from the dock and told the Court that she was in a relationship with the Appellant. The evidence adduced by PW1 corroborated by her mother PW2, Furthermore, the medical evidence led by PW5 confirmed the history of repeated sexual activity, which aligned with PW1's testimony. 48. Even if the statutory defence were to be considered, the Appellant has failed to provide any substantial proof or credible evidence that he took reasonable steps to ascertain the age of the victim. The burden of establishing this defence rests with the Appellant, and it cannot be discharged by mere assertions without supporting evidence. The Appellant's failure to raise this defence during the trial further weakens his argument. This ground therefore fails. 49. In the end, I find and hold that the Respondent had proved it’s case against the Appellant herein beyond reasonable doubt and the appeal against conviction fails and the conviction is upheld. Whether the sentence meted out on the appellant was harsh and excessive 50. On my perusal of the lower Court proceedings, on 1st November 2023, the trial Court took the Appellant’s mitigation and requested the preparation of the pre-sentence report. On 20th November 2023, the trial Court considering the Appellant’s mitigation and pre-sentence report, whereafter it sentenced the appellant to Fifteen (15) years imprisonment. 51. It is thus clear that the Appellant was given a chance to mitigate and it cannot be said that his right to mitigation was violated. 52. The sentence provided for under Section 8 (3) of the Sexual Offences Act is as follows: “ A person who commits an offence of defilement with a child between the age of twelve and fifteen is liable upon conviction to imprisonment for a term not less than twenty years.” 53. Opposing the appeal, the Respondent filed its written submissions and also filed a Notice of Enhancement of Sentence to comply with what the Sexual Offences Act dictates.The Court of Appeal in J.J.W. v Republic [2013] eKLR held as follows as to enhancement of the sentence by the High Court; “ It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.” 54. It is not clear from the record whether the Appellant was served with the cross-appeal by the Respondent. The Appellant was also not warned by this Court on probability of enhancing his https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18146/eng@2025-11-14 7

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sentences. In order not to prejudice the Appellant who has had no chance to defend the cross appeal, I will be reluctant to interfere with the sentence as meted. 55. In the result, the appeal is devoid of any merit. It is dismissed.in its entirety. Orders accordingly. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 14TH DAY OF NOVEMBER 2025. M.S.SHARIFF JUDGE In the presence of: Appellant Ms Kibet for the Respondent Peter Machoni – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18146/eng@2025-11-14 8

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