Duncan Mususi v Republic

forced or coerced her into any sexual act. During cross-examination, she reaffirmed that the appellant neither forced nor harassed her. 5. PW2, Pameline Wambui, a clinician at Coptic Hospital, produced the Medical Report in respect of PW1. Upon examination, PW1 was found to have an old torn hymen with no vaginal discharge or injuries. Laboratory tests revealed the presence of bacteria in her urine. 6. PW4, Regina Awinja, a community health promoter and GBV mentor, testified that on 9th July 2023 she received information from Peter Makau that a girl had been defiled behind Makina Mosque. She proceeded to the appellant's house in an attempt to rescue PW1 but found no one there. As she was leaving, PW1 appeared and accompanied her to the Police Station, where PW1 reported that she had been defiled and disclosed that she was in a relationship with the appellant. 7. During cross-examination, PW4 stated that PW1 was known to refuse to go to school, to associate with boys, and that this behaviour was attributable to poor parenting. 8. PW5, Peter Makau, a village elder from Makina, testified that he received information of the defilement behind Makina Mosque. Upon visiting the scene, he found PW1 but the appellant had fled. When questioned, PW1 admitted to having sexual relations with the appellant. 9. PW3, MA, a security worker and mother of PW1, testified that she was informed by Regina (the village elder) that her daughter had been arrested. She confirmed PW1's date of birth as 16th October 2006 and identified the appellant as their neighbour. 10. PW6, Amina Aminata, a village volunteer, testified that she was informed by a neighbour that the appellant was sleeping with schoolgirls. Upon interrogation, PW1 admitted to engaging in sexual activity generally and stated that her mother had instructed her to seek money for food, in consequence of which she would have sexual intercourse with the appellant in exchange for food. 11. PW7, Esther Kagendo, the Investigating Officer at Kibra Police Station, summarised the prosecution’s evidence. 12. The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. 13. To succeed in a prosecution for defilement, it must be proven that the appellant committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, " the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 14. Further, section 8(1) and (4) of the Sexual Offences Act, No. 3 of 2006 provides thus: 8. 15. Defilement (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. The complainant’s mother (PW3) adduced evidence that the complainant was born on 20 April 2007 and was accordingly sixteen years of age at the time of the alleged offence. She was therefore a child within the meaning of the law, and the age ingredient of the offence was unequivocally established. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18612/eng@2025-12-17 2

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16. The element of penetration is defined under section 2 of the Sexual Offences Act as including the partial or complete penetration of the vagina by the genital organs. PW1 gave a detailed account, admitting that she had visited the appellant’s house, he being their neighbour, and had engaged in sexual intercourse with him on three occasions. This was corroborated by the evidence of PW2, who produced the medical report showing an old hymenal tear. The element of penetration was accordingly proved beyond reasonable doubt. 17. As regards identification, PW1 was firm and consistent in stating that the appellant, her neighbour and self-described boyfriend, was the person with whom she had sexual intercourse with. She provided a detailed account which remained unshaken on cross-examination. PW3, the complainant’s mother, confirmed knowing the appellant as their neighbour and positively identified him. The court is satisfied that identification was not in issue and was properly established. 18. In his defence, the appellant admitted being a neighbour but denied the allegations of defilement. He described PW1 as a friend rather than a girlfriend, maintained that he had never had sexual intercourse with her, and stated that their only interactions occurred when fetching water. During cross-examination, he reiterated his denial and claimed to have been at work on the material day. His alibi defence was however uncorroborated. The trial court considered the defence and rightly found it to amount to a mere denial and an afterthought. 19. Notwithstanding the complainant’s assertion of a consensual relationship, she was a child incapable in law of giving consent, whereas the appellant was an adult. Consent was therefore irrelevant and unavailable as a defence. 20. The prosecution proved each ingredient of the offence of defilement beyond reasonable doubt. The appellant’s defence raised no reasonable doubt in the prosecution case. The conviction under section 8(4) of the Sexual Offences Act is safe and is hereby affirmed. 21. On sentence, the appellant was sentenced to 15 years' imprisonment. During sentencing, the court considered the appellant’s mitigation, and his status as a first offender and sentenced the appellant accordingly. In the premises, I see no reason to interfere. 22. In the end, the appeal is found to be lacking in merit and is dismissed in its entirety. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 17TH DAY OF DECEMBER, 2025 ............................................ D. KAVEDZA JUDGE In the presence of: Appellant - Present. Mr. Mutuma for the Respondent. Karimi - Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18612/eng@2025-12-17 3

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