High Court 19631 of 2025

8. He threatened her that if she made any noise he would kill her. 9. He carried her to his bed, removed her clothes and had sex with her. 10. The complainant said he did that on Tuesday and Friday. She said the Appellant had a knife with him. 11. When the father of the complainant (PW2) went to pick his bicycle, the complainant told him what had happened. 12. When PW2 asked the Appellant, he became violent. PW2 took the complainant away and reported the matter to her teachers and they reported to the police. The Appellant was arrested and the complainant was taken to the hospital. 13. PW6 Doctor Joto Nyawa who examined the complainant said her hymen was broken and she had a wide vaginal opening signifying habitual intercourse. 14. PW6 said there was no spermatozoa and no infection but she had an abnormal discharge. 15. The Appellant in his defence said PW2, the father-in-law wanted money from him to stock a shop which he had built. 16. When the Appellant refused to give him the money he threatened and said he would know what to do. 17. The Appellant said the father-in-law had him arrested and charged with this ofience. 18. The Appellant called his wife to testify in support of his case. She said that her father (PW2) took Kshs. 25,000/= from the Appellant. He told her to leave the Appellant. 19. The trial court found the Appellant guilty as charged and sentenced him to 20 years imprisonment. 20. The Appellant has appealed to this court on the following grounds;i. The learned trial Magistrate erred in both law and fact when she misdirected herself. ii. The learned trial magistrate erred in both law and facts when she shifted the burden of proof from prosecution to the Appellant. iii. The learned trial magistrate erred in law when she relied on the evidence adduced by prosecution which was full of massive contradictions. iv. The learned trial magistrate erred in law in convicting the Appellant on poor investigation adduced by prosecution. v. That the learned trial court Magistrate erred in law fact by sentencing the Appellant to 20 years imprisonment without considering that the sentence meted on him was harsh and excessive. vi. That the learned trial court Magistrate erred in law fact by sentencing the Appellant to 20 years imprisonment without considering his reasonable defense. 21. The parties filed written submissions as follows:- the appellant submitted that the matter herein was not proved to the required standard. The appellant indicated that the complainant was not truthful in her testimony and the trial court consequently reached a wrong decision. 22. The appellant contended that the complainant was 15 years old at the time of the alleged crime and therefore he should have been sentenced to a period less that 15 years. The appellant indicated that he is the head of his family and that the court should have taken this into consideration during mitigation and imposed a lower sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19631/eng@2025-05-02 2

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23. The prosecution alternatively submitted that it proved the all the ingredients of defilement. The appellant was positively identified by the complainant. The complainant and the appellant were related by marriage so she was familiar with him. 24. That PW6 testified that the complainant’s hymen was absent and that there was a wide vaginal opening which was an indication of habitual intercourse. The complainant stated that the appellant defiled her between the months of January and February 2022 which was likely to be cause of the genital examination. 25. Further, that the age of the complainant was proved by the production of the birth certificate which indicated that she was 15 years old at the time the ofience. 26. The prosecution further submitted that the trial court was correct in its sentence as section 8 (3) of the Sexual Offences Act provides for a term of not less than 20 years. The appellant was sentenced to 20 years imprisonment which is in accordance with the law. 27. The first appellate court acts as the last court of facts and must ensure a proper re-evaluation of the evidence while correcting any errors in the trial court’s judgment. The first appellate court must reexamine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law. It cannot simply rely on the trial court’s findings but must apply its own mind. 28. The Court of Appeal in Okeno vs Republic [1972] EA 32 held that: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M Ruwala v R (1957) EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958] EA 424.” 29. The issues for determination in this appeal are as follows:i. Whether the Appellant was positively identified. ii. Whether the penetration was proved. iii. Whether the age of the complainant was proved. 30. Having carefully re-evaluated the evidence, the applicable law, and the submissions by both parties, this court makes the following determinations on the key issues: 31. On the issue as to whether the Appellant Was Positively Identified, I find that the prosecution established that the Appellant was well known to the complainant as he was married to her sister and lived in the same compound. The complainant’s testimony was consistent in identifying the Appellant as the perpetrator, and no evidence suggested mistaken identity. The relationship between the parties eliminated any doubt regarding identification. 32. On the issue as to whether Penetration Was Proved, I find that the medical evidence (PW6) confirmed that the complainant’s hymen was broken, and she had a wide vaginal opening indicative of habitual https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19631/eng@2025-05-02 3

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intercourse. Although no spermatozoa were found, the absence of recent semen does not negate penetration, as established in Martin Nyongesa Wanyonyi v Republic [2020] eKLR, where the court held that medical evidence need not always corroborate defilement if other evidence supports the claim. The complainant’s consistent testimony, coupled with the medical findings, sufficiently proved penetration. 33. On the issue as to whether the Age of the Complainant Was Proved, the prosecution produced a birth certificate confirming the complainant was 15 years old at the time of the ofience. Age is a critical element in defilement cases, and documentary evidence is the most reliable form of proof (Francis Omuroni v Uganda [2002] UGCA 12). The trial court correctly relied on this evidence. 34. On the issue as to whether the Defence Was Properly Considered, I find that the Appellant’s defence— that the charges were fabricated due to a financial dispute with PW2—was not substantiated. His wife’s testimony did not discredit the complainant’s account. The trial court properly weighed the evidence and found the defence unpersuasive (David Mwita Wanja v Republic [2019] eKLR). 35. On the issue as to whether the Sentence Was Harsh and Excessive, I find that the Appellant was sentenced under Section 8(3) of the Sexual Offences Act, which prescribes a minimum of 20 years imprisonment for defilement of a child aged 12–15. The Supreme Court of Kenya recently upheld the constitutionality of mandatory minimum sentences for sexual ofiences in Republic v Joshua Gichuki Mwangi [2024], affirming that such sentences deter ofienders and protect victims 6. 36. The prosecution proved all elements of defilement beyond reasonable doubt: i. Positive identification of the Appellant. ii. Penetration supported by medical and testimonial evidence. iii. Age of the complainant conclusively established. 37. The trial court’s conviction was sound, and the sentence was lawful. The appeal is dismissed in its entirety, and the 20-year sentence is upheld. 38. Orders are issued as follows; i. Appeal dismissed. ii. Conviction and sentence affirmed. iii. Right of appeal to the Court of Appeal within 14 days. Orders to issue accordingly. DATED, SIGNED AND DELIVERED THIS 2ND OF MAY 2025 VIRTUALLY VIA MT AT VOI HIGH COURT. ASENATH ONGERI JUDGE In the presence of:Court Assistants: Maina/Millicent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19631/eng@2025-05-02 4

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