Joseph Mtawali Kadenge v Republic

4. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated: The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant. 5. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator. The prosecution must establish these ingredients to the required standard, namely beyond reasonable doubt. 6. As regards age the Complainant told the Court that he was 14 years old. PW3 stated that Dr. Ibrahim who examined the Complainant concluded that “there was sodomy in a 13 years (sic) old”. This was also indicated in the P3 form. The age of the Complainant was not challenged by the Appellant. 7. On penetration, the Complainant testified that on the material day, on his way back to school from home after lunch, he met the Appellant and one Martin. The Appellant who was holding a panga asked Martin to hold the Complainant by the hand. The Appellant then pushed the Complainant into a bush and ordered him to remove all his clothes and bend. The Appellant then applied saliva on his penis and inserted it into the anus of the Complainant. When he was done, the Appellant told the Complainant to wear his clothes and threatened to beat him if he told anyone what happened. When the Complainant got to school, he reported the matter to his teacher Mr. Muriha who told him to go and report to Mr. Mradio. The Appellant was called to the office and told to go home and return with his parents the following day. The Complainant was examined at Baolala Hospital for examination and it was confirmed that he had been defiled. He further reported the matter at Lango Baya Police Station and he was referred to Malindi General Hospital. 8. PW2 Moses Rimba a clinician at Malindi Sub County Hospital produced the treatment notes and P3 form on behalf of Dr. Ibrahim. He stated that Dr. Ibrahim found that the Complainant was in pain and that his anus was inflamed and had injuries. The doctor concluded that there was sodomy. From the Complainant’s testimony and the medical evidence, the ingredient of penetration was established. 9. On identification, the Complainant recounted how he was attacked by the Appellant who is known to him. They attend the same school and are from the same village. He was able to point him out in the trial court. 10. The Appellant contends that there were contradictions and gaps in the prosecution evidence. Although he says that the evidence of PW1 contradicted that of PW2, he does not state what the contradiction is. He further submitted that the evidence of PW1 and PW3 raises doubt as to whether the victim was defiled by the Appellant and further that they contradicted themselves. The Appellant does not however make any substantiation. 11. The Appellant contends that it took 2 months for medical examination to take place and that no injuries were noted on the victim. The record however shows that the Complainant was defiled on 17.3.21 and medical examination was done 2 days later on 19.3.21. Further, the Appellant refers to a female victim and a broken hymen which have no nexus with the case herein where the victim is a boy. A careful reading of the Appellant’s submissions indicates that the submissions by the Appellant do not relate to the matter herein. In the end, the Court finds that the Appellant is just clutching on straws. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/338/eng@2026-01-23 2

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12. I now turn to the ground that the trial Magistrate did not consider the Appellant’s defence. The record shows that the trial Magistrate in her judgment found the Appellant’s defence to be evasive. Further that he did not provide a proper defence that would exonerate him from the charges. 13. Contrary to the Appellant’s contention, the trial Magistrate did consider his defence but found that the same did not shake the prosecution evidence. I therefore find the Appellant’s claim that his defence was not considered, to be without basis. 14. After carefully reviewing the evidence, I make a finding that the trial Magistrate arrived at the correct decision and cannot be faulted for returning a verdict of guilty. The evidence against the Appellant was overwhelming and the ingredients of the offence of defilement were proved to the required standard. 15. In the end, and for the stated reasons, the Court finds that the Appeal herein is devoid of merit and the same is hereby dismissed. DATED, SIGNED AND DELIVERED IN MALINDI THIS 23RD DAY OF JANUARY 2026 __________________________ M. THANDE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/338/eng@2026-01-23 3

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