High Court 586 of 2026

6. He then got into the house and sat. He told her that she usually runs away from him, but he had now gotten her. The victim told him that she was unwell. He said he was aware of that. He had a panga which he normally carried. The Appellant then removed her biker and pant. He had sexual intercourse with her. The victim did not report the incident to her mother as she was scared of the Appellant. 7. In March 2022 she missed her menstrual period. She was pregnant. She informed the Appellant about it and said he did not want to know about it. He told her to get lost, by moving far to her relatives. She told him that she had no father. When the schools closed, rather than going home she went to Isiolo at her Cousin’s place. 8. The mother started looking for her. She returned home in May, 2022. The mother was happy to see her and urged her to go back to school. She declined and the mother reported her to the Area Chief. The Chief summoned her and its then she disclosed that she was pregnant, and the culprit was the Appellant herein. 9. The Chief directed them to Nchiru Police Station where they reported the matter. They were referred to Maithene Sub-County Hospital for testing and treatment. Upon examination it was confirmed that the complainant (victim) was pregnant. They took the report back to the Police Station. 10. The Appellant got wind that the matter had been reported to the police. He visited the victim at home and gave her a copy of his National Identification Card. He urged her to use it and register to procure an abortion. The said identification card copy was taken to the Area Chief and then at the Police Station. It was kept as an exhibit. 11. On 24/5/2022, her P3 form was filled by PW3 at Miathene Sub-county Hospital. It was noted that she was 16 years old and was 5 months pregnant then. The clinician was of the opinion that she had been defiled. 12. The Appellant was arrested by officers from Kagaine which is under Nchiru Police Station. He was taken to Nchiru Police Station on 21/7/2022. 13. Later on 14/4/2023 PW-5 prepared an exhibit Memo form. The victim had given birth to a child namely GK on 12/10/2022. The Appellant, victim and the said born child, were presented on 14/4/2023 to PW-4 at Government Chemist in Nairobi for DNA test, to ascertain the paternity of the said child. PW-4, Dr. Christine Matindi carried out the test and found that the DNA profiles generated were 99.99 plus more chances that the Appellant is the biological father to GK. The report was made and signed on 4/5/2023. It was produced as prosecution Exhibit -6. 14. The Appellant gave a sworn testimony in his defence and called no witness. He averred that he was mostly working in Nairobi but there is a time he worked at Kamaroo Sub-location. At the time the victim and her mother were moving around selling chapatis at the sites. The Appellant was their customer. PW-2 was impressed by his work and jokingly said she would give him her daughter as a wife. Three days after, the victim sent him a message. He could not tell the sender and when he asked she said he will know later. The following day the victim went and called him aside. She told him she had sent the message. The Appellant asked her what she wanted and she said for them to be friends. She then said she wanted a sexual relationship. He asked her whether she was a student. She said she was not and had not been to school for an year. She told him that she was 19 years old. 15. The two begun a relationship and lived as girlfriend and a boyfriend. In December, 2021 the Appellant went back to Nairobi. He returned to Kamaroo in January, 2022. He found the victim missing. 16. They looked for her, together with the mother and father, as well as other relatives. They were told she had gotten married at Homabay. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/586/eng@2026-01-29 2

page 2 of 4

17. The mother requested the Appellant for 20,000/- to get the victim home. The Appellant said he could only afford 10,000/-. In February, 2022 the mother (PW-2) requested for the 10,000/-. The Appellant did not have the money. Later PW-2 told him that the victim had been impregnated by him and that is why she was asking for the 10,000/-. The Appellant said he had no money and was not certain about the allegation given that the victim had been married off. 18. She alleged that the Appellant had abused her, and reported the case. The Appellant was arrested and charged. 19. The trial Court evaluated the evidence and found the Appellant guilty of the offence in the main count. He was convicted of it and sentenced to serve 20 years imprisonment. 20. Dissatisfied with the said conviction and sentence, the Appellant preferred an Appeal before this Court on the grounds that:1. The charge sheet is fatally defective. 2. He was not accorded a fair trial since Section 200 of the C.P.C was not complied with. 3. The sentence meted against him is harsh and excessive. 21. The Respondent opposed the Appeal on conviction but on sentence stated that since the law provides for the offence under Section 8(4) of the Sexual Offences Act for a minimum sentence of 15 years, the Court can prefer the minimum sentence instead of the imposed 20 years imprisonment. 22. The Appeal was canvassed by way of written submissions and both sides filed their respective submissions. 23. I have re-evaluated the charges, the evidence adduced and as recorded by the trial Court, Judgment of the Lower Court, Sentence meted, ground of the Appeal and submissions filed. 24. In the grounds of the Appeal, the Appellant alleges the charge is defective as the wrong law is cited as penal code, instead of Sexual Offences Act, No. 3 of 2006. I do agree with him that the wrong Act is cited as he alleges, but the question the Court need answer in determining on the issue is whether the mistake/defect misled the accused or caused prejudice. In his case the charge discloses the correct offence, the correct Section under which he’s charged, correct or proper particulars of the offence, and the mere fact that the wrong Act was invoked, constitutes a technical defect of which is curable under Section 382 of the Criminal Procedure Code. The Section reads:“ No finding, sentence or order shall be reversed or altered on account of an error or omission in the charge unless it has occasioned a failure of Justice”. 25. In Yongo –vs- Republic (1983) KLR 319, the Court of Appeal held:A charge is defective only if it does not disclose an offence or if it misleads the accused. I therefore find the defect curable in law. 26. The Appellant also alleges defect in the charge sheet, for the reason that the victim as of the time of the alleged offence was aged 17 years and not 16 years as indicated in the particulars of the offence. However, his view on this is incorrect. The produced Birth Certificate shows the complainant was born on 20 April, 2005. The offence was allegedly committed in December 2021. She turned 16 years old on 20/4/2021 and 17 years old on 20/4/2022. In December, 2021 she was therefore 16 years old as correctly indicated in the particulars of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/586/eng@2026-01-29 3

page 3 of 4

27. On the 2nd ground he argues that Section 200 (3) of the Criminal Procedure Code was not complied with. I have perused the Lower Court proceedings. I have noted there was compliance on 7/11/2023 when Hon. Y Agwata took the matter over, from Hon. P. M. Wechuli, who had heard PW-1. It was indicated the matter was to proceed from point reached. 28. Since this is a first appeal, and I am under the duty to re-evaluate the charges, evidence adduced, Judgment and sentence of the Lower Court, will do exactly that though the Appellant seems not to have any other issue. 29. The key ingredients for the offence of defilement which the prosecution must prove beyond reasonable doubt are:1. Age of the victim, who must be under 18 years old (a child/minor). 2. Penetration of genital organs by genital organs. Here, slightest penetration would suffice for the offence. 3. Identification of the Appellant as the real culprit. 30. On age the Court has already indicated the victim was aged 16 years old, given her date of birth as shown in her Birth Certificate, and the alleged date of the offence. The fact is therefore settled. 31. Concerning penetration, the Appellant does not deny it. In his defence he stated they lived as girlfriend and a boyfriend and only doubted paternity of the born child for the complainant got married, thereafter. However, the DNA report shows he’s the biological father of the born child, leaving no doubt at all on whether there was penetration. Unless otherwise shown, it’s obvious that ordinarily and naturally, pregnancy is effected through a process that involves penetration. PW-1’s evidence is to the said effect. There is no doubt that the victim was penetrated. 32. PW-1 positively recognized the culprit. The evidence is buttressed by the DNA report and the Appellant himself does not deny it. He is the real culprit. The conviction was therefore right and is hereby upheld. 33. On sentence, since the victim was aged 16 years old, the law provides for a minimum sentence of 15 years imprisonment. The Appellant was sentenced to 20 years imprisonment. The Magistrate had the discretion to go beyond the provided minimum, but only if there were available strong aggravating circumstances. In this case there weren’t. 34. The State does not object to reduction of the sentence to 15 years imprisonment. 35. I do therefore find merit on Appeal against the 20 years imprisonment, and the same is reduced to 15 years imprisonment to count from 22/7/2022 as indicated by trial Magistrate. DATED AND DELIVERED AT MERU THIS 29TH DAY OF JANUARY, 2026. S.M. GITHINJI JUDGE Appearances: Appellant present at Meru G. K. Prison Ms. Adhi for the State. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/586/eng@2026-01-29 4

page 4 of 4