Pkn v Republic

3. By an order issued thereon on 13th February 2025, this cause was transferred to this court for trial and determination and upon the admission thereof directions were issued on its disposal by way of written submissions which were duly filed and relied upon at the hearing herein. Submissions 4. On behalf of the appellant it was submitted that the trial court’s decision was based on flawed evidence and a misinterpretation of the legal principles. It was contended that the charge sheet stated that the victim was aged 13 years yet the evidence tendered in court was that she was aged 15 years as at the time of the alleged offence and therefore conviction was highly questionable since the aged raised reasonable doubt on the prosecution’s case. It was contended that the victim’s evidence was not corroborated and the medical evidence did not conclusively link the appellant to the act of defilement. 5. It was submitted that the prosecution case was based on the appellants responsibility for the pregnancy yet no DNA test was done to prove the said link. It was submitted that his defence of the false charge with the intention to extort money by the complaint’s aunt PW2 was not considered by the trial court which also failed to take into account how his was arrested compared with the evidence of PW3 the arresting officer . 6. It was submitted that this trial court did not conduct proper voir dire to establish the competency of the victim it testify as there was no record of specific questions posed to the victim and that failure to corroborate her evidence by other independent evidence was fatal as was stated in the case of Mohamed versus Republic [2006] eKLR . 7. It was contended that the appellants mitigating factors were not taken into account including his responsibility towards his children as was stated in the case of Ngugi versus Republic [2011] eKLR which the trial court only noted. It was therefore contended that the sentence was unjustified harsh and excessive and failed to align itself with the principles of rehabilitation and reintegration as required by modern jurisprudence on sentencing having placed more emphasis on deterrence without considering that the appellant was a first offender . 8. For the respondent it was submitted that penetration was proved through the evidence of the victim PW1 who became pregnant and started living with the appellant before being arrested as corroborated by her guardian PW2 and PW4 the medical officer who examined her. Her age was proved through the evidence of PW5 the Investigating Officer to be 15 years as per the age assessment report and that the appellant was identified by recognition as PW1 used to go to his house from where they were arrested. 9. The appellants defence was considered by the court and dismissed. On the sentence it was submitted that the same was neither harsh or excessive and that the court considered pre-sentencing report. Proceedings 10. The complainant’s evidence was that the accused waited for her on her way from school and lured her to his house on the pretext of showing her something and had sex with her. He would thereafter would meet her on her way to school and have sex with her until she got pregnant for which he took the responsivity and invited her to his house from where they were arrested. She was taken to the hospital where she tested positive for HIV. She delivered a sickly child. The same died in the month of February. In cross examination she confirmed that her brother came to the appellants house with Police who arrested him as he was going out of the house. 11. PW2 the victim’s brother stated that he was looking for her having missed school for three days. In cross examination he denied having demanded for money from the appellants brother and colluding https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5221/eng@2026-04-23 2

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with the investigating officer to falsely implicate the appellant. PW3 SGT Otieno Akoko arrested the appellant and the complainant from his house and took both of them to Kayole police station while PW4 Dr Farah Mohamed produced the P3 form on the complainant who had a positive pregnancy test. 12. PW5 George Onam the Investigating officer conformed that the appellant was arrested on the complaint of cohabiting with a minor whose age was accessed at 15 years and that she gave birth on 31st December 2021 but died before she testified. In cross examination he stated that the baby died so it was not possible to conduct DNA. 13. When put on his defence the appellant stated that on 21st June 2021 while on his way to his mjengo site he met a Probox vehicle at the gate carrying the complainant and her brother with the police whom he thought were looking for changaa, he took them to his house where they told him to set off his Tv before arresting him and took him to the police station where he stayed for some days before being asked if he had impregnated PW1 which he denied. That the aunt of PW1 later asked his brother to give them 500.000 to withdraw the case and that her brother used to be his friend . Determination 14. This is one of those sad cases in which not only did the complainant who was a total orphan living with her aunt, she fell victim of the appellant who not only made her pregnant but infected her with HIV which killed the child born out of the illicit sexual activity in addition to her dropping out of school. 15. At the time of this judgement, nothing was said of her , whether she is still alive or she became statistic in this country of tutam and wantam or lindaground or mwanainchi . 16. The only issue for determination on this appeal is whether the prosecution case was proved. From the evidence on record penetration was proved beyond reasonable doubt by the fact that the victim got pregnant and the appellant in his honest but mistaken believe told her to tell the police that she was his husband, the age was proved through the age assessment test to be 15 years and since the appellant was charged under section 8(1) of the sexual offence Act the fact that the charge sheet read 13 years was nit fatal to the prosecution case as age is only relevant when it comes to sentence 15 years which falls with sub section 3, I therefore find no contradiction on the evidence tendered as regards the age. 17. In this cause the complainant was aged 15 years and therefore not a child of tender age, the appellant’s submissions that voir dire was not conducted as required in law has np basis having noted from the proceedings that even though not mandatory, the trial court conducted one and found that she understood the nature of the case and the importance of telling the truth. 18. The appellant was positively identified by recognition, the complaint knew him as a neighbour and his defence in chief he confirmed that he knew the victim’s brother. He was arrested at his house together with the victim whom he had instructed to tell the police was his wife. The appellants submissions that absence of DNAS evidence to link him to the child born out of the act of defilement has no merit because the issue which was before the trial court was not the paternity of baby but penetration which was proved through the p3 forms medical summary and the x-ray report confirming pregnancy . 19. In convicting the appellant on the strength of the victim’s evidence, the trial court had this to say “…. From the finding of the court on evidence on record that pw1 was co-habiting with the accused as at the time she was rescued, I find truth in her evidence that they had been having carnal knowledge. Never the less I do warn myself on the danger of convicting on the evidence of a single witness …… I find pw1 was a truthful witness and her evidence meets the test provided at section 124 of the Evidence Act”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5221/eng@2026-04-23 3

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20. I therefore find and hold that the prosecution case against the appellant was proved beyond any reasonable doubt and his conviction was safe and free of error. The appeal against conviction is dismissed . 21. On sentence , the age of the victim was proved to be 15 years and as per the provision of section 8(3) of the sexual offences Act ,the sentence provided for is for a term not less than twenty years. The appellant was therefore sentenced to the lawful minimum sentence which can not be said to be harsh and excessive as the court took into account the fact that the appellant tricked the victim to his house and prayed on her. I have also noted that in addition to destroying the victim’s future, he was also infected with HIV which led to the death of the child born out of the illicit union. 22. I will therefore not interfere with the court’s discretion on sentence. The appeal against sentence is found to lack merit and is dismissed. 23. It therefore follows that the appeal lacks merit both on conviction and sentence and is dismissed sav e that the sentence shall run from 28th June 2021 when the appellant appeared in court in compliance with the provision of section333(2) of the CPC which the trial court did not comply with. And it is ordered . SIGNED DATED AND DELIVERED THIS 23rd DAY OF APRIL 2026 J. WAKIAGA JUDGE In the presence of: Gitonga – Court Assistant The appellant in person Ms Kariuki for the Prosecution https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5221/eng@2026-04-23 4

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