Abdishakur Hassan Ahmed v Republic

when she joined form 1, the accused did approach her again and she accepted his advances and would meet at his house, where they had intercourse on several occasions. 4. Later she got pregnant, and upon being confronted by her family, the appellant denied responsibility for the same. As a result, she did drop out of school and later gave birth on 26.01.2023 to a baby boy named, ABO. PW1 confirmed that the accused was a person well known to her, as he had previously been employed at their home and stayed with them during the material time. 5. Under cross examination, she reaffirmed her earlier evidence and insisted that they had sexual intercourse with the appellant on several weekends at his house within, Sessi and that he was the person responsible for the pregnancy since she had not had sex with anybody else. 6. PW2 KMG confirmed that PW1 was her daughter, and though initially, she had denied being pregnant, they had established the said fact through medical examination. She then contacted PW1’s uncle, one “AA”, who informed the area chief and the elders and they then did summon the accused person, who initially admitted to being the unborn child’s father, but later changed track and denied being responsible for the same. They did thereafter report the matter to the police and took PW1 to the hospital for examination. She confirmed that she knew the accused person as he had worked and stayed at her home for some time. 7. Under cross examination, PW2 confirmed that initially PW1 had denied being pregnant and insisted that she only had an infection, for which she had sought medical treatment, but she did not believe in her as her belly was already protruding. She had also previously seen the accused walk with her daughter but had no reason to be suspicious. It was also her evidence, that she believed her daughter, when she stated that the accused was the father of the minor and was prepared to have a paternity test taken to establish the said fact. 8. PW3, ROA, recalled that on 03.11.2022, she informed her mother (PW2) that she suspected that her sister (PW1) was pregnant as she kept on sleeping. When confronted by PW2, PW1 denied being pregnant but this fact was established by medical evidence and later was discussed by the elders. She confirmed that the appellant was well known to them and was like a brother as he had stayed with them. Under cross examination, PW3 confirmed that PW1 did not tell her who was responsible for the pregnancy but knew that the appellant was PW1’s boyfriend. 9. PW4 AAA alias F, stated that he was a community health worker at Moyale sub county hospital outpatient clinic was the victim’s uncle. He recalled that on the evening of 06.11.2022, PW3 and PW1 had come to see him and he proceeded with them to Moyale Sub County hospital, where the pregnancy was confirmed. Thereafter he went and reported the matter at Moyale police station, since PW1 was still a minor, and she confessed that it was the appellant who was responsible for the said pregnancy. Earlier on the said date, he had called the appellant and summoned him to go see him. He confronted him with the prevailing facts in the presence of other elders, but he had denied impregnating PW1. 10. PW5 Dr Dambe Bako, a medical officer based at Moyale Sub County hospital stated that he was on duty at the hospital, on 07.11.2022, when PW1 was escorted to the said hospital by the police, who gave a history that she had been defiled severally by a person known to her and requested that she be examined. On examination they confirmed that she was 28 weeks pregnant and the foetus was alive and single. Other laboratory tests returned normal results and he proceeded to fill in the P3 form and PRC form, which he produced into evidence along side the medical treatment notes. Under cross examination he confirmed that they did an ultra sound examination to get the approximate age of the foetus. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5416/eng@2026-04-22 2

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11. PW6 Sergeant Tume Huka, stated that on 07.11.2022, she reported on duty and found a defilement case minuted to her for investigations. After about 30mins the complainant and the mother came to the police station and upon interrogating the minor, she confirmed that she had been defiled and was pregnant. She proceeded and took her for medical examination after which the P3 form and PRC form were filled. Later after she had recorded the relevant witness statements, she did proceed and arrested the appellant, at Moyale GK Prison, where he worked as a prison warden. PW6 also produced PW1 birth certificate, which indicated that she was born on 27.07.2007 and thus was about 15 years old, at the time of the incident. 12. PW6 further confirmed that at the time of reporting the incident, PW1 was about 7 months pregnant, and later gave birth in January, 2023. She had also told her that the person responsible for the pregnancy was a neighbour with whom they had severally engaged in sexual intercourse with him at his residence on diverse dated of May 2022. Under cross examination PW6, confirmed that PW1 told her that it was the appellant who was responsible for the pregnancy and had not had sexual intercourse with any other person. 13. The prosecution closed their case at this point and the appellant was placed on his defence. At this point the accused, through his counsel made an application that DNA test be conducted to establish the paternity of the child, with the prosecution opposing the said application but the same was allowed in the interest of justice. C. Defence Case 14. The appellant opted to give sworn evidence and stated that he understood the charge he faced and also confirmed that PW1 and her family was well known to him as they came from the same village/locality. He strenuously denied having any sexual relationship with the minor and therefore was not the father to her child. He further confirmed that PW4 had summoned him and told him to marry the minor, to avoid a situation, where the matter would be escalated to the authorities, but he refused to do so as he was already engaged to a different lady and considered PW1 to be a minor and a relative. 15. He also was categorical, that he did not agree with the results of the DNA, which found that he was the father PW1’s child. Under cross examination, the appellant emphasized that he did not impregnate PW1 as she was never his girlfriend and reiterated that the DNA results were not accurate. 16. DW2 Hassan Ahmed Mohamed, confirmed that DW1 was his son, who resided in one of the rooms within his compound. He recalled that in November 2022, the allegation that DW1 had impregnated PW1 emerged and the elders of both sides had discussed the said issue, but no positive outcome was reached. After the said discussions, the appellant was subsequently arrested and was charged in court. He confirmed that the accused was married and was blessed with two children, but his wife resided far away, and thus he had decided to remarry a different lady, but the said plans were scuttled, when this case cropped up. 17. DW3 Abdalla Wako Dabasa, recalled that when the issue cropped up, he was amongst the four (4) elders called to discuss and try to resolve the said matter. The appellant denied being responsible for the pregnancy and thus were unable to resolve the case. Later the accused was arrested and charged in court. He also clarified that the minor was not at the said meeting and had the accused admitted, paternity, they would have had a customary solution to the problem. 18. The appellant closed his case at that point and the Trial Court proceeded to considered the evidence adduced and found the appellant guilty of the offence of defilement of a minor contrary to section 8(1) as read with section 8(3) of the sexual offences Act No 3 of 2006. The court considered the appellant's https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5416/eng@2026-04-22 3

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mitigation and proceeded to sentence him to serve twenty (20) years imprisonment, which is the minimum sentence as prescribed in law. D. The Appeal 19. Being wholly dissatisfied by the said judgment and sentence, the Appellant filed his petition of appeal and raised the following grounds of Appeal; a. That the learned Trial Magistrate erred in law and fact by failing to determine that the prosecution failed to discharge its burden of proof as they have offered no direct or circumstantial evidence to link the accused to the offence beyond reasonable doubt. b. That the learned Trial Magistrate erred in in law and in fact by relying on DNA test results despite the same not having been produced as Exhibit in court in accordance with the Evidence Act. c. That, the learned trial magistrate erred in law and fact by failing to consider the numerous inconsistences and contradictions in the evidence tendered by the prosecution witnesses. d. That, the learned trial magistrate erred in law and fact by failing to determine that the evidence of the complainant was no corroborated by testimonies of other prosecution witnesses hence it was not safe to convict the accused base don uncorroborated evidence. e. That, the learned trial Magistrate erred in law by failing to consider that the mitigation of the Appellant and sentencing him to maximum sentence under the law. 20. The appellant therefore prayed that the court finds favour with this Appeal and do set aside his conviction and that his sentence be quashed and he be set free 21. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up with its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanour. This court relies on the finding of the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, where they stated thus: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. 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 findings and 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.” 22. In the case of Republic v Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India case of Murugan & Another v State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 where the case of Bhagwan Singh v State of M. P. (2002)4 SCC 85 was cited as follows:“ The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view of ignoring https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5416/eng@2026-04-22 4

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the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining whether all or any of the accused has committed any offence or not.” 23. I have considered the entire record of Appeal, the trial bundle record and the submissions on record filed by the parties and I find that the issues that arise for determination are as follows; a. Whether the offence of defilement was proved. b. Whether the trial magistrate erred in relying on the DNA evidence, despite the same not having been produced as an Exhibit in court, in accordance with the Evidence Act. c. Whether the sentence passed was harsh/excessive. Whether the offence of defilement was proved. 24. The Appellant was found guilty of the offence of defilement contrary to section 8 (1) as read together with section 8 (3) of the Sexual Offences Act, No 3 of 2006. The said sections provide that; 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(2) “A person who commits an offence of defilement with a child aged twelve years and fifteen years is liable upon conviction be to imprisonment for a term of not less than twenty years.” 2. 25. Three elements to be proven in a case such as this are; a. Age of the complainant; b. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and c. Positive identification of the assailant On this question of age, PW1, the victim and her mother confirmed that she was 15 years old and this was corroborated by the evidence of the investigating officer, PW5 who produced the said birth certificate No 001631742, which confirmed that PW1 was born on 27.07.2007. No contrary evidence was adduced and as such the court finds that this element was proven beyond reasonable doubt. 3. On the issue of proof of penetration, Section 2(1) of the sexual offences Act defines penetration as follows; “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 26. PW1 narrated in detail how the appellant, lured her into a relationship and she eventually got pregnant and delivered a baby boy on 26.01. 2023. When the appellant discovered that she was pregnant he denied responsibility, but PW1 was categorical that she had not had any other boyfriend and therefore her predicament was squarely caused by the appellant. Before the defence case was heard, the appellant through his counsel requested that a DNA test be conducted and indeed the same was done and the results filed in court vide the report dated 28th September 2024. The findings were conclusive that the appellant is the biological father of the child. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5416/eng@2026-04-22 5

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27. The appellant in defence commented on the said report and stated that he did not agree with its finding. It is now well settled that penetration can also be proved by direct or circumstantial evidence. The Supreme court of Uganda put it succinctly in Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995 which was quoted with approval in Sammy Charo Kirao v Republic [2020] KLR where the court stated; “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the proved by the victim's own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to proved sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.’’ 28. This is so because, unlike other crimes where invariably eyewitness evidence is available, it is seldom that eyewitnesss accounts would be available in a sexual offense as the act will always be perpetrated in secrecy away from the public eye. That explains why the evidence to be relied upon more often than not will be the evidence of the victim corroborated by medical evidence (where available) and circumstantial evidence. 29. The evidence of PW1 was cogent and she did confirm her sexual encounter with the Appellant, which occurred on more than one occasion and it resulted in her getting pregnant. That alone is sufficient proof of penetration. Be that as it may, the trial Magistrate did also assess the complainant’s evidence and correctly found that she had given truthful evidence, which evidence was consistent even under cross examination. PW1’s evidence was therefore admissible based on provisions of Section 124 of the Evidence Act, Cap 80 Laws of Kenya and the trial magistrate cannot be faulted for arriving at the finding that indeed penetration had been proved. I do therefore find and hold that penetration was sufficiently proved. 30. Further, on this issue, While the appellant faulted the court for relying on the DNA test result filed in court by the Investigating officer, it should be noted that he is the one who called for the same and should have presented it as part of his evidence, but deliberately avoided to do so because it directly implicated him as the guilty party. Be that as it may during defence hearing the appellant made reference to the said report and denied its content. He therefore was aware of the said report and its content was an issue which arose during trial, for which the trial court cannot be faulted for addressing and making a conclusive determination thereon. 31. Finally, even if the court were to ignore the said report, the inference to be drawn from his refusal to present the said DNA result is that its findings implicate him as the father to the child born by PW1. See Michael Kinuthia Muturi V R CRA 51 of 2002 (NRI, where the issue of negative inference was addressed. 32. The third element is that of identification. PW1 confirmed in her evidence in chief that she knew the appellant as he was at one point their employee and resided with them. This fact was confirmed by PW2 and PW3. In his defense, the appellant too confirmed this fact and therefore, this was a case of recognition as the victim knew the appellant well by name and physical appearance.See; Peter Musau Mwanzia v Republic [2008] eKLR, where it was stated that evidence of recognition carries more weight as the risk of mistaken identity is very minimal. 33. Considering the totality of the evidence adduced, I do find that the prosecution did ably discharge the burden and indeed proved that the appellant did defile the complainant. The offence of defilement was therefore proved. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5416/eng@2026-04-22 6

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Whether the sentence passed was harsh/excessive. 34. As regards the sentence, This Court is guided by the principles in the Court of Appeal case of Bernard Kimani Gacheru v . Republic [2002] eKLR where it was stated as follows: “ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 35. The principles guiding interference with sentencing by the appellate court were also properly set out in S Vrs Malgas (1) SACR 469(SCA) at para 12, where it was held that; “ A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. 36. The appellant was charged with the offence of defilement contrary to Section 8(1) & (3) of the Sexual offences Act, no 3 of 2006, which provided for a minimum sentence of 20 years, should the accused be found guilty. 37. In Republic v Joshua Gichuki Mwangi: Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Supreme Court reiterated its decision in Muruatetu II and emphazised that the sentences in the Sexual Offences Act were legal and went on to overturn a reduction of sentence imposed by the Court of Appeal. The Court held; “ In the Muruatetu case, the Court solely considered the mandatory sentence of death under section 204 of the Penal Code as it was applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that applied for example to capital offences, were vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the legislature, took into consideration a number of issues including deterrences of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities. Stern sentences ensured that prejudicial myths and stereotypes no longer culminated in lenient sentences that did not reflect the gravity of sexual offences.” “…..However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5416/eng@2026-04-22 7

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guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.” 38. In Shitula v Republic [2025] KECA 12 (KLR) the Court of Appeal recently, (January 2025) based on the above Supreme Court decision, held that life imprisonment imposed by court was a legal sentence and upheld it. It observed that; “ The Supreme Court has spoken clearly through the Gichuki case (supra) and we are bound by that decision-age, rehabilitation and remorse notwithstanding, the minimum life sentence meted out was legal and must be upheld, as we hereby do. The appeal thus fails in its entirety and is dismissed”. E. Disposition 39. 40. Having considered the entire appeal I do find and hold that; a. The Appeal against conviction and sentence lacks merit and the same is dismissed b. Right of Appeal 14 days It is so ordered. JUDGMENT READ, SIGNED AND DELIVERED IN VIRTUALLY COURT AT MARSABIT THIS 22ND DAY OF APRIL 2026. FRANCIS RAYOLA OLEL JUDGE Delivered on the virtual platform, Teams this 22ND day of APRIL 2026. In the presence of:……………………………………..Appellant ………………………………….For O.D.P.P ………………………………….Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5416/eng@2026-04-22 8

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