Ambrose Katana Charo v Republic

in the forest for three (3) days during which time they had sex three (3) times. She knew the appellant since he used to be her class teacher and also taught her. That she also had sex with the appellant in April 2017, May 2017 and June 2017 after which she got pregnant. She reiterated that the appellant would call her after school, they would meet in a nearby forest, engage in sex at around 9pm at night. 5. She went on to testify that she knew she was pregnant in June 2017 after her teacher, Mr Ambrose discovered it. She told Mr Ambrose that it was the appellant who impregnated her prompting him to report to Bamba Police station. She was then taken to hospital for examinations which confirmed that indeed she was pregnant. She went on say that the appellant terminated the relationship after he knew that she was pregnant. She subsequently delivered on 4 January 2018. 6. PW3 Mr Anderson Kaingu, a clinical officer officer at Kilifi district officer testified that the complainant was examined at Kilifi County hospital where it was established that her hymen was broken. He produced the P3 form (exhibit 2) dated 14 December 2017 and signed on 9 February 2018 as well as the Post Rape Care form. 7. PW 4 PC Charles Onderi based at Bamba police station testified that he took over the file from the previous investigating officer who had since been transferred. He testified the complainant was born in February 2002 and produced her birth certificate as evidence. 8. At the close of the prosecution’s case, the trial court held that a prima facie case had been proved and placed the appellant on his defence. 9. The appellant testified on oath and called two (2) witnesses in defence. He denied the charges which he termed as tramped up. He testified that he was a teacher at [Particulars Withheld] Primary school and knew the complainant who was a student that school in 2017. He stated that he was arrested on 16 January 2018 while he was in School and that during interrogations, the complainant named six (6) different men, including Peter Benja as responsible for the pregnancy. He alleged that the investigating officer, PC Maureen demanded Ksh. 100, 000 which she intended to take to the prosecutor so that the charges can be dropped by he declined. 10. DW 2 and DW 3’s evidence was that they are both neighbour’s of the appellant and that it was the complainant’s mother who was forcing her to implicate the appellant. 11. At the close of the trial, trial court delivered judgement where the appellant was found guilty of defilement and sentenced to serve ten (10) years imprisonment. 12. Aggrieved, the appellant filed the present Appeal where he raised the following grounds of appeal: a. The trial court erred in both law and fact by failing to appreciate that the case was not proven beyond reasonable doubt. b. The trial court erred in both law and fact by relying on questionable and fabricated documentary medical exhibits to convict the appellant. c. The trial court erred in both law and fact by failing to appreciate that Article 50 (2) of the Constitution, section 151 of the Criminal Procedure Code and sections 128, 152 and 154 of the Evidence Act were violated. d. The trial court erred in both law and fact by failing to appreciate that this case was not properly investigated. e. The trial court erred in both law and fact by failing to consider the defence of the appellant and that DNA test was not conducted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9125/eng@2026-06-18 2

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13. The appeal was heard through written submissions. The appellant filed written submissions which he relied on. The Respondent undertook to file written submissions by close of business 19 May 2026 but failed to do so. 14. In his submissions, the appellant admitted knowledge of the complainant but submitted that that identification and penetration as ingredients of the offence of defilement were not proved. He contended that there were inconsistencies between the testimony of the complainant and the evidence on record in the P3 form on the date of the pregnancy. He challenged the P3 form which he termed as unreliable and questionable due to inconsistencies. He further argued that his right to fair trial under Article 50 (2) of the Constitution as read with Section 128, 153 and 154 of the Evidence Act was violated since he was denied an opportunity to cross -examine PW2. He termed the entire investigations as shoddy and unreliable, and urged the court to allow the appeal, quash the conviction and acquit him. Analysis and determination 15. This being the first appeal, the duty of this court is to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32. 16. The Court of Appeal, in Kiilu & Another vs Republic [2005]1 KLR 174, 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; 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.” 17. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The said Act provides: “ 8 (1) A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 18. The specific elements of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: proof of penetration; age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013. 19. Drawing from the above, the issues for determination in this appeal are as follows: a. Whether penetration was proved. b. Whether the Appellant was positively identified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9125/eng@2026-06-18 3

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c. Whether the age of the complainant was proved. d. Whether the Appellant’s right to fair trial under Article 50 (2) of the Constitution was violated. Proof of Penetration 20. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. 21. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Criminal Appeal No. 35 of 1995. The above position has been restated in many other decisions. In Kassim Ali vs Republic [2006] eKLR, the Court of Appeal observed as follows: “ So, the absence of medical examination to support the fact of rape or defilement is not decisive as the fact of rape or defilement can be proved by oral evidence of a victim of rape or circumstantial”. 22. This being a sexual offence, the case can be proved on the victim’s sole testimony under Section 124 of the Evidence Act. The Court of Appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held:“ The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. 23. The above position was affirmed by the High Court in the case of Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR). 24. The complainant testified that she knew the appellant very well since he was her teacher at [Particulars Withheld] Primary School in 2017. She went on to say that she had sex severally with the Appellant at [Particulars Withheld] forest between March, April, May and June 2017. She maintained the said position during cross examination. Medical evidence produced by PW3 confirmed that her hymen was broken. She became pregnant and delivered on 4 January 2018, a fact that was admitted by the appellant. What was in contention is whether the appellant had sexual intercourse with the complainant. 25. The appellant while admitting knowing the complainant, testified that she was of bad character, had mentioned 6 other men and the charges were trumped up. He submitted in appeal that no DNA was conducted to prove that he was the father of the complainant’s child. The court notes that the appellant did not rebut or challenge the specific facts by the complainant. He did not deny meeting the complainant in the forest as stated by the complainant or that he had sexual intercourse with her as per her evidence. Her evidence was cogent, consisted and credible. 26. No evidence was placed before court to show that there was bad blood between the complainant or her family and the appellant to give credence to the allegations that she was being forced to implicate the appellant. The trial court in its judgement at paragraph 48 held; “I find the evidence of PW.1 was credible and truthful and dismiss the accused defence that it is her mother who forced to implicate the accused”. This court finds no reason to doubt the credibility of PW1. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9125/eng@2026-06-18 4

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27. The fact that the complainant may have engaged in sexual intercourse with other persons other than the appellant does not absolve the appellant. Consequently, even if there was evidence that the complainant had sex with six (6) other people as alleged by the appellant, that would be a defence where it is established that he also had sex with the complainant. 28. The appellant challenged the medical evidence on grounds that it contained inconsistencies. The court has examined the P3 form and did not find any inconsistencies as alleged. The P3 form clearly shows that the offence was reported on 14 December 2017 vide O.B No. O.B 18 dated 14 December 2017, the victim was examined and the report was prepared and signed on 9 February 2018. While considerable time had lapsed since the occurrence of the offence, the facts remained that the complainant became expectant as a result of sexual intercourse and subsequently delivered a child. 29. The appellant further argued that DNA was not conducted to show that he was the father of the complainant’s child. The requirement of DNA testing in Sexual Offences cases is addressed in Section 36 of the Act. The said Section provides: “ 36. (1) Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence”. 30. The question for determination is whether the failure to conduct a DNA test is fatal to the prosecution’s case. 31. Section 36 (1) of the Sexual Offences Act is not couched in mandatory terms but grants discretion to the court to order for forensic or other scientific testing, including DNA for purposes of obtaining additional evidence to link a party to the offence. That provision does not oust the provisions of Section 124 of the Evidence Act which remains applicable to this case. The court of appeal in the case of Williamson Sowa Mbwanga vs Republic (2016) eKLR held: “ As regards the first ground of appeal, it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred Vs. Uganda, Cr. App. No. 139 of 2001)”. 32. Drawing from the above, the court takes the view that while DNA would have provided additional evidence, there is no legal requirement that DNA must be conducted to sustain a conviction in a sexual offence. Under Section 124 of the Evidence Act, in sexual offences such as this, a person can be convicted on the victim’s sole testimony. Consequently, the failure to conduct DNA is not fatal to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9125/eng@2026-06-18 5

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the prosecution’s case. The court finds that, based on the evidence taken as a whole, the element of penetration was established beyond reasonable doubt. Proof of age 33. On the issue of the age of the complainant, appellant submitted that no evidence was placed before the court to show that the complainant was a child as alleged. The charge sheet stated that the complainant was 16 years old thus a child within the meaning of Section 2 (1) of the Sexual Offences Act. 34. The age of a victim may be proved in various ways. The Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR stated: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 35. PW 1 testified that she was 16 years old at the time of commission of the offence. PW4 produced the complainant’s birth certificate which showed that the complainant was born in February 2002 meaning that she was 15 years old at the time the offence occurred. The authenticity of the birth certificate was not challenged and the court finds that the complainant was 15 years at the time of commission of the offence, thereby proving this ingredient beyond reasonable doubt. Proof of identiffcation of the appellant as the perpetrator 36. On the issue of identification, the complainant testified that she knew the appellant very well since he was her class teacher in 2017 while she school at [Particulars Withheld] primary school, which fact was admitted by the appellant. She identified the appellant as the perpetrator who she had engaged in sexual intercourse her severally. This court upholds the trial court’s finding that the appellant was positively identified. SUBDIVISION - Whether there was violation of the appellant’s right to fair trial under Article 50 (2) of the Constitution 37. The appellant argued that his rights to fair trial under Article 50 (2) of the Constitution were violated since he was not afforded an opportunity to cross -examine PW2. He contended that this omission violated Sections law in the Evidence Act and Criminal Procedure Code that provide for examination of witnesses. 38. The court has examined the record of proceedings before the trial court and notes that that PW2 gave his evidence in chief on 22 May 2019 but was stood down before cross examination since the appellant had just been supplied with his witness statement and required time to prepare. The witness was not recalled. The trial court in its judgement, addressed this issue at paragraph 27 as follows, “It is PW2 who was stood down and the court will not consider his evidence when arriving at its decision”. The evidence of PW2 was not considered by the trial court in arriving at the decision and this court finds that the appellant was not prejudiced as all by the omission of that evidence. Consequently, the court finds no evidence to support this claim. 39. The court also carefully considered the defence advanced by the appellant and concludes that he did not seriously challenge the fact that he had sexual intercourse with the complainant, but was only challenging the paternity of the complainant’s child. The court is therefore satisfied that the trial https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9125/eng@2026-06-18 6

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court properly rejected the Appellants’ defence and finds that the Appellant was properly convicted of the offence of defilement and there is no basis for interfering with the finding of the trial court. Accordingly, the appeal against the conviction fails and is dismissed. Sentencing 40. The appellant was sentenced to 10 years imprisonment for the offence of defilement contrary to section 8(1) as read with section 8 (3) of the Sexual Offences Act. Section 8 (3) of the said Act sets the minimum mandatory period of imprisonment to be 20 years. Evidence shows the complainant was 15 years at the time of commission of the offence meaning that the sentence of 10 years was below the mandatory minimum set by law. 41. The Supreme Court of Kenya in Petition E018 of 2023, Republic vs Joshua Gichuki Mwangi held that the mandatory minimum sentences set out in Section 8 of the Sexual Offences Act are lawful and binding. The court finds that the trial court erred in awarding a sentence that is lower than the mandatory minimum prescribed by law. 42. Section 354 (3) of the Criminal Procedure Code empowers the High Court to vary any sentence on appeal. However, there was no notice of enhancement of sentence issued to the appellant. Neither was a cross appeal filed by the respondent in this case. The court of appeal in Samwel Mbugua Kihwanga v Republic [2016] KECA 281 (KLR) observed as follows: “ …the obligation on an appellate court to fore- warn or caution an appellant before enhancing a sentence imposed against him by a trial court is not anchored on any law but in practice that has now gained such notoriety that it is proper that an appellant be warned of the consequences of proceeding with his appeal in circumstances where so proceeding may likely result in the sentence being enhanced to his disadvantage. It is simply to enable him weigh the options available and then make a decision that suits his best interests, especially in circumstances where, like in the instant appeal, an appellant is disadvantaged for not being schooled both in the law and legal procedures he may be confronted with during the course of the trial of his appeal.” 43. The appellant was not fore-warned about the possibility of enhancement of the sentence to enable him make an informed decision as well as afford him an opportunity to be heard. This deprived him a chance to decide whether or not he wished to proceed with the appeal or abandon it in view of the possible repercussions. Enhancing the sentence without notice as aforesaid would violate the appellant’s right to fair trial under Article 50 of the Constitution, thereby rendering the whole proceedings a nullity. 44. The court finds that the appeal lacks merit and is hereby dismissed. The conviction and sentence by the trial court is upheld. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 18TH DAY OF JUNE 2026 JOSEPH KIPKOECH BIOMDO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9125/eng@2026-06-18 7

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