Donald Karisa v Republic

4. The learned trial magistrate erred in law and fact by failing to properly consider the Appellant’s mitigation. Case for prosecution 3. The case for the prosecution is that the complainant PW5 was at the material time aged 16 years and was living with her mother, PW3. She was in class 6. 4. It was her evidence that on the 7/5/2023 she met the appellant at 5pm. That they talked and went to a cyber café and stayed upto 8pm. The complainant then went to a kiosk and stayed there upto 10pm. The appellant went there and picked her. They boarded a motor cycle for him to take her home but he instead took her to his house. On getting there the appellant undressed her and had sexual intercourse with her. She bled from her vagina. She wanted to go home but the appellant detained her. She stayed there till morning when she went home. 5. That on 10/5/2023 she met the appellant again and he took her to his house and had sex with her. She spent the night in his house. That on the following day she set off with the appellant for him to go to work and for her to go home. They met with her cousin called George PW1. He interrogated the appellant of his relationship with her and he said that she was his wife. George then took them to his aunt who then called the chief and they were taken to the police station. She was taken to Mariakani sub county hospital for examination. 6. George PW2 testified that the complainant is his cousin. That the complainant went missing from home between 8th and 10th May 2023. That on 11/5/2023 at 6am he met her with the appellant who was not known to him. Her clothes were blood stained. He interrogated the appellant and he said that the complainant was his wife. He went with them to his aunt who reported the matter to the chief. They then took the complainant and the appellant to the police station and to hospital. 7. The mother to the complainant PW3 testified that on the morning of 11/5/2023 she was taking her children to school when she realized that the complainant was missing from home. She went to school. She received a report that the complainant had been seen with a man. She told the people to take her to the police station. She went to the police station. She escorted the appellant and the complainant to hospital for examination. 8. It was further evidence of the complainant’s mother that the complainant was a truant and had the habit of disappearing from home. 9. A clinical officer at Mariakani sub county hospital PW1 testified that the complainant was examined by a colleague clinical officer on 11/5/2023 who found her with blood-stained clothes, broken hymen and multiple vaginal wall lacerations and blood discharge from the vagina. The examining clinical officer completed the complainant`s P3 form and Post Rape Care report. During the hearing the examining clinical officer was unavailable and PW1 produced, with consent of counsel for the appellant, the medical documents on behalf of the examining clinical officer – the P3 form, the treatment notes, the Post Rape Care form, Laboratory request and report and the birth certificate as exhibits, P.Exh.1 – 5 respectively. 10. The case was investigated by CPL Hamisi Hamadi PW4 of Kaloleni police station. It was his evidence that on 11/5/2023 the appellant and the complainant were taken to the police station by George PW1 and a village elder. The complainant complained of abdominal pains. He took the appellant and the complainant to hospital. The complainant was examined and found to have been defiled. He returned them to the police station and interrogated them. The complainant said that on the previous night she https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12306/eng@2026-07-29 2

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had slept at the house of the appellant and he had sexual intercourse with her. That that was the third time they were doing so. He charged the appellant with the offence. Defence case 11. The appellant when placed to his defence stated in a sworn statement that he is a welder. That he did not know the complainant but he knew George PW1. That George had ordered furniture from him while acting as a broker. He paid him Ksh.5,000/= as his commission. Later he went back to him and demanded for another Ksh.3,000/=. He did not have the money. He threatened him. 12. That on 11/5/2023 he was on the way to work at 7.30 am when he met George carrying the complainant on a motor cycle. The appellant asked for the money from him and he said he did not have it. He then asked him to board the motor cycle. He did so. George then rode the motor cycle to the police station. It was his evidence that that was the first day to see the complainant. 13. The appeal was disposed of by way of written submissions. Submissions 14. The appellant basically submitted that the case was not proved to the required standard. That there were material contradictions and discrepancies in the prosecution evidence that made the conviction unsafe. 15. The respondent on the other hand submitted that the charge was proved beyond reasonable doubt. That the prosecution case was supported by credible medical evidence and evidence of witnesses. That the defence failed to dent the prosecution case. That the appellant`s defence was an afterthought and inconsistent Analysis and determination 16. This being the first appellate court in this matter, the court is guided by the principles set out in David Njuguna Wairimu v Republic [2010] eKLR where the Court of Appeal held: “ The duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 17. I have considered the grounds of appeal, the evidence adduced before the lower court and the respective parties’ submissions. The main issue for determination is whether the prosecution proved its case beyond reasonable doubt. 18. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act which provides: “ 8(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12306/eng@2026-07-29 3

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8(2) “A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 19. 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 the age of the complainant; proof of penetration and proof of the identity of the perpetrator, see Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013. 20. On the element of age of the complainant, the appellant submitted that the prosecution produced a photocopy of a birth certificate which was not identified by the complainant and her mother. He submitted that the age of the complainant was not proved. 21. The law is that the age of a person can be proved by way of documentary evidence or by the oral evidence of the parent or a child if the child is intelligent enough to know his/her age. In the case of Mwalongo Chichoro Mwajembe -Vs- Republic, Msa Cr.App. No. 24 of 2015 (UR), the Court of Appeal held as follows: “ ... 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.” 22. Age may also be proved by observation or common sense. In the case of Musyoki Mwakavi v Republic [2014] KEHC 5681 (KLR), the court cited the Ugandan case of Francis Omuroni versus Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 where it was held that; …..Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...” 23. The complainant said that she was at the time she testified in court aged 16 years while her mother PW3 said that her age was at that time 15 years. The evidence of the mother to the complainant that she was aged 15 years corresponded with the age of birth recorded in the Post Rape Care report by the clinical officer who examined the complainant. The mother being the person who gave birth to the complainant knew her age. The age of the complainant was therefore proved at 15 years. 24. On the element of penetration, the complainant testified that she met the appellant on 7/5/2023 and he took her to his house and he had sexual intercourse with her. That on 10/5/2023 she met him again and he took her to his house and he had sexual intercourse with her again. That on the following morning while in the company of the appellant they met with her cousin George PW1 who took them to her aunt and they were eventually taken to the police station. 25. George PW1 said that when he met the complainant in the company of the appellant her clothes were blood stained. This was confirmed by the medical officer who examined the complainant who also observed that her clothes were blood stained. The examining doctor found her with lacerations in her genitalia. In my view the lacerations in the genitalia supported the evidence of the complainant that the appellant had penetrated her on the previous night. The complainant was found by George PW1 in the company of the appellant on the morning of the following day. This evidence was further corroboration on the penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12306/eng@2026-07-29 4

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26. The appellant alleged in his defence that he did not know the complainant before. He however never asked such a question to the complainant during cross-examination. While George PW1 said that he did not know him (the appellant) before the day he met him with the complainant, the appellant never challenged the evidence in cross examination. The appellant admitted that he met with George PW1 on the morning he was arrested. He alleged that George took him to the police station because of a dispute over money. While George clearly stated in his evidence that he took the appellant and the complaint to the police station because the complainant had been missing from home, the appellant never put any question to George in cross examination disputing the evidence. The appellant raised the issue in his defence and never raised it with any of the prosecution witnesses. I find that the appellant`s defence to that end was an afterthought. The complainant was telling the truth that the appellant had defiled her on the night on 10th May 2023. That the appellant was found by George in the company on the following morning supported the evidence of the complainant on the defilement. The defilement was supported by medical evidence. Penetration on the complainant was therefore proved. 27. The appellant submitted that there were contradictions in the evidence of the prosecution witnesses. I have perused the record of the trial court and I have not found any material contradictions that could dent the prosecution evidence. 28. The appellant also submitted that the complainant led him to believe that she was an adult. He however never raised such a defence when he defended himself in court. There was no substance in the argument. 29. In view of the foregoing, I find that the charge against the appellant was proved beyond reasonable doubt. The conviction is upheld. 30. On sentence appellant argued that the trial court did not consider the time spent in custody. I have perused the lower court`s file and noted that the appellant was arrested on 11/5/2023 and was in custody throughout the trial. He was sentenced on 23/10 2023. He was in custody for over a period of 5 months. Section 333(2) of the criminal procedure code requires a court sentencing an accused person who has been in remand custody to take into account the period spent in custody. The trial court in this case said that it had considered the time spent in custody and sentenced him to 10 years imprisonment. The charge was under section 8(4) of the Sexual Offences Act which carries a sentence of not less than 15 years imprisonment. In sentencing the appellant to 10 years I find that the trial court considered the time spent in custody. The argument to the contrary is dismissed. 31. The upshot is that the appeal is devoid of merit and is dismissed. DELIVERED, DATED AND SIGNED AT GARSEN THIS 29TH DAY OF JULY 2026 J. N. NJAGI JUDGE In the presence of: Mr. Oluoch for Respondent Appellant – present virtually at GK Prison Malindi Court Assistant – Luckson https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12306/eng@2026-07-29 5

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