Kazungu Charo Jefwa v Republic

iii. That the learned trial court erred in law and fact by upholding conviction despite a variance between the charge sheet, medical evidence and police occurrence book report. iv. That the learned trial court erred in law and fact by failing to consider that the appellant was a school going student at the time of the incident. v. That the learned trial court erred in law and fact by failing to consider the appellant’s defence. 3. At the trial court, the appellant denied the charges prompting the trial in which the prosecution to called five (5) witnesses. PW1 the complainant, a grade 9 student at [Particulars withheld] Junior school, testified that she was born on 11 June 2008 and that in January 2024, the she started a romantic relationship with the appellant. In March 2024, she went to the appellant’s home at Muyu wa Kaya at night where he inserted his penis inside her vagina and they had sexual intercourse after which she returned to her home. She further testified that in April 2024, she went to the appellant’s home at night where they again engaged in sex and she returned home. 4. In June 2024, she discovered that she was pregnant, informed the appellant who gave her a testing kit where she conducted a test that confirmed she was pregnant. Later that day, she informed her mother, PW2 who reported the matter to the police and she was taken to Malindi Sub -County hospital and Marereni hospital for medical examination. She subsequently delivered on 6 November 2024 and maintained that the appellant was the father of the new born. 5. PW2 [Particulars withheld], the complainant's mother testified that in June 2024, she discovered that the complainant was pregnant but on inquiry, the complainant did not disclose the person responsible. She then reported the matter to the deputy head teacher who inquired into the complaint and asked the complainant who disclosed that the appellant was responsible. Armed with that information, she reported to the police station, who referred the complainant to Malindi Sub -County hospital for examination and treatment. It was her evidence that she was not aware that the complainant was engaged in a sexual relationship and that the complainant subsequently delivered on 6 November 2024. 6. PW4, Dr Moses Rimba from Malindi Sub County hospital testified that the complainant was examined at Marereni dispensary on 21 June 2024 and a Post Rape Care Form was filled (exhibit 4). On 4 July 2024, an ultra sound test established that she was 5 months and 12 days pregnant which confirmed the initial tests. He concluded that there was evidence of vaginal penetration of a 16 year old and produced P3 form (exhibit 3), ultra sound (exhibit 5), lab results (exhibit 6) and treatment notes (exhibit 2) as evidence. 7. PW3 PC Ruth Maganga a police officer from Marereni police station testified that the case was reported to the police station and booked in the O.B. She investigated the case and subsequently arrested and charged the appellant after establishing that there was evidence to support the charge. She produced the complainant’s birth certificate as exhibit 1 which showed that she was born on 11 June 2008. 8. At the close of the prosecution case, the court found that a prima facie case had been established and placed the appellant on his defence. 9. The appellant testimony on oath and called one witness. He denied the charge and stated that he was a form 4 student at [Particulars withheld] Integrated school which neighbours [Particulars withheld] primary where the complainant schooled. He denied being the complainant’s boyfriend, having any sexual relationship with her or that he was the father of the complainant child as alleged. DW2, Jefa Said Charo, the appellant’s brother, testified that he lived with he appellant and that the appellant was of good character and serious with his studies hence could not have had sex with the complainant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12359/eng@2026-07-31 2

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10. The appeal was argued by way of written submissions which were duly filed by both parties as directed by court. The appellant submitted that the charge sheet is defective for being too general in terms of the time the offence is said to have been committed. He contended that the words on diverse dates between March 2024 and April 2024 deprived him of the clarity and specificity required to enable him defend himself contrary to Section 134 and 137 (f) of the Criminal Procedure Code. 11. He further submitted that the trial court erred by failing to order for a DNA test that would have determined if he was the father of PW1’s child taking the view that without a DNA, it was impossible to determine with certainty that he had sex with PW1. 12. The appellant also submitted that there were fundamental weaknesses in the prosecution’s case that arose from unexplained and inordinate delays in reporting the offence and seeking medical examination. He pointed out that whereas the offence is said to have been committed on diverse dates between March 2024 and April 2024, it was reported five months later on 24 September 2024. He contended that without sufficient explanation, the delay leads to serious doubt on the authenticity and credibility of the allegations. 13. It was his case that he and the complainant were both school going children who met in school and although he admitted that he was over 18 years at the time, he argued that being a student, he was entitled to protections afforded to child under the law. He submitted that he should not have been detained in prison and the court ought to have considered a non-custodial sentence by dint of Article 53 (f) of the Constitution. 14. The appellant also submitted that his defence was not considered. He contended that he raised the defence of alibi which was corroborated by DW2 showing the he did not commit the offence. He urged the court to find in his favour, quash the conviction and acquit him. 15. The Respondent who was represented by Mr Barack Chirchir Barkwang learned Counsel, opposed the appeal and relied on its written submissions dated 13 May 2026. He affirmed that the conviction was proper and that there was overwhelming evidence to warrant the conviction. It was argued that the prosecution had proved all three ingredients of the offence of defilement, that is, age of the victim, penetration and identification of the perpetrator beyond reasonable doubt. 16. It was also submitted that there were no contradictions in the prosecutions case as alleged and that the appellant’s defence constituted a mere denial. He urged the court to uphold the conviction and sentence. Analysis and determination 17. This being the first appeal, the duty of this court, as set out in Okeno Vs R [1972] EA 32 and affirmed in various decisions including the case of Mark Oiruri Mose vs Republic (2013) eKLR, 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. 18. The court of appeal, in Kiilu & Another V 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12359/eng@2026-07-31 3

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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.” 19. Having considered the grounds of appeal, the evidence adduced in the lower court, the trial court’s judgement, the record of proceedings and the rival submissions of parties, I find the main issues for determination to be; i. Whether the charge sheet is defective ii. Whether the offence of defilement was proved beyond reasonable doubt i. Whether the charge sheet is defective 20. The appellant contended that the charge sheet is defective for being too general and lacking specificity as to the date the offence was committed contrary to Section 137 (f) of the Criminal Procedure Code. He took issue with the use of the words “on diverse dates between March 2024 and April 2024” arguing that the time given was too general and deprived him of the ability to defend himself thereby prejudicing him. 21. Article 50 (2) (b) of the Constitution provides that every accused person has the right to a fair trial, which includes the right to be informed of the charge with sufficient detail to answer it. Section 134 of the Criminal Procedure Code on the other hand, provides as follows regarding framing of charge sheets; “ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 22. Section 137 (f) of the said Act, provides as follows on the general rule as to description; “ subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.” 23. The form and substance of a charge sheet is provided by law. Consequently, in order to determine if a charge sheet is defective, a court must consider the defect in a charge from a two-step test. First is to determine whether the charge is defective and if so, whether such defect can be remedied. See court of appeal decision in Peter Ngure Mwangi vs Republic [2014] eKLR. 24. It can be deduced from the above that not all defects in a charge sheet are fatal. In Bernard Ombuna vs Republic [2019] eKLR, the court of appeal gave guidance on how to determine whether a defect in a charge is fatal as follows: “ In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12359/eng@2026-07-31 4

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25. Even where the charge sheet is defective, the issue for consideration is whether the conviction based on a defective charge occasioned a miscarriage of justice. See Obedi Kilonzo Kevevo vs. Republic (2015)eKLR. 26. Section 382 of the Criminal Procedure Code provides further guidance on how to address a a finding based on defective charge. 27. Having set out the law above and the effect thereof, this court will consider whether the charge sheet is defective. The particulars of the offence clearly set out the time frame within which the offence was alleged to have been committed. That time was between March 2024 and April 2024. This cannot be said to be too general or ambiguous. The appellant, who was represented by counsel, did not raise any issue during trial concerning the framing of the charges. He was able to cross examine the witnesses effectively and even adduced evidence in defence. I do not find that the charge sheet was defective or that the appellant suffered any miscarriage of justice as a result thereof. This ground fails. ii. Whether the offence of defilement was proved beyond reasonable doubt 28. 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 specific ingredients 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. 29. Age of the victim is a critical ingredient of the offence and must be proved. For the offence of defilement under Section 8 (1) of the Act to crystalize, it must be proved that the victim was a child, that is, below the age of 18 years. 30. The High Court in Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) held; “ Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: “Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 31. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vsRepublic Criminal Appeal No. 21 of 2015 [2017]. 32. In this case, PW1 the complainant testified that she was 16 years old as per her birth certificate which showed that she was born on 11 June 2008 which evidence was corroborated by PW2, her mother. PW1’s birth certificate produced by PW 4, provided conclusive proof of her age. The court finds that complainant was a child within the definition of the law. 33. On the issue of penetration, 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. 34. “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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12359/eng@2026-07-31 5

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35. To prove penetration, it must be established that the appellant inserted his penis into the vagina of the complainant either partially or completely. Being a minor, the complainant was incapable of consenting hence it is immaterial that she may have agreed to the act. 36. 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. 37. 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”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR)." 38. The complainant, PW1 testified that in January 2024, the she started a romantic relationship with the appellant. In March 2024, she went to the appellant’s home at Muyu wa Kaya at night where he inserted his penis inside her vagina and they had sexual intercourse after which she returned to her home. She further testified that in April 2024, she went to the appellant’s home at night where they again engaged in sex and she returned home. In June 2024, she discovered that she was pregnant which events led to the eventual arrest of the appellant. 39. PW1’s evidence was corroborated by PW4, Dr Moses Rimba who testified that the complainant was examined at Marereni dispensary on 21 June 2024 where it was established that she was 5 months and 12 days pregnant leading to the conclusion that there was evidence of vaginal penetration. He produced the Post Rape Care Form (exhibit 4), P3 form (exhibit 3), ultra sound (exhibit 5) lab results (exhibit 6) and treatment notes (exhibit 2) as evidence. 40. This evidence was unchallenged by the appellant either during cross examination or in his defence. The appellant, however, submitted that no DNA test was conducted to prove that he was responsible for PW1’s pregnancy. 41. As regards the DNA test, Section 36 of the Sexual Offences Act provides as follows; “ 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”. 42. As set out in Kassim Ali vs Republic (supra) medical evidence is not mandatory on a sexual offence and that a conviction can be founded on the basis of the victim’s evidence under Section 124 of the Evidence Act. Section 36 (1) of the Sexual Offences Act does not make DNA mandatory and the absence of DNA does not disprove a case of defilement. See Williamson Sowa Mbwanga Vs Republic (2016) eKLR. 43. On the basis on evidence on record, the court finds that PW1’s evidence was consistent, cogent and duly corroborated by PW2 and PW4 leading to the conclusion that penetration was proved beyond any reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12359/eng@2026-07-31 6

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44. On the issue of identification, PW1 testified that she she knew the appellant in who was a student in a neighbouring school. The appellant also confirmed that he knew PW1 who was a student at [Particulars withheld] Primary school that neighboured [Particulars withheld] Integrated school. PW1 provided details of the time and place where she had sex with the appellant on two occasions meaning that the identification in this case was by recognition which is more assuring. The court finds that this element was proved. 45. The appellant submitted that he and the complainant were both school going children who met in school and although he was over 18 years, since he was still in school, he should be afforded the protection given to children by dint of Article 53 (f) of the Constitution. The fact remains that the appellant was not a child having attained the age of majority despite his status as a student. He cannot invoke or rely on rights of children under Article 53 of the Constitution since he was not a child. However, this fact is relevant in mitigation as it provides context and back ground that informs certain actions. 46. Having considered the totality of the case, the court finds all ingredients constituting the offence of defilement as charged were proved beyond reasonable doubt and that the conviction was safe. 47. No appeal was made on the sentence and the court finds no reason to interfere in these circumstances. Besides, the sentence of 15 years in the minimum mandatory sentence set by law and the court has no discretion to award any lower sentence. Final Orders 48. In view of the above, the court makes the following orders; i. The appeal against conviction and sentence lacks merit and is accordingly dismissed. ii. The sentence of 15 years imposed by the trial court is upheld. DELIVERED AND SIGNED AT NAIROBI ON THIS 31ST DAY OF JULY 2026 JOSEPH KIPKOECH BIOMDO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12359/eng@2026-07-31 7

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