Republic v [Appellant] (appeal against conviction and sentence for defilement)

5. Upon considering the evidence in its entirety, the learned trial magistrate found that the prosecution had proved the main charge of defilement beyond reasonable doubt, convicted the appellant and sentenced him to ten (10) years' imprisonment. The alternative charge consequently remained in abeyance. 6. Being dissatisfied with both the conviction and sentence, the appellant lodged the present appeal. Grounds of Appeal 7. 8. The appellant's grounds of appeal, though framed in several respects, may conveniently be condensed as follows: a. That the learned trial magistrate erred in law and fact in finding that the prosecution had proved its case beyond reasonable doubt; b. That the learned trial magistrate failed to appreciate that the charge sheet was incurably defective; c. That the essential ingredients of the offence of defilement, namely the complainant's age, penetration and the identity of the perpetrator, were not proved beyond reasonable doubt; d. That the prosecution evidence was riddled with material contradictions and inconsistencies capable of rendering the conviction unsafe; e. That the learned trial magistrate failed to properly consider material investigative gaps and procedural irregularities; f. That the trial court improperly relied upon the appellant's defence to fill gaps in the prosecution case and thereby shifted the burden of proof; and g. That the sentence imposed was excessive, disproportionate and unconstitutional. The appellant consequently prayed that the appeal be allowed, the conviction quashed and the sentence set aside. The Appellant's Submissions 9. The appellant submitted that the prosecution failed to prove the offence of defilement beyond reasonable doubt. He particularly challenged the credibility and reliability of the complainant's evidence, contending that her testimony was contradictory and deceptive. 10. The appellant relied heavily on the complainant's admissions during cross-examination that she voluntarily accompanied him, refused to return home, remained with him willingly and believed that they were married. He further relied on her statement that she may have misled him regarding her age and her intention to marry. 11. According to the appellant, those circumstances negated the requisite mens rea for the offence and demonstrated that the trial court failed to properly evaluate the complainant's evidence. 12. On the question of identity, the appellant submitted that the medical evidence merely established that penetration had occurred but did not identify him as the person responsible. He argued that there was no independent evidence linking him to the alleged offence. 13. The appellant further faulted the prosecution for failing to call the investigating officer and for allegedly failing to independently verify his residence and movements during the material period. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 2

page 2 of 13

14. He also challenged the reliance placed upon the evidence of the complainant's mother, contending that she did not witness the alleged sexual act and that her evidence was hearsay insofar as the commission of the offence was concerned. 15. The appellant further submitted that the investigations were inadequate because no forensic or DNA evidence was produced and the prosecution failed to adequately investigate the circumstances surrounding the complainant's alleged misrepresentation of her age. 16. Regarding sentence, the appellant submitted that the sentence imposed was excessive and disproportionate. He relied on his status as a first offender, his personal circumstances, his prospects of rehabilitation, his remorse and the fact that the complainant and her mother had forgiven him and sought leniency. 17. He consequently urged the Court to quash the conviction and set aside the sentence or, in the alternative, reduce the sentence or substitute it with a non-custodial sentence. The Respondent's Submissions 18. The respondent opposed the appeal and submitted that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt. 19. On age, the respondent submitted that the complainant's evidence concerning her date of birth was corroborated by her mother and, more significantly, by her birth certificate, which was produced in evidence. According to the respondent, the complainant was approximately sixteen and a half years old at the time of the offence. 20. Regarding penetration, the respondent relied on the complainant's direct testimony that she had sexual intercourse with the appellant and the medical evidence showing findings consistent with recent penetration, including vaginal bleeding and a freshly broken hymen. 21. On identity, the respondent submitted that this was a case of recognition rather than identification of a stranger. The complainant and the appellant knew each other prior to the incident, attended the same church and interacted through the church youth fellowship. 22. The respondent further submitted that the alleged voluntariness of the complainant's conduct did not negate the offence since she was a child within the meaning of the Sexual Offences Act. 23. On the alleged lack of corroboration, the respondent relied on the proviso to section 124 of the Evidence Act and submitted that corroboration of the evidence of a complainant in a sexual offence is not mandatory where the trial court believes the complainant and records the reasons for such belief. 24. The respondent further maintained that the appellant's defence was properly considered and rejected by the trial court and that the burden of proof was never shifted to him. 25. The respondent consequently urged this Court to find that the conviction was safe and to dismiss the appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 3

page 3 of 13

Analysis and Determination The Law 26. This being a first appeal, this court is guided by the principles set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:“ The duty of the first appellate court is to analyse 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 that 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. 27. Similarly in the case of Okeno vs Republic [1972] EA 32 where the Court of Appeal set out the duties of the appellate court as follows:“ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). 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 finding 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, see Peters vs Sunday Post [1958]EA 424.” This was also set out in the case of Kiilu & Another vs Republic [2005] KLR 174 28. The duty of this Court is therefore not merely to determine whether there was some evidence upon which the trial court could have convicted. It must independently reconsider the entire evidence and determine whether the conviction was justified. 29. Guided by that principle, I have carefully reconsidered the evidence on record, the judgment of the trial court, the grounds of appeal, the rival submissions and the applicable law. Issues for Determination 30. In my considered view, the following issues arise for determination: a. Whether the charge sheet was defective; b. Whether the prosecution proved the essential ingredients of the offence of defilement beyond reasonable doubt; c. Whether the alleged contradictions and investigative omissions rendered the conviction unsafe; d. Whether the complainant's alleged consent and misrepresentation regarding her age afforded the appellant a defence; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 4

page 4 of 13

e. Whether the trial court shifted the burden of proof or relied upon the appellant's defence to fill gaps in the prosecution case; and f. Whether the sentence-imposed warrants interference by this Court. Whether the Charge Sheet was Defective 31. The appellant contended that the charge sheet was incurably defective and invoked section 214 of the Criminal Procedure Code. 32. Section 134 of the Criminal Procedure Code requires every charge or information to contain such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. The underlying purpose is to ensure that an accused person knows, with sufficient clarity and precision, the accusation he is required to answer so as to adequately prepare his defence. 33. In the present case, the appellant was charged with defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. The particulars identified the complainant, stated her age, specified the period and place of the alleged offence and particularized the act of penetration alleged against the appellant. 34. In Yongo v Republic [1983] KLR 319, the Court of Appeal discussed the circumstances in which a charge may be considered defective, including where the charge fails to accord with the evidence because of inaccuracies or deficiencies or where an essential ingredient of the offence is omitted. 35. The central consideration is whether the charge sufficiently informed the accused of the case he was required to meet and whether any alleged defect occasioned prejudice or embarrassment in the preparation and presentation of his defence. 36. Applying those principles to the present appeal, I find no defect in the charge before the trial court. The charge disclosed the essential ingredients of the offence and adequately informed the appellant of the accusation against him. 37. The appellant pleaded to the charge, participated fully in the trial, cross-examined the prosecution witnesses and presented his defence. He has not demonstrated any prejudice arising from the manner in which the charge was framed. 38. The appellant's reliance on section 214 of the Criminal Procedure Code is equally misplaced. That provision principally governs the alteration or substitution of a charge during trial. The record does not disclose any alteration of the charge that violated the appellant's procedural or constitutional rights. 39. I consequently find that the charge sheet was not defective. This ground of appeal is without merit. Whether the Ingredients of Defilement Were Proved 40. The offence of defilement is created under section 8(1) of the Sexual Offences Act. The essential ingredients requiring proof are the age of the complainant, penetration and the positive identification of the perpetrator. 41. These ingredients were restated in George Opondo Olunga v Republic [2016] eKLR. I shall consider each ingredient separately. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 5

page 5 of 13

Proof of the Complainant's Age 42. Age is a critical ingredient of the offence of defilement. It establishes whether the complainant was a child and also determines the applicable sentencing provision. 43. In Kaingu Elias Kasomo v Republic [2014] eKLR, the Court of Appeal emphasized that the age of the complainant is a critical component in proving the offence of defilement. 44. In the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that: 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. " 45. In the present case, the complainant testified that she was born in November 2001. Her mother confirmed that her date of birth was 8th November 2001. More significantly, the complainant's birth certificate was produced in evidence. 46. The offence occurred between 29th April 2018 and 2nd May 2018. The documentary evidence therefore established that the complainant was approximately sixteen and a half years old at the material time. 47. The oral evidence regarding her age was consistent with the documentary evidence. The appellant did not demonstrate any basis for doubting the authenticity or reliability of the evidence relating to age. 48. Needless to say therefore that, in addition to the documents set out in Rule 4 of the sexual offences rules, the age of a minor for purposes of the Sexual Offences Act can also be proved by the oral evidence of the minor’s mother, by way of age assessment as well as by observation and common sense. Hence, in P.M.M. vs. Republic [2018] eKLR, it was held thus:“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…" 49. I am therefore satisfied that the prosecution proved beyond reasonable doubt that the complainant was a child within the meaning of the Sexual Offences Act. Proof of Penetration 50. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. 51. The complainant testified that after meeting the appellant on 29th April 2018, she accompanied him to his residence where they had sexual intercourse. 52. Her testimony was supported by the medical evidence. The medical examination revealed vaginal bleeding and a freshly broken hymen, and the medical witness formed the opinion that penetration had occurred. 53. The appellant submitted that the medical evidence did not identify the person responsible for the penetration. That submission is correct only to the extent that medical evidence ordinarily establishes the occurrence of penetration rather than the identity of the perpetrator. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 6

page 6 of 13

54. The identity of the perpetrator must therefore be considered separately from the medical evidence establishing penetration. 55. It is also settled that penetration may be proved through the credible testimony of the complainant and does not invariably require medical evidence. In the present case, however, the complainant's direct evidence was additionally supported by medical findings consistent with recent penetration. 56. I am therefore satisfied that penetration was proved beyond reasonable doubt. Identification of the Appellant as the Perpetrator 57. The appellant strongly contested his identification as the person responsible for the penetration. 58. The evidence, however, established that the appellant was not a stranger to the complainant. The complainant testified that she knew him before the incident, that they attended the same church and interacted through the church youth fellowship. 59. On the material day, she met the appellant after church, accompanied him to his residence and remained there for several days. 60. This was therefore a case of recognition rather than identification of a stranger. 61. In Anjononi & Others v Republic [1980] KLR 59, the Court observed that recognition is generally more satisfactory and reliable than identification of a stranger because it is based upon the witness's prior knowledge of the person identified. 62. In the circumstances of the present case, the complainant had prolonged interaction with the appellant. The possibility of mistaken identity therefore did not arise. 63. Indeed, the complainant's admissions that she voluntarily accompanied the appellant and willingly remained at his residence do not weaken the evidence on identity. On the contrary, they demonstrate that she knew precisely the person with whom she was interacting. 64. It is my finding that the identification of the appellant was that of recognition. He was someone well known to the victim and thus there was no likelihood of error. In MW vs Republic {2019} eKLR the High Court at Kajiado sated as follows: “ The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity.” 65. The appellant further contended that the medical evidence did not connect him to the offence. His identification, however, did not depend upon the medical evidence. It arose principally from the complainant's direct evidence. 67. The proviso to section 124 of the Evidence Act permits a court to convict upon the evidence of a complainant in a sexual offence notwithstanding the absence of corroboration, provided the court believes the complainant and records the reasons for that belief. 68. In the present case, the complainant's evidence regarding penetration was, in any event, supported by the medical findings. 69. Upon independently re-evaluating the evidence, I am satisfied that there was credible evidence placed before the trial court connecting the appellant with the crime. He was therefore positively identified as the culprit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 7

page 7 of 13

Alleged Contradictions and Inconsistencies 67. The appellant contended that the prosecution evidence was riddled with material contradictions and inconsistencies capable of rendering the conviction unsafe. 68. The Uganda Court of Appeal in Twehangane Alfred vs Uganda held that it is not every contradiction that warrants rejection of evidence. As the court put it:“ With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance ofthe prosecution's case. (emphasis mine). 69. The applicable principle is that not every discrepancy or inconsistency in the testimony of witnesses is fatal to the prosecution case. The material question is whether the contradiction is substantial and goes to the root of the prosecution case. 70. In Philip Nzaka Watu v Republic [2016] eKLR, the Court of Appeal recognized that minor discrepancies are not uncommon in the testimony of truthful witnesses and that it is only material contradictions affecting the substance of the prosecution case that may render a conviction unsafe. 71. Having independently reviewed the evidence, I find that the alleged inconsistencies principally concerned the complainant's voluntary conduct, the nature of her relationship with the appellant and the circumstances under which she remained at his residence. 72. Those matters did not contradict her evidence that sexual intercourse occurred or her identification of the appellant as the person with whom she had sexual intercourse. 73. The complainant's admission that she willingly remained with the appellant may have been relevant to the circumstances surrounding the offence, but it did not create a contradiction regarding the essential ingredients of the offence. 74. I therefore find that no material contradiction capable of unsettling the conviction was demonstrated. Failure to Call the Investigating Offcer and Alleged Investigative Gaps 75. The appellant placed considerable emphasis on the alleged failure by the prosecution to call the investigating officer and the absence of DNA or forensic evidence. 76. Section 143 of the Evidence Act provides that no particular number of witnesses is required for proof of any fact unless otherwise expressly provided by law. 77. In Keter v Republic [2007] 1 EA 135, the Court of Appeal reiterated that the prosecution is not obliged to call a superfluity of witnesses and that the relevant consideration is the quality rather than the quantity of the evidence presented. 78. I have equally considered Bukenya & Others v Uganda [1972] EA 549, where the Court recognized that an adverse inference may arise where the prosecution fails to call a material witness and the evidence actually presented is barely adequate. 79. The principle in Bukenya, however, does not establish an inflexible rule that the failure to call an investigating officer automatically renders a prosecution case defective. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 8

page 8 of 13

80. In the present case, the complainant gave direct evidence concerning the events in question. Her mother testified regarding the circumstances surrounding her disappearance and recovery, while the medical evidence established penetration. 81. The appellant has not demonstrated what indispensable evidence the investigating officer would have supplied that was necessary to establish any of the essential ingredients of the offence. 82. Similarly, the absence of DNA or other forensic evidence was not fatal. The law does not require DNA evidence in every prosecution for defilement. Penetration and identity may be proved through credible oral, medical and circumstantial evidence. 83. Thus, the Court of Appeal reiterated its stance in Mbogo Raphael Chengo v Republic(supra):“...the ground that no DNA was conducted on the complainant has no substance. The appellant was identified by way of recognition as the person who committed the offence as alleged.” 84. I consequently find that the alleged investigative omissions did not create a reasonable doubt in the prosecution case. The Evidence of the Complainant's Mother 85. The appellant further argued that the trial court improperly relied upon hearsay evidence from the complainant's mother. 86. It is correct that the complainant's mother did not witness the act of penetration. Her evidence could therefore not constitute direct evidence of the sexual act itself. 87. That fact did not, however, render the entirety of her evidence hearsay or inadmissible. She was competent to testify concerning matters within her personal knowledge, including the complainant's disappearance, the search undertaken and the circumstances surrounding her recovery. 88. The conviction did not depend upon the complainant's mother proving penetration. That ingredient was established through the complainant's direct evidence and supported by the medical findings. 89. I consequently find no merit in this ground of appeal. The Complainant's Consent and Alleged Misrepresentation of Her Age 90. A recurring theme in the appellant's submissions was that the complainant voluntarily accompanied him, remained at his residence willingly, conducted herself as though they were married and admitted during cross-examination that she may have misled him regarding her age. 91. The voluntary conduct of the complainant did not, by itself, constitute a defence to the offence of defilement. At the material time, the complainant was below eighteen years and was therefore a child within the meaning of the Sexual Offences Act. 92. The appellant's argument regarding the complainant's alleged misrepresentation of her age must, however, be considered within the statutory framework provided under sections 8(5) and 8(6) of the Sexual Offences Act. 93. Section 8(5) recognizes a limited statutory defence where the child deceived the accused into believing that she was over the age of eighteen years and the accused reasonably believed that she was above that age. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 9

page 9 of 13

94. In Wambui v Republic [2019] eKLR, the Court of Appeal considered the application of sections 8(5) and 8(6) of the Sexual Offences Act and emphasized the need to consider both the alleged deception and whether the accused's belief regarding the complainant's age was reasonable in the circumstances. 95. Section 8(6) requires the reasonableness of such belief to be determined from all the circumstances, including any steps taken by the accused to ascertain the complainant's age. 96. In the present case, although the complainant stated during cross-examination that she may have misled the appellant regarding her age, there was no evidence demonstrating any steps taken by the appellant to ascertain her age or any sufficient objective basis upon which he reasonably believed that she had attained eighteen years. 97. The evidence instead established that the appellant and complainant knew each other before the incident and interacted within the same church and youth fellowship. 98. The Appellant's alleged misrepresentation regarding her age, standing alone, was therefore insufficient to establish the statutory defence. The requirements under sections 8(5) and 8(6) must be considered cumulatively. 99. Upon considering the evidence as a whole, I am not persuaded that the appellant established the statutory defence. Whether the Trial Court Shifted the Burden of Proof 100. The appellant further complained that the learned trial magistrate relied upon his defence to fill gaps in the prosecution case. 101. The fundamental principle governing criminal trials is that the burden of proving the guilt of an accused person rests upon the prosecution throughout the trial, subject only to recognized statutory exceptions. 102. The principle was famously expressed in Woolmington v Director of Public Prosecutions [1935] AC 462 and remains a cornerstone of criminal justice. 103. I have examined the judgment of the trial court and find no basis for concluding that the burden of proof was reversed. 104. The trial court considered the prosecution evidence before evaluating the appellant's defence against the totality of that evidence. 105. The rejection of an accused person's defence does not, without more, amount to shifting the burden of proof. The ultimate question remains whether the prosecution independently discharged its burden. 106. In the present case, the prosecution evidence independently established the complainant's age, penetration and the identity of the appellant. 107. The appellant's defence did not raise a reasonable doubt capable of displacing that evidence. 108. I therefore find that the trial court did not improperly rely upon the appellant's defence to fill gaps in the prosecution case or otherwise shift the burden of proof. Determination on Conviction 109. Having independently reconsidered and re-evaluated the entire evidence as required of a first appellate court, I am satisfied that the prosecution proved beyond reasonable doubt that the complainant was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 10

page 10 of 13

a child aged approximately sixteen and a half years, that penetration occurred and that the appellant identified and the person responsible. 110. I further find that the alleged contradictions and investigative omissions did not go to the root of the prosecution case or create a reasonable doubt capable of rendering the conviction unsafe. 111. The complainant's voluntary conduct did not constitute a defence to the charge, while the evidence relating to the alleged misrepresentation of her age did not satisfy the statutory requirements under sections 8(5) and 8(6) of the Sexual Offences Act. 112. The appellant's conviction was therefore safe and is hereby upheld. Whether the Sentence Warrants Interference 113. The appellant was sentenced to ten (10) years' imprisonment. He contended that the sentence was excessive and disproportionate and urged this Court to take into account his status as a first offender, his personal circumstances, prospects of rehabilitation and the forgiveness extended to him by the complainant and her mother. 114. The respondent submitted, in part, that the trial court imposed the statutory minimum sentence of fifteen years. The record, however, clearly shows that the sentence actually imposed was ten years' imprisonment. The appeal must therefore be determined on the basis of the sentence appearing on the record. 115. Sentencing is primarily a matter within the discretion of the trial court. An appellate court will ordinarily interfere where the trial court acted upon a wrong principle, overlooked a material consideration, took into account an irrelevant consideration, or imposed a sentence that is manifestly excessive or otherwise unlawful. 116. The complainant was between sixteen and eighteen years of age at the material time. Section 8(4) of the Sexual Offences Act prescribes imprisonment for a term of not less than fifteen years. 117. The trial court nevertheless imposed a sentence of ten years' imprisonment after considering the circumstances of the case and the mitigation placed before it. 118. I have considered the mitigating circumstances advanced by the appellant. I have also considered the particular circumstances surrounding the offence as disclosed by the prosecution evidence itself. 119. The complainant's evidence was that she voluntarily accompanied the appellant, remained at his residence for several days and, during that period, conducted herself in a manner which she described as consistent with her belief that she was married to him. She further admitted during cross-examination that she may have misled the appellant regarding her age. 120. As already stated, those circumstances did not constitute a defence to the offence and did not diminish the complainant's status as a child entitled to the full protection of the law. They may nevertheless properly form part of the overall factual matrix considered in determining an individualized and proportionate sentence. 121. There is a distinction between circumstances capable of absolving an accused person from criminal liability and circumstances relevant to the assessment of the appropriate sentence. The fact that particular circumstances do not constitute a defence to conviction does not necessarily render them irrelevant at the sentencing stage. 122. I have further considered the fact that the complainant and her mother forgave the appellant and expressed a desire that he be treated with leniency. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 11

page 11 of 13

123. Such forgiveness does not extinguish the offence, reverse the conviction or bind the sentencing court. Defilement is a serious criminal offence whose prosecution transcends the private interests of the immediate parties. The Court has an independent obligation to uphold the law and protect children from sexual exploitation. 124. Nonetheless, the views of the victim may properly constitute one of the factors considered in the overall sentencing exercise alongside the nature and circumstances of the offence, the personal circumstances and antecedents of the offender, his prospects of rehabilitation, the interests of the victim and the broader objectives of sentencing. 125. The complainant's conduct surrounding the incident must equally be approached without attributing responsibility for the commission of the offence to her. She was a child in law. Her conduct is relevant in the present context only as part of the factual circumstances surrounding the offence and not as a basis for diminishing the protection afforded to her by the Sexual Offences Act. 126. Viewed cumulatively, the circumstances surrounding the relationship disclosed by the evidence, the complainant's own account of the events, the forgiveness subsequently extended to the appellant, his status as a first offender and the other mitigating circumstances placed before the trial court were matters capable of consideration in the individualized sentencing exercise. 127. The sentence presently challenged is already below the fifteen-year term prescribed under section 8(4) of the Sexual Offences Act. The appellant has not demonstrated any error of principle or further mitigating circumstance warranting an additional reduction. 128. Conversely, the present appeal was lodged by the appellant against his conviction and sentence. There is no appeal or cross-appeal by the prosecution seeking enhancement of the sentence. In the circumstances of this appeal, I find no proper basis for interfering with the sentence to the appellant's detriment. 129. I equally find no sufficient basis for reducing the sentence further or substituting it with a noncustodial sentence. 130. The sentence of ten (10) years' imprisonment is consequently upheld. Disposition and Final Orders 131. In the result, having independently reconsidered and re-evaluated the entire evidence, the grounds of appeal, the rival submissions and the applicable law, I find that the charge sheet was not defective and that the prosecution proved the offence of defilement beyond reasonable doubt. 132. The prosecution established the complainant's age, penetration and the identity of the appellant as the perpetrator. The alleged contradictions and investigative omissions did not render the conviction unsafe. 133. Neither the complainant's voluntary conduct nor the alleged misrepresentation regarding her age afforded the appellant a defence in the circumstances established by the evidence. 134. I consequently find no basis for interfering with the appellant's conviction. 135. As regards sentence, having considered the particular circumstances surrounding the offence, the mitigating factors placed before the trial court and the absence of any appeal or cross-appeal seeking enhancement, I similarly find no sufficient basis for interfering with the sentence imposed. 136. Accordingly, the appeal against both conviction and sentence is hereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 12

page 12 of 13

137. The appellant's conviction for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act is hereby upheld. 138. The sentence of ten (10) years' imprisonment imposed by the trial court is hereby affirmed. It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 20TH DAY OF JULY, 2026 .............................................. J. CHIGITI (SC) JUDGE 18| Page MURANG’A HCCRA E051/2024 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12655/eng@2026-07-20 13

page 13 of 13