Kifalu v Republic (Criminal Appeal E093 of 2023) [2025] KEHC 13103 (KLR) (19 September 2025) (Judgment)
Neutral citation:
[2025] KEHC 13103 (KLR)
Republic of Kenya
Criminal Appeal E093 of 2023
M Thande, J
September 19, 2025
Between
Samson Charo Kifalu
Appellant
and
Republic
Respondent
Judgment
1.The Appellant herein, was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act (SOA) in Kaloleni Sexual Offences Case No. 46 of 2021 and sentenced to 10 years imprisonment. The particulars of the offence are that on diverse dates between 19.7.2020 and 25.11.21 at [Particulars Withheld] village,Chanagande location, Kaloleni sub-county within Kilifi county, intentionally and unlawfully caused his penis to penetrate the vagina of NCG (the Complainant), a child aged 16 years.
2.Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The summarized grounds of appeal are that the trial Magistrate erred in failing to that the prosecution prove its case to the required standard. The Appellant further prayed that without prejudice to his Appeal, that his sentence be reviewed downwards pursuant to Sections 216, 329 and 333(2) of the criminal procedure Code. The Appellant urged that the Appeal be allowed.
3.As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
4.The Respondent filed submissions in opposition to the Appeal. However, the submissions are erroneous as they refer to a charge of defilement of a child of 12 years under Section 8(1) as read with Section 8(3) of the SOA. Further, the submissions do not relate to the instant Appeal at all and are accordingly, disregarded.
5.To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated:
6.This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator.
7.As regards age, PW1 Mwangolo Chigulu, a Senior Clinical Officer at Marakani County Hospital stated that age assessment was conducted which confirmed that the Complainant was 16 years old. The Complainant herself stated that she is 16 years old, as did her mother FC, PW3. The ingredient of age was thus established.
8.On penetration and identification, the Appellant did admit in his defence that he had sex with the Complainant. He stated that he and the Complainant had agreed to get married. When he expressed his intentions to the Complainant’s parents, they told him to wait until she completes her schooling. From the evidence on record, this is not a case where the Complainant had deceived the Appellant that she was over the age of 18 years. He did not also state that he reasonably believed that the Complainant was above the age of 18 years. The Appellant was very much aware that the Complainant was still a child. Indeed, his father’s brother DW2 stated that “We all knew that the complainant was a minor and a student in school. We knew she was in primary school.” Similarly, DW3, the Appellant’s father stated that they had agreed to pay dowry in installments as the Complainant continued with her education.
9.In his submissions, the Appellant relied on the defence in Section 8(5) of the SOA provides:
10.For this defence to be available to an accused person, it must be raised at trial to enable the prosecution respond and the trial court pronounce itself on the same. From the record, it is evident that the Appellant did not raise this defence at trial. In the premises, the defence is not available at the appellate stage as an appeal can only lie where there has been a decision made by the lower court. This was the holding in Kipkorir v Republic (Criminal Appeal E056 of 2022) [2024] KECA 745 (KLR) (21 June 2024) (Judgment) where the Court of Appeal stated:
11.The Appellant has asked that the period spent in custody during trial be taken into account. Section 333(2) of the Criminal Procedure Code provides as follows:
12.The proviso to Section 333(2) of the Criminal Procedure Code obligates the court to take into account the period an accused spent in custody pending trial.
13.In the case of Bethwel Wilson Kibor v Republic [2009] eKLR, the Court of Appeal had this to say about the said proviso:
14.Flowing from the above authority, it is clear that a trial court must take into account the period spent in custody pending trial, and state so, when imposing sentence.
15.When imposing sentence, there is no mention by the trial court that the period the Applicant had spent in custody pending trial, was taken into account when sentencing him. This is a serious omission on the part of the trial court, as it amounts to non-compliance with an express statutory provision.
16.In the end, after reevaluating the evidence, my finding is that the Appellant was properly convicted and the conviction is accordingly upheld. As regards the sentence, the same is reviewed to run from 23.12.21 when the Appellant was arrested.
DATED, SIGNED AND DELIVERED IN MALINDI THIS 19TH DAY OF SEPTEMBer 2025 __________________________ M. THANDEJUDGE