The Court of Appeal in Malindi has dismissed the appeal of Gilbert Shauri Kazungu, upholding his conviction and 15-year prison sentence for defilement.
The judgment, delivered by Justices K.I Laibuta, Ngenye Macharia and W Korir, confirmed the findings of both the trial court and the High Court.
Kazungu was charged with defilement under section 8(1) as read with section 8(4) of the Sexual Offences Act.
The offence occurred in July 2019 in Konjora, Kilifi county.
The complainant, KS, was 16 years old at the time, as confirmed by her birth certificate.
The prosecution presented four witnesses, including the complainant, her mother, the investigating officer, and a health clinician.
According to the evidence, KS left home to visit her aunt and later spent the night at the appellant’s house, where they had sexual intercourse.
The following day, KS’s mother reported the incident to local authorities.
Medical examination at Kilifi County Hospital revealed that KS was two months pregnant and had a sexually transmitted infection.
The appellant was subsequently arrested and charged.
In his defense, Kazungu denied the offence, claiming that KS was in relationships with other men and questioning the paternity of the pregnancy.
He also called his mother and uncle as witnesses, who testified about family disputes and attempts at reconciliation.
The trial court found that the prosecution had proved the case beyond reasonable doubt, emphasising that DNA evidence is not required to establish defilement.
The appellant was found guilty and sentenced to 15 years in prison.
Kazungu appealed to the High Court, arguing that the complainant’s evidence was unreliable, that medical evidence did not link him to the offence, and that the case was not proved beyond reasonable doubt.
Specifically, he pointed out that there was no DNA evidence to prove he was the father of the complainant’s unborn child or that he was responsible for the sexually transmitted infection detected.
The appellant called his mother and uncle as defense witnesses.
They testified about ongoing family disputes and mentioned attempts at reconciliation between the families, suggesting that the case might have been motivated by these disputes.
The High Court dismissed the appeal, finding the evidence consistent and the conviction proper.
In the Court of Appeal, Kazungu raised three grounds: that the defense under section 8(5) of the Sexual Offences Act should have been made available to him, that the lower courts failed to consider current sentencing jurisprudence, and that his mitigation was not taken into account.
He contended that the lower courts failed to consider recent sentencing jurisprudence and did not properly exercise discretion in sentencing.
He argued that the medical evidence presented did not directly link him to the offence.
Kazungu maintained that KS was a willing participant in the relationship and that this should have influenced the court’s decision.
The State opposed the appeal, arguing that all elements of defilement-age, penetration, and identification-were proved.
The prosecution highlighted that KS and Kazungu were cousins and known to each other, making identification reliable.
The appellate judges held that their jurisdiction was limited to matters of law.
They found no error in the lower courts’ application of the law or evaluation of the facts.
The court noted that the defense did not raise reasonable doubt and that the sentence imposed was within the law.
The appeal was dismissed in its entirety. The 15-year sentence for defilement stands.
