A 13-year-old girl’s quiet night at home turned into a horrifying ordeal that ended in courtrooms and a 20-year jail sentence for a neighbour she once knew.
The Court of Appeal in Malindi upheld the conviction and sentence of Nasir Ponda, who was found guilty of defiling a minor in an incident that occurred on January 27, 2019, in Kwale County.
The court, presided over by Justices Kibaya Imaana Laibuta, F. Ochieng, and Ngenye-Macharia, delivered its ruling on May 9, 2025, after a long legal battle that started in the lower courts.
A meal turned trap
According to testimony from the girl (referred to as NC to protect her identity), the evening started normally when Ponda visited her home carrying a delicacy—ugali and fish.
He sat outside the house and ate the food after warming it. Later, her mother joined him to eat.
“Ponda requested NC to go to his house and eat from there, which the complainant readily obliged,” the court heard.
When the girl arrived at Ponda’s house, he was not there. She waited.
When he returned, he uttered unsettling words: “Nilikuwa nataka tufanye hivi na hivi,” loosely translated as “I wanted us to do this and that.”
She testified that without further warning, he undressed her and defiled her.
She later sneaked back into her home around midnight, using a small hole in the house to avoid being noticed. But her absence had already sparked worry.
Panic and pain
Her mother told the court she woke up around 11 pm and noticed her daughter was missing. Alarmed, she rushed to her brother’s house and informed him.
The girl’s uncle recalled that he and his sister searched for the girl late into the night, fearing the worst.
At 2 am, the mother found her daughter sleeping in a room adjacent to her bedroom.
“I woke her up and started beating her until she said where she had been,” NC’s mother told the court.
The next morning, the mother and uncle took the girl to Taru police station, where she was held briefly before being examined at Samburu Health Centre.
Medical evidence confirms abuse.
The clinical officer who examined the girl provided grim confirmation of her account.
“Her private parts had bruises and traces of blood on the vaginal walls,” he said, adding that there was also a foul-smelling yellow-green discharge.
Laboratory tests ruled out HIV and pregnancy, but the conclusion was clear: she had been defiled.
Police Constable Winnie Mwaka, who investigated the case, noted that Ponda had begun pursuing the girl after his wife left.
She confirmed accompanying the girl to the hospital.
Defence dismissed
In his defence, Ponda denied the charges and claimed he was framed.
He alleged that his neighbours, NC’s family, had a grudge against him after his cows strayed into their land, prompting him to pay Sh18,000 in compensation.
He said they had threatened that he would regret it.
However, the trial court rejected this explanation. The magistrate concluded that all key elements of defilement had been proved—age, identification and penetration.
“The complainant’s demeanour showed she was a truthful witness,” the court noted.
The court found that the prosecution had proved the main charge against the appellant beyond a reasonable doubt.
He was convicted accordingly and sentenced to serve 20 years' imprisonment.
Appeal after appeal
Dissatisfied with the sentencing, Ponda appealed to the High Court at Malindi, arguing that the prosecution’s case was incredible and the sentence was unlawful.
The High Court re-evaluated the evidence and upheld the conviction, stating that the girl’s age, as indicated by both her and her mother, was within the bracket defined under Section 8(1) and (3) of the Sexual Offences Act.
Section 8 (1) of the Act states that, “A person who commits an act which causes penetration with a child is guilty of an offence termed defilement”, while 8(3) notes that, “A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years”.
The judge emphasised that the girl's account of being defiled was consistent and corroborated by medical findings.
“She had no cause to frame the appellant,” he said.
The Court of Appeal noted that the High Court judge found Ponda’s evidence to be a sham and as an afterthought.
The judge dismissed it and accordingly upheld both the conviction and sentence.
Still unsatisfied, Ponda took his appeal to the Court of Appeal, arguing that the medical report did not conclusively prove penetration, and that the girl was a willing participant who acted like an adult.
He called their relationship a “Romeo and Juliet” affair and said she only confessed after being beaten.
Court of Appeal: No consent from a minor
The appellate judges were unpersuaded. They found no merit in Ponda’s claim that the girl appeared to be of legal age.
The court reminded that minors cannot legally give consent to sexual activity.
“Section 42 of the Sexual Offences Act provides that a person consents if he or she agrees by choice, has the freedom and capacity to make that choice,” the judges stated.
“It is trite law that a minor, or a person who is below the age of the majority, that is 18 years, is deemed to be incapable of consenting.”
The appellate court found that the complainant had no reason to lie, the timeline was consistent, and the medical evidence confirmed sexual activity.
Sentence upheld—with a slight adjustment
Although the judges upheld the 20-year sentence, they considered the time Ponda spent in remand—nine months and 15 days—and ordered that it be deducted from his sentence.
In their closing remarks, the judges stated: “The appeal is devoid of merit and is hereby dismissed. We uphold the Judgment of the High Court at Malindi delivered on September 28, 2023, save that the term of imprisonment should be reduced by nine months and 15 days.”
