The High Court in Machakos has upheld the conviction and 15-year prison sentence imposed on Alex Kitau Mwalimu for defiling a teenage girl, dismissing his appeal against the judgment of a Wamunyu magistrate’s court.
Justice J.W.W. Mong’are found that the prosecution had proved beyond reasonable doubt the three essential elements of defilement: that the complainant was a child, that penetration occurred and that Mwalimu was the perpetrator.
Mwalimu had appealed against his conviction and sentence by the Wamunyu Senior Resident Magistrate’s Court on August 12, 2025. He had been convicted of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act.
The prosecution alleged that Mwalimu defiled T.W. on October 11, 2024, at Kabaa village in Machakos County. The charge sheet stated that the complainant was 17 years old. Mwalimu also faced an alternative charge of committing an indecent act with a child.
Mwalimu argued that the prosecution had failed to conclusively establish her age because it did not produce a birth certificate. He also pointed to an apparent discrepancy between the charge sheet, which stated that she was 17, and an age assessment report indicating that she was 16.
The High Court rejected the argument, holding that a birth certificate is not the only means of proving a child’s age in a sexual offence case. Justice Mong’are considered an age assessment report from Machakos County Referral Hospital showing that T.W. was 16 years old in March 2025, as well as her testimony that she was 17.
The judge found that the difference between the two ages did not create a fatal doubt, noting that both ages fell within the statutory age bracket covered by section 8(4) of the Sexual Offences Act. The court therefore concluded that the prosecution had proved the complainant’s age beyond reasonable doubt.
Mwalimu also challenged the medical evidence, arguing that the prosecution had failed to prove penetration because there were no genital injuries or spermatozoa. Justice Mong’are noted that although T.W. had initially recanted her allegations, she later told the trial court that she had sex with Mwalimu on the material date. The court also considered evidence that T.W. was pregnant, together with a pregnancy test, high vaginal swab results and other medical records produced during the trial.
The judge held that the absence of spermatozoa or genital injuries did not, on its own, disprove penetration. Under the Sexual Offences Act, the court noted, penetration means the partial or complete insertion of the male genital organ into the female genital organ. The law does not require the presence of spermatozoa or a broken hymen for penetration to be established.
Justice Mong’are further held that medical evidence is not the sole means of proving penetration, and that T.W.’s testimony, considered alongside the other evidence, was sufficient.
Mwalimu also argued that another man, identified in the judgment as “Mwendwa”, could have been responsible for the pregnancy. He complained that the prosecution had not conducted a DNA test to establish paternity.
Justice Mong’are held that the prosecution only needed to establish that Mwalimu had penetrated the child on the date alleged. The pregnancy did not have to be exclusively attributable to him for the offence to be established.
The court also found that there was no question of mistaken identity. T.W., her mother and Mwalimu all confirmed that they knew one another and had been neighbours. T.W. described Mwalimu as her boyfriend, while Mwalimu himself acknowledged knowing her.
Mwalimu further challenged the 15-year sentence, arguing that it was harsh and disproportionate and that the trial court had failed to adequately consider his mitigation, including his elderly mother and dependants.
Justice Mong’are relied on the Supreme Court’s decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae), [2024] KESC 34 (KLR), which the judge said had settled the issue of mandatory minimum sentences under the Sexual Offences Act. The court held that 15 years was the statutory minimum sentence applicable to the offence and that the trial court had no discretion to impose a lesser term.
The judge also upheld the decision to calculate the sentence from October 14, 2024, the date Mwalimu was first arraigned, in accordance with section 333(2) of the Criminal Procedure Code.
