17.The appellant in his submissions submitted on the issue of hostility and the unlawful nature of the search that in the first instance, the victim stated that she had nothing against the appellant and in the second instance, she turned around and contradicted her fist evidence. That this turn around introduced a doubt on her evidence and should not be relied on by the court in convicting. The case of Shiguye V Republic (1975) EA 191 has been cited.
18.That the recovery of the dress and sandals in his house was done in a manner not acceptable in law for the reason that he did not accompany the investigating officer to his house or the landlord called to confirm the house belonged to him. He cites the decision in Erick Otieno V republic (2006) eKLR.
19.On the issue of the victim’s age, he submits that the victim was born on March 20, 2004 and the incident happened on November 2, 2019 which means that at the time of the incident, the victim was 15 years, 8 months hence approximately 16 years and the sentence thus meted out on him is disproportionate considering that he was just 19 years. He relies on the authority in Eliud Waweru Wambui Vs Republic (2019) eKLR.
20.On the issue of the mandatory nature of the sentence handed down, he urges this court to reduce the sentence in case the appeal is dismissed to the equivalent of the prison term served or a non-custodial sentence. He relies on the authority in Edwin Wachira & 9 others, petition No 97 of 2021 and Evans Wanjala Sibi V Republic (2019) eKLR.
21.The respondent on its part submits on the issue of age that the evidence that the victim was born on March 20, 2004 was corroborated by PW-1 that he was aged 15 years at the time of the offence.
22.On penetration, it is submitted that the same was proved by medical evidence and corroborated by the victim as was stated in Charles Wamukoya V Republic Criminal Appeal No 72 of 2013.
23.On the perpetrator’s identity, it is submitted that the victim stated the appellant was their neighbour and the same was corroborated by PW-2, PW-3, PW-4, PW-5 and PW-6 who confirmed that the appellant’s house was across the road from the victim’s.
24.On the issue of sentence, the respondent submit that this court should be alive to the seriousness of the offence and the circumstances therein. That the sentence handed down is the minimum under the section charged. The authorities in Maingi & 5 others V Director of Public Prosecutions & another, Petition No E017 of 2021, Joshua Gichuki Mwangi V R, Nyeri Criminal Appeal No 84 of2015, (unreported) and Athanas Lijodi V Republic (2021) eKLR have been cited.
E. Analysis and determination.
25.The instant appeal raises both issue of conviction and sentence handed down by the trial court in a charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, 2006. Section 8(3) provides;
26.The appellant in this appeal challenges the trial court’s finding on the minor’s age that the same was not conclusively proved. Going by the record, a birth certificate was produced showing that the minor was born on March 20, 2004 and this means that at the time of the offence in November 2, 2019, the minor was aged approximately 15 years 8 months.
27.Accordingly, Section 8(3) applies to minors aged between 12 and 15 years. The charge sheet indicates that the minor as at the time of the offence was 15 years.
28.Having considered the provision of the section and the evidence available, I am convinced that the minor’s age was proved satisfactorily.
29.On the element of penetration, the minor testified that during her period of her stay in the appellant’s home, they engaged in unprotected sexual intercourse 2 times as captured in the PRC that the penetration occurred on November 6, 2019 and on November 9, 2019. The medical evidence on the other hand showed the minor had normal external genitalia and a missing hymen.
30.It has been stated severally that penetration is normally proved by the victim’s own evidence and corroborated by medical evidence. In the instant case, the medical evidence other than the missing hymen did not conclusively show that penetration did occur.
31.In PMG v Republic  eKLR, it was held that;
32.The victim herein was examined by PW-7 on November 11, 2019, approximately 2 days after the last penetration.
33.In the circumstances, I find that the minor’s evidence was categorical that the appellant defiled her notwithstanding the fact the medical evidence tendered did not conclusively proof that the victim was vaginally penetrated.
34.The next issue is the appellant’s identity. On this, the minor stated that she was at ‘Blacky’s’ shop from about 4 pm until 8 pm after the said Blacky bought her juice and cake. When she feared going back home, she spent the night at his house. she also stated that Blacky was her boyfriend and therefore knew each other well as the shop was across the road from the victim’s home.
35.Another fact to be considered is the manner in which the appellant was arrested. In this case, PW-2 passed information to PW-3 that the minor could be in the appellant’s home. PW-3 upon keeping watch over the appellant’s home overnight managed to arrest him in the victim’s company early in the morning. He was assisted in the arrest by PW-4 and PW-5.
36.The evidence above stated leaves no room for doubt that the appellant was positively identified.
37.This court has also considered the appellant’s defence which was to the effect that he was arrested while dropping a passenger at Gita. He did not mention the passenger’s name or that he was dropping the victim at the said place, given the presence of the victim in his company at the time of his arrest. After considering that the defence, the trial court made a finding that the same was a mere denial and did not shake evidence tendered by the prosecution.
38.Similarly, having perused the record, I come to the irresistible logical conclusion that the defence as tendered was an afterthought and did not controvert evidence tendered by the respondent . The appellant’s contention that his defence was not considered is not true.
39.On the sentence handed down, the Section under which the appellant was charged provides for a minimum 20 years prison term which was handed down in this case.
40.In Ahamad Abolfathi Mohammed & another v Republic  eKLR, the court of appeal stated;
41.In the instant case, after conviction, the trial court called the appellant to tender in his mitigation. He indeed tendered in his mitigation which was to the effect that he was an orphan taking care of his siblings. This was considered by the court before handing down the sentence.
42.As stated above, sentencing is essentially an exercise of discretion and the appellate court cannot interfere with the same unless it can be shown that the court acted on wrong principle; ignored material factors; took into account irrelevant considerations; or on the whole that the sentence is manifestly excessive.
43.In this case, the appellant has not established any of the grounds stated and therefore no basis for such interference has been established.
44.The appellant raised issue in the manner the exhibits were recovered. These items were the victim’s dress (Pexh 4b) and sandals (Pexh 4b) allegedly recovered from the appellant’s house.
45.According to the record, PW-6 was taken to the appellant’s home by the victim from where the items were recovered. At the time of production of the items, the appellant did not contest and or object to their production.
46.In the circumstances, I find no merit on this line of argument and proceed to reject the appellant’s contention on the same.