(Appeal against the Judgment of Hon. O. Mogire - SPM, delivered on 6/12/2023 in Eldoret Chief Magistrate’s Court Criminal (Sexual Offences) Case No. E012 of 2022)
1. The Appellant was charged in the said Magistrate’s Court Criminal Case with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on diverse dates in the month of December 2021 at [xxxxxxxxx] area, in Turbo Sub-County within Uasin Gishu County, he intentionally caused his penis to penetrate the vagina of NK, a child aged 4 years. He also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The accusation was that on the same date, time and place, he intentionally touched the vagina of the same child aged 4 years with his penis.
2. The Appellant pleaded not guilty to the charges and the case proceeded to full trial in which the Prosecution called 6 witnesses. At the close of the Prosecution case, the Court found the Appellant with a case to answer and put him on his defence. In his defence, he gave a sworn statement and called no other witness. By the said Judgment delivered on 6/12/2023, he was convicted on the main charge, and sentenced to 40 years imprisonment.
3. Dissatisfied with the decision, the Appellant filed this appeal on 12/07/2023 challenging both the conviction and sentence. His Petition of Appeal is crafted as follows:
i) That the learned Magistrate erred in law and fact by failing to find that the Prosecution witness was inconsistent and untrustworthy to be relied on.
ii) That the learned Magistrate erred in law and fact by failing to find that the medical evidence produced in Court failed to disclose the act of penetration.
iii) That (I) am rehabilitated, reformed and remorseful person since (I) have learnt to taker responsibility of (my) own action.
iv) That sentence imposed was manifestly excessive as (I) rely on High Court Petition No. E017/2021 at Machakos by G.V Odunga.
v) That more grounds to be adduced during the hearing and determination of this Application.
4. However, the Appellant, in his Submissions filed subsequently and dated 8/09/2025, included what he described as “Supplementary Grounds of Appeal”. The same contains 13 lengthy grounds framed which I will not recount herein since it is a pointless copy and paste reproduction of what is again repeated in the Appellant’s Submissions which I will recount.
5. I will now recount the testimonies and evidence of the witnesses before the trial court.
Prosecution evidence
6. PW1 was Dr. Irene Simiyu, a Medical Officer from the Moi Teaching and Referral Hospital (MTRH). She testified that the complainant (PW4) was attended to at the facility on 10/1/2022 with history of having been defiled by a person known to her. She stated that examination conducted on PW4 revealed that she had healed hymenal tears at 3, 6 and 9 o’clock, and that urinalysis and HIV test gave negative results. She stated that the incident occurred in December 2021, that the object used was a blunt object, and that PW4 had not received any treatment since that time. She testified that the findings were consistent with defilement, and she then produced the P3 Form signed by her.
7. PW2 was a minor, who introduced herself as “B.A.” Due to her age, she was taken through a voire dire examination upon which the Magistrate, satisfied that the minor understood the importance of telling the truth, allowed her to give sworn testimony, which she then did.
8. PW2 then testified that she was a Grade 4 primary school pupil and lives with her mother (PW3), her aunt, and her sister, N (PW4). She stated that in the month of December 2021, “Ras” put his “dudu” on her sister’s (PW4) private part, and then he put it to hers as well. She is then recorded to have pointed at her genital area, and referred to it as “the place for urinating”. She testified that PW4 cried as the Appellant put his “dudu” on her genital organ, that as PW2 was watching, the Appellant instructed her not to look at him, instructions which she obeyed and looked the other side as she feared the Appellant, who then came and also removed PW2’s clothes, and also put his genital organ into PW2’s, and she screamed as he did so. She stated that the acts happened at the Appellant’s house where the two girls had gone with the Appellant’s sister, G, who was older than PW2 and in Class 5, and that it was around 6.30 pm. She stated that when they entered the compound, G told them that she had forgotten her shoes and went out for them, she asked them to wait for her but as they were standing, “Ras” appeared and asked them to get into the house. She described the house as a one roomed mud house with a bed, stove, utensils and a radio, and stated that when they got in, the Appellant switched on the radio and instructed them to dance while naked, that she was wearing a black top, a sweater, short and pants, while PW4 was wearing a dress, a biker and a sweater, which all the Appellant removed.
9. She stated that similar acts occurred on different dates but the above incident was the first and, on another date, the Appellant found PW2, PW4, and another girl standing outside the gate while their aunt was inside cooking, the Appellant held PW4 by hand and when PW2 inquired, the Appellant grabbed her hand as well, and took them to a different house, which looked just like “Ras” house, where a friend of the Appellant joined them. She testified that the two men then sent PW2 to go and buy bread and milk for PW4, which she did, when she returned, she found PW4 crying in the house, the two men took the milk and bread and left with PW4, and they locked PW2 inside the house. She testified that she cried for help but as the house is isolated, and the nearest neighbour is a far distance away, no one responded, but later, PW4, came and opened the door for her, and they went home. She stated that it had begun getting dark and they found no one at home, as their mother arrived later when they were already sleep. She stated that the following morning, their mother asked them where they had been and she explained to her that they were playing but did not disclose to her the truth since “Ras” had threatened to kill them all, including their mother. She testified that they were then instructed to bathe and as she was bathing PW4, she noticed whitish “things” on PW4’s genital organ which were also spread on PW4’s biker, and she told her mother about the discharge. She testified that on another date, she was with other children when the Appellant appeared and grabbed her, took her to another house which had a chair and a bed, and locked it, he removed her clothes and promised to give her chips, soda and cake, he removed his clothes and pushed his genital organ into hers, that it was pitch dark inside the house, and she slept there until morning when the Appellant opened the door and asked her to go home. She stated that when she arrived home, she found PW4 sleeping and “Mama K” and her mother (PW3) looking for her, her mother asked her where she had spent the night but she feared to disclose the truth since the Appellant had vowed to kill all of them in their family, but as she was beaten, she finally revealed the truth that she said she had spent the night at “Ras” house.
10. She testified that they (PW2 and PW4) were then taken to the police station, and later to hospital, where they were examined and given treatment. She stated that “Ras” was someone she knew well and then identified him as the Appellant seated in Court. In cross-examination, she reiterated that the Appellant defiled them on several occasions, not on one day. She also confirmed that the Appellant had slapped PW2’s mother (PW3) on a certain morning when she was drunk, and threatened to hit her (PW3) with a stick, but she denied that her mother threatened the Appellant with dire consequences. She also confirmed that on a certain date, her mother came for them at the Appellant’s house and asked him why he had taken the girls to his house. She also stated that the first time the Appellant defiled her, he covered her mouth and she could not therefore scream. She confirmed that on the date of the first act of defilement, they were neither taken to the police or hospital. Regarding the second act of defilement, she stated that the Appellant found them playing a “hide-and-seek” game known as “are you ready?” and that the Appellant got her as her friends had, as part of the game, gone to hide. She reiterated that she got injured when the Appellant pushed his genital organ into hers.
11. PW3 was CK, the two girls’ mother, who described herself as a waiter at a nightclub, and testified that she works at night, and lives with the girls, PW2 and PW4. She stated that sometime in the month of December 2021, she noted the tendency, several times, of children going to spend time at the house of “Ras”, the Appellant herein, who lived alone, whom she informed about her discomfort with that arrangement, and asked him not to allow her young girls to go to his house. She stated that on a certain date, she took her children away from the Appellant, upon which an altercation with the Appellant arose, and the Appellant slapped her. She stated that when she inquired from the children, they told her that the Appellant was playing music for them, that on another date, while PW2 was bathing PW4, she (PW2) noticed some whitish discharge on PW4’s private parts, and notified PW3, who washed her and took her to hospital, where the doctor, upon examination, informed her that the evidence had been washed away. She testified that on 8/11/2022, she gave her neighbour by the name “Mama K” money to buy breakfast for her children whom she left behind, when “Mama K” returned back from the shops, she did not find PW2, neighbours begun looking for PW2 to no avail, the following morning, PW2 emerged and found the neighbours gathered, PW2, on being interrogated, revealed that the Appellant had taken her to a house and defiled her. She testified that PW2 also revealed that the incidents occurred on several occasions but she had feared to disclose them since the Appellant had threatened to eliminate their entire family, and also revealed that PW4 had also been defiled by the Appellant. She stated that she then went with the children to the police station and reported the matter, and they were they were referred to hospital. She testified that PW2 was aged 8 years and the complainant, PW4, was 4 years, having been born in the year 2017. She then stated that PW2 had also revealed that the Appellant had defiled her about 3 times. She denied having any grudge against the Appellant. In cross-examination, she stated that she and the Appellant are basically neighbours as they live in the same area
12. PW4 was the complainant, N.A., also a minor. Due to her age, she, too, was taken through a voire dire examination upon which the Magistrate, not satisfied that the minor understood the importance taking an oath, directed that she gives unsworn testimony, which she then did.
13. PW4 then testified that she lives with her mother (PW3) and her sister (PW2), and is in PP2. She recalled that that the Appellant (“Ras”) put his “urinating organ” into hers then did the same to her sister, and instructed them not to tell their mother. She testified that on a later date, her sister (PW2) spent a night at the Appellant’s house, and that is how their mother got to learnt of the defilement. She then identified the said “Ras” as the Appellant seated in the dock. She stated that on that date, she was wearing a dress and a pant which the Appellant removed and they remained naked, that the Appellant’s house is a simple room, a mud house with a bed and a radio, seats and a stove, and that the Appellant pulled her to the seat and defiled her. She further testified that on a certain day, her mother went to collect them from the Appellant’s house and the Appellant slapped her (PW4’s mother) when her mother asked him why he had asked the girls to go to his house. She stated that they were later taken to the police and later to hospital. She stated further that they had been taken to the Appellant’s house by G, that on another date, the Appellant found the girls playing and held PW4’s and PW2’s hands and promised to give them milk and bread and threatened to kill them if they reported him. In cross-examination, she stated that when she screamed, her aunt came and asked the Appellant to let PW4 go. She denied that her mother had instructed her on what to say in Court. In the end, she stated that she did not report the incident to her mother immediately because the Appellant had threatened to kill all PW4’s family.
14. PW5 was JA. She recalled that on 8/11/2022 at around 7.00 pm, PW3 (PW2 and PW4’s mother) who works during the night, asked her to watch over her children for the night. PW5 testified that she then left to go and look for her siblings who reside nearby but when she returned at around 10.00 pm, a neighbour, alerted her that PW2 was not at home, that, together with neighbours, they looked for PW2 for around 3 hours to no avail and went to sleep. She stated that she woke up at around 6.00 am and continued with the search for PW2, who shortly afterwards appeared, they tried to speak with her but she kept silent, PW2’s mother was agitated when she arrived and learnt of the matter, and wanted to beat up PW4 but the neighbours prevailed upon her, and after speaking to PW4 in a friendly manner, she finally opened up and revealed that it is the Appellant who had asked her to go to his home immediately after her mother left. The witness stated that the angry neighbours wanted to invade the Appellant’s house but later decided to go and report the matter to the police, which they did. She stated that she, accompanied by a police officer, later accompanied the two girls to MTRH, where the girls were examined and medical reports made. She stated that they did not wash PW2, and that the examination confirmed that she had been defiled. She then identified “Ras” as the Appellant seated in Court, whom she knew from their neighbourhood. She stated that PW2 explained her ordeal to the police, and reiterated that PW3 works at night and thus leaves the children in the house at night. In cross-examination, she stated that PW3 had once told her that she had got into an altercation with PW3 when she went to collect her children from the Appellant, and during which the Appellant slapped PW3. She took the position that PW3, as a mother, was right to get concerned about the Appellant hosting young girls yet he used to stay alone.
15. PW6 was Corporal Caroline Kipkorio attached to the Baharini Police Station, the Investigating Officer. She stated that she was in the Station’s Crime Office on 9/11/2021 when 2 children (PW2 and PW4) were brought to the Gender Desk by their mother and members of the public, one of the witnesses (PW5) and neighbours reported that the children had been left by their mother on 8/11/2021 at around 6.00 pm under the care of PW5 when the mother went out for night duties but one of the children, the elder one (PW2), went missing, that a search within the neighbourhood did not bear any fruit but the girl later returned at around 6.00 am in the morning, and upon interrogation, she disclosed that she had been taken by the Appellant to his house, where she spent the night, and that the Appellant defiled her the whole night. PW6 stated that she then spoke to the girls, and the elder one, PW2, informed her that PW4 had also been subjected to defilement by the same Appellant in December, 2021. PW6 then testified that she recorded the reports and escorted the girls to MTRH, where they were issued with P3 Forms. She testified that she visited the scene of crime, where she established that the Appellant’s house was made of iron sheets, that the girls and their mother resided on the opposite side, and that the mother used to go out at night. She stated further that she then recorded witness statements and went to the Appellant’s house with other officers and arrested him, and he was later charged before Court. She also produced an Age Assessment Report and testified that the Appellant’s house is about 150 metres from the girl’s house, and that the Appellant’s house was a single room with a sofa set. In cross-examination, she stated that the case herein is about the younger 4 years old girl, and the Appellant was also charged in a separate case for also defiling the elder girl, and which case was also ongoing. She thus confirmed that the incident which the Appellant had been charged with in this case was the one for December 2021. She also stated that she visited the scene on 11/12/2022 and arrested the Appellant on 12/12/2022, and that the girls identified the Appellant as the assailant.
16. As aforesaid, at the close of the Prosecution case, the trial Court found the Appellant as having a case to answer and put him on his defence. The Appellant then, in his defence, gave a sworn statement, and called 3 other witnesses.
17. The Appellant, testifying as DW1, stated that he is a Chef in a hotel, that on 11/01/2022, he woke up at around 5.00 am and left for his place of work where he stayed up to until 10.00 pm, when at around 11.00 pm, he heard a knock at the door and when he opened, 6 police officers entered the house, asked him to introduce himself, then handcuffed him with a promise that he would know the reason for his arrest at the Station, and also conducted a search in the house. He stated that was taken to Baharini Police Station where he was accused of committing an unspecified offence, the following morning at 9.00 am, two women, whom he recognized, and 2 children, whom he had never seen, were brought in, and he was informed that he had defiled the 2 children, and he was later taken to MTRH where he was examined and tested. He claimed that he was framed for the two cases as he had differences with the girl’s mother who was drunk at the time and behaving indecently in front of the children in broad daylight, that as a parent, he decided to caution her against misbehaving in the presence of the children but she, in response, hurled indecent insults at him, and held him by the collar of his shirt and told promised to ensure that he was incarcerated, which threat, he thought was coming out of the drunkardness at that time.
18. As aforesaid, after the trial, by the Judgment delivered on 6/12/2023, the Appellant was convicted on the main charge of defilement and sentenced to 40 years’ imprisonment.
19. The parties then filed written Submissions. The Appellant’s Submissions is dated 8/09/2025, while the Respondent’s (State) is dated 23/07/2025. The Respondent also filed the Supplementary Submissions dated 7/10/2025, and also the “Notice of Enhancement of Sentence”, dated 7/07/2025.
Appellant’s Submissions
20. The Appellant, in a lengthy narrative, submitted that the Prosecution failed to prove its case beyond reasonable doubt and that the conviction and sentence are unsupported considering major unresolved contradictions in the Prosecution's case. On the issue of “age, he contended that there were three different ages alleged in respect to PW4, that the mother indicated that she was born in 2017 but could not specify the date or month but indicated that she could have been about 5 years, that the doctor estimated the age as 4 years, and the Age Assessment estimated an age as 3 years old. He submitted that this lack of uniformity was a clear signal that the ingredient of age was not established. Regarding “identification”, he averred that PW4 referred to “someone having done something bad” to her, considering that there was an allegation that the Appellant had a friend in his house during the alleged time of the offence, raises doubt on the identity of the perpetrator. According to him, his implication in the offence was as a result of being coached, and due to vengeance. On the issue of “penetration”, he urged that there was no evidence to prove that he is the one who defiled PW4. He questioned the credibility of the allegation since the report was not made on time, and also doubted the excuse that the offence was not reported in time because of threats of death. In his view, this points to a scheme to settle scores. He also contended that the P3 Form lacked authenticity as the doctor presented a wrongly filled form which was attributed to lack of evidence, and wrote exculpatory evidence in the wrong space for lack of what to write for a non-existent offence.
21. He also pointed out that although an examination was conducted on him, no evidence on the results thereon, and no P3 Form, were presented. He also wondered why the complainant was brought in as witness number 4, and also why the doctor stated that she was in Court on behalf of the complainant, which according to him, meant the doctor was an intermediary yet he was not so appointed, and the complainant was also not declared a vulnerable witness. He submitted further that most of the Prosecution witnesses gave evidence, not from personal knowledge, but from what they were told thus amounting to hearsay. He cited the case of William Kiprotich Cheruiyot vs Republic (2021). He further contended that the case was founded on a defective charge sheet since the testimonies of the Prosecution witnesses were all about the incident alleged to have taken place on 8/01/2022, which however did not relate to the case indicated in the Charge to have occurred on diverse dates in December 2021. He cited Section 134 of the Criminal Procedure Code (CPC), and urged that the defect is not curable under Section 382 thereof. He claimed that he raised the issue of the defect during the trial but the trial Court ignored it. He also took issue with the lack of the specific date of committing of the offence, which date could have put him in a position to answer the charge and offer a defence. He pointed out that PW2 alleged that the Appellant and his friend defiled them on an unknown date in December, but wondered why the alleged friend was not arrested, or record a statement, nor his name mentioned. In respect to “sentence”, he urged that Section 333(2) of the CPC was not complied with since the trial Magistrate did not factor the period of about 1 year and 11 months that he had spent in pre-trial detention. He also submitted that the sentence of 40 years was excessive, and should have been 21 years like in South Africa since the trial Magistrate equated life sentence to 40 years. He also contended that his age of 49 years was not taken into consideration.
Respondent’s Submissions
22. Prosecution Counsel Ms. Claire Muriithi, on her part, restated the ingredients of the offence of defilement as set out in the case of George Opondo Olunga v Republic [2016] eKLR. On the issue of “age”, she cited the case of Edwin Nyambogo Onsongo vs. Republic (2016) eKLR, and urged that PW3, the victim’s mother, testified that PW4 was aged 4 years and was born in the year 2017, and that PW6, the Investigating Officer, produced an Age Assessment, which indicated PW4’s age as 3 years. Counsel also pointed out that the Appellant did not dispute production of the Age Assessment Report, or challenge its veracity, and urged that although there was a disparity between the age indicated in the Charge Sheet, and the one the Age Assessment Report, the same was not fatal, since the age was within the bracket indicated in Section 8(2) of the Sexual Offences Act.
23. On “penetration”, she submitted that the same was proved through the evidence of the victim as corroborated by medical evidence, and also the evidence of PW2, who stated that PW4 was brought in with a history of defilement by a person known to her, and who was expressly named in the P3 Form as “Ras Aggrey”. On “identification”, Counsel cited the Court of Appeal case of Peter Musau Mwanzia Vs Republic (2008) eKLR, and pointed out that PW2, PW3 and PW4 all identified the Appellant in the dock, and were all also persons who knew him very well, and the Appellant too confirmed that he knew PW3 as PW2’s and PW4’s mother. She thus observed that identification was not only by way of dock identification, but also by recognition. Regarding the Appellant’s defence, she submitted that it was a mere denial, and could not dispel the overwhelming evidence tendered by the Prosecution. On sentence, she cited the provisions of Section 8(2) of the Sexual Offences Act, and urged that the trial Court erred in substituting the life imprisonment sentence with a 40-year sentence. She cited the Supreme Court case of Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR), and urged this Court to enhance the sentence to life imprisonment, as prayed in the Notice of enhancement.
24. In her Supplementary Submissions, in respect to the allegation that the charge sheet was defective, Counsel cited the Court of Appeal case of Benard Ombuna vs Republic [2019] eKLR, and pointed out that the Appellant answered to the charges when taking plea, and that the particulars in the charge sheet made clear reference to the offence of defilement, as well as the diverse dates the offence is alleged to have been committed, and also the identity of the complainant. She contended that the Appellant fully participated in the trial, and even prepared for his defence, and he cannot now state that he misunderstood the nature of the charges against him, or the offence he was being accused of having committed against the complainant. On the allegation that the the evidence was contradictory, Counsel agreed that where contradictions are material and tend to show that the witnesses are not honest or truthful, the Court will cast doubt on the evidence, but submitted that where contradictions are minor, they are ignored. He cited the Court of Appeal case of Erick Onyango Odeng vs Republic [2014] eKLR. According to her, the Appellant has not demonstrated any contradictions that go to the root of the Prosecution case, and averred that the trial Court was satisfied that the witnesses were truthful, and the Appellant’s assertion that PW3 contradicted herself on the existence of a grudge between her and the Appellant lacks merit. On Section 333(2) of the CPC, she referred to the “Notice of Enhancement” of the sentence to life imprisonment, and submitted that should the Court agree to enhance the sentence, then Section 333(2) would not apply as life imprisonment is an indeterminable sentence.
Determination
25. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (see Okeno vs. Republic [1972] E.A 32)
26. The issues for determination in this matter are evidently the following:
i) Whether the Charge Sheet was defective.
ii) Whether the defilement charge against the Appellant was proved beyond reasonable doubt
iii) Whether the sentence of 40 years’ imprisonment imposed against the Appellant was justified, or whether it should be enhanced to life imprisonment.
27. In respect to the contention that the Charge Sheet was defective, Section 134 of the CPC provides as follows:
“Every charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the Appellant person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
28. The above position was amplified by Kimaru J (as he then was), in the case of Kipkurui Arap Sigilani vs Republic, (2004) 2 KLR, 480, in which he stated that:
“The principle of the law governing charge sheets is that an Appellant should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the Appellant may be able to plead to specific charge that he can understand. It will also enable the Appellant to prepare his defence.”
29. Applying the test above and upon keenly perusing the charge sheet, I find that the particulars of the offence were clearly spelt out, and these included the section of the law creating the offence, the place of the offence, the act constituting the offence and the name of the victim. As the offence was allegedly committed repeatedly and on dates not specifically verified, the use of the phrase “on diverse dates” is acceptable and does not render the charge sheet defective in any way. The record reveals that the Appellant fully participated in the trial, cross-examined witnesses, and also put up a defence. He cannot now therefore, belatedly, claim to not have understood the charges he was facing. In the circumstances, this ground of the Appeal fails without further ado.
30. On whether the charge of defilement was proved, Section 8(1) and 8(2) of the Sexual Offences Act, under which the Appellant was charged provide as follows, respectively:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”
“8. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
31. For the offence of defilement to be established, 3 ingredients must therefore be proved, namely, the age of the victim, penetration and positive identification of the offender. (see George Opondo Olunga v Republic [2016] eKLR).
32. In respect to proof of the “age” of the victim, the Court of Appeal in the case of Edwin Nyambogo Onsongo v Republic [2016] eKLR, stated as follows:
“…. the question of proof of age has
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1. The Appellant was charged in the said Magistrate’s Court Criminal Case with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. The particulars were that on diverse dates in the month of December 2021 at [xxxxxxxxx] area, in Turbo Sub-County within Uasin Gishu County, he intentionally caused his penis to penetrate the vagina of NK, a child aged 4 years. He also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The accusation was that on the same date, time and place, he intentionally touched the vagina of the same child aged 4 years with his penis.
2. The Appellant pleaded not guilty to the charges and the case proceeded to full trial in which the Prosecution called 6 witnesses. At the close of the Prosecution case, the Court found the Appellant with a case to answer and put him on his defence. In his defence, he gave a sworn statement and called no other witness. By the said Judgment delivered on 6/12/2023, he was convicted on the main charge, and sentenced to 40 years imprisonment.
3. Dissatisfied with the decision, the Appellant filed this appeal on 12/07/2023 challenging both the conviction and sentence. His Petition of Appeal is crafted as follows:
i) That the learned Magistrate erred in law and fact by failing to find that the Prosecution witness was inconsistent and untrustworthy to be relied on.
ii) That the learned Magistrate erred in law and fact by failing to find that the medical evidence produced in Court failed to disclose the act of penetration.
iii) That (I) am rehabilitated, reformed and remorseful person since (I) have learnt to taker responsibility of (my) own action.
iv) That sentence imposed was manifestly excessive as (I) rely on High Court Petition No. E017/2021 at Machakos by G.V Odunga.
v) That more grounds to be adduced during the hearing and determination of this Application.
4. However, the Appellant, in his Submissions filed subsequently and dated 8/09/2025, included what he described as “Supplementary Grounds of Appeal”. The same contains 13 lengthy grounds framed which I will not recount herein since it is a pointless copy and paste reproduction of what is again repeated in the Appellant’s Submissions which I will recount.
5. I will now recount the testimonies and evidence of the witnesses before the trial court.
Prosecution evidence
6. PW1 was Dr. Irene Simiyu, a Medical Officer from the Moi Teaching and Referral Hospital (MTRH). She testified that the complainant (PW4) was attended to at the facility on 10/1/2022 with history of having been defiled by a person known to her. She stated that examination conducted on PW4 revealed that she had healed hymenal tears at 3, 6 and 9 o’clock, and that urinalysis and HIV test gave negative results. She stated that the incident occurred in December 2021, that the object used was a blunt object, and that PW4 had not received any treatment since that time. She testified that the findings were consistent with defilement, and she then produced the P3 Form signed by her.
7. PW2 was a minor, who introduced herself as “B.A.” Due to her age, she was taken through a voire dire examination upon which the Magistrate, satisfied that the minor understood the importance of telling the truth, allowed her to give sworn testimony, which she then did.
8. PW2 then testified that she was a Grade 4 primary school pupil and lives with her mother (PW3), her aunt, and her sister, N (PW4). She stated that in the month of December 2021, “Ras” put his “dudu” on her sister’s (PW4) private part, and then he put it to hers as well. She is then recorded to have pointed at her genital area, and referred to it as “the place for urinating”. She testified that PW4 cried as the Appellant put his “dudu” on her genital organ, that as PW2 was watching, the Appellant instructed her not to look at him, instructions which she obeyed and looked the other side as she feared the Appellant, who then came and also removed PW2’s clothes, and also put his genital organ into PW2’s, and she screamed as he did so. She stated that the acts happened at the Appellant’s house where the two girls had gone with the Appellant’s sister, G, who was older than PW2 and in Class 5, and that it was around 6.30 pm. She stated that when they entered the compound, G told them that she had forgotten her shoes and went out for them, she asked them to wait for her but as they were standing, “Ras” appeared and asked them to get into the house. She described the house as a one roomed mud house with a bed, stove, utensils and a radio, and stated that when they got in, the Appellant switched on the radio and instructed them to dance while naked, that she was wearing a black top, a sweater, short and pants, while PW4 was wearing a dress, a biker and a sweater, which all the Appellant removed.
9. She stated that similar acts occurred on different dates but the above incident was the first and, on another date, the Appellant found PW2, PW4, and another girl standing outside the gate while their aunt was inside cooking, the Appellant held PW4 by hand and when PW2 inquired, the Appellant grabbed her hand as well, and took them to a different house, which looked just like “Ras” house, where a friend of the Appellant joined them. She testified that the two men then sent PW2 to go and buy bread and milk for PW4, which she did, when she returned, she found PW4 crying in the house, the two men took the milk and bread and left with PW4, and they locked PW2 inside the house. She testified that she cried for help but as the house is isolated, and the nearest neighbour is a far distance away, no one responded, but later, PW4, came and opened the door for her, and they went home. She stated that it had begun getting dark and they found no one at home, as their mother arrived later when they were already sleep. She stated that the following morning, their mother asked them where they had been and she explained to her that they were playing but did not disclose to her the truth since “Ras” had threatened to kill them all, including their mother. She testified that they were then instructed to bathe and as she was bathing PW4, she noticed whitish “things” on PW4’s genital organ which were also spread on PW4’s biker, and she told her mother about the discharge. She testified that on another date, she was with other children when the Appellant appeared and grabbed her, took her to another house which had a chair and a bed, and locked it, he removed her clothes and promised to give her chips, soda and cake, he removed his clothes and pushed his genital organ into hers, that it was pitch dark inside the house, and she slept there until morning when the Appellant opened the door and asked her to go home. She stated that when she arrived home, she found PW4 sleeping and “Mama K” and her mother (PW3) looking for her, her mother asked her where she had spent the night but she feared to disclose the truth since the Appellant had vowed to kill all of them in their family, but as she was beaten, she finally revealed the truth that she said she had spent the night at “Ras” house.
10. She testified that they (PW2 and PW4) were then taken to the police station, and later to hospital, where they were examined and given treatment. She stated that “Ras” was someone she knew well and then identified him as the Appellant seated in Court. In cross-examination, she reiterated that the Appellant defiled them on several occasions, not on one day. She also confirmed that the Appellant had slapped PW2’s mother (PW3) on a certain morning when she was drunk, and threatened to hit her (PW3) with a stick, but she denied that her mother threatened the Appellant with dire consequences. She also confirmed that on a certain date, her mother came for them at the Appellant’s house and asked him why he had taken the girls to his house. She also stated that the first time the Appellant defiled her, he covered her mouth and she could not therefore scream. She confirmed that on the date of the first act of defilement, they were neither taken to the police or hospital. Regarding the second act of defilement, she stated that the Appellant found them playing a “hide-and-seek” game known as “are you ready?” and that the Appellant got her as her friends had, as part of the game, gone to hide. She reiterated that she got injured when the Appellant pushed his genital organ into hers.
11. PW3 was CK, the two girls’ mother, who described herself as a waiter at a nightclub, and testified that she works at night, and lives with the girls, PW2 and PW4. She stated that sometime in the month of December 2021, she noted the tendency, several times, of children going to spend time at the house of “Ras”, the Appellant herein, who lived alone, whom she informed about her discomfort with that arrangement, and asked him not to allow her young girls to go to his house. She stated that on a certain date, she took her children away from the Appellant, upon which an altercation with the Appellant arose, and the Appellant slapped her. She stated that when she inquired from the children, they told her that the Appellant was playing music for them, that on another date, while PW2 was bathing PW4, she (PW2) noticed some whitish discharge on PW4’s private parts, and notified PW3, who washed her and took her to hospital, where the doctor, upon examination, informed her that the evidence had been washed away. She testified that on 8/11/2022, she gave her neighbour by the name “Mama K” money to buy breakfast for her children whom she left behind, when “Mama K” returned back from the shops, she did not find PW2, neighbours begun looking for PW2 to no avail, the following morning, PW2 emerged and found the neighbours gathered, PW2, on being interrogated, revealed that the Appellant had taken her to a house and defiled her. She testified that PW2 also revealed that the incidents occurred on several occasions but she had feared to disclose them since the Appellant had threatened to eliminate their entire family, and also revealed that PW4 had also been defiled by the Appellant. She stated that she then went with the children to the police station and reported the matter, and they were they were referred to hospital. She testified that PW2 was aged 8 years and the complainant, PW4, was 4 years, having been born in the year 2017. She then stated that PW2 had also revealed that the Appellant had defiled her about 3 times. She denied having any grudge against the Appellant. In cross-examination, she stated that she and the Appellant are basically neighbours as they live in the same area
12. PW4 was the complainant, N.A., also a minor. Due to her age, she, too, was taken through a voire dire examination upon which the Magistrate, not satisfied that the minor understood the importance taking an oath, directed that she gives unsworn testimony, which she then did.
13. PW4 then testified that she lives with her mother (PW3) and her sister (PW2), and is in PP2. She recalled that that the Appellant (“Ras”) put his “urinating organ” into hers then did the same to her sister, and instructed them not to tell their mother. She testified that on a later date, her sister (PW2) spent a night at the Appellant’s house, and that is how their mother got to learnt of the defilement. She then identified the said “Ras” as the Appellant seated in the dock. She stated that on that date, she was wearing a dress and a pant which the Appellant removed and they remained naked, that the Appellant’s house is a simple room, a mud house with a bed and a radio, seats and a stove, and that the Appellant pulled her to the seat and defiled her. She further testified that on a certain day, her mother went to collect them from the Appellant’s house and the Appellant slapped her (PW4’s mother) when her mother asked him why he had asked the girls to go to his house. She stated that they were later taken to the police and later to hospital. She stated further that they had been taken to the Appellant’s house by G, that on another date, the Appellant found the girls playing and held PW4’s and PW2’s hands and promised to give them milk and bread and threatened to kill them if they reported him. In cross-examination, she stated that when she screamed, her aunt came and asked the Appellant to let PW4 go. She denied that her mother had instructed her on what to say in Court. In the end, she stated that she did not report the incident to her mother immediately because the Appellant had threatened to kill all PW4’s family.
14. PW5 was JA. She recalled that on 8/11/2022 at around 7.00 pm, PW3 (PW2 and PW4’s mother) who works during the night, asked her to watch over her children for the night. PW5 testified that she then left to go and look for her siblings who reside nearby but when she returned at around 10.00 pm, a neighbour, alerted her that PW2 was not at home, that, together with neighbours, they looked for PW2 for around 3 hours to no avail and went to sleep. She stated that she woke up at around 6.00 am and continued with the search for PW2, who shortly afterwards appeared, they tried to speak with her but she kept silent, PW2’s mother was agitated when she arrived and learnt of the matter, and wanted to beat up PW4 but the neighbours prevailed upon her, and after speaking to PW4 in a friendly manner, she finally opened up and revealed that it is the Appellant who had asked her to go to his home immediately after her mother left. The witness stated that the angry neighbours wanted to invade the Appellant’s house but later decided to go and report the matter to the police, which they did. She stated that she, accompanied by a police officer, later accompanied the two girls to MTRH, where the girls were examined and medical reports made. She stated that they did not wash PW2, and that the examination confirmed that she had been defiled. She then identified “Ras” as the Appellant seated in Court, whom she knew from their neighbourhood. She stated that PW2 explained her ordeal to the police, and reiterated that PW3 works at night and thus leaves the children in the house at night. In cross-examination, she stated that PW3 had once told her that she had got into an altercation with PW3 when she went to collect her children from the Appellant, and during which the Appellant slapped PW3. She took the position that PW3, as a mother, was right to get concerned about the Appellant hosting young girls yet he used to stay alone.
15. PW6 was Corporal Caroline Kipkorio attached to the Baharini Police Station, the Investigating Officer. She stated that she was in the Station’s Crime Office on 9/11/2021 when 2 children (PW2 and PW4) were brought to the Gender Desk by their mother and members of the public, one of the witnesses (PW5) and neighbours reported that the children had been left by their mother on 8/11/2021 at around 6.00 pm under the care of PW5 when the mother went out for night duties but one of the children, the elder one (PW2), went missing, that a search within the neighbourhood did not bear any fruit but the girl later returned at around 6.00 am in the morning, and upon interrogation, she disclosed that she had been taken by the Appellant to his house, where she spent the night, and that the Appellant defiled her the whole night. PW6 stated that she then spoke to the girls, and the elder one, PW2, informed her that PW4 had also been subjected to defilement by the same Appellant in December, 2021. PW6 then testified that she recorded the reports and escorted the girls to MTRH, where they were issued with P3 Forms. She testified that she visited the scene of crime, where she established that the Appellant’s house was made of iron sheets, that the girls and their mother resided on the opposite side, and that the mother used to go out at night. She stated further that she then recorded witness statements and went to the Appellant’s house with other officers and arrested him, and he was later charged before Court. She also produced an Age Assessment Report and testified that the Appellant’s house is about 150 metres from the girl’s house, and that the Appellant’s house was a single room with a sofa set. In cross-examination, she stated that the case herein is about the younger 4 years old girl, and the Appellant was also charged in a separate case for also defiling the elder girl, and which case was also ongoing. She thus confirmed that the incident which the Appellant had been charged with in this case was the one for December 2021. She also stated that she visited the scene on 11/12/2022 and arrested the Appellant on 12/12/2022, and that the girls identified the Appellant as the assailant.
16. As aforesaid, at the close of the Prosecution case, the trial Court found the Appellant as having a case to answer and put him on his defence. The Appellant then, in his defence, gave a sworn statement, and called 3 other witnesses.
17. The Appellant, testifying as DW1, stated that he is a Chef in a hotel, that on 11/01/2022, he woke up at around 5.00 am and left for his place of work where he stayed up to until 10.00 pm, when at around 11.00 pm, he heard a knock at the door and when he opened, 6 police officers entered the house, asked him to introduce himself, then handcuffed him with a promise that he would know the reason for his arrest at the Station, and also conducted a search in the house. He stated that was taken to Baharini Police Station where he was accused of committing an unspecified offence, the following morning at 9.00 am, two women, whom he recognized, and 2 children, whom he had never seen, were brought in, and he was informed that he had defiled the 2 children, and he was later taken to MTRH where he was examined and tested. He claimed that he was framed for the two cases as he had differences with the girl’s mother who was drunk at the time and behaving indecently in front of the children in broad daylight, that as a parent, he decided to caution her against misbehaving in the presence of the children but she, in response, hurled indecent insults at him, and held him by the collar of his shirt and told promised to ensure that he was incarcerated, which threat, he thought was coming out of the drunkardness at that time.
18. As aforesaid, after the trial, by the Judgment delivered on 6/12/2023, the Appellant was convicted on the main charge of defilement and sentenced to 40 years’ imprisonment.
19. The parties then filed written Submissions. The Appellant’s Submissions is dated 8/09/2025, while the Respondent’s (State) is dated 23/07/2025. The Respondent also filed the Supplementary Submissions dated 7/10/2025, and also the “Notice of Enhancement of Sentence”, dated 7/07/2025.
Appellant’s Submissions
20. The Appellant, in a lengthy narrative, submitted that the Prosecution failed to prove its case beyond reasonable doubt and that the conviction and sentence are unsupported considering major unresolved contradictions in the Prosecution's case. On the issue of “age, he contended that there were three different ages alleged in respect to PW4, that the mother indicated that she was born in 2017 but could not specify the date or month but indicated that she could have been about 5 years, that the doctor estimated the age as 4 years, and the Age Assessment estimated an age as 3 years old. He submitted that this lack of uniformity was a clear signal that the ingredient of age was not established. Regarding “identification”, he averred that PW4 referred to “someone having done something bad” to her, considering that there was an allegation that the Appellant had a friend in his house during the alleged time of the offence, raises doubt on the identity of the perpetrator. According to him, his implication in the offence was as a result of being coached, and due to vengeance. On the issue of “penetration”, he urged that there was no evidence to prove that he is the one who defiled PW4. He questioned the credibility of the allegation since the report was not made on time, and also doubted the excuse that the offence was not reported in time because of threats of death. In his view, this points to a scheme to settle scores. He also contended that the P3 Form lacked authenticity as the doctor presented a wrongly filled form which was attributed to lack of evidence, and wrote exculpatory evidence in the wrong space for lack of what to write for a non-existent offence.
21. He also pointed out that although an examination was conducted on him, no evidence on the results thereon, and no P3 Form, were presented. He also wondered why the complainant was brought in as witness number 4, and also why the doctor stated that she was in Court on behalf of the complainant, which according to him, meant the doctor was an intermediary yet he was not so appointed, and the complainant was also not declared a vulnerable witness. He submitted further that most of the Prosecution witnesses gave evidence, not from personal knowledge, but from what they were told thus amounting to hearsay. He cited the case of William Kiprotich Cheruiyot vs Republic (2021). He further contended that the case was founded on a defective charge sheet since the testimonies of the Prosecution witnesses were all about the incident alleged to have taken place on 8/01/2022, which however did not relate to the case indicated in the Charge to have occurred on diverse dates in December 2021. He cited Section 134 of the Criminal Procedure Code (CPC), and urged that the defect is not curable under Section 382 thereof. He claimed that he raised the issue of the defect during the trial but the trial Court ignored it. He also took issue with the lack of the specific date of committing of the offence, which date could have put him in a position to answer the charge and offer a defence. He pointed out that PW2 alleged that the Appellant and his friend defiled them on an unknown date in December, but wondered why the alleged friend was not arrested, or record a statement, nor his name mentioned. In respect to “sentence”, he urged that Section 333(2) of the CPC was not complied with since the trial Magistrate did not factor the period of about 1 year and 11 months that he had spent in pre-trial detention. He also submitted that the sentence of 40 years was excessive, and should have been 21 years like in South Africa since the trial Magistrate equated life sentence to 40 years. He also contended that his age of 49 years was not taken into consideration.
Respondent’s Submissions
22. Prosecution Counsel Ms. Claire Muriithi, on her part, restated the ingredients of the offence of defilement as set out in the case of George Opondo Olunga v Republic [2016] eKLR. On the issue of “age”, she cited the case of Edwin Nyambogo Onsongo vs. Republic (2016) eKLR, and urged that PW3, the victim’s mother, testified that PW4 was aged 4 years and was born in the year 2017, and that PW6, the Investigating Officer, produced an Age Assessment, which indicated PW4’s age as 3 years. Counsel also pointed out that the Appellant did not dispute production of the Age Assessment Report, or challenge its veracity, and urged that although there was a disparity between the age indicated in the Charge Sheet, and the one the Age Assessment Report, the same was not fatal, since the age was within the bracket indicated in Section 8(2) of the Sexual Offences Act.
23. On “penetration”, she submitted that the same was proved through the evidence of the victim as corroborated by medical evidence, and also the evidence of PW2, who stated that PW4 was brought in with a history of defilement by a person known to her, and who was expressly named in the P3 Form as “Ras Aggrey”. On “identification”, Counsel cited the Court of Appeal case of Peter Musau Mwanzia Vs Republic (2008) eKLR, and pointed out that PW2, PW3 and PW4 all identified the Appellant in the dock, and were all also persons who knew him very well, and the Appellant too confirmed that he knew PW3 as PW2’s and PW4’s mother. She thus observed that identification was not only by way of dock identification, but also by recognition. Regarding the Appellant’s defence, she submitted that it was a mere denial, and could not dispel the overwhelming evidence tendered by the Prosecution. On sentence, she cited the provisions of Section 8(2) of the Sexual Offences Act, and urged that the trial Court erred in substituting the life imprisonment sentence with a 40-year sentence. She cited the Supreme Court case of Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR), and urged this Court to enhance the sentence to life imprisonment, as prayed in the Notice of enhancement.
24. In her Supplementary Submissions, in respect to the allegation that the charge sheet was defective, Counsel cited the Court of Appeal case of Benard Ombuna vs Republic [2019] eKLR, and pointed out that the Appellant answered to the charges when taking plea, and that the particulars in the charge sheet made clear reference to the offence of defilement, as well as the diverse dates the offence is alleged to have been committed, and also the identity of the complainant. She contended that the Appellant fully participated in the trial, and even prepared for his defence, and he cannot now state that he misunderstood the nature of the charges against him, or the offence he was being accused of having committed against the complainant. On the allegation that the the evidence was contradictory, Counsel agreed that where contradictions are material and tend to show that the witnesses are not honest or truthful, the Court will cast doubt on the evidence, but submitted that where contradictions are minor, they are ignored. He cited the Court of Appeal case of Erick Onyango Odeng vs Republic [2014] eKLR. According to her, the Appellant has not demonstrated any contradictions that go to the root of the Prosecution case, and averred that the trial Court was satisfied that the witnesses were truthful, and the Appellant’s assertion that PW3 contradicted herself on the existence of a grudge between her and the Appellant lacks merit. On Section 333(2) of the CPC, she referred to the “Notice of Enhancement” of the sentence to life imprisonment, and submitted that should the Court agree to enhance the sentence, then Section 333(2) would not apply as life imprisonment is an indeterminable sentence.
Determination
25. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (see Okeno vs. Republic [1972] E.A 32)
26. The issues for determination in this matter are evidently the following:
i) Whether the Charge Sheet was defective.
ii) Whether the defilement charge against the Appellant was proved beyond reasonable doubt
iii) Whether the sentence of 40 years’ imprisonment imposed against the Appellant was justified, or whether it should be enhanced to life imprisonment.
27. In respect to the contention that the Charge Sheet was defective, Section 134 of the CPC provides as follows:
“Every charge or information shall contain and shall be sufficient if it contains a statement of the specific offence or offences with which the Appellant person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
28. The above position was amplified by Kimaru J (as he then was), in the case of Kipkurui Arap Sigilani vs Republic, (2004) 2 KLR, 480, in which he stated that:
“The principle of the law governing charge sheets is that an Appellant should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the Appellant may be able to plead to specific charge that he can understand. It will also enable the Appellant to prepare his defence.”
29. Applying the test above and upon keenly perusing the charge sheet, I find that the particulars of the offence were clearly spelt out, and these included the section of the law creating the offence, the place of the offence, the act constituting the offence and the name of the victim. As the offence was allegedly committed repeatedly and on dates not specifically verified, the use of the phrase “on diverse dates” is acceptable and does not render the charge sheet defective in any way. The record reveals that the Appellant fully participated in the trial, cross-examined witnesses, and also put up a defence. He cannot now therefore, belatedly, claim to not have understood the charges he was facing. In the circumstances, this ground of the Appeal fails without further ado.
30. On whether the charge of defilement was proved, Section 8(1) and 8(2) of the Sexual Offences Act, under which the Appellant was charged provide as follows, respectively:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”
“8. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
31. For the offence of defilement to be established, 3 ingredients must therefore be proved, namely, the age of the victim, penetration and positive identification of the offender. (see George Opondo Olunga v Republic [2016] eKLR).
32. In respect to proof of the “age” of the victim, the Court of Appeal in the case of Edwin Nyambogo Onsongo v Republic [2016] eKLR, stated as follows:
“…. the question of proof of age has
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