(Being an appeal against both the conviction and sentence of Hon. P. Areri (SPM) delivered on 13/12/2023 in Eldoret CM’s Sexual offences case no. E044 of 2022).
1. The appellant was charged with defilement contrary with section 8(1) and (2) of the sexual offence Act NO. 3 OF 2006. The particulars of the offence are that on the 14 th day of March, 2022 at Barsombe Location in Soy Sub – county within Uasin Gishu County,the appellant, intentionally caused his penis to penetrate the vagina of RN aged 4 years.
2. The trial court considered the evidence of 5 witnesses and found the appellant guilty of the offence of defilement. Upon conviction, the appellant was sentenced to life imprisonment.
3. Being dissatisfied with the conviction and sentence by the trial court, the appellant filed this appeal. The appeal is based on 7 grounds of appeal which can be summarized as follows:
a) That the charge sheet in this matter was totally defective.
b) That the trial magistrate erred in law and fact as the prosecution witnesses gave conflicting oral testimonies making his conviction unsafe.
4. PW1, Doctor Irene Simiyu of Moi Teaching and Referral Hospital stated that the complainant was seen at the hospital on 16/3/2022 and registered under OPD No. 1131399. She found that the minor had abrasion at the posterior fourchette and redness on her liabia minora. The doctor, further, stated the said injuries are consistent with defilement. She also produced complaints’ P3 from marked P. Exhibit no. 1.
5. PW2, Victoria Nasimiyu is the mother of RN. She lives in Barsombe. She is a farmer and has five children, RN being her last born. She produced the complainant Clinic card (P. Exhibit no. 2). On 14.3.2022 at around 3.00pm, PW 2, stated she was at home at Kamiendo plot and RN was at a Center near their home.
6. PW2, further, stated that she heard RN crying and she ran for her and she told her somebody caught her. PW2, further, stated she saw Alex sitting on the verandah holding RN on the laps and had removed her short half way. On seeing her, PW2 Stated, he pushed the child away and attempted to escape but PW2 screamed and people caught the appellant and beat him up. PW2, further, stated the mob tied the appellant with a rope and went with him to Ziwa Police station.
7. PW3, RN, the complaint gave unsworn testimony. She stated she knew the appellant, Alex. PW3, also stated the appellant did bad manners to at the Center and told her he will buy a sweet. She, further, stated that the appellant removed her short half way then removed his dudu and put it in her dudu after opening a zip of his trouser. PW3, also stated that she felt pain and cried. Her mother came, PW3 stated, and the appellant ran away and she was taken to hospital.
8. When the appellant was given a chance to defend himself, he elected to keep quiet.
9. The issue for determination in this matter is whether the accused defiled the minor. Being 1 st appeal, this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. ( see. Mark Oiruri Mose -vs- Republic (2013) eKLR)
10. Sec 8(1) – (2) of the Sexual Offence Act that provide as follows:
1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2) A person who commits an offence of defilement with a child aged eleven years as less shall upon conviction be sentenced to imprisonment for life
Under section 2 of the Act penetration in defined as
“ Partial or complete insertion of the genital organs of another person”.
11. In a charge of defilement, the prosecution is required to prove 3 ingredients: -
1) Age of the victim.
2) Penetration
3) Identification of the perpetrator.
12. In this matter, PW3, the complainant’s mother, produced the complaint’s Hospital. Card (P. Exhibit 3). The card shows the minor was born on 17.10.2017. she was, therefore, aged 4 years when the alleged offence herein occurred.
14. On penetration, P3, RN, the complainant stated that Alex the appellant did bad manners to her and told her he will buy her a sweet. She, further, stated that the appellant removed her short half way then removed his dudu a nd put it in her dudu after opening the zip of his trouser. She also stated that she felt pain and she cried. This court takes ‘ dudu ’ to mean private parts.
15. The evidence of PW3 is corroborated by the evidence of PW2, Victoria Nasimiyu the complainant’s mother who stated that she heard the complainant crying and she ran for her. She, further, stated she found Alex (Appellant) sitting on a verandah holding RN on his laps and had removed her short halfway. On seeing her, PW2 stated he pushed the child away and attempted to escape but she screamed and the appellant was arrested by members of the public.
16. The evidence of PW3 is, further, corroborated by evidence of PW1 Dr Irene Simiyu a medical doctor based at Moi Teaching and Referral Hospital. The doctor stated that the complainant was seen at hospital on 16.3.2022. on examining her, PW1 stated, she found that the minor had abrasion on her posterior faucet and redness on her Labia minora which observation are consistent with defilement. To support her findings the doctor produced the complainant’s P3 form marked P. Exhibit 2.
17. As the appellant chose to remain silent to the evidence of the 3 witnesses was therefore not controverted.
18. It is, therefore, the court’s finding that there is sufficient to prove that the appellant penetrated the complainant’s vagina with his penis.
19. PW2, stated, that the incident herein happened during the day. The complainant and the PW2 knew the appellant and identified him by his name Alex. The Appellant was also arrested by members immediately after the incident. All these facts were not challenged by the appellant. It is, therefore, the court’s finding that the complainant and her mother knew the appellant and identified him.
20. The prosecution proved the 3 ingredients of defilement against the appellant beyond reasonable doubt. The trial, therefore, did not err in convicting the appellant for defilement under Sec. 8(1) and (2) of the sexual offence Act. The sentence prescribed for the said offence is mandatory life sentence.
21. The upshot of my findings above, is that this Appeal lacks merit and the same is dismissed.
22. Right of Appeal within 14 days.
Dated, signed and delivered online via MS team, this 29 th day of July 2026.
Hon. P. K. Rotich
JUDGE
CRIMINAL APPEAL NO. E081 OF 2023 JUDGEMENT 2 | Page (Alex Mogera Kimutai -vs- Republic)
1. The appellant was charged with defilement contrary with section 8(1) and (2) of the sexual offence Act NO. 3 OF 2006. The particulars of the offence are that on the 14 th day of March, 2022 at Barsombe Location in Soy Sub – county within Uasin Gishu County,the appellant, intentionally caused his penis to penetrate the vagina of RN aged 4 years.
2. The trial court considered the evidence of 5 witnesses and found the appellant guilty of the offence of defilement. Upon conviction, the appellant was sentenced to life imprisonment.
3. Being dissatisfied with the conviction and sentence by the trial court, the appellant filed this appeal. The appeal is based on 7 grounds of appeal which can be summarized as follows:
a) That the charge sheet in this matter was totally defective.
b) That the trial magistrate erred in law and fact as the prosecution witnesses gave conflicting oral testimonies making his conviction unsafe.
4. PW1, Doctor Irene Simiyu of Moi Teaching and Referral Hospital stated that the complainant was seen at the hospital on 16/3/2022 and registered under OPD No. 1131399. She found that the minor had abrasion at the posterior fourchette and redness on her liabia minora. The doctor, further, stated the said injuries are consistent with defilement. She also produced complaints’ P3 from marked P. Exhibit no. 1.
5. PW2, Victoria Nasimiyu is the mother of RN. She lives in Barsombe. She is a farmer and has five children, RN being her last born. She produced the complainant Clinic card (P. Exhibit no. 2). On 14.3.2022 at around 3.00pm, PW 2, stated she was at home at Kamiendo plot and RN was at a Center near their home.
6. PW2, further, stated that she heard RN crying and she ran for her and she told her somebody caught her. PW2, further, stated she saw Alex sitting on the verandah holding RN on the laps and had removed her short half way. On seeing her, PW2 Stated, he pushed the child away and attempted to escape but PW2 screamed and people caught the appellant and beat him up. PW2, further, stated the mob tied the appellant with a rope and went with him to Ziwa Police station.
7. PW3, RN, the complaint gave unsworn testimony. She stated she knew the appellant, Alex. PW3, also stated the appellant did bad manners to at the Center and told her he will buy a sweet. She, further, stated that the appellant removed her short half way then removed his dudu and put it in her dudu after opening a zip of his trouser. PW3, also stated that she felt pain and cried. Her mother came, PW3 stated, and the appellant ran away and she was taken to hospital.
8. When the appellant was given a chance to defend himself, he elected to keep quiet.
9. The issue for determination in this matter is whether the accused defiled the minor. Being 1 st appeal, this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. ( see. Mark Oiruri Mose -vs- Republic (2013) eKLR)
10. Sec 8(1) – (2) of the Sexual Offence Act that provide as follows:
1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2) A person who commits an offence of defilement with a child aged eleven years as less shall upon conviction be sentenced to imprisonment for life
Under section 2 of the Act penetration in defined as
“ Partial or complete insertion of the genital organs of another person”.
11. In a charge of defilement, the prosecution is required to prove 3 ingredients: -
1) Age of the victim.
2) Penetration
3) Identification of the perpetrator.
12. In this matter, PW3, the complainant’s mother, produced the complaint’s Hospital. Card (P. Exhibit 3). The card shows the minor was born on 17.10.2017. she was, therefore, aged 4 years when the alleged offence herein occurred.
14. On penetration, P3, RN, the complainant stated that Alex the appellant did bad manners to her and told her he will buy her a sweet. She, further, stated that the appellant removed her short half way then removed his dudu a nd put it in her dudu after opening the zip of his trouser. She also stated that she felt pain and she cried. This court takes ‘ dudu ’ to mean private parts.
15. The evidence of PW3 is corroborated by the evidence of PW2, Victoria Nasimiyu the complainant’s mother who stated that she heard the complainant crying and she ran for her. She, further, stated she found Alex (Appellant) sitting on a verandah holding RN on his laps and had removed her short halfway. On seeing her, PW2 stated he pushed the child away and attempted to escape but she screamed and the appellant was arrested by members of the public.
16. The evidence of PW3 is, further, corroborated by evidence of PW1 Dr Irene Simiyu a medical doctor based at Moi Teaching and Referral Hospital. The doctor stated that the complainant was seen at hospital on 16.3.2022. on examining her, PW1 stated, she found that the minor had abrasion on her posterior faucet and redness on her Labia minora which observation are consistent with defilement. To support her findings the doctor produced the complainant’s P3 form marked P. Exhibit 2.
17. As the appellant chose to remain silent to the evidence of the 3 witnesses was therefore not controverted.
18. It is, therefore, the court’s finding that there is sufficient to prove that the appellant penetrated the complainant’s vagina with his penis.
19. PW2, stated, that the incident herein happened during the day. The complainant and the PW2 knew the appellant and identified him by his name Alex. The Appellant was also arrested by members immediately after the incident. All these facts were not challenged by the appellant. It is, therefore, the court’s finding that the complainant and her mother knew the appellant and identified him.
20. The prosecution proved the 3 ingredients of defilement against the appellant beyond reasonable doubt. The trial, therefore, did not err in convicting the appellant for defilement under Sec. 8(1) and (2) of the sexual offence Act. The sentence prescribed for the said offence is mandatory life sentence.
21. The upshot of my findings above, is that this Appeal lacks merit and the same is dismissed.
22. Right of Appeal within 14 days.
Dated, signed and delivered online via MS team, this 29 th day of July 2026.
Hon. P. K. Rotich
JUDGE
CRIMINAL APPEAL NO. E081 OF 2023 JUDGEMENT 2 | Page (Alex Mogera Kimutai -vs- Republic)