(Being an appeal against the conviction and sentence by Hon. Onalo J K Olga (SRM) in Malindi CMC (SO) Case No. E009 of 2021)
1. The appellant herein, Alphonce Kazungu Kalama was charged before the Chief Magistrate’s Court, Malindi with the offence of defilement of an imbecile contrary to section 146 of the Penal Code. Particulars of the offence were that on 5 February 2021 at Kizingo Village in Malindi Sub-County within Malindi County, he intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of P.R.R who to his knowledge was an imbecile girl aged 13 years.
2. He was also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that 5 February 2021 at Kizingo Village in Malindi Sub-County within Malindi County, he intentionally and unlawfully committed an indecent act by touching the vagina of P.R.R a girl aged 13 years using his penis.
3. The appellant denied the charges prompting the trial where the prosecution called four (4) witnesses to prove its case. PW1, Lilian Kasichana testified that she was 13 years and is a twin and elder sister to the victim, P.R.R who suffers from mental disability and could not speak or comprehend a thing. On 5 February 2021 at 10pm, she was sleeping with the victim when she had her cry. She touched her and felt a different person who she didn’t know. The said person fell down and ran outside. The person then went to the window to peep on them and she drew the curtain to check. The person had a torch and its flash shone on her. That he held the torch in a manner that it shone on him too and she saw him and realized that it was the appellant. She testified that the victim was screaming that the appellant had had sex with her.
4. The following day, on 6 February 2021, she reported the incident to her mother PW2, Loice Charo who in turn reported the incident to Kizingo police station and took the victim Malindi sub-county hospital for medical tests and examination which revealed that the victim’s hymen had broken and she had been defiled. She further testified that the victim continued to bleed for 13 days and identified the appellant as the assailant.
5. PW3 Dr Ibrahim Abdullahi testified that he is based in Malindi sub-county hospital and worked closely with Dr Rimba who attended to the victim. He went on to say that the victim, known to be mentally retarded, was presented to the hospital on 15 February 2021with allegations that she had been defiled. Upon examination, it was established that her hymen was broken, she had lacerations that had not healed and abrasions on her vaginal orifice leading to a conclusion that there was vaginal penetration of a mentally retarded 13-year-old. He produced an age assessment report of the victim that established she was 13 years (exhibit 1), the P3 Form (exhibit 2), lab request forms (exhibit 3) and treatment notes (exhibit 4).
6. PW4 PC Peter Ndungu’s testimony was that he was based at Kizingo police station where a complaint regarding defilement of the victim was reported on 6 February 2021. Investigations led to the arrest of the appellant at his house and recovery of the torch (white in colour) that PW1 said the appellant had on the material day at night (exhibit 6).
7. At the close of the prosecution’s case, the trial court found that a prima facie case had been established and placed the appellant on his defence. In his defence, the appellant testified on oath and called 3 witnesses. He denied the charges and testified that on 5 February 2021 at 1pm he left for a funeral until 8pm when he got back and went to sleep leaving his family outside eating. The next day in the morning, his wife (DW2) told him that there was noise from the house where the victim lives at 10pm the previous night only to be told later that he had defiled the victim. That he reported the matter to the assistant chief’s office where he was arrested and told be the police to avail the torch that he had been given by a honourable. He testified that he wondered how the police knew about the torch and was informed that PW1 had said he had it. He stated that he knew the victim’s family and that the victim and PW1 would at times spend the night at his place. He went on to say that he once found the victim on the road with a boy.
8. DW2, Sara Pili Alphonce, DW3 Margaret Lewa and DW4 Rehema Kadzo testified that they were the appellant’s daughter, wife and daughter in law respectively. DW2, DW3 and DW4 all testified that on the material day, the appellant returned home at 8pm while they were eating, declined to eat and went to sleep. It was DW2’s evidence that at around 10pm, they had noises coming from the victim’s house which prompted DW3 to go and check. DW3 confirmed that she went to the victim’s house at 10pm evidence was to inquire what was happening and she met PW1 who told her that the victim had been raped by a person she had identified but who had run away. The following day in morning, she informed the appellant what had happened who in turn reported to the assistant chief and was thereafter arrested and charge. She further stated that it was not the first time that the victim had claimed that someone had gone to their house.
9. At the conclusion of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, convicted the appellant and sentencing him to 9 years imprisonment after considering his mitigation, the victim impact statement, the pre-sentence report and the nature and circumstances of the offence.
10. Aggrieved, the appellant filed the present appeal where he raised the following grounds:
i. That trial court violated the appellant’s rights as enshrined in Article 50 (2) (h) of the Constitution by failing to inform him of the said rights.
ii. The trial court erred in both law and fact by failing to find that it was impossible for PW1 to have positively identified the appellant given the circumstances.
iii. The trial court erred in both law and fact by totally disregarding the defence of alibi raised by the appellant and the evidence by witnesses in support thereof.
iv. The trial court erred in both law and fact by ignoring and disregarding the appellant’s evidence.
v. The trial court erred in both law and fact by failing to find that the prosecution had not proved its case beyond reasonable doubt.
11. At the hearing of the appeal, the appellant filed written submissions dated 5 May 2026 while the respondent filed written submissions dated 3 February 2026 which they each relied on. The appellant was represented by Mr Mwadilo learned counsel while the respondent was represented by Miss Ngina Mutua learned counsel.
12. The appellant submitted that the burden of proof rested upon the prosecution and cited Woolmington vs DPP (1935) AC 462 in support thereof. He contended that the trial court erred in law and fact by failing to find that the entire case was hinged on identification at night and that the circumstances rendered identification extremely difficult and therefore unsafe. He further challenged the entire prosecution’s case which he submitted raised grave and serious doubt that the appellant was responsible for the offence. He argued that the appellant presented a credible defence that remained unchallenged which entitled him to the benefit of doubt. He urged the court to allow the appeal and acquit the appellant.
13. The respondent opposed the appeal and submitted that the prosecution had proved its case beyond reasonable doubt. It was argued that this being the first appeal, the court was mandated to analyse and reevaluate the evidence afresh in line with the holding in Odhiambo vs Republic , Cr App No. 280 of 2004 (2005) 1 KLR.
14. The respondent submitted that the ingredients of the offence are proof of unlawful canal knowledge and the victim’s incapacity as established in Stephen Biketi vs Republic (2019) eKLR. On the first ingredient, it was submitted that evidence of PW1 and medical evidence proved unlawful canal knowledge while the second ingredient was proved through a combination of oral and documentary evidence. It was further contended that evidence was presented to show that the appellant knew of the victim’s mental state since he was not a stranger but a close relative and neighbour who had extensive personal interaction with the victim.
15. On the question of identification, the respondent submitted that PW1 was able to clearly saw and identify the appellant when he (the appellant) inadvertently shone the torch he was holding on his face. That the torch was subsequently recovered from the appellant. It was further argued that the appellant was well known to PW1 which made identification easy. The case of A njononi & another vs Republic (1980) KLR 59 was cited to buttress the point.
16. As regards the defence of alibi, the respondent submitted that the evidence was too weak to dislodge that of the prosecution and the trial court was right to disregard it. On the alleged violation of Article 50 (2) (h) of the Constitution, it was submitted that there was no violation of the appellant’s right to fair trial since he was afforded ample time to cross examine all witnesses at length. The respondent reiterated that the prosecution had proved its case beyond reasonable doubt and urged the court to dismiss the appeal, uphold the conviction and sentence.
Analysis and determination
17. This being the first appeal, the court has a duty to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. This principle was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of Oiruri Mose Vs R (2013) eKLR.
18. The Court of Appeal, in Kiilu & Another Vs Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
19. The appellant was charged with the offence of defilement of an imbecile contrary to section 146 of the Penal Code . The said section provides as follows: -
“146. Any person who, knowing a person to be an idiot or imbecile , has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was an idiot or imbecile, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years.”
20. “Carnal knowledge” is defined in the Black’s Law Dictionary, Tenth Edition at page 256 as “sexual intercourse, especially with an underage female.” The appellant was charged with defiling P.R.R a girl aged 13 years. The victim could not lawfully consent to any sexual activity owing to her age. Consequently, the issues for determination in this appeal are:
i. Whether the appellant defiled P.R.R.
ii. Whether P.R.R was an imbecile.
iii. Whether the appellant had knowledge that P.R.R was an imbecile.
iv. Whether the appellant’s right to fair trial under Article 50 (2) (h) of the Constitution were violated.
Whether the appellant defiled P.R.R.
21. The specific ingredients of the offence of defilement which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani Vs Republic , Criminal Appeal No. 72 of 2013 and George Opondo Olunga Vs Republic (2016) eKLR.
(i) Proof of Penetration
22. Section 2 (1) of the Sexual Offences Ac t defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
23. To establish this element, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the vagina of the victim, P.R.R.
24. PW1, testified that on 5 February 2021 at 10pm, she was sleeping with the victim, P.R.R when she had her cry. She touched her and felt a different person who she didn’t know. The said person fell down and ran outside. The victim was screaming that the assailant had had sex with her. She testified that the victim was mentally challenged since birth and could not speak or comprehend what was happening, meaning she was unable to react or even testify on her own.
25. On 6 February 2021, PW1 informed her mother, PW2 who reported the matter to the police and took the victim to Malindi Sub-County Hospital for examination. PW3 testified that medical examinations and tests carried out on the victim P.R.R on 15 February 2021 established that her hymen was broken, she had lacerations that had not healed and abrasions on her vaginal orifice leading to a conclusion that there was vaginal penetration of a mentally retarded 13-year-old. He produced the P3 Form, lab request forms and treatment notes as evidence thereof.
26. DW2 and DW3 confirmed that on the material day at 10pm they heard noises coming from the victim’s home prompting DW3 to go and check. On arrival, DW3 was informed by PW1 that the victim had been defiled by a person known to her. The evidence by the prosecution witnesses on penetration was consistent, cogent and duly corroborated by medical examination findings as well as defence witnesses. The court finds that sufficient evidence was adduced to prove penetration.
(ii) Proof of a ge of the victim
27. The age of the victim is a critical ingredient since it addresses the issue of consent. Age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi V Republic, Criminal Appeal No. 21 Of 2015 [2017].
28. PW3 conducted an aged assessment on the victim where he concluded that she was 13 years old. He produced the age assessment report as exhibit 1. PW1 also testified that the victim is her twin sister and that they were both 13 years old. This was further corroborated by PW2 their mother. The court finds that this ingredient was proved beyond reasonable doubt.
(iii) Positive identification of the perpetrator.
29. The appellant submitted that the entire case was hinged on identification at night and that the circumstances rendered identification extremely difficult and therefore the conviction was unsafe. The respondent maintained that the appellant was properly identified through recognition of a witness who had personal knowledge of him.
30. Identification is a critical ingredient in the offence as it provides the nexus between the appellant and the victim. Without proper identification, the case must fail. PW1’s evidence was that she recognized the appellant when he shone light on his face with the torch that he had. This torch was subsequently recovered from the appellant during his arrest by PW4 who testified that PW1 gave information that the assailant had a torch that he used that night. The torch which was white in colour, was adduced in evidence as exhibit 6. The appellant, in his evidence, wondered how the police became aware of the torch which he said was given by a mheshimiwa.
31. Form the onset, PW1 was very categorical that she saw and recognized the assailant. This is corroborated by DW3 who went to the victim’s house on the night of the incident where PW1 informed her that the victim was defiled by someone known to her. It is obvious as to why she didn’t disclose the name to DW3 who is the appellant’s wife. The appellant was a neighbour and relative to the PW1 and they had interacted severally hence it was easy for PW1 to recognize him. Despite the fact that the incident occurred at night, the circumstances are that positive identification was made possible by the light from the torch.
32. The court of appeal, in Anjononi & another vs R epublic (1980) KLR 59, stated thus;
“recognition of an assailant is more satisfactory, more reassuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.”
33. The court finds that the appellant was properly identified as the assailant .
34. The appellant averred in his grounds of appeal that the trial court totally disregarded his defence of alibi . The court of appeal in Erick Otieno Meda vs R epublic (2019) eKLR had this to say on the defence of alibi raised by the accused persons;
a) An alibi needs to be corroborated by the other witnesses and not just a mere regurgitation of the events from the accused point of view.
b) An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination in trial.
c) The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she has presented in court.
d) The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond reasonable doubt so as to allow the alibi to fail.
35. The appellant testified that on the material day, he arrived home at 8pm and went to sleep until the next morning when he was informed about the incident. DW2, DW3 and DW4 all testified that the appellant arrived at 8pm, declined to eat and went to sleep. However, none of the witnesses testified that the appellant was indeed asleep at 10pm when the incident occurred. Additionally, the appellant did not raise the defence of alibi at any stage during the prosecution ’ s case so as to provide an opportunity for rebuttal by prosecution witnesses.
36. The prosecution presented a strong case that leaves no doubt that the appellant is guilty of defiling P.R.R. The evidence adduced against appellant was cogent, consistent and corroborative and the court finds that the prosecution proved defilement beyond reasonable doubt.
Whether P.R.R was an imbecile
37. One of the ingredients necessary to satisfy the charge of defilement of an imbecile is establishing whether the victim was indeed an imbecile. See P. Nyamweya J in Nzioka Kilonzo v Republic [2017] eKLR and C. Mwita J in Patrick Barasa Wawire v Republic [2016] eKLR, R. Sitati J in Steven Biketi Vs R (2019) eKLR .
38. “ Imbecile” is defined in the Black’s Law Dictionary, Tenth Edition at page 865 as “a person afflicted with severe mental retardation.” PW1 and PW2 testified that the victim, P.R.R was suffering from mental disability since birth after her nerves were affected during delivery. PW3 Dr. Ibrahim testified that the victim was a known to be mentally retarded. The P3 form (exhibit 4) records at Part II that the child was “a mentally challenged patient, stable and well dressed”.
39. The trial court made an observation that the complainant could only make incoherent noises, consistent with the testimony of PW1 and the description in the P3 Form. Based on the foregoing, the court finds that the victim was mentally challenged and therefore an imbecile within the meaning of Section 146 of the Penal Code .
Whether the appellant had knowledge that P.R.R was an imbecile
40. Knowledge that a victim was an imbecile is important since it addresses the lack of capacity to consent. This is usually critical in instances where the victim is an adult and hence capable of consent. For children under 18 years, the law is that they are incapable of giving consent. In this case, the victim was 13 years and hence incapable of consenting. Besides that, evidence shows that the appellant knew of the victim’s mental state since he was well known to her, both as a neighbour and close relative. The court finds that this element was proved.
Whether the appellant’s right to fair trial under Article 50 (2) (h) of the Constitution were violated
41. The appellant contended that his right to fair trial under Article 50 (2) (h) of the Constitution were violated. However, no submissions on this allegation were made during hearing. The respondent submitted that there was no violation of the appellant’s right to fair trial since he was afforded ample time to cross examine all witnesses at length.
42. Article 50(2)(h) the Constitution provides that : -
“ 50. Fair hearing
(2) Every accused person has the right to a fair trial, which includes the right—
…………………
(h) “….to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”
43. The right to be assigned an advocate by the state is pegged upon the occurrence of substantial injustice, if none is availed. The record shows that the appellant had instructed an advocate to represent him even before trial commenced. The proceedings of 6 December 2021 clearly shows that the appellant was represented by Mr Mwadime learned counsel who had asked Mr Mogaka to hold his brief. The appellant’s rights under Article 50(2)(h) of the Constitution were therefore not violated in way. The court finds this ground of appeal lacking in merit and the same is accordingly dismissed.
44. From the foregoing, the court finds that the trial court’s conviction of the appellant was safe and is hereby upheld.
45. The upshot is that the appeal against conviction is dismissed and the conviction and sentence by the trial court is upheld.
Dated, signed and delivered virtually at Nairobi on this 9 th day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
1. The appellant herein, Alphonce Kazungu Kalama was charged before the Chief Magistrate’s Court, Malindi with the offence of defilement of an imbecile contrary to section 146 of the Penal Code. Particulars of the offence were that on 5 February 2021 at Kizingo Village in Malindi Sub-County within Malindi County, he intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of P.R.R who to his knowledge was an imbecile girl aged 13 years.
2. He was also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act, No. 3 of 2006 with particulars stating that 5 February 2021 at Kizingo Village in Malindi Sub-County within Malindi County, he intentionally and unlawfully committed an indecent act by touching the vagina of P.R.R a girl aged 13 years using his penis.
3. The appellant denied the charges prompting the trial where the prosecution called four (4) witnesses to prove its case. PW1, Lilian Kasichana testified that she was 13 years and is a twin and elder sister to the victim, P.R.R who suffers from mental disability and could not speak or comprehend a thing. On 5 February 2021 at 10pm, she was sleeping with the victim when she had her cry. She touched her and felt a different person who she didn’t know. The said person fell down and ran outside. The person then went to the window to peep on them and she drew the curtain to check. The person had a torch and its flash shone on her. That he held the torch in a manner that it shone on him too and she saw him and realized that it was the appellant. She testified that the victim was screaming that the appellant had had sex with her.
4. The following day, on 6 February 2021, she reported the incident to her mother PW2, Loice Charo who in turn reported the incident to Kizingo police station and took the victim Malindi sub-county hospital for medical tests and examination which revealed that the victim’s hymen had broken and she had been defiled. She further testified that the victim continued to bleed for 13 days and identified the appellant as the assailant.
5. PW3 Dr Ibrahim Abdullahi testified that he is based in Malindi sub-county hospital and worked closely with Dr Rimba who attended to the victim. He went on to say that the victim, known to be mentally retarded, was presented to the hospital on 15 February 2021with allegations that she had been defiled. Upon examination, it was established that her hymen was broken, she had lacerations that had not healed and abrasions on her vaginal orifice leading to a conclusion that there was vaginal penetration of a mentally retarded 13-year-old. He produced an age assessment report of the victim that established she was 13 years (exhibit 1), the P3 Form (exhibit 2), lab request forms (exhibit 3) and treatment notes (exhibit 4).
6. PW4 PC Peter Ndungu’s testimony was that he was based at Kizingo police station where a complaint regarding defilement of the victim was reported on 6 February 2021. Investigations led to the arrest of the appellant at his house and recovery of the torch (white in colour) that PW1 said the appellant had on the material day at night (exhibit 6).
7. At the close of the prosecution’s case, the trial court found that a prima facie case had been established and placed the appellant on his defence. In his defence, the appellant testified on oath and called 3 witnesses. He denied the charges and testified that on 5 February 2021 at 1pm he left for a funeral until 8pm when he got back and went to sleep leaving his family outside eating. The next day in the morning, his wife (DW2) told him that there was noise from the house where the victim lives at 10pm the previous night only to be told later that he had defiled the victim. That he reported the matter to the assistant chief’s office where he was arrested and told be the police to avail the torch that he had been given by a honourable. He testified that he wondered how the police knew about the torch and was informed that PW1 had said he had it. He stated that he knew the victim’s family and that the victim and PW1 would at times spend the night at his place. He went on to say that he once found the victim on the road with a boy.
8. DW2, Sara Pili Alphonce, DW3 Margaret Lewa and DW4 Rehema Kadzo testified that they were the appellant’s daughter, wife and daughter in law respectively. DW2, DW3 and DW4 all testified that on the material day, the appellant returned home at 8pm while they were eating, declined to eat and went to sleep. It was DW2’s evidence that at around 10pm, they had noises coming from the victim’s house which prompted DW3 to go and check. DW3 confirmed that she went to the victim’s house at 10pm evidence was to inquire what was happening and she met PW1 who told her that the victim had been raped by a person she had identified but who had run away. The following day in morning, she informed the appellant what had happened who in turn reported to the assistant chief and was thereafter arrested and charge. She further stated that it was not the first time that the victim had claimed that someone had gone to their house.
9. At the conclusion of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, convicted the appellant and sentencing him to 9 years imprisonment after considering his mitigation, the victim impact statement, the pre-sentence report and the nature and circumstances of the offence.
10. Aggrieved, the appellant filed the present appeal where he raised the following grounds:
i. That trial court violated the appellant’s rights as enshrined in Article 50 (2) (h) of the Constitution by failing to inform him of the said rights.
ii. The trial court erred in both law and fact by failing to find that it was impossible for PW1 to have positively identified the appellant given the circumstances.
iii. The trial court erred in both law and fact by totally disregarding the defence of alibi raised by the appellant and the evidence by witnesses in support thereof.
iv. The trial court erred in both law and fact by ignoring and disregarding the appellant’s evidence.
v. The trial court erred in both law and fact by failing to find that the prosecution had not proved its case beyond reasonable doubt.
11. At the hearing of the appeal, the appellant filed written submissions dated 5 May 2026 while the respondent filed written submissions dated 3 February 2026 which they each relied on. The appellant was represented by Mr Mwadilo learned counsel while the respondent was represented by Miss Ngina Mutua learned counsel.
12. The appellant submitted that the burden of proof rested upon the prosecution and cited Woolmington vs DPP (1935) AC 462 in support thereof. He contended that the trial court erred in law and fact by failing to find that the entire case was hinged on identification at night and that the circumstances rendered identification extremely difficult and therefore unsafe. He further challenged the entire prosecution’s case which he submitted raised grave and serious doubt that the appellant was responsible for the offence. He argued that the appellant presented a credible defence that remained unchallenged which entitled him to the benefit of doubt. He urged the court to allow the appeal and acquit the appellant.
13. The respondent opposed the appeal and submitted that the prosecution had proved its case beyond reasonable doubt. It was argued that this being the first appeal, the court was mandated to analyse and reevaluate the evidence afresh in line with the holding in Odhiambo vs Republic , Cr App No. 280 of 2004 (2005) 1 KLR.
14. The respondent submitted that the ingredients of the offence are proof of unlawful canal knowledge and the victim’s incapacity as established in Stephen Biketi vs Republic (2019) eKLR. On the first ingredient, it was submitted that evidence of PW1 and medical evidence proved unlawful canal knowledge while the second ingredient was proved through a combination of oral and documentary evidence. It was further contended that evidence was presented to show that the appellant knew of the victim’s mental state since he was not a stranger but a close relative and neighbour who had extensive personal interaction with the victim.
15. On the question of identification, the respondent submitted that PW1 was able to clearly saw and identify the appellant when he (the appellant) inadvertently shone the torch he was holding on his face. That the torch was subsequently recovered from the appellant. It was further argued that the appellant was well known to PW1 which made identification easy. The case of A njononi & another vs Republic (1980) KLR 59 was cited to buttress the point.
16. As regards the defence of alibi, the respondent submitted that the evidence was too weak to dislodge that of the prosecution and the trial court was right to disregard it. On the alleged violation of Article 50 (2) (h) of the Constitution, it was submitted that there was no violation of the appellant’s right to fair trial since he was afforded ample time to cross examine all witnesses at length. The respondent reiterated that the prosecution had proved its case beyond reasonable doubt and urged the court to dismiss the appeal, uphold the conviction and sentence.
Analysis and determination
17. This being the first appeal, the court has a duty to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. This principle was set out in the case of Okeno Vs Republic [1972] EA 32, and has been affirmed in various decisions, including the Court of Appeal case of Oiruri Mose Vs R (2013) eKLR.
18. The Court of Appeal, in Kiilu & Another Vs Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
19. The appellant was charged with the offence of defilement of an imbecile contrary to section 146 of the Penal Code . The said section provides as follows: -
“146. Any person who, knowing a person to be an idiot or imbecile , has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was an idiot or imbecile, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years.”
20. “Carnal knowledge” is defined in the Black’s Law Dictionary, Tenth Edition at page 256 as “sexual intercourse, especially with an underage female.” The appellant was charged with defiling P.R.R a girl aged 13 years. The victim could not lawfully consent to any sexual activity owing to her age. Consequently, the issues for determination in this appeal are:
i. Whether the appellant defiled P.R.R.
ii. Whether P.R.R was an imbecile.
iii. Whether the appellant had knowledge that P.R.R was an imbecile.
iv. Whether the appellant’s right to fair trial under Article 50 (2) (h) of the Constitution were violated.
Whether the appellant defiled P.R.R.
21. The specific ingredients of the offence of defilement which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani Vs Republic , Criminal Appeal No. 72 of 2013 and George Opondo Olunga Vs Republic (2016) eKLR.
(i) Proof of Penetration
22. Section 2 (1) of the Sexual Offences Ac t defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
23. To establish this element, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the vagina of the victim, P.R.R.
24. PW1, testified that on 5 February 2021 at 10pm, she was sleeping with the victim, P.R.R when she had her cry. She touched her and felt a different person who she didn’t know. The said person fell down and ran outside. The victim was screaming that the assailant had had sex with her. She testified that the victim was mentally challenged since birth and could not speak or comprehend what was happening, meaning she was unable to react or even testify on her own.
25. On 6 February 2021, PW1 informed her mother, PW2 who reported the matter to the police and took the victim to Malindi Sub-County Hospital for examination. PW3 testified that medical examinations and tests carried out on the victim P.R.R on 15 February 2021 established that her hymen was broken, she had lacerations that had not healed and abrasions on her vaginal orifice leading to a conclusion that there was vaginal penetration of a mentally retarded 13-year-old. He produced the P3 Form, lab request forms and treatment notes as evidence thereof.
26. DW2 and DW3 confirmed that on the material day at 10pm they heard noises coming from the victim’s home prompting DW3 to go and check. On arrival, DW3 was informed by PW1 that the victim had been defiled by a person known to her. The evidence by the prosecution witnesses on penetration was consistent, cogent and duly corroborated by medical examination findings as well as defence witnesses. The court finds that sufficient evidence was adduced to prove penetration.
(ii) Proof of a ge of the victim
27. The age of the victim is a critical ingredient since it addresses the issue of consent. Age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi V Republic, Criminal Appeal No. 21 Of 2015 [2017].
28. PW3 conducted an aged assessment on the victim where he concluded that she was 13 years old. He produced the age assessment report as exhibit 1. PW1 also testified that the victim is her twin sister and that they were both 13 years old. This was further corroborated by PW2 their mother. The court finds that this ingredient was proved beyond reasonable doubt.
(iii) Positive identification of the perpetrator.
29. The appellant submitted that the entire case was hinged on identification at night and that the circumstances rendered identification extremely difficult and therefore the conviction was unsafe. The respondent maintained that the appellant was properly identified through recognition of a witness who had personal knowledge of him.
30. Identification is a critical ingredient in the offence as it provides the nexus between the appellant and the victim. Without proper identification, the case must fail. PW1’s evidence was that she recognized the appellant when he shone light on his face with the torch that he had. This torch was subsequently recovered from the appellant during his arrest by PW4 who testified that PW1 gave information that the assailant had a torch that he used that night. The torch which was white in colour, was adduced in evidence as exhibit 6. The appellant, in his evidence, wondered how the police became aware of the torch which he said was given by a mheshimiwa.
31. Form the onset, PW1 was very categorical that she saw and recognized the assailant. This is corroborated by DW3 who went to the victim’s house on the night of the incident where PW1 informed her that the victim was defiled by someone known to her. It is obvious as to why she didn’t disclose the name to DW3 who is the appellant’s wife. The appellant was a neighbour and relative to the PW1 and they had interacted severally hence it was easy for PW1 to recognize him. Despite the fact that the incident occurred at night, the circumstances are that positive identification was made possible by the light from the torch.
32. The court of appeal, in Anjononi & another vs R epublic (1980) KLR 59, stated thus;
“recognition of an assailant is more satisfactory, more reassuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or another.”
33. The court finds that the appellant was properly identified as the assailant .
34. The appellant averred in his grounds of appeal that the trial court totally disregarded his defence of alibi . The court of appeal in Erick Otieno Meda vs R epublic (2019) eKLR had this to say on the defence of alibi raised by the accused persons;
a) An alibi needs to be corroborated by the other witnesses and not just a mere regurgitation of the events from the accused point of view.
b) An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination in trial.
c) The alibi defence or evidence may often rest on the credibility of the accused and reliability of the evidence that he or she has presented in court.
d) The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond reasonable doubt so as to allow the alibi to fail.
35. The appellant testified that on the material day, he arrived home at 8pm and went to sleep until the next morning when he was informed about the incident. DW2, DW3 and DW4 all testified that the appellant arrived at 8pm, declined to eat and went to sleep. However, none of the witnesses testified that the appellant was indeed asleep at 10pm when the incident occurred. Additionally, the appellant did not raise the defence of alibi at any stage during the prosecution ’ s case so as to provide an opportunity for rebuttal by prosecution witnesses.
36. The prosecution presented a strong case that leaves no doubt that the appellant is guilty of defiling P.R.R. The evidence adduced against appellant was cogent, consistent and corroborative and the court finds that the prosecution proved defilement beyond reasonable doubt.
Whether P.R.R was an imbecile
37. One of the ingredients necessary to satisfy the charge of defilement of an imbecile is establishing whether the victim was indeed an imbecile. See P. Nyamweya J in Nzioka Kilonzo v Republic [2017] eKLR and C. Mwita J in Patrick Barasa Wawire v Republic [2016] eKLR, R. Sitati J in Steven Biketi Vs R (2019) eKLR .
38. “ Imbecile” is defined in the Black’s Law Dictionary, Tenth Edition at page 865 as “a person afflicted with severe mental retardation.” PW1 and PW2 testified that the victim, P.R.R was suffering from mental disability since birth after her nerves were affected during delivery. PW3 Dr. Ibrahim testified that the victim was a known to be mentally retarded. The P3 form (exhibit 4) records at Part II that the child was “a mentally challenged patient, stable and well dressed”.
39. The trial court made an observation that the complainant could only make incoherent noises, consistent with the testimony of PW1 and the description in the P3 Form. Based on the foregoing, the court finds that the victim was mentally challenged and therefore an imbecile within the meaning of Section 146 of the Penal Code .
Whether the appellant had knowledge that P.R.R was an imbecile
40. Knowledge that a victim was an imbecile is important since it addresses the lack of capacity to consent. This is usually critical in instances where the victim is an adult and hence capable of consent. For children under 18 years, the law is that they are incapable of giving consent. In this case, the victim was 13 years and hence incapable of consenting. Besides that, evidence shows that the appellant knew of the victim’s mental state since he was well known to her, both as a neighbour and close relative. The court finds that this element was proved.
Whether the appellant’s right to fair trial under Article 50 (2) (h) of the Constitution were violated
41. The appellant contended that his right to fair trial under Article 50 (2) (h) of the Constitution were violated. However, no submissions on this allegation were made during hearing. The respondent submitted that there was no violation of the appellant’s right to fair trial since he was afforded ample time to cross examine all witnesses at length.
42. Article 50(2)(h) the Constitution provides that : -
“ 50. Fair hearing
(2) Every accused person has the right to a fair trial, which includes the right—
…………………
(h) “….to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”
43. The right to be assigned an advocate by the state is pegged upon the occurrence of substantial injustice, if none is availed. The record shows that the appellant had instructed an advocate to represent him even before trial commenced. The proceedings of 6 December 2021 clearly shows that the appellant was represented by Mr Mwadime learned counsel who had asked Mr Mogaka to hold his brief. The appellant’s rights under Article 50(2)(h) of the Constitution were therefore not violated in way. The court finds this ground of appeal lacking in merit and the same is accordingly dismissed.
44. From the foregoing, the court finds that the trial court’s conviction of the appellant was safe and is hereby upheld.
45. The upshot is that the appeal against conviction is dismissed and the conviction and sentence by the trial court is upheld.
Dated, signed and delivered virtually at Nairobi on this 9 th day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE