1. The accused was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on 12th December, 2020 at Magongo area in Changamwe Sub- County within Mombasa County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of CK a girl aged 12 years old. In the alternative the appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual offences Act No. 3 of 2006.
3. The particulars of the alternative charge are that on 12th December 2020 at Magongo area in Changamwe Sub- County within Mombasa County, the appellant unlawfully caused his penis to rub the vagina of CK, a girl aged 12 years.
4. The trial magistrate considered the evidence of 4 prosecution witnesses and 1 defence witness and found the appellant guilty of the offence of defilement and convicted him accordingly. Upon conviction, the appellant was sentenced to serve 20 years imprisonment.
5. Being aggrieved of conviction and sentence by the trial court, the appellant preferred an appeal against the entire judgement of the court based on the following grounds:
a. That the learned trial Magistrate erred in law and fact by convicting the appellant and sentencing him without considering that medical evidence did not prove the case of defilement beyond reasonable doubt.
b. That the Learned Magistrate erred in law and fact by convicting and sentencing him without considering that the prosecution case had massive contradictions and discrepancies.
c. That the Learned Magistrate erred in law and fact failing to find that this case was poorly investigated leading to miscarriage of justice.
d. That the Learned Magistrate erred in law and fact by failing to comply with section 329 of the CPC whereas mitigation is part of the trial process.
6. PW1, Veronica Kilonzo, the complainant’s mother, stated that the complainant was aged 12 years and attends a special school. She produced the complainant’s birth certificate showing she was born on 12/8/2008 (P-Exhibit 1).
7. PW1, further, testified that on 1.12.2020 she was at home with her 2 children. The 2nd born RK is aged 8 years. Maria their auntie who lives nearby, PW1 stated, however, requested that the complainant looks after her children.
8. PW1, further, testified that she released the complaint to visit her auntie to take care of her children and she went and did the assignment. At 6:00 pm, when the complainant was expected back, PW1 stated, she did not show up but upon inquiry she was told she had already left.
9. After she finished cooking, PW1 stated, the complainant came and her clothes were wet. The complainant, PW1, also revealed to her that Yusuf (appellant) called her and they went to his house. She also told her the location of the house where Yusuf lives.
10. PW, further, stated that she lifted the complainant’s dress and did not see her biker. Thereafter, PW1 stated he confronted Yusuf and demanded for the complainant’s biker and he took her to his mother’s plot where the biker was found.
11. The following day, PW1 stated, she reported the matter at Changamwe Police Station.
12. PW2, Said Dhado Salim, who is a Clinical Officer at Port Reitz Hospital. PW2, sated he examined the complainant who was mentally challenged. On examining the genitalia, PW2 stated, he found that her hymen was not intact and that she had epithelial cells. The Clinical Officer produced the complainants P3 form and PRC form. The same were marked as P. Exhibit 2 and 3.
13. PW3, No. 118091 PC (W) Jemima David produced the complainant’s mental assessment report prepared at Port Reitz Hospital (P. Exhibit 5). The report shows that the child had mental issues.
14. PW4, the complainant, stated that she knows the accused person and that the appellant was her friend and their neighbour. She, further, stated that the accused did not call her but she met him at his auntie’s place. Pw 4, also stated that the accused inserted his “mdudu” in her private parts and she felt pain but she did not bleed. The complainant also stated that the appellant removed her clothes and though it was at night there was light in the appellant’s house from a bulb.
15. In his defence, the appellant stated that he is a resident of Changamwe and works as a tailor. On the material date of the alleged offence herein, the appellant stated, he was at his place of work and reached home at 8:00 pm. At home, the appellant stated, he met the complainant’s mother in the company of other villagers who arrested and escorted him to the Chief’s office and police station. He also stated that the allegations against him herein are untrue.
16. In July, 2017, the appellant stated, he attended the burial of his grandparent and when he returned home, he found his mother engaged in verbal exchange with the complainant’s mother. The appellant, further stated that he sided with his mother and the complainant’s mother vowed to teach him a lesson.
17. On cross-examination, the accused stated he recognised the complainant and admitted they are neighbours. He, however, stated that he is not aware the complainant was mentally challenged. He also stated that he was not aware what the dispute between his mother and the complainant’s mother was about.
18. The issue for determination in this matter is whether the appellant defiled the complainant. This being a first appeal this court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses. ( see. Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR )
19. In the case of Charles Wamukoya Karani v Republic Bungoma HC Criminal Appeal No. 720 of 2013 the court stated:
“ The critical ingredient forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant”
20. The complainant’s birth certificate was produced in court showing that she was born on 20th August,2008. She was, therefore, aged 12 years on the date of the alleged offence herein.
21. On whether the complainant was penetrated, she stated that the appellant inserted his ‘mdudu’ into her private part and she felt pain. It was observed by the Court of Appeal in the case of Muganga Chulego Saha vs Republic Criminal Appeal No. 28 of 2016 (2017) eKLR as follows;
“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate the experience before people and more so in the courtroom. If the trend in decided case is anything to go by, courts in the country have generally accepted the use of euphemisms like “anilifanya tabia mbaya”,(IE vs. R Kapenguria HCCR No.11 of 2016, “he pricked me with a thorn from the front part of my body”,(Samuel Mwangi Kinyatta vs R, Nanyuki HCCRA No. 48 of 2015), “ he used his thing for peeing“, “he inserted his dudu into my mapoaja”,”he used his munyunyu”, as part of description of defilement.in this case the take the testimony of the complainant that the appellant inserted his ‘mdudu’ into her private part to mean that the appellant inserted his penis into her vagina. ”
22. In this case this Court takes the testimony of the complainant that that the complainant that the appellant inserted his ‘mdudu’ into her private part to mean the appellant inserted his penis into her vagina.
23. The evidence of the complainant is corroborated by the evidence of PW4 a Clinical Officer who stated that the complainant was examined and her hymen was not intact.
24. On the question of identification of the appellant, the complainant stated that the appellant was their neighbour and referred him with name Yusuf. The appellant himself in his testimony also admitted that he knows the complainant and that they are neighbours. The complainant also stated that the appellant took her to his house and though it was at night there was light from a bulb. It, therefore, very clear, that the complainant not only positively identified the appellant but also recognized him. The risk of mistaken identify herein is therefore minimal (See Peter Musau Mwanzia vs Republic (2018)eKLR.
25. This court, further, agrees with the trial court that the defence of the appellant that this matter arose because of personal vendetta between his mother and the appellant’s mother way back in 2017 does not hold water.
26. In total, this court’s finding the conviction of the appellant was based on strong evidence. The prosecution proved its case beyond reasonable doubt. The sentence meted on the appellant is also the mandatory minimum sentence provided under the Sexual Offences Act for the offence of defilement proved against the appellant.
27. The record, further, shows that before he was sentenced, the appellant was also given a chance to mitigate and the trial court considered his mitigation.
28. The upshot of my findings above is that this appeal lacks merit and the same is dismissed.
29. Right of Appeal within 14 days
Dated, signed and delivered online via MS Teams this 24 th June 2026.
HON. P. K. ROTICH
JUDGE
In attendance:
Cherop for DPP
Accused in person
2. The particulars of the offence are that on 12th December, 2020 at Magongo area in Changamwe Sub- County within Mombasa County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of CK a girl aged 12 years old. In the alternative the appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual offences Act No. 3 of 2006.
3. The particulars of the alternative charge are that on 12th December 2020 at Magongo area in Changamwe Sub- County within Mombasa County, the appellant unlawfully caused his penis to rub the vagina of CK, a girl aged 12 years.
4. The trial magistrate considered the evidence of 4 prosecution witnesses and 1 defence witness and found the appellant guilty of the offence of defilement and convicted him accordingly. Upon conviction, the appellant was sentenced to serve 20 years imprisonment.
5. Being aggrieved of conviction and sentence by the trial court, the appellant preferred an appeal against the entire judgement of the court based on the following grounds:
a. That the learned trial Magistrate erred in law and fact by convicting the appellant and sentencing him without considering that medical evidence did not prove the case of defilement beyond reasonable doubt.
b. That the Learned Magistrate erred in law and fact by convicting and sentencing him without considering that the prosecution case had massive contradictions and discrepancies.
c. That the Learned Magistrate erred in law and fact failing to find that this case was poorly investigated leading to miscarriage of justice.
d. That the Learned Magistrate erred in law and fact by failing to comply with section 329 of the CPC whereas mitigation is part of the trial process.
6. PW1, Veronica Kilonzo, the complainant’s mother, stated that the complainant was aged 12 years and attends a special school. She produced the complainant’s birth certificate showing she was born on 12/8/2008 (P-Exhibit 1).
7. PW1, further, testified that on 1.12.2020 she was at home with her 2 children. The 2nd born RK is aged 8 years. Maria their auntie who lives nearby, PW1 stated, however, requested that the complainant looks after her children.
8. PW1, further, testified that she released the complaint to visit her auntie to take care of her children and she went and did the assignment. At 6:00 pm, when the complainant was expected back, PW1 stated, she did not show up but upon inquiry she was told she had already left.
9. After she finished cooking, PW1 stated, the complainant came and her clothes were wet. The complainant, PW1, also revealed to her that Yusuf (appellant) called her and they went to his house. She also told her the location of the house where Yusuf lives.
10. PW, further, stated that she lifted the complainant’s dress and did not see her biker. Thereafter, PW1 stated he confronted Yusuf and demanded for the complainant’s biker and he took her to his mother’s plot where the biker was found.
11. The following day, PW1 stated, she reported the matter at Changamwe Police Station.
12. PW2, Said Dhado Salim, who is a Clinical Officer at Port Reitz Hospital. PW2, sated he examined the complainant who was mentally challenged. On examining the genitalia, PW2 stated, he found that her hymen was not intact and that she had epithelial cells. The Clinical Officer produced the complainants P3 form and PRC form. The same were marked as P. Exhibit 2 and 3.
13. PW3, No. 118091 PC (W) Jemima David produced the complainant’s mental assessment report prepared at Port Reitz Hospital (P. Exhibit 5). The report shows that the child had mental issues.
14. PW4, the complainant, stated that she knows the accused person and that the appellant was her friend and their neighbour. She, further, stated that the accused did not call her but she met him at his auntie’s place. Pw 4, also stated that the accused inserted his “mdudu” in her private parts and she felt pain but she did not bleed. The complainant also stated that the appellant removed her clothes and though it was at night there was light in the appellant’s house from a bulb.
15. In his defence, the appellant stated that he is a resident of Changamwe and works as a tailor. On the material date of the alleged offence herein, the appellant stated, he was at his place of work and reached home at 8:00 pm. At home, the appellant stated, he met the complainant’s mother in the company of other villagers who arrested and escorted him to the Chief’s office and police station. He also stated that the allegations against him herein are untrue.
16. In July, 2017, the appellant stated, he attended the burial of his grandparent and when he returned home, he found his mother engaged in verbal exchange with the complainant’s mother. The appellant, further stated that he sided with his mother and the complainant’s mother vowed to teach him a lesson.
17. On cross-examination, the accused stated he recognised the complainant and admitted they are neighbours. He, however, stated that he is not aware the complainant was mentally challenged. He also stated that he was not aware what the dispute between his mother and the complainant’s mother was about.
18. The issue for determination in this matter is whether the appellant defiled the complainant. This being a first appeal this court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses. ( see. Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR )
19. In the case of Charles Wamukoya Karani v Republic Bungoma HC Criminal Appeal No. 720 of 2013 the court stated:
“ The critical ingredient forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant”
20. The complainant’s birth certificate was produced in court showing that she was born on 20th August,2008. She was, therefore, aged 12 years on the date of the alleged offence herein.
21. On whether the complainant was penetrated, she stated that the appellant inserted his ‘mdudu’ into her private part and she felt pain. It was observed by the Court of Appeal in the case of Muganga Chulego Saha vs Republic Criminal Appeal No. 28 of 2016 (2017) eKLR as follows;
“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate the experience before people and more so in the courtroom. If the trend in decided case is anything to go by, courts in the country have generally accepted the use of euphemisms like “anilifanya tabia mbaya”,(IE vs. R Kapenguria HCCR No.11 of 2016, “he pricked me with a thorn from the front part of my body”,(Samuel Mwangi Kinyatta vs R, Nanyuki HCCRA No. 48 of 2015), “ he used his thing for peeing“, “he inserted his dudu into my mapoaja”,”he used his munyunyu”, as part of description of defilement.in this case the take the testimony of the complainant that the appellant inserted his ‘mdudu’ into her private part to mean that the appellant inserted his penis into her vagina. ”
22. In this case this Court takes the testimony of the complainant that that the complainant that the appellant inserted his ‘mdudu’ into her private part to mean the appellant inserted his penis into her vagina.
23. The evidence of the complainant is corroborated by the evidence of PW4 a Clinical Officer who stated that the complainant was examined and her hymen was not intact.
24. On the question of identification of the appellant, the complainant stated that the appellant was their neighbour and referred him with name Yusuf. The appellant himself in his testimony also admitted that he knows the complainant and that they are neighbours. The complainant also stated that the appellant took her to his house and though it was at night there was light from a bulb. It, therefore, very clear, that the complainant not only positively identified the appellant but also recognized him. The risk of mistaken identify herein is therefore minimal (See Peter Musau Mwanzia vs Republic (2018)eKLR.
25. This court, further, agrees with the trial court that the defence of the appellant that this matter arose because of personal vendetta between his mother and the appellant’s mother way back in 2017 does not hold water.
26. In total, this court’s finding the conviction of the appellant was based on strong evidence. The prosecution proved its case beyond reasonable doubt. The sentence meted on the appellant is also the mandatory minimum sentence provided under the Sexual Offences Act for the offence of defilement proved against the appellant.
27. The record, further, shows that before he was sentenced, the appellant was also given a chance to mitigate and the trial court considered his mitigation.
28. The upshot of my findings above is that this appeal lacks merit and the same is dismissed.
29. Right of Appeal within 14 days
Dated, signed and delivered online via MS Teams this 24 th June 2026.
HON. P. K. ROTICH
JUDGE
In attendance:
Cherop for DPP
Accused in person