(Being an appeal from original conviction and sentence in SOA case at Mombasa CMCR (SO) no E098 OF 2022 delivered on 23/06/2025)
1. The Appellant, Ambrose Mwauza Mwachofi, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act of 2006. The particulars of the offence are that on the 13/7/2022 at Mwamlai area in Jomvu sub-county within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of S.M a girl aged 10 years.
2. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act . The particulars are that on 13/7/2022 at Mwamlai area in Jomvu sub-county within Mombasa County intentionally and unlawfully caused his penis to rub the vagina of S.M a girl aged 10 years.
3. The appellant was convicted on the main count and sentenced to serve life imprisonment.
4. The appellant was not satisfied with the judgement of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the learned magistrate erred in law and fact by making a finding that the case was proved against the appellant beyond reasonable doubt.
ii. That the learned magistrate erred in law and fact in relying on the evidence of the 4 th witness which was contradicted by the PW1 and PW2 and disregarded the accused person’s evidence that PW4 had a grudge.
iii. That the learned magistrate erred in law and fact in relying on the evidence of PW1 which is contradicted by PW2 and PW4. In the evidence by PW1 she stated that she heard her mother (pw2) calling her and that Salome (pw4) saw her leaving the accused house and she told Salome (pw4) what had happened and pw4 told her mother who took her to hospital.
iv. That the learned magistrate erred in law and fact in relying on the evidence of pw2 (complainant’s mother) who stated that she was from work when a neighbor informed her that her child had been defiled which is contrary to what PW4 said that she saw Abaa call Salma into his house and locked the door when she back from church she saw many people outside Abaa’s house holding stones.
v. That the learned magistrate erred in law and fact in relying on the evidence of pw3 whose report in treatment notes, PRC forms and P3 form were not conclusive as assessment of accused DNA was not carried out in regard to age of broken hymen, comparison of the sperms or blood in the braises.
vi. That the learned magistrate erred in law and fact in relying on the evidence of pw3 the investigating officer who did not carry out any investigations or produce inner wears or clothes of pw1 as exhibits to prove tresses of blood or sperms.
vii. That the learned magistrate erred in law and fact in relying on circumstantial evidence that PW1 did visit the accused person’s house as enough evidence that he committed the offence of defilement in the absence of a prosecution, eye witness who saw the accused person defile or heard the minor crying for help.
viii. That the learned magistrate erred in law and fact by summarily dismissing the defence tendered by the appellant and instead believing in the prosecution witnesses’ evidence which had a lot of material contradictions.
ix. That the learned magistrate erred in law and fact by making a finding, that the defence of the appellant, did not dislodge or cast doubt on the evidence of the prosecution and ended up committing and sentenced the appellant.
x. That the learned magistrate erred in law and fact by giving a very harsh sentence of life imprisonment whereas he relied on circumstantial evidence.
Prosecution’s case
6. PW1 S.M (minor)
The complainant herein testified that the incident happened in 2022 when she was 10 years old. That Aba (points at the accused) sent her to the shop. She told the court that she was from school and her mother had sent her to call her sister’s child. The place is not far from their home. She said that the appellant was in his house and he called her from his door step. That he wanted to send her cigarettes. Pw1 said that the appellant let her in his house. She said that the appellant assaulted her with his hand and he subsequently defiled her and threatened her not to tell her mother.
7. PW1 said that her mother called her and started looking for her. She said that a lady called Salome saw her inside Abaa’s house. Salome was near the church. Abaa removed her from his house from the back door, she did not leave the house. She said Salome also saw her leave the house. She said that Salome told her that Abaa is not a good person.
8. She said that she told Salome what had happened and Salome told her mother. Her mother told her to go and shower. Her father also called her and they went to the chief and then they went to Abaa’s house. She said that she told chief and her father what had happened. She was taken to hospital with her mother. In cross-examination she said that she knew Abaa prior to the offence and that Salome lives in her own house. PW1 also said that her mother told her to change her clothes before going to the police station despite knowing that pw1 had been defiled.
9. PW2 Zawadi Kingi told the court under oath that the victim is her 1 st born daughter aged 10 years old. She was born on 26/3/2011. She said that on 13/7/2023 she was from work at 5pm, a neighbor called Mama Buda told her that PW1 had been defiled and her father had gone to the perpetrator’s house. Pw1 said that she went to the appellant’s house, they found Abaa and he denied. They took the child to the hospital then went to the police station. pw1 stated that she did not know the appellant prior to the offence. In cross-examanation she said that she was not present when the offence occurred and that her husband did not ask for money from the appellant.
10. PW3 Joshua Nanda a clinical officer from Portreitz referral hospital stated that the child was escorted by her grandmother. It was reported that the child has been going to watch TV at her neighbor’s house. That the perpetrator sent her to the shop but she refused. He gave her ksh. 10 and put his finger in her vagina and ‘dudu’ also.
11. Pw3 stated that the child was examined and she had discharge with fresh bruises in her vagina. Pw3 said that the child has mental disorder and issues of forgetfulness. He said that the incident happened on 12/7/2022 and the examination was done on 14/7/2022. He said that the hymen was broken, there was penetration in the vagina. Pw3 produced the P3 form, PRC form and the treatment notes.
12. PW4 Salome Mkande told the court that on 13/7/2022 at 4pm she was in church. She said that she saw Abba (points at the accused). She said that she was seated outside and she saw him calling PW1. Pw4 said that she saw the child getting into the house and did not get out. He locked the door. PW3 said that she continued with her church session.
13. She came out and saw many people outside the accused person’s house holding stones. She said that the village elder called her and she told him the information that she knew. She said that she had never had any disagreement with the appellant. In cross examination Pw4 said that she does not have a husband but she has 2 children. She said that she has never had a relationship with the accused.
14. PW5 PC Elizabeth Mwatela attached at Jomvu police station told the court that on 14/7/2022 at 8am a minor and her mother came to the station and reported that Abaa called her in the house to send her cigarettes. Abaa removed her clothes and defiled her. She said that she recorded their statements and escorted them to the hospital and filed P3. In cross-examination pw5 said that she did not visit the scene and she has the clinic card for the minor. Pw5 said that Salome is the one who saw the child get into the accused house and that pw5 did not establish whether there was a dispute between Salome and the accused.
Defence case
15. DWI Ambrose Mwauza Mwachofi the accused person testified under oath that he is a matatu driver, his boss is called Johres Murisho. Dw1 said that he not commit the offence. On that day he was cleaning outside his house and a girl passed near his house. She sent her cigarettes. He said that he gave her 10 shillings to buy sunflower and the girl did not enter his house. Dw1 said that Salome Mkambe wanted them to be in a relationship but he refused. DW1 told the court that Salome had asked him 200 which he gave her and asked her to return his money but she refused and said “atanipa nyama ya chini.’ Salome is the one who reported that he has defiled the child.
16. DW2 Malombo Mweru told the court under oath that she knows Abba, he is her neighbor. Dw2 said that on the day of the incident the village elder was at the scene and the child told them that Abba did not do anything to her.
17. DW3 Jones Kaputo Murisho said that Abba is his employee in his matatu. He said that he was informed by the appellant’s brother that the appellant was being charged with defilement. The village elder did not want the vehicle to leave where Abba had parked it. In cross examination dw3 said that he had not given Ambrose an off day on that day.
18. DW4 Evans Mwanyuma Muchoji told the court that the appellant is his brother. He was called and informed that his brother was at the police station. He went to the police and the complainant’s family wanted ksh. 80,000/- to withdraw the case and a section of his property. They wanted to fix him with this offence so that they get money.
Analysis and Determination
19. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support 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 finding 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 witnesses, See Peters v Sunday [1958] E.A 424 .”
20. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“8. Defilement
(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 or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the
age of twelve and fifteen years is liable upon conviction to imprisonment for a
term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the
age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
21. Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms;
“11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the
offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
22. The crucial elements that need to be proved for a crime of defilement to be inferred can be drawn from the wording of Section 8 of the sexual offences Act. The prosecution needs to prove beyond reasonable doubt that; -
i. There was an act which causes penetration (of the victim’s genital organs by the accused’s genital organs)
ii. The age of the victim (must be a child)
iii. Positive identification of the accused as the person who committed the act.
Penetration
23. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case, the PRC form and P3 form indicates that the hymen was broken and had bruises on the vaginal wall. In conclusion the PRC form concludes that there was vaginal penetration. This clearly indicates that the minor had sexual intercourse.
24. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995 , the court held: -
“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
25. The child was examined, and there were some injuries suggestive of penetration.
Age of the victim
26. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal stated that: -
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
27. The record shows that the clinic card of the complainant indicates that she was born on 23/11/2011 which meant that the victim was 11 years on the day of the alleged defilement. This court agrees with the trial court that the age of the victim was sufficiently proved beyond reasonable doubt.
Positive identification of the assailant
28. PW1 stated that she was from school and her mother sent her to call ‘mtoto wa dada’ at a place not far from their home. While on her way Abba called her, he wanted to send her cigarettes but he let her in his house. After defiling her, her mother called her and started looking for her.
29. The complainant’s mother told the court that on the material day, she was from work at 5pm. She said that a neighbor Mama Buda told her that her daughter had been defiled and that her father had gone to the house of the perpetrator.
30. The minor testified that Salome was near the church. She said that Abba removed her from his house using the back door. Salome saw her and she told her that the appellant was not a good person and that’s when she told her what had happened. Subsequently Salome narrated the incident to her mother. She was taken to the hospital by her mother.
31. The doctor told the court that the minor was brought to the hospital by her grandmother and not her mother as stated by the minor and her mother. Salome told the court that she was in church and she seated outside when she saw the appellant calling the complainant. Salome said that the minor got into the appellant’s house and did not get out. She said that she told her uncle Majimbo and she continued with her church session. When church was over, she came out and saw many people outside the accused house holding stones.
The evidence as to how the victim was defiled was totally disjointed. She told the court that it is her mother who had sent her, yet the mother PW2, says she was not at home. There was just some mention that she had some mental challenges, and if the only discrepancy, the court may have excused that. The court, however, finds that even the evidence of the other key witnesses was full of contradictions. The mother said that she found the father having gone to the appellants home , whilst he said she is the one who alerted him.
Worst still was the evidence of Salome, who testified that she saw the child get into the appellant's house. Her evidence was that she did not take any action yet PWI testified she got her out and even told her that the appellant was a bad man. The whole evidence was disjointed.
The appellant put up a spirited defence, even calling several witnesses to show where he was that day. He also raised the issue of some demand for money , in particular KSH 80,000, so that the case could go away. I note that PW2 was cross examined about this issue of money, so it was not an afterthought. This defence should not have been overlooked especially when we note the discrepancies in the prosecution's witness' evidence. Of particular concrn was this salome who acted like the characters in the parable of the good Samaritam. She was in church, she says she saw the victim get into the appellant's house whom she discribed as a bad man but she choose to look the other way. Her attempts to scream wolf later on make no sense.
32. In this case, the evidence of the minor is not concrete as to the circumstances surrounding the offence. This evidence is not concrete to believe that the appellant is the one who penetrated the minor as alleged by the victim herself. The prosecution has failed to prove beyond reasonable doubt that the appellant is the one who penetrated the minor.
33. Having failed to prove the last limb of the offense, I find that the prosecution failed to prove their case to the required standard and therefore the appellant’s appeal is merited. The appeal on both the conviction and the sentence succeed and are allowed.
34. Consequently, the Appellant is hereby set at liberty unless otherwise lawfully held.
35. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 28 TH DAY OF MAY 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE of
THE APPELLANT in person
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT
1. The Appellant, Ambrose Mwauza Mwachofi, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act of 2006. The particulars of the offence are that on the 13/7/2022 at Mwamlai area in Jomvu sub-county within Mombasa County, intentionally and unlawfully caused his penis to penetrate the vagina of S.M a girl aged 10 years.
2. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act . The particulars are that on 13/7/2022 at Mwamlai area in Jomvu sub-county within Mombasa County intentionally and unlawfully caused his penis to rub the vagina of S.M a girl aged 10 years.
3. The appellant was convicted on the main count and sentenced to serve life imprisonment.
4. The appellant was not satisfied with the judgement of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the learned magistrate erred in law and fact by making a finding that the case was proved against the appellant beyond reasonable doubt.
ii. That the learned magistrate erred in law and fact in relying on the evidence of the 4 th witness which was contradicted by the PW1 and PW2 and disregarded the accused person’s evidence that PW4 had a grudge.
iii. That the learned magistrate erred in law and fact in relying on the evidence of PW1 which is contradicted by PW2 and PW4. In the evidence by PW1 she stated that she heard her mother (pw2) calling her and that Salome (pw4) saw her leaving the accused house and she told Salome (pw4) what had happened and pw4 told her mother who took her to hospital.
iv. That the learned magistrate erred in law and fact in relying on the evidence of pw2 (complainant’s mother) who stated that she was from work when a neighbor informed her that her child had been defiled which is contrary to what PW4 said that she saw Abaa call Salma into his house and locked the door when she back from church she saw many people outside Abaa’s house holding stones.
v. That the learned magistrate erred in law and fact in relying on the evidence of pw3 whose report in treatment notes, PRC forms and P3 form were not conclusive as assessment of accused DNA was not carried out in regard to age of broken hymen, comparison of the sperms or blood in the braises.
vi. That the learned magistrate erred in law and fact in relying on the evidence of pw3 the investigating officer who did not carry out any investigations or produce inner wears or clothes of pw1 as exhibits to prove tresses of blood or sperms.
vii. That the learned magistrate erred in law and fact in relying on circumstantial evidence that PW1 did visit the accused person’s house as enough evidence that he committed the offence of defilement in the absence of a prosecution, eye witness who saw the accused person defile or heard the minor crying for help.
viii. That the learned magistrate erred in law and fact by summarily dismissing the defence tendered by the appellant and instead believing in the prosecution witnesses’ evidence which had a lot of material contradictions.
ix. That the learned magistrate erred in law and fact by making a finding, that the defence of the appellant, did not dislodge or cast doubt on the evidence of the prosecution and ended up committing and sentenced the appellant.
x. That the learned magistrate erred in law and fact by giving a very harsh sentence of life imprisonment whereas he relied on circumstantial evidence.
Prosecution’s case
6. PW1 S.M (minor)
The complainant herein testified that the incident happened in 2022 when she was 10 years old. That Aba (points at the accused) sent her to the shop. She told the court that she was from school and her mother had sent her to call her sister’s child. The place is not far from their home. She said that the appellant was in his house and he called her from his door step. That he wanted to send her cigarettes. Pw1 said that the appellant let her in his house. She said that the appellant assaulted her with his hand and he subsequently defiled her and threatened her not to tell her mother.
7. PW1 said that her mother called her and started looking for her. She said that a lady called Salome saw her inside Abaa’s house. Salome was near the church. Abaa removed her from his house from the back door, she did not leave the house. She said Salome also saw her leave the house. She said that Salome told her that Abaa is not a good person.
8. She said that she told Salome what had happened and Salome told her mother. Her mother told her to go and shower. Her father also called her and they went to the chief and then they went to Abaa’s house. She said that she told chief and her father what had happened. She was taken to hospital with her mother. In cross-examination she said that she knew Abaa prior to the offence and that Salome lives in her own house. PW1 also said that her mother told her to change her clothes before going to the police station despite knowing that pw1 had been defiled.
9. PW2 Zawadi Kingi told the court under oath that the victim is her 1 st born daughter aged 10 years old. She was born on 26/3/2011. She said that on 13/7/2023 she was from work at 5pm, a neighbor called Mama Buda told her that PW1 had been defiled and her father had gone to the perpetrator’s house. Pw1 said that she went to the appellant’s house, they found Abaa and he denied. They took the child to the hospital then went to the police station. pw1 stated that she did not know the appellant prior to the offence. In cross-examanation she said that she was not present when the offence occurred and that her husband did not ask for money from the appellant.
10. PW3 Joshua Nanda a clinical officer from Portreitz referral hospital stated that the child was escorted by her grandmother. It was reported that the child has been going to watch TV at her neighbor’s house. That the perpetrator sent her to the shop but she refused. He gave her ksh. 10 and put his finger in her vagina and ‘dudu’ also.
11. Pw3 stated that the child was examined and she had discharge with fresh bruises in her vagina. Pw3 said that the child has mental disorder and issues of forgetfulness. He said that the incident happened on 12/7/2022 and the examination was done on 14/7/2022. He said that the hymen was broken, there was penetration in the vagina. Pw3 produced the P3 form, PRC form and the treatment notes.
12. PW4 Salome Mkande told the court that on 13/7/2022 at 4pm she was in church. She said that she saw Abba (points at the accused). She said that she was seated outside and she saw him calling PW1. Pw4 said that she saw the child getting into the house and did not get out. He locked the door. PW3 said that she continued with her church session.
13. She came out and saw many people outside the accused person’s house holding stones. She said that the village elder called her and she told him the information that she knew. She said that she had never had any disagreement with the appellant. In cross examination Pw4 said that she does not have a husband but she has 2 children. She said that she has never had a relationship with the accused.
14. PW5 PC Elizabeth Mwatela attached at Jomvu police station told the court that on 14/7/2022 at 8am a minor and her mother came to the station and reported that Abaa called her in the house to send her cigarettes. Abaa removed her clothes and defiled her. She said that she recorded their statements and escorted them to the hospital and filed P3. In cross-examination pw5 said that she did not visit the scene and she has the clinic card for the minor. Pw5 said that Salome is the one who saw the child get into the accused house and that pw5 did not establish whether there was a dispute between Salome and the accused.
Defence case
15. DWI Ambrose Mwauza Mwachofi the accused person testified under oath that he is a matatu driver, his boss is called Johres Murisho. Dw1 said that he not commit the offence. On that day he was cleaning outside his house and a girl passed near his house. She sent her cigarettes. He said that he gave her 10 shillings to buy sunflower and the girl did not enter his house. Dw1 said that Salome Mkambe wanted them to be in a relationship but he refused. DW1 told the court that Salome had asked him 200 which he gave her and asked her to return his money but she refused and said “atanipa nyama ya chini.’ Salome is the one who reported that he has defiled the child.
16. DW2 Malombo Mweru told the court under oath that she knows Abba, he is her neighbor. Dw2 said that on the day of the incident the village elder was at the scene and the child told them that Abba did not do anything to her.
17. DW3 Jones Kaputo Murisho said that Abba is his employee in his matatu. He said that he was informed by the appellant’s brother that the appellant was being charged with defilement. The village elder did not want the vehicle to leave where Abba had parked it. In cross examination dw3 said that he had not given Ambrose an off day on that day.
18. DW4 Evans Mwanyuma Muchoji told the court that the appellant is his brother. He was called and informed that his brother was at the police station. He went to the police and the complainant’s family wanted ksh. 80,000/- to withdraw the case and a section of his property. They wanted to fix him with this offence so that they get money.
Analysis and Determination
19. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support 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 finding 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 witnesses, See Peters v Sunday [1958] E.A 424 .”
20. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“8. Defilement
(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 or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the
age of twelve and fifteen years is liable upon conviction to imprisonment for a
term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the
age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
21. Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms;
“11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the
offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
22. The crucial elements that need to be proved for a crime of defilement to be inferred can be drawn from the wording of Section 8 of the sexual offences Act. The prosecution needs to prove beyond reasonable doubt that; -
i. There was an act which causes penetration (of the victim’s genital organs by the accused’s genital organs)
ii. The age of the victim (must be a child)
iii. Positive identification of the accused as the person who committed the act.
Penetration
23. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case, the PRC form and P3 form indicates that the hymen was broken and had bruises on the vaginal wall. In conclusion the PRC form concludes that there was vaginal penetration. This clearly indicates that the minor had sexual intercourse.
24. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995 , the court held: -
“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
25. The child was examined, and there were some injuries suggestive of penetration.
Age of the victim
26. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal stated that: -
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
27. The record shows that the clinic card of the complainant indicates that she was born on 23/11/2011 which meant that the victim was 11 years on the day of the alleged defilement. This court agrees with the trial court that the age of the victim was sufficiently proved beyond reasonable doubt.
Positive identification of the assailant
28. PW1 stated that she was from school and her mother sent her to call ‘mtoto wa dada’ at a place not far from their home. While on her way Abba called her, he wanted to send her cigarettes but he let her in his house. After defiling her, her mother called her and started looking for her.
29. The complainant’s mother told the court that on the material day, she was from work at 5pm. She said that a neighbor Mama Buda told her that her daughter had been defiled and that her father had gone to the house of the perpetrator.
30. The minor testified that Salome was near the church. She said that Abba removed her from his house using the back door. Salome saw her and she told her that the appellant was not a good person and that’s when she told her what had happened. Subsequently Salome narrated the incident to her mother. She was taken to the hospital by her mother.
31. The doctor told the court that the minor was brought to the hospital by her grandmother and not her mother as stated by the minor and her mother. Salome told the court that she was in church and she seated outside when she saw the appellant calling the complainant. Salome said that the minor got into the appellant’s house and did not get out. She said that she told her uncle Majimbo and she continued with her church session. When church was over, she came out and saw many people outside the accused house holding stones.
The evidence as to how the victim was defiled was totally disjointed. She told the court that it is her mother who had sent her, yet the mother PW2, says she was not at home. There was just some mention that she had some mental challenges, and if the only discrepancy, the court may have excused that. The court, however, finds that even the evidence of the other key witnesses was full of contradictions. The mother said that she found the father having gone to the appellants home , whilst he said she is the one who alerted him.
Worst still was the evidence of Salome, who testified that she saw the child get into the appellant's house. Her evidence was that she did not take any action yet PWI testified she got her out and even told her that the appellant was a bad man. The whole evidence was disjointed.
The appellant put up a spirited defence, even calling several witnesses to show where he was that day. He also raised the issue of some demand for money , in particular KSH 80,000, so that the case could go away. I note that PW2 was cross examined about this issue of money, so it was not an afterthought. This defence should not have been overlooked especially when we note the discrepancies in the prosecution's witness' evidence. Of particular concrn was this salome who acted like the characters in the parable of the good Samaritam. She was in church, she says she saw the victim get into the appellant's house whom she discribed as a bad man but she choose to look the other way. Her attempts to scream wolf later on make no sense.
32. In this case, the evidence of the minor is not concrete as to the circumstances surrounding the offence. This evidence is not concrete to believe that the appellant is the one who penetrated the minor as alleged by the victim herself. The prosecution has failed to prove beyond reasonable doubt that the appellant is the one who penetrated the minor.
33. Having failed to prove the last limb of the offense, I find that the prosecution failed to prove their case to the required standard and therefore the appellant’s appeal is merited. The appeal on both the conviction and the sentence succeed and are allowed.
34. Consequently, the Appellant is hereby set at liberty unless otherwise lawfully held.
35. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 28 TH DAY OF MAY 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE of
THE APPELLANT in person
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT