REPULIC OF KENYA
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO. E052 OF 2025
ANDREW WAFULA NYONGESA………………………….APPEALLANT
VERSUS
REPUBLIC………………………………………………….….RESPONDENT
(From original conviction and sentence in Senior Principal Magistrate’s Court at Kimilili Criminal Case (SO) No. E101 of 2023, by Hon. J. Ndururi delivered on 30th May 2025).
JUDGEMENT
A. Background
1. This appeal is against the conviction and sentence to 20 years’ imprisonment for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. It was alleged that on 9th October 2023, at [particular withheld] village in Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of M.M. a child aged 14 years old.
2. In the alternative charge, the Appellant was charged with the offence of committing an indecent act contrary to Section11(1) of the Sexual Offences Act No. 3 of 2006, with the same particulars as in the main charge.
3. The Prosecution called Seven (7) witnesses. The defence called one witness; the Appellant.
B. Role of the appellate Court
4. As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174, the Court of Appeal set out the duties of a first appellate court as follows:-
“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; 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.”
C. Evidence
Respondent’s Case
5. The Complainant testified as PW1 herein. She was born in the year produced a certificate of birth which revealed that she was born on 29th July 2009. She told the Court that she was a student at (particulars withheld) Academy and that on 9th October 2023, at around 3.00 p.m. she had left school with her friend and went to the market to purchase a geometrical set. They then met a man they referred to as Boi Boi (proceeded to do a dock identification of the Appellant) and he invited her to meet him at the school fence at 3 a.m., as she was in boarding school. It was her testimony that the Appellant used to be her boyfriend since the 2nd term. That at 3.00 a.m. leading to Sunday morning she sneaked out of the dormitory and went to the rendezvous. The Appellant showed up and after the perfunctory greetings they went to the Appellant’s abode near Makunga Police Station where they had coital interaction. The appellant wore a condom during the sexual intercourse. She told the Court that she knew the Appellant’s one roomed house very well as she had previously visited him 6 times during daytime. The room was well lit. That after the sexual intercourse, the appellant escorted her back to the school premises at around 4.00 a.m. and whilst she was sneaking into the school compound through the fence, the school guard spotted her, summoned her and took her to the school teacher. That she then made full disclosure of her whereabouts and the fact that she had sexual intercourse with the Appellant.
6. On cross-examination, PW1 said that the appellant had told her to meet him behind class 8 and that she had timed the school guard as he moved to the classes section, she took that opportunity to sneak out through the fence where the Appellant was awaiting her on the other side of the fence. She restated that the Appellant took her to his house and that she had previously visited him.
7. PW2 was Juliet Musungu who testified that PW1 was her daughter and that on 10th October 2023, she received a call from the teacher on duty informing her that PW1 was missing from the School premises and at 4.00 a.m. she was seen emerging from the fence and on interrogation she informed them that she was from the Appellant’s house. That after deliberations with the school director she proceeded to lodge a report at Makunga Patrol Base and later took PW1 to the hospital for medical examination. She told the Court that PW1 told her that she was with the Appellant herein and they had sexual intercourse. PW2 was not acquainted to the Appellant prior to that incident.
8. On cross-examination, PW2 told the Court that she received a call at 6 a.m. from her neighbor who informed her that PW1 was located at about 4.00 a.m. She did not witness the incident and had been informed that PW1 sneaked out of school.
9. PW3, George Wanyonyi was the teacher on duty the night of 9th October 2023. According to him, prior to waking up the students for the next day lesson and activities he was alerted by the night guard on duty that PW1 was not within the school premises prompting him to go on a search for PW1 to no avail. That he then to alert the school director and after a short while PW1 emerged from the main gate and the night guard got a hold of her. On interrogating her, he established that PW1 went outside the school and she proceeded to take them to where she spent the night which was about 80 meters from the school at Makunga Market. He told the Court that PW1 told them that she was at her boyfriend’s house.
10. On cross-examination, PW3 told the Court that he was not aware of the exact time that the night guard established that PW1 was not within the school premises and that he had found PW1 and the night guard near the school gate. He maintained that he had not framed up the Appellant but was only executing his duties.
11. PW4, Sylvanous Eprong Ekiru, testified that that he was the security officer at PW1’s school and that on the night of the 9th and the 10th of October 2023, he was on duty when at 4 a.m. he established that PW1 was missing from the student’s dormitory and he alerted PW3 who was the teacher on duty. That at 5.00 a.m. he spotted PW1 gaining access to the school compound through the fence and on interrogation, he established that she spent the night at her boyfriend’s (Appellant’s) house. That while in the company of PW1 and PW3, they proceeded to the alleged house but found it locked with a padlock. They briefed the school director and left the matter to be handled by the school.
12. On cross-examination, PW4 told the Court that he is a guard and on the date of the incident he did not spot PW1 leaving the school premises and he noted that she only returned at 5.00 a.m. He denied framing up the Appellant herein.
13. PW5, Redempta Asuka Murunga, testified that she was a clinical officer based at Naitiri Sub-County Hospital. That on 12th June 2023, she examined PW1 who had alleged to have indulged in sexual intercourse with a person well known to her and that it happened three times. On genitalia examination, she observed that PW1 had no bruises, lacerations or discharge and her hymen was broken but the breakage was not fresh. On laboratory examination, she observed presence of pus in PW1’s urine and the pregnancy test was positive. This witness produced PW1’s treatment notes and P3 form as PEXH 2 and PEXH 3 respectively. She confirmed that PW1 had been defiled.
14. On cross-examination, she told the Court that PW1 gave a history of defilement and she was pregnant. She observed that PW1’s hymen was torn and her pregnancy was about 1 month old and was expected to deliver in June or July 2024.
15. PW6, Police Constable Scholastica Kingo’ori, the investigating officer told the Court that PW1 was a class 8 student. That a defilement complaint had been lodged on 10th October 2023. She established that PW1 was defiled and impregnated by the Appellant herein; that PW1 had sneaked from school to unknown place to meet up with the Appellant herein. Investigations were conducted and statements recorded and it was established that the Appellant herein was on the run. On 12th October 2023, the Appellant was spotted in Ndivisi market where he was apprehended and taken to Ndivisi Police Station and later escorted to Makunga Police Post. This witness produced PW1’s certificate of birth as PEXH 1. The same indicated the PW1’s date of birth as 29th July 2009. PW6 did a dock identification of the person who had been apprehended as the Appellant.
16. On cross-examination, PW6 told the Court that PW1 identified the Appellant as the person who had defiled her.
17. PW7, No. 55639 CPL Cyrus Lusweti Wekesa, based at Mukuyuni Police Station testified that he was the arresting officer. It was his testimony that PW1’s mother was the Complainant.
Defence/Appellant’s case
18. The Appellant in his defence denied the offence. He alleged that on the date of the incident he was in Matili where he resides and while at Ndivis Centre while on his way home he was apprehended for stealing and it was at Mukuyuni Police Station that he was accused of defiling the Complainant herein and even impregnating her. He told the Court that he was ready to submit to a DNA test to prove his innocence.
19. At the conclusion of the trial, the court found that the respondent had proven it’s case beyond reasonable doubt and hence convicted the Appellant on the main count. The Appellant was consequently sentenced to serve 20 years imprisonment.
D. Appeal
20. Dissatisfied with the conviction and sentence, the Appellant filed a petition of appeal listing six (6) grounds of appeal and with his written submissions lodged two (2) supplementary grounds all against his conviction and sentence.
21. He prayed that this Court allows his appeal in its entirety and the sentence of 20 years imprisonment be set aside and he be set at liberty.
22. The appeal was canvassed by way of written submissions. The record clearly indicates that only the both parties complied with the Court timelines and directive on filing of the written submissions.
E. Issues for Determination.
23. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the Respondent’s submissions filed before this Court and the applicable law. In the circumstances, it is my view that the issues for determination emanating therein are as follows:
i. Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt;
ii. Whether the failure by the police to subject the Appellant
to DNA or medical examination was fatal; and
iii. Whether the sentence meted out on the Appellant was excessive and harsh.
F. Analysis and Determination
Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt.
24. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The section provides that:
“(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 between the age of twelve and fifteen is liable upon conviction to imprisonment for a term not less than twenty years.”
25. To sustain the charge of defilement against the Appellant, the Respondent needed to prove the following essential ingredients of the offence of defilement:
a. That fact of minority age of the Complainant.
b. Penetration.
c. Positive identification of the Appellant as the perpetrator.
a. Proof of age
26. The complainant was born on 29th July 2009, and at the time of the incident, 9th October 2023, she was 14 years old. PW6 testified that the Complainant was born on 29th July 2009, as per the birth certificate serialized as 8577352 which she produced the same in Court as PEXH 1. The respondent thus conformed with the standard of proof of age as set forth in the case of Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, where the Court of Appeal stated as follows:
“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. Rule 4 of the Sexual Offences Rules of Court Rules is explicit that:
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
b. Penetration
22. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
28. The evidence of PW1 as re-analyzed herein above proves that the appellant had carnal knowledge of her on several occasions as PW! Used to frequent his house save that on 9th October 2023, PW1 was caught by the school guard while sneaking back into the school compound. Pw1 was categorical that the Appellant was her boyfriend and she even led PW2 and PW3 tohis house although they found him at large.
29. PW5 corroborated the evidence of PW1. PW5 opined that the Complainant was defiled due to the absence of hymen which according to her was not freshly broken and she observed presence of pus in her urine and the pregnancy test was positive. In the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the Court stated thus;
“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.”
30. Consequently, guided by the above precedent, I find that the evidence of the Complainant and PW5, the Clinical Officer, sufficiently proved the ingredient of penetration, and there is no reason to disturb the finding of the trial Court.
c. Identification of perpetrator
31. As to whether the Appellant was the perpetrator, it was the Complainant’s evidence that the Appellant herein used to be her boyfriend since term 2 and with the aid of the moonlight and the well-lit room the Appellant took her to she recognized him. It is clear that the Complainant knew the Appellant well and recognized him as the perpetrator hence her testimony was not a lie. In the circumstances, I find that the Appellant was properly recognized as the perpetrator of the offence. I find guidance in the principles set out in the English case of R. vs Turnbull (1971) QR 227.
32. It is also accepted in law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59).
33. I find that the Respondent proved all the ingredients of defilement against the Appellant beyond any reasonable doubts.
Whether the failure by the police to subject the Appellant to DNA or medical examination was fatal
34. Failure by the police to subject the Appellant to DNA or medical examination under section 122A of the Penal Code, to establish that he was the one responsible for defilement and pregnancy, was not fatal to the Respondent’s case. According to the Appellant, that examination would have given crucial evidence in the case. It is clear that as per the evidence of PW6, that the time span between the defilement of PW1 and the arrest of the Appellant’s arrested was long and that had the appellant to been subjected to a medical examination, it may not have yielded any suitable result. It is my finding that medical examination was not necessary in the circumstances.
35. It is true that section 122A of the Penal Code allows the police to order a suspect to undergo medical examination where the offence is serious. Section 36 of the Sexual Offences Act, which allows the Court to make an order that an accused be subjected to a medical examination is not coached in mandatory terms. The trial Court has the discretion to order for a medical examination when it deems it appropriate dependent on the circumstances of the case. Despite the existence of Section 36, it is now settled law that sexual assault is proved by evidence and not by medical examination. Evidence by the Complainant or even circumstantial evidence is enough to prove rape or defilement as the case may be. In the case of Fappyton Mutuku Ngui v Republic [2014] eKLR while considering a similar issue of medical examination in a defilement case, the Court of Appeal stated:-
“In our view, such evidence was not necessary and, in any event, the trial court found that there was sufficient medical evidence in support of PW2’s testimony which was trustworthy as to the person who had defiled her.”
36. A similar issue had arisen in the case of AML v Republic [2012] eKLR where the court held the same position stating :-
“The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.” (emphasis)
37. This position was again taken in the case of Kassim Ali v Republic, [2006] eKLR thus:-
“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim or by circumstantial evidence.”
Whether the sentence meted out on the Appellant was excessive and harsh.
38. Under Section 8 (3) of the Sexual Offences Act, a person who commits an offence of defilement with a child between the age of Twelve (12) and Fifteen years (15) is liable upon conviction to imprisonment for a term of not less than Twenty (20) years. The trial Court in this instance proceeded to issue a sentence of Twenty (20) years. The Respondent in its written submissions beseeched this Court to maintain the Appellant’s sentence to Twenty (20) years.
39. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
40. PW1 was found to be aged 14 years old. The trial court duly considered the Appellant’s mitigation when it meted the statutory minimum sentence. It is my finding that the sentence was proper and lawful. I could have been harsher given that the trial court had the discretion of sentencing the Appellant to a term higher than 20 years.
Conclusion
41. On the balance I do find that this appeal is devoid of merit and must fail. I thus dismiss the appeal herein and I uphold the conviction and I confirm the sentence meted by the trial court.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 13Th day of February 2026.
M.S.Shariff
Judge
In the presence of:
Appellant
Mr Manishi H/b for Ms Gashau for the Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO. E052 OF 2025
ANDREW WAFULA NYONGESA………………………….APPEALLANT
VERSUS
REPUBLIC………………………………………………….….RESPONDENT
(From original conviction and sentence in Senior Principal Magistrate’s Court at Kimilili Criminal Case (SO) No. E101 of 2023, by Hon. J. Ndururi delivered on 30th May 2025).
JUDGEMENT
A. Background
1. This appeal is against the conviction and sentence to 20 years’ imprisonment for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. It was alleged that on 9th October 2023, at [particular withheld] village in Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of M.M. a child aged 14 years old.
2. In the alternative charge, the Appellant was charged with the offence of committing an indecent act contrary to Section11(1) of the Sexual Offences Act No. 3 of 2006, with the same particulars as in the main charge.
3. The Prosecution called Seven (7) witnesses. The defence called one witness; the Appellant.
B. Role of the appellate Court
4. As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174, the Court of Appeal set out the duties of a first appellate court as follows:-
“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; 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.”
C. Evidence
Respondent’s Case
5. The Complainant testified as PW1 herein. She was born in the year produced a certificate of birth which revealed that she was born on 29th July 2009. She told the Court that she was a student at (particulars withheld) Academy and that on 9th October 2023, at around 3.00 p.m. she had left school with her friend and went to the market to purchase a geometrical set. They then met a man they referred to as Boi Boi (proceeded to do a dock identification of the Appellant) and he invited her to meet him at the school fence at 3 a.m., as she was in boarding school. It was her testimony that the Appellant used to be her boyfriend since the 2nd term. That at 3.00 a.m. leading to Sunday morning she sneaked out of the dormitory and went to the rendezvous. The Appellant showed up and after the perfunctory greetings they went to the Appellant’s abode near Makunga Police Station where they had coital interaction. The appellant wore a condom during the sexual intercourse. She told the Court that she knew the Appellant’s one roomed house very well as she had previously visited him 6 times during daytime. The room was well lit. That after the sexual intercourse, the appellant escorted her back to the school premises at around 4.00 a.m. and whilst she was sneaking into the school compound through the fence, the school guard spotted her, summoned her and took her to the school teacher. That she then made full disclosure of her whereabouts and the fact that she had sexual intercourse with the Appellant.
6. On cross-examination, PW1 said that the appellant had told her to meet him behind class 8 and that she had timed the school guard as he moved to the classes section, she took that opportunity to sneak out through the fence where the Appellant was awaiting her on the other side of the fence. She restated that the Appellant took her to his house and that she had previously visited him.
7. PW2 was Juliet Musungu who testified that PW1 was her daughter and that on 10th October 2023, she received a call from the teacher on duty informing her that PW1 was missing from the School premises and at 4.00 a.m. she was seen emerging from the fence and on interrogation she informed them that she was from the Appellant’s house. That after deliberations with the school director she proceeded to lodge a report at Makunga Patrol Base and later took PW1 to the hospital for medical examination. She told the Court that PW1 told her that she was with the Appellant herein and they had sexual intercourse. PW2 was not acquainted to the Appellant prior to that incident.
8. On cross-examination, PW2 told the Court that she received a call at 6 a.m. from her neighbor who informed her that PW1 was located at about 4.00 a.m. She did not witness the incident and had been informed that PW1 sneaked out of school.
9. PW3, George Wanyonyi was the teacher on duty the night of 9th October 2023. According to him, prior to waking up the students for the next day lesson and activities he was alerted by the night guard on duty that PW1 was not within the school premises prompting him to go on a search for PW1 to no avail. That he then to alert the school director and after a short while PW1 emerged from the main gate and the night guard got a hold of her. On interrogating her, he established that PW1 went outside the school and she proceeded to take them to where she spent the night which was about 80 meters from the school at Makunga Market. He told the Court that PW1 told them that she was at her boyfriend’s house.
10. On cross-examination, PW3 told the Court that he was not aware of the exact time that the night guard established that PW1 was not within the school premises and that he had found PW1 and the night guard near the school gate. He maintained that he had not framed up the Appellant but was only executing his duties.
11. PW4, Sylvanous Eprong Ekiru, testified that that he was the security officer at PW1’s school and that on the night of the 9th and the 10th of October 2023, he was on duty when at 4 a.m. he established that PW1 was missing from the student’s dormitory and he alerted PW3 who was the teacher on duty. That at 5.00 a.m. he spotted PW1 gaining access to the school compound through the fence and on interrogation, he established that she spent the night at her boyfriend’s (Appellant’s) house. That while in the company of PW1 and PW3, they proceeded to the alleged house but found it locked with a padlock. They briefed the school director and left the matter to be handled by the school.
12. On cross-examination, PW4 told the Court that he is a guard and on the date of the incident he did not spot PW1 leaving the school premises and he noted that she only returned at 5.00 a.m. He denied framing up the Appellant herein.
13. PW5, Redempta Asuka Murunga, testified that she was a clinical officer based at Naitiri Sub-County Hospital. That on 12th June 2023, she examined PW1 who had alleged to have indulged in sexual intercourse with a person well known to her and that it happened three times. On genitalia examination, she observed that PW1 had no bruises, lacerations or discharge and her hymen was broken but the breakage was not fresh. On laboratory examination, she observed presence of pus in PW1’s urine and the pregnancy test was positive. This witness produced PW1’s treatment notes and P3 form as PEXH 2 and PEXH 3 respectively. She confirmed that PW1 had been defiled.
14. On cross-examination, she told the Court that PW1 gave a history of defilement and she was pregnant. She observed that PW1’s hymen was torn and her pregnancy was about 1 month old and was expected to deliver in June or July 2024.
15. PW6, Police Constable Scholastica Kingo’ori, the investigating officer told the Court that PW1 was a class 8 student. That a defilement complaint had been lodged on 10th October 2023. She established that PW1 was defiled and impregnated by the Appellant herein; that PW1 had sneaked from school to unknown place to meet up with the Appellant herein. Investigations were conducted and statements recorded and it was established that the Appellant herein was on the run. On 12th October 2023, the Appellant was spotted in Ndivisi market where he was apprehended and taken to Ndivisi Police Station and later escorted to Makunga Police Post. This witness produced PW1’s certificate of birth as PEXH 1. The same indicated the PW1’s date of birth as 29th July 2009. PW6 did a dock identification of the person who had been apprehended as the Appellant.
16. On cross-examination, PW6 told the Court that PW1 identified the Appellant as the person who had defiled her.
17. PW7, No. 55639 CPL Cyrus Lusweti Wekesa, based at Mukuyuni Police Station testified that he was the arresting officer. It was his testimony that PW1’s mother was the Complainant.
Defence/Appellant’s case
18. The Appellant in his defence denied the offence. He alleged that on the date of the incident he was in Matili where he resides and while at Ndivis Centre while on his way home he was apprehended for stealing and it was at Mukuyuni Police Station that he was accused of defiling the Complainant herein and even impregnating her. He told the Court that he was ready to submit to a DNA test to prove his innocence.
19. At the conclusion of the trial, the court found that the respondent had proven it’s case beyond reasonable doubt and hence convicted the Appellant on the main count. The Appellant was consequently sentenced to serve 20 years imprisonment.
D. Appeal
20. Dissatisfied with the conviction and sentence, the Appellant filed a petition of appeal listing six (6) grounds of appeal and with his written submissions lodged two (2) supplementary grounds all against his conviction and sentence.
21. He prayed that this Court allows his appeal in its entirety and the sentence of 20 years imprisonment be set aside and he be set at liberty.
22. The appeal was canvassed by way of written submissions. The record clearly indicates that only the both parties complied with the Court timelines and directive on filing of the written submissions.
E. Issues for Determination.
23. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the Respondent’s submissions filed before this Court and the applicable law. In the circumstances, it is my view that the issues for determination emanating therein are as follows:
i. Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt;
ii. Whether the failure by the police to subject the Appellant
to DNA or medical examination was fatal; and
iii. Whether the sentence meted out on the Appellant was excessive and harsh.
F. Analysis and Determination
Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt.
24. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The section provides that:
“(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 between the age of twelve and fifteen is liable upon conviction to imprisonment for a term not less than twenty years.”
25. To sustain the charge of defilement against the Appellant, the Respondent needed to prove the following essential ingredients of the offence of defilement:
a. That fact of minority age of the Complainant.
b. Penetration.
c. Positive identification of the Appellant as the perpetrator.
a. Proof of age
26. The complainant was born on 29th July 2009, and at the time of the incident, 9th October 2023, she was 14 years old. PW6 testified that the Complainant was born on 29th July 2009, as per the birth certificate serialized as 8577352 which she produced the same in Court as PEXH 1. The respondent thus conformed with the standard of proof of age as set forth in the case of Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, where the Court of Appeal stated as follows:
“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. Rule 4 of the Sexual Offences Rules of Court Rules is explicit that:
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
b. Penetration
22. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
28. The evidence of PW1 as re-analyzed herein above proves that the appellant had carnal knowledge of her on several occasions as PW! Used to frequent his house save that on 9th October 2023, PW1 was caught by the school guard while sneaking back into the school compound. Pw1 was categorical that the Appellant was her boyfriend and she even led PW2 and PW3 tohis house although they found him at large.
29. PW5 corroborated the evidence of PW1. PW5 opined that the Complainant was defiled due to the absence of hymen which according to her was not freshly broken and she observed presence of pus in her urine and the pregnancy test was positive. In the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the Court stated thus;
“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.”
30. Consequently, guided by the above precedent, I find that the evidence of the Complainant and PW5, the Clinical Officer, sufficiently proved the ingredient of penetration, and there is no reason to disturb the finding of the trial Court.
c. Identification of perpetrator
31. As to whether the Appellant was the perpetrator, it was the Complainant’s evidence that the Appellant herein used to be her boyfriend since term 2 and with the aid of the moonlight and the well-lit room the Appellant took her to she recognized him. It is clear that the Complainant knew the Appellant well and recognized him as the perpetrator hence her testimony was not a lie. In the circumstances, I find that the Appellant was properly recognized as the perpetrator of the offence. I find guidance in the principles set out in the English case of R. vs Turnbull (1971) QR 227.
32. It is also accepted in law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59).
33. I find that the Respondent proved all the ingredients of defilement against the Appellant beyond any reasonable doubts.
Whether the failure by the police to subject the Appellant to DNA or medical examination was fatal
34. Failure by the police to subject the Appellant to DNA or medical examination under section 122A of the Penal Code, to establish that he was the one responsible for defilement and pregnancy, was not fatal to the Respondent’s case. According to the Appellant, that examination would have given crucial evidence in the case. It is clear that as per the evidence of PW6, that the time span between the defilement of PW1 and the arrest of the Appellant’s arrested was long and that had the appellant to been subjected to a medical examination, it may not have yielded any suitable result. It is my finding that medical examination was not necessary in the circumstances.
35. It is true that section 122A of the Penal Code allows the police to order a suspect to undergo medical examination where the offence is serious. Section 36 of the Sexual Offences Act, which allows the Court to make an order that an accused be subjected to a medical examination is not coached in mandatory terms. The trial Court has the discretion to order for a medical examination when it deems it appropriate dependent on the circumstances of the case. Despite the existence of Section 36, it is now settled law that sexual assault is proved by evidence and not by medical examination. Evidence by the Complainant or even circumstantial evidence is enough to prove rape or defilement as the case may be. In the case of Fappyton Mutuku Ngui v Republic [2014] eKLR while considering a similar issue of medical examination in a defilement case, the Court of Appeal stated:-
“In our view, such evidence was not necessary and, in any event, the trial court found that there was sufficient medical evidence in support of PW2’s testimony which was trustworthy as to the person who had defiled her.”
36. A similar issue had arisen in the case of AML v Republic [2012] eKLR where the court held the same position stating :-
“The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.” (emphasis)
37. This position was again taken in the case of Kassim Ali v Republic, [2006] eKLR thus:-
“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim or by circumstantial evidence.”
Whether the sentence meted out on the Appellant was excessive and harsh.
38. Under Section 8 (3) of the Sexual Offences Act, a person who commits an offence of defilement with a child between the age of Twelve (12) and Fifteen years (15) is liable upon conviction to imprisonment for a term of not less than Twenty (20) years. The trial Court in this instance proceeded to issue a sentence of Twenty (20) years. The Respondent in its written submissions beseeched this Court to maintain the Appellant’s sentence to Twenty (20) years.
39. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
40. PW1 was found to be aged 14 years old. The trial court duly considered the Appellant’s mitigation when it meted the statutory minimum sentence. It is my finding that the sentence was proper and lawful. I could have been harsher given that the trial court had the discretion of sentencing the Appellant to a term higher than 20 years.
Conclusion
41. On the balance I do find that this appeal is devoid of merit and must fail. I thus dismiss the appeal herein and I uphold the conviction and I confirm the sentence meted by the trial court.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 13Th day of February 2026.
M.S.Shariff
Judge
In the presence of:
Appellant
Mr Manishi H/b for Ms Gashau for the Respondent
Peter Machoni – Court Assistant