1. The Appellant herein, was convicted in Kilifi Sexual Offences Case No. E098 of 2023, of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to 10 years imprisonment. The particulars of the offence are that on diverse dates between 1.5.23 and 9.9.23 at Mkoroshoni area within Kilifi county, intentionally and unlawfully caused his penis to penetrate the vagina of C. N., a child aged 12 years.
2. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The summarized grounds of appeal are that the trial Magistrate erred by:
i) failing to notice that the essential ingredients of the offence were not proved
ii) convicting the Appellant without enough evidence to support the charge.
iii) failing to consider the Appellant’s defence.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
4. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated:
The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.
5. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator.
6. The age of the Complainant was proved by means of her birth certificate which indicates that she was born on 1.5.11. In 2023 when the offence is alleged to have been committed, the Complainant was 12 years old. This was not challenged by the Appellant.
7. As regards penetration, the Complainant testified that on 9.9.23, as she was returning home from the shops at about 6pm, she met the Appellant who after greetings, asked her to go and collect money from him later. At 7pm, when the Appellant went to collect milk from the Complainant’s home, he asked for her, and she followed him to his house. He removed her shorts and started to lick her vagina. He then took his penis and inserted it into her vagina. She then told him it was heading to 8pm and asked him to give her the Kshs. 30/= he had promised so she could go home. He gave her the money and as she left, she saw Sheila Achieng PW4 hiding by the gate. The matter was reported Complainant’s parents and they took her to KEMRI where after examination, she was found to have an infection. The Complainant stated that the Appellant had been defiling her since she was 11 years old. Initially he asked her for sex when she went to borrow his bicycle. She however gave in when he told her that something bad would happen to her parents.
8. PW3, a watchman at the Complainant’s home testified that on the material date, the Appellant came for milk at the home and called out the Complainant who followed the Appellant to his house. He then stated that PW4 went for her and returned with her. She was crying pleading for forgiveness for having sex with the Appellant.
9. PW4 a house girl at the Complainant’s home stated that when she went to the Appellant’s house to look for the Complainant, she looked through the window and saw them both naked. The Appellant was sucking the Complainant’s vagina and then lay her down on the floor and inserted his penis in her vagina. She stated that the curtain was not drawn and there was light in the room and she saw the Complainant and Appellant clearly.
10. PW6 Anderson Kaingu a Health Clinician from Kilifi County Hospital produced the PRC and P3 forms for the Complainant who he examined on 11.9.23. He stated that the Complainant had no cuts, bruises, bleeding or discharge but her hymen was broken. He stated that the Complainant had reported that perpetrator had been inserting his finger in her vagina and licking it and that this had been going on for 3 years. On cross examination, he stated that the PRC form indicated that there was “no penile penetration, there was licking and fingering of vagina” and that this was based on the Complainant’s information. He stated that after 3 years of sexual relationship, the genitalia would appear normal.
11. The evidence of the Complainant and PW4 the eye witness was consistent. The evidence was not shaken in cross examination. Further PW6 stated that upon examination, the Complainant’s hymen was found to be broken.
12. Section 2 of the SOA defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. In her judgment, the trial Magistrate considered the Appellant’s defence that he’d been suffering from erectile dysfunction for 2 years. She however found that for penetration to occur, “the accused did not have to experience a full penile erection. To my mind, even a flaccid penis, so long as it achieves partial/slight penetration of the vagina, will have completed the offence of defilement.” I concur with the trial Magistrate.
13. The Complainant concisely stated that the Appellant inserted his penis in her vagina. This was corroborated by the testimony of PW4 who witnessed the defilement. Even assuming the Appellant did suffer from erectile dysfunction, the evidence on record shows that there was indeed penetration, even if it was just partial. In any event, penetration need not be deep inside the vagina of a victim. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal had this to say about penetration:
Many times the attacker does not fully complete sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ.
14. In light of the foregoing, I find that the fact of penetration was established.
15. On identification, it is not disputed that the Appellant is a neighbor to the Complainant and buys milk from their home. The Complainant recounted how the Appellant told her to go to his house after he collected milk and she did just that. She also clearly described what he did to her when she went to his house. Similarly, PW3 told the trial court that on the material evening he saw the Complainant follow the Appellant to his home after he collected milk from their home. Further, that after told PW4 that the Complainant was at the Appellant’s home, she went to fetch her and returned with her. The Complainant pleaded with both him and PW4 to forgive her for having sex with the Appellant and saying she would not repeat it again. PW4 also told the trial court that she witnessed the Appellant defiling the Complainant in his house. The testimony of these 3 witnesses is consistent and corroborative. I thus find that the Appellant was positively identified as the perpetrator.
16. The Appellant faults the trial court for failing to consider his defence. The record shows that the trial court did in fact consider the Appellant’s defence but rejected the same. The learned Magistrate found that the Appellant’s claim that PW4 was a liar was without basis. He was not able to shake her evidence in his extensive cross examination. She further found that the photograph of his sitting room with the curtain drawn was of no probative value and was not a confirmation that the curtain was drawn on the material evening. As regards the solar lamp produced, the trial Magistrate found that it was inconceivable that the Appellant left it in the kitchen and went into dark sitting room and saw the Complainant seated on the couch and engaged her on her request for money and saw her to the door as she walked through the door.
17. The trial Magistrate further dismissed the Appellant’s claim that there was an existing grudge between him and the Complainant’s father as no evidence was adduced to support the claim. Indeed, this claim contradicted his earlier testimony that he lived in harmony with the Complainant’s family. Additionally, he has continued to buy milk from that family and had even collected milk on the material night. The claim of a grudge thus rings hollow. Similarly, his defence that he suffered erectile dysfunction could not come to his aid as the trial court found that full penile erection is not mandatory, as partial insertion even of a flaccid penis constitutes penetration as defined under Section 2 of the SOA.
18. My finding is that the trial Magistrate did thoroughly consider the Appellant’s defence but found that the same did not shake the prosecution evidence. I therefore see no basis to fault her finding.
19. After considering the evidence, I find that this is a clear case of grooming of the Complainant by an elderly neighbor who on the one hand threatened that if she declined his advances, then something terrible would happen to her parents and on the other hand, enticed her with money. He employed manipulative tactics to coerce the Complainant to agree to the abuse, and reduce the risk of being caught. Had PW4 not gone looking for her on the material night, the Appellant would have continued abusing the Complainant unchecked, having successfully groomed her.
20. In the end, I find that the prosecution proved its case beyond reasonable doubt. All 3 ingredients of the offence were proved. Accordingly, the Appellant was properly convicted and sentenced. The Appeal is dismissed and both the conviction and sentence are upheld.
DATED, SIGNED and DELIVERED in Malindi this 30th day of May 2025
2. Being aggrieved by the decision of the trial Magistrate, the Appellant has appealed to this Court against both the conviction and sentence. The summarized grounds of appeal are that the trial Magistrate erred by:
i) failing to notice that the essential ingredients of the offence were not proved
ii) convicting the Appellant without enough evidence to support the charge.
iii) failing to consider the Appellant’s defence.
3. As a first appellate Court, I have subjected the evidence adduced before the trial Magistrate to a fresh analysis and evaluation while giving due allowance for the fact that unlike the trial court, I neither saw nor heard the witnesses. See Okeno v. Republic [1972] EA 32.
4. To sustain a conviction for the offense of defilement, 3 ingredients must be established by the prosecution. This was set out in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 where the Court stated:
The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.
5. This Court is required to determine whether in the court below, it was demonstrated that the Complainant was below 18 years of age. Secondly, that there was penetration of the Complainant’s genitalia. Lastly, that the evidence identified the Appellant as the perpetrator.
6. The age of the Complainant was proved by means of her birth certificate which indicates that she was born on 1.5.11. In 2023 when the offence is alleged to have been committed, the Complainant was 12 years old. This was not challenged by the Appellant.
7. As regards penetration, the Complainant testified that on 9.9.23, as she was returning home from the shops at about 6pm, she met the Appellant who after greetings, asked her to go and collect money from him later. At 7pm, when the Appellant went to collect milk from the Complainant’s home, he asked for her, and she followed him to his house. He removed her shorts and started to lick her vagina. He then took his penis and inserted it into her vagina. She then told him it was heading to 8pm and asked him to give her the Kshs. 30/= he had promised so she could go home. He gave her the money and as she left, she saw Sheila Achieng PW4 hiding by the gate. The matter was reported Complainant’s parents and they took her to KEMRI where after examination, she was found to have an infection. The Complainant stated that the Appellant had been defiling her since she was 11 years old. Initially he asked her for sex when she went to borrow his bicycle. She however gave in when he told her that something bad would happen to her parents.
8. PW3, a watchman at the Complainant’s home testified that on the material date, the Appellant came for milk at the home and called out the Complainant who followed the Appellant to his house. He then stated that PW4 went for her and returned with her. She was crying pleading for forgiveness for having sex with the Appellant.
9. PW4 a house girl at the Complainant’s home stated that when she went to the Appellant’s house to look for the Complainant, she looked through the window and saw them both naked. The Appellant was sucking the Complainant’s vagina and then lay her down on the floor and inserted his penis in her vagina. She stated that the curtain was not drawn and there was light in the room and she saw the Complainant and Appellant clearly.
10. PW6 Anderson Kaingu a Health Clinician from Kilifi County Hospital produced the PRC and P3 forms for the Complainant who he examined on 11.9.23. He stated that the Complainant had no cuts, bruises, bleeding or discharge but her hymen was broken. He stated that the Complainant had reported that perpetrator had been inserting his finger in her vagina and licking it and that this had been going on for 3 years. On cross examination, he stated that the PRC form indicated that there was “no penile penetration, there was licking and fingering of vagina” and that this was based on the Complainant’s information. He stated that after 3 years of sexual relationship, the genitalia would appear normal.
11. The evidence of the Complainant and PW4 the eye witness was consistent. The evidence was not shaken in cross examination. Further PW6 stated that upon examination, the Complainant’s hymen was found to be broken.
12. Section 2 of the SOA defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. In her judgment, the trial Magistrate considered the Appellant’s defence that he’d been suffering from erectile dysfunction for 2 years. She however found that for penetration to occur, “the accused did not have to experience a full penile erection. To my mind, even a flaccid penis, so long as it achieves partial/slight penetration of the vagina, will have completed the offence of defilement.” I concur with the trial Magistrate.
13. The Complainant concisely stated that the Appellant inserted his penis in her vagina. This was corroborated by the testimony of PW4 who witnessed the defilement. Even assuming the Appellant did suffer from erectile dysfunction, the evidence on record shows that there was indeed penetration, even if it was just partial. In any event, penetration need not be deep inside the vagina of a victim. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal had this to say about penetration:
Many times the attacker does not fully complete sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ.
14. In light of the foregoing, I find that the fact of penetration was established.
15. On identification, it is not disputed that the Appellant is a neighbor to the Complainant and buys milk from their home. The Complainant recounted how the Appellant told her to go to his house after he collected milk and she did just that. She also clearly described what he did to her when she went to his house. Similarly, PW3 told the trial court that on the material evening he saw the Complainant follow the Appellant to his home after he collected milk from their home. Further, that after told PW4 that the Complainant was at the Appellant’s home, she went to fetch her and returned with her. The Complainant pleaded with both him and PW4 to forgive her for having sex with the Appellant and saying she would not repeat it again. PW4 also told the trial court that she witnessed the Appellant defiling the Complainant in his house. The testimony of these 3 witnesses is consistent and corroborative. I thus find that the Appellant was positively identified as the perpetrator.
16. The Appellant faults the trial court for failing to consider his defence. The record shows that the trial court did in fact consider the Appellant’s defence but rejected the same. The learned Magistrate found that the Appellant’s claim that PW4 was a liar was without basis. He was not able to shake her evidence in his extensive cross examination. She further found that the photograph of his sitting room with the curtain drawn was of no probative value and was not a confirmation that the curtain was drawn on the material evening. As regards the solar lamp produced, the trial Magistrate found that it was inconceivable that the Appellant left it in the kitchen and went into dark sitting room and saw the Complainant seated on the couch and engaged her on her request for money and saw her to the door as she walked through the door.
17. The trial Magistrate further dismissed the Appellant’s claim that there was an existing grudge between him and the Complainant’s father as no evidence was adduced to support the claim. Indeed, this claim contradicted his earlier testimony that he lived in harmony with the Complainant’s family. Additionally, he has continued to buy milk from that family and had even collected milk on the material night. The claim of a grudge thus rings hollow. Similarly, his defence that he suffered erectile dysfunction could not come to his aid as the trial court found that full penile erection is not mandatory, as partial insertion even of a flaccid penis constitutes penetration as defined under Section 2 of the SOA.
18. My finding is that the trial Magistrate did thoroughly consider the Appellant’s defence but found that the same did not shake the prosecution evidence. I therefore see no basis to fault her finding.
19. After considering the evidence, I find that this is a clear case of grooming of the Complainant by an elderly neighbor who on the one hand threatened that if she declined his advances, then something terrible would happen to her parents and on the other hand, enticed her with money. He employed manipulative tactics to coerce the Complainant to agree to the abuse, and reduce the risk of being caught. Had PW4 not gone looking for her on the material night, the Appellant would have continued abusing the Complainant unchecked, having successfully groomed her.
20. In the end, I find that the prosecution proved its case beyond reasonable doubt. All 3 ingredients of the offence were proved. Accordingly, the Appellant was properly convicted and sentenced. The Appeal is dismissed and both the conviction and sentence are upheld.
DATED, SIGNED and DELIVERED in Malindi this 30th day of May 2025