(Being an Appeal against the Judgment on conviction and sentence in S.O E008 of 2021 of Senior Principal Magistrate’s Court at Mariakani Hon. N.C Adalo SRM delivered on 7 th October, 2021)
The appellant Bakari Nziwi Karuku was charged at Mariakani Principal Magistrate’s Court with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the charge were that on the 8 th day of April, 2020 at Simakeni area in Rabai Sub County of Kilifi County within the Coast Region unlawfully and intentionally committed an act which caused his male genital organ namely penis to penetrate into the female genital organ namely vagina of P.W a child aged 12 years. The appellant also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on the 8 th day of April, 2020 at Simakeni area Rabai Sub County in Kilifi County within Coast Region unlawfully and intentionally committed an indecent act with a child aged 12 years namely P.W by touching her private parts.
The appellant denied the charges when he was arraigned in court on 1 st February, 2021. The prosecution called a total of six (6) witnesses to prove the charges against the appellant. The appellant when placed on his defence he opted to give unsworn statement. In a judgment delivered on 7 th October, 2021 by N.C Adalo Senior Resident Magistrate, the appellant was found guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and was accordingly convicted and subsequently sentenced to serve twenty (20) years imprisonment.
The appellant aggrieved by the conviction and sentence he preferred this appeal. He has raised several grounds of the appeal in the memorandum of appeal and what he calls amended grounds of appeal. The said grounds can be compressed to three:
1. That the trial court erred in law and facts in failing to consider that the charges were not proved beyond reasonable doubt.
2. That the trial court erred in law and fact in failing to consider that the essential elements of the offence of defilement were not proved as required.
3. That the trial court erred in law and facts in failing to consider that the prosecution case was marred by contradictions and inconsistencies.
4. That the trial court erred in law and facts by imposing mandatory sentence without considering the prevailing circumstances in commission of the alleged offence.
The prosecution case is that PW2 on 8 th April, 2020 at around 5:30pm she was at her aunt’s home with her cousins when the appellant came and told her that he had been sent by her aunt to take her to her aunt’s place of work. She prepared herself and they left leaving her cousins in the house. On the way the appellant picked his phone and pretended that he was calling her aunt asking which path they should use. He told her to take the phone and talk with her aunt. As she stretched her hand to take the phone from him, the appellant pulled her by her hand and started struggling her. The appellant threatened her with a knife. He told her to remove her trousers. She hesitantly lowered the trousers to her ankles. The appellant tried to pull it. She rose and attempted to run away but she fell down and the appellant caught up with her. at the time she only had a T-shirt on. She attempted to scream but the appellant threatened her with the knife. The appellant then raped her. The appellant wanted to rape a second round but she managed to run away and entered the house of PW4 where she sought help. While at the house of PW4 she contacted her aunt through phone of PW4. Her aunt came and took her to Rabai Health Centre for examination. She later recorded statement with the police on what happened. She said she knew the appellant as he had been given a motorbike by her aunt and he used to relate well with her aunt.
PW3 testified that on the material date and time she was at her place of work. The appellant called her via reverse call telling her police were coming to her place of work as there was curfew imposed. A few minutes later she received a call from strange number. It was PW2 who was calling telling her she had been raped by her ‘uncle’ and he had threatened to kill her. She told her to give the phone to the person who was with her. PW4 talked with her and directed her to her house. PW4 explained to her how the complainant came to her house. She took the complainant to hospital and later reported at the police station. A P3 Form was issued and later filled by PW1. The appellant went missing and was later arrested in Taita. She confirmed that the appellant was well known to her as they had a love affair. She had also given him a motorcycle. She denied having grudge with the appellant.
PW4 testified that on 8 th April, 2020 at around 7:30pm she was in her house when a girl suddenly entered. She opened the door saying that she has been raped. To be precise the girl was saying, ‘nimebakwa! Nimebakwa!’ and she was naked from waist. She offered her a leso to cover herself. She interrogated her and she told her where she comes from. She also gave her the contact of her aunt PW3 whom they called. At around 11:00pm her aunt came and took her away. Later she recorded statement at the police station.
PW5 an officer serving with DCI Mombasa at the Children’s Department she was informed of the defilement case and told that the suspect could not be traced as he had escaped to unknown place. They traced the suspect through his mobile contact in Wundanyi. Together with her colleagues they travelled to Wundanyi on 29 th January, 2021 and managed to arrest the suspect and handed him over to Rabai police station.
PW6 investigated the case. She interrogated the complainant and her aunt who narrated to her what happened. She recorded their statements and issued a P3 Form which was filled by the doctor at Mariakani Sub County hospital by PW1 who confirmed that the complainant had been defiled. She also took the complainant for age assessment and a report was prepared indicating that she was aged 15 years meaning at the time of defilement she was aged 14 years. Later the appellant was brought to the station by officers from child protection unit and she charged him.
PW1 who filled the P3 Form said that the complainant was first seen at Rabai Health Centre before being referred to Mariakani Sub County Hospital. He said the complainant went to Rabai Health Centre with allegations of defilement on 8 th April, 2020 by person known to her. At the time she was taken to Rabai Health Centre she did not have her pants. Her top and bra were soiled. Her hair was full of soil. She had bruises on her chin and neck. She also complained of pain while swallowing, chest and abdominal pains. The left thigh was bruised and painful. On genitalia examination the external genitalia were soiled. Her labia majora and minora had injuries. Hymen was bruised and bleeding. The vaginal wall was also bruised. Laboratory tests were done. He produced treatment notes, laboratory tests results, P3 Form as exhibits.
The appellant in his unsworn defence said on 8 th April, 2020 he was at Mbale in Wundanyi where he was working. He said that three months after parting with PW3 who was his lover. He said he had separated with her because he had married a close friend to her. He alleged that they had planned to marry but it did not work. She kept pestering him through phone calls until he blocked her for fear of breaking his marriage. He however admitted that they were in a good relationship with PW3 for about three months before they parted ways.
Both the appellant and the respondent filed written submissions.
The appellant’s submissions are home-made. They consist of a compilation of the grounds of appeal interspersed with excerpts from various decided cases. I have combed through the said submissions. The appellant has argued that the prosecution did not prove the essential elements of the charge. He also attributed the charges to grudge he had with PW3 whom they were in a relationship. He has faulted the trial court for believing in the evidence of the complainant without corroboration contrary to the provision of Section 124 of the Evidence Act.
Regarding penetration he argued that the evidence adduced by the prosecution and especially the evidence of PW1 and PW2 was insufficient to prove penetration. On positive identification as the perpetrator, he submitted that the possibility of mistaken identity was high in view of the complainant’s evidence that after the ordeal she ran and suddenly entered the house of PW4 and thus there is a possibility that the offence may have been committed by someone else. On the element of age, he submitted that the same was not proved because the evidence in respect of the same was inconsistent and contradictory. He referred to the evidence of PW3 who said she did not know the exact age of the complainant. He also referred to the charge sheet which indicated the age of the complainant at 12 years contrary to the evidence in age assessment which indicated the age of the complainant as 15 years. The appellant further submitted because of the grudge with PW3 the possibility of the charges being a frame up is high. He referred to j his past love relationship as trigger for PW3 to fabricate the charges against him.
The respondent on the other hand submitted that all the essential ingredients of the offence to wit the age of the victim, proof of penetration and positive identification of the appellant were proved. As to the age, the respondent argued that the prosecution produced age assessment showing that the complainant was aged 15 years although the charge sheet stated the victim age as 12 years. It is the submissions by the respondent that under Section 8(3) of the Sexual Offences Act the age of 12 years is covered. On penetration the respondent argued that the evidence of the complainant and the clinical officer who filled the P3 Form together with the treatment notes produced in court clearly proved that there was penetration. On identification, the respondent argued that the appellant was well known to the complainant and the identification of the appellant was by recognition. On the appellant’s defence and submissions that the charges were a fabrication, the respondent argued that such defence cannot surmount the weight of evidence adduced by the prosecution. The respondent further submitted that there were no contradictions in the prosecution case as argued by the appellant.
I have analyzed the evidence adduced before the trial court and considered the submissions both by the appellant and respondent. It is trite that as a first appellate court, the court is expected to re-evaluate and reconsider the evidence adduced before the trial court to reach its own independent decision bearing in mind that it did not have the opportunity to hear and see the witnesses testify. This principle was laid down in the case of Okenov d Republic (1972) E.A 32 where the court held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witness testify.”
Further to the foregoing, it must also be born in mind that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt. This is a cardinal principle of criminal law which need not be overemphasized. It has been restated in numerous decisions (see Stephen Nguli Mulili vs Republic (2014) e KLR).
With the foregoing principles in mind, it is now the duty of the court to consider whether the conviction and sentence is supported by the evidence adduced by the prosecution before the trial court. It is prudent that I set out the ingredients of the offence of defilement to which the appellant was convicted and sentenced.
The offence of defilement is provided for under Section 8(1) of the Sexual Offences Act which provides:
“Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 the court in identifying the essential ingredients of the offence of defilement stated:
“That the critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
In this appeal the appellant attacked the trial court finding on the element of age. The law on prove of age in a defilement case has been restated in numerous caselaw. In the case of Joseph Kiet Seet vs Republic (2014) e KLR the court stated:
“It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni vs Uganda Criminal Appeal No. 2 of 2000, it was held thus: In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, victim’s parents or guardian and by observation and common sense.”
In the instant case the investigating officer produced age assessment report of the complainant indicating that she was approximately aged 15 years. The assessment was done when the appellant had already been charged and the case proceeded. The appellant argued that there were contradictions on the evidence of age. His argument was that the charge sheet indicated the age of the complainant as 12 years. PW3 the aunt of the complainant did not know the age of the complainant. The age assessment report indicated the age as 15 years. I agree with the appellant that there was no uniformity on the evidence as regards the age from the material placed before the court. The question is whether such discrepancies call for the evidence of the age of the complainant placed before the court to be rejected. In the case of Jackson Mwanzia Musembi vs Republic (2017) e KLR cited with approval the Ugandan case of Twahangane Alfred vs Uganda Cr. Appeal No. 139 of 2002 (2003) UGCA 6 on how to treat contradictions in a case where it stated:
“With regard to contradictions in the prosecution case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.”
In considering whether the alleged contradictions by the appellant are fatal, it is important to consider the importance of proving age in a defilement case. In the case of Hadson Ali Mwachongo vs Republic (2016) e KLR the court held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
It is clear from the foregoing that the age of the victim is important as it will determine the sentence to be imposed. More importantly, Section 8(1) of the Sexual Offences Act contemplates a scenario where the age of the victim is under 18 years. In this case, the mere contradiction on the age indicated in the charge sheet and the age assessment report was not fatal to the prosecution case. In any case the age of the complainant whether be it 12 years or 14 years the same is within the bracket of the provision of Section 8(3) under which the appellant was charged. The ground of appeal that the age was not proved as required must fail and the finding of the trial court on age is upheld.
The other issue raised by the appellant is that penetration was not proved by the prosecution. Penetration is defined under Section 2 of the Sexual Offences Act to mean:
“The partial or complete insertion of the genital organ into genital organ of another person.”
It is trite that penetration may be proved by the victim’s testimony or medical evidence. In this case the complainant gave an account of what happened. She stated that the appellant lured her telling her that he was taking her to her aunt’s place of work only to accost her rape her. the trial court believed the evidence of the complainant after observing her demeanor. Section 124 of the Evidence Act provides:
“Notwithstanding the provisions of section 19 of Oaths and Statutory Declaration Act Cap 15 where the evidence of the alleged victims is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
In the instant case though the appellant argued that the trial court simply stated that it noted the demeanor of the complainant and believed that she was telling the truth. I have looked at the proceedings and note that the trial court indicated that the complainant was consistent, confident and well orientated for time and space. The trial court had the opportunity to see and hear the complainant testify in court. I have no reason to depart from the finding of the trial court that the complainant was truthful witness. In any case I have noted that the complainant remained firm even in cross-examination that it is the appellant who defiled her.
Further to the foregoing, the prosecution produced medical evidence which showed that the complainant had been penetrated offering corroboration to the complainant’s evidence. It is also in the evidence of PW4 that when the complainant entered her house, she was half naked. There is graphic evidence to prove that the complainant was penetrated and the finding of the trial court cannot be faulted.
The other element which the prosecution was bound to prove beyond reasonable doubt is the identification of the appellant as the perpetrator. Although the appellant submitted that the possibility that the offence could have been committed by someone else, the prosecution lead evidence that the appellant was well known to the complainant and PW3 because he was at one time in relationship with PW3. This evidence was not rebutted by the appellant. Indeed, the appellant in cross-examination of PW3 and in his defence it came out clearly that he knew PW3. The assertion by the appellant in his defence that the complainant was not known to her cannot be true. It is also evident that the appellant picked the complainant during the day and therefore chances of the appellant being mistaken can only be very remote.
The appellant raised an issue of grudge with PW3 whom they were in a relationship. He asserted that the charges were a fabrication by PW3 because they parted ways. I have considered that line of defence by the appellant and weighed against the evidence adduced by the prosecution, the same cannot be true. There is evidence of PW4 who said the complainant run to her house half naked. PW4 is a very independent witness and her evidence was graphical that the complainant entered her house when she ran away from the person who was defiling. All this looked against the appellant defence, the prosecution evidence remains strongly pointing at the appellant as the perpetrator.
From the foregoing I find that the conviction was based on sound evidence adduced before the trial court and the same is upheld.
Regarding the sentence, the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(3) of the Act provides for a minimum sentence of twenty years. The appellant was sentenced to serve twenty years which is lawfully provided for under the said Section of the Act. What the trial, court did not take into consideration in sentencing the appellant is the time the appellant was in remand pending the trial. The record shows that the appellant was arraigned in court on 1 st February, 2021. He was sentenced on 28 th October, 2021. The appellant was therefore in custody for 8 months and some 26 days. The sentence of twenty years shall therefore be less 8 months and 26 days.
The upshot is that the appeal has no merit and the same is dismissed save for the sentence which shall be computed taking into account the period the appellant was in custody during the trial.
Dated, signed and delivered virtually this 4 th day of June, 2026
In the presence of
Appellant present virtually
Ms. Mutua for the respondent present virtually
Ms. Millicent Otwo Court Assistant.
2
The appellant Bakari Nziwi Karuku was charged at Mariakani Principal Magistrate’s Court with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the charge were that on the 8 th day of April, 2020 at Simakeni area in Rabai Sub County of Kilifi County within the Coast Region unlawfully and intentionally committed an act which caused his male genital organ namely penis to penetrate into the female genital organ namely vagina of P.W a child aged 12 years. The appellant also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on the 8 th day of April, 2020 at Simakeni area Rabai Sub County in Kilifi County within Coast Region unlawfully and intentionally committed an indecent act with a child aged 12 years namely P.W by touching her private parts.
The appellant denied the charges when he was arraigned in court on 1 st February, 2021. The prosecution called a total of six (6) witnesses to prove the charges against the appellant. The appellant when placed on his defence he opted to give unsworn statement. In a judgment delivered on 7 th October, 2021 by N.C Adalo Senior Resident Magistrate, the appellant was found guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and was accordingly convicted and subsequently sentenced to serve twenty (20) years imprisonment.
The appellant aggrieved by the conviction and sentence he preferred this appeal. He has raised several grounds of the appeal in the memorandum of appeal and what he calls amended grounds of appeal. The said grounds can be compressed to three:
1. That the trial court erred in law and facts in failing to consider that the charges were not proved beyond reasonable doubt.
2. That the trial court erred in law and fact in failing to consider that the essential elements of the offence of defilement were not proved as required.
3. That the trial court erred in law and facts in failing to consider that the prosecution case was marred by contradictions and inconsistencies.
4. That the trial court erred in law and facts by imposing mandatory sentence without considering the prevailing circumstances in commission of the alleged offence.
The prosecution case is that PW2 on 8 th April, 2020 at around 5:30pm she was at her aunt’s home with her cousins when the appellant came and told her that he had been sent by her aunt to take her to her aunt’s place of work. She prepared herself and they left leaving her cousins in the house. On the way the appellant picked his phone and pretended that he was calling her aunt asking which path they should use. He told her to take the phone and talk with her aunt. As she stretched her hand to take the phone from him, the appellant pulled her by her hand and started struggling her. The appellant threatened her with a knife. He told her to remove her trousers. She hesitantly lowered the trousers to her ankles. The appellant tried to pull it. She rose and attempted to run away but she fell down and the appellant caught up with her. at the time she only had a T-shirt on. She attempted to scream but the appellant threatened her with the knife. The appellant then raped her. The appellant wanted to rape a second round but she managed to run away and entered the house of PW4 where she sought help. While at the house of PW4 she contacted her aunt through phone of PW4. Her aunt came and took her to Rabai Health Centre for examination. She later recorded statement with the police on what happened. She said she knew the appellant as he had been given a motorbike by her aunt and he used to relate well with her aunt.
PW3 testified that on the material date and time she was at her place of work. The appellant called her via reverse call telling her police were coming to her place of work as there was curfew imposed. A few minutes later she received a call from strange number. It was PW2 who was calling telling her she had been raped by her ‘uncle’ and he had threatened to kill her. She told her to give the phone to the person who was with her. PW4 talked with her and directed her to her house. PW4 explained to her how the complainant came to her house. She took the complainant to hospital and later reported at the police station. A P3 Form was issued and later filled by PW1. The appellant went missing and was later arrested in Taita. She confirmed that the appellant was well known to her as they had a love affair. She had also given him a motorcycle. She denied having grudge with the appellant.
PW4 testified that on 8 th April, 2020 at around 7:30pm she was in her house when a girl suddenly entered. She opened the door saying that she has been raped. To be precise the girl was saying, ‘nimebakwa! Nimebakwa!’ and she was naked from waist. She offered her a leso to cover herself. She interrogated her and she told her where she comes from. She also gave her the contact of her aunt PW3 whom they called. At around 11:00pm her aunt came and took her away. Later she recorded statement at the police station.
PW5 an officer serving with DCI Mombasa at the Children’s Department she was informed of the defilement case and told that the suspect could not be traced as he had escaped to unknown place. They traced the suspect through his mobile contact in Wundanyi. Together with her colleagues they travelled to Wundanyi on 29 th January, 2021 and managed to arrest the suspect and handed him over to Rabai police station.
PW6 investigated the case. She interrogated the complainant and her aunt who narrated to her what happened. She recorded their statements and issued a P3 Form which was filled by the doctor at Mariakani Sub County hospital by PW1 who confirmed that the complainant had been defiled. She also took the complainant for age assessment and a report was prepared indicating that she was aged 15 years meaning at the time of defilement she was aged 14 years. Later the appellant was brought to the station by officers from child protection unit and she charged him.
PW1 who filled the P3 Form said that the complainant was first seen at Rabai Health Centre before being referred to Mariakani Sub County Hospital. He said the complainant went to Rabai Health Centre with allegations of defilement on 8 th April, 2020 by person known to her. At the time she was taken to Rabai Health Centre she did not have her pants. Her top and bra were soiled. Her hair was full of soil. She had bruises on her chin and neck. She also complained of pain while swallowing, chest and abdominal pains. The left thigh was bruised and painful. On genitalia examination the external genitalia were soiled. Her labia majora and minora had injuries. Hymen was bruised and bleeding. The vaginal wall was also bruised. Laboratory tests were done. He produced treatment notes, laboratory tests results, P3 Form as exhibits.
The appellant in his unsworn defence said on 8 th April, 2020 he was at Mbale in Wundanyi where he was working. He said that three months after parting with PW3 who was his lover. He said he had separated with her because he had married a close friend to her. He alleged that they had planned to marry but it did not work. She kept pestering him through phone calls until he blocked her for fear of breaking his marriage. He however admitted that they were in a good relationship with PW3 for about three months before they parted ways.
Both the appellant and the respondent filed written submissions.
The appellant’s submissions are home-made. They consist of a compilation of the grounds of appeal interspersed with excerpts from various decided cases. I have combed through the said submissions. The appellant has argued that the prosecution did not prove the essential elements of the charge. He also attributed the charges to grudge he had with PW3 whom they were in a relationship. He has faulted the trial court for believing in the evidence of the complainant without corroboration contrary to the provision of Section 124 of the Evidence Act.
Regarding penetration he argued that the evidence adduced by the prosecution and especially the evidence of PW1 and PW2 was insufficient to prove penetration. On positive identification as the perpetrator, he submitted that the possibility of mistaken identity was high in view of the complainant’s evidence that after the ordeal she ran and suddenly entered the house of PW4 and thus there is a possibility that the offence may have been committed by someone else. On the element of age, he submitted that the same was not proved because the evidence in respect of the same was inconsistent and contradictory. He referred to the evidence of PW3 who said she did not know the exact age of the complainant. He also referred to the charge sheet which indicated the age of the complainant at 12 years contrary to the evidence in age assessment which indicated the age of the complainant as 15 years. The appellant further submitted because of the grudge with PW3 the possibility of the charges being a frame up is high. He referred to j his past love relationship as trigger for PW3 to fabricate the charges against him.
The respondent on the other hand submitted that all the essential ingredients of the offence to wit the age of the victim, proof of penetration and positive identification of the appellant were proved. As to the age, the respondent argued that the prosecution produced age assessment showing that the complainant was aged 15 years although the charge sheet stated the victim age as 12 years. It is the submissions by the respondent that under Section 8(3) of the Sexual Offences Act the age of 12 years is covered. On penetration the respondent argued that the evidence of the complainant and the clinical officer who filled the P3 Form together with the treatment notes produced in court clearly proved that there was penetration. On identification, the respondent argued that the appellant was well known to the complainant and the identification of the appellant was by recognition. On the appellant’s defence and submissions that the charges were a fabrication, the respondent argued that such defence cannot surmount the weight of evidence adduced by the prosecution. The respondent further submitted that there were no contradictions in the prosecution case as argued by the appellant.
I have analyzed the evidence adduced before the trial court and considered the submissions both by the appellant and respondent. It is trite that as a first appellate court, the court is expected to re-evaluate and reconsider the evidence adduced before the trial court to reach its own independent decision bearing in mind that it did not have the opportunity to hear and see the witnesses testify. This principle was laid down in the case of Okenov d Republic (1972) E.A 32 where the court held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witness testify.”
Further to the foregoing, it must also be born in mind that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt. This is a cardinal principle of criminal law which need not be overemphasized. It has been restated in numerous decisions (see Stephen Nguli Mulili vs Republic (2014) e KLR).
With the foregoing principles in mind, it is now the duty of the court to consider whether the conviction and sentence is supported by the evidence adduced by the prosecution before the trial court. It is prudent that I set out the ingredients of the offence of defilement to which the appellant was convicted and sentenced.
The offence of defilement is provided for under Section 8(1) of the Sexual Offences Act which provides:
“Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 the court in identifying the essential ingredients of the offence of defilement stated:
“That the critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
In this appeal the appellant attacked the trial court finding on the element of age. The law on prove of age in a defilement case has been restated in numerous caselaw. In the case of Joseph Kiet Seet vs Republic (2014) e KLR the court stated:
“It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni vs Uganda Criminal Appeal No. 2 of 2000, it was held thus: In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, victim’s parents or guardian and by observation and common sense.”
In the instant case the investigating officer produced age assessment report of the complainant indicating that she was approximately aged 15 years. The assessment was done when the appellant had already been charged and the case proceeded. The appellant argued that there were contradictions on the evidence of age. His argument was that the charge sheet indicated the age of the complainant as 12 years. PW3 the aunt of the complainant did not know the age of the complainant. The age assessment report indicated the age as 15 years. I agree with the appellant that there was no uniformity on the evidence as regards the age from the material placed before the court. The question is whether such discrepancies call for the evidence of the age of the complainant placed before the court to be rejected. In the case of Jackson Mwanzia Musembi vs Republic (2017) e KLR cited with approval the Ugandan case of Twahangane Alfred vs Uganda Cr. Appeal No. 139 of 2002 (2003) UGCA 6 on how to treat contradictions in a case where it stated:
“With regard to contradictions in the prosecution case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case.”
In considering whether the alleged contradictions by the appellant are fatal, it is important to consider the importance of proving age in a defilement case. In the case of Hadson Ali Mwachongo vs Republic (2016) e KLR the court held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
It is clear from the foregoing that the age of the victim is important as it will determine the sentence to be imposed. More importantly, Section 8(1) of the Sexual Offences Act contemplates a scenario where the age of the victim is under 18 years. In this case, the mere contradiction on the age indicated in the charge sheet and the age assessment report was not fatal to the prosecution case. In any case the age of the complainant whether be it 12 years or 14 years the same is within the bracket of the provision of Section 8(3) under which the appellant was charged. The ground of appeal that the age was not proved as required must fail and the finding of the trial court on age is upheld.
The other issue raised by the appellant is that penetration was not proved by the prosecution. Penetration is defined under Section 2 of the Sexual Offences Act to mean:
“The partial or complete insertion of the genital organ into genital organ of another person.”
It is trite that penetration may be proved by the victim’s testimony or medical evidence. In this case the complainant gave an account of what happened. She stated that the appellant lured her telling her that he was taking her to her aunt’s place of work only to accost her rape her. the trial court believed the evidence of the complainant after observing her demeanor. Section 124 of the Evidence Act provides:
“Notwithstanding the provisions of section 19 of Oaths and Statutory Declaration Act Cap 15 where the evidence of the alleged victims is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
In the instant case though the appellant argued that the trial court simply stated that it noted the demeanor of the complainant and believed that she was telling the truth. I have looked at the proceedings and note that the trial court indicated that the complainant was consistent, confident and well orientated for time and space. The trial court had the opportunity to see and hear the complainant testify in court. I have no reason to depart from the finding of the trial court that the complainant was truthful witness. In any case I have noted that the complainant remained firm even in cross-examination that it is the appellant who defiled her.
Further to the foregoing, the prosecution produced medical evidence which showed that the complainant had been penetrated offering corroboration to the complainant’s evidence. It is also in the evidence of PW4 that when the complainant entered her house, she was half naked. There is graphic evidence to prove that the complainant was penetrated and the finding of the trial court cannot be faulted.
The other element which the prosecution was bound to prove beyond reasonable doubt is the identification of the appellant as the perpetrator. Although the appellant submitted that the possibility that the offence could have been committed by someone else, the prosecution lead evidence that the appellant was well known to the complainant and PW3 because he was at one time in relationship with PW3. This evidence was not rebutted by the appellant. Indeed, the appellant in cross-examination of PW3 and in his defence it came out clearly that he knew PW3. The assertion by the appellant in his defence that the complainant was not known to her cannot be true. It is also evident that the appellant picked the complainant during the day and therefore chances of the appellant being mistaken can only be very remote.
The appellant raised an issue of grudge with PW3 whom they were in a relationship. He asserted that the charges were a fabrication by PW3 because they parted ways. I have considered that line of defence by the appellant and weighed against the evidence adduced by the prosecution, the same cannot be true. There is evidence of PW4 who said the complainant run to her house half naked. PW4 is a very independent witness and her evidence was graphical that the complainant entered her house when she ran away from the person who was defiling. All this looked against the appellant defence, the prosecution evidence remains strongly pointing at the appellant as the perpetrator.
From the foregoing I find that the conviction was based on sound evidence adduced before the trial court and the same is upheld.
Regarding the sentence, the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(3) of the Act provides for a minimum sentence of twenty years. The appellant was sentenced to serve twenty years which is lawfully provided for under the said Section of the Act. What the trial, court did not take into consideration in sentencing the appellant is the time the appellant was in remand pending the trial. The record shows that the appellant was arraigned in court on 1 st February, 2021. He was sentenced on 28 th October, 2021. The appellant was therefore in custody for 8 months and some 26 days. The sentence of twenty years shall therefore be less 8 months and 26 days.
The upshot is that the appeal has no merit and the same is dismissed save for the sentence which shall be computed taking into account the period the appellant was in custody during the trial.
Dated, signed and delivered virtually this 4 th day of June, 2026
In the presence of
Appellant present virtually
Ms. Mutua for the respondent present virtually
Ms. Millicent Otwo Court Assistant.
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