REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL APPEAL CASE NO. E025 OF 2024
(Original SO CRC NO. E006 OF 2022 CM's Court at Kisumu)
BATON ASANGA HASSAN........................................................ APPELLANT
VERSUS
REPUBLIC............................................................................... RESPONDENT
(Being an appeal against the conviction and sentence in the judgment at the Chief Magistrate’s Court at Kisumu (Hon. W.K. ONKUNYA (SRM)) in Criminal Case No. SO E006 of 2022, delivered on 16th January,2023 and sentenced on 26th January, 2023)
JUDGMENT
1. The Appellant in this case, BATON ASANGA HASSAN, was charged with defilement contrary to Section 8 (1) and (2) of the Sexual Offences Act No. 3 of 2006 in the main count. The particulars of the offence were that on diverse dates between 23.12.2021 and 15.2.2022 at unknown time at Western Area, Nyalenda "B" Sub-location in Kisumu County the appellant intentionally and unlawfully caused his penis to penetrate the Vagina of L.A a child aged four years.
2. He faced an alternative charge of committing an indecent act with a child.
3. When the appellant was arraigned on 24.2.2022 he denied both counts. He was tried and convicted on the main count of defilement. On 26.1.2023 he was sentenced to serve life imprisonment.
4. The appellant, aggrieved, filed this appeal, it is dated 24.4.2024. the appellant raised grounds in the main petition and supplementary grounds as follows:
a) That the learned Magistrate erred in both law and facts by failing to consider that the ingredients forming he offence of defilement were not proved to the required standards.
b) That the learned magistrate erred in law in not considering the contradicts, discrepancies and inconsistences in the medical examination evidence that were in consequential to conviction.
c) That the learned magistrate erred in law and fact in not making a finding that the DNA results absolved the appellant from this penetration.
d) That the learned magistrate erred in both law and facts by failing to consider the plea in mitigation while sentencing.
e) That the learned magistrate erred in law and fact in denying the appellant his absolute right to the least severe sentence pursuant to Article 25 (5 ) 50 ( 2 ) ( p ) of the constitution of Kenya.
5. The appellant filed written submission dated 29.8.2025. The state filed theirs dated 30.3.2026. A list of authorities containing two cases was also filed.
PROSECUTION CASE
6. The Minor L.A was quite young. In the Voire Dire examination she said that she was one year old. The trial court recorded:
"The minor is a baby, young and does not seem to know the meaning of giving evidence under oath, but is able to state what happened to her"
7. The complainant proceeded to give her testimony. I note that the trial court opted to record most of PW1's testimony in Kiswahili It reads in part:
"He did Tabia Mbaya..."Alieka susu yake kwa susu yangu alafu akanipatia ugali and mboga yake..."( He did Tabia mbaya..He inserted his part for urinating inside my part for urinating then gave me ugali and his vegetables ( my translation)
8. PW2 was the complainant’s mother. She told the court that the daughter was four years old having been born on 2.3.2018. She did not have a birth certificate but said that she was sure about the date of birth. She said that on 5.2.2022 when she got home and cooked for her children PW1 asked to be taken out to urinate. She took her. The girl complained of pain in her private parts. PW2 referred to it as dudu. That PW1 told her that Hassan called her to his house, lay her on his bed took his dudu and inserted it into her dudu.
9. PW2 further told the court that the accused worked as a night watchman. That she reported the matter to police. The child was examined at JOOTRH. She identified a P3 form.
10. PW2 further testified that the child was put on post exposure prophylaxis (PEP) and that when the accused person was examined and found to have Syphilis the child was also examined and found to be infected. She was treated.
11. It was PW2's testimony that the accused person was a neighbor. That she had known him for one year. In cross examination she said that they had no grudge. That the accused person got a catheter inserted due to a sexually transmitted disease. That PW2 was never the accused person’s girlfriend. That she had not solicited money from him.
12. PW3 Effie Owour Ochieng, was a Clinical Officer at JOOTRH. She is the one who examined L.A. She produced a post rape care form (PRC) as exhibit. According to her the complainant was sexually assaulted. In cross examination she said that she did not examine the accused person.
13. PW4 was Dr. Omboki Lucy. She also examined the minor. She filled a P3 form. She noted a broken hymen with whitish foul smelling discharge. She produced it as exhibit. PW4 also examined the accused person. They noted that he had sexually transmitted infection. She produced his P3 from as exhibit No. 4.
14. Polycap Lutta Kweya was the 4th witness. He introduced himself as a government analyst. He received Vaginal Swab samples for L.A. He also received a black biker. He obtained swabs from the accused and the complainant. After DNA profiling he concluded that the DNA profile for the HVs and Biker matched that of L.A. The DNA profile of the accused did not march with any of the samples produced. He produced the report. He told the court that the samples were submitted eight days after the incident. That sperm viability is a maximum of 96 hours and ideally 48 hours.
15. The last witness was the investigating officer. She said that she took the minor to hospital on 16.2.2022. That they arrested the accused person on the same day. That she took both accused and complainant to JOOTRH for examination and filing of P3 forms. PW6 produced a black Bikin belonging to L.A. She had the minor examined for age assessment. The age was assessed at four years. She produced the age assessment report.
16. In cross examination she said that accused person was arrested at his home. That they did not assault the accused. That the biker was recovered from the minor. That, no money was stolen by police officers from the accused. That accused was identified by the minor and her mother for purposes of arrest.
DEFENCE EVIDENCE
17. In his defence the appellant gave a sworn testimony. He said that the worked as a guard. He said that on 15.2.2022 he was on day shift. That he left his house at 6.00 am and got back at 9.00 PM. That the following day he was told about allegations of defilement. That he had a grudge with the complainant’s mother and landlord over a stolen phone. That the landlord once assaulted the appellant and was arrested. That Pw2 threatened to bring up false charges against the appellant.
18. In cross - examination the appellant admitted knowing the complainant. He claimed to have had sexual relations with the complainant’s mother. That the child knew him very well. That he did not go on night shift on 6.2.2022. That he had differences with PW1’s mother as she wanted him to pay her rent. He denied the charges.
SUBMISSIONS
19. The appellant and respondent have filed submissions. The appellant raised the issue of the DNA results that did not match. He referred to excerpts of the proceeding stating that there were contradictions that should have been resolved in his favour. He referred the court to the cases of Eliud Ouma Agwara versus Republic ( 2016 ) eKLR, R V Timothy Mwenda Gichuru and 2 others ( 2017 ) eKLR and Kiarie and Another Versus Rep ( 1986 ) KLR 281. I will discuss the cases in my analysis.
20. He submitted that his defence was not considered. That he was not allowed to benefit from the least severe sentence pursuant to Article 25 (c) and 50 (2) (P) of the constitution. That it was un-constitutional to sentence him to life imprisonment.
21. The respondent in their submissions started by laying out the duty of a first appellant court to reevaluate and analyse the evidence on record and to draw its own independent conclusions. The well-known case of Okeno versus Republic (1972) EA 3 was cited.
22. The respondent further submitted on the ingredients of defilement being age of the victim, penetration and identification of the perpetrator. It was further submitted that negative DNA results do not necessarily absolve, the appellant. The final submission was that life imprisonment is lawful and mandatory. The respondents concluded by stating that the case had been proved beyond reasonable doubt.
ANALYSIS
23. As submitted by the respondents this is a first appeal. I am under a duty to reevaluate and assess the evidence and make my own conclusions and as I do this, take into account the fact that I did not get the opportunity and advantage of observing the demeanor of the witnesses as they testified unlike the trial court. The court of Appeal for Eastern Africa addressed this issue in Pandya versus Republic (1957) EA 336 as follows:
"on a first appeal from a conviction by a judge or magistrate sitting without a jury the appellant is entitled to have the appellate courts own considered views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witness before the judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances quite apart from manner an demeanor which may show whether a statement is credible or not which may warrant a court differing from the judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen"
24. This position was emphasized in the often quoted case of Okeno Versus Republic (1972) EA 32 when the East African Court of Appeal Stated:
"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Versus (1957) EA 336) and to the appellate convicts own decision on the evidence. The appellate courts own decision on the evidence. The first appellant court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala Vs Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court findings and conclusion. It must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate findings should be supported. In doing so, it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses see Peters Vs Sunday Post (1958) EA 424"
25. The question is whether the prosecution has proved this case to the required standard. That burden of proof was stated in the case of H.L Woolmington Versus DPP ( 1935 ) AC 462 P 481 where Viscount Sankey L.C stated:
"throughout the web of the English Criminal Law one golden thread is always to be seen, that it is duty of the prosecution to prove the prisoner’s guilty subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner as to whether the prisoner killed the deceased with with a malicious intention, the prosecution has not made out the case and the person is entitled to an acquittal. No matter what the charge or where the trial the principle that the prosecution must prove the guilt of the person is part of the common law of England and no attempt to whittle it down can be entertained."
26. The burden of proof lies with the state. It never shifts.
27. The appellant was charged under Section 8 (1) and (2) of the Sexual Offences Act. It provides:
"(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
28. From the provisions above the prosecution has to establish three key ingredients of the offence as follows:-
i) The age of the victim
ii) The act of penetration
iii) Positive identification of the perpetrator of the offence.
29. On the question of age, I have noted the testimony by the victim's mother. She said that her daughter was born on 2.3.2018. At the alleged date of the offence this would be four years earlier. I note that no birth certificate was produced in evidence. I also note that the court received evidence by way of age assessment report. It was exhibit 7 (a). This scientific assessment corroborated what PW2 had told the trial court. A mother is a credible witness as to age.
30. I have noted and benefited from the authority cited by the respondent on this issue being Edwin Nyambogo Onsogo Versus Republic (2016) eKLR which was quoted on the case of Kivuti Versus Republic (2024) KEHC 144 12 (KLR) where it was stated:-
"the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence proffered in proof of the victims’ age, it has to be credible and reliable"
31. It is my finding and holding that the evidence by the mother taken together with the medical age assessment is credible and reliable. It is proved beyond reasonable doubt that the victim was four years old. This places her within the provisions of Section 8 (2) of the Sexual Offences Act.
32. On the issue of penetration, the complainant testified. As noted, she is four years old. She used child appropriate language, saying that accused did "tabia mbaya" and inserted his "susu" into her "susu. She was not cross examined. I find this piece of evidence simple and unembellished. It is the kind that would be given by a child of that age.
33. The minor was examined on the date of the incident. PW3 noted redness of the on her genitalia inflammation of the genetilia, a laceration at the 6.0clock position on the inner labia minora and a broken hymen. The appellant raised issue with the report by the clinical officer, PW3 and that of Dr Ombok, PW4. I have looked at both. I find no contradiction. The only difference is the time when they were done. The evidence given through PW1, Pw2, PW3, and PW4 is sufficient to prove beyond reasonable doubt that the child was penetrated as defined under Section 2 of the Sexual Offences Act.
34. On the identification of the appellant the victim referred to him as Hassan. PW2, the mother while referring to the appellant said that they had lived as neighbors for one year. In his defence, the appellant admitted that they were neighbors. That the minor knew him as they were next door neighbors. The burden of proof remains with the prosecution.
35. I have noted the assertion by the appellant that this case could be as a result of a relationship with the complainant's mother. There is no suggestion that there is a mistaken identity. The appellant was properly and positively identified as the one who inserted his penis referred by the little girl as "susu" into the victims’ vagina also called "susu"
36. Heavy weather was made of the DNA report with the appellant submitting that it exonerates him. All I need to do is point out to what PW5 the government Chemist told the trial court: -
"The sperms viability was at a maximum period of 96 hours and ideally at 48 hours. The sampling was done late"
37. In any case as the court of Appeal stated in AML V R (2012) eKLR "the fact of rape or defilement is not proved by DNA test but by way evidence
A positive DNA report would have added to the overwhelming body of evidence linking the appellant to this offence. The authority relied on by the appellant in Eliud Ouma Angwana Versus Republic (2016) eKLR is distinguishable. It refers to a case of pregnancy resulting from alleged defilement.
38. In the instant case there is no pregnancy. I find the further evidence that the little girl was found infected with sexually transmitted disease of Syphilis which the appellant had tested positive to be a further powerful scientific link to the penetration by the appellant.
39.In sum the three ingredients where established. The findings by the learned magistrate have not been shaken. They are based on application of law to the evidence and facts. The conviction on the charge of defilement is safe. The appeal against this conviction is without merit. It is hereby dismissed.
40. I have seen the argument on the unconstitutional nature of life sentence. Section 8 (2) of the Sexual offences Act No. 3 of 2006 provides:
“a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life"
If there was any doubt as to the mandatory nature of this provision it was cleared by the Supreme Court in Republic Vs Julius Kitsao Manyeso (2025) KESC 16 (KLR) where the court held that life imprisonment under Section of the Sexual offences Act remains lawful. The appeal on sentence is, therefore, also without merit. It is hereby dismissed.
It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 19th June. 2026.
A. ITHUKU
JUDGE
In the presence of:
……………………………………………………………………… for the Appellant
……………………………………………………………………… for the State
……………………………………………………………………… Court Assistant
Judgment delivered through Microsoft Teams online platform.
IN THE HIGH COURT OF KENYA
AT KISUMU
CRIMINAL APPEAL CASE NO. E025 OF 2024
(Original SO CRC NO. E006 OF 2022 CM's Court at Kisumu)
BATON ASANGA HASSAN........................................................ APPELLANT
VERSUS
REPUBLIC............................................................................... RESPONDENT
(Being an appeal against the conviction and sentence in the judgment at the Chief Magistrate’s Court at Kisumu (Hon. W.K. ONKUNYA (SRM)) in Criminal Case No. SO E006 of 2022, delivered on 16th January,2023 and sentenced on 26th January, 2023)
JUDGMENT
1. The Appellant in this case, BATON ASANGA HASSAN, was charged with defilement contrary to Section 8 (1) and (2) of the Sexual Offences Act No. 3 of 2006 in the main count. The particulars of the offence were that on diverse dates between 23.12.2021 and 15.2.2022 at unknown time at Western Area, Nyalenda "B" Sub-location in Kisumu County the appellant intentionally and unlawfully caused his penis to penetrate the Vagina of L.A a child aged four years.
2. He faced an alternative charge of committing an indecent act with a child.
3. When the appellant was arraigned on 24.2.2022 he denied both counts. He was tried and convicted on the main count of defilement. On 26.1.2023 he was sentenced to serve life imprisonment.
4. The appellant, aggrieved, filed this appeal, it is dated 24.4.2024. the appellant raised grounds in the main petition and supplementary grounds as follows:
a) That the learned Magistrate erred in both law and facts by failing to consider that the ingredients forming he offence of defilement were not proved to the required standards.
b) That the learned magistrate erred in law in not considering the contradicts, discrepancies and inconsistences in the medical examination evidence that were in consequential to conviction.
c) That the learned magistrate erred in law and fact in not making a finding that the DNA results absolved the appellant from this penetration.
d) That the learned magistrate erred in both law and facts by failing to consider the plea in mitigation while sentencing.
e) That the learned magistrate erred in law and fact in denying the appellant his absolute right to the least severe sentence pursuant to Article 25 (5 ) 50 ( 2 ) ( p ) of the constitution of Kenya.
5. The appellant filed written submission dated 29.8.2025. The state filed theirs dated 30.3.2026. A list of authorities containing two cases was also filed.
PROSECUTION CASE
6. The Minor L.A was quite young. In the Voire Dire examination she said that she was one year old. The trial court recorded:
"The minor is a baby, young and does not seem to know the meaning of giving evidence under oath, but is able to state what happened to her"
7. The complainant proceeded to give her testimony. I note that the trial court opted to record most of PW1's testimony in Kiswahili It reads in part:
"He did Tabia Mbaya..."Alieka susu yake kwa susu yangu alafu akanipatia ugali and mboga yake..."( He did Tabia mbaya..He inserted his part for urinating inside my part for urinating then gave me ugali and his vegetables ( my translation)
8. PW2 was the complainant’s mother. She told the court that the daughter was four years old having been born on 2.3.2018. She did not have a birth certificate but said that she was sure about the date of birth. She said that on 5.2.2022 when she got home and cooked for her children PW1 asked to be taken out to urinate. She took her. The girl complained of pain in her private parts. PW2 referred to it as dudu. That PW1 told her that Hassan called her to his house, lay her on his bed took his dudu and inserted it into her dudu.
9. PW2 further told the court that the accused worked as a night watchman. That she reported the matter to police. The child was examined at JOOTRH. She identified a P3 form.
10. PW2 further testified that the child was put on post exposure prophylaxis (PEP) and that when the accused person was examined and found to have Syphilis the child was also examined and found to be infected. She was treated.
11. It was PW2's testimony that the accused person was a neighbor. That she had known him for one year. In cross examination she said that they had no grudge. That the accused person got a catheter inserted due to a sexually transmitted disease. That PW2 was never the accused person’s girlfriend. That she had not solicited money from him.
12. PW3 Effie Owour Ochieng, was a Clinical Officer at JOOTRH. She is the one who examined L.A. She produced a post rape care form (PRC) as exhibit. According to her the complainant was sexually assaulted. In cross examination she said that she did not examine the accused person.
13. PW4 was Dr. Omboki Lucy. She also examined the minor. She filled a P3 form. She noted a broken hymen with whitish foul smelling discharge. She produced it as exhibit. PW4 also examined the accused person. They noted that he had sexually transmitted infection. She produced his P3 from as exhibit No. 4.
14. Polycap Lutta Kweya was the 4th witness. He introduced himself as a government analyst. He received Vaginal Swab samples for L.A. He also received a black biker. He obtained swabs from the accused and the complainant. After DNA profiling he concluded that the DNA profile for the HVs and Biker matched that of L.A. The DNA profile of the accused did not march with any of the samples produced. He produced the report. He told the court that the samples were submitted eight days after the incident. That sperm viability is a maximum of 96 hours and ideally 48 hours.
15. The last witness was the investigating officer. She said that she took the minor to hospital on 16.2.2022. That they arrested the accused person on the same day. That she took both accused and complainant to JOOTRH for examination and filing of P3 forms. PW6 produced a black Bikin belonging to L.A. She had the minor examined for age assessment. The age was assessed at four years. She produced the age assessment report.
16. In cross examination she said that accused person was arrested at his home. That they did not assault the accused. That the biker was recovered from the minor. That, no money was stolen by police officers from the accused. That accused was identified by the minor and her mother for purposes of arrest.
DEFENCE EVIDENCE
17. In his defence the appellant gave a sworn testimony. He said that the worked as a guard. He said that on 15.2.2022 he was on day shift. That he left his house at 6.00 am and got back at 9.00 PM. That the following day he was told about allegations of defilement. That he had a grudge with the complainant’s mother and landlord over a stolen phone. That the landlord once assaulted the appellant and was arrested. That Pw2 threatened to bring up false charges against the appellant.
18. In cross - examination the appellant admitted knowing the complainant. He claimed to have had sexual relations with the complainant’s mother. That the child knew him very well. That he did not go on night shift on 6.2.2022. That he had differences with PW1’s mother as she wanted him to pay her rent. He denied the charges.
SUBMISSIONS
19. The appellant and respondent have filed submissions. The appellant raised the issue of the DNA results that did not match. He referred to excerpts of the proceeding stating that there were contradictions that should have been resolved in his favour. He referred the court to the cases of Eliud Ouma Agwara versus Republic ( 2016 ) eKLR, R V Timothy Mwenda Gichuru and 2 others ( 2017 ) eKLR and Kiarie and Another Versus Rep ( 1986 ) KLR 281. I will discuss the cases in my analysis.
20. He submitted that his defence was not considered. That he was not allowed to benefit from the least severe sentence pursuant to Article 25 (c) and 50 (2) (P) of the constitution. That it was un-constitutional to sentence him to life imprisonment.
21. The respondent in their submissions started by laying out the duty of a first appellant court to reevaluate and analyse the evidence on record and to draw its own independent conclusions. The well-known case of Okeno versus Republic (1972) EA 3 was cited.
22. The respondent further submitted on the ingredients of defilement being age of the victim, penetration and identification of the perpetrator. It was further submitted that negative DNA results do not necessarily absolve, the appellant. The final submission was that life imprisonment is lawful and mandatory. The respondents concluded by stating that the case had been proved beyond reasonable doubt.
ANALYSIS
23. As submitted by the respondents this is a first appeal. I am under a duty to reevaluate and assess the evidence and make my own conclusions and as I do this, take into account the fact that I did not get the opportunity and advantage of observing the demeanor of the witnesses as they testified unlike the trial court. The court of Appeal for Eastern Africa addressed this issue in Pandya versus Republic (1957) EA 336 as follows:
"on a first appeal from a conviction by a judge or magistrate sitting without a jury the appellant is entitled to have the appellate courts own considered views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witness before the judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgement appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances quite apart from manner an demeanor which may show whether a statement is credible or not which may warrant a court differing from the judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen"
24. This position was emphasized in the often quoted case of Okeno Versus Republic (1972) EA 32 when the East African Court of Appeal Stated:
"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya Versus (1957) EA 336) and to the appellate convicts own decision on the evidence. The appellate courts own decision on the evidence. The first appellant court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala Vs Republic (1957) EA 570). It is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court findings and conclusion. It must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate findings should be supported. In doing so, it should make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses see Peters Vs Sunday Post (1958) EA 424"
25. The question is whether the prosecution has proved this case to the required standard. That burden of proof was stated in the case of H.L Woolmington Versus DPP ( 1935 ) AC 462 P 481 where Viscount Sankey L.C stated:
"throughout the web of the English Criminal Law one golden thread is always to be seen, that it is duty of the prosecution to prove the prisoner’s guilty subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt, created by the evidence given either by the prosecution or the prisoner as to whether the prisoner killed the deceased with with a malicious intention, the prosecution has not made out the case and the person is entitled to an acquittal. No matter what the charge or where the trial the principle that the prosecution must prove the guilt of the person is part of the common law of England and no attempt to whittle it down can be entertained."
26. The burden of proof lies with the state. It never shifts.
27. The appellant was charged under Section 8 (1) and (2) of the Sexual Offences Act. It provides:
"(1) a person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
28. From the provisions above the prosecution has to establish three key ingredients of the offence as follows:-
i) The age of the victim
ii) The act of penetration
iii) Positive identification of the perpetrator of the offence.
29. On the question of age, I have noted the testimony by the victim's mother. She said that her daughter was born on 2.3.2018. At the alleged date of the offence this would be four years earlier. I note that no birth certificate was produced in evidence. I also note that the court received evidence by way of age assessment report. It was exhibit 7 (a). This scientific assessment corroborated what PW2 had told the trial court. A mother is a credible witness as to age.
30. I have noted and benefited from the authority cited by the respondent on this issue being Edwin Nyambogo Onsogo Versus Republic (2016) eKLR which was quoted on the case of Kivuti Versus Republic (2024) KEHC 144 12 (KLR) where it was stated:-
"the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence proffered in proof of the victims’ age, it has to be credible and reliable"
31. It is my finding and holding that the evidence by the mother taken together with the medical age assessment is credible and reliable. It is proved beyond reasonable doubt that the victim was four years old. This places her within the provisions of Section 8 (2) of the Sexual Offences Act.
32. On the issue of penetration, the complainant testified. As noted, she is four years old. She used child appropriate language, saying that accused did "tabia mbaya" and inserted his "susu" into her "susu. She was not cross examined. I find this piece of evidence simple and unembellished. It is the kind that would be given by a child of that age.
33. The minor was examined on the date of the incident. PW3 noted redness of the on her genitalia inflammation of the genetilia, a laceration at the 6.0clock position on the inner labia minora and a broken hymen. The appellant raised issue with the report by the clinical officer, PW3 and that of Dr Ombok, PW4. I have looked at both. I find no contradiction. The only difference is the time when they were done. The evidence given through PW1, Pw2, PW3, and PW4 is sufficient to prove beyond reasonable doubt that the child was penetrated as defined under Section 2 of the Sexual Offences Act.
34. On the identification of the appellant the victim referred to him as Hassan. PW2, the mother while referring to the appellant said that they had lived as neighbors for one year. In his defence, the appellant admitted that they were neighbors. That the minor knew him as they were next door neighbors. The burden of proof remains with the prosecution.
35. I have noted the assertion by the appellant that this case could be as a result of a relationship with the complainant's mother. There is no suggestion that there is a mistaken identity. The appellant was properly and positively identified as the one who inserted his penis referred by the little girl as "susu" into the victims’ vagina also called "susu"
36. Heavy weather was made of the DNA report with the appellant submitting that it exonerates him. All I need to do is point out to what PW5 the government Chemist told the trial court: -
"The sperms viability was at a maximum period of 96 hours and ideally at 48 hours. The sampling was done late"
37. In any case as the court of Appeal stated in AML V R (2012) eKLR "the fact of rape or defilement is not proved by DNA test but by way evidence
A positive DNA report would have added to the overwhelming body of evidence linking the appellant to this offence. The authority relied on by the appellant in Eliud Ouma Angwana Versus Republic (2016) eKLR is distinguishable. It refers to a case of pregnancy resulting from alleged defilement.
38. In the instant case there is no pregnancy. I find the further evidence that the little girl was found infected with sexually transmitted disease of Syphilis which the appellant had tested positive to be a further powerful scientific link to the penetration by the appellant.
39.In sum the three ingredients where established. The findings by the learned magistrate have not been shaken. They are based on application of law to the evidence and facts. The conviction on the charge of defilement is safe. The appeal against this conviction is without merit. It is hereby dismissed.
40. I have seen the argument on the unconstitutional nature of life sentence. Section 8 (2) of the Sexual offences Act No. 3 of 2006 provides:
“a person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life"
If there was any doubt as to the mandatory nature of this provision it was cleared by the Supreme Court in Republic Vs Julius Kitsao Manyeso (2025) KESC 16 (KLR) where the court held that life imprisonment under Section of the Sexual offences Act remains lawful. The appeal on sentence is, therefore, also without merit. It is hereby dismissed.
It is so ordered.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 19th June. 2026.
A. ITHUKU
JUDGE
In the presence of:
……………………………………………………………………… for the Appellant
……………………………………………………………………… for the State
……………………………………………………………………… Court Assistant
Judgment delivered through Microsoft Teams online platform.