1. The accused was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on 14 th day of November, 2021 at Kapori village in Tembelio Location of Moiben Sub-County within Uasin Gishu County the accused intentionally caused his genital organ (penis) to penetrate the genital organ (vagina) of MJ a child aged 7 years.
3. In the alternative, the appellant was charged with committing an indecent act with a child contrary to Section 11 of Sexual Offences Act No. 3 of 2006. The particulars of the alternative count are that on the 14 th day of November 2021 at Kapori Village in Tembelio Location, Molben Sub-County within uasin Gishu County, the accused intentionally touched the vagina of MJ a child aged 7 years with his penis.
The trial magistrate considered the evidence of 7 prosecution witnesses and 2 defence witnesses and found the appellant guilty of the offence contrary to Section 8 (1) as read with Section 8(2) of the Sexual offences Act No. 3 of 2006. Upon conviction, the appellant was sentenced to serve 20 years imprisonment.
4. Being aggrieved by the conviction and sentence by the trial court the appellant preferred this Appeal against the entire judgment of the court. The appeal is based on the following grounds:
a) That the trial Court erred in both law and facts by convicting and sentencing the appellant without observing that the prosecution’s evidence failed to produce a clear nexus linking the appellant to the commission of the alleged offence.
b) That the trial magistrate erred in law and fact by failing to find that the prosecution witnesses’ evidence was contradictory, inconsistent and unreliable to warrant a safe conviction.
c) That the trial magistrate erred in law and fact by basing its judgment on medical evidence that was inconclusive and unsupported by material evidence.
d) That the trial court erred in law and fact by failing to re-evaluate and analyze the evidence on record and ended up in making erroneous conclusion that the appellant was guilty of the offence of defilement.
5. PW1, the complainant, stated on 14/11/2021 at around 11.00am she was at home with Brayo, her cousin. She was watching TV in their house and Brayo was outside. Subsequently, she had people talking outside and Brayo was sent for bread and he went.
6. In the meantime, PW1 stated, the appellant entered their house. The accused, further, stated that the appellant worked at Mama Ian’s place.
7. PW1 also stated she went into her bedroom to pick a doll to play with and Bernard(appellant) entered into the bedroom, held her and led her to the boy’s room.
8. At the boy’s room, PW1 stated, the appellant removed her trouser and innerwear. The accused also, PW1 stated, removed his trouser and innerwear and did her tabia mbaya . Tabia mbaya, PW1 stated is removing his ‘dudu’ and placing it on hers. “My ‘dudu’ is here.”, the complainant stated pointing the direction of her vagina.PW1 also stated that the appellant inserted his ‘dudu’ by force into hers and she felt pain.
9. PW1, further, stated that her grandmother (PW2) discovered she was in pain, PW1 stated and asked why she was walking in difficulty. She discovered her clothes were dirty. After a few days, PW1 stated, she told her aunt what happened and she was taken to hospital the following day – 26/11/2021, first at Elgeyo Border and Moi Teaching and Referral Hospital (MTRH) She was also taken to the police.
10. On being cross-examined, PW1 stated she was defiled at 11.00am on 14/11/2021. She also stated that the appellant inserted what he urinates with into her. The appellant, PW1 further stated, completely inserted his penis into her vagina.PW1 also stated that she raised an alarm but nobody heard.
11. PW2, Paulina Kosgey is the complainant’s grandmother. On PW1 stated that on 25/11/2021 at 10.00pm she found the complainant was not sleeping well and noted her panty was dusty.
12. PW2 also noted that PW1 had difficulty in walking and took the child to Elgeyo Boarder Hospital and MTRH on 26/10/2021. She also stated that the accused escaped and she was arrested in January.
13. PW6, Dr. Irene Simiyu of MTRH saw the complainant- outpatient No. 1097917 on 26/11/2021 parts had healed hymenal tears and confirmed she was defiled. She observed that the complainant having taken 1-2 weeks, the tears were healed. The Doctor also produced the complainant’s P3 form marked P Exhibit 2.
14. PW7, No. 110952 PC Francis Macharia of Tembelio Police Station who was the investigating officer in this matter produced the complainant’s birth certificate – P Exhibit No. The birth certificate shows the minor was born on 20/7/2024 meaning she was 7 years at the time of the alleged defilement.
15. The Investigating Officer also sated the appellant disappeared after the incident herein and resurfaced on 30/1/2022.
16. In his defence the Appellant stated that the charges against him are false. He also stated that on 14/11/2021 he was at Metkei in Elgeiyo Marakwet County. He also stated he had bad relationship with Mitchell family because they lost some property which he was suspected to have stolen.
17. DW2, Kiptanui Kimelel, the appellant’s employer stated he did not know where the appellant was on 14/11/2021 and can not tell whether he committed the offence herein or not. He, however, stated the accused had good character.
18. This being a first Appeal, the Court ought to revisit the evidence afresh, evaluate it and come to it own conclusion bearing in mind the lower court had the advantage of observing the demenour of witnesses and give due allowance for this ( see Mark Oiruri Mose v Republic [2013] eKLR.)
19. Having carefully considered the evidence on record, the first issue for determination in this matter is whether the prosecution proved beyond reasonable doubt that the appellant defiled the complainant. The second issue whether the sentence meted on the appellant was proper.
20. Section 8(1) of the Sexual Offence act provides:
A person who commits an act that causes penetration with a guilty of an offence termed defilement’’
Section 2 of the Act defines penetration as
“… partial or complete insertion of the genital organs of a person into the genital organs of another . ”
Based on the above provision the 3 ingredients of defilement are:
a) Age of minority
b) Penetration
c) Identification
Age
21. The age of the complainant is this matter shown in her birth certificate (P Exhibit). The certificate shows she was born on 20/7/2014. The alleged offence herein was committed on 14/11/2021. On the said date the accused was therefore, aged 7 years old.
22. This evidence, is further, given credence by evidence that the complainant was a class 2 pupil.
Penetration
23. In her testimony, the complainant stated that on 14/11/2021 at around 11.00am she was at home with her cousin, Brayo She was watched TV in their house and Brayo was outside. The complainant, further stated, she heard people talking outside and Brayo was sent for bread and he went. Thereafter, PW1 stated, the appellant entered their house.
24. The complainant also stated she went into her bedroom to pick a doll to play with and Bernard(appellant) entered into the bedroom, held her and led her to the boy’s room.
25. Inside boys room, the complainant stated, the appellant removed her trouser and innerwear and also removed his trouser and innerwear and did her tabia mbaya. Tabia mbaya, she explained is removing his “dudu” and inserted into hers pointing in the direction of her vagina and she felt pain. The court take judicial notice that “ dudu ” is euphemism for penis.
26. The evidence of PW1 is corroborated by the evidence of PW6 a medical doctor, who confirmed that the complainant healed hymenal tears indicating she was defiled.
27. The doctor estimated the age of the tears to be 1 – 2 weeks which coincides with the time the complainant was defiled as she examined in hospital after 2 weeks.
Identification
28. It is not in dispute that the complainant and the appellant knew each other. The appellant lived and worked in the neighbourhood and the incident herein occurred on broad day light.
29. The appellant on his defense merely denied defiling the complainant.
30. It is my finding that the offence of defilement contrary to Section 8(1) are read with Section 8 (2) of the Sexual Offence Act No. 3 of the 2023.
31. Section 8(2) of the Act provides:
“A person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to life imprisonment’’
32. It is, however, noted that trial magistrate sentenced the appellant to serve 20 years. This was erroneous/ unlawful sentence on the part of the trial. This court, therefore, enhance the sentence of the appellant to life imprisonment.
33. Right of Appeal within 14 days.
Dated, signed and delivered online via MS Teams this 26 th day of June 2026.
HON. P. K. ROTICH
JUDGE
In the presence of :
Appellant in person
Ms.Kerenge for DPP
2. The particulars of the offence are that on 14 th day of November, 2021 at Kapori village in Tembelio Location of Moiben Sub-County within Uasin Gishu County the accused intentionally caused his genital organ (penis) to penetrate the genital organ (vagina) of MJ a child aged 7 years.
3. In the alternative, the appellant was charged with committing an indecent act with a child contrary to Section 11 of Sexual Offences Act No. 3 of 2006. The particulars of the alternative count are that on the 14 th day of November 2021 at Kapori Village in Tembelio Location, Molben Sub-County within uasin Gishu County, the accused intentionally touched the vagina of MJ a child aged 7 years with his penis.
The trial magistrate considered the evidence of 7 prosecution witnesses and 2 defence witnesses and found the appellant guilty of the offence contrary to Section 8 (1) as read with Section 8(2) of the Sexual offences Act No. 3 of 2006. Upon conviction, the appellant was sentenced to serve 20 years imprisonment.
4. Being aggrieved by the conviction and sentence by the trial court the appellant preferred this Appeal against the entire judgment of the court. The appeal is based on the following grounds:
a) That the trial Court erred in both law and facts by convicting and sentencing the appellant without observing that the prosecution’s evidence failed to produce a clear nexus linking the appellant to the commission of the alleged offence.
b) That the trial magistrate erred in law and fact by failing to find that the prosecution witnesses’ evidence was contradictory, inconsistent and unreliable to warrant a safe conviction.
c) That the trial magistrate erred in law and fact by basing its judgment on medical evidence that was inconclusive and unsupported by material evidence.
d) That the trial court erred in law and fact by failing to re-evaluate and analyze the evidence on record and ended up in making erroneous conclusion that the appellant was guilty of the offence of defilement.
5. PW1, the complainant, stated on 14/11/2021 at around 11.00am she was at home with Brayo, her cousin. She was watching TV in their house and Brayo was outside. Subsequently, she had people talking outside and Brayo was sent for bread and he went.
6. In the meantime, PW1 stated, the appellant entered their house. The accused, further, stated that the appellant worked at Mama Ian’s place.
7. PW1 also stated she went into her bedroom to pick a doll to play with and Bernard(appellant) entered into the bedroom, held her and led her to the boy’s room.
8. At the boy’s room, PW1 stated, the appellant removed her trouser and innerwear. The accused also, PW1 stated, removed his trouser and innerwear and did her tabia mbaya . Tabia mbaya, PW1 stated is removing his ‘dudu’ and placing it on hers. “My ‘dudu’ is here.”, the complainant stated pointing the direction of her vagina.PW1 also stated that the appellant inserted his ‘dudu’ by force into hers and she felt pain.
9. PW1, further, stated that her grandmother (PW2) discovered she was in pain, PW1 stated and asked why she was walking in difficulty. She discovered her clothes were dirty. After a few days, PW1 stated, she told her aunt what happened and she was taken to hospital the following day – 26/11/2021, first at Elgeyo Border and Moi Teaching and Referral Hospital (MTRH) She was also taken to the police.
10. On being cross-examined, PW1 stated she was defiled at 11.00am on 14/11/2021. She also stated that the appellant inserted what he urinates with into her. The appellant, PW1 further stated, completely inserted his penis into her vagina.PW1 also stated that she raised an alarm but nobody heard.
11. PW2, Paulina Kosgey is the complainant’s grandmother. On PW1 stated that on 25/11/2021 at 10.00pm she found the complainant was not sleeping well and noted her panty was dusty.
12. PW2 also noted that PW1 had difficulty in walking and took the child to Elgeyo Boarder Hospital and MTRH on 26/10/2021. She also stated that the accused escaped and she was arrested in January.
13. PW6, Dr. Irene Simiyu of MTRH saw the complainant- outpatient No. 1097917 on 26/11/2021 parts had healed hymenal tears and confirmed she was defiled. She observed that the complainant having taken 1-2 weeks, the tears were healed. The Doctor also produced the complainant’s P3 form marked P Exhibit 2.
14. PW7, No. 110952 PC Francis Macharia of Tembelio Police Station who was the investigating officer in this matter produced the complainant’s birth certificate – P Exhibit No. The birth certificate shows the minor was born on 20/7/2024 meaning she was 7 years at the time of the alleged defilement.
15. The Investigating Officer also sated the appellant disappeared after the incident herein and resurfaced on 30/1/2022.
16. In his defence the Appellant stated that the charges against him are false. He also stated that on 14/11/2021 he was at Metkei in Elgeiyo Marakwet County. He also stated he had bad relationship with Mitchell family because they lost some property which he was suspected to have stolen.
17. DW2, Kiptanui Kimelel, the appellant’s employer stated he did not know where the appellant was on 14/11/2021 and can not tell whether he committed the offence herein or not. He, however, stated the accused had good character.
18. This being a first Appeal, the Court ought to revisit the evidence afresh, evaluate it and come to it own conclusion bearing in mind the lower court had the advantage of observing the demenour of witnesses and give due allowance for this ( see Mark Oiruri Mose v Republic [2013] eKLR.)
19. Having carefully considered the evidence on record, the first issue for determination in this matter is whether the prosecution proved beyond reasonable doubt that the appellant defiled the complainant. The second issue whether the sentence meted on the appellant was proper.
20. Section 8(1) of the Sexual Offence act provides:
A person who commits an act that causes penetration with a guilty of an offence termed defilement’’
Section 2 of the Act defines penetration as
“… partial or complete insertion of the genital organs of a person into the genital organs of another . ”
Based on the above provision the 3 ingredients of defilement are:
a) Age of minority
b) Penetration
c) Identification
Age
21. The age of the complainant is this matter shown in her birth certificate (P Exhibit). The certificate shows she was born on 20/7/2014. The alleged offence herein was committed on 14/11/2021. On the said date the accused was therefore, aged 7 years old.
22. This evidence, is further, given credence by evidence that the complainant was a class 2 pupil.
Penetration
23. In her testimony, the complainant stated that on 14/11/2021 at around 11.00am she was at home with her cousin, Brayo She was watched TV in their house and Brayo was outside. The complainant, further stated, she heard people talking outside and Brayo was sent for bread and he went. Thereafter, PW1 stated, the appellant entered their house.
24. The complainant also stated she went into her bedroom to pick a doll to play with and Bernard(appellant) entered into the bedroom, held her and led her to the boy’s room.
25. Inside boys room, the complainant stated, the appellant removed her trouser and innerwear and also removed his trouser and innerwear and did her tabia mbaya. Tabia mbaya, she explained is removing his “dudu” and inserted into hers pointing in the direction of her vagina and she felt pain. The court take judicial notice that “ dudu ” is euphemism for penis.
26. The evidence of PW1 is corroborated by the evidence of PW6 a medical doctor, who confirmed that the complainant healed hymenal tears indicating she was defiled.
27. The doctor estimated the age of the tears to be 1 – 2 weeks which coincides with the time the complainant was defiled as she examined in hospital after 2 weeks.
Identification
28. It is not in dispute that the complainant and the appellant knew each other. The appellant lived and worked in the neighbourhood and the incident herein occurred on broad day light.
29. The appellant on his defense merely denied defiling the complainant.
30. It is my finding that the offence of defilement contrary to Section 8(1) are read with Section 8 (2) of the Sexual Offence Act No. 3 of the 2023.
31. Section 8(2) of the Act provides:
“A person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to life imprisonment’’
32. It is, however, noted that trial magistrate sentenced the appellant to serve 20 years. This was erroneous/ unlawful sentence on the part of the trial. This court, therefore, enhance the sentence of the appellant to life imprisonment.
33. Right of Appeal within 14 days.
Dated, signed and delivered online via MS Teams this 26 th day of June 2026.
HON. P. K. ROTICH
JUDGE
In the presence of :
Appellant in person
Ms.Kerenge for DPP