The Appellant Bernard Onyango was charged with the offence of Defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
Particulars of the offence are that on the 16th November,2020 at about 1100 hours at Mariwa village,Waundha sub-location,South Sakwa Location,Awendo Sub- county, in Migori County unlawfully and intentionally caused his penis to penetrate the vagina of E.J.A a child aged 5 years.
In the alternative the Appellant was also charged with the offence of committing an indecent Act with a child Contrary to section 11(1) of the Sexual Offences Act no.3 of 2006.
Based on the evidence of six (6) Prosecution witnesses and the Appellant’s sworn testimony the trial Magistrate convicted the Appellant and sentenced him to serve 30 years imprisonment.
The Appellant was aggrieved by the conviction and sentence. He lodged an appeal through a petition of appeal dated 09/10/2023 on the following grounds:
1. That the offence was not proved
2. That the learned trial magistrate disregarded all the open discrepancies in the evidence of the complainant thereby occasioning an injustice on the accused part
3. That the trial court misdirected herself when he failed to critically analyse the entire evidence and realixza that the inconsistencies could not sustain a convictio.
4. That the sentence meted here is illegal in its entirety
The appellants further prays that the appeal be allowed, conviction quashed and sentence set aside.
Prosecution’s Case
The Prosecution’s case was that the Appellant defiled the complainant PW 1 who was a minor of two years old at the time of the offence. The Appellant had gone to charge his phone at Mama Ida’s house where he found the Complainant and he defiled her. She was alone in the house; the said mama Idah had gone to wash her clothes.
PW1 stated that the Appellant took a stick that he uses to urinate with and he inserted the same into her vagina. She further stated that she had a bathe at home before her mother took her to the hospital for treatment and examination.
PW2 stated that on the material day of the incident she was at the home of the minor where she had gone to make her hair by E.J.A minor’s mother at around 1200hrs when she suddenly saw the minor approaching the gate accompanied by two children. She was crying and upon close examination she realized that she was bleeding in her private parts. She rushed her to Mariwa Health Centre for treatment and examination. The minors mother later joined her.
PW3 Colleta Adhiambo the minor’s mother stated that she knew the accused person as a neighbour and that on the 16/11/2020 at 1100hrs she had gone to the clinic and had left behind her children including the minor and that when she returned, at around 1200 hours she was informed that her child had been injured and had been rushed to Mariwa Health Centre by Pw2.
PW4 a Clinical Officer at Migori County Referral Hospital and formerly of Mariwa Health Centre said he examined the Complainant and filled a P3 form on the 17th November 2020. He testified that on examination of the minor she found multiple bruises on the labia majora, a freshly broken hymen and a bleeding hymen. PW4 produced the P3 and PRC forms as well as treatment notes as exhibits
PW5 the Investigating Officer testified that on the 17/11/2020 at 2pm ,a child was brought to the station by her mother on allegations of having been defiled by the Appellant namely Bernard Onyango alias Raila.The investigating Officer said that the child had already been taken for treatment at Mariwa Health Center and so she was issued with a P3 form.
At the close of prosecution case the Appellant was placed on defense and he gave sworn evidence with no witness.
The accused person testified that he was 20 years old and that on the 22/11/ 2026 he was at his grandmother’s house from school when some people came claiming he had spoiled some child’s life.He was then arrested at night and taken into the cell.He claimed that he learned about the incident 3 days later when he was in the cells.
The court gave directions for hearing of appeal by way of written submissions.
The Appellant’s submissions are undated and are to the effect that the prosecution witnesses failed to prove its case beyond reasonable doubt as required by law. There was no direct evidence linking the Appellant to the commission of the said offence. the alleged offence was not witnessed by any other independent witness to corroborate the evidence of PWl.
That apart from the evidence of PW1 which was not corroborated and which should be treated with utmost care, the prosecution did not tender any independent evidence to corroborate PW1's testimony by linking the Appellant to the offence in question. The evidence of all the prosecution witnesses should not be believed for it was mere hearsay which cannot be admitted in evidence.
The Appellant submitted that Section 8(1) of the Sexual Offences Act defines the offence of defilement as follows:-
“Any person who commits an act which courses penetration with a child is guilty of an offence termed as defilement”
That an offence of defilement therefore, is established against the Appellant when the prosecution have proved the töllowing;
(a) Age of the victim
(b) Identification/recognition of the offender, and
(c) Penetration
It was submitted that it is common ground that the age of the victim is an indispensable ingredient of the offence of defilement and forms a vital part of the charge because the prescribed sentence under the sexual offences Act is dependent on the age of the victim. That it is desirable for the prosecution to prove the age of the child victim.
The Appellant cited the holding in the case of KAINGA ELIAS KASONO VS REPUBLIC (2010) KLR, where the Court of Appeal sitting at Malindi held as follows:-
"age of the victim of the sexual assault under the sexual offences Act is a critical component, it forms part of the charge which must be proved in the same way as penetration in cases of rape and defilement.”
It was submitted that it is essential that the same be proved by credible evidence tor the sentence to be imposed upon conviction will be dependent on the age of the victim.
The Appellant submitted that the certificate of birth was not produced in court. The Appellant also cited the holding in FRANCIS ONAMU VS UGANDA, where the Court of Appeal held as follows;
"in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only who would professionally determine the age of the victim. In the case of any other evidence apart from medical evidence age may also be proved by a birth certificate, the victim's parents or guardian and by observation and common sense.”
It was submitted that in this case, PW1 testified that she is 5 years old. Her mother, PW3 did not indicate or tell the court, the date, month or year PW1 was born. She only stated that she did not have birth certificate of Elizabeth as she was yet to process the same. Vide page 8 lines 6-7. PW4 stated that the child was 6 years old. Vide page 14 line 11. PW5 the Investigation Officer stated that the child was 4 years old. Vide page 16 line 16. Age assessment indicate 5 years old. PRC form MFI-I indicates date of birth is 06/2020 no day or date indicated. Vide page 34. This means PW1 was 5 months during the time of the offence.
It was the Appellant’s contention that prosecution failed to prove the age of the complainant. There was no certificate of birth produced in court to enable the court ascertain the exact age of the complainant.
The Appellant also relied on the case of STEPHEN OUMA OPIYO VS REPUBLIC CRIMINAL CASE NO. 46 OF 2009 at Kisumu High Court in which JUSTICE J. R. KARANJA held that:-
"the age of the complainant was according to her mother 16 years. There was nothing cogent to prove the fact and /or that the complainant was born on 22nd January 19193. There was no birth certificate produced in court. The only document was baptismal card from a church. This was not sufficient evidence to prove age and as to prove age and as the appellant counted, such card may be obtained by all and sundry.”
The Appellant argued that in absence of a birth certificate, the prosecution should have simply presented the complainant to a duly qualified medical doctor for purpose of age assessment. The charge sheet indicates that the complainant was aged 14 years and so did the Clinical Officer (pw5) who however relied on information given to him by police. It could as well be that the.complainant was aged eighteen years or above at the time of the offence.
In absence of proof that the complainant was below eighteen at the material time, the Appellant's conviction by the learned trial magistrate was not safe whether the offénce was attempted defilement or defilement. ...... ....the Appellant is set at liberty forth worth unless otherwise lawfully held"
It was also submitted that the prosecution purported to produce age assessment through the Investigation Officer PW5 No. 115506 PC Caroline Kemunto. The maker of the said age assessment report was never called by the prosecution to shed light on the scientific method that was used to ascertain the age of the victim. There was no basis or legal justification in imposing 30 years imprisonment against the Appellant without first ascertaining the age of the complainant.
On the issue of age, the Appellant was guided by the decision in BUNGOMA HIGH COURT CRIMINAL APPEAL NO. 89 OF 2016, KELVIN KIPROTICH AMOS alias ROTOCH VS REPUBLIC, delivered on 30th March 2017 in which Hon. ladyship Justice Aroni dealt with the issue of age extensively by taking into account a wide range of information including medical opinion and scientific method in determining the age of a victim in which she held inter alia;
"In this case the age of the appellant in his p3 form was given as 19. He had no birth certificate then, the issue is how the police arrived at this age, and yet no age assessment was done.
Secondly, even where the age assessment of the victim was done, it was done by a clinical officer, and casually I must observe, as there was no scientific method indicated of how she arrived at the same, or whether she was qualified in the dental discipline or pediatric science or even she arrived at the conclusion"
On the issue of penetration, the Appellant submitted that the same was not proved as the detail of the P3 form, PRC form and treatment notes do not corroborate and indicates no penetration.
The Appellant submitted that part 'A' of the PRC form on page 34 indicates that date and time of examination was 16/11/2020 at 3.00. P3 form indicates the complainant was taken to hospital on 17th November 2020 vide page 35.
PWl when cross-examined by Mr. Oyoo advocate, she stated that her mother washed her before they went to the hospital. Vide page 9 line 30.
Pw4 OTIENO CALEB OKEYO, the Clinical Officer stated that PWI was seen with history of assault on 16th November 2020. He did not indicate or mention date or time the complainant was examined. vide page 13 line 17. On which date was the complainant taken to hospital or examined?
PW4 stated that on examination he made the following observations:-
-multiple bruises in labia majora
-freshly broken hymen, bruises on the inner folding with virginal bleeding -hymen was freshly broken showing signs of penetration. He also observed fresh blood dots on the vulva and partial area. That upon taking laboratory tests, several red blood cells seen, several R.B.C cells seen from high vaginal swab (blood in the inner part of vigina) with
Epithelial cells (sign of friction)
On urineanalysisblood was seen.
HIV was negative
Syphilis was also negative
Hepatitis B was also negative. Vide page 13 lines 19-32
The Appellant questioned how the observations by the Clinical Officer was possible if the complainant’s mother washed her before taking her to the hospital.
PW I in her testimony stated that on the date of the incident, the Appellant had gone to charge a phone at mama Ida. Mama Ida had gone to wash clothes. Esther had gone to collect flowers, how was she taken home by Esther? How was she found at mama Ida? Was she working there? Does she have any relationship with mama Ida or Esther? Why was mama Ida, Esther, and mama Gift not called in court to testify? If Esther was not around when the offence was committed, how did she take PWl to her home?
PWl further stated that, she met her mother at home and again that she met her mother at mama Gift. The Appellant questioned whether the Complainant’s mother was at home or at mama Gift? He questioned the credibility of PW1's evidence.
When cross-examined by Mr. Oyoo advocate, PWl stated that my mother washed me before we went to hospital. She washed me at home. When Raila came to charge the phone, I was with Esther, Ida and Nyakisumu. My mother told me to go and talk well in court. We had discussed the matter in court. Vide page 9 lines 30-32.
Pw2 stated that, PW1 (Elizabeth) Joyce Anyango is daughter to her mother-in-law. She recalls on 16th November 2020, she was at Elizabeth's home. She had gone to have her hair done by mama Elizabeth. She went there at 12 noon. She did not find her. She found her co-wife. She said saw Elizabeth coming with two children from the gate and Elizabeth was crying. She tried to enquire from her what had happened but she kept mum. That she examined her private parts and rushed to her Mariwa health centre. Her mother came and found them in hospital and she handed the child to her. She said the child did not talk to her about what had happened. Vide page 7 lines 14-20. Upon cross-examined by Mr. Oyoo advocate, PW2 stated that the child did not tell her who defiled her. Vide page 7 line 23.
According to PW2's evidence, where was Elizabeth (pwl) from? Who were these two children Elizabeth (pwl ) was with? From this incident, where were the 2 children or how were they connected with this otfence? Were they called in court as witnesses? Why did PWl not tell PW2 what had happened to her? Between PW2 and PW1's mother, who was the first person to realize that there was something wrong with PW1? Between PW1's mother and PW2, who took PWl to hospital? Why PW2 and PW1 decided to cheat the court? Were their evidence believable? Was the alleged offence committed?
The Appellant submitted that the answer to the above questions should benefit him as there are grave gaps on the prosecution case and the conviction should be quashed and sentence set aside.
PW3 in her evidence in chief stated that on the day of the incident, she was at a clinic at Mariwa. She said that at 1 1.00, she left her children at home. She came back at 12 noon. She was told her child was injured and has been rushed to Mariwa. She was told by co-wife. Vide page 7 lines 30-33. Pw2 went to pw3 at 12 noon. Pw3 came back home at 12 noon. Had they communicated to meet at the same time? If PW3 was told that her child had been injured and had rushed to Mariwa by PW2, who was these person that pwl met at home and met at mama Gift? Pwl upon cross-examined stated that my mother washed me before we went to the hospital. She washed me at our home. Vide page9 line 30. How many times or how many people took pwl to hospital? After washing pwl, why did she not take pwl to hospital so that she was taken by mama Gift? Between mama Gift and Caroline (pw2), who took pwl to hospital? Was pw3 's cowife called in court as a witness? why, if she was at pw3's home.
Upon cross-examination by Mr. Oyoo advocate PW3 stated that she did not know where the incident occurred.
She said that the incident occurred at her mother-in-law's home known as Israel Odingo. Vide page 8 lines 1516. The Appellant questioned whether PW3’s mother in-law was Israel Odingo or mama Ida? He also questioned whether PW3’s mother in-law was called as a witness to clear the doubts? Defilement occurred in the main house. He also questioned whether Nyakisumu, Ida, and Christabel were in court to shed light on what had happened on that day or what they had seen?
The Appellant also claimed that there occurred material contradictions in evidence in chief and cross-examination which was a great discrepancy that weakened and destroyed the inference of guilt as a result the prosecution case in this regard is plunged by inconsistencies and contradicting evidence which should have been disregarded in totality for a safe outcome of the charge before the appellant herein. He submitted that PW I did not mention or indicate in her evidence time, date, month or year of the incident in her evidence in chief. That PW2, PW3, PW4 and PW5 gave different times when the incident allegedly took place and the time when the complainant was taken to hospital. The Appellant urged the court to give him a benefit of doubt from these loopholes of the prosecution by being set at liberty, quashing the conviction, setting aside the sentence, or ordering retrial.
The Appellant also submitted that the sentence meted out on him is excessive, amounting to unfair trial taking into account that he is a first offender. He urged the court to set aside the 30 years imprisonment and in its place pass a more lenient sentence.
The Appellant relied on the holding in NELSON VS REPUBLIC (1970) E.A 599 where it was held as follows:-
"The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in JAMES VS REX (1950) 18 EACA 147, it is evident that the judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion namely, that the sentence is manifestly excessive in view ofthe circumstances at the case of R. VS SHERSHOWSKY (1912) CCA 28 TLR 364.”
The Appellant further submitted that it is trite that the onus is on the prosecution to displace defence of alibi after the defence raises it at the trial as was held by court of Appeal in VICTOR MWAENDWA MULINGE VS REP.(2014) EKLR.
"it is trite law that burden of proving falsity, if at all, of an accuseds defence of alibi lies on the prosecution" in the case of ADEDEJI VS THE STATE (1971) ALL, NLR 75, it was held that;
Failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of tribunal and lead to the quashing of a conviction imposed"
The Appellant prayed that may this appeal succeed to its entirety, conviction quashed, sentence set aside or substituted and he be set at liberty or retrial ordered.
The Respondent Counsel’s submissions are dated 4th July 2025 and are to the effect that given the minor Complainant’s admission in cross examination that she had been coached and induced on what to tell the court, and that her mother promised to buy for her a dress if she spoke well in court the, they deferred the matter for court’s good judgment.
The Respondent Counsel also referred the court to provisions of Section 191 of the Children Act which provides for the manner in which children in conflict with the law should be treated in consideration that the Appellant was a minor at the time of the alleged incident.
The Respondent urged the court to uphold the conviction subject to re-assessment of credibility of evidence and also set aside the sentence and substitute it with a lawful sentence that complies with the Children Act.
ANALYSIS AND DETERMINATION
As a first appellate court, the duty of this court is to re-evaluate the entire evidence afresh, draw its own conclusions, and bear in mind that it neither saw nor heard the witnesses testify. This principles was set in the case of Okeno v Republic [1972] EA 32. Having reconsidered the record of the trial court, the grounds of appeal and the rival submissions the issues for determination are:-
i. Proof of the Complainant’s age;
ii. Proof of penetration ;
iii. Identity of the perpetrator;
iv. Whether the prosecution evidence was riddled with inconsistencies and discrepancies
v. Whether the sentence was harsh and excessive in consideration the Appellant was a minor at the time the offence was committed and considering that he was also a first offender.
On whether age of the Complainant’s age was proved, it is an essential ingredient of the offence of defilement because it determines both the offence and sentence. The evidence on age was inconsistent:the charge sheet stated the complainant was 5 years old; PW1 said she was 5 years old; PW4 referred to her as 6 years old; PW5 stated she was 4 years old and the PRC form apparently contained an erroneous date of birth of June 2020, which would have made the child only a few months old at the time of the offence.
Age may be proved by parental testimony or medical evidence or even observation by the Trial Magistrate. There are inconsistencies in the present case but there is no evidence to show that the Complainant age was outside the bracket of a child of tender years. That inconsistency however, standing alone, can not defeat the prosecution case because all evidence pointed to the complainant being a child of tender years.
On whether the prosecution proved penetration, medical evidence strongly supported penetration. The Clinical Officer found multiple bruises on the labia majora; fresh vaginal bleeding; a freshly broken hymen and blood cells and epithelial cells suggestive of friction.
Those findings were consistent with recent genital trauma and penetration. The fact that the child had been washed before examination would not necessarily erase all signs of injury, particularly where the injuries included bruising and a freshly torn hymen. Penetration was therefore proved.
On whether identification of the perpetrator was proved, this is the critical issue. The conviction rested almost entirely on the evidence of PW1, a child of tender years. Ordinarily, Section 124 of the Evidence Act permits a court to convict on the sole evidence of a child victim if the court records reasons for believing the child. However, in this case, several matters create doubt
PW1 admitted during cross-examination that her mother had instructed her what to say in court and promised to buy her a dress if she “talked well” in court. The Respondent itself conceded concern regarding the child’s credibility and invited the court to reassess the evidence. Important witnesses, namely Mama Ida, Esther, Nyakisumu and the persons allegedly present before and after the incident, were not called to testify and there were inconsistencies regarding: where the child was found; who took her to hospital; who first discovered the injury and the exact circumstances surrounding the offence. PW2 did not state that the child named the Appellant immediately after the incident. There was no forensic evidence linking the Appellant to the offence. The Appellant was himself a minor aged about 17 years at the time of the incident according to the defence, and the Respondent raised issues regarding treatment under the Children Act.
While minor inconsistencies do not necessarily vitiate a conviction, this court finds that these contradictions directly affect the identity of the offender as there was eye witness; no forensic evidence linking the appellant; no confession and no corroborative evidence connecting the Appellant to the offence.
Given the admission by PW1 that she had been coached, this court is reluctant to sustain a conviction based solely on her testimony.
On whether the sentence was harsh and excessive in the circumstances, the record indicates that the Appellant was 20 years old when giving evidence, but the Respondent submitted that he was a minor aged 17 years old at the time of the offence and referred to the Children Act. That being the case, a sentence of 30 years imprisonment is unlawful because sentencing should have complied with the provisions relating to children in conflict with the law.. That sentence offends the provisions of Section 191 of the Children Act 2022 as to treatment of children found guilty for being in conflict with the law.
The upshot of the above analysis is that the prosecution proved age of the Complainant and also proved that she was defiled but there is doubt as to the identity of the perpetrator. The complainant’s admission of coaching clouded the reliability and credibility of her evidence and Respondent concede that the conviction was therefore not safe. The prosecution also failed to call essential witnesses to support its contradictory evidence that lacked corroboration. These factors make this court find that the doubt raised is resolved in favour of the Appellant.
Accordingly, this court finds that the appeal has merit and is allowed. The conviction is quashed and the sentence of 30 years imprisonment is set aside. The Appellant is set at liberty unless otherwise lawfully held. Right of appeal 14 days explained.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 20TH DAY OF AUGUST, 2026
Particulars of the offence are that on the 16th November,2020 at about 1100 hours at Mariwa village,Waundha sub-location,South Sakwa Location,Awendo Sub- county, in Migori County unlawfully and intentionally caused his penis to penetrate the vagina of E.J.A a child aged 5 years.
In the alternative the Appellant was also charged with the offence of committing an indecent Act with a child Contrary to section 11(1) of the Sexual Offences Act no.3 of 2006.
Based on the evidence of six (6) Prosecution witnesses and the Appellant’s sworn testimony the trial Magistrate convicted the Appellant and sentenced him to serve 30 years imprisonment.
The Appellant was aggrieved by the conviction and sentence. He lodged an appeal through a petition of appeal dated 09/10/2023 on the following grounds:
1. That the offence was not proved
2. That the learned trial magistrate disregarded all the open discrepancies in the evidence of the complainant thereby occasioning an injustice on the accused part
3. That the trial court misdirected herself when he failed to critically analyse the entire evidence and realixza that the inconsistencies could not sustain a convictio.
4. That the sentence meted here is illegal in its entirety
The appellants further prays that the appeal be allowed, conviction quashed and sentence set aside.
Prosecution’s Case
The Prosecution’s case was that the Appellant defiled the complainant PW 1 who was a minor of two years old at the time of the offence. The Appellant had gone to charge his phone at Mama Ida’s house where he found the Complainant and he defiled her. She was alone in the house; the said mama Idah had gone to wash her clothes.
PW1 stated that the Appellant took a stick that he uses to urinate with and he inserted the same into her vagina. She further stated that she had a bathe at home before her mother took her to the hospital for treatment and examination.
PW2 stated that on the material day of the incident she was at the home of the minor where she had gone to make her hair by E.J.A minor’s mother at around 1200hrs when she suddenly saw the minor approaching the gate accompanied by two children. She was crying and upon close examination she realized that she was bleeding in her private parts. She rushed her to Mariwa Health Centre for treatment and examination. The minors mother later joined her.
PW3 Colleta Adhiambo the minor’s mother stated that she knew the accused person as a neighbour and that on the 16/11/2020 at 1100hrs she had gone to the clinic and had left behind her children including the minor and that when she returned, at around 1200 hours she was informed that her child had been injured and had been rushed to Mariwa Health Centre by Pw2.
PW4 a Clinical Officer at Migori County Referral Hospital and formerly of Mariwa Health Centre said he examined the Complainant and filled a P3 form on the 17th November 2020. He testified that on examination of the minor she found multiple bruises on the labia majora, a freshly broken hymen and a bleeding hymen. PW4 produced the P3 and PRC forms as well as treatment notes as exhibits
PW5 the Investigating Officer testified that on the 17/11/2020 at 2pm ,a child was brought to the station by her mother on allegations of having been defiled by the Appellant namely Bernard Onyango alias Raila.The investigating Officer said that the child had already been taken for treatment at Mariwa Health Center and so she was issued with a P3 form.
At the close of prosecution case the Appellant was placed on defense and he gave sworn evidence with no witness.
The accused person testified that he was 20 years old and that on the 22/11/ 2026 he was at his grandmother’s house from school when some people came claiming he had spoiled some child’s life.He was then arrested at night and taken into the cell.He claimed that he learned about the incident 3 days later when he was in the cells.
The court gave directions for hearing of appeal by way of written submissions.
The Appellant’s submissions are undated and are to the effect that the prosecution witnesses failed to prove its case beyond reasonable doubt as required by law. There was no direct evidence linking the Appellant to the commission of the said offence. the alleged offence was not witnessed by any other independent witness to corroborate the evidence of PWl.
That apart from the evidence of PW1 which was not corroborated and which should be treated with utmost care, the prosecution did not tender any independent evidence to corroborate PW1's testimony by linking the Appellant to the offence in question. The evidence of all the prosecution witnesses should not be believed for it was mere hearsay which cannot be admitted in evidence.
The Appellant submitted that Section 8(1) of the Sexual Offences Act defines the offence of defilement as follows:-
“Any person who commits an act which courses penetration with a child is guilty of an offence termed as defilement”
That an offence of defilement therefore, is established against the Appellant when the prosecution have proved the töllowing;
(a) Age of the victim
(b) Identification/recognition of the offender, and
(c) Penetration
It was submitted that it is common ground that the age of the victim is an indispensable ingredient of the offence of defilement and forms a vital part of the charge because the prescribed sentence under the sexual offences Act is dependent on the age of the victim. That it is desirable for the prosecution to prove the age of the child victim.
The Appellant cited the holding in the case of KAINGA ELIAS KASONO VS REPUBLIC (2010) KLR, where the Court of Appeal sitting at Malindi held as follows:-
"age of the victim of the sexual assault under the sexual offences Act is a critical component, it forms part of the charge which must be proved in the same way as penetration in cases of rape and defilement.”
It was submitted that it is essential that the same be proved by credible evidence tor the sentence to be imposed upon conviction will be dependent on the age of the victim.
The Appellant submitted that the certificate of birth was not produced in court. The Appellant also cited the holding in FRANCIS ONAMU VS UGANDA, where the Court of Appeal held as follows;
"in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only who would professionally determine the age of the victim. In the case of any other evidence apart from medical evidence age may also be proved by a birth certificate, the victim's parents or guardian and by observation and common sense.”
It was submitted that in this case, PW1 testified that she is 5 years old. Her mother, PW3 did not indicate or tell the court, the date, month or year PW1 was born. She only stated that she did not have birth certificate of Elizabeth as she was yet to process the same. Vide page 8 lines 6-7. PW4 stated that the child was 6 years old. Vide page 14 line 11. PW5 the Investigation Officer stated that the child was 4 years old. Vide page 16 line 16. Age assessment indicate 5 years old. PRC form MFI-I indicates date of birth is 06/2020 no day or date indicated. Vide page 34. This means PW1 was 5 months during the time of the offence.
It was the Appellant’s contention that prosecution failed to prove the age of the complainant. There was no certificate of birth produced in court to enable the court ascertain the exact age of the complainant.
The Appellant also relied on the case of STEPHEN OUMA OPIYO VS REPUBLIC CRIMINAL CASE NO. 46 OF 2009 at Kisumu High Court in which JUSTICE J. R. KARANJA held that:-
"the age of the complainant was according to her mother 16 years. There was nothing cogent to prove the fact and /or that the complainant was born on 22nd January 19193. There was no birth certificate produced in court. The only document was baptismal card from a church. This was not sufficient evidence to prove age and as to prove age and as the appellant counted, such card may be obtained by all and sundry.”
The Appellant argued that in absence of a birth certificate, the prosecution should have simply presented the complainant to a duly qualified medical doctor for purpose of age assessment. The charge sheet indicates that the complainant was aged 14 years and so did the Clinical Officer (pw5) who however relied on information given to him by police. It could as well be that the.complainant was aged eighteen years or above at the time of the offence.
In absence of proof that the complainant was below eighteen at the material time, the Appellant's conviction by the learned trial magistrate was not safe whether the offénce was attempted defilement or defilement. ...... ....the Appellant is set at liberty forth worth unless otherwise lawfully held"
It was also submitted that the prosecution purported to produce age assessment through the Investigation Officer PW5 No. 115506 PC Caroline Kemunto. The maker of the said age assessment report was never called by the prosecution to shed light on the scientific method that was used to ascertain the age of the victim. There was no basis or legal justification in imposing 30 years imprisonment against the Appellant without first ascertaining the age of the complainant.
On the issue of age, the Appellant was guided by the decision in BUNGOMA HIGH COURT CRIMINAL APPEAL NO. 89 OF 2016, KELVIN KIPROTICH AMOS alias ROTOCH VS REPUBLIC, delivered on 30th March 2017 in which Hon. ladyship Justice Aroni dealt with the issue of age extensively by taking into account a wide range of information including medical opinion and scientific method in determining the age of a victim in which she held inter alia;
"In this case the age of the appellant in his p3 form was given as 19. He had no birth certificate then, the issue is how the police arrived at this age, and yet no age assessment was done.
Secondly, even where the age assessment of the victim was done, it was done by a clinical officer, and casually I must observe, as there was no scientific method indicated of how she arrived at the same, or whether she was qualified in the dental discipline or pediatric science or even she arrived at the conclusion"
On the issue of penetration, the Appellant submitted that the same was not proved as the detail of the P3 form, PRC form and treatment notes do not corroborate and indicates no penetration.
The Appellant submitted that part 'A' of the PRC form on page 34 indicates that date and time of examination was 16/11/2020 at 3.00. P3 form indicates the complainant was taken to hospital on 17th November 2020 vide page 35.
PWl when cross-examined by Mr. Oyoo advocate, she stated that her mother washed her before they went to the hospital. Vide page 9 line 30.
Pw4 OTIENO CALEB OKEYO, the Clinical Officer stated that PWI was seen with history of assault on 16th November 2020. He did not indicate or mention date or time the complainant was examined. vide page 13 line 17. On which date was the complainant taken to hospital or examined?
PW4 stated that on examination he made the following observations:-
-multiple bruises in labia majora
-freshly broken hymen, bruises on the inner folding with virginal bleeding -hymen was freshly broken showing signs of penetration. He also observed fresh blood dots on the vulva and partial area. That upon taking laboratory tests, several red blood cells seen, several R.B.C cells seen from high vaginal swab (blood in the inner part of vigina) with
Epithelial cells (sign of friction)
On urineanalysisblood was seen.
HIV was negative
Syphilis was also negative
Hepatitis B was also negative. Vide page 13 lines 19-32
The Appellant questioned how the observations by the Clinical Officer was possible if the complainant’s mother washed her before taking her to the hospital.
PW I in her testimony stated that on the date of the incident, the Appellant had gone to charge a phone at mama Ida. Mama Ida had gone to wash clothes. Esther had gone to collect flowers, how was she taken home by Esther? How was she found at mama Ida? Was she working there? Does she have any relationship with mama Ida or Esther? Why was mama Ida, Esther, and mama Gift not called in court to testify? If Esther was not around when the offence was committed, how did she take PWl to her home?
PWl further stated that, she met her mother at home and again that she met her mother at mama Gift. The Appellant questioned whether the Complainant’s mother was at home or at mama Gift? He questioned the credibility of PW1's evidence.
When cross-examined by Mr. Oyoo advocate, PWl stated that my mother washed me before we went to hospital. She washed me at home. When Raila came to charge the phone, I was with Esther, Ida and Nyakisumu. My mother told me to go and talk well in court. We had discussed the matter in court. Vide page 9 lines 30-32.
Pw2 stated that, PW1 (Elizabeth) Joyce Anyango is daughter to her mother-in-law. She recalls on 16th November 2020, she was at Elizabeth's home. She had gone to have her hair done by mama Elizabeth. She went there at 12 noon. She did not find her. She found her co-wife. She said saw Elizabeth coming with two children from the gate and Elizabeth was crying. She tried to enquire from her what had happened but she kept mum. That she examined her private parts and rushed to her Mariwa health centre. Her mother came and found them in hospital and she handed the child to her. She said the child did not talk to her about what had happened. Vide page 7 lines 14-20. Upon cross-examined by Mr. Oyoo advocate, PW2 stated that the child did not tell her who defiled her. Vide page 7 line 23.
According to PW2's evidence, where was Elizabeth (pwl) from? Who were these two children Elizabeth (pwl ) was with? From this incident, where were the 2 children or how were they connected with this otfence? Were they called in court as witnesses? Why did PWl not tell PW2 what had happened to her? Between PW2 and PW1's mother, who was the first person to realize that there was something wrong with PW1? Between PW1's mother and PW2, who took PWl to hospital? Why PW2 and PW1 decided to cheat the court? Were their evidence believable? Was the alleged offence committed?
The Appellant submitted that the answer to the above questions should benefit him as there are grave gaps on the prosecution case and the conviction should be quashed and sentence set aside.
PW3 in her evidence in chief stated that on the day of the incident, she was at a clinic at Mariwa. She said that at 1 1.00, she left her children at home. She came back at 12 noon. She was told her child was injured and has been rushed to Mariwa. She was told by co-wife. Vide page 7 lines 30-33. Pw2 went to pw3 at 12 noon. Pw3 came back home at 12 noon. Had they communicated to meet at the same time? If PW3 was told that her child had been injured and had rushed to Mariwa by PW2, who was these person that pwl met at home and met at mama Gift? Pwl upon cross-examined stated that my mother washed me before we went to the hospital. She washed me at our home. Vide page9 line 30. How many times or how many people took pwl to hospital? After washing pwl, why did she not take pwl to hospital so that she was taken by mama Gift? Between mama Gift and Caroline (pw2), who took pwl to hospital? Was pw3 's cowife called in court as a witness? why, if she was at pw3's home.
Upon cross-examination by Mr. Oyoo advocate PW3 stated that she did not know where the incident occurred.
She said that the incident occurred at her mother-in-law's home known as Israel Odingo. Vide page 8 lines 1516. The Appellant questioned whether PW3’s mother in-law was Israel Odingo or mama Ida? He also questioned whether PW3’s mother in-law was called as a witness to clear the doubts? Defilement occurred in the main house. He also questioned whether Nyakisumu, Ida, and Christabel were in court to shed light on what had happened on that day or what they had seen?
The Appellant also claimed that there occurred material contradictions in evidence in chief and cross-examination which was a great discrepancy that weakened and destroyed the inference of guilt as a result the prosecution case in this regard is plunged by inconsistencies and contradicting evidence which should have been disregarded in totality for a safe outcome of the charge before the appellant herein. He submitted that PW I did not mention or indicate in her evidence time, date, month or year of the incident in her evidence in chief. That PW2, PW3, PW4 and PW5 gave different times when the incident allegedly took place and the time when the complainant was taken to hospital. The Appellant urged the court to give him a benefit of doubt from these loopholes of the prosecution by being set at liberty, quashing the conviction, setting aside the sentence, or ordering retrial.
The Appellant also submitted that the sentence meted out on him is excessive, amounting to unfair trial taking into account that he is a first offender. He urged the court to set aside the 30 years imprisonment and in its place pass a more lenient sentence.
The Appellant relied on the holding in NELSON VS REPUBLIC (1970) E.A 599 where it was held as follows:-
"The principles upon which an appellate court will act in exercising its jurisdiction to review sentences are fairly established. The court does not alter a sentence on the mere ground that if the member of the court had been trying the appellant, they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial judge unless as was said in JAMES VS REX (1950) 18 EACA 147, it is evident that the judge has acted upon some wrong principle or overlooked some material factor. To this we would also add a third criterion namely, that the sentence is manifestly excessive in view ofthe circumstances at the case of R. VS SHERSHOWSKY (1912) CCA 28 TLR 364.”
The Appellant further submitted that it is trite that the onus is on the prosecution to displace defence of alibi after the defence raises it at the trial as was held by court of Appeal in VICTOR MWAENDWA MULINGE VS REP.(2014) EKLR.
"it is trite law that burden of proving falsity, if at all, of an accuseds defence of alibi lies on the prosecution" in the case of ADEDEJI VS THE STATE (1971) ALL, NLR 75, it was held that;
Failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of tribunal and lead to the quashing of a conviction imposed"
The Appellant prayed that may this appeal succeed to its entirety, conviction quashed, sentence set aside or substituted and he be set at liberty or retrial ordered.
The Respondent Counsel’s submissions are dated 4th July 2025 and are to the effect that given the minor Complainant’s admission in cross examination that she had been coached and induced on what to tell the court, and that her mother promised to buy for her a dress if she spoke well in court the, they deferred the matter for court’s good judgment.
The Respondent Counsel also referred the court to provisions of Section 191 of the Children Act which provides for the manner in which children in conflict with the law should be treated in consideration that the Appellant was a minor at the time of the alleged incident.
The Respondent urged the court to uphold the conviction subject to re-assessment of credibility of evidence and also set aside the sentence and substitute it with a lawful sentence that complies with the Children Act.
ANALYSIS AND DETERMINATION
As a first appellate court, the duty of this court is to re-evaluate the entire evidence afresh, draw its own conclusions, and bear in mind that it neither saw nor heard the witnesses testify. This principles was set in the case of Okeno v Republic [1972] EA 32. Having reconsidered the record of the trial court, the grounds of appeal and the rival submissions the issues for determination are:-
i. Proof of the Complainant’s age;
ii. Proof of penetration ;
iii. Identity of the perpetrator;
iv. Whether the prosecution evidence was riddled with inconsistencies and discrepancies
v. Whether the sentence was harsh and excessive in consideration the Appellant was a minor at the time the offence was committed and considering that he was also a first offender.
On whether age of the Complainant’s age was proved, it is an essential ingredient of the offence of defilement because it determines both the offence and sentence. The evidence on age was inconsistent:the charge sheet stated the complainant was 5 years old; PW1 said she was 5 years old; PW4 referred to her as 6 years old; PW5 stated she was 4 years old and the PRC form apparently contained an erroneous date of birth of June 2020, which would have made the child only a few months old at the time of the offence.
Age may be proved by parental testimony or medical evidence or even observation by the Trial Magistrate. There are inconsistencies in the present case but there is no evidence to show that the Complainant age was outside the bracket of a child of tender years. That inconsistency however, standing alone, can not defeat the prosecution case because all evidence pointed to the complainant being a child of tender years.
On whether the prosecution proved penetration, medical evidence strongly supported penetration. The Clinical Officer found multiple bruises on the labia majora; fresh vaginal bleeding; a freshly broken hymen and blood cells and epithelial cells suggestive of friction.
Those findings were consistent with recent genital trauma and penetration. The fact that the child had been washed before examination would not necessarily erase all signs of injury, particularly where the injuries included bruising and a freshly torn hymen. Penetration was therefore proved.
On whether identification of the perpetrator was proved, this is the critical issue. The conviction rested almost entirely on the evidence of PW1, a child of tender years. Ordinarily, Section 124 of the Evidence Act permits a court to convict on the sole evidence of a child victim if the court records reasons for believing the child. However, in this case, several matters create doubt
PW1 admitted during cross-examination that her mother had instructed her what to say in court and promised to buy her a dress if she “talked well” in court. The Respondent itself conceded concern regarding the child’s credibility and invited the court to reassess the evidence. Important witnesses, namely Mama Ida, Esther, Nyakisumu and the persons allegedly present before and after the incident, were not called to testify and there were inconsistencies regarding: where the child was found; who took her to hospital; who first discovered the injury and the exact circumstances surrounding the offence. PW2 did not state that the child named the Appellant immediately after the incident. There was no forensic evidence linking the Appellant to the offence. The Appellant was himself a minor aged about 17 years at the time of the incident according to the defence, and the Respondent raised issues regarding treatment under the Children Act.
While minor inconsistencies do not necessarily vitiate a conviction, this court finds that these contradictions directly affect the identity of the offender as there was eye witness; no forensic evidence linking the appellant; no confession and no corroborative evidence connecting the Appellant to the offence.
Given the admission by PW1 that she had been coached, this court is reluctant to sustain a conviction based solely on her testimony.
On whether the sentence was harsh and excessive in the circumstances, the record indicates that the Appellant was 20 years old when giving evidence, but the Respondent submitted that he was a minor aged 17 years old at the time of the offence and referred to the Children Act. That being the case, a sentence of 30 years imprisonment is unlawful because sentencing should have complied with the provisions relating to children in conflict with the law.. That sentence offends the provisions of Section 191 of the Children Act 2022 as to treatment of children found guilty for being in conflict with the law.
The upshot of the above analysis is that the prosecution proved age of the Complainant and also proved that she was defiled but there is doubt as to the identity of the perpetrator. The complainant’s admission of coaching clouded the reliability and credibility of her evidence and Respondent concede that the conviction was therefore not safe. The prosecution also failed to call essential witnesses to support its contradictory evidence that lacked corroboration. These factors make this court find that the doubt raised is resolved in favour of the Appellant.
Accordingly, this court finds that the appeal has merit and is allowed. The conviction is quashed and the sentence of 30 years imprisonment is set aside. The Appellant is set at liberty unless otherwise lawfully held. Right of appeal 14 days explained.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 20TH DAY OF AUGUST, 2026