(Being an appeal from the conviction and sentence delivered on 28th April 2023 and 31st May 2023 respectively by Hon. L. W. Kabaria (Ms) (P.M.) in Gichugu Magistrates Court S.O. Case No. 4 of 2020)
Background
1. The appellant was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. Particulars of the charge were that on 6th March 2020 at Thumaita Sub-location, in Kirinyaga East Sub-County within Kirinyaga County, unlawfully and intentionally caused his penis to penetrate into the vagina of K. M. a child aged six (6) years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same date, place and time as in the principal charge the appellant unlawfully and intentionally caused his penis to come into contact with the vagina of M. K. a child aged 6 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called five (5) witnesses in support of its case. PW 1. D. N. M. was the complainant’s aunt, sister to her father. PW 1 was entrusted with the care of the complainant when she was one-year-old after her parents separated. She testified that the complaint was born on 9th May 2014 and referred to her certificate of birth produced as exhibit 1 in the case. She lives with the complainant in Thumaita whereas the complainant’s father lives in Nairobi.
4. P. W. 2 M. K. W. was the complainant. She testified without being sworn after a voire dire examination. She referred to PW 1 as her mother and PW 1’s husband as her father.
5. P. W. 3, P. W. M. is the daughter of PW 2 and therefore a cousin of the complainant. They were staying together in her parents’ house.
6. P. W. 4 PC James Kiragu from Kiamutugu police station took over investigations of the case from his colleague Cpl Bruno Waswa who had proceeded on transfer. PW 4 basically recounted the investigations conducted by his colleague and as testified by PW 1, PW 2 and PW 3.
7. PW 5, David Frederick is a clinical officer at Kianyaga Sub-County hospital. He examined the complainant on 7th March 2020, the following day after the alleged incident of defilement.
8. The appellant DW 1, Boniface Kariuki Githinji made an unsworn statement in defence and did not call a witness.
9. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve fifty years’ imprisonment.
Grounds of appeal
10. The appellant was aggrieved by the decision of the trial court and has filed the present appeal through the petition of appeal filed in court on 14th June 2023 and based on four amended grounds of appeal filed alongside his submissions dated 15th March 2025 as follows:
i. The sentence of 50 years-imprisonment was harsh and against the spirit of Article 50(p) and (q) of the constitution.
ii. The elements of the offence of defilement namely, age and penetration were not proved by the prosecution.
iii. Ground 3 is misplaced as it is about a decision of a judge on appeal when this is a first appeal from the magistrate’s court.
iv. The appellant’s defence was not considered.
Submissions
11. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The appellant submits that the case was not proved beyond a reasonable doubt and the trial court erred in finding him guilty of the offence and convicting him. The respondent on their part support the trial court’s findings and maintain that the case was proved beyond a reasonable doubt. The submissions are more extensively considered in the analysis that follows.
Duty of this court
12. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno v. Republic (1972) E.A. 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya v. R., [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantital M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact the trial court has had the advantage of hearing and seeing the witnesses, see Peters versus Sunday Post (1958) E.A. 424.”
13. This position is recounted variously in other decisions for instance in Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR) where the Court of Appeal laid emphasis on the duty of a first appellate court by stating that:
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect… If the High Court has not carried out its task, it becomes a matter of law on second appeal whether there was any evidence to support the conviction. Certainly misdirection and non-directions on material points are matters of law.”
14. I am well guided by these decisions.
The case before the trial court
15. The prosecution case was that the complainant had come from school and was playing with other children on 6th March 2020 when the appellant picked her and took her to his house and defiled her. The complainant did not report the incident to anyone. She went straight to bed after the incident.
16. The following day, PW 2 noticed a foul smell emanating from the complainant. Her walking style was also not usual as she appeared to be in pain. PW 3 informed her mother PW 1, when she came back home in the evening. PW 1 checked the complainant in the presence of PW 3 and they noticed that there was a whitish discharge from her private parts. They also checked the panties she had on the previous day and noticed that it was also smelly. PW 1 asked the complainant who had done bad manners to her. The complainant said that it was done by her schoolmates. PW 1 beat up the complainant thoroughly. She finally opened up and said that the appellant had defiled her and told her to say that it was by other children at school.
17. PW 1 cleaned the complainant and took her to hospital and then made a report to the police.
18. PW 5, the clinical officer established that the complainant’s hymen was freshly torn and she had lacerations on both the Labia majora and minora. She also had lacerations around the perianal area around the vaginal orifice going backwards towards the anal area. The complainant also had a whitish smelly discharge from her genital organ. From the findings, PW 5 concluded that there was penetration of the complainant’s genital organ and therefore that the complainant had been defiled. He administered medication to her. He completed and signed the P3 form which he produced in court as exhibit. He also completed the PRC form and said that it contained the same information as the P3 form.
19. In cross-examination, PW 5 said that the child was not sutured anywhere upon her visit to the hospital. He also said that it is possible for the male sexual organ to enter into the female sexual organ of a child that age without causing a tear.
20. The appellant was subsequently apprehended and charged.
21. In his defence, the appellant denied that he committed the offences. His defence was that upon his arrest by the area assistant chief and police officers on 5th April 2020, PW 1 and her husband went to the police station and demanded that he gives them KShs 200,000/=because they were aware that he had sold his parcel of land and he had money. He declined to give them money. According to the appellant, the complainant’s parents had made it a habit to extort money from men on allegations that they had defiled their daughter, the complainant. They had recently extorted some KShs 10,000/= from a boy whom PW 1 had caused to be assaulted.
22. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the charge of defilement against the appellant beyond a reasonable doubt and thus convicted and sentenced him to 50 years-imprisonment.
Analysis
23. I have carefully examined and re-evaluated the evidence tendered before the trial court, the judgment as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
24. Section 8(1) and 8(2) of the Sexual Offences Act under which the appellant was convicted provide as follows:
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.
25. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
26. The complainant was the only witness to the alleged defilement by the appellant. She was thus the only eye witness on the issue. What needs to be considered is whether her evidence was cogent and could be relied upon as a basis of conviction for the appellant as found by the learned trial magistrate.
27. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
28. The complainant gave unsworn evidence. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
29. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant. The appellant has correctly captured these issues in his submissions and made reference to several decided cases which I have considered.
30. With these issue in mind, I will now consider each of the grounds of appeal in turn.
31. The first ground to consider is whether or not the offence of defilement for which the appellant was convicted was proved beyond a reasonable doubt. The appellant submits that this standard was not met by the prosecution as two of the essential elements of the offence, namely the age of the complainant and penetration were not proved.
32. The appellant submits that the age of the complainant was not proved because PW 1 was not the maker of the certificate of birth for the complainant and therefore was not competent to produce it. The certificate of birth was actually produced by the investigating officer, PW 4 and not PW 1. A certificate of birth is a public document issued under the Births and Deaths Registration Act (Cap. 149) Laws of Kenya and a court is entitled to presume it as genuine under section 83 of the Evidence Act (Cap. 80) Laws of Kenya. There is no reason to doubt the authenticity of the certificate of birth produced in court by the investigating officer. The appellant never raised the issue of the certificate of birth not being genuine during the trial.
33. Moreover, what was required under section 8(1) of the SOA was not the exact age of the complainant but that she was a child, that she was under the age of 18 years and for purposes of sentencing under section 8(2) of the SOA that that she was aged 11 years or less. The trial court had the opportunity to see the complainant when she appeared before it. The learned trial magistrate was satisfied that the complainant was a child and thus subjected her to voire dire examination before taking her unsworn testimony. All the witnesses who testified in the case said the complainant was a child. The appellant never raised the issue of the complainant, who was well known to him, not being a child or not being eleven years or below in his cross-examination. Consequently, I find that the prosecution not only established beyond any reasonable doubt that the complainant was a child but also that she was below eleven years of age.
34. The learned trial magistrate was therefore correct in her finding that the complainant was a child. The contention by the appellant that this ingredient was not proved has no merit and the same is rejected. The case of Peter Maina Njeri v Republic [2016] KEHC 2800 (KLR) cited by the appellant is not helpful to him because in that case, the High Court on appeal found that the age of the complainant had not been proved to the required standard stating that a mere declaration by the complainant that she was 15 years old was not sufficient. In that case no document such as certificate of birth, vaccination card, baptism certificate, school enrollment form or age-assessment was produced in court to prove the age and/or date of birth of the complainant, Furthermore, the complainant’s mother testified in that case but nowhere in her testimony did she mention the date when her child was born nor did she state her age. The medical report from Nairobi Women’s Hospital gave the complainant’s date of birth as 1993 but the document was not produced by the maker. As such the appellant had no opportunity to cross-examine the maker with regard to the question of age. The P3 form gave the age of complainant as 15 years. However, the witness who produced it did not state how he came to assess that age. The High Court found that more likely the witness just wrote down what the complainant herself told him. Those facts are unlike in the present case where a certificate of birth for the complainant was produced to prove her age. Therefore, the facts of that case are completely distinguishable from the facts in the present case.
35. The second ground of appeal is that the element of penetration was not proved. It is the appellant’s contention that mere allegation by the complainant that he did bad manners to her was not sufficient proof that there was penetration into her genital organ. The appellant further submits that the evidence of PW 1 and PW 3 was that the complainant had told them that the act was done to her by other children at school. There are two issues here, whether penetration was proved and whether it was proved to have been by the appellant.
36. I find that submission warped in order to favour the appellant because that was not the correct position. Indeed, PW 1 and PW 3 said that initially, the complainant had alleged that the act was done to her by other children in school. However, on being questioned further she revealed that in fact, it was by the appellant. The issue then was whether the complainant, not having been consistent from beginning to end could be relied upon as an honest and truthful witness. In that case, the whole of the evidence by the prosecution has to be considered and not the isolated issue of the complainant having initially reported that the act was done to her by other children in school.
37. The starting point is to consider the testimony of the complainant before court and determine its authenticity and reliability. The complainant testified that the appellant took her into his house, placed her on his bed, removed her clothes and also removed his and did “bad manners” to her thing that she uses for urinating by using the thing that he uses for urinating. No doubt, the reference to “bad manners” and the “thing for urinating” was to penetration of her sexual organ with that of the complainant. As was held in the case cited by the respondent of Peter Kariuki Kinyanjui v Republic [2017] KEHC 821 (KLR) young children often lack adequate vocabulary to describe the sexual act. They invariably refer to the act as ‘tabia mbaya’. It may not actually be lack of adequate vocabulary but a societal issue where through long held norms, it is incorrectly considered to be lack of good manners, naughty or even rude to refer to private parts by their anatomical names of vagina, penis and anus and also the act of insertion of a penis into the vagina as sex. Children grow up being reminded that doing so is “bad manners. Even in court judgments the penis and vagina are referred to as private parts or genital organs or genitalia. The trauma suffered by the victim of the sexual offence becomes compounded by these societal norms, so that by referring to “bad manners” it becomes a form of condemnation of the act of defilement which indeed is bad manners.
38.
39. The learned trial magistrate found that indeed the complainant’s evidence was authentic and reliable. I find no reason to fault her on that. The complainant’s evidence in court was consistent throughout that she was defiled by the appellant. She did not falter at any point in her testimony despite the intense cross-examination by the appellant. For instance, the complainant was candid to say that she felt pain but she did not bleed during and after the act of “tabia mbaya.” She also said that on the previous occasions that the appellant did the acts to her she never felt pain.
40. The appellant submits that the complainant did not have bruises in her genitalia and therefore there could not have been penetration. That is not correct because there is no requirement that for penetration to be proved, there have to be bruises in the genitalia of the victim. The appellant, in cross-examination asked the clinical officer whether it was possible for a child of the complainant’s age to be penetrated by the sexual organ of an adult man and not to have tears and PW 5 said that it was possible. This fully answers the doubts being raised by the appellant that without bruises or tears, there could not have been penetration of the complainant’s genitalia.
41. Secondly, the complainant said that the appellant had done these “tabia mbaya” acts to her several times before. It is therefore highly probable that from the initial penetration her vaginal orifice had become accustomed to such penetration and thus the lack of tears at this particular time. In any case, penetration does not have to be complete insertion of the male genital organ into the female genital organ. As submitted by the appellant, section 2 of the SOA defines penetration to mean the partial or complete insertion of the genital organs into the genital organs of another person. In the case of Kirima v Republic [2024] KECA 1059 (KLR) the Court of Appeal stated that penetration does not have to be complete or absolute and that partial penetration will suffice. The complainant gave evidence that there was penetration by the appellant’s sexual organ into hers and she felt pain. Her evidence that she was in pain even after the incident is corroborated by her conduct of going to sleep immediately after the incident, an indication that something untoward had happened to her.
42. Further, the medical evidence tendered by PW 5 to the effect that the complainant’s hymen was freshly torn and there were lacerations on both the Labia majora and Labia minora was further corroboration of the complainant’s evidence that there was penetration of her genital organ. This evidence also strengthens the testimony of the complainant as a consistent witness from her concession that she had no bleeding from her genital organ and area. So that the case of Arthur Mshila Manga v Republic [2016] KECA 691 (KLR) cited by the appellant does not help him in his case at all. In that case, the complainant was aged 17 years old the medical evidence had failed to confirm that the complainant was defiled and the only other evidence of defilement was that of the complainant herself. The Court of Appeal then found that the trial court and the High Court had failed to consider the evidence on record closely in which case they would have found that the complainant’s evidence was not consistent and it was contradictory in material particulars. That was not the case in the present case where the clinical officer was explicit that his findings led him to conclude that the complainant had been defiled.
43. The next aspect of the penetration was whether there was evidence that the appellant was the culprit. The appellant was well known to the complainant as they are related and stay in the same area. The complainant’s evidence on this was corroborated by PW 1 and PW 3. It was not disputed by the appellant.
44. The learned trial magistrate was satisfied that the complainant understood the importance telling the truth and allowed her to testify without being sworn. The appellant submits that the no one witnessed the defilement. That is a mistaken view of the law because the complainant herself is a witness of fact and the other witnesses add to what she said. That submission therefore has no weight.
45. The next issue is whether or not there was corroboration of the complainant’s evidence that the appellant penetrated her genitalia.
46. The appellant submits that there was no corroboration of the complainant’s evidence and that the learned trial magistrate did not warn herself of the dangers of relying on uncorroborated evidence. The law is clear that corroboration is not necessary where the court believes that the victim of a sexual offence is telling the truth. I have found here that the complainant was a witness of truth. I have also found that her evidence was corroborated in material particulars and in that case there was no need for the learned trial magistrate to warn herself of the dangers of relying on uncorroborated evidence. In any case, I would not find that there would have been any failure of justice in this case given the very strong and cogent evidence against the appellant.
47. The appellant’s next ground of appeal is that his evidence was not fully considered by the trial court. However, that is not correct because the learned trial magistrate first set out the appellant’s evidence in paragraph 10 of the judgment, evaluated it alongside that of the prosecution in paragraphs 13 and 14. She found it wanting and dismissed it. I have equally considered the evidence as set out above and I find that it was incapable of upsetting the strong and cogent evidence by the prosecution. His submission is that he offered an alibi defence but I do not find any alibi in his testimony. The submission by the appellant that it was not properly rejected is not valid. Consequently, I find no merit in this ground that the learned trial magistrate did not give due regard to the appellant’s evidence and and it equally fails.
48. On the whole, I am satisfied that the trial magistrate made a correct evaluation of the evidence before her and arrived at the correct conclusion that each of the elements of the offence of defilement had been proved beyond a reasonable doubt and the appellant was therefore guilty of the offence of defilement. The conviction was therefore sound and the same is upheld.
49. On the ground that the sentence was excessive, the sentence of fifty (50) years’ imprisonment meted upon the appellant was legal as the law provides for a minimum sentence of life imprisonment where the child is aged eleven years or below. At the time the learned trial magistrate passed the sentence, there was emerging jurisprudence from the Court of Appeal that indeterminate life sentence was unconstitutional (see the cases of Evans Nyamari Ayako v Republic (Criminal Appeal 22 of 2015) [2017] KEHC 5570 (KLR) (24 May 2017) (Judgment) and Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment). However, the Supreme Court has recently in the case of Republic v Ayako [2025] KESC 20 (KLR) clarified that life imprisonment means the life of the prisoner.
Determination
50. In the final analysis, I find that the learned trial magistrate was right in convicting the appellant for the principal charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and passing a sentence of 50 years’ imprisonment and the same is affirmed. The appeal is found to lack merit and the same is dismissed in its entirety.
51. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 30th day of December 2025 in the presence of:
The appellant in person from Nyeri prison.
Muriithi for the respondent.
Job: Court assistant.
Background
1. The appellant was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. Particulars of the charge were that on 6th March 2020 at Thumaita Sub-location, in Kirinyaga East Sub-County within Kirinyaga County, unlawfully and intentionally caused his penis to penetrate into the vagina of K. M. a child aged six (6) years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same date, place and time as in the principal charge the appellant unlawfully and intentionally caused his penis to come into contact with the vagina of M. K. a child aged 6 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called five (5) witnesses in support of its case. PW 1. D. N. M. was the complainant’s aunt, sister to her father. PW 1 was entrusted with the care of the complainant when she was one-year-old after her parents separated. She testified that the complaint was born on 9th May 2014 and referred to her certificate of birth produced as exhibit 1 in the case. She lives with the complainant in Thumaita whereas the complainant’s father lives in Nairobi.
4. P. W. 2 M. K. W. was the complainant. She testified without being sworn after a voire dire examination. She referred to PW 1 as her mother and PW 1’s husband as her father.
5. P. W. 3, P. W. M. is the daughter of PW 2 and therefore a cousin of the complainant. They were staying together in her parents’ house.
6. P. W. 4 PC James Kiragu from Kiamutugu police station took over investigations of the case from his colleague Cpl Bruno Waswa who had proceeded on transfer. PW 4 basically recounted the investigations conducted by his colleague and as testified by PW 1, PW 2 and PW 3.
7. PW 5, David Frederick is a clinical officer at Kianyaga Sub-County hospital. He examined the complainant on 7th March 2020, the following day after the alleged incident of defilement.
8. The appellant DW 1, Boniface Kariuki Githinji made an unsworn statement in defence and did not call a witness.
9. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve fifty years’ imprisonment.
Grounds of appeal
10. The appellant was aggrieved by the decision of the trial court and has filed the present appeal through the petition of appeal filed in court on 14th June 2023 and based on four amended grounds of appeal filed alongside his submissions dated 15th March 2025 as follows:
i. The sentence of 50 years-imprisonment was harsh and against the spirit of Article 50(p) and (q) of the constitution.
ii. The elements of the offence of defilement namely, age and penetration were not proved by the prosecution.
iii. Ground 3 is misplaced as it is about a decision of a judge on appeal when this is a first appeal from the magistrate’s court.
iv. The appellant’s defence was not considered.
Submissions
11. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The appellant submits that the case was not proved beyond a reasonable doubt and the trial court erred in finding him guilty of the offence and convicting him. The respondent on their part support the trial court’s findings and maintain that the case was proved beyond a reasonable doubt. The submissions are more extensively considered in the analysis that follows.
Duty of this court
12. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno v. Republic (1972) E.A. 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya v. R., [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantital M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact the trial court has had the advantage of hearing and seeing the witnesses, see Peters versus Sunday Post (1958) E.A. 424.”
13. This position is recounted variously in other decisions for instance in Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR) where the Court of Appeal laid emphasis on the duty of a first appellate court by stating that:
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect… If the High Court has not carried out its task, it becomes a matter of law on second appeal whether there was any evidence to support the conviction. Certainly misdirection and non-directions on material points are matters of law.”
14. I am well guided by these decisions.
The case before the trial court
15. The prosecution case was that the complainant had come from school and was playing with other children on 6th March 2020 when the appellant picked her and took her to his house and defiled her. The complainant did not report the incident to anyone. She went straight to bed after the incident.
16. The following day, PW 2 noticed a foul smell emanating from the complainant. Her walking style was also not usual as she appeared to be in pain. PW 3 informed her mother PW 1, when she came back home in the evening. PW 1 checked the complainant in the presence of PW 3 and they noticed that there was a whitish discharge from her private parts. They also checked the panties she had on the previous day and noticed that it was also smelly. PW 1 asked the complainant who had done bad manners to her. The complainant said that it was done by her schoolmates. PW 1 beat up the complainant thoroughly. She finally opened up and said that the appellant had defiled her and told her to say that it was by other children at school.
17. PW 1 cleaned the complainant and took her to hospital and then made a report to the police.
18. PW 5, the clinical officer established that the complainant’s hymen was freshly torn and she had lacerations on both the Labia majora and minora. She also had lacerations around the perianal area around the vaginal orifice going backwards towards the anal area. The complainant also had a whitish smelly discharge from her genital organ. From the findings, PW 5 concluded that there was penetration of the complainant’s genital organ and therefore that the complainant had been defiled. He administered medication to her. He completed and signed the P3 form which he produced in court as exhibit. He also completed the PRC form and said that it contained the same information as the P3 form.
19. In cross-examination, PW 5 said that the child was not sutured anywhere upon her visit to the hospital. He also said that it is possible for the male sexual organ to enter into the female sexual organ of a child that age without causing a tear.
20. The appellant was subsequently apprehended and charged.
21. In his defence, the appellant denied that he committed the offences. His defence was that upon his arrest by the area assistant chief and police officers on 5th April 2020, PW 1 and her husband went to the police station and demanded that he gives them KShs 200,000/=because they were aware that he had sold his parcel of land and he had money. He declined to give them money. According to the appellant, the complainant’s parents had made it a habit to extort money from men on allegations that they had defiled their daughter, the complainant. They had recently extorted some KShs 10,000/= from a boy whom PW 1 had caused to be assaulted.
22. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the charge of defilement against the appellant beyond a reasonable doubt and thus convicted and sentenced him to 50 years-imprisonment.
Analysis
23. I have carefully examined and re-evaluated the evidence tendered before the trial court, the judgment as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
24. Section 8(1) and 8(2) of the Sexual Offences Act under which the appellant was convicted provide as follows:
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.
25. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
26. The complainant was the only witness to the alleged defilement by the appellant. She was thus the only eye witness on the issue. What needs to be considered is whether her evidence was cogent and could be relied upon as a basis of conviction for the appellant as found by the learned trial magistrate.
27. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
28. The complainant gave unsworn evidence. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
29. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant. The appellant has correctly captured these issues in his submissions and made reference to several decided cases which I have considered.
30. With these issue in mind, I will now consider each of the grounds of appeal in turn.
31. The first ground to consider is whether or not the offence of defilement for which the appellant was convicted was proved beyond a reasonable doubt. The appellant submits that this standard was not met by the prosecution as two of the essential elements of the offence, namely the age of the complainant and penetration were not proved.
32. The appellant submits that the age of the complainant was not proved because PW 1 was not the maker of the certificate of birth for the complainant and therefore was not competent to produce it. The certificate of birth was actually produced by the investigating officer, PW 4 and not PW 1. A certificate of birth is a public document issued under the Births and Deaths Registration Act (Cap. 149) Laws of Kenya and a court is entitled to presume it as genuine under section 83 of the Evidence Act (Cap. 80) Laws of Kenya. There is no reason to doubt the authenticity of the certificate of birth produced in court by the investigating officer. The appellant never raised the issue of the certificate of birth not being genuine during the trial.
33. Moreover, what was required under section 8(1) of the SOA was not the exact age of the complainant but that she was a child, that she was under the age of 18 years and for purposes of sentencing under section 8(2) of the SOA that that she was aged 11 years or less. The trial court had the opportunity to see the complainant when she appeared before it. The learned trial magistrate was satisfied that the complainant was a child and thus subjected her to voire dire examination before taking her unsworn testimony. All the witnesses who testified in the case said the complainant was a child. The appellant never raised the issue of the complainant, who was well known to him, not being a child or not being eleven years or below in his cross-examination. Consequently, I find that the prosecution not only established beyond any reasonable doubt that the complainant was a child but also that she was below eleven years of age.
34. The learned trial magistrate was therefore correct in her finding that the complainant was a child. The contention by the appellant that this ingredient was not proved has no merit and the same is rejected. The case of Peter Maina Njeri v Republic [2016] KEHC 2800 (KLR) cited by the appellant is not helpful to him because in that case, the High Court on appeal found that the age of the complainant had not been proved to the required standard stating that a mere declaration by the complainant that she was 15 years old was not sufficient. In that case no document such as certificate of birth, vaccination card, baptism certificate, school enrollment form or age-assessment was produced in court to prove the age and/or date of birth of the complainant, Furthermore, the complainant’s mother testified in that case but nowhere in her testimony did she mention the date when her child was born nor did she state her age. The medical report from Nairobi Women’s Hospital gave the complainant’s date of birth as 1993 but the document was not produced by the maker. As such the appellant had no opportunity to cross-examine the maker with regard to the question of age. The P3 form gave the age of complainant as 15 years. However, the witness who produced it did not state how he came to assess that age. The High Court found that more likely the witness just wrote down what the complainant herself told him. Those facts are unlike in the present case where a certificate of birth for the complainant was produced to prove her age. Therefore, the facts of that case are completely distinguishable from the facts in the present case.
35. The second ground of appeal is that the element of penetration was not proved. It is the appellant’s contention that mere allegation by the complainant that he did bad manners to her was not sufficient proof that there was penetration into her genital organ. The appellant further submits that the evidence of PW 1 and PW 3 was that the complainant had told them that the act was done to her by other children at school. There are two issues here, whether penetration was proved and whether it was proved to have been by the appellant.
36. I find that submission warped in order to favour the appellant because that was not the correct position. Indeed, PW 1 and PW 3 said that initially, the complainant had alleged that the act was done to her by other children in school. However, on being questioned further she revealed that in fact, it was by the appellant. The issue then was whether the complainant, not having been consistent from beginning to end could be relied upon as an honest and truthful witness. In that case, the whole of the evidence by the prosecution has to be considered and not the isolated issue of the complainant having initially reported that the act was done to her by other children in school.
37. The starting point is to consider the testimony of the complainant before court and determine its authenticity and reliability. The complainant testified that the appellant took her into his house, placed her on his bed, removed her clothes and also removed his and did “bad manners” to her thing that she uses for urinating by using the thing that he uses for urinating. No doubt, the reference to “bad manners” and the “thing for urinating” was to penetration of her sexual organ with that of the complainant. As was held in the case cited by the respondent of Peter Kariuki Kinyanjui v Republic [2017] KEHC 821 (KLR) young children often lack adequate vocabulary to describe the sexual act. They invariably refer to the act as ‘tabia mbaya’. It may not actually be lack of adequate vocabulary but a societal issue where through long held norms, it is incorrectly considered to be lack of good manners, naughty or even rude to refer to private parts by their anatomical names of vagina, penis and anus and also the act of insertion of a penis into the vagina as sex. Children grow up being reminded that doing so is “bad manners. Even in court judgments the penis and vagina are referred to as private parts or genital organs or genitalia. The trauma suffered by the victim of the sexual offence becomes compounded by these societal norms, so that by referring to “bad manners” it becomes a form of condemnation of the act of defilement which indeed is bad manners.
38.
39. The learned trial magistrate found that indeed the complainant’s evidence was authentic and reliable. I find no reason to fault her on that. The complainant’s evidence in court was consistent throughout that she was defiled by the appellant. She did not falter at any point in her testimony despite the intense cross-examination by the appellant. For instance, the complainant was candid to say that she felt pain but she did not bleed during and after the act of “tabia mbaya.” She also said that on the previous occasions that the appellant did the acts to her she never felt pain.
40. The appellant submits that the complainant did not have bruises in her genitalia and therefore there could not have been penetration. That is not correct because there is no requirement that for penetration to be proved, there have to be bruises in the genitalia of the victim. The appellant, in cross-examination asked the clinical officer whether it was possible for a child of the complainant’s age to be penetrated by the sexual organ of an adult man and not to have tears and PW 5 said that it was possible. This fully answers the doubts being raised by the appellant that without bruises or tears, there could not have been penetration of the complainant’s genitalia.
41. Secondly, the complainant said that the appellant had done these “tabia mbaya” acts to her several times before. It is therefore highly probable that from the initial penetration her vaginal orifice had become accustomed to such penetration and thus the lack of tears at this particular time. In any case, penetration does not have to be complete insertion of the male genital organ into the female genital organ. As submitted by the appellant, section 2 of the SOA defines penetration to mean the partial or complete insertion of the genital organs into the genital organs of another person. In the case of Kirima v Republic [2024] KECA 1059 (KLR) the Court of Appeal stated that penetration does not have to be complete or absolute and that partial penetration will suffice. The complainant gave evidence that there was penetration by the appellant’s sexual organ into hers and she felt pain. Her evidence that she was in pain even after the incident is corroborated by her conduct of going to sleep immediately after the incident, an indication that something untoward had happened to her.
42. Further, the medical evidence tendered by PW 5 to the effect that the complainant’s hymen was freshly torn and there were lacerations on both the Labia majora and Labia minora was further corroboration of the complainant’s evidence that there was penetration of her genital organ. This evidence also strengthens the testimony of the complainant as a consistent witness from her concession that she had no bleeding from her genital organ and area. So that the case of Arthur Mshila Manga v Republic [2016] KECA 691 (KLR) cited by the appellant does not help him in his case at all. In that case, the complainant was aged 17 years old the medical evidence had failed to confirm that the complainant was defiled and the only other evidence of defilement was that of the complainant herself. The Court of Appeal then found that the trial court and the High Court had failed to consider the evidence on record closely in which case they would have found that the complainant’s evidence was not consistent and it was contradictory in material particulars. That was not the case in the present case where the clinical officer was explicit that his findings led him to conclude that the complainant had been defiled.
43. The next aspect of the penetration was whether there was evidence that the appellant was the culprit. The appellant was well known to the complainant as they are related and stay in the same area. The complainant’s evidence on this was corroborated by PW 1 and PW 3. It was not disputed by the appellant.
44. The learned trial magistrate was satisfied that the complainant understood the importance telling the truth and allowed her to testify without being sworn. The appellant submits that the no one witnessed the defilement. That is a mistaken view of the law because the complainant herself is a witness of fact and the other witnesses add to what she said. That submission therefore has no weight.
45. The next issue is whether or not there was corroboration of the complainant’s evidence that the appellant penetrated her genitalia.
46. The appellant submits that there was no corroboration of the complainant’s evidence and that the learned trial magistrate did not warn herself of the dangers of relying on uncorroborated evidence. The law is clear that corroboration is not necessary where the court believes that the victim of a sexual offence is telling the truth. I have found here that the complainant was a witness of truth. I have also found that her evidence was corroborated in material particulars and in that case there was no need for the learned trial magistrate to warn herself of the dangers of relying on uncorroborated evidence. In any case, I would not find that there would have been any failure of justice in this case given the very strong and cogent evidence against the appellant.
47. The appellant’s next ground of appeal is that his evidence was not fully considered by the trial court. However, that is not correct because the learned trial magistrate first set out the appellant’s evidence in paragraph 10 of the judgment, evaluated it alongside that of the prosecution in paragraphs 13 and 14. She found it wanting and dismissed it. I have equally considered the evidence as set out above and I find that it was incapable of upsetting the strong and cogent evidence by the prosecution. His submission is that he offered an alibi defence but I do not find any alibi in his testimony. The submission by the appellant that it was not properly rejected is not valid. Consequently, I find no merit in this ground that the learned trial magistrate did not give due regard to the appellant’s evidence and and it equally fails.
48. On the whole, I am satisfied that the trial magistrate made a correct evaluation of the evidence before her and arrived at the correct conclusion that each of the elements of the offence of defilement had been proved beyond a reasonable doubt and the appellant was therefore guilty of the offence of defilement. The conviction was therefore sound and the same is upheld.
49. On the ground that the sentence was excessive, the sentence of fifty (50) years’ imprisonment meted upon the appellant was legal as the law provides for a minimum sentence of life imprisonment where the child is aged eleven years or below. At the time the learned trial magistrate passed the sentence, there was emerging jurisprudence from the Court of Appeal that indeterminate life sentence was unconstitutional (see the cases of Evans Nyamari Ayako v Republic (Criminal Appeal 22 of 2015) [2017] KEHC 5570 (KLR) (24 May 2017) (Judgment) and Manyeso v Republic (Criminal Appeal 12 of 2021) [2023] KECA 827 (KLR) (7 July 2023) (Judgment). However, the Supreme Court has recently in the case of Republic v Ayako [2025] KESC 20 (KLR) clarified that life imprisonment means the life of the prisoner.
Determination
50. In the final analysis, I find that the learned trial magistrate was right in convicting the appellant for the principal charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and passing a sentence of 50 years’ imprisonment and the same is affirmed. The appeal is found to lack merit and the same is dismissed in its entirety.
51. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 30th day of December 2025 in the presence of:
The appellant in person from Nyeri prison.
Muriithi for the respondent.
Job: Court assistant.