( Being an appeal from the conviction and sentence in Makindu MCSO No. E011 of 2022 from a judgement delivered by Hon. Benson Ireri, Chief Magistrate, on the 20 th day of May, 2025)
JUDGMENT.
INTRODUCTION
1. The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006 . The particulars of the offence are that on the 31 st day of January, 2022 at Kanyungu area in Kibwezi Sub County within Makueni County intentionally and unlawfully caused his male genital organs namely penis to penetrate the vagina of S.M.M, a girl aged 7 years.
2. The appellant was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 . The particulars of the offence were that on the 31 st day of January, 2022 at Kanyungu area in Kibwezi Sub – County within Makueni County, intentionally and unlawfully caused his male genital organs namely penis to touch the vagina of S.M.M a girl aged 7 years.
3. The Appellant was eventually convicted for the offence of defilement and was sentenced to 50 years’ imprisonment. The appellant was aggrieved by the conviction and sentence and proceeded to file his Petition of Appeal citing Five (5) grounds as reproduced herein under:
1. That the learned trial magistrate erred in law and in fact when he convicted and sentenced me without observing that the charges before the court were defective for both being great variance with the evidence on the record.
2. That the learned trial magistrate erred in law and in fact by sentencing me without considering that the evidence to prove the offence of defilement did not have probative value and further didn’t meet the required standard in criminal law of beyond reasonable doubt to sustain a justified conviction.
3. That the learned trial magistrate erred in law and in fact by shifting the burden of proof to the Appellant and misdirected himself on the evidence and arrived at a wrong conclusion.
4. That the learned trial magistrate erred in law and fact when he failed to consider my mitigating factors and hence arrived at a wrong, unjustified decision, he further went ahead and awarded an excessive and punitive sentence which was not in line with the sections of the law that were cited in the charge sheet.
5. That the learned trial magistrate erred in law and in fact when he failed to consider that the trial was so fast for the layman like the Appellant who was not represented by an advocate, to be able to follow up the case and yet he was not served with witness statement contrary to Section 50 (c) (j) of the Constitution of Kenya, 2010 .
4. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 25 th April, 2026. The Respondent however did not file submissions in opposition of the Appeal or the same were not availed for the court’s perusal at the time I retired to write this decision.
5. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different ”.
6. This duty was also articulated by the former Court of Appeal for East Africa in Okeno vs Republic [1972] EA 32
ISSUES FOR DETERMINATION
7. Having considered the Petition of Appeal, the record of the trial court, and the submissions by the Appellant, the following issues arise for determination;
1. Whether the charge sheet is defective.
2. Whether the age of the complainant was proved beyond reasonable doubt.
3. Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
4. Whether the Appellant was positively identified as the perpetrator of the Offence.
5. Whether the trial court violated Section 77 of the Evidence Act.
6. What was the sentence imposed and whether the same was harsh, excessive, or unlawful .
ANALYSIS & DETERMINATION
8. On the first issue, the Appellant contends that the charge sheet was defective on the ground that he was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act whereas the particulars of the charge expressly stated that the complainant was a child aged seven (7) years and was thereafter submitted that the applicable provision was section 8(1) as read with section 8(2) of the Act .
9. I note that Section 8(1) of the Sexual Offences Act creates the offence of defilement, while Subsections (2), (3) and (4) prescribe the applicable punishment according to the age of the child. A child aged eleven years or below falls within Section 8(2) , whereas Section 8(3) applies to a child between the ages of twelve and fifteen years.
10. There is no doubt that the reference to Section 8(3) in the statement of the offence was erroneous, the complainant having been stated in the particulars to be aged seven years. The question, however, is whether that error rendered the charge fatally defective.
11. In Denis Kinyua Njeru vs Republic [2017] KECA 424 (KLR ) the appellant had similarly been charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act while the particulars stated that the complainant was aged eight years. The Court proceeded and stated as follows
“With regard to the alleged defective charge, it is not disputed that the trial proceeded on the basis of an offence of defilement contrary to section 8(1) of the SOA as read with section 8(3) of the Act, although the charge specifically stated that the victim was aged eight (8) years. Section 8(1) of the SOA defines the offence of defilement. Subsection 8 (2) prescribes the penalty of imprisonment for life, where the victim is eleven (11) years or less, while subsection 8(3) prescribes a penalty of imprisonment for a term of not less than twenty years, where the victim is between the age of twelve (12) and fifteen (15) years.
It was at the time of the drafting of the judgment that the trial magistrate noted the anomaly in the manner the charge had been drafted despite the age of the victim having been stated to be eight (8) years, and therefore falling within the subsection 8(2) penalty age bracket. Despite making observations as above, the trial magistrate went on to find the appellant guilty of the offence of defilement, and sentenced him to twenty years’ imprisonment as charged.
‘The learned 1st appellate Judge had this to say about the said sentence:
“The particulars of the charge were correct since the appellant had no issue with them. They were also consistent to the evidence of the key witnesses. The offence of section 8(1) was also correctly stated. It is the section which he defined the offence of defilement while section 8(2), 8(3) and 8(4) give the age bracket of the victim and also guides the court in imposing the sentence upon conviction. In this case the complainant was aged 8 years which was clearly stated in the charge. The age bracket is eleven years and below which is covered by section 8(2). The citing of the section 8(3) instead of 8(2) was wrong. However, the charge was properly framed and all the ingredients of the offence included.’
The concurrent findings of the two courts below were that the age of the victim indicated in the charge sheet as eight (8) years was correct, that the appropriate penalty section that ought to have been indicated in the charge sheet should have been subsection 8(2) of the SOA; and that the indication of subsection 8(3) as the penalty section was therefore an error curable under section 382 of the Criminal Procedure Code. In this regard, both courts below were satisfied that the trial was therefore not vitiated. We affirm that finding as it was based on a correct construction of sections 8(1) and 8(2) of the SOA.”
12. Similarly, in Muriithi v Republic [2025] KECA 430 (KLR ) the Court of Appeal distinguished between the provision creating the offence and the subsections prescribing the applicable punishment. The Court held that an error in citing the applicable subsection would not necessarily affect the conviction, although it could have consequences on the sentence imposed.
13. In the present case, the particulars of the charge clearly stated that the complainant was a child aged seven years. The accused was therefore put on notice of the essential factual allegation including the age of the complainant. The evidence led at the trial established the complainant's age as seven years. The fact that the statement of the offence cited section 8(3) , which was inapplicable to that age bracket did not in the circumstances of this case obscure the nature of the charge or occasion prejudice to the Appellant in the conduct of his defence.
14. I therefore find that the reference to Section 8(3) instead of Section 8(2) constituted an error in the citation of the applicable penalty provision but it did not render the charge fatally defective as this error is curable under Section 382 of the Criminal Procedure Code, there being no demonstrated failure of justice or prejudice occasioned to the Appellant.
15. Accordingly, the conviction cannot be faulted merely on account of the reference to Section 8(3) in the charge sheet . The ground of appeal challenging the conviction on that basis therefore fails.
16. On whether the Age of the Complainant was proved, the Court takes note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position were stated in George Opondo Olunga vs. Republic (2016) eKLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice .”
17. The victim in this case is said to be a 7 years minor at the time of the incident. This is as indicated by the Charge Sheet. Further when she testified before Court she stated that she was 8 years at the time. A copy of the birth certificate was produced by PW5 also indicated that the Complainant was born on the 4 th day of March, 2014 therefore the age stated in the charge sheet was an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant well below the age of Twelve years.
18. Consequently, I therefore find that the age of the complainant was proved beyond reasonable doubt.
19. On whether Penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
20. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
21. In the present case, the Clinical officer testified as PW4 stated that on examination of the Complainant he noted that the hymen was broken slightly. He further stated that the Complainant on high vaginal swab of the urine showed that she had some infection. No evidence has been tendered by the Appellant to disregard the testimony of PW4 herein. The court has also had an opportunity to carefully examine the P3 Form and the PRC Form as well as the treatments notes and in light of the statutory definition and the binding authority of the Court of Appeal, the medical findings were consistent with partial penetration within the meaning of section 2 of the Act.
22. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
23. On the issue of identification of the Appellant, the Complainant narrated how she used to see the Appellant grazing animals near the school and on the day of the incident the Complainant testified that the Appellant gave him a sweet.
24. In his defence the Appellant did not dispute that the Complainant was known to him. He merely stated that he had been framed without giving any tangible evidence, this means that this was a case of recognition rather than identification of a stranger, thereby eliminating the possibility of mistaken identity. Adding to the fact that an Identification parade was conducted and the Complainant was able to identify the Appellant.
25. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other ”
26. The court is satisfied that the appellant was recognized by the Complainant who knew him therefore it was proved that the appellant was the perpetrator. In the present case, the prosecution case was not founded solely on the complainant's testimony as her account was materially supported by the medical evidence of the doctor which confirmed findings consistent with sexual assault.
27. It is therefore my considered view that the trial court duly considered the Appellant's defence alongside the prosecution evidence and upon my own re-evaluation of the record, I find no basis to fault that finding and therefore see no reason to interfere with the trial court's determination on the issue.
28. On the 5 th issue, the Appellant also takes issue with the production of the medical documents by a doctor other than the doctor who examined the complainant and prepared the said form. The record however shows that the doctor who examined the complainant had been transferred and was therefore not available to testify at the trial and it is for the said reason that another doctor was called to produce the medical documents his behalf. The record also indicates that before the said doctor proceeded to testify on the contents of the medical documents the trial court sought the position of the Appellant who expressly indicated that he had no objection.
29. In the case of Kyalo v Republic [2025] KECA 1766 (KLR ) , the Court stated as follows;
“33. The appellant also complains that the doctor who presented the medical report and P3 form was not the one who examined the complainant. It is true that the record shows that the doctor who examined the complainant had already left employment and could not be traced by the time the trial was being conducted. Therefore, PW6, having previously worked with him, testified on his behalf. The appellant did not raise an objection to the testimony at the time of trial. Even if he had, the objection would not have been sustained. This is because the practice is permitted under section 77 of the Evidence Act which provides as follows:
‘(1) In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.
2.The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.
3.When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.’
30. It is therefore my considered view that the law does not make it an absolute requirement that a medical report must in all circumstances be produced by its maker.
31. In the present case, the circumstances are even more compelling. The doctor who examined the complainant had been transferred and another doctor was called to produce the report and the Appellant was afforded an opportunity to object to the proposed production and he expressly raised no objection. He did not request that the doctor who prepared the P3 form be summoned for purposes of cross-examination.
32. We therefore find that the production of the medical documents by the second doctor was permissible under Section 77 of the Evidence Act and that the trial court did not err in admitting the same in evidence.
33. On the 6 th issue for determination, I have noted an apparent discrepancy in the record concerning the sentence imposed upon the Appellant. The judgment of the trial court indicates that the Appellant was sentenced to life imprisonment. However, the proceedings of the trial court particularly the record of the sentence imposed upon the Appellant show that he was sentenced to fifty (50) years’ imprisonment.
34. It is the proceedings and the actual sentencing order of the trial court that constitute the primary record of the sentence imposed. The reference to life imprisonment in the judgment is therefore an apparent error which by itself shall not alter the sentence actually imposed by the trial court.
35. Section 382 of the Criminal Procedure Code provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings unless the error omission or irregularity has occasioned a failure of justice. The provision therefore recognizes that an error appearing in a judgment or other part of the proceedings does not necessarily invalidate the proceedings where the true position can be ascertained from the record and no prejudice has been occasioned.
36. In the present case, the sentencing proceedings clearly demonstrate that the sentence imposed upon the Appellant was fifty (50) years’ imprisonment. The reference to life imprisonment in the judgment is consequently treated as an error in recording the sentence and not as the sentence actually imposed by the trial court.
37. The Court shall therefore proceed to consider the legality and propriety of the sentence of fifty (50) years’ imprisonment as the sentence imposed upon the Appellant. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below and the Appellant was sentenced to Fifty (50) years’ imprisonments.
38. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [ 2024] KESC 34 (KLR ) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful.
39. Consequently, by law, a person convicted of defilement under section 8(2) of the Sexual Offences Act ought to be sentenced to the mandatory life imprisonment. Any term sentence will be unconstitutional.
40. While the appellant argued that the sentence was excessive and violated constitutional principles, I note that the sentence imposed was a term sentence of 50 years’ imprisonment, which is fundamentally lower than the mandatory life sentence. Suffices it to state that it was a more lenient sentence than the mandatory sentence prescribed by statute.
41. The question that follows is what this appellate court should do. Ordinarily, this court ought to correct such an irregularity by imposing the statutory prescribed sentence. However, in this case, such an act will amount to an enhancement of the sentence from 50 years’ imprisonment to life sentence. For such enhancement, it is trite law that the appellant ought to have been given prior notice of enhancement and there is no evidence of notice being given to the appellant.
42. Accordingly, this court finds no basis for interfering with the sentence.
FINAL DISPOSITION
43. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction was sound and the sentence lawful.
b) The appeal against both conviction and sentence is dismissed in its entirety.
c) The sentence of imposed by the trial court is hereby affirmed .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 17 th September 2026.
HCCA NO. E002 OF 2025 BOSCO MUTUNGA MBITHE VS REPUBLIC JUDGMENT Pg. 13
JUDGMENT.
INTRODUCTION
1. The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No 3 of 2006 . The particulars of the offence are that on the 31 st day of January, 2022 at Kanyungu area in Kibwezi Sub County within Makueni County intentionally and unlawfully caused his male genital organs namely penis to penetrate the vagina of S.M.M, a girl aged 7 years.
2. The appellant was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 . The particulars of the offence were that on the 31 st day of January, 2022 at Kanyungu area in Kibwezi Sub – County within Makueni County, intentionally and unlawfully caused his male genital organs namely penis to touch the vagina of S.M.M a girl aged 7 years.
3. The Appellant was eventually convicted for the offence of defilement and was sentenced to 50 years’ imprisonment. The appellant was aggrieved by the conviction and sentence and proceeded to file his Petition of Appeal citing Five (5) grounds as reproduced herein under:
1. That the learned trial magistrate erred in law and in fact when he convicted and sentenced me without observing that the charges before the court were defective for both being great variance with the evidence on the record.
2. That the learned trial magistrate erred in law and in fact by sentencing me without considering that the evidence to prove the offence of defilement did not have probative value and further didn’t meet the required standard in criminal law of beyond reasonable doubt to sustain a justified conviction.
3. That the learned trial magistrate erred in law and in fact by shifting the burden of proof to the Appellant and misdirected himself on the evidence and arrived at a wrong conclusion.
4. That the learned trial magistrate erred in law and fact when he failed to consider my mitigating factors and hence arrived at a wrong, unjustified decision, he further went ahead and awarded an excessive and punitive sentence which was not in line with the sections of the law that were cited in the charge sheet.
5. That the learned trial magistrate erred in law and in fact when he failed to consider that the trial was so fast for the layman like the Appellant who was not represented by an advocate, to be able to follow up the case and yet he was not served with witness statement contrary to Section 50 (c) (j) of the Constitution of Kenya, 2010 .
4. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 25 th April, 2026. The Respondent however did not file submissions in opposition of the Appeal or the same were not availed for the court’s perusal at the time I retired to write this decision.
5. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different ”.
6. This duty was also articulated by the former Court of Appeal for East Africa in Okeno vs Republic [1972] EA 32
ISSUES FOR DETERMINATION
7. Having considered the Petition of Appeal, the record of the trial court, and the submissions by the Appellant, the following issues arise for determination;
1. Whether the charge sheet is defective.
2. Whether the age of the complainant was proved beyond reasonable doubt.
3. Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
4. Whether the Appellant was positively identified as the perpetrator of the Offence.
5. Whether the trial court violated Section 77 of the Evidence Act.
6. What was the sentence imposed and whether the same was harsh, excessive, or unlawful .
ANALYSIS & DETERMINATION
8. On the first issue, the Appellant contends that the charge sheet was defective on the ground that he was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act whereas the particulars of the charge expressly stated that the complainant was a child aged seven (7) years and was thereafter submitted that the applicable provision was section 8(1) as read with section 8(2) of the Act .
9. I note that Section 8(1) of the Sexual Offences Act creates the offence of defilement, while Subsections (2), (3) and (4) prescribe the applicable punishment according to the age of the child. A child aged eleven years or below falls within Section 8(2) , whereas Section 8(3) applies to a child between the ages of twelve and fifteen years.
10. There is no doubt that the reference to Section 8(3) in the statement of the offence was erroneous, the complainant having been stated in the particulars to be aged seven years. The question, however, is whether that error rendered the charge fatally defective.
11. In Denis Kinyua Njeru vs Republic [2017] KECA 424 (KLR ) the appellant had similarly been charged with defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act while the particulars stated that the complainant was aged eight years. The Court proceeded and stated as follows
“With regard to the alleged defective charge, it is not disputed that the trial proceeded on the basis of an offence of defilement contrary to section 8(1) of the SOA as read with section 8(3) of the Act, although the charge specifically stated that the victim was aged eight (8) years. Section 8(1) of the SOA defines the offence of defilement. Subsection 8 (2) prescribes the penalty of imprisonment for life, where the victim is eleven (11) years or less, while subsection 8(3) prescribes a penalty of imprisonment for a term of not less than twenty years, where the victim is between the age of twelve (12) and fifteen (15) years.
It was at the time of the drafting of the judgment that the trial magistrate noted the anomaly in the manner the charge had been drafted despite the age of the victim having been stated to be eight (8) years, and therefore falling within the subsection 8(2) penalty age bracket. Despite making observations as above, the trial magistrate went on to find the appellant guilty of the offence of defilement, and sentenced him to twenty years’ imprisonment as charged.
‘The learned 1st appellate Judge had this to say about the said sentence:
“The particulars of the charge were correct since the appellant had no issue with them. They were also consistent to the evidence of the key witnesses. The offence of section 8(1) was also correctly stated. It is the section which he defined the offence of defilement while section 8(2), 8(3) and 8(4) give the age bracket of the victim and also guides the court in imposing the sentence upon conviction. In this case the complainant was aged 8 years which was clearly stated in the charge. The age bracket is eleven years and below which is covered by section 8(2). The citing of the section 8(3) instead of 8(2) was wrong. However, the charge was properly framed and all the ingredients of the offence included.’
The concurrent findings of the two courts below were that the age of the victim indicated in the charge sheet as eight (8) years was correct, that the appropriate penalty section that ought to have been indicated in the charge sheet should have been subsection 8(2) of the SOA; and that the indication of subsection 8(3) as the penalty section was therefore an error curable under section 382 of the Criminal Procedure Code. In this regard, both courts below were satisfied that the trial was therefore not vitiated. We affirm that finding as it was based on a correct construction of sections 8(1) and 8(2) of the SOA.”
12. Similarly, in Muriithi v Republic [2025] KECA 430 (KLR ) the Court of Appeal distinguished between the provision creating the offence and the subsections prescribing the applicable punishment. The Court held that an error in citing the applicable subsection would not necessarily affect the conviction, although it could have consequences on the sentence imposed.
13. In the present case, the particulars of the charge clearly stated that the complainant was a child aged seven years. The accused was therefore put on notice of the essential factual allegation including the age of the complainant. The evidence led at the trial established the complainant's age as seven years. The fact that the statement of the offence cited section 8(3) , which was inapplicable to that age bracket did not in the circumstances of this case obscure the nature of the charge or occasion prejudice to the Appellant in the conduct of his defence.
14. I therefore find that the reference to Section 8(3) instead of Section 8(2) constituted an error in the citation of the applicable penalty provision but it did not render the charge fatally defective as this error is curable under Section 382 of the Criminal Procedure Code, there being no demonstrated failure of justice or prejudice occasioned to the Appellant.
15. Accordingly, the conviction cannot be faulted merely on account of the reference to Section 8(3) in the charge sheet . The ground of appeal challenging the conviction on that basis therefore fails.
16. On whether the Age of the Complainant was proved, the Court takes note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position were stated in George Opondo Olunga vs. Republic (2016) eKLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice .”
17. The victim in this case is said to be a 7 years minor at the time of the incident. This is as indicated by the Charge Sheet. Further when she testified before Court she stated that she was 8 years at the time. A copy of the birth certificate was produced by PW5 also indicated that the Complainant was born on the 4 th day of March, 2014 therefore the age stated in the charge sheet was an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant well below the age of Twelve years.
18. Consequently, I therefore find that the age of the complainant was proved beyond reasonable doubt.
19. On whether Penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
20. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
21. In the present case, the Clinical officer testified as PW4 stated that on examination of the Complainant he noted that the hymen was broken slightly. He further stated that the Complainant on high vaginal swab of the urine showed that she had some infection. No evidence has been tendered by the Appellant to disregard the testimony of PW4 herein. The court has also had an opportunity to carefully examine the P3 Form and the PRC Form as well as the treatments notes and in light of the statutory definition and the binding authority of the Court of Appeal, the medical findings were consistent with partial penetration within the meaning of section 2 of the Act.
22. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
23. On the issue of identification of the Appellant, the Complainant narrated how she used to see the Appellant grazing animals near the school and on the day of the incident the Complainant testified that the Appellant gave him a sweet.
24. In his defence the Appellant did not dispute that the Complainant was known to him. He merely stated that he had been framed without giving any tangible evidence, this means that this was a case of recognition rather than identification of a stranger, thereby eliminating the possibility of mistaken identity. Adding to the fact that an Identification parade was conducted and the Complainant was able to identify the Appellant.
25. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other ”
26. The court is satisfied that the appellant was recognized by the Complainant who knew him therefore it was proved that the appellant was the perpetrator. In the present case, the prosecution case was not founded solely on the complainant's testimony as her account was materially supported by the medical evidence of the doctor which confirmed findings consistent with sexual assault.
27. It is therefore my considered view that the trial court duly considered the Appellant's defence alongside the prosecution evidence and upon my own re-evaluation of the record, I find no basis to fault that finding and therefore see no reason to interfere with the trial court's determination on the issue.
28. On the 5 th issue, the Appellant also takes issue with the production of the medical documents by a doctor other than the doctor who examined the complainant and prepared the said form. The record however shows that the doctor who examined the complainant had been transferred and was therefore not available to testify at the trial and it is for the said reason that another doctor was called to produce the medical documents his behalf. The record also indicates that before the said doctor proceeded to testify on the contents of the medical documents the trial court sought the position of the Appellant who expressly indicated that he had no objection.
29. In the case of Kyalo v Republic [2025] KECA 1766 (KLR ) , the Court stated as follows;
“33. The appellant also complains that the doctor who presented the medical report and P3 form was not the one who examined the complainant. It is true that the record shows that the doctor who examined the complainant had already left employment and could not be traced by the time the trial was being conducted. Therefore, PW6, having previously worked with him, testified on his behalf. The appellant did not raise an objection to the testimony at the time of trial. Even if he had, the objection would not have been sustained. This is because the practice is permitted under section 77 of the Evidence Act which provides as follows:
‘(1) In criminal proceedings any document purporting to be a report under the hand of a Government analyst, medical practitioner or of any ballistics expert, document examiner or geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence.
2.The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it.
3.When any report is so used the court may, if it thinks fit, summon the analyst, ballistics expert, document examiner, medical practitioner, or geologist, as the case may be, and examine him as to the subject matter thereof.’
30. It is therefore my considered view that the law does not make it an absolute requirement that a medical report must in all circumstances be produced by its maker.
31. In the present case, the circumstances are even more compelling. The doctor who examined the complainant had been transferred and another doctor was called to produce the report and the Appellant was afforded an opportunity to object to the proposed production and he expressly raised no objection. He did not request that the doctor who prepared the P3 form be summoned for purposes of cross-examination.
32. We therefore find that the production of the medical documents by the second doctor was permissible under Section 77 of the Evidence Act and that the trial court did not err in admitting the same in evidence.
33. On the 6 th issue for determination, I have noted an apparent discrepancy in the record concerning the sentence imposed upon the Appellant. The judgment of the trial court indicates that the Appellant was sentenced to life imprisonment. However, the proceedings of the trial court particularly the record of the sentence imposed upon the Appellant show that he was sentenced to fifty (50) years’ imprisonment.
34. It is the proceedings and the actual sentencing order of the trial court that constitute the primary record of the sentence imposed. The reference to life imprisonment in the judgment is therefore an apparent error which by itself shall not alter the sentence actually imposed by the trial court.
35. Section 382 of the Criminal Procedure Code provides that no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings unless the error omission or irregularity has occasioned a failure of justice. The provision therefore recognizes that an error appearing in a judgment or other part of the proceedings does not necessarily invalidate the proceedings where the true position can be ascertained from the record and no prejudice has been occasioned.
36. In the present case, the sentencing proceedings clearly demonstrate that the sentence imposed upon the Appellant was fifty (50) years’ imprisonment. The reference to life imprisonment in the judgment is consequently treated as an error in recording the sentence and not as the sentence actually imposed by the trial court.
37. The Court shall therefore proceed to consider the legality and propriety of the sentence of fifty (50) years’ imprisonment as the sentence imposed upon the Appellant. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below and the Appellant was sentenced to Fifty (50) years’ imprisonments.
38. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [ 2024] KESC 34 (KLR ) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful.
39. Consequently, by law, a person convicted of defilement under section 8(2) of the Sexual Offences Act ought to be sentenced to the mandatory life imprisonment. Any term sentence will be unconstitutional.
40. While the appellant argued that the sentence was excessive and violated constitutional principles, I note that the sentence imposed was a term sentence of 50 years’ imprisonment, which is fundamentally lower than the mandatory life sentence. Suffices it to state that it was a more lenient sentence than the mandatory sentence prescribed by statute.
41. The question that follows is what this appellate court should do. Ordinarily, this court ought to correct such an irregularity by imposing the statutory prescribed sentence. However, in this case, such an act will amount to an enhancement of the sentence from 50 years’ imprisonment to life sentence. For such enhancement, it is trite law that the appellant ought to have been given prior notice of enhancement and there is no evidence of notice being given to the appellant.
42. Accordingly, this court finds no basis for interfering with the sentence.
FINAL DISPOSITION
43. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction was sound and the sentence lawful.
b) The appeal against both conviction and sentence is dismissed in its entirety.
c) The sentence of imposed by the trial court is hereby affirmed .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 17 th September 2026.
HCCA NO. E002 OF 2025 BOSCO MUTUNGA MBITHE VS REPUBLIC JUDGMENT Pg. 13