Being an appeal against the conviction only for the offence of defilement contrary to section 8(1)(3) of the Sexual Offences Act No.3 of 2006 judgment delivered by Hon. D.N. Sure PM on the 8th day of March, 2024 on the following grounds:
1. That, the learned trial Magistrate erred in law and facts by failing to note that my plea taking was unprocedural.
2. The Learned Trial Magistrate erred in law and facts by convicting me for the offence charged notwithstanding I was denied a fair trial.
3. That, the Learned Trial Magistrate erred in law and facts by convicting me notwithstanding the prosecution failed to prove the primary ingredients of the offence charged.
4. That, the Learned Trial Magistrate erred in law and facts by convicting me for the offence charged, notwithstanding there existed material contradictions and inconsistencies in the prosecution evidence.
5. That, I pray to be furnished with certified trial records in order to adduce more grounds in the written submissions.
Brief facts
The Appellant/accused was on 31/08/2020 charged at Principal Magistrate’s Court at Kangundo with Defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act.
The Appellant faced an alternative count of Committing an Indecent Act with a Child contrary to section 11(1) of the Sexual Offences Act.
Particulars of the offence was that on 21st day of August 202 at Kitwani area in Nguiuni, Matungulu sub county within Machakos county intentionally caused his penis to penetrate the vagina of E.M.K. a girl aged 15 years.
The Appellant/accused entered a plea of not guilty. The Prosecution adduced evidence through four (4) witnesses. The Appellant gave sworn testimony. The Trial court on the 8 March 2024 convicted the Appellant/ accused Defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and was sentenced to serve a period of 15 years’ imprisonment.
The sentence will start running from 31st August, 2020 when he took plea.
Being dissatisfied by the trial Court judgement and conviction filed an appeal before this Honourable court.
The prosecution’s case rested on the testimony of four witnesses.
The complainant, E.M.K. (PW1), a Form Two student born on 31st October 2005, testified that on 21 August 2020 at about 7.20 a.m. her mother sent her to her grandmother’s home for maize. Her cousin, the Appellant, called her, invited her into his house on the pretext of sending a message to her father, covered her nose with a black substance that made her dizzy and weak, pulled her inside, placed her on his bed, and defiled her after she lost consciousness. She later regained consciousness, found her trousers torn, covered herself with a sweater, and reported the incident to her mother. She also stated that the Appellant had previously defiled her sister in 2015, resulting in a pregnancy.
Her mother, Elizabeth Ndhunya Kitoo (PW2) confirmed sending her at about 7.30 a.m., becoming worried when she did not return, and receiving her at about 11.00 a.m. in a distressed state with torn trousers and a cut on her thigh. The girl immediately named the Appellant as the perpetrator. PW2 reported the matter to the Chief and police; the complainant was taken to hospital.
The investigating officer, No. 94864 Trifonia Mwanyola (PW3) confirmed the report received from Nguluni police post, produced the age-assessment report estimating the complainant’s age at 15–16 years, and produced the torn grey trousers and black inner wear as exhibits. The Appellant was arrested.
The clinical officer, Harrison Kaloki (PW4) examined the complainant on 24th August 2020. Findings included torn clothes with blood stains in the genital area, a broken hymen, whitish discharge, and the presence of 5–10 spermatozoa on laboratory examination. The P3 form, PRC form and treatment notes were produced as exhibits. There were no bruises or tears noted on the external genitalia.
Defence Case
The Appellant, a mason then aged about 20 years, denied the offence. He claimed the charge was fabricated due to a long-standing family grudge with his uncle (the complainant’s father). He stated that the complainant’s family had previously reported him and his wife for threats, that after his release from custody his uncle offered to withdraw the present case if he built a house and herded animals for him (which he refused), and that their relationship had soured after he disclosed certain matters the uncle preferred kept secret. He alleged the complainant was used by her mother to frame him because of earlier disputes and threats between the families.
Appellant submissions
Denial of fair trial, the appellant claims that he was not accorded fair trial as provided in Article 50(2)(g)(h) of the Constitution. The appellant took plea and pleaded not guilty. The court never informed him of his right to be represented by an advocate.
When he has placed on his defence on 14th February, 2024, the court complied with section 211(1) of the CPC. The appellant elected to give sworn evidence without calling any witnesses. The court never informed him of his right to an advocate.
The court convicted him for defilement and sentenced him to a harsh sentence of 15 years without informing him f his right to representation by an advocate.
On failure to call crucial witnesses, the prosecution failed to call grandmother who is adversely mentioned by PW1. In her narration, she has mentioned her yet grandmother is missing on the list of prosecution witnesses. She is a potential witness who allegedly knew the case Appellant of the accused allegedly defiling and impregnating sister to PW1 2015.The name of Chief who was mentioned by PW2, mother of PW1 mentioned here yet Chief was not called to shed some light and add weight in the prosecution case. PW1 has kept on mentioning her sister, in her testimony yet the prosecution did made no effort to call her.
In Keter V Republic [2007] 1 EA 135, failure to call essential witnesses may render evidence unreliable.
Proof of age of the complainant. It is the Appellant’s position that age of the minor was inconclusively proved. PW1 testified that she was born on 31st October, 2005. PW2 the complainant's mother in this case did not mention anywhere the age of her daughter. She testified that her birth certificate and other things got lost when they were chased away from home. This was not corroborated by medical evidence whereby the age assessment placed her age to be 15 years old. PW4, the clinical officer said that the complainant was 15 years old.
PW3 the investigating officer PC Trifonia Mwanyolo from Tala Police Station in her exam nation in-chief testified that she was about 15-16 years old. The opinion of the clinical officer on the age of the girl is therefore challenged hence inconsistency and contradicted evidence. The age assessment of the girl was not credible evidence in proof of her age.
The primary ingredients of defilement were reiterated in PK V Republic (Criminal Appeal E019 OF 2021) the court emphasizes that the correct elements (age, penetration, identity) must be proved beyond a reasonable doubt.
Whether penetration was proved, the P3 form was supposed to be filled on 21/8/2020 but not on 24/8/2020.The minor and the mother testified that they went to the hospital on the material date which was on 21/8/2020. How comes it is on 24/8/2020 and what was the cause of delay? On examination, the medical officer observed: Age: 15 years, Labia majora/minora: normal, Hymen: broken, whitish discharge on te perineum and upper vagina, No bruises, No tears/lacerations, No bleeding, No sign of recent trauma. The Appellant submits that these findings do not prove penetration.
The clinician did not state: When the hymen broke, whether the tear was fresh or old and whether it consistent with the alleged act. In C K W v Republic [2019] KEHC 9455 (KLR) the Court held:
“A broken hymen in itself is not proof of recent sexual activity.”
On identification of the perpetrator, PW1 testimony involves loss of consciousness and impaired senses. This weakens the identification reliability. In Wamunga v Republic [1989]KLR 424 held: ‘evidence of visual identification in difficult circumstances must be examined with the greatest care to avoid miscarriage of justice.
On defence, a trial court must analyze all evidence before it and consider the defence fairly and reasonably. The Court of Appeal in Gabriel Kamau Njoroge v Republic [1987]eKLR held that: The trial court must evaluate the defence and weigh it against the prosecution case; failure to do is an error in law.
In this case there existed a grudge between the two families. It is on record that there were differences but they resolved. PW1 testified that she had no personal differences yet she is on record testifying that the Appellant defiled and impregnated her sister in 2015. PW2 also testified that she had no personal differences with Brian. She went ahead to testify that the Appellant defiled and impregnated her sister. That was before this case. The grandmother called her and offered to give her maize. She had chased them away about three years ago.
Respondent submission
On fair trial, the respondent submit that the Appellant was accorded a fair trial as envisaged in Article 50 of the constitution. The plea was equivocal, he was supplied with all the prosecution evidence that the prosecution intended to rely on well in advance to allow him prepare for his case, he was accorded sufficient time to prepare for his trial, the witnesses testified in his presence and he was accorded sufficient time to cross-examine the witnesses, the magistrate was transferred pre-trial directions under Section 200 of the Criminal Procedure Code was followed and he was accorded ample time to tender in his defence and avail witnesses to support his case. the Appellant was accorded a fair trial and they this Honourable Court to reject this ground of appeal.
Whether the case was proved beyond reasonable doubt, Section 8(1) of the Sexual Offences Act provides: ‘A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.’
Penetration, the evidence of PW1 is corroborated by PW4. The Appellant drugged her and defiled her. He tore her trousers which were produced as evidence. The hymen is broken and there was evidence of spermatozoa seen. The evidence of penetration is solid and proved.
Age, PW1 indicated she was born on 31/10/2005. PW 3 produced the age assessment report as PExt. 1 which estimated her age as 15 — 16 years. Age is proved. The Court of Appeal in Mwalango Chichoro Mwanjembe v Republic (2016) eKLR held that:
" the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documentary evidence such as birth certificate, baptism cards or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardians or medical evidence among other credible forms of proof."
The Appellant has not brought any new material facts to dispute the fact of age.
Identity, the victim PW1 states that her cousin the Appellant called her and took him to his house. It was day time in the morning thus the lightening was sufficient. PW1 told her mother what happened and stated that it was the Appellant her cousin who defiled her. During her evidence PW1 referred to the Appellant by his name as “my cousin Brian” she was able to identify him. He was someone well known to her. The incident happened during the day this lighting was adequate. PW1 confirms that the Appellant was her cousin.
Defence, the Appellant tendered sworn evidence. He denied the incident and denies defiling the victim. He further indicates there was some bad blood between him and the victim’s family and that this was a case of revenge. They submit the defence was an afterthought and Trial Court did take into account the Appellant's defence and was correct in dismissing it.
Sentence, the Appellant was sentences to 15 years’ imprisonment. The Appellant in mitigation prayed to be forgiven and that it was his first offence and he had a family that relied on him.
The supreme court judgment in Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023 held: the courts are bound by the minimum mandatory sentence as provided for by law.
They submit that the sentence was legal and proper as prescribed by law.
Issues
1. Whether the Appellant was accorded a fair trial.
2. Whether the ingredients of defilement were proved beyond reasonable doubt.
Analysis
This being a first appeal, the court is enjoined to re-evaluate the evidence afresh, draw its own conclusions and satisfy itself that the conviction is safe, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. The classic statement of the principle is found in Okeno v Republic [1972] EA 32.
Fair trial and plea-taking
Article 50(2) of the Constitution guarantees every accused person the right to a fair trial, which includes the right to be informed promptly of the right to choose and be represented by an advocate (clause (g)) and the right to have an advocate assigned by the State at State expense if substantial injustice would otherwise result (clause (h)).
The record shows that the Appellant was arraigned, the charge was read and explained, and he entered a plea of not guilty. He was supplied with the statements and exhibits in advance. All witnesses testified in his presence and he cross-examined them. When placed on his defence under section 211 of the Criminal Procedure Code he elected to give sworn evidence and called no witnesses.
While the trial court ought to have recorded an express caution on the right to counsel, the failure does not, on the facts of this case, amount to a miscarriage of justice. The right to State-funded representation under Article 50(2)(h) is progressive and has been held to apply primarily where substantial injustice would otherwise result, particularly in capital cases
Republic v Karisa Chengo & 2 others [2017] eKLR).
The court held: On the issue of legal representation, the Court of Appeal held that under article 50(2)(h) of the Constitution an accused person was entitled to legal representation at the State’s expense, only where substantial injustice would otherwise be occasioned in the absence of such legal representation. The court also held that the right to legal representation at the State’s expense was a progressive right that could only be realized when certain legislative steps had been taken.
The Appellant fully participated in the trial, cross-examined witnesses and mounted a coherent defence. No prejudice has been demonstrated. The ground therefore fails.
The three ingredients of defilement under section 8(1) of the Sexual Offences Act are:
(a) the age of the complainant (that she was a child);
(b) penetration; and
(c) the positive identification of the perpetrator.
Age
PW1 testified that she was born on 31st October 2005. The investigating officer (PW3) produced an age-assessment report estimating her age at 15–16 years. The clinical officer (PW4) recorded her age as 15 years. Although the birth certificate was said to have been lost, the Court of Appeal has settled that age may be proved by oral evidence of the child, evidence of a parent or guardian, medical evidence or other credible means.
Mwalango Chichoro Mwanjembe v Republic [2016] eKLR
It ruled that proof of age is settled and can be established through multiple credible channels: Documentary evidence (such as a birth certificate or baptismal card). Oral testimony from the child (if sufficiently intelligent) or from parents, guardians, or medical officers. Observation and common sense by the court where applicable.
The apparent age of the complainant was clearly under eighteen years. The ingredient was proved.
Penetration
PW1 gave a clear and consistent account of the events: the invitation into the accused ‘s house, the application of a substance that rendered her dizzy and unconscious, the tearing of her trousers, and the act of sexual intercourse. Her evidence was corroborated by the production of the torn grey trousers and black inner wear (exhibits) and by the medical evidence of PW4. The P3 and PRC forms recorded a broken hymen, whitish discharge on the perineum and upper vagina, and the presence of 5–10 spermatozoa on laboratory examination. Blood stains were noted on the genital area of the trousers.
While a broken hymen is not conclusive proof of recent penetration (See C.K.W. v Republic [2019] KEHC 9455 (KLR), the combination of the complainant’s testimony, the torn clothing, the presence of spermatozoa and the clinical findings clearly established penetration within the meaning of section 2 of the Sexual Offences Act.
Under the Section 124 of the Evidence Act the court may convict on the sole evidence of the victim if satisfied that she is telling the truth. The trial court was so satisfied, and this court, on re-evaluation, reaches the same conclusion.
Identification
PW1 repeatedly referred to the Appellant as “my cousin Brian”. The incident occurred in broad daylight outside and inside a house she knew. Recognition evidence of a person well known to the witness is generally more reliable than identification of a stranger, provided the circumstances are favourable.
Wamunga v Republic [1989] KLR 424
Held: Where the only evidence against a defendant was evidence of identification or recognition, a trial court was enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it could safely make it the basis of a conviction.
The ingredient was proved beyond reasonable doubt.
Alleged contradictions and failure to call witnesses
The Appellant pointed to the discrepancy between the date the complainant and her mother said they went to hospital (21st August 2020) and the date the P3 was completed (24th August 2020), and to the non-calling of the grandmother, the chief and the complainant’s sister.
Minor discrepancies that do not go to the root of the case are not fatal
In Erick Onyango Ondeng’ v Republic [2014] eKLR
In BUKENYA & OTHERS VS UGANDA (supra), the former East Africa Court of Appeal held that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent; that the court itself had the duty to call any person whose evidence appears essential to the just decision of the case;……
The medical examination was conducted within a short time of the incident and the findings remained consistent with the complaint.
The prosecution is not obliged to call every conceivable witness. Failure to call a particular witness only attracts an adverse inference where the evidence already adduced is barely sufficient or the missing witness is essential to fill a material gap (see Bukenya & others v Uganda [1972]
In the present case the evidence of PW1, PW2, PW3 and PW4 was sufficient.
This ground of appeal fails.
The defence
The Appellant alleged a family grudge stemming from earlier threats and disputes. Both PW1 and PW2 denied any personal differences with the Appellant at the material time, although they acknowledged earlier family disagreements that had been resolved. The defence was considered and properly rejected as an afterthought that did not displace the strong prosecution evidence.
My finding is that having re-evaluated the entire record, I am satisfied that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt.
The appeal lacks merit and is hereby dismissed.
READ AND PUBLISHED IN THE CTS THIS 9TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELLANT
BEFORE HON JOYCE GANDANI, HIGH COURT JUDGE
PROSECUTOR MACHUMA
COURT ASSISTANT DIANA
1. That, the learned trial Magistrate erred in law and facts by failing to note that my plea taking was unprocedural.
2. The Learned Trial Magistrate erred in law and facts by convicting me for the offence charged notwithstanding I was denied a fair trial.
3. That, the Learned Trial Magistrate erred in law and facts by convicting me notwithstanding the prosecution failed to prove the primary ingredients of the offence charged.
4. That, the Learned Trial Magistrate erred in law and facts by convicting me for the offence charged, notwithstanding there existed material contradictions and inconsistencies in the prosecution evidence.
5. That, I pray to be furnished with certified trial records in order to adduce more grounds in the written submissions.
Brief facts
The Appellant/accused was on 31/08/2020 charged at Principal Magistrate’s Court at Kangundo with Defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act.
The Appellant faced an alternative count of Committing an Indecent Act with a Child contrary to section 11(1) of the Sexual Offences Act.
Particulars of the offence was that on 21st day of August 202 at Kitwani area in Nguiuni, Matungulu sub county within Machakos county intentionally caused his penis to penetrate the vagina of E.M.K. a girl aged 15 years.
The Appellant/accused entered a plea of not guilty. The Prosecution adduced evidence through four (4) witnesses. The Appellant gave sworn testimony. The Trial court on the 8 March 2024 convicted the Appellant/ accused Defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and was sentenced to serve a period of 15 years’ imprisonment.
The sentence will start running from 31st August, 2020 when he took plea.
Being dissatisfied by the trial Court judgement and conviction filed an appeal before this Honourable court.
The prosecution’s case rested on the testimony of four witnesses.
The complainant, E.M.K. (PW1), a Form Two student born on 31st October 2005, testified that on 21 August 2020 at about 7.20 a.m. her mother sent her to her grandmother’s home for maize. Her cousin, the Appellant, called her, invited her into his house on the pretext of sending a message to her father, covered her nose with a black substance that made her dizzy and weak, pulled her inside, placed her on his bed, and defiled her after she lost consciousness. She later regained consciousness, found her trousers torn, covered herself with a sweater, and reported the incident to her mother. She also stated that the Appellant had previously defiled her sister in 2015, resulting in a pregnancy.
Her mother, Elizabeth Ndhunya Kitoo (PW2) confirmed sending her at about 7.30 a.m., becoming worried when she did not return, and receiving her at about 11.00 a.m. in a distressed state with torn trousers and a cut on her thigh. The girl immediately named the Appellant as the perpetrator. PW2 reported the matter to the Chief and police; the complainant was taken to hospital.
The investigating officer, No. 94864 Trifonia Mwanyola (PW3) confirmed the report received from Nguluni police post, produced the age-assessment report estimating the complainant’s age at 15–16 years, and produced the torn grey trousers and black inner wear as exhibits. The Appellant was arrested.
The clinical officer, Harrison Kaloki (PW4) examined the complainant on 24th August 2020. Findings included torn clothes with blood stains in the genital area, a broken hymen, whitish discharge, and the presence of 5–10 spermatozoa on laboratory examination. The P3 form, PRC form and treatment notes were produced as exhibits. There were no bruises or tears noted on the external genitalia.
Defence Case
The Appellant, a mason then aged about 20 years, denied the offence. He claimed the charge was fabricated due to a long-standing family grudge with his uncle (the complainant’s father). He stated that the complainant’s family had previously reported him and his wife for threats, that after his release from custody his uncle offered to withdraw the present case if he built a house and herded animals for him (which he refused), and that their relationship had soured after he disclosed certain matters the uncle preferred kept secret. He alleged the complainant was used by her mother to frame him because of earlier disputes and threats between the families.
Appellant submissions
Denial of fair trial, the appellant claims that he was not accorded fair trial as provided in Article 50(2)(g)(h) of the Constitution. The appellant took plea and pleaded not guilty. The court never informed him of his right to be represented by an advocate.
When he has placed on his defence on 14th February, 2024, the court complied with section 211(1) of the CPC. The appellant elected to give sworn evidence without calling any witnesses. The court never informed him of his right to an advocate.
The court convicted him for defilement and sentenced him to a harsh sentence of 15 years without informing him f his right to representation by an advocate.
On failure to call crucial witnesses, the prosecution failed to call grandmother who is adversely mentioned by PW1. In her narration, she has mentioned her yet grandmother is missing on the list of prosecution witnesses. She is a potential witness who allegedly knew the case Appellant of the accused allegedly defiling and impregnating sister to PW1 2015.The name of Chief who was mentioned by PW2, mother of PW1 mentioned here yet Chief was not called to shed some light and add weight in the prosecution case. PW1 has kept on mentioning her sister, in her testimony yet the prosecution did made no effort to call her.
In Keter V Republic [2007] 1 EA 135, failure to call essential witnesses may render evidence unreliable.
Proof of age of the complainant. It is the Appellant’s position that age of the minor was inconclusively proved. PW1 testified that she was born on 31st October, 2005. PW2 the complainant's mother in this case did not mention anywhere the age of her daughter. She testified that her birth certificate and other things got lost when they were chased away from home. This was not corroborated by medical evidence whereby the age assessment placed her age to be 15 years old. PW4, the clinical officer said that the complainant was 15 years old.
PW3 the investigating officer PC Trifonia Mwanyolo from Tala Police Station in her exam nation in-chief testified that she was about 15-16 years old. The opinion of the clinical officer on the age of the girl is therefore challenged hence inconsistency and contradicted evidence. The age assessment of the girl was not credible evidence in proof of her age.
The primary ingredients of defilement were reiterated in PK V Republic (Criminal Appeal E019 OF 2021) the court emphasizes that the correct elements (age, penetration, identity) must be proved beyond a reasonable doubt.
Whether penetration was proved, the P3 form was supposed to be filled on 21/8/2020 but not on 24/8/2020.The minor and the mother testified that they went to the hospital on the material date which was on 21/8/2020. How comes it is on 24/8/2020 and what was the cause of delay? On examination, the medical officer observed: Age: 15 years, Labia majora/minora: normal, Hymen: broken, whitish discharge on te perineum and upper vagina, No bruises, No tears/lacerations, No bleeding, No sign of recent trauma. The Appellant submits that these findings do not prove penetration.
The clinician did not state: When the hymen broke, whether the tear was fresh or old and whether it consistent with the alleged act. In C K W v Republic [2019] KEHC 9455 (KLR) the Court held:
“A broken hymen in itself is not proof of recent sexual activity.”
On identification of the perpetrator, PW1 testimony involves loss of consciousness and impaired senses. This weakens the identification reliability. In Wamunga v Republic [1989]KLR 424 held: ‘evidence of visual identification in difficult circumstances must be examined with the greatest care to avoid miscarriage of justice.
On defence, a trial court must analyze all evidence before it and consider the defence fairly and reasonably. The Court of Appeal in Gabriel Kamau Njoroge v Republic [1987]eKLR held that: The trial court must evaluate the defence and weigh it against the prosecution case; failure to do is an error in law.
In this case there existed a grudge between the two families. It is on record that there were differences but they resolved. PW1 testified that she had no personal differences yet she is on record testifying that the Appellant defiled and impregnated her sister in 2015. PW2 also testified that she had no personal differences with Brian. She went ahead to testify that the Appellant defiled and impregnated her sister. That was before this case. The grandmother called her and offered to give her maize. She had chased them away about three years ago.
Respondent submission
On fair trial, the respondent submit that the Appellant was accorded a fair trial as envisaged in Article 50 of the constitution. The plea was equivocal, he was supplied with all the prosecution evidence that the prosecution intended to rely on well in advance to allow him prepare for his case, he was accorded sufficient time to prepare for his trial, the witnesses testified in his presence and he was accorded sufficient time to cross-examine the witnesses, the magistrate was transferred pre-trial directions under Section 200 of the Criminal Procedure Code was followed and he was accorded ample time to tender in his defence and avail witnesses to support his case. the Appellant was accorded a fair trial and they this Honourable Court to reject this ground of appeal.
Whether the case was proved beyond reasonable doubt, Section 8(1) of the Sexual Offences Act provides: ‘A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.’
Penetration, the evidence of PW1 is corroborated by PW4. The Appellant drugged her and defiled her. He tore her trousers which were produced as evidence. The hymen is broken and there was evidence of spermatozoa seen. The evidence of penetration is solid and proved.
Age, PW1 indicated she was born on 31/10/2005. PW 3 produced the age assessment report as PExt. 1 which estimated her age as 15 — 16 years. Age is proved. The Court of Appeal in Mwalango Chichoro Mwanjembe v Republic (2016) eKLR held that:
" the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documentary evidence such as birth certificate, baptism cards or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardians or medical evidence among other credible forms of proof."
The Appellant has not brought any new material facts to dispute the fact of age.
Identity, the victim PW1 states that her cousin the Appellant called her and took him to his house. It was day time in the morning thus the lightening was sufficient. PW1 told her mother what happened and stated that it was the Appellant her cousin who defiled her. During her evidence PW1 referred to the Appellant by his name as “my cousin Brian” she was able to identify him. He was someone well known to her. The incident happened during the day this lighting was adequate. PW1 confirms that the Appellant was her cousin.
Defence, the Appellant tendered sworn evidence. He denied the incident and denies defiling the victim. He further indicates there was some bad blood between him and the victim’s family and that this was a case of revenge. They submit the defence was an afterthought and Trial Court did take into account the Appellant's defence and was correct in dismissing it.
Sentence, the Appellant was sentences to 15 years’ imprisonment. The Appellant in mitigation prayed to be forgiven and that it was his first offence and he had a family that relied on him.
The supreme court judgment in Republic v Joshua Gichuki Mwangi SC Petition No. E018 of 2023 held: the courts are bound by the minimum mandatory sentence as provided for by law.
They submit that the sentence was legal and proper as prescribed by law.
Issues
1. Whether the Appellant was accorded a fair trial.
2. Whether the ingredients of defilement were proved beyond reasonable doubt.
Analysis
This being a first appeal, the court is enjoined to re-evaluate the evidence afresh, draw its own conclusions and satisfy itself that the conviction is safe, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. The classic statement of the principle is found in Okeno v Republic [1972] EA 32.
Fair trial and plea-taking
Article 50(2) of the Constitution guarantees every accused person the right to a fair trial, which includes the right to be informed promptly of the right to choose and be represented by an advocate (clause (g)) and the right to have an advocate assigned by the State at State expense if substantial injustice would otherwise result (clause (h)).
The record shows that the Appellant was arraigned, the charge was read and explained, and he entered a plea of not guilty. He was supplied with the statements and exhibits in advance. All witnesses testified in his presence and he cross-examined them. When placed on his defence under section 211 of the Criminal Procedure Code he elected to give sworn evidence and called no witnesses.
While the trial court ought to have recorded an express caution on the right to counsel, the failure does not, on the facts of this case, amount to a miscarriage of justice. The right to State-funded representation under Article 50(2)(h) is progressive and has been held to apply primarily where substantial injustice would otherwise result, particularly in capital cases
Republic v Karisa Chengo & 2 others [2017] eKLR).
The court held: On the issue of legal representation, the Court of Appeal held that under article 50(2)(h) of the Constitution an accused person was entitled to legal representation at the State’s expense, only where substantial injustice would otherwise be occasioned in the absence of such legal representation. The court also held that the right to legal representation at the State’s expense was a progressive right that could only be realized when certain legislative steps had been taken.
The Appellant fully participated in the trial, cross-examined witnesses and mounted a coherent defence. No prejudice has been demonstrated. The ground therefore fails.
The three ingredients of defilement under section 8(1) of the Sexual Offences Act are:
(a) the age of the complainant (that she was a child);
(b) penetration; and
(c) the positive identification of the perpetrator.
Age
PW1 testified that she was born on 31st October 2005. The investigating officer (PW3) produced an age-assessment report estimating her age at 15–16 years. The clinical officer (PW4) recorded her age as 15 years. Although the birth certificate was said to have been lost, the Court of Appeal has settled that age may be proved by oral evidence of the child, evidence of a parent or guardian, medical evidence or other credible means.
Mwalango Chichoro Mwanjembe v Republic [2016] eKLR
It ruled that proof of age is settled and can be established through multiple credible channels: Documentary evidence (such as a birth certificate or baptismal card). Oral testimony from the child (if sufficiently intelligent) or from parents, guardians, or medical officers. Observation and common sense by the court where applicable.
The apparent age of the complainant was clearly under eighteen years. The ingredient was proved.
Penetration
PW1 gave a clear and consistent account of the events: the invitation into the accused ‘s house, the application of a substance that rendered her dizzy and unconscious, the tearing of her trousers, and the act of sexual intercourse. Her evidence was corroborated by the production of the torn grey trousers and black inner wear (exhibits) and by the medical evidence of PW4. The P3 and PRC forms recorded a broken hymen, whitish discharge on the perineum and upper vagina, and the presence of 5–10 spermatozoa on laboratory examination. Blood stains were noted on the genital area of the trousers.
While a broken hymen is not conclusive proof of recent penetration (See C.K.W. v Republic [2019] KEHC 9455 (KLR), the combination of the complainant’s testimony, the torn clothing, the presence of spermatozoa and the clinical findings clearly established penetration within the meaning of section 2 of the Sexual Offences Act.
Under the Section 124 of the Evidence Act the court may convict on the sole evidence of the victim if satisfied that she is telling the truth. The trial court was so satisfied, and this court, on re-evaluation, reaches the same conclusion.
Identification
PW1 repeatedly referred to the Appellant as “my cousin Brian”. The incident occurred in broad daylight outside and inside a house she knew. Recognition evidence of a person well known to the witness is generally more reliable than identification of a stranger, provided the circumstances are favourable.
Wamunga v Republic [1989] KLR 424
Held: Where the only evidence against a defendant was evidence of identification or recognition, a trial court was enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it could safely make it the basis of a conviction.
The ingredient was proved beyond reasonable doubt.
Alleged contradictions and failure to call witnesses
The Appellant pointed to the discrepancy between the date the complainant and her mother said they went to hospital (21st August 2020) and the date the P3 was completed (24th August 2020), and to the non-calling of the grandmother, the chief and the complainant’s sister.
Minor discrepancies that do not go to the root of the case are not fatal
In Erick Onyango Ondeng’ v Republic [2014] eKLR
In BUKENYA & OTHERS VS UGANDA (supra), the former East Africa Court of Appeal held that the prosecution has a duty to call all the witnesses necessary to establish the truth even though their evidence may be inconsistent; that the court itself had the duty to call any person whose evidence appears essential to the just decision of the case;……
The medical examination was conducted within a short time of the incident and the findings remained consistent with the complaint.
The prosecution is not obliged to call every conceivable witness. Failure to call a particular witness only attracts an adverse inference where the evidence already adduced is barely sufficient or the missing witness is essential to fill a material gap (see Bukenya & others v Uganda [1972]
In the present case the evidence of PW1, PW2, PW3 and PW4 was sufficient.
This ground of appeal fails.
The defence
The Appellant alleged a family grudge stemming from earlier threats and disputes. Both PW1 and PW2 denied any personal differences with the Appellant at the material time, although they acknowledged earlier family disagreements that had been resolved. The defence was considered and properly rejected as an afterthought that did not displace the strong prosecution evidence.
My finding is that having re-evaluated the entire record, I am satisfied that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt.
The appeal lacks merit and is hereby dismissed.
READ AND PUBLISHED IN THE CTS THIS 9TH SEPTEMBER 2026 IN THE PRESENCE OF:
THE APPELLANT
BEFORE HON JOYCE GANDANI, HIGH COURT JUDGE
PROSECUTOR MACHUMA
COURT ASSISTANT DIANA