(Being an appeal from the judgment of Hon. C. Cheruiyot dated 8/1/25).
The appellant was convicted and sentenced to imprisonment for 20 years for 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 appellant challenged the conviction and sentence upon the grounds set out in his memorandum of appeal as follows:
1) That the trial magistrate misdirected himself when he failed to critically analyze the entire evidence and realize that the inconsistencies could not sustain a conviction
2) That the learned trial magistrate disregarded all open discrepancies in the evidence of the complainant thereby occasioning an injustice
3) That the sentence meted was harsh and excessive
In his submissions the appellant stated that there were glaring contradictions in the evidence of the prosecution. In particular, the appellant submitted that there were contradictions in the evidence of PW2 and PW4. The appellant further submitted that the prosecution’s evidence was based on suspicions. That the evidence of PW1 was inadmissible as she did not understand the meaning of oath.
The appellant further submitted that the trial magistrate erred in failing to consider the alibi defence by the appellant.
The respondent opposed the appeal. The respondent submitted that all the key ingredients of the charge of defilement were proved beyond reasonable doubt as required. In support of its case, the respondent cited the case of Mwalango Chichoro Mwanjembe v Republic (2016) eKLR on how the age of the victim ought to be proved. That a birth certificate was produced as evidence of age. That the P3 form and the evidence of PW1 and PW4 proved that there was penetration between the genitals of the victim and the appellant. The prosecution further submitted that there was overwhelming evidence that the appellant was positively identified by the victim.
The prosecution’s (respondent’s) case in summary was as follows;
PW1, I.M, a minor testified that on 3/10/23 her mother (PW2) found her chatting with her friend and the appellant. The appellant ran away and she ran to the house of a friend by the name Sulu where she stayed until 10.00pm. She testified that she later went to the house of the appellant where she spent the night and hand unprotected sexual intercourse with him. Her mother visited the appellant’s house the next morning but the latter had gone out. She went to school and mother picked her from school, escorted her to hospital and to the police station where a report was made. PW1 positively identified the appellant.
PW2, N.S., the minor’s mother testified that on 3/10/23 she left her business premise to her house where she found PW1 near a plot in the company of the appellant. The appellant was touching and caressing her. The appellant saw her and ran away. She threw a stone at him. PW1 did not go home that evening. She searched the appellant’s house and found it locked. She went to the appellant’s house at 5am of the following morning and found PW1 inside. The appellant had run away. She asked PW1 to go home. She reported to the area chief, later escorted PW1 to hospital and to Kakamega Police Station.
PW3, PC Beatrice Chemutai, the investigating officer, testified that she did receive the report of defilement on 4/10/23 at noon. The report was made by PW2 in the company of PW1. She recorded the report in the occurrence book and later recorded the statement of PW1 who narrated how she spent a night in the house of the appellant where they had unprotected sexual intercourse. She also produced birth certificate for PW1 indicating her date of birth as 8/6/2008.
PW4, Edwin Wanyonyi, an officer at Kakamega County Referral hospital, G.B. V department testified that he did examine PW1.He filled a P3 form and PRC forms for PW1 on 3/10/23. His examination revealed that PW1’s hymen was missing. He also learnt from the history that PW1 had sexual intercourse with the appellant before. PW4 produced the P3 form, PRC form and treatment notes as exhibits.
The trial court in its ruling on case to answer found that a prima facie case had been established against the appellant. He was placed on his defence and the electives under section 211 of the Criminal Procedure Code were explained to him. He elected to give sworn evidence and called two witnesses.
In his defence the appellant testified that on the material day he was from work and was carrying the wages of two of his colleagues who had left their work place earlier than him. That he was instructing PW1 to give the information concerning his colleagues’ wages when PW2 arrived and threw stones at him. He testified that he had a wife and child. He denied that PW1 had spent a night at his house.
PW2, Dickson Mwavali testified that he is a cousin to the appellant. He testified that he did not see the accused with PW1.
DW3, Sulumare Bwasi, testified that on 3/10/23 at 6pm she saw the appellant making enquiries about his colleagues with PW1 when PW2 arrived and threw stones at the appellant. She later left with PW1 to her place and a Mogaka went to her house at 10pm asking for PW1. The two left together. That later PW1 came at 4am asking her to take her home and she escorted her via a route that passes through the appellant’s place.
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of this court is as stated in the case of Mark Oiruri Mose v R (2013) eKLR thus:
“The court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
The appellant herein has challenged both the conviction and the sentence.
In a charge of defilement, it behooves the prosecution to prove beyond reasonable doubt the key ingredients as envisaged in section 8(1) of the Sexual Offences Act thus; the victim was a minor, that there was an act of penetration and that there is evidence that the perpetrator was positively identified.
In the present case, the charge sheet indicated the victim’s age to be 15 years. In proof of age, the prosecution produced before court the victim’s certificate of birth. The trial magistrate stated as follows:
“According to the birth certificate produced, PW1 was born on 8/6/2008 and the offence took place on 3/10/23. It is therefore the court’s finding that PW1 was a minor aged 15 years old.”
I have perused the record and come to the conclusion that the victim’s age was adequately proved.
The second issue is whether penetration was proved. In her evidence, the victim (PW1) testified that she went to the appellant’s house where she spent a night and the two had unprotected sexual intercourse. The medical evidence by PW4 show that the hymen was broken. In fact, the history given to PW4 show that the appellant had sexual intercourse with the victim more than once before the 3/10/23. I find that penetration was proved beyond reasonable doubt.
The last element to be proved is the identity of the penetrator. The victim identified the appellant as a neighbor. Throughout the presentation of the prosecution’s case there was no indication that PW1 may have been mistaken about the identity of the person who defiled her. She knew the appellant well. The appellant on his part confirmed that he knew the victim well, even referring to her by name during his testimony. The identification of the appellant was by way of recognition and I find no error in identification.
The appellant challenged the finding of the trial court on the grounds that his evidence was ignored. In a charge of the nature facing the appellant, the proviso to section 124 of the Evidence Act provides:
“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.”
From the evidence on record, the court did conduct a voir dire examination of the minor (PW1). The trial court concluded that she could give evidence on oath. Excerpts of her evidence state as follows:
“…I returned to Brian’s house, the accused person. I met him and slept at his house and I slept with him and had unprotected sexual intercourse once.”
In cross examination, the appellant never challenged the evidence by PW1 that she spent the night in his house and that the two had unprotected sexual intercourse. I find that from the totality of the evidence on record, the victim’s evidence remained unimpeached. There is nothing to show that she was untruthful or that she had a motive to lie against the appellant.
The sentence meted against the appellant was the minimum provided in law for the offence with which she had been convicted. Based on the reasons foretasted, I find no merit in this appeal and I proceed to make the following orders:
i) This appeal stands dismissed
ii) The conviction is upheld and the sentence is confirmed
iii) The sentence shall be computed from the date of conviction in the lower court. I note that the appellant was out on bond in the lower court. The period between 21.11.2023 and 30.12.23 when he was remanded prior to his release on bond shall be deducted accordingly.
DATED, SIGNED AND DELIVERED THIS
29 TH JULY 2026
D.O. ONYANGO
JUDGE
1
The appellant was convicted and sentenced to imprisonment for 20 years for 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 appellant challenged the conviction and sentence upon the grounds set out in his memorandum of appeal as follows:
1) That the trial magistrate misdirected himself when he failed to critically analyze the entire evidence and realize that the inconsistencies could not sustain a conviction
2) That the learned trial magistrate disregarded all open discrepancies in the evidence of the complainant thereby occasioning an injustice
3) That the sentence meted was harsh and excessive
In his submissions the appellant stated that there were glaring contradictions in the evidence of the prosecution. In particular, the appellant submitted that there were contradictions in the evidence of PW2 and PW4. The appellant further submitted that the prosecution’s evidence was based on suspicions. That the evidence of PW1 was inadmissible as she did not understand the meaning of oath.
The appellant further submitted that the trial magistrate erred in failing to consider the alibi defence by the appellant.
The respondent opposed the appeal. The respondent submitted that all the key ingredients of the charge of defilement were proved beyond reasonable doubt as required. In support of its case, the respondent cited the case of Mwalango Chichoro Mwanjembe v Republic (2016) eKLR on how the age of the victim ought to be proved. That a birth certificate was produced as evidence of age. That the P3 form and the evidence of PW1 and PW4 proved that there was penetration between the genitals of the victim and the appellant. The prosecution further submitted that there was overwhelming evidence that the appellant was positively identified by the victim.
The prosecution’s (respondent’s) case in summary was as follows;
PW1, I.M, a minor testified that on 3/10/23 her mother (PW2) found her chatting with her friend and the appellant. The appellant ran away and she ran to the house of a friend by the name Sulu where she stayed until 10.00pm. She testified that she later went to the house of the appellant where she spent the night and hand unprotected sexual intercourse with him. Her mother visited the appellant’s house the next morning but the latter had gone out. She went to school and mother picked her from school, escorted her to hospital and to the police station where a report was made. PW1 positively identified the appellant.
PW2, N.S., the minor’s mother testified that on 3/10/23 she left her business premise to her house where she found PW1 near a plot in the company of the appellant. The appellant was touching and caressing her. The appellant saw her and ran away. She threw a stone at him. PW1 did not go home that evening. She searched the appellant’s house and found it locked. She went to the appellant’s house at 5am of the following morning and found PW1 inside. The appellant had run away. She asked PW1 to go home. She reported to the area chief, later escorted PW1 to hospital and to Kakamega Police Station.
PW3, PC Beatrice Chemutai, the investigating officer, testified that she did receive the report of defilement on 4/10/23 at noon. The report was made by PW2 in the company of PW1. She recorded the report in the occurrence book and later recorded the statement of PW1 who narrated how she spent a night in the house of the appellant where they had unprotected sexual intercourse. She also produced birth certificate for PW1 indicating her date of birth as 8/6/2008.
PW4, Edwin Wanyonyi, an officer at Kakamega County Referral hospital, G.B. V department testified that he did examine PW1.He filled a P3 form and PRC forms for PW1 on 3/10/23. His examination revealed that PW1’s hymen was missing. He also learnt from the history that PW1 had sexual intercourse with the appellant before. PW4 produced the P3 form, PRC form and treatment notes as exhibits.
The trial court in its ruling on case to answer found that a prima facie case had been established against the appellant. He was placed on his defence and the electives under section 211 of the Criminal Procedure Code were explained to him. He elected to give sworn evidence and called two witnesses.
In his defence the appellant testified that on the material day he was from work and was carrying the wages of two of his colleagues who had left their work place earlier than him. That he was instructing PW1 to give the information concerning his colleagues’ wages when PW2 arrived and threw stones at him. He testified that he had a wife and child. He denied that PW1 had spent a night at his house.
PW2, Dickson Mwavali testified that he is a cousin to the appellant. He testified that he did not see the accused with PW1.
DW3, Sulumare Bwasi, testified that on 3/10/23 at 6pm she saw the appellant making enquiries about his colleagues with PW1 when PW2 arrived and threw stones at the appellant. She later left with PW1 to her place and a Mogaka went to her house at 10pm asking for PW1. The two left together. That later PW1 came at 4am asking her to take her home and she escorted her via a route that passes through the appellant’s place.
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of this court is as stated in the case of Mark Oiruri Mose v R (2013) eKLR thus:
“The court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
The appellant herein has challenged both the conviction and the sentence.
In a charge of defilement, it behooves the prosecution to prove beyond reasonable doubt the key ingredients as envisaged in section 8(1) of the Sexual Offences Act thus; the victim was a minor, that there was an act of penetration and that there is evidence that the perpetrator was positively identified.
In the present case, the charge sheet indicated the victim’s age to be 15 years. In proof of age, the prosecution produced before court the victim’s certificate of birth. The trial magistrate stated as follows:
“According to the birth certificate produced, PW1 was born on 8/6/2008 and the offence took place on 3/10/23. It is therefore the court’s finding that PW1 was a minor aged 15 years old.”
I have perused the record and come to the conclusion that the victim’s age was adequately proved.
The second issue is whether penetration was proved. In her evidence, the victim (PW1) testified that she went to the appellant’s house where she spent a night and the two had unprotected sexual intercourse. The medical evidence by PW4 show that the hymen was broken. In fact, the history given to PW4 show that the appellant had sexual intercourse with the victim more than once before the 3/10/23. I find that penetration was proved beyond reasonable doubt.
The last element to be proved is the identity of the penetrator. The victim identified the appellant as a neighbor. Throughout the presentation of the prosecution’s case there was no indication that PW1 may have been mistaken about the identity of the person who defiled her. She knew the appellant well. The appellant on his part confirmed that he knew the victim well, even referring to her by name during his testimony. The identification of the appellant was by way of recognition and I find no error in identification.
The appellant challenged the finding of the trial court on the grounds that his evidence was ignored. In a charge of the nature facing the appellant, the proviso to section 124 of the Evidence Act provides:
“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.”
From the evidence on record, the court did conduct a voir dire examination of the minor (PW1). The trial court concluded that she could give evidence on oath. Excerpts of her evidence state as follows:
“…I returned to Brian’s house, the accused person. I met him and slept at his house and I slept with him and had unprotected sexual intercourse once.”
In cross examination, the appellant never challenged the evidence by PW1 that she spent the night in his house and that the two had unprotected sexual intercourse. I find that from the totality of the evidence on record, the victim’s evidence remained unimpeached. There is nothing to show that she was untruthful or that she had a motive to lie against the appellant.
The sentence meted against the appellant was the minimum provided in law for the offence with which she had been convicted. Based on the reasons foretasted, I find no merit in this appeal and I proceed to make the following orders:
i) This appeal stands dismissed
ii) The conviction is upheld and the sentence is confirmed
iii) The sentence shall be computed from the date of conviction in the lower court. I note that the appellant was out on bond in the lower court. The period between 21.11.2023 and 30.12.23 when he was remanded prior to his release on bond shall be deducted accordingly.
DATED, SIGNED AND DELIVERED THIS
29 TH JULY 2026
D.O. ONYANGO
JUDGE
1