[1] This is an appeal from the decision of the Magistrate’s Court in Homa Bay Chief Magistrate’s Court Sexual Offence Case No. E006 of 2024: Republic v Clinton Oluoch Otieno. The appellant was the accused person in that case. He was charged with one substantive count 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 charge were that on the 18 th January 2024 at Sero Village in Homa Bay Sub County within the County of Homa Bay he unlawfully and intentionally caused his penis to penetrate the vagina of J.A.O., a child aged 14 years.
[2] In the alternative, the appellant was charged with committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on the 18 th January 2024 at Sero Village in Homa Bay Sub County within the County of Homa Bay he unlawfully and intentionally caused his penis to penetrate the vagina of J.A.O., a child aged 14 years.
[3] The appellant denied the allegations levelled against him. The matter was accordingly fixed for trial before Hon. J. A. Orwa , Chief Magistrate (as she then was) and the appellant was ultimately found guilty of the substantive charge of defilement and was convicted thereof. He was sentenced to 20 years’ imprisonment.
[4] Being dissatisfied with the decision of the trial court, the appellant filed this Appeal on 8 th June 2023 citing the following grounds:
[a] That crucial witnesses including the village elder who transported the minor to Ndhiwa and the investigating officer were never called as witnesses.
[b] That the Prosecution’s evidence was contradictory and inconsistent and therefore in breach of Section 165 of the Evidence Act.
[c] That the critical ingredient of defilement, namely, the age of the victim, was never proved.
[d] That trial magistrate erred by failing to consider the statement of the minor that she quarreled with her parents and had to leave home because of her pregnancy.
[e] That the trial magistrate erred in law and fact by failing to consider that the appellant’s semen was not extracted for the purpose of DNA analysis contrary to Section 36(1) of the Sexual Offences Act.
[f] That the trial magistrate erred in law and fact by failing to consider the appellant’s defence and mitigation contrary to Section 12 of the Criminal Procedure Code.
[5] On the basis of the foregoing grounds, the appellant prayed that his conviction be quashed and the sentence of 20 years’ imprisonment set aside.
[6] The appeal was canvassed by way of written submissions. Accordingly, the appellant relied on his written submissions dated 25 th February 2025. He proposed the following two issues for determination by the Court:
[a] Whether the learned magistrate erred in law and in fact in passing judgment without proper positive identification of the appellant as the true perpetrator of the offence?
[b] Whether the learned magistrate erred in law and in fact in making a judgment when other crucial witnesses were not called to testify.
[7] On the first issue, the appellant submitted that the Prosecution had the burden of proving its case beyond reasonable doubt, which burden was not discharged in this instance; particularly in relation to the crucial issue of identification. In the appellant’s submission the Prosecution failed to provide corroborative evidence linking him to the alleged crime. The appellant further submitted that the medical evidence presented did not directly connect him to the alleged act since no forensic evidence such as DNA had been provided to implicate him.
[8] The appellant postulated that an identification parade ought to have been conducted, but was not. The appellant relied on Gabriel Kamau Njoroge v Republic [1987] eKLR and R v Turnbull & Others [1976] All ER 549 for the proposition that failure to conduct an identification parade further weakens the Prosecution’s case, as there is no independent verification that the appellant was indeed the person who committed the alleged offence.
[9] On the failure by the Prosecution to call crucial witnesses , the appellant submitted that the investigating officer plays a fundamental role in piecing together the Prosecution’s case; and therefore his testimony was necessary to explain the manner in which investigations were conducted, address any inconsistencies in witness statements and explain how evidence was collected, preserved and analyzed. He urged the Court to draw an adverse from that omission and conclude that had the witnesses been called their testimony would have been unfavourable to the prosecution’s case.
[10] The appellant further submitted that the Prosecution failed to call other crucial witnesses to corroborate the complainant’s version of events. In his view, this omission raises doubts about the credibility of the complainant as a witness. On that account, the appellant urged the Court to find that the case against him was not proved beyond reasonable doubt; and therefore his appeal ought to be allowed.
[11] The respondent relied on the written submissions dated 20 th February 2025 and contended that sufficient evidence was adduced before the lower court that placed the appellant at the scene and linked him to the crime. In the submission of counsel for the respondent, all the ingredients of the offence, namely, the complainant’s age, penetration and identification were proved beyond reasonable doubt.
[12] The respondent further submitted that the prosecution called a total of five (5) witnesses who testified that, after a quarrel between her and her mother, the complainant left home and fell into the river; but was rescued by a “good Samaritan”. That she thereafter walked on foot to Rodi area where she met the appellant. The appellant offered to assist the complainant and took her to his house and provided her with food. Upon detecting that the appellant was alone in the house, the complainant tried running away in vain as the appellant got hold of her by the neck, undressed her by force and defiled her. Thus, the respondent urged for the dismissal of the appeal.
[13] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that I did not have the opportunity to see or hear the witnesses testify. (see Okeno v Republic [1972] EA 32 )
[14] The complainant testified as PW1 and gave her age as 14 years. She narrated how on the 18 th January 2024 her mother engaged her in a heated argument in the morning before leaving for the market. She explained that she was then expectant; and that her mother accused her of neglecting household chores. That as a result she left home and went to the nearby river and fell into the river in a bid to end her life. She was rescued by a member of the public in the vicinity and decided to walk to Rodi where she arrived at about 7:00 p.m. She met the appellant who questioned her to find out whether she needed help; and that on the assurance by the appellant that he had a family of his own, the complainant accepted the hospitality offered by him.
[15] The complainant further testified that, once in his house, the appellant proceeded to defile her and threatened her with a knife if she dared scream. She stated that, after the appellant left his house in the morning, she went to the neighbouring house and, upon reporting her predicament to the appellant’s neighbor, she was advised to seek help from the village elder. She was accordingly assisted and escorted to Ndhiwa Police Station where she reported the crime. She was issued with a P3 Form, was taken to Ndhiwa Sub-County Hospital for examination and treatment.
[16] The complainant’s mother testified as PW2. She told the lower court that she was not happy about the complainant social habits and conceded that she was aware the complainant was expectant at the time. She gave her some tongue-lashing before leaving home on the morning of 18 th January 2024. On return, one of the complainant’s siblings informed her that the complainant had ran away from home and left a note intimating that she was going to commit suicide. She looked for her in the neighbourhood in vain. The following day she received a call from a stranger who told her that she had come across the complainant at Rodi.
[17] PW2 further testified that, as she was about to go and collect the complainant from Rodi, the stranger told her he was escorting her to Ndhiwa Police Station; and that the complainant had been defiled at Rodi by a man who found her stranded and offered to accommodate her on the night of 18 th January 2024. PW2 told the lower court that she proceeded to Ndhiwa Police Station where she met the complainant; and that the complainant confirmed to her that she had been defiled at Rodi. PW2 also testified that the complainant was then a minor, having been born on 1 st May 2009. She identified her Certificate of Birth as proof of the complainant’s date of birth.
[18] The Prosecution also called, Dr. Tobias Ochieng Oketch (PW3), the Medical Officer who examined the complainant at Marindi Sub-County Hospital. His evidence was that he examined the complainant on 22 nd January 2024; and that she was under the escort of a police officer who alleged that the girl had been defiled four days prior to the date of the examination. He proceeded to examine the complainant and found that she was 16 weeks pregnant and had multiple bruises and lacerations on the labia majora/minora; and her cervix was swollen. He also noted that although the girl’s hymen was torn, it was not a recent occurrence. PW3 conducted further tests and confirmed the pregnancy, no spermatozoa were seen and the HIV test was non-reactive. He concluded that the girl had been defiled. He filled the necessary documents which he produced before the lower court.
[19] PW4, the chief of Asego Division in Homa Bay Sub-County testified that he received the report about the complainant’s defilement. He conducted his own investigations and got to know the boda boda rider who escorted the complainant to Ndhiwa Police Station. He confirmed from the complainant’s mother that she had arrived home safely and advised her to report the incident at Ndhiwa Police Station. He thereafter traced and arrested the appellant.
[20] The last prosecution witness was PC Francis Opiyo of Rodi Police Station. He testified on behalf of the investigating officer, PC Mourine Achieng who was on annual leave at the time.
[21] In his defence, the appellant explained how he was arrested by the area chief on allegations that he had committed the offence of defilement. He was charged and taken to court to stand trial for the offence. He further stated that the complainant had a dispute with her mother and wanted to commit suicide; and that he found her at Rodi. He however denied having defiled the complainant on the 18 th January 2024. He also mentioned that he was not medically examined and therefore was not linked to the alleged defilement. He suspected his uncle for having colluded with the village elder and the area chief to have him incarcerated on account of a land dispute between their two families.
[22] In the light of the foregoing, the issues for determination can be grouped under the following broad heads:
[a] Whether the Prosecution proved all the elements of the charge of defilement beyond reasonable doubt: and
[b] On whether the sentence of 20 years is harsh or excessive.
A. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[23] Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
[24] From the above provisions, the burden of proof was on the Prosecution to prove the three elements of defilement, namely, the age of the victim, whether penetration occurred and the identity of the perpetrator. I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of Section 8(3) of the Sexual Offences Act:
[25] The age of a minor is, no doubt a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[26] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[27] Moreover, in P.M.M. v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[28] There is no dispute that the complainant was a minor at the time. She testified before the lower court and stated that she was 14 years old, having been born on 1 st May 2009. A copy of her Certificate of Birth was also produced before the lower court and it confirms her birth date as 1 st May 2009. The evidence of the complainant as to her age was corroborated by the evidence of her mother, PW2. There was therefore credible evidence in proof of the complainant’s age, noting that this aspect of the Prosecution’s case was uncontroverted.
[29] Although the Prosecution evidence proved that the complainant was 14 years and 8 months old as at 18 th January 2024 when the incident took place, for all intents and purposes, she was 14 years old. It is now trite that the months following the last birthday, if any, do not count for purposes of determining the age of a child, so long as they are less than one year. This was well explained by the Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR as hereunder:
"Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year."
[30] In any event Section 8(3) of the Sexual Offences Act provides for the age bracket between 12 and 15 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration of the complainant:
[31] The complainant explained how she found herself at Rodi and fell victim to false sympathy from the appellant. She was pregnant and had disputed with her mother on the morning of 18 th January 2024. She left home with the intention of committing suicide but was rescued; she then walked on foot to Rodi where she got stranded at about 7.00 p.m. Her evidence that the appellant offered to help her was credible in that, the appellant confirmed the truthfulness of the complainant’s predicament, save for the allegations of defilement. He told the lower court that:
“Complainant had a dispute with her mother since she was pregnant. She left in protest to commit suicide. She found herself in Rodi and sat at a certain shop…”
[32] Further to the foregoing, the evidence of the complainant was corroborated by the evidence of Dr. Oketch (PW3) who also produced documents detailing his findings and conclusions. This evidence was also uncontroverted. There was therefore credible evidence adduced by the Prosecution before the lower court in proof of penetration. It is noteworthy that in the case of Kassim Ali v Republic [2006] KECA 156 (KLR) the Court of Appeal held that:
“…as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.
[33] The appellant urged the Court to take an adverse view of the fact that no DNA test was conducted. He therefore submitted that, without a DNA test, the Prosecution could not be said to have proved penetration beyond reasonable doubt. While it is true that DNA testing is provided for in Section 36 of the Sexual Offences Act, that provision is not mandatory. It provides thus in Subsection (1):
"...where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence." (Emphasis added)
[34] Hence, in Evans Wamalwa Simiyu v Republic [2016] eKLR, for instance, the Court of Appeal held that:
"...section 36 of the Sexual Offences Act that gives the trial court powers to order an Accused person to undergo DNA testing uses the word “may”. Therefore, the power is discretionary and there is no mandatory obligation on the court to order DNA testing in each case. In our view, in the case of the appellant DNA testing was not necessary. This is because the minor complainant identified the appellant who was known to her as the person who sexually violated her. The trial magistrate who saw and assessed the demeanor of the witnesses believed the complainant that it was the appellant who violated her. Moreover, the trial court found material corroboration of the complainant’s evidence in the evidence of Dr. Mayende a medical doctor (PW4) who examined the complainant and confirmed that vaginal swab taken from her had spermatozoa..."
[35] The Court of Appeal reiterated its stance thus in Mbogo Raphael Chengo v Republic ( supra):
“...the ground that no DNA was conducted on the complainant has no substance. The appellant was identified by way of recognition as the person who committed the offence as alleged.”
[36] I similarly find that the appellant’s complaint that no DNA test was ordered for by the lower court is of no substance; and that credible evidence of penetration was adduced by the complainant before the lower court.
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[37] The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[38] Similarly, in Cleophas Otieno Wamunga v Republic [1989] eKLR the same principle was restated thus:
"It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is 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 can safely make it the basis of conviction."
[39] In R. vs. Turnbull & Others [1973] 3 AllER 549, it was pointed out that:
"...The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the accused under observation? At what distance: In what light: Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?
[40] On the issue of the appellant’s identity, PW1 testified that she met the appellant at Rodi; had a long discussion with him before agreeing to be accommodated by him for the night. She added that the appellant assured her that he had a family of his own to boost her sense of security. She therefore had sufficient time to observe his features.
[41] It would have been advantageous for the Prosecution to conduct an identification parade upon the arrest of the appellant but in the circumstances of this case that omission was not fatal. There was credible evidence to link the appellant with the crime, granted the circumstances that led to his arrest. For one, the complainant immediately brought her predicament to the appellant’s neigbour and was helped to reach the village elder. The area chief also testified and confirmed the narration by the complainant and testified that it was on that basis that he arrested the appellant. As indicated hereinabove, the appellant confirmed in his statement of defence the truthfulness of the fact that the complainant was stranded in Rodi after running away from home. There was therefore sufficient evidence to link the appellant with the crime.
[42] The appellant urged the Court to draw an adverse presumption from the fact that some vital witnesses, particularly the village elder to whom the complainant reported the incident and the investigating officer were not called to testify. The appellant therefore urged the Court to make the presumption that, had the witnesses been called, their evidence would have been adverse to the Prosecution case.
[43] The general position, as expressed in Bukenya & Others v Uganda [1972] EA 549, is that:
“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
[44] The principle was restated by the Court of Appeal in Sahali Omar vs. Republic [2017] eKLR as follows:
“The principle used to determine the consequences of failure to call witnesses was succinctly stated in Bukenya & Others v Uganda (1972 E.A; where the court held that: -
i. “The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
ii. That court has the right and duty to call witnesses whose evidence appears essential to the just decision of the case.
iii. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
[45] The point is clear, namely, that the prosecution is not obliged to call a superfluity of witnesses. Secondly, the presumption can only be drawn in a situation where the evidence presented by the Prosecution is barely adequate. In this instance, the lower court found sufficient evidence upon which to convict; which evidence has been re-evaluated by this Court and found adequate. Thirdly, the presumption can only be drawn in circumstances where the trial court has first intervened in vain to have the witnesses called. In the premises, I am not in the least persuaded that failure to call the village elder was in any way detrimental to the Prosecution case. Moreover, the proviso to Section 124 of the Evidence Act recognizes that in some instances, the evidence of the victim may suffice. It states:
“…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
[46] As for the investigating officer, the Prosecution explained that she was on leave at the time and had handed over her duties to PW5. There was therefore no omission in that regard. In any event in Kiriungi v Rep (2009) KLR 638, in which the case of Bwaneka v Uganda (supra) was quoted in extenso , the Court of Appeal held that:
“...the effect of failure to call police officers involved in a criminal trial, including the investigating officer, is not fatal to that prosecution unless the circumstances of each particular case so demonstrate. We have examined the circumstances of this case and we are satisfied that the evidence of the investigating officer and the arresting officer would not have been prejudicial to the prosecution case as it was established beyond doubt that the appellant was involved in the crime with which he was charged...”
(See also Haward Shikanga alias Kadogo & Another v Rep CRA 102/2007 and Reuben Gitonga Nderitu v Rep CRA 349/2007)
[47] It is therefore my finding that the Prosecution proved all the elements of defilement against the appellant beyond reasonable doubt; and that his conviction was premised on sound evidence.
[48] In the same vein, I did not find any merit in the appellant’s contention that the evidence presented against him was contradictory. Indeed, in John Nyaga Njuki & 4 Others v Republic , Cr. App. No. 160 of 2000, the Court of Appeal explained that:
“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”
[49] Likewise, in Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal acknowledged that human recollection is not infallible and therefore some minor disparities are to be expected. Here is what it had to say in this regard:
“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
[50] Lastly, the assertion by the appellant that his defence was not considered is not correct. The judgment of the lower court shows that his defence was indeed taken into consideration at the penultimate paragraph of that judgment.
B. On whether the sentence of 20 years is harsh or excessive:
[51] In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted o
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[2] In the alternative, the appellant was charged with committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on the 18 th January 2024 at Sero Village in Homa Bay Sub County within the County of Homa Bay he unlawfully and intentionally caused his penis to penetrate the vagina of J.A.O., a child aged 14 years.
[3] The appellant denied the allegations levelled against him. The matter was accordingly fixed for trial before Hon. J. A. Orwa , Chief Magistrate (as she then was) and the appellant was ultimately found guilty of the substantive charge of defilement and was convicted thereof. He was sentenced to 20 years’ imprisonment.
[4] Being dissatisfied with the decision of the trial court, the appellant filed this Appeal on 8 th June 2023 citing the following grounds:
[a] That crucial witnesses including the village elder who transported the minor to Ndhiwa and the investigating officer were never called as witnesses.
[b] That the Prosecution’s evidence was contradictory and inconsistent and therefore in breach of Section 165 of the Evidence Act.
[c] That the critical ingredient of defilement, namely, the age of the victim, was never proved.
[d] That trial magistrate erred by failing to consider the statement of the minor that she quarreled with her parents and had to leave home because of her pregnancy.
[e] That the trial magistrate erred in law and fact by failing to consider that the appellant’s semen was not extracted for the purpose of DNA analysis contrary to Section 36(1) of the Sexual Offences Act.
[f] That the trial magistrate erred in law and fact by failing to consider the appellant’s defence and mitigation contrary to Section 12 of the Criminal Procedure Code.
[5] On the basis of the foregoing grounds, the appellant prayed that his conviction be quashed and the sentence of 20 years’ imprisonment set aside.
[6] The appeal was canvassed by way of written submissions. Accordingly, the appellant relied on his written submissions dated 25 th February 2025. He proposed the following two issues for determination by the Court:
[a] Whether the learned magistrate erred in law and in fact in passing judgment without proper positive identification of the appellant as the true perpetrator of the offence?
[b] Whether the learned magistrate erred in law and in fact in making a judgment when other crucial witnesses were not called to testify.
[7] On the first issue, the appellant submitted that the Prosecution had the burden of proving its case beyond reasonable doubt, which burden was not discharged in this instance; particularly in relation to the crucial issue of identification. In the appellant’s submission the Prosecution failed to provide corroborative evidence linking him to the alleged crime. The appellant further submitted that the medical evidence presented did not directly connect him to the alleged act since no forensic evidence such as DNA had been provided to implicate him.
[8] The appellant postulated that an identification parade ought to have been conducted, but was not. The appellant relied on Gabriel Kamau Njoroge v Republic [1987] eKLR and R v Turnbull & Others [1976] All ER 549 for the proposition that failure to conduct an identification parade further weakens the Prosecution’s case, as there is no independent verification that the appellant was indeed the person who committed the alleged offence.
[9] On the failure by the Prosecution to call crucial witnesses , the appellant submitted that the investigating officer plays a fundamental role in piecing together the Prosecution’s case; and therefore his testimony was necessary to explain the manner in which investigations were conducted, address any inconsistencies in witness statements and explain how evidence was collected, preserved and analyzed. He urged the Court to draw an adverse from that omission and conclude that had the witnesses been called their testimony would have been unfavourable to the prosecution’s case.
[10] The appellant further submitted that the Prosecution failed to call other crucial witnesses to corroborate the complainant’s version of events. In his view, this omission raises doubts about the credibility of the complainant as a witness. On that account, the appellant urged the Court to find that the case against him was not proved beyond reasonable doubt; and therefore his appeal ought to be allowed.
[11] The respondent relied on the written submissions dated 20 th February 2025 and contended that sufficient evidence was adduced before the lower court that placed the appellant at the scene and linked him to the crime. In the submission of counsel for the respondent, all the ingredients of the offence, namely, the complainant’s age, penetration and identification were proved beyond reasonable doubt.
[12] The respondent further submitted that the prosecution called a total of five (5) witnesses who testified that, after a quarrel between her and her mother, the complainant left home and fell into the river; but was rescued by a “good Samaritan”. That she thereafter walked on foot to Rodi area where she met the appellant. The appellant offered to assist the complainant and took her to his house and provided her with food. Upon detecting that the appellant was alone in the house, the complainant tried running away in vain as the appellant got hold of her by the neck, undressed her by force and defiled her. Thus, the respondent urged for the dismissal of the appeal.
[13] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that I did not have the opportunity to see or hear the witnesses testify. (see Okeno v Republic [1972] EA 32 )
[14] The complainant testified as PW1 and gave her age as 14 years. She narrated how on the 18 th January 2024 her mother engaged her in a heated argument in the morning before leaving for the market. She explained that she was then expectant; and that her mother accused her of neglecting household chores. That as a result she left home and went to the nearby river and fell into the river in a bid to end her life. She was rescued by a member of the public in the vicinity and decided to walk to Rodi where she arrived at about 7:00 p.m. She met the appellant who questioned her to find out whether she needed help; and that on the assurance by the appellant that he had a family of his own, the complainant accepted the hospitality offered by him.
[15] The complainant further testified that, once in his house, the appellant proceeded to defile her and threatened her with a knife if she dared scream. She stated that, after the appellant left his house in the morning, she went to the neighbouring house and, upon reporting her predicament to the appellant’s neighbor, she was advised to seek help from the village elder. She was accordingly assisted and escorted to Ndhiwa Police Station where she reported the crime. She was issued with a P3 Form, was taken to Ndhiwa Sub-County Hospital for examination and treatment.
[16] The complainant’s mother testified as PW2. She told the lower court that she was not happy about the complainant social habits and conceded that she was aware the complainant was expectant at the time. She gave her some tongue-lashing before leaving home on the morning of 18 th January 2024. On return, one of the complainant’s siblings informed her that the complainant had ran away from home and left a note intimating that she was going to commit suicide. She looked for her in the neighbourhood in vain. The following day she received a call from a stranger who told her that she had come across the complainant at Rodi.
[17] PW2 further testified that, as she was about to go and collect the complainant from Rodi, the stranger told her he was escorting her to Ndhiwa Police Station; and that the complainant had been defiled at Rodi by a man who found her stranded and offered to accommodate her on the night of 18 th January 2024. PW2 told the lower court that she proceeded to Ndhiwa Police Station where she met the complainant; and that the complainant confirmed to her that she had been defiled at Rodi. PW2 also testified that the complainant was then a minor, having been born on 1 st May 2009. She identified her Certificate of Birth as proof of the complainant’s date of birth.
[18] The Prosecution also called, Dr. Tobias Ochieng Oketch (PW3), the Medical Officer who examined the complainant at Marindi Sub-County Hospital. His evidence was that he examined the complainant on 22 nd January 2024; and that she was under the escort of a police officer who alleged that the girl had been defiled four days prior to the date of the examination. He proceeded to examine the complainant and found that she was 16 weeks pregnant and had multiple bruises and lacerations on the labia majora/minora; and her cervix was swollen. He also noted that although the girl’s hymen was torn, it was not a recent occurrence. PW3 conducted further tests and confirmed the pregnancy, no spermatozoa were seen and the HIV test was non-reactive. He concluded that the girl had been defiled. He filled the necessary documents which he produced before the lower court.
[19] PW4, the chief of Asego Division in Homa Bay Sub-County testified that he received the report about the complainant’s defilement. He conducted his own investigations and got to know the boda boda rider who escorted the complainant to Ndhiwa Police Station. He confirmed from the complainant’s mother that she had arrived home safely and advised her to report the incident at Ndhiwa Police Station. He thereafter traced and arrested the appellant.
[20] The last prosecution witness was PC Francis Opiyo of Rodi Police Station. He testified on behalf of the investigating officer, PC Mourine Achieng who was on annual leave at the time.
[21] In his defence, the appellant explained how he was arrested by the area chief on allegations that he had committed the offence of defilement. He was charged and taken to court to stand trial for the offence. He further stated that the complainant had a dispute with her mother and wanted to commit suicide; and that he found her at Rodi. He however denied having defiled the complainant on the 18 th January 2024. He also mentioned that he was not medically examined and therefore was not linked to the alleged defilement. He suspected his uncle for having colluded with the village elder and the area chief to have him incarcerated on account of a land dispute between their two families.
[22] In the light of the foregoing, the issues for determination can be grouped under the following broad heads:
[a] Whether the Prosecution proved all the elements of the charge of defilement beyond reasonable doubt: and
[b] On whether the sentence of 20 years is harsh or excessive.
A. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[23] Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
[24] From the above provisions, the burden of proof was on the Prosecution to prove the three elements of defilement, namely, the age of the victim, whether penetration occurred and the identity of the perpetrator. I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of Section 8(3) of the Sexual Offences Act:
[25] The age of a minor is, no doubt a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[26] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[27] Moreover, in P.M.M. v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[28] There is no dispute that the complainant was a minor at the time. She testified before the lower court and stated that she was 14 years old, having been born on 1 st May 2009. A copy of her Certificate of Birth was also produced before the lower court and it confirms her birth date as 1 st May 2009. The evidence of the complainant as to her age was corroborated by the evidence of her mother, PW2. There was therefore credible evidence in proof of the complainant’s age, noting that this aspect of the Prosecution’s case was uncontroverted.
[29] Although the Prosecution evidence proved that the complainant was 14 years and 8 months old as at 18 th January 2024 when the incident took place, for all intents and purposes, she was 14 years old. It is now trite that the months following the last birthday, if any, do not count for purposes of determining the age of a child, so long as they are less than one year. This was well explained by the Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR as hereunder:
"Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year."
[30] In any event Section 8(3) of the Sexual Offences Act provides for the age bracket between 12 and 15 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration of the complainant:
[31] The complainant explained how she found herself at Rodi and fell victim to false sympathy from the appellant. She was pregnant and had disputed with her mother on the morning of 18 th January 2024. She left home with the intention of committing suicide but was rescued; she then walked on foot to Rodi where she got stranded at about 7.00 p.m. Her evidence that the appellant offered to help her was credible in that, the appellant confirmed the truthfulness of the complainant’s predicament, save for the allegations of defilement. He told the lower court that:
“Complainant had a dispute with her mother since she was pregnant. She left in protest to commit suicide. She found herself in Rodi and sat at a certain shop…”
[32] Further to the foregoing, the evidence of the complainant was corroborated by the evidence of Dr. Oketch (PW3) who also produced documents detailing his findings and conclusions. This evidence was also uncontroverted. There was therefore credible evidence adduced by the Prosecution before the lower court in proof of penetration. It is noteworthy that in the case of Kassim Ali v Republic [2006] KECA 156 (KLR) the Court of Appeal held that:
“…as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.
[33] The appellant urged the Court to take an adverse view of the fact that no DNA test was conducted. He therefore submitted that, without a DNA test, the Prosecution could not be said to have proved penetration beyond reasonable doubt. While it is true that DNA testing is provided for in Section 36 of the Sexual Offences Act, that provision is not mandatory. It provides thus in Subsection (1):
"...where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence." (Emphasis added)
[34] Hence, in Evans Wamalwa Simiyu v Republic [2016] eKLR, for instance, the Court of Appeal held that:
"...section 36 of the Sexual Offences Act that gives the trial court powers to order an Accused person to undergo DNA testing uses the word “may”. Therefore, the power is discretionary and there is no mandatory obligation on the court to order DNA testing in each case. In our view, in the case of the appellant DNA testing was not necessary. This is because the minor complainant identified the appellant who was known to her as the person who sexually violated her. The trial magistrate who saw and assessed the demeanor of the witnesses believed the complainant that it was the appellant who violated her. Moreover, the trial court found material corroboration of the complainant’s evidence in the evidence of Dr. Mayende a medical doctor (PW4) who examined the complainant and confirmed that vaginal swab taken from her had spermatozoa..."
[35] The Court of Appeal reiterated its stance thus in Mbogo Raphael Chengo v Republic ( supra):
“...the ground that no DNA was conducted on the complainant has no substance. The appellant was identified by way of recognition as the person who committed the offence as alleged.”
[36] I similarly find that the appellant’s complaint that no DNA test was ordered for by the lower court is of no substance; and that credible evidence of penetration was adduced by the complainant before the lower court.
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[37] The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[38] Similarly, in Cleophas Otieno Wamunga v Republic [1989] eKLR the same principle was restated thus:
"It is trite law that where the only evidence against a defendant is evidence of identification or recognition, a trial court is 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 can safely make it the basis of conviction."
[39] In R. vs. Turnbull & Others [1973] 3 AllER 549, it was pointed out that:
"...The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the accused under observation? At what distance: In what light: Was the observation impeded in any way? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?
[40] On the issue of the appellant’s identity, PW1 testified that she met the appellant at Rodi; had a long discussion with him before agreeing to be accommodated by him for the night. She added that the appellant assured her that he had a family of his own to boost her sense of security. She therefore had sufficient time to observe his features.
[41] It would have been advantageous for the Prosecution to conduct an identification parade upon the arrest of the appellant but in the circumstances of this case that omission was not fatal. There was credible evidence to link the appellant with the crime, granted the circumstances that led to his arrest. For one, the complainant immediately brought her predicament to the appellant’s neigbour and was helped to reach the village elder. The area chief also testified and confirmed the narration by the complainant and testified that it was on that basis that he arrested the appellant. As indicated hereinabove, the appellant confirmed in his statement of defence the truthfulness of the fact that the complainant was stranded in Rodi after running away from home. There was therefore sufficient evidence to link the appellant with the crime.
[42] The appellant urged the Court to draw an adverse presumption from the fact that some vital witnesses, particularly the village elder to whom the complainant reported the incident and the investigating officer were not called to testify. The appellant therefore urged the Court to make the presumption that, had the witnesses been called, their evidence would have been adverse to the Prosecution case.
[43] The general position, as expressed in Bukenya & Others v Uganda [1972] EA 549, is that:
“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
[44] The principle was restated by the Court of Appeal in Sahali Omar vs. Republic [2017] eKLR as follows:
“The principle used to determine the consequences of failure to call witnesses was succinctly stated in Bukenya & Others v Uganda (1972 E.A; where the court held that: -
i. “The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
ii. That court has the right and duty to call witnesses whose evidence appears essential to the just decision of the case.
iii. Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
[45] The point is clear, namely, that the prosecution is not obliged to call a superfluity of witnesses. Secondly, the presumption can only be drawn in a situation where the evidence presented by the Prosecution is barely adequate. In this instance, the lower court found sufficient evidence upon which to convict; which evidence has been re-evaluated by this Court and found adequate. Thirdly, the presumption can only be drawn in circumstances where the trial court has first intervened in vain to have the witnesses called. In the premises, I am not in the least persuaded that failure to call the village elder was in any way detrimental to the Prosecution case. Moreover, the proviso to Section 124 of the Evidence Act recognizes that in some instances, the evidence of the victim may suffice. It states:
“…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
[46] As for the investigating officer, the Prosecution explained that she was on leave at the time and had handed over her duties to PW5. There was therefore no omission in that regard. In any event in Kiriungi v Rep (2009) KLR 638, in which the case of Bwaneka v Uganda (supra) was quoted in extenso , the Court of Appeal held that:
“...the effect of failure to call police officers involved in a criminal trial, including the investigating officer, is not fatal to that prosecution unless the circumstances of each particular case so demonstrate. We have examined the circumstances of this case and we are satisfied that the evidence of the investigating officer and the arresting officer would not have been prejudicial to the prosecution case as it was established beyond doubt that the appellant was involved in the crime with which he was charged...”
(See also Haward Shikanga alias Kadogo & Another v Rep CRA 102/2007 and Reuben Gitonga Nderitu v Rep CRA 349/2007)
[47] It is therefore my finding that the Prosecution proved all the elements of defilement against the appellant beyond reasonable doubt; and that his conviction was premised on sound evidence.
[48] In the same vein, I did not find any merit in the appellant’s contention that the evidence presented against him was contradictory. Indeed, in John Nyaga Njuki & 4 Others v Republic , Cr. App. No. 160 of 2000, the Court of Appeal explained that:
“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”
[49] Likewise, in Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal acknowledged that human recollection is not infallible and therefore some minor disparities are to be expected. Here is what it had to say in this regard:
“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
[50] Lastly, the assertion by the appellant that his defence was not considered is not correct. The judgment of the lower court shows that his defence was indeed taken into consideration at the penultimate paragraph of that judgment.
B. On whether the sentence of 20 years is harsh or excessive:
[51] In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted o
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