A. INTRODUCTION
1. The Appellant, Collins Waliaula Walimbwa, was convicted after a full trial of the offence of defilement contrary to Section 8(1)(2) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, as framed in the charge sheet. The particulars of the charge were that, in December 2020 and on 19th June 2023 at Binyenya Village, Namwela Location within Bungoma County, he intentionally caused his penis to penetrate the vagina of M.N., a child aged 12 years. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that, on the same dates and at the same place, he unlawfully touched the vagina of M.N., a child of 12 years, with his penis. I return below, as a preliminary matter, to the Appellant's contention that this compound citation of Sections 8(1)(2) and 8(3) together is defective and incurable.
2. On 7th May 2025, the trial court found the Appellant guilty of the main charge and sentenced him to 20 years' imprisonment, the sentence to run from 21st June 2023. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 23rd June 2025, raising the following grounds: (i) that the trial magistrate erred in law and fact in convicting the Appellant on evidence riddled with discrepancies; (ii) that the trial magistrate erred in law and fact in convicting the Appellant on poorly investigated evidence; (iii) that the trial magistrate erred in law and fact in convicting the Appellant on the strength of a doctor's report notwithstanding that the Appellant himself was never medically examined; (iv) that the trial magistrate erred in law and in fact in convicting the Appellant without according him an opportunity to mitigate, contrary to Article 50 of the Constitution; and (v) that the trial magistrate erred in law and fact in rejecting the Appellant's plausible defence contrary to Section 169 of the Criminal Procedure Code.
3. The Appellant urges this Court to allow the appeal, quash the conviction, and set aside the sentence.
B. THE DUTY OF THIS COURT
4. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on record afresh and arrive at its own independent conclusions, bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and of observing their demeanour.
5. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
6. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
7. A good place to start is a summary of the evidence that was before the trial court.
C. SUMMARY OF THE EVIDENCE
8. The prosecution called three witnesses. PW1, the complainant, testified that she is a pupil at Matisi Primary School, then in grade six. She knew the Appellant as her cousin. He had promised her money to buy crayons, and when she went to his house to collect it, he asked her to sleep over and go home the next day. While asleep, she woke up next to him. He removed her clothes and his own, and defiled her using his penis, without a condom. There was light in the room and she was able to see him clearly.
9. She testified that the first incident was in December 2020, and that he did it again on a later, unrecalled date, and again at a neighbour's house, in each case without protection. He took her home the following morning after the last incident. She reported the matter, first to a lady she lived with, Yvonne, and later to her mother, Christine Busolo Wekesa. Her father, Molet Natembeya, arrested the Appellant, and she was taken for medical attention at Sirisia Sub-County Hospital before recording a statement at Namwela Police Post and proceeding to Sirisia Police Station. She was 13 years old at the time of testifying and stated she was 12 at the time of the incident.
10. PW1 identified the age assessment form, treatment notes, the Post Rape Care (PRC) form, and the P3 form, which she stated were dated 12/06/2023. On cross-examination, she confirmed that she was alone with the Appellant, at night.
11. PW2, Jonnstone Wekesa, a clinical officer, testified that on 20/06/2023 he examined the complainant, who reported unprotected sexual contact with the Appellant, said to be HIV-positive. On examination there was a foul smell in her genitalia; the labia minora and majora were intact but the hymen was broken. Urinalysis revealed numerous pus cells indicative of infection and epithelial cells suggestive of an injury sustained during intercourse. Both HIV and pregnancy tests were negative. He administered treatment for the infection and Post-Exposure Prophylaxis (PEP).
12. PW2 filled the P3 form and the age assessment form on 20/06/2023. He testified that growth plates were not used in the age assessment, which nonetheless indicated the victim was a juvenile of approximately 12 years. He concluded that there was penetration, proof of defilement, and produced the P3 form, the age assessment form, the treatment notes, and the PRC form, all dated 20/06/2023. He did not examine the Appellant.
13. On cross-examination, PW2 confirmed that establishing the identity of the perpetrator was a matter for the investigating department, not for him. He had taken the history from the patient, prescribed medication for the infection, and administered PEP. He reiterated that he never examined the Appellant.
14. PW3, No. 256356 PC Woman Lydia Barngetuny of Namwela Police Post, the investigating officer, testified that on 20/06/2023 at around 7:30 a.m., the complainant, in the company of her mother and a village elder, reported that on the night of 19/06/2023 she had gone to the Appellant's home, her boyfriend, upon a promise of money. In the course of taking the complainant's statement and investigating the matter, the Appellant confessed to her that he had defiled the complainant, and she proceeded to charge him.
15. On cross-examination, PW3 conceded that she did not witness the alleged defilement, but maintained that during interrogation the Appellant admitted to defiling the complainant and did not raise any complaint of assault. She confirmed that the complainant maintained her account of the defilement throughout.
16. The Appellant was put on his defence and gave sworn testimony. He stated that on 20/06/2023 he had slept at his uncle's home and left for the farm at around 6:30 a.m., where four men accosted him and took him to a village elder's home. He was later informed that he had been found with a girl at night. He denied being at home on the material night, was taken to Namwela and then Sirisia Police Stations, examined at hospital, and subsequently charged with defilement. He pointed out that he has been HIV-positive since birth and argued that, had he defiled the complainant as alleged on a prior occasion, she would in consequence have tested HIV-positive, which she did not. He denied the charge in its entirety.
17. In his judgment, the learned trial magistrate found that the ingredients of the offence of defilement had been proved. On age, he relied on the age assessment form together with the complainant's own testimony that she was 12 years old at the time of the incident in June 2023. On penetration, he found PW2's medical evidence sufficient to establish partial or complete penetration, noting further the complainant's evidence that this was not the first time the Appellant had defiled her. On identity, he found that the Appellant and the complainant were cousins who had interacted on several prior occasions, that the complainant knew where the Appellant lived, that there was light in the room, and that she saw him clearly.
18. On alibi, the trial magistrate noted that the Appellant did not call any witness, including his uncle, to support the defence, that the defence was raised for the first time during the defence hearing, and that it had not been put to any prosecution witness in cross-examination, rendering it, in his assessment, an afterthought.
D. SUBMISSIONS
The Appellant's submissions
19. The Appellant submitted, first, that penetration was not proved beyond reasonable doubt. PW2's evidence related solely to the examination conducted in June 2023 and said nothing of the incident of December 2020, so that there was no medical evidence at all in support of the earlier alleged incident. On the June 2023 examination itself, Appellant submitted that a broken hymen is not, without more, conclusive proof of penetration, relying on P.K.W v Republic [2012] eKLR, and that the presence of pus cells was equally consistent with an infection unrelated to sexual contact, the vagina not being immune to other causes of infection, relying on Benard Opiyo alias Jemaa v Republic. Appellant further submitted that, the Appellant having been HIV-positive since birth, the complainant's own negative HIV result undermined the claim of unprotected intercourse, and that the absence of a DNA test was fatal to the prosecution's case, relying on Republic v Timothy Mwenda Gichuru & 2 others [2017] eKLR.
20. Appellant submitted, relying on Sections 107 to 109 of the Evidence Act, that the burden of proof remains on the prosecution throughout, and that it was not for the defence to prove that the complainant's hymen had been broken by some cause other than the Appellant. On the trial court's treatment of the complainant's evidence, Appellant submitted that Section 124 of the Evidence Act and Section 191 of the Criminal Procedure Code required the trial court to record the particular indicia of demeanour it relied on in believing PW1, which it failed to do, relying on John Cardon Wayner v Republic & 2 others and the South African decision in Estate Kaluza v Braeuer 1926 AD 243.
21. It was further submitted that the complainant and her mother were reluctant witnesses who had wished to withdraw the case, which ought to have raised a reasonable doubt, relying on David Gathangu Nyaguthio v Republic [2017] eKLR and Dennis Wanjohi Kagiri v Republic [2016] eKLR, and that the prosecution's failure to call Yvonne, the complainant's mother, or her father to verify the complainant's account rendered the prosecution's evidence hearsay. Appellant also submitted that PW1's account that her father arrested the Appellant was inconsistent with PW3's evidence that both the complainant and the Appellant were arrested together at the gate, demonstrating that PW1 was an unreliable witness, and that the investigating officer's failure to visit the scene, including having the complainant point out the house where the incident occurred, reflected a poor investigation.
22. On the defence of alibi, Appellant submitted that it was not an afterthought, that the prosecution had every opportunity under Sections 212 and 309 of the Criminal Procedure Code to rebut it and failed to do so, and that the trial court impermissibly penalised the Appellant for the prosecution's own failure to discharge its burden; the burden did not shift to the Appellant merely because he did not call his uncle as a witness.
23. On the charge itself, Appellant submitted that it is fatally and incurably defective, the Appellant having been charged with defilement 'contrary to Section 8(1)(2) as read with Section 8(3)' of the Sexual Offences Act, a compound provision which, Appellant submitted, does not exist in law, and that this defect is not curable under Section 382 of the Criminal Procedure Code. Finally, Appellant submitted that the Appellant's right to legal representation was violated, in that he was left to conduct his own defence without the legal sophistication needed to expose the weaknesses in the prosecution's case, occasioning his conviction.
The Respondent's submissions
24. Appellant for the State opposed the appeal in its entirety, submitting that all the ingredients of the offence of defilement — age, penetration and identity — were proved beyond reasonable doubt, that the evidence of the three prosecution witnesses was consistent, believable and free of any material contradiction, and that the Appellant's defence of alibi was an afterthought that was neither raised in good time nor substantiated by any witness.
E. ANALYSIS AND DETERMINATION
25. Having re-evaluated the record as a whole, I turn first to a preliminary matter concerning the framing of the charge, before addressing, in turn, the five grounds of appeal against conviction and, finally, the question of sentence.
Preliminary issue: the citation of Sections 8(1)(2) and 8(3) in the charge
26. The statement of offence describes the charge as being contrary to 'Section 8(1)(2) as read with Section 8(3)' of the Sexual Offences Act. Appellant for the Appellant submits that this compound citation — combining Sections 8(1), 8(2) and 8(3) — discloses no offence known to law and is fatally and incurably defective. I do not accept that submission, though I agree that the drafting is irregular and ought to be corrected.
27. Section 8(2) applies to the defilement of a child aged eleven years or less and carries a mandatory sentence of life imprisonment; Section 8(3) applies to a child between twelve and fifteen years and carries a minimum sentence of twenty years. The two subsections are mutually exclusive age brackets and cannot properly be charged in the conjunctive, as was done here. This is plainly an error in drafting. The particulars of the offence, however, are unambiguous: they allege throughout that the complainant was 'a child aged 12 years' — squarely within Section 8(3), and not within Section 8(2) at all.
28. Section 382 of the Criminal Procedure Code provides that no finding, sentence, or order shall be reversed or altered on appeal on account of an error, omission, or irregularity in a charge unless the error has occasioned a failure of justice, having regard to whether the objection could and should have been raised at an earlier stage. It is well established that where the particulars of a charge disclose, with sufficient clarity, the essential ingredients of the offence actually alleged and proved, an error or surplusage in the citation of the statutory provision is a curable irregularity, provided the accused was not thereby misled or prejudiced in his defence (Robert Mutungi Muumbi v Republic [2015] eKLR; Korir alias Gedion Kipkogei Korir v Republic [2024] eKLR, where a charge of attempted defilement was similarly, and irregularly, framed as being contrary to 'Section 9(1)(2)' of the Act, and was nonetheless found not to be fatally defective). I am not persuaded that the position is different merely because the erroneous reference here is to a subsection (8(2)) carrying a heavier, rather than a lighter, penalty than the one properly disclosed by the particulars: the touchstone under Section 382 is prejudice to the accused, not the direction of the drafting error.
29. No prejudice has been demonstrated. The particulars alleged a child of 12 years from the outset; the age assessment, the P3 form, and the complainant's own testimony all proceeded on that footing; the Appellant defended the case, cross-examined the witnesses, and gave his own evidence on the footing that the complainant was said to be about 12 years old; and no party, including the defence, ever conducted the trial as though a mandatory life sentence under Section 8(2) was in issue. The trial court itself, in sentencing the Appellant to 20 years rather than life imprisonment, self-evidently treated the offence as one falling under Section 8(3). I am accordingly satisfied that the reference to Section 8(2) in the statement of offence is surplusage and a curable irregularity under Section 382 of the Criminal Procedure Code, and that the offence properly disclosed by the particulars and established by the evidence is one under Section 8(1) as read with Section 8(3) of the Act — defilement of a child aged between twelve and fifteen years. This finding bears directly on the question of sentence, to which I return in Part F below.
(i) Whether penetration was proved beyond reasonable doubt
30. Appellant for the Appellant submits that PW2's evidence related only to the examination carried out in June 2023 and said nothing of the alleged incident in December 2020, so that the December 2020 incident is wholly unsupported by medical evidence, and further that a broken hymen is not, without more, conclusive proof of penetration.
31. I accept, as a general proposition, that a broken hymen alone is not conclusive proof of penetration, since a hymen may be perforated by causes other than sexual intercourse (P.K.W v Republic [2012] eKLR). That principle, however, does not assist the Appellant here, because the trial court's finding on penetration did not rest on the broken hymen alone. PW2 additionally found a foul-smelling discharge, pus cells indicative of infection, and — critically — epithelial cells which he specifically attributed to an injury sustained during intercourse. It is this last finding, going beyond the mere fact of a broken hymen to a specific clinical indicator of intercourse-related injury, that distinguishes this case from one resting on a broken hymen simpliciter, and I am satisfied it was properly relied upon by the trial court as corroboration of penetration.
32. As to the absence of a DNA test, it is well established that the fact of defilement is proved by evidence, not by DNA testing, which goes at most to the question of paternity or identity in certain cases, but is not itself an element of the offence (AML v Republic [2012] eKLR; Kassim Ali v Republic, Mombasa Cr. App. No. 84 of 2005). I note also that the authority relied upon by the Appellant, Republic v Timothy Mwenda Gichuru & 2 others [2017] eKLR, does not in fact support the proposition for which it is cited: that was a ruling on an application to compel an accused person to provide a blood sample for DNA analysis, concerned with the privilege against self-incrimination, and says nothing about DNA testing being a precondition to proving defilement. The absence of a DNA test is not fatal to the prosecution's case.
33. On the absence of medical evidence specific to the December 2020 incident, this is correct as far as it goes, but it does not undermine the conviction. The charge, and the trial, ultimately turned on the incident of 19th June 2023, for which there was direct testimony from the complainant and corroborative medical evidence from PW2. The complainant's evidence that an earlier incident had also occurred in December 2020 formed part of the narrative and was properly taken into account by the trial magistrate as going to the pattern of conduct between the Appellant and the complainant, but the conviction and sentence do not depend on independent proof of that earlier incident standing alone. I am satisfied that penetration was proved beyond reasonable doubt in respect of the offence for which the Appellant was, in substance, convicted.
(ii) Alleged discrepancies in the evidence
34. The Appellant makes much of the fact that PW1 stated in her testimony that the age assessment form, treatment notes, PRC form and P3 form were dated 12/06/2023, whereas the maker of those documents, PW2, testified — and produced the original documents to confirm — that they were in fact prepared and dated 20/06/2023. I have considered this discrepancy carefully.
35. It is trite that not every discrepancy in the evidence of the prosecution is fatal to its case; it is only a discrepancy that goes to the root of the matter, or that raises a genuine doubt as to the guilt of an accused, that will avail an accused person. Here, the discrepancy is a minor one, on a peripheral matter of dating, arising from the recollection of a child witness testifying more than a year after the event. It is not surprising, and does not undermine her credibility, that she may have misremembered or misspoken the specific date on a document she did not herself prepare. The maker of the documents, PW2, was unequivocal as to the correct date, and it is that evidence — from the person competent to speak to it — that the trial court was entitled to, and did, rely upon. The substance of what the documents establish — age, examination findings, and penetration — is not disturbed by the discrepancy in the date recalled by PW1.
36. Appellant also points to PW1's evidence that her father arrested the Appellant, as against PW3's evidence that both the complainant and the Appellant were arrested together at the gate. This, too, is a peripheral discrepancy going to the precise mechanics of the arrest, and not to the identity of the Appellant as the perpetrator, the fact of penetration, or the age of the complainant — the three ingredients of the offence. Different witnesses recounting an evolving and no doubt distressing sequence of events, involving multiple actors (the complainant, her father, a village elder, and the arresting officer), commonly give accounts that emphasise different parts of that sequence without being irreconcilable; PW1's account that 'her father arrested the Appellant' is not necessarily inconsistent with PW3's account of the mechanics of the arrest at the gate, since the two are not mutually exclusive and PW1 was not asked to reconcile the detail. This falls squarely within the class of peripheral discrepancy that does not avail an accused person. Both grounds relating to discrepancies accordingly fail.
(iii) Alleged poor investigation
37. The Appellant's complaint that the matter was poorly investigated is not particularised beyond the date discrepancy already addressed, and the further point that the investigating officer did not visit the scene or have the complainant point out the house in which the offence occurred. The identity of the Appellant as the perpetrator did not, in any event, rest on investigative inference alone but on the direct evidence of the complainant, who knew the Appellant well as her cousin, had interacted with him on numerous prior occasions, and observed him under conditions of adequate light at close range. Nor was the location of the offence in serious dispute: the Appellant's own defence was not that some other place was involved, but that he was elsewhere entirely on the material night. A scene visit would have added little to evidence already resting on direct recognition rather than on physical or circumstantial reconstruction of the scene. This is a classic case of recognition rather than identification of a stranger, and it is settled law that recognition of an assailant known to a witness is more satisfactory, more assuring, and more reliable than the identification of a stranger, because it depends on the witness's personal knowledge of the person in question (Anjononi & Others v Republic [1980] KLR 59). I find no basis to disturb the trial court's finding on identity, and this ground fails.
(iv) The doctor's report and the non-examination of the Appellant
38. The Appellant contends that his conviction cannot stand because he was never medically examined. This ground is misconceived. The offence of defilement is proved through evidence of penetration of the complainant, her identification of the perpetrator, and proof of her age; it does not require the medical examination of the accused person, and no provision of the Sexual Offences Act or the Evidence Act makes such examination a precondition to conviction. PW2's evidence went to the physical findings on the complainant — the broken hymen, the foul-smelling discharge, the pus cells and epithelial cells in her urine — all of which were consistent with, and corroborative of, penetration, quite independently of any examination of the Appellant.
39. As to the Appellant's related argument that his own HIV-positive status, if he were truly the perpetrator, would necessarily have been transmitted to the complainant, this does not assist him. HIV transmission through a single or even a small number of sexual contacts is probabilistic, not certain, and is affected by viral load, the administration of post-exposure prophylaxis — which PW2 confirmed was administered to the complainant — and other factors. The absence of HIV transmission to the complainant does not, on its own, cast reasonable doubt on the direct evidence of penetration and identification. This ground also fails.
(v) Opportunity to mitigate — Article 50 of the Constitution
40. Article 50(2) of the Constitution guarantees every accused person a fair trial, and it is well established that an accused person must be accorded an opportunity to mitigate before sentence is passed. The record shows that, following his conviction, the Appellant was indeed invited to and did address the trial court in mitigation. He stated that he was unwell, that he is HIV-positive and asthmatic, that he had been in custody since 2023, and he prayed for a non-custodial sentence. It is therefore not correct, on the record, that the Appellant was denied an opportunity to mitigate; he exercised that opportunity, and the trial court had the benefit of his mitigation before passing sentence. This ground accordingly fails.
(vi) The defence of alibi
41. The Appellant's defence was, in essence, an alibi: that on the material night he was at his uncle's home and only later encountered the four men who took him to the village elder. It is trite that an accused person who raises an alibi does not thereby assume any burden of proving it; it is sufficient if the alibi introduces into the mind of the court a doubt that is not unreasonable, and the burden remains on the prosecution throughout to disprove it (Kiarie v Republic [1984] KLR 739; Victor Mwendwa Mulinge v Republic [2014] eKLR; Karanja v Republic [1983] KLR 501).
42. That said, a trial court is entitled, in weighing an alibi against the whole of the evidence, to take into account the stage at which it was raised. Where an alibi is raised for the first time during the defence case, without having been put to the prosecution witnesses in cross-examination so that it could be investigated and tested, a court may properly treat this as undermining its credibility. Here, the Appellant did not put his alibi to PW1, PW2 or PW3 in cross-examination, and called no witness — including the uncle with whom he claims to have slept — to support it, despite nothing preventing him from doing so.
43. Appellant submits that Sections 212 and 309 of the Criminal Procedure Code gave the prosecution an opportunity to rebut the alibi, and that the trial court impermissibly penalised the Appellant for the prosecution's failure to do so, the burden of proof never shifting to the defence. I accept, as a matter of law, that the legal burden never shifts to an accused person, and that it was open to the prosecution to apply to reopen its case or call rebuttal evidence on the alibi. That the prosecution did not do so, however, does not by itself entitle the Appellant to an acquittal; the question for the trial court, and for this Court on appeal, is simply whether the alibi, weighed against the whole of the evidence, raises a reasonable doubt. It does not shift any burden onto the Appellant to observe, as the trial magistrate did, that an alibi raised for the first time in the defence case, untested in cross-examination and unsupported by any witness readily available to the Appellant, is entitled to correspondingly less weight than one raised and tested earlier. Weighed against the strong, credible, and consistent evidence of recognition by the complainant, corroborated by the medical evidence of penetration and the age assessment, I am satisfied that the trial magistrate properly rejected the alibi as an afterthought incapable of raising a reasonable doubt. This ground fails.
(vii) Section 124 of the Evidence Act, hearsay, and the failure to call certain witnesses
44. Appellant submits that the trial court did not comply with Section 124 of the Evidence Act in that it failed to record the specific indicia of demeanour relied upon in believing PW1, and that the evidence of the complainant and her mother's alleged reluctance to pursue the case ought to have raised a reasonable doubt. Section 124 provides that, where in a sexual offence case the only evidence is that of the alleged victim, the court may nonetheless convict if, for reasons recorded, it is satisfied the victim is telling the truth. That proviso is engaged where the complainant's evidence stands alone; it was not engaged here, since PW1's account was corroborated by PW2's medical evidence of penetration and by the age assessment, and the trial magistrate's judgment expressly set out why he found the totality of that evidence — not the complainant's testimony in isolation — credible. I do not find a failure to comply with Section 124 on this record.
45. As to the submission that the complainant and her mother wished to withdraw the case, I find no support for this in the record before me. Nothing in PW1's, PW2's or PW3's testimony, as summarised, indicates any reluctance on the part of the complainant or her mother to testify, and no application to withdraw t
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1. The Appellant, Collins Waliaula Walimbwa, was convicted after a full trial of the offence of defilement contrary to Section 8(1)(2) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, as framed in the charge sheet. The particulars of the charge were that, in December 2020 and on 19th June 2023 at Binyenya Village, Namwela Location within Bungoma County, he intentionally caused his penis to penetrate the vagina of M.N., a child aged 12 years. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that, on the same dates and at the same place, he unlawfully touched the vagina of M.N., a child of 12 years, with his penis. I return below, as a preliminary matter, to the Appellant's contention that this compound citation of Sections 8(1)(2) and 8(3) together is defective and incurable.
2. On 7th May 2025, the trial court found the Appellant guilty of the main charge and sentenced him to 20 years' imprisonment, the sentence to run from 21st June 2023. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 23rd June 2025, raising the following grounds: (i) that the trial magistrate erred in law and fact in convicting the Appellant on evidence riddled with discrepancies; (ii) that the trial magistrate erred in law and fact in convicting the Appellant on poorly investigated evidence; (iii) that the trial magistrate erred in law and fact in convicting the Appellant on the strength of a doctor's report notwithstanding that the Appellant himself was never medically examined; (iv) that the trial magistrate erred in law and in fact in convicting the Appellant without according him an opportunity to mitigate, contrary to Article 50 of the Constitution; and (v) that the trial magistrate erred in law and fact in rejecting the Appellant's plausible defence contrary to Section 169 of the Criminal Procedure Code.
3. The Appellant urges this Court to allow the appeal, quash the conviction, and set aside the sentence.
B. THE DUTY OF THIS COURT
4. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on record afresh and arrive at its own independent conclusions, bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and of observing their demeanour.
5. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
6. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
7. A good place to start is a summary of the evidence that was before the trial court.
C. SUMMARY OF THE EVIDENCE
8. The prosecution called three witnesses. PW1, the complainant, testified that she is a pupil at Matisi Primary School, then in grade six. She knew the Appellant as her cousin. He had promised her money to buy crayons, and when she went to his house to collect it, he asked her to sleep over and go home the next day. While asleep, she woke up next to him. He removed her clothes and his own, and defiled her using his penis, without a condom. There was light in the room and she was able to see him clearly.
9. She testified that the first incident was in December 2020, and that he did it again on a later, unrecalled date, and again at a neighbour's house, in each case without protection. He took her home the following morning after the last incident. She reported the matter, first to a lady she lived with, Yvonne, and later to her mother, Christine Busolo Wekesa. Her father, Molet Natembeya, arrested the Appellant, and she was taken for medical attention at Sirisia Sub-County Hospital before recording a statement at Namwela Police Post and proceeding to Sirisia Police Station. She was 13 years old at the time of testifying and stated she was 12 at the time of the incident.
10. PW1 identified the age assessment form, treatment notes, the Post Rape Care (PRC) form, and the P3 form, which she stated were dated 12/06/2023. On cross-examination, she confirmed that she was alone with the Appellant, at night.
11. PW2, Jonnstone Wekesa, a clinical officer, testified that on 20/06/2023 he examined the complainant, who reported unprotected sexual contact with the Appellant, said to be HIV-positive. On examination there was a foul smell in her genitalia; the labia minora and majora were intact but the hymen was broken. Urinalysis revealed numerous pus cells indicative of infection and epithelial cells suggestive of an injury sustained during intercourse. Both HIV and pregnancy tests were negative. He administered treatment for the infection and Post-Exposure Prophylaxis (PEP).
12. PW2 filled the P3 form and the age assessment form on 20/06/2023. He testified that growth plates were not used in the age assessment, which nonetheless indicated the victim was a juvenile of approximately 12 years. He concluded that there was penetration, proof of defilement, and produced the P3 form, the age assessment form, the treatment notes, and the PRC form, all dated 20/06/2023. He did not examine the Appellant.
13. On cross-examination, PW2 confirmed that establishing the identity of the perpetrator was a matter for the investigating department, not for him. He had taken the history from the patient, prescribed medication for the infection, and administered PEP. He reiterated that he never examined the Appellant.
14. PW3, No. 256356 PC Woman Lydia Barngetuny of Namwela Police Post, the investigating officer, testified that on 20/06/2023 at around 7:30 a.m., the complainant, in the company of her mother and a village elder, reported that on the night of 19/06/2023 she had gone to the Appellant's home, her boyfriend, upon a promise of money. In the course of taking the complainant's statement and investigating the matter, the Appellant confessed to her that he had defiled the complainant, and she proceeded to charge him.
15. On cross-examination, PW3 conceded that she did not witness the alleged defilement, but maintained that during interrogation the Appellant admitted to defiling the complainant and did not raise any complaint of assault. She confirmed that the complainant maintained her account of the defilement throughout.
16. The Appellant was put on his defence and gave sworn testimony. He stated that on 20/06/2023 he had slept at his uncle's home and left for the farm at around 6:30 a.m., where four men accosted him and took him to a village elder's home. He was later informed that he had been found with a girl at night. He denied being at home on the material night, was taken to Namwela and then Sirisia Police Stations, examined at hospital, and subsequently charged with defilement. He pointed out that he has been HIV-positive since birth and argued that, had he defiled the complainant as alleged on a prior occasion, she would in consequence have tested HIV-positive, which she did not. He denied the charge in its entirety.
17. In his judgment, the learned trial magistrate found that the ingredients of the offence of defilement had been proved. On age, he relied on the age assessment form together with the complainant's own testimony that she was 12 years old at the time of the incident in June 2023. On penetration, he found PW2's medical evidence sufficient to establish partial or complete penetration, noting further the complainant's evidence that this was not the first time the Appellant had defiled her. On identity, he found that the Appellant and the complainant were cousins who had interacted on several prior occasions, that the complainant knew where the Appellant lived, that there was light in the room, and that she saw him clearly.
18. On alibi, the trial magistrate noted that the Appellant did not call any witness, including his uncle, to support the defence, that the defence was raised for the first time during the defence hearing, and that it had not been put to any prosecution witness in cross-examination, rendering it, in his assessment, an afterthought.
D. SUBMISSIONS
The Appellant's submissions
19. The Appellant submitted, first, that penetration was not proved beyond reasonable doubt. PW2's evidence related solely to the examination conducted in June 2023 and said nothing of the incident of December 2020, so that there was no medical evidence at all in support of the earlier alleged incident. On the June 2023 examination itself, Appellant submitted that a broken hymen is not, without more, conclusive proof of penetration, relying on P.K.W v Republic [2012] eKLR, and that the presence of pus cells was equally consistent with an infection unrelated to sexual contact, the vagina not being immune to other causes of infection, relying on Benard Opiyo alias Jemaa v Republic. Appellant further submitted that, the Appellant having been HIV-positive since birth, the complainant's own negative HIV result undermined the claim of unprotected intercourse, and that the absence of a DNA test was fatal to the prosecution's case, relying on Republic v Timothy Mwenda Gichuru & 2 others [2017] eKLR.
20. Appellant submitted, relying on Sections 107 to 109 of the Evidence Act, that the burden of proof remains on the prosecution throughout, and that it was not for the defence to prove that the complainant's hymen had been broken by some cause other than the Appellant. On the trial court's treatment of the complainant's evidence, Appellant submitted that Section 124 of the Evidence Act and Section 191 of the Criminal Procedure Code required the trial court to record the particular indicia of demeanour it relied on in believing PW1, which it failed to do, relying on John Cardon Wayner v Republic & 2 others and the South African decision in Estate Kaluza v Braeuer 1926 AD 243.
21. It was further submitted that the complainant and her mother were reluctant witnesses who had wished to withdraw the case, which ought to have raised a reasonable doubt, relying on David Gathangu Nyaguthio v Republic [2017] eKLR and Dennis Wanjohi Kagiri v Republic [2016] eKLR, and that the prosecution's failure to call Yvonne, the complainant's mother, or her father to verify the complainant's account rendered the prosecution's evidence hearsay. Appellant also submitted that PW1's account that her father arrested the Appellant was inconsistent with PW3's evidence that both the complainant and the Appellant were arrested together at the gate, demonstrating that PW1 was an unreliable witness, and that the investigating officer's failure to visit the scene, including having the complainant point out the house where the incident occurred, reflected a poor investigation.
22. On the defence of alibi, Appellant submitted that it was not an afterthought, that the prosecution had every opportunity under Sections 212 and 309 of the Criminal Procedure Code to rebut it and failed to do so, and that the trial court impermissibly penalised the Appellant for the prosecution's own failure to discharge its burden; the burden did not shift to the Appellant merely because he did not call his uncle as a witness.
23. On the charge itself, Appellant submitted that it is fatally and incurably defective, the Appellant having been charged with defilement 'contrary to Section 8(1)(2) as read with Section 8(3)' of the Sexual Offences Act, a compound provision which, Appellant submitted, does not exist in law, and that this defect is not curable under Section 382 of the Criminal Procedure Code. Finally, Appellant submitted that the Appellant's right to legal representation was violated, in that he was left to conduct his own defence without the legal sophistication needed to expose the weaknesses in the prosecution's case, occasioning his conviction.
The Respondent's submissions
24. Appellant for the State opposed the appeal in its entirety, submitting that all the ingredients of the offence of defilement — age, penetration and identity — were proved beyond reasonable doubt, that the evidence of the three prosecution witnesses was consistent, believable and free of any material contradiction, and that the Appellant's defence of alibi was an afterthought that was neither raised in good time nor substantiated by any witness.
E. ANALYSIS AND DETERMINATION
25. Having re-evaluated the record as a whole, I turn first to a preliminary matter concerning the framing of the charge, before addressing, in turn, the five grounds of appeal against conviction and, finally, the question of sentence.
Preliminary issue: the citation of Sections 8(1)(2) and 8(3) in the charge
26. The statement of offence describes the charge as being contrary to 'Section 8(1)(2) as read with Section 8(3)' of the Sexual Offences Act. Appellant for the Appellant submits that this compound citation — combining Sections 8(1), 8(2) and 8(3) — discloses no offence known to law and is fatally and incurably defective. I do not accept that submission, though I agree that the drafting is irregular and ought to be corrected.
27. Section 8(2) applies to the defilement of a child aged eleven years or less and carries a mandatory sentence of life imprisonment; Section 8(3) applies to a child between twelve and fifteen years and carries a minimum sentence of twenty years. The two subsections are mutually exclusive age brackets and cannot properly be charged in the conjunctive, as was done here. This is plainly an error in drafting. The particulars of the offence, however, are unambiguous: they allege throughout that the complainant was 'a child aged 12 years' — squarely within Section 8(3), and not within Section 8(2) at all.
28. Section 382 of the Criminal Procedure Code provides that no finding, sentence, or order shall be reversed or altered on appeal on account of an error, omission, or irregularity in a charge unless the error has occasioned a failure of justice, having regard to whether the objection could and should have been raised at an earlier stage. It is well established that where the particulars of a charge disclose, with sufficient clarity, the essential ingredients of the offence actually alleged and proved, an error or surplusage in the citation of the statutory provision is a curable irregularity, provided the accused was not thereby misled or prejudiced in his defence (Robert Mutungi Muumbi v Republic [2015] eKLR; Korir alias Gedion Kipkogei Korir v Republic [2024] eKLR, where a charge of attempted defilement was similarly, and irregularly, framed as being contrary to 'Section 9(1)(2)' of the Act, and was nonetheless found not to be fatally defective). I am not persuaded that the position is different merely because the erroneous reference here is to a subsection (8(2)) carrying a heavier, rather than a lighter, penalty than the one properly disclosed by the particulars: the touchstone under Section 382 is prejudice to the accused, not the direction of the drafting error.
29. No prejudice has been demonstrated. The particulars alleged a child of 12 years from the outset; the age assessment, the P3 form, and the complainant's own testimony all proceeded on that footing; the Appellant defended the case, cross-examined the witnesses, and gave his own evidence on the footing that the complainant was said to be about 12 years old; and no party, including the defence, ever conducted the trial as though a mandatory life sentence under Section 8(2) was in issue. The trial court itself, in sentencing the Appellant to 20 years rather than life imprisonment, self-evidently treated the offence as one falling under Section 8(3). I am accordingly satisfied that the reference to Section 8(2) in the statement of offence is surplusage and a curable irregularity under Section 382 of the Criminal Procedure Code, and that the offence properly disclosed by the particulars and established by the evidence is one under Section 8(1) as read with Section 8(3) of the Act — defilement of a child aged between twelve and fifteen years. This finding bears directly on the question of sentence, to which I return in Part F below.
(i) Whether penetration was proved beyond reasonable doubt
30. Appellant for the Appellant submits that PW2's evidence related only to the examination carried out in June 2023 and said nothing of the alleged incident in December 2020, so that the December 2020 incident is wholly unsupported by medical evidence, and further that a broken hymen is not, without more, conclusive proof of penetration.
31. I accept, as a general proposition, that a broken hymen alone is not conclusive proof of penetration, since a hymen may be perforated by causes other than sexual intercourse (P.K.W v Republic [2012] eKLR). That principle, however, does not assist the Appellant here, because the trial court's finding on penetration did not rest on the broken hymen alone. PW2 additionally found a foul-smelling discharge, pus cells indicative of infection, and — critically — epithelial cells which he specifically attributed to an injury sustained during intercourse. It is this last finding, going beyond the mere fact of a broken hymen to a specific clinical indicator of intercourse-related injury, that distinguishes this case from one resting on a broken hymen simpliciter, and I am satisfied it was properly relied upon by the trial court as corroboration of penetration.
32. As to the absence of a DNA test, it is well established that the fact of defilement is proved by evidence, not by DNA testing, which goes at most to the question of paternity or identity in certain cases, but is not itself an element of the offence (AML v Republic [2012] eKLR; Kassim Ali v Republic, Mombasa Cr. App. No. 84 of 2005). I note also that the authority relied upon by the Appellant, Republic v Timothy Mwenda Gichuru & 2 others [2017] eKLR, does not in fact support the proposition for which it is cited: that was a ruling on an application to compel an accused person to provide a blood sample for DNA analysis, concerned with the privilege against self-incrimination, and says nothing about DNA testing being a precondition to proving defilement. The absence of a DNA test is not fatal to the prosecution's case.
33. On the absence of medical evidence specific to the December 2020 incident, this is correct as far as it goes, but it does not undermine the conviction. The charge, and the trial, ultimately turned on the incident of 19th June 2023, for which there was direct testimony from the complainant and corroborative medical evidence from PW2. The complainant's evidence that an earlier incident had also occurred in December 2020 formed part of the narrative and was properly taken into account by the trial magistrate as going to the pattern of conduct between the Appellant and the complainant, but the conviction and sentence do not depend on independent proof of that earlier incident standing alone. I am satisfied that penetration was proved beyond reasonable doubt in respect of the offence for which the Appellant was, in substance, convicted.
(ii) Alleged discrepancies in the evidence
34. The Appellant makes much of the fact that PW1 stated in her testimony that the age assessment form, treatment notes, PRC form and P3 form were dated 12/06/2023, whereas the maker of those documents, PW2, testified — and produced the original documents to confirm — that they were in fact prepared and dated 20/06/2023. I have considered this discrepancy carefully.
35. It is trite that not every discrepancy in the evidence of the prosecution is fatal to its case; it is only a discrepancy that goes to the root of the matter, or that raises a genuine doubt as to the guilt of an accused, that will avail an accused person. Here, the discrepancy is a minor one, on a peripheral matter of dating, arising from the recollection of a child witness testifying more than a year after the event. It is not surprising, and does not undermine her credibility, that she may have misremembered or misspoken the specific date on a document she did not herself prepare. The maker of the documents, PW2, was unequivocal as to the correct date, and it is that evidence — from the person competent to speak to it — that the trial court was entitled to, and did, rely upon. The substance of what the documents establish — age, examination findings, and penetration — is not disturbed by the discrepancy in the date recalled by PW1.
36. Appellant also points to PW1's evidence that her father arrested the Appellant, as against PW3's evidence that both the complainant and the Appellant were arrested together at the gate. This, too, is a peripheral discrepancy going to the precise mechanics of the arrest, and not to the identity of the Appellant as the perpetrator, the fact of penetration, or the age of the complainant — the three ingredients of the offence. Different witnesses recounting an evolving and no doubt distressing sequence of events, involving multiple actors (the complainant, her father, a village elder, and the arresting officer), commonly give accounts that emphasise different parts of that sequence without being irreconcilable; PW1's account that 'her father arrested the Appellant' is not necessarily inconsistent with PW3's account of the mechanics of the arrest at the gate, since the two are not mutually exclusive and PW1 was not asked to reconcile the detail. This falls squarely within the class of peripheral discrepancy that does not avail an accused person. Both grounds relating to discrepancies accordingly fail.
(iii) Alleged poor investigation
37. The Appellant's complaint that the matter was poorly investigated is not particularised beyond the date discrepancy already addressed, and the further point that the investigating officer did not visit the scene or have the complainant point out the house in which the offence occurred. The identity of the Appellant as the perpetrator did not, in any event, rest on investigative inference alone but on the direct evidence of the complainant, who knew the Appellant well as her cousin, had interacted with him on numerous prior occasions, and observed him under conditions of adequate light at close range. Nor was the location of the offence in serious dispute: the Appellant's own defence was not that some other place was involved, but that he was elsewhere entirely on the material night. A scene visit would have added little to evidence already resting on direct recognition rather than on physical or circumstantial reconstruction of the scene. This is a classic case of recognition rather than identification of a stranger, and it is settled law that recognition of an assailant known to a witness is more satisfactory, more assuring, and more reliable than the identification of a stranger, because it depends on the witness's personal knowledge of the person in question (Anjononi & Others v Republic [1980] KLR 59). I find no basis to disturb the trial court's finding on identity, and this ground fails.
(iv) The doctor's report and the non-examination of the Appellant
38. The Appellant contends that his conviction cannot stand because he was never medically examined. This ground is misconceived. The offence of defilement is proved through evidence of penetration of the complainant, her identification of the perpetrator, and proof of her age; it does not require the medical examination of the accused person, and no provision of the Sexual Offences Act or the Evidence Act makes such examination a precondition to conviction. PW2's evidence went to the physical findings on the complainant — the broken hymen, the foul-smelling discharge, the pus cells and epithelial cells in her urine — all of which were consistent with, and corroborative of, penetration, quite independently of any examination of the Appellant.
39. As to the Appellant's related argument that his own HIV-positive status, if he were truly the perpetrator, would necessarily have been transmitted to the complainant, this does not assist him. HIV transmission through a single or even a small number of sexual contacts is probabilistic, not certain, and is affected by viral load, the administration of post-exposure prophylaxis — which PW2 confirmed was administered to the complainant — and other factors. The absence of HIV transmission to the complainant does not, on its own, cast reasonable doubt on the direct evidence of penetration and identification. This ground also fails.
(v) Opportunity to mitigate — Article 50 of the Constitution
40. Article 50(2) of the Constitution guarantees every accused person a fair trial, and it is well established that an accused person must be accorded an opportunity to mitigate before sentence is passed. The record shows that, following his conviction, the Appellant was indeed invited to and did address the trial court in mitigation. He stated that he was unwell, that he is HIV-positive and asthmatic, that he had been in custody since 2023, and he prayed for a non-custodial sentence. It is therefore not correct, on the record, that the Appellant was denied an opportunity to mitigate; he exercised that opportunity, and the trial court had the benefit of his mitigation before passing sentence. This ground accordingly fails.
(vi) The defence of alibi
41. The Appellant's defence was, in essence, an alibi: that on the material night he was at his uncle's home and only later encountered the four men who took him to the village elder. It is trite that an accused person who raises an alibi does not thereby assume any burden of proving it; it is sufficient if the alibi introduces into the mind of the court a doubt that is not unreasonable, and the burden remains on the prosecution throughout to disprove it (Kiarie v Republic [1984] KLR 739; Victor Mwendwa Mulinge v Republic [2014] eKLR; Karanja v Republic [1983] KLR 501).
42. That said, a trial court is entitled, in weighing an alibi against the whole of the evidence, to take into account the stage at which it was raised. Where an alibi is raised for the first time during the defence case, without having been put to the prosecution witnesses in cross-examination so that it could be investigated and tested, a court may properly treat this as undermining its credibility. Here, the Appellant did not put his alibi to PW1, PW2 or PW3 in cross-examination, and called no witness — including the uncle with whom he claims to have slept — to support it, despite nothing preventing him from doing so.
43. Appellant submits that Sections 212 and 309 of the Criminal Procedure Code gave the prosecution an opportunity to rebut the alibi, and that the trial court impermissibly penalised the Appellant for the prosecution's failure to do so, the burden of proof never shifting to the defence. I accept, as a matter of law, that the legal burden never shifts to an accused person, and that it was open to the prosecution to apply to reopen its case or call rebuttal evidence on the alibi. That the prosecution did not do so, however, does not by itself entitle the Appellant to an acquittal; the question for the trial court, and for this Court on appeal, is simply whether the alibi, weighed against the whole of the evidence, raises a reasonable doubt. It does not shift any burden onto the Appellant to observe, as the trial magistrate did, that an alibi raised for the first time in the defence case, untested in cross-examination and unsupported by any witness readily available to the Appellant, is entitled to correspondingly less weight than one raised and tested earlier. Weighed against the strong, credible, and consistent evidence of recognition by the complainant, corroborated by the medical evidence of penetration and the age assessment, I am satisfied that the trial magistrate properly rejected the alibi as an afterthought incapable of raising a reasonable doubt. This ground fails.
(vii) Section 124 of the Evidence Act, hearsay, and the failure to call certain witnesses
44. Appellant submits that the trial court did not comply with Section 124 of the Evidence Act in that it failed to record the specific indicia of demeanour relied upon in believing PW1, and that the evidence of the complainant and her mother's alleged reluctance to pursue the case ought to have raised a reasonable doubt. Section 124 provides that, where in a sexual offence case the only evidence is that of the alleged victim, the court may nonetheless convict if, for reasons recorded, it is satisfied the victim is telling the truth. That proviso is engaged where the complainant's evidence stands alone; it was not engaged here, since PW1's account was corroborated by PW2's medical evidence of penetration and by the age assessment, and the trial magistrate's judgment expressly set out why he found the totality of that evidence — not the complainant's testimony in isolation — credible. I do not find a failure to comply with Section 124 on this record.
45. As to the submission that the complainant and her mother wished to withdraw the case, I find no support for this in the record before me. Nothing in PW1's, PW2's or PW3's testimony, as summarised, indicates any reluctance on the part of the complainant or her mother to testify, and no application to withdraw t
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