INTRODUCTION
1. The Appellant, Dancan Wanjala Wanyela, was convicted after a full trial of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on diverse dates between 5th and 21st January 2025, in Bungoma South Sub-County within Bungoma County, he intentionally and unlawfully caused his penis to penetrate the vagina of H.N.W., a child aged 15 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 caused his penis to rub against the vagina of H.N.W.
2. On 29th April 2025, the trial court found the Appellant guilty of the main charge and sentenced him to 20 years' imprisonment, to run from 24th January 2025. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 16th June 2025, raising the following grounds: (i) that the trial magistrate erred in convicting him on evidence marred with discrepancies; (ii) that the conviction rested on poorly investigated evidence and was unsafe; (iii) that the trial magistrate erred in convicting him on the doctor's report where he himself was never examined to confirm his involvement; (iv) that he was convicted without being given a chance to mitigate, in violation of Article 50 of the Constitution; and (v) that the trial magistrate erred in rejecting his 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.
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 the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and 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 before the trial court.
SUMMARY OF THE PROSECUTION EVIDENCE
8. PW1, the complainant, testified that she is 16 years old, in Grade 9 at Bukembe Primary School, born on 3rd July 2008, and stays with her grandparents; she described the Appellant as her boyfriend. She recalled that on 5th January 2025, in the evening, she packed her belongings and left home after her uncle, Noel Makhanu, threatened to defile her. She stayed with the Appellant for three days at his house, during which they had sexual intercourse. She testified that the Appellant then left for Machakos with a woman named Yvonne, returning after ten days. She thereafter decided to go to Webuye, and on the way met her uncle, Dennis Makhanu, who tricked her into boarding a lorry; she was driven to a police station, where she found her grandfather and another uncle, and was then taken to Bukembe Hospital for treatment. She identified the treatment notes, the P3 Form, and her birth certificate. On cross-examination, she stated the Appellant had 'saved her,' that she did not know whether he had a wife and children, and that she had told him she did not attend school.
9. PW2, Milka Nasimiyu Masinde, the complainant's mother, testified that the complainant was born on 3rd July 2009. On 10th January 2025 at around 9:00am, her father called to ask whether the complainant had visited her, informing her the complainant was missing from home and that he had reported her disappearance at Bukembe Police Station. On 21st January 2025 at around 5:00pm, her brother Dennis called to say he had found the complainant with the Appellant; she joined them at Bukembe Police Station and took the complainant to hospital for examination. She questioned the complainant about the incident, but the complainant did not respond. She identified the Appellant in Court, and produced the birth certificate confirming the birth date of 3rd July 2009. On cross-examination, she stated she did not know whether the Appellant was the complainant's 'saviour.'
10. PW3, Erick Kisika Makhanu, the complainant's grandfather, testified that he first met the Appellant at Bukembe Police Station following his arrest with the complainant. He stated that the complainant disappeared from home on the night of 5th January 2025; he reported this to the Assistant Chief's office on 13th January 2025 and was advised to report to Bukembe Police Station. On 14th January 2025, he received information from PW2 that the complainant had been spotted in the Namasawa area, and police officers were dispatched to trace her. He later attended the police station, found the complainant and the Appellant under arrest, and relayed this to the Assistant Chief.
11. PW4, Asha Wesaya, a clinical officer at Bukembe Dispensary, testified that the complainant presented at the facility accompanied by a parent, with a history of having disappeared from home to a man's residence. On interview and examination, the complainant disclosed that she had eloped with the Appellant and that they had had sexual intercourse on diverse occasions. Her hymen was found absent, described as torn and old-looking; there was no pregnancy, but a urinary tract infection was present. PW4 completed and produced the P3 Form and treatment notes, and formed the opinion that the complainant's vagina had been penetrated and that she had a vaginal sexually transmitted infection. On cross-examination, she confirmed her opinion that the complainant had been defiled.
12. PW5, PC Lydia Nyongesa, testified that on 13th January 2025 at around noon, an elderly man reported that his 16-year-old grandchild had disappeared from home; she booked the report and advised him to make inquiries with relatives. On 21st January 2025, a crowd brought the complainant and the Appellant to the station, having apprehended them at Webuye as they were preparing to travel to Nairobi. The following day, she escorted the complainant to hospital for medical examination. She testified that the complainant was born on 3rd July 2009 and produced the birth certificate.
13. On cross-examination, PW5 confirmed that members of the public had brought the Appellant to the police station after finding him with the complainant.
14. At the close of the prosecution's case, and ahead of a ruling under Section 210 of the Criminal Procedure Code, the Appellant made oral submissions in which he stated that on 13th January 2025 he was not present, and was informed by family members that people were looking for him over his having disappeared with the complainant.
15. Upon the trial magistrate finding a case to answer and placing him on his defence, the Appellant elected to remain silent, calling no witnesses.
Judgment of the Trial Court
16. The learned trial magistrate relied on Edwin Nyambogo Onsongo v Republic [2016] eKLR on the proof of a complainant's age, and on Hadson Ali Mwachongo v Republic [2016] eKLR, citing CD v Republic (Criminal Appeal 31 of 2022) [2023] KECA 431 (KLR), in determining whether the complainant was 15 or 16 years old. On penetration and identification, the trial magistrate relied on the evidence of the complainant and the clinical officer and found both elements proved.
17. The trial magistrate addressed the Appellant's contention, raised in cross-examination of PW4, that his own failure to be medically examined was fatal to the prosecution's case, PW1 having tested positive for a urinary tract infection and a sexually transmitted infection.
18. The trial magistrate found that, while it is desirable to medically examine an accused person for a sexually transmitted infection where the complainant has tested positive, the law is that the omission is fatal only where the evidence on record is otherwise barely adequate to convict, relying on Geoffrey Kioji v Republic, Nyeri Criminal Appeal No. 270 of 2010, as cited in Dennis Osoro Obiti v Republic [2014] eKLR.
19. The trial magistrate found that the evidence before the court, even absent the Appellant's own medical examination, pointed to an irresistible conclusion that he had defiled the complainant.
20. Having examined the evidence, the trial magistrate found the elements of defilement under the Sexual Offences Act proved beyond reasonable doubt, and convicted the Appellant of defilement contrary to Section 8(1) as read with Section 8(3) of the Act.
21. On mitigation, the Appellant stated he was a sickle cell patient, an orphan, and prayed for release to seek treatment. The learned magistrate sentenced him to the mandatory minimum of 20 years.
The Appeal
22. The Appellant canvassed his appeal by way of written submissions, submitting that the trial magistrate erred in denying him his constitutional right to the least severe sentence under Articles 50(2)(p) and 25(c) of the Constitution, in circumstances where the complainant's age was in doubt, relying on Hamisi Bakari & Another v Republic (1987) eKLR. He submitted that any doubt as to age ought to be resolved in his favour in the form of the less severe sentence, relying on Alfayo Gombe Okello v Republic.
23. He further submitted that a complainant aged 15 years and 6 months ought, in ordinary daily life and universally accepted practice, to be rounded off to 16 years, entitling him to a sentence of 15 years rather than 20, relying on the Sentencing Policy Guidelines, and submitted that his sentence ought to run from the date of his arrest in accordance with Section 333(2) of the Criminal Procedure Code.
24. He further submitted that penetration was not proved beyond reasonable doubt, noting that PW4 found the complainant positive for a urinary tract infection and a sexually transmitted infection, whereas he was never examined; he relied on Sections 107, 108, and 109 of the Evidence Act, submitting that an old, broken hymen is not conclusive proof of penetration, relying on P.K.W. v Republic [2012] eKLR and The Queen v Manuel Vincent Quintanila (1999) ABQB.
25. He submitted that the trial court improperly shifted the burden of proof onto him to prove the complainant was not born without a hymen; that the complainant never stated it was her first sexual experience, leaving a margin of doubt; and that the absence of DNA evidence was fatal, relying on R v Timothy Mwenda Gichuru & 2 Others [2017] eKLR. He further submitted that the trial court failed to specify which aspects of the complainant's demeanour it relied upon in accepting her evidence, relying on Section 191 of the Criminal Procedure Code and John Gordon Wayner v R & 2 Others [2001] eKLR, and contended the complainant's credibility had been impeached, praying for his acquittal.
26. The Respondent submitted that the record reflects consistent and tangible evidence sufficient to sustain the conviction.
27. On age, the Respondent submitted that the complainant was 16 years old, having been born on 3rd July 2009; on penetration, that the complainant's evidence was corroborated by PW4, and all elements of defilement had been proved.
28. On medical examination of the Appellant, the Respondent submitted this is not an ingredient of the offence, and that the Appellant remained at liberty to seek his own examination or call evidence to that effect, which he never did.
29. The Respondent further submitted it was untrue the Appellant was denied a chance to mitigate, noting he had in fact stated in mitigation that he suffered from sickle cell disease and was an orphan, praying for release for treatment, and prayed that the appeal be dismissed in its entirety.
ANALYSIS AND DETERMINATION
30. Having summarised the record and the parties' submissions, I turn to my own independent re-evaluation of the evidence. The following issues arise for determination: (a) whether the age of the complainant was correctly established at 15 years, and whether her age ought, for sentencing purposes, to be rounded up to 16 years; (b) whether penetration was proved beyond reasonable doubt, having regard to the medical evidence and the absence of DNA evidence; (c) whether the failure to medically examine the Appellant is fatal to the prosecution's case; (d) whether the Appellant properly raised an alibi defence, and if so, whether it was correctly rejected; (e) whether the Appellant was denied an opportunity to mitigate; and (f) whether the sentence was otherwise correctly computed.
Whether the Age of the Complainant Was Proved
31. On age, there is a genuine discrepancy on the record: PW1 herself testified she is 16 years old, having been born on 3rd July 2008, while PW2, her own mother, and PW5, the investigating officer who produced the birth certificate, both testified she was born on 3rd July 2009. If the latter date is correct, the complainant was approximately 15 years and 6 months old at the time of the offence in January 2025; if PW1's own account is correct, she was 16. I find no basis to prefer PW1's uncorroborated self-report over the birth certificate, itself an official documentary record, corroborated independently by both her mother and the investigating officer who produced it. A birth certificate remains the most reliable evidence of age available to a court, as recognised in Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, and Richard Wahome Chege v Republic, Criminal Appeal No. 61 of 2014, and I find no reason to depart from it here merely because the complainant, who described the Appellant as her boyfriend and as having 'saved her,' gave a different, self-serving account of her own age. I am satisfied, as was the trial magistrate relying on Edwin Nyambogo Onsongo v Republic [2016] eKLR, Hadson Ali Mwachongo v Republic [2016] eKLR, and CD v Republic (Criminal Appeal 31 of 2022) [2023] KECA 431 (KLR), that the complainant was 15 years and approximately 6 months old at the material time.
Whether the Complainant's Age Ought to be Rounded Up to 16 Years
32. On the Appellant's submission that this age ought to be 'rounded off' to 16 years, so as to bring the offence within Section 8(4) of the Sexual Offences Act, carrying a mandatory minimum of 15 years, rather than Section 8(3), carrying a mandatory minimum of 20 years, I reject this submission entirely. Age, for purposes of the age brackets fixed by Section 8 of the Sexual Offences Act, is computed by completed years from the date of birth, not by proximity to the next birthday. A person does not attain a given age in law until the corresponding birthday has actually passed; a child who is 15 years and 6 months old remains, in law, 15 years old, and does not become 16 for any legal purpose until her sixteenth birthday is reached. There is no statutory or judicial basis for the rounding convention the Appellant proposes, whether under the Sexual Offences Act, the Children Act, or any general principle of construction, and to adopt it would require this Court to invent an arbitrary threshold — presumably the midpoint of the year — found nowhere in the law Parliament enacted, undermining the very specificity with which Parliament fixed these age brackets and their corresponding mandatory minimum sentences. I find the complainant was, in law, 15 years old at the material time, squarely within Section 8(3), and this ground fails.
Whether Penetration Was Proved
33. On penetration, Section 2(1) of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into those of another. The complainant gave a clear account of having stayed with the Appellant for an extended period, during which they had sexual intercourse on diverse occasions. This is corroborated by the evidence of PW4, who found the complainant's hymen absent, described as torn and old-looking, together with a urinary tract infection and a sexually transmitted infection, and who formed the opinion that the complainant had been penetrated. I accept, applying P.K.W. v Republic [2012] eKLR, that an old, healed hymenal tear, standing alone, is not conclusive proof that penetration occurred on the specific occasion charged. This case, however, does not rest on that finding alone: it is corroborated by a freshly contracted sexually transmitted infection and urinary tract infection, consistent with recent sexual activity during the very period the complainant was shown, independently, to have been residing with the Appellant, and by the complainant's own detailed account of repeated intercourse during that period. Taken together, this evidence considerably exceeds the bare, ambiguous finding considered in P.K.W., and I am satisfied penetration was proved beyond reasonable doubt.
Whether the Absence of DNA Evidence, or the Trial Court's Treatment of the Burden of Proof, Undermines the Conviction
34. On the absence of DNA evidence, I do not accept that this is fatal. DNA evidence, while highly probative where available, particularly to establish parentage, is not a precondition for proof of defilement; a conviction may properly rest on the credible evidence of the complainant, corroborated as it is here by medical findings and by independent witnesses who recovered her in the Appellant's company, without more. Nor do I accept the submission that the trial court improperly shifted the burden of proof onto the Appellant. The burden throughout remained on the prosecution, and was discharged through the cumulative weight of the complainant's testimony, the medical evidence, and the surrounding circumstantial evidence of her disappearance and recovery in the Appellant's company after an absence of sixteen days; nothing in the trial court's judgment required the Appellant to disprove any element of the offence.
Whether the Failure to Medically Examine the Appellant Is Fatal to the Prosecution's Case
35. On the failure to medically examine the Appellant, I adopt the approach taken by the trial magistrate, relying on Geoffrey Kioji v Republic, Nyeri Criminal Appeal No. 270 of 2010, and Dennis Osoro Obiti v Republic [2014] eKLR: such an omission is fatal only where the evidence on record is otherwise barely adequate to sustain a conviction. Section 36 of the Sexual Offences Act makes the taking of samples from, or medical examination of, an accused a matter of judicial discretion, not obligation, as confirmed in Erick Onyango Ondeng' v Republic [2014] eKLR and David Kipngeno Bett v Republic [2017] eKLR. I would add that the Appellant's submission proceeds on a mistaken premise: the record does not show that the Appellant was examined and found free of infection; it shows only that he was never examined at all, so that whether he, too, carried an infection consistent with the complainant's remains simply unknown, a gap the Appellant himself could have closed by seeking his own examination at any stage, as the Respondent correctly submits. In any event, the evidence here — the complainant's detailed account, the corroborating medical findings, and the independent evidence of her recovery in the Appellant's company after an extended, unexplained absence from home — is not barely adequate; it is substantial, and I find no basis on which the absence of the Appellant's own examination undermines the safety of the conviction.
Whether the Appellant Raised a Proper Alibi Defence
36. On the alibi, I have examined the record carefully and find that the Appellant did not raise a proper alibi defence at all. The statement that he 'was not around' on 13th January 2025 was made during oral submissions following the close of the prosecution's case, at the stage of a ruling under Section 210 of the Criminal Procedure Code; submissions of this kind are legal argument, not evidence, and are not given on oath or subject to cross-examination. When the Appellant was thereafter formally placed on his defence and given the full opportunity to give evidence and call witnesses in support of any alibi, he elected to remain silent and called no witnesses. An alibi raised only as an unsworn assertion in submissions, and never advanced as evidence when the opportunity to do so squarely arose, does not constitute a defence properly before the court; the prosecution's obligation to negative an alibi arises only once it has been raised as evidence, not merely floated in argument. There was, accordingly, no 'plausible defence' for the trial court to have rejected, and ground (v) fails, whatever Section 169 of the Criminal Procedure Code is said to require of a trial court in evaluating a defence actually advanced.
Whether the Appellant Was Denied an Opportunity to Mitigate
37. On the submission that the Appellant was denied an opportunity to mitigate, this is not borne out by the record, which shows, at paragraph 21 above, that the Appellant did in fact address the trial court in mitigation, raising his sickle cell condition, his status as an orphan, and a request for release for treatment. This ground is factually incorrect and fails. I would add, in any event, that even had these matters been more fully canvassed, they could not have resulted in a sentence below the mandatory minimum prescribed by Section 8(3) of the Sexual Offences Act, for the reasons given below; his medical condition remains, however, a matter properly addressed through appropriate medical care within the custodial system, rather than through a reduction of a lawfully fixed sentence.
Whether the Sentence Was Correctly Computed
38. On sentence, Section 8(3) of the Sexual Offences Act prescribes a mandatory minimum of 20 years for defilement of a child between 12 and 15 years, and, the complainant having been correctly found to be 15, the sentence imposed is precisely that lawful minimum. As held by the Supreme Court in Republic v Joshua Gichuki Mwangi (12 July 2024) and Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), this mandatory minimum is constitutional, and no mitigating factor — however genuine, and however sympathetically presented — can reduce a sentence below it. As to the Appellant's reliance on Section 333(2) of the Criminal Procedure Code, I note that the trial court already directed the sentence to run from 24th January 2025, closely following his arrest on or about 21st January 2025; no further adjustment is required, the mandatory proviso having already been substantially complied with.
39. Having found that age, penetration, and identity were each proved beyond reasonable doubt, that no properly raised alibi was before the trial court, that the Appellant was not denied an opportunity to mitigate, and that the sentence imposed is the lawful mandatory minimum correctly computed, I am satisfied the conviction and sentence were both safe and ought to be upheld.
DISPOSITION
40. For the foregoing reasons, I make the following orders:
(a). The appeal against conviction is dismissed, and the conviction of the Appellant on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act is upheld.
(b). The appeal against sentence is dismissed, the sentence of 20 years' imprisonment, running from 24th January 2025, being the lawful mandatory minimum correctly computed;
Delivered at kericho on 29th July 2026
In the presence of
Appellant
C/A Irene Chelangat
1. The Appellant, Dancan Wanjala Wanyela, was convicted after a full trial of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on diverse dates between 5th and 21st January 2025, in Bungoma South Sub-County within Bungoma County, he intentionally and unlawfully caused his penis to penetrate the vagina of H.N.W., a child aged 15 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 caused his penis to rub against the vagina of H.N.W.
2. On 29th April 2025, the trial court found the Appellant guilty of the main charge and sentenced him to 20 years' imprisonment, to run from 24th January 2025. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 16th June 2025, raising the following grounds: (i) that the trial magistrate erred in convicting him on evidence marred with discrepancies; (ii) that the conviction rested on poorly investigated evidence and was unsafe; (iii) that the trial magistrate erred in convicting him on the doctor's report where he himself was never examined to confirm his involvement; (iv) that he was convicted without being given a chance to mitigate, in violation of Article 50 of the Constitution; and (v) that the trial magistrate erred in rejecting his 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.
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 the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and 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 before the trial court.
SUMMARY OF THE PROSECUTION EVIDENCE
8. PW1, the complainant, testified that she is 16 years old, in Grade 9 at Bukembe Primary School, born on 3rd July 2008, and stays with her grandparents; she described the Appellant as her boyfriend. She recalled that on 5th January 2025, in the evening, she packed her belongings and left home after her uncle, Noel Makhanu, threatened to defile her. She stayed with the Appellant for three days at his house, during which they had sexual intercourse. She testified that the Appellant then left for Machakos with a woman named Yvonne, returning after ten days. She thereafter decided to go to Webuye, and on the way met her uncle, Dennis Makhanu, who tricked her into boarding a lorry; she was driven to a police station, where she found her grandfather and another uncle, and was then taken to Bukembe Hospital for treatment. She identified the treatment notes, the P3 Form, and her birth certificate. On cross-examination, she stated the Appellant had 'saved her,' that she did not know whether he had a wife and children, and that she had told him she did not attend school.
9. PW2, Milka Nasimiyu Masinde, the complainant's mother, testified that the complainant was born on 3rd July 2009. On 10th January 2025 at around 9:00am, her father called to ask whether the complainant had visited her, informing her the complainant was missing from home and that he had reported her disappearance at Bukembe Police Station. On 21st January 2025 at around 5:00pm, her brother Dennis called to say he had found the complainant with the Appellant; she joined them at Bukembe Police Station and took the complainant to hospital for examination. She questioned the complainant about the incident, but the complainant did not respond. She identified the Appellant in Court, and produced the birth certificate confirming the birth date of 3rd July 2009. On cross-examination, she stated she did not know whether the Appellant was the complainant's 'saviour.'
10. PW3, Erick Kisika Makhanu, the complainant's grandfather, testified that he first met the Appellant at Bukembe Police Station following his arrest with the complainant. He stated that the complainant disappeared from home on the night of 5th January 2025; he reported this to the Assistant Chief's office on 13th January 2025 and was advised to report to Bukembe Police Station. On 14th January 2025, he received information from PW2 that the complainant had been spotted in the Namasawa area, and police officers were dispatched to trace her. He later attended the police station, found the complainant and the Appellant under arrest, and relayed this to the Assistant Chief.
11. PW4, Asha Wesaya, a clinical officer at Bukembe Dispensary, testified that the complainant presented at the facility accompanied by a parent, with a history of having disappeared from home to a man's residence. On interview and examination, the complainant disclosed that she had eloped with the Appellant and that they had had sexual intercourse on diverse occasions. Her hymen was found absent, described as torn and old-looking; there was no pregnancy, but a urinary tract infection was present. PW4 completed and produced the P3 Form and treatment notes, and formed the opinion that the complainant's vagina had been penetrated and that she had a vaginal sexually transmitted infection. On cross-examination, she confirmed her opinion that the complainant had been defiled.
12. PW5, PC Lydia Nyongesa, testified that on 13th January 2025 at around noon, an elderly man reported that his 16-year-old grandchild had disappeared from home; she booked the report and advised him to make inquiries with relatives. On 21st January 2025, a crowd brought the complainant and the Appellant to the station, having apprehended them at Webuye as they were preparing to travel to Nairobi. The following day, she escorted the complainant to hospital for medical examination. She testified that the complainant was born on 3rd July 2009 and produced the birth certificate.
13. On cross-examination, PW5 confirmed that members of the public had brought the Appellant to the police station after finding him with the complainant.
14. At the close of the prosecution's case, and ahead of a ruling under Section 210 of the Criminal Procedure Code, the Appellant made oral submissions in which he stated that on 13th January 2025 he was not present, and was informed by family members that people were looking for him over his having disappeared with the complainant.
15. Upon the trial magistrate finding a case to answer and placing him on his defence, the Appellant elected to remain silent, calling no witnesses.
Judgment of the Trial Court
16. The learned trial magistrate relied on Edwin Nyambogo Onsongo v Republic [2016] eKLR on the proof of a complainant's age, and on Hadson Ali Mwachongo v Republic [2016] eKLR, citing CD v Republic (Criminal Appeal 31 of 2022) [2023] KECA 431 (KLR), in determining whether the complainant was 15 or 16 years old. On penetration and identification, the trial magistrate relied on the evidence of the complainant and the clinical officer and found both elements proved.
17. The trial magistrate addressed the Appellant's contention, raised in cross-examination of PW4, that his own failure to be medically examined was fatal to the prosecution's case, PW1 having tested positive for a urinary tract infection and a sexually transmitted infection.
18. The trial magistrate found that, while it is desirable to medically examine an accused person for a sexually transmitted infection where the complainant has tested positive, the law is that the omission is fatal only where the evidence on record is otherwise barely adequate to convict, relying on Geoffrey Kioji v Republic, Nyeri Criminal Appeal No. 270 of 2010, as cited in Dennis Osoro Obiti v Republic [2014] eKLR.
19. The trial magistrate found that the evidence before the court, even absent the Appellant's own medical examination, pointed to an irresistible conclusion that he had defiled the complainant.
20. Having examined the evidence, the trial magistrate found the elements of defilement under the Sexual Offences Act proved beyond reasonable doubt, and convicted the Appellant of defilement contrary to Section 8(1) as read with Section 8(3) of the Act.
21. On mitigation, the Appellant stated he was a sickle cell patient, an orphan, and prayed for release to seek treatment. The learned magistrate sentenced him to the mandatory minimum of 20 years.
The Appeal
22. The Appellant canvassed his appeal by way of written submissions, submitting that the trial magistrate erred in denying him his constitutional right to the least severe sentence under Articles 50(2)(p) and 25(c) of the Constitution, in circumstances where the complainant's age was in doubt, relying on Hamisi Bakari & Another v Republic (1987) eKLR. He submitted that any doubt as to age ought to be resolved in his favour in the form of the less severe sentence, relying on Alfayo Gombe Okello v Republic.
23. He further submitted that a complainant aged 15 years and 6 months ought, in ordinary daily life and universally accepted practice, to be rounded off to 16 years, entitling him to a sentence of 15 years rather than 20, relying on the Sentencing Policy Guidelines, and submitted that his sentence ought to run from the date of his arrest in accordance with Section 333(2) of the Criminal Procedure Code.
24. He further submitted that penetration was not proved beyond reasonable doubt, noting that PW4 found the complainant positive for a urinary tract infection and a sexually transmitted infection, whereas he was never examined; he relied on Sections 107, 108, and 109 of the Evidence Act, submitting that an old, broken hymen is not conclusive proof of penetration, relying on P.K.W. v Republic [2012] eKLR and The Queen v Manuel Vincent Quintanila (1999) ABQB.
25. He submitted that the trial court improperly shifted the burden of proof onto him to prove the complainant was not born without a hymen; that the complainant never stated it was her first sexual experience, leaving a margin of doubt; and that the absence of DNA evidence was fatal, relying on R v Timothy Mwenda Gichuru & 2 Others [2017] eKLR. He further submitted that the trial court failed to specify which aspects of the complainant's demeanour it relied upon in accepting her evidence, relying on Section 191 of the Criminal Procedure Code and John Gordon Wayner v R & 2 Others [2001] eKLR, and contended the complainant's credibility had been impeached, praying for his acquittal.
26. The Respondent submitted that the record reflects consistent and tangible evidence sufficient to sustain the conviction.
27. On age, the Respondent submitted that the complainant was 16 years old, having been born on 3rd July 2009; on penetration, that the complainant's evidence was corroborated by PW4, and all elements of defilement had been proved.
28. On medical examination of the Appellant, the Respondent submitted this is not an ingredient of the offence, and that the Appellant remained at liberty to seek his own examination or call evidence to that effect, which he never did.
29. The Respondent further submitted it was untrue the Appellant was denied a chance to mitigate, noting he had in fact stated in mitigation that he suffered from sickle cell disease and was an orphan, praying for release for treatment, and prayed that the appeal be dismissed in its entirety.
ANALYSIS AND DETERMINATION
30. Having summarised the record and the parties' submissions, I turn to my own independent re-evaluation of the evidence. The following issues arise for determination: (a) whether the age of the complainant was correctly established at 15 years, and whether her age ought, for sentencing purposes, to be rounded up to 16 years; (b) whether penetration was proved beyond reasonable doubt, having regard to the medical evidence and the absence of DNA evidence; (c) whether the failure to medically examine the Appellant is fatal to the prosecution's case; (d) whether the Appellant properly raised an alibi defence, and if so, whether it was correctly rejected; (e) whether the Appellant was denied an opportunity to mitigate; and (f) whether the sentence was otherwise correctly computed.
Whether the Age of the Complainant Was Proved
31. On age, there is a genuine discrepancy on the record: PW1 herself testified she is 16 years old, having been born on 3rd July 2008, while PW2, her own mother, and PW5, the investigating officer who produced the birth certificate, both testified she was born on 3rd July 2009. If the latter date is correct, the complainant was approximately 15 years and 6 months old at the time of the offence in January 2025; if PW1's own account is correct, she was 16. I find no basis to prefer PW1's uncorroborated self-report over the birth certificate, itself an official documentary record, corroborated independently by both her mother and the investigating officer who produced it. A birth certificate remains the most reliable evidence of age available to a court, as recognised in Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, and Richard Wahome Chege v Republic, Criminal Appeal No. 61 of 2014, and I find no reason to depart from it here merely because the complainant, who described the Appellant as her boyfriend and as having 'saved her,' gave a different, self-serving account of her own age. I am satisfied, as was the trial magistrate relying on Edwin Nyambogo Onsongo v Republic [2016] eKLR, Hadson Ali Mwachongo v Republic [2016] eKLR, and CD v Republic (Criminal Appeal 31 of 2022) [2023] KECA 431 (KLR), that the complainant was 15 years and approximately 6 months old at the material time.
Whether the Complainant's Age Ought to be Rounded Up to 16 Years
32. On the Appellant's submission that this age ought to be 'rounded off' to 16 years, so as to bring the offence within Section 8(4) of the Sexual Offences Act, carrying a mandatory minimum of 15 years, rather than Section 8(3), carrying a mandatory minimum of 20 years, I reject this submission entirely. Age, for purposes of the age brackets fixed by Section 8 of the Sexual Offences Act, is computed by completed years from the date of birth, not by proximity to the next birthday. A person does not attain a given age in law until the corresponding birthday has actually passed; a child who is 15 years and 6 months old remains, in law, 15 years old, and does not become 16 for any legal purpose until her sixteenth birthday is reached. There is no statutory or judicial basis for the rounding convention the Appellant proposes, whether under the Sexual Offences Act, the Children Act, or any general principle of construction, and to adopt it would require this Court to invent an arbitrary threshold — presumably the midpoint of the year — found nowhere in the law Parliament enacted, undermining the very specificity with which Parliament fixed these age brackets and their corresponding mandatory minimum sentences. I find the complainant was, in law, 15 years old at the material time, squarely within Section 8(3), and this ground fails.
Whether Penetration Was Proved
33. On penetration, Section 2(1) of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into those of another. The complainant gave a clear account of having stayed with the Appellant for an extended period, during which they had sexual intercourse on diverse occasions. This is corroborated by the evidence of PW4, who found the complainant's hymen absent, described as torn and old-looking, together with a urinary tract infection and a sexually transmitted infection, and who formed the opinion that the complainant had been penetrated. I accept, applying P.K.W. v Republic [2012] eKLR, that an old, healed hymenal tear, standing alone, is not conclusive proof that penetration occurred on the specific occasion charged. This case, however, does not rest on that finding alone: it is corroborated by a freshly contracted sexually transmitted infection and urinary tract infection, consistent with recent sexual activity during the very period the complainant was shown, independently, to have been residing with the Appellant, and by the complainant's own detailed account of repeated intercourse during that period. Taken together, this evidence considerably exceeds the bare, ambiguous finding considered in P.K.W., and I am satisfied penetration was proved beyond reasonable doubt.
Whether the Absence of DNA Evidence, or the Trial Court's Treatment of the Burden of Proof, Undermines the Conviction
34. On the absence of DNA evidence, I do not accept that this is fatal. DNA evidence, while highly probative where available, particularly to establish parentage, is not a precondition for proof of defilement; a conviction may properly rest on the credible evidence of the complainant, corroborated as it is here by medical findings and by independent witnesses who recovered her in the Appellant's company, without more. Nor do I accept the submission that the trial court improperly shifted the burden of proof onto the Appellant. The burden throughout remained on the prosecution, and was discharged through the cumulative weight of the complainant's testimony, the medical evidence, and the surrounding circumstantial evidence of her disappearance and recovery in the Appellant's company after an absence of sixteen days; nothing in the trial court's judgment required the Appellant to disprove any element of the offence.
Whether the Failure to Medically Examine the Appellant Is Fatal to the Prosecution's Case
35. On the failure to medically examine the Appellant, I adopt the approach taken by the trial magistrate, relying on Geoffrey Kioji v Republic, Nyeri Criminal Appeal No. 270 of 2010, and Dennis Osoro Obiti v Republic [2014] eKLR: such an omission is fatal only where the evidence on record is otherwise barely adequate to sustain a conviction. Section 36 of the Sexual Offences Act makes the taking of samples from, or medical examination of, an accused a matter of judicial discretion, not obligation, as confirmed in Erick Onyango Ondeng' v Republic [2014] eKLR and David Kipngeno Bett v Republic [2017] eKLR. I would add that the Appellant's submission proceeds on a mistaken premise: the record does not show that the Appellant was examined and found free of infection; it shows only that he was never examined at all, so that whether he, too, carried an infection consistent with the complainant's remains simply unknown, a gap the Appellant himself could have closed by seeking his own examination at any stage, as the Respondent correctly submits. In any event, the evidence here — the complainant's detailed account, the corroborating medical findings, and the independent evidence of her recovery in the Appellant's company after an extended, unexplained absence from home — is not barely adequate; it is substantial, and I find no basis on which the absence of the Appellant's own examination undermines the safety of the conviction.
Whether the Appellant Raised a Proper Alibi Defence
36. On the alibi, I have examined the record carefully and find that the Appellant did not raise a proper alibi defence at all. The statement that he 'was not around' on 13th January 2025 was made during oral submissions following the close of the prosecution's case, at the stage of a ruling under Section 210 of the Criminal Procedure Code; submissions of this kind are legal argument, not evidence, and are not given on oath or subject to cross-examination. When the Appellant was thereafter formally placed on his defence and given the full opportunity to give evidence and call witnesses in support of any alibi, he elected to remain silent and called no witnesses. An alibi raised only as an unsworn assertion in submissions, and never advanced as evidence when the opportunity to do so squarely arose, does not constitute a defence properly before the court; the prosecution's obligation to negative an alibi arises only once it has been raised as evidence, not merely floated in argument. There was, accordingly, no 'plausible defence' for the trial court to have rejected, and ground (v) fails, whatever Section 169 of the Criminal Procedure Code is said to require of a trial court in evaluating a defence actually advanced.
Whether the Appellant Was Denied an Opportunity to Mitigate
37. On the submission that the Appellant was denied an opportunity to mitigate, this is not borne out by the record, which shows, at paragraph 21 above, that the Appellant did in fact address the trial court in mitigation, raising his sickle cell condition, his status as an orphan, and a request for release for treatment. This ground is factually incorrect and fails. I would add, in any event, that even had these matters been more fully canvassed, they could not have resulted in a sentence below the mandatory minimum prescribed by Section 8(3) of the Sexual Offences Act, for the reasons given below; his medical condition remains, however, a matter properly addressed through appropriate medical care within the custodial system, rather than through a reduction of a lawfully fixed sentence.
Whether the Sentence Was Correctly Computed
38. On sentence, Section 8(3) of the Sexual Offences Act prescribes a mandatory minimum of 20 years for defilement of a child between 12 and 15 years, and, the complainant having been correctly found to be 15, the sentence imposed is precisely that lawful minimum. As held by the Supreme Court in Republic v Joshua Gichuki Mwangi (12 July 2024) and Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR), this mandatory minimum is constitutional, and no mitigating factor — however genuine, and however sympathetically presented — can reduce a sentence below it. As to the Appellant's reliance on Section 333(2) of the Criminal Procedure Code, I note that the trial court already directed the sentence to run from 24th January 2025, closely following his arrest on or about 21st January 2025; no further adjustment is required, the mandatory proviso having already been substantially complied with.
39. Having found that age, penetration, and identity were each proved beyond reasonable doubt, that no properly raised alibi was before the trial court, that the Appellant was not denied an opportunity to mitigate, and that the sentence imposed is the lawful mandatory minimum correctly computed, I am satisfied the conviction and sentence were both safe and ought to be upheld.
DISPOSITION
40. For the foregoing reasons, I make the following orders:
(a). The appeal against conviction is dismissed, and the conviction of the Appellant on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act is upheld.
(b). The appeal against sentence is dismissed, the sentence of 20 years' imprisonment, running from 24th January 2025, being the lawful mandatory minimum correctly computed;
Delivered at kericho on 29th July 2026
In the presence of
Appellant
C/A Irene Chelangat