1. DAVID OWIRA OTIENO “the appellant” was on 2/10/2023 arraigned before the Maseno Principal Magistrates Court with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Offences Act No. 3 of 2006.
2. It was alleged that on 30/9/2023 at around 2300hrs at Kajulu Kokeo Village in Seme Sub County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.A. a child of 15 years. There was also an alternative charge of committing an indecent act with the same child.
3. The appellant denied the charge and the trial ensued. The prosecution called 8 witnesses and the appellant gave a sworn statement. By a judgment made on 23/5/2025, the appellant was found guilty and sentenced to 20 years’ imprisonment.
4. Aggrieved by the said conviction and sentence, the appellant appealed to this Court citing 3 grounds. These were that the trial court erred in failing to establish that the prosecution had not proved its case to the required standard; the trial Court erred in relying on contradictory evidence and that the prosecution evidence was not corroborative.
5. The appeal was disposed of by way of written submissions which the Court has considered.
6. This being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to arrive at its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.)
7. The complainant testified as PW1. It was her evidence that she was 14 years old and schooled at Kajulu Junior Secondary School in Grade 7. That on the material day, she had returned home at night when her mother questioned her where she had come from. She ran away towards Yago where a motorcycle stopped and the pillion passenger alighted. The motorcycle sped away and the person who alighted got hold of her and pulled her to his house.
8. On reaching that person’s house, he lit a candle and had sexual intercourse with her. She screamed and people came to her rescue. They started assaulting the assailant while she was rescued and taken to the house of the assailant’s mother where she spent the night. The following morning, she was brought back to the house where she had been defiled and found police officers there. She and her assailant were taken to Kombewa Police Station then Kombewa Centre for medical examination. She identified the appellant in Court as the person who had defiled her.
9. In cross-examination, she stated that she did not recognize the person who alighted from the motorcycle and got hold of her as it was dark. She also admitted that she and the neighbour knocked the appellant’s door and on entering, the neighbour assaulted the appellant. That she did not know that the said neighbour was the appellant’s brother.
10. On the material date at about 11:40pm, George Onyango Oyugi (PW2) was in his house when he heard dogs barking. He went outside to check what was happening. One dog led him to some mabati house which was at some distance. He heard a girl crying from inside. He called the appellant to open the door as he knew his brother had permitted the appellant to occupy that house. That on entering, he found a girl lying on the floor half naked. That she could not stand up as she seemed paralyzed on one side. That she told him that she was going to visit her sister when the appellant alighted from a motorcycle and grabbed her. That he threatened to kill her if she screamed. That the appellant then defiled her. That he called for the appellant’s mother who came and took the complainant to her house. He then called the village elder and the Chief. Him and the appellant were step brothers.
11. In cross-examination, he denied having any grudge with the appellant. That the neighbours came after he raised alarm. He denied ever coming to the appellant’s house with the complainant. He admitted that there was a funeral in the neighbourhood.
12. Jane Achieng Yugi (PW3) was called that night by PW2 to go to the house of the appellant. When she entered the house, she found the appellant sitting on a box and the complainant lying facing up. Her blouse was raised up and she was holding her pant in the hand. She took the complainant to her house where the latter explained to her what had happened.
13. On cross-examination, she stated that when she came to the appellant’s house, she found that there were neighbours present.
14. On 1/10/2023 at about 9:30am, No. 99206 PC Paul Idagwa (PW4) was informed about a defilement incident. He accompanied PW5 to the scene. They found the appellant locked in a house and arrested him. No. 201551 PC William Musyoka (PW5) was informed of the defilement incident and accompanied PW4 to the scene. On reaching there, they found a crowd of people surrounding the house in which a suspect was locked inside. They went inside, found the appellant and arrested him. He did not interrogate the complainant. On cross-examination, he stated that it is the members of the public and the appellant’s family members who told him what had happened.
15. No 256180 PC Sharon Wafula investigated the case. She was in the office on 1/10/2023 when the chief and two police officers escorted the appellant and the complainant to the station. She interviewed the complainant who narrated to her how she was walking at night and a person alighted from a motorcycle and grabbed her. He took her to a house and defiled her. That she raised alarm and PW2 came to her rescue. That the complainant was taken to PW3’s house where she slept. That the house of PW2 was about 150m from that of the appellant. She took both the appellant and complainant for medical examination at Kombewa. She knew the complainant as she had another case in another Court for defilement.
16. In cross-examination, PW6 admitted that there were neighbours to the appellant but only took PW2 as a witness. That the neighbours should have arrived at the appellant’s house before PW2 as there was a burial nearby.
17. PW7 was Kevin Odhiambo Owino, a Clinical Officer at Kombewa County Hospital. He testified on behalf of his colleague who had examined the complainant. He stated that the complainant was examined on 1/10/2023. She was defiled by a person known to her. On examination, she was physically challenged. No lacerations, no bruises on labia majora, hymen absent not freshly torn. There was a thick whitish discharge. There were signs of penetration.
18. It was his further evidence that the appellant was examined. He had a history of having been assaulted by a person known to him after having allegedly been found defiling a minor. He had a bruise on the hand and left knee.
19. The government analysis Godwin Kamala Walma testified as PW8. On 3/10/2023, he received H.V.S for the complainant and buccal swab of the complainant and appellant. The green stains from H.V.S (high vagina swab) tested negative to presence of seminal fluids. The DNA profile of both the complainant and the appellant did not match.
20. When placed on his defence, the appellant denied committing the offence. He told the court that on the material night, he was in his house when he had a knocking on the door. On opening the door, he found it was PW2 standing with a young girl. PW2 told him that he had always warned him and he will see that day. PW2 assaulted him then called the village elder and assisted Chief. He was arrested in the morning.
21. In cross examination, he reiterated that he had raised these issues when PW2 testified on 21/5/2024. That the complainant had said that she did not know who the perpetrator was. That he and PW2 had a grudge over land
22. It is on this evidence that the trial court convicted the appellant and sentenced him to 20 years.
23. Section 8 (1) as read with section 8 (3) of the sexual Offences Act establishes the offence of defilement as follows: -
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
24. The specific elements of the offence of defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: -
a) Age of the complainant;
b) Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and
c) Positive identification of the perpetrator.
25. The age of the victim of defilement is an essential element because defilement is a sexual offence committed against a child who under the Children’s Act is a person below the age of 18 years. In addition, the age of the child is an aggravating factor for purposes of determining the sentence to be imposed as per the penalty clauses in the Sexual Offences Act. The younger the child, the more severe the sentence.
26. In Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) as quoted in the case of JWM v Republic [2026] KEHC 674 (KLR) the court held:
‘‘... the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof….”
27. In the present case, the complainant produced her birth certificate which showed that she was born on 8/7/2008. That means that she was 15 years old as at the time of the alleged offence. Accordingly, age was proved to the required standard.
28. The next issue to consider is penetration. I propose to combine this with the issue of whether the appellant was the perpetrator.
29. Section 2 of the Sexual Offences Act defines penetration as “the partial of complete insertion of the genital organ of a person into the genital organ of another person.”
30. Penetration can be proved by the evidence of the victim and may be corroborated by medical evidence. The complainant’s testimony was that, on the material day, she disagreed with her mother and decided to seek refuge elsewhere. It was at night. On the way, a motorcycle rider with a pillion passenger caught up with her and the pillion passenger alighted and got hold of her promising to help her. That person took her to his house and defiled her. She raised an alarm and people came. That the appellant opened the door and people started assaulting him. She was then rescued by the appellant’s mother (PW3) in whose house she spent the night.
31. This is what the trial court recorded; “Reaching his house, he told me to lie down. There was nobody else there. He then got on top of me. I screamed, he did ‘tabia mbaya’ to me. When I screamed, people came. He opened the door and people started beating him.”
32. The vaginal examination was done the following morning. There were no lacerations, no bruises on the labia majora. The hymen was absent and not freshly torn. There was thick whitish discharge. The Clinician who examined the complainant concluded that there were signs of penetration. There was no explanation how and why that conclusion was arrived at. The trial court correctly observed the contradiction between the medical evidence of PW7 and the government analyst’s (PW8) evidence on the lab results. That contradiction was not resolved.
33. The first observation is that the complainant only said that the appellant did “tabia mbaya”. There was no explanation what “tabia mbaya” was. It was necessary for the Court to establish what she meant by “tabia mbaya”. No mention of removal of her clothing and those of the appellant as it is expected in such defilement cases. A detailed explanation of what happened is necessary. ‘Tabia mbaya’ may be touching some sensitive parts of her body.
34. One of the issues that the trial court failed to consider is, the contradictions in the prosecution evidence. There was evidence that there was a funeral nearby and there were people there. PW2’s house was said to be between 150m to 300m away from the house of the appellant. If PW1 screamed as is alleged, why is it that no one of those in the funeral nearby came to the complainant’s aid but for PW2 who was far away? According to PW2, it is a dog that led him from his house all the way to the house where the alleged offence occurred.
35. Evidence is usually tested on cross-examination. The truth always or somehow comes out. When cross-examined, the complainant was categorical as to what happened that night: -
“On 30/09/2023, we knocked your door with your neighbour. I don’t know if he was your brother. I did not know his name. After we knocked and entered, the neighbour beat you. I can’t know the person who alighted from the motorcycle and got hold of me as it was night.”
36. That testimony is in all fours with the appellant’s defence. He stated that on the material night, he heard a knock on the door. When he opened, he found his step-brother, PW2, standing with a girl. That PW2 told him he had been warning him and he would see that day. He then assaulted him. His testimony was that there existed a grudge between him and PW2 on land.
37. The trial Court did not indicate why it did not believe the appellant yet his defence was in tandem with the testimony of the complainant in cross-examination. It is clear that the complainant and PW2 came with the complainant to the house of the appellant whereat, PW2 assaulted the appellant.
38. Further, it should be noted that there was no evidence from any independent witness, the mourners, who “came” to the scene. The evidence was that of a step-brother (with whom a grudge of land was raised and not displaced), a mother and another brother who allegedly called PW3 after being sent by PW2.
39. It is not clear why the trial court believed the testimony of PW2 and PW3. It was PW2’s evidence that when the door to the appellant’s house was opened, he found the complainant lying on the ground half naked with her pants in her hand. That people came after he raised alarm and make calls to the Village Elder and Assistant Chief after calling for PW3. PW3 also stated that after having been summoned by PW2 through one Mzee Modi, she came to the appellant’s house and found the complainant lying facing up with her blouse raised up and holding her pant on her hand. The question one would ask, why would the complainant be left in that state, with the neighbour mingling around, until PW3 came to find her in that state? That testimony in the view of this case is suspect.
40. From the testimony of the complainant, she stated that she could not identify the person who alighted from the motorcycle and held her. When asked about the identity of that person, she said she did not know him. If the person who alighted from the motorcycle is the one who led her all the way to the house where the alleged defilement took place, she would have stated bluntly that it was the appellant. That is so because, the alleged events would have formed an unbroken chain of events, alighting from the motorcycle, holding and leading her to the appellant’s house and committing the alleged defilement.
41. The view the Court takes is that, there were multiple doubts that had been raised in this case which the trial Court should have resolved in favour of the appellant. The prosecution is supposed to prove all the three elements in a defilement case beyond any reasonable doubt. That was not the case in this case.
42. Accordingly, I find that the conviction of the appellant was unsafe. I quash the conviction and set aside the sentence. The appellant is to be forthwith set at liberty unless otherwise lawfully held.
It is so decreed.
2. It was alleged that on 30/9/2023 at around 2300hrs at Kajulu Kokeo Village in Seme Sub County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.A. a child of 15 years. There was also an alternative charge of committing an indecent act with the same child.
3. The appellant denied the charge and the trial ensued. The prosecution called 8 witnesses and the appellant gave a sworn statement. By a judgment made on 23/5/2025, the appellant was found guilty and sentenced to 20 years’ imprisonment.
4. Aggrieved by the said conviction and sentence, the appellant appealed to this Court citing 3 grounds. These were that the trial court erred in failing to establish that the prosecution had not proved its case to the required standard; the trial Court erred in relying on contradictory evidence and that the prosecution evidence was not corroborative.
5. The appeal was disposed of by way of written submissions which the Court has considered.
6. This being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to arrive at its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.)
7. The complainant testified as PW1. It was her evidence that she was 14 years old and schooled at Kajulu Junior Secondary School in Grade 7. That on the material day, she had returned home at night when her mother questioned her where she had come from. She ran away towards Yago where a motorcycle stopped and the pillion passenger alighted. The motorcycle sped away and the person who alighted got hold of her and pulled her to his house.
8. On reaching that person’s house, he lit a candle and had sexual intercourse with her. She screamed and people came to her rescue. They started assaulting the assailant while she was rescued and taken to the house of the assailant’s mother where she spent the night. The following morning, she was brought back to the house where she had been defiled and found police officers there. She and her assailant were taken to Kombewa Police Station then Kombewa Centre for medical examination. She identified the appellant in Court as the person who had defiled her.
9. In cross-examination, she stated that she did not recognize the person who alighted from the motorcycle and got hold of her as it was dark. She also admitted that she and the neighbour knocked the appellant’s door and on entering, the neighbour assaulted the appellant. That she did not know that the said neighbour was the appellant’s brother.
10. On the material date at about 11:40pm, George Onyango Oyugi (PW2) was in his house when he heard dogs barking. He went outside to check what was happening. One dog led him to some mabati house which was at some distance. He heard a girl crying from inside. He called the appellant to open the door as he knew his brother had permitted the appellant to occupy that house. That on entering, he found a girl lying on the floor half naked. That she could not stand up as she seemed paralyzed on one side. That she told him that she was going to visit her sister when the appellant alighted from a motorcycle and grabbed her. That he threatened to kill her if she screamed. That the appellant then defiled her. That he called for the appellant’s mother who came and took the complainant to her house. He then called the village elder and the Chief. Him and the appellant were step brothers.
11. In cross-examination, he denied having any grudge with the appellant. That the neighbours came after he raised alarm. He denied ever coming to the appellant’s house with the complainant. He admitted that there was a funeral in the neighbourhood.
12. Jane Achieng Yugi (PW3) was called that night by PW2 to go to the house of the appellant. When she entered the house, she found the appellant sitting on a box and the complainant lying facing up. Her blouse was raised up and she was holding her pant in the hand. She took the complainant to her house where the latter explained to her what had happened.
13. On cross-examination, she stated that when she came to the appellant’s house, she found that there were neighbours present.
14. On 1/10/2023 at about 9:30am, No. 99206 PC Paul Idagwa (PW4) was informed about a defilement incident. He accompanied PW5 to the scene. They found the appellant locked in a house and arrested him. No. 201551 PC William Musyoka (PW5) was informed of the defilement incident and accompanied PW4 to the scene. On reaching there, they found a crowd of people surrounding the house in which a suspect was locked inside. They went inside, found the appellant and arrested him. He did not interrogate the complainant. On cross-examination, he stated that it is the members of the public and the appellant’s family members who told him what had happened.
15. No 256180 PC Sharon Wafula investigated the case. She was in the office on 1/10/2023 when the chief and two police officers escorted the appellant and the complainant to the station. She interviewed the complainant who narrated to her how she was walking at night and a person alighted from a motorcycle and grabbed her. He took her to a house and defiled her. That she raised alarm and PW2 came to her rescue. That the complainant was taken to PW3’s house where she slept. That the house of PW2 was about 150m from that of the appellant. She took both the appellant and complainant for medical examination at Kombewa. She knew the complainant as she had another case in another Court for defilement.
16. In cross-examination, PW6 admitted that there were neighbours to the appellant but only took PW2 as a witness. That the neighbours should have arrived at the appellant’s house before PW2 as there was a burial nearby.
17. PW7 was Kevin Odhiambo Owino, a Clinical Officer at Kombewa County Hospital. He testified on behalf of his colleague who had examined the complainant. He stated that the complainant was examined on 1/10/2023. She was defiled by a person known to her. On examination, she was physically challenged. No lacerations, no bruises on labia majora, hymen absent not freshly torn. There was a thick whitish discharge. There were signs of penetration.
18. It was his further evidence that the appellant was examined. He had a history of having been assaulted by a person known to him after having allegedly been found defiling a minor. He had a bruise on the hand and left knee.
19. The government analysis Godwin Kamala Walma testified as PW8. On 3/10/2023, he received H.V.S for the complainant and buccal swab of the complainant and appellant. The green stains from H.V.S (high vagina swab) tested negative to presence of seminal fluids. The DNA profile of both the complainant and the appellant did not match.
20. When placed on his defence, the appellant denied committing the offence. He told the court that on the material night, he was in his house when he had a knocking on the door. On opening the door, he found it was PW2 standing with a young girl. PW2 told him that he had always warned him and he will see that day. PW2 assaulted him then called the village elder and assisted Chief. He was arrested in the morning.
21. In cross examination, he reiterated that he had raised these issues when PW2 testified on 21/5/2024. That the complainant had said that she did not know who the perpetrator was. That he and PW2 had a grudge over land
22. It is on this evidence that the trial court convicted the appellant and sentenced him to 20 years.
23. Section 8 (1) as read with section 8 (3) of the sexual Offences Act establishes the offence of defilement as follows: -
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
24. The specific elements of the offence of defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: -
a) Age of the complainant;
b) Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and
c) Positive identification of the perpetrator.
25. The age of the victim of defilement is an essential element because defilement is a sexual offence committed against a child who under the Children’s Act is a person below the age of 18 years. In addition, the age of the child is an aggravating factor for purposes of determining the sentence to be imposed as per the penalty clauses in the Sexual Offences Act. The younger the child, the more severe the sentence.
26. In Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) as quoted in the case of JWM v Republic [2026] KEHC 674 (KLR) the court held:
‘‘... the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof….”
27. In the present case, the complainant produced her birth certificate which showed that she was born on 8/7/2008. That means that she was 15 years old as at the time of the alleged offence. Accordingly, age was proved to the required standard.
28. The next issue to consider is penetration. I propose to combine this with the issue of whether the appellant was the perpetrator.
29. Section 2 of the Sexual Offences Act defines penetration as “the partial of complete insertion of the genital organ of a person into the genital organ of another person.”
30. Penetration can be proved by the evidence of the victim and may be corroborated by medical evidence. The complainant’s testimony was that, on the material day, she disagreed with her mother and decided to seek refuge elsewhere. It was at night. On the way, a motorcycle rider with a pillion passenger caught up with her and the pillion passenger alighted and got hold of her promising to help her. That person took her to his house and defiled her. She raised an alarm and people came. That the appellant opened the door and people started assaulting him. She was then rescued by the appellant’s mother (PW3) in whose house she spent the night.
31. This is what the trial court recorded; “Reaching his house, he told me to lie down. There was nobody else there. He then got on top of me. I screamed, he did ‘tabia mbaya’ to me. When I screamed, people came. He opened the door and people started beating him.”
32. The vaginal examination was done the following morning. There were no lacerations, no bruises on the labia majora. The hymen was absent and not freshly torn. There was thick whitish discharge. The Clinician who examined the complainant concluded that there were signs of penetration. There was no explanation how and why that conclusion was arrived at. The trial court correctly observed the contradiction between the medical evidence of PW7 and the government analyst’s (PW8) evidence on the lab results. That contradiction was not resolved.
33. The first observation is that the complainant only said that the appellant did “tabia mbaya”. There was no explanation what “tabia mbaya” was. It was necessary for the Court to establish what she meant by “tabia mbaya”. No mention of removal of her clothing and those of the appellant as it is expected in such defilement cases. A detailed explanation of what happened is necessary. ‘Tabia mbaya’ may be touching some sensitive parts of her body.
34. One of the issues that the trial court failed to consider is, the contradictions in the prosecution evidence. There was evidence that there was a funeral nearby and there were people there. PW2’s house was said to be between 150m to 300m away from the house of the appellant. If PW1 screamed as is alleged, why is it that no one of those in the funeral nearby came to the complainant’s aid but for PW2 who was far away? According to PW2, it is a dog that led him from his house all the way to the house where the alleged offence occurred.
35. Evidence is usually tested on cross-examination. The truth always or somehow comes out. When cross-examined, the complainant was categorical as to what happened that night: -
“On 30/09/2023, we knocked your door with your neighbour. I don’t know if he was your brother. I did not know his name. After we knocked and entered, the neighbour beat you. I can’t know the person who alighted from the motorcycle and got hold of me as it was night.”
36. That testimony is in all fours with the appellant’s defence. He stated that on the material night, he heard a knock on the door. When he opened, he found his step-brother, PW2, standing with a girl. That PW2 told him he had been warning him and he would see that day. He then assaulted him. His testimony was that there existed a grudge between him and PW2 on land.
37. The trial Court did not indicate why it did not believe the appellant yet his defence was in tandem with the testimony of the complainant in cross-examination. It is clear that the complainant and PW2 came with the complainant to the house of the appellant whereat, PW2 assaulted the appellant.
38. Further, it should be noted that there was no evidence from any independent witness, the mourners, who “came” to the scene. The evidence was that of a step-brother (with whom a grudge of land was raised and not displaced), a mother and another brother who allegedly called PW3 after being sent by PW2.
39. It is not clear why the trial court believed the testimony of PW2 and PW3. It was PW2’s evidence that when the door to the appellant’s house was opened, he found the complainant lying on the ground half naked with her pants in her hand. That people came after he raised alarm and make calls to the Village Elder and Assistant Chief after calling for PW3. PW3 also stated that after having been summoned by PW2 through one Mzee Modi, she came to the appellant’s house and found the complainant lying facing up with her blouse raised up and holding her pant on her hand. The question one would ask, why would the complainant be left in that state, with the neighbour mingling around, until PW3 came to find her in that state? That testimony in the view of this case is suspect.
40. From the testimony of the complainant, she stated that she could not identify the person who alighted from the motorcycle and held her. When asked about the identity of that person, she said she did not know him. If the person who alighted from the motorcycle is the one who led her all the way to the house where the alleged defilement took place, she would have stated bluntly that it was the appellant. That is so because, the alleged events would have formed an unbroken chain of events, alighting from the motorcycle, holding and leading her to the appellant’s house and committing the alleged defilement.
41. The view the Court takes is that, there were multiple doubts that had been raised in this case which the trial Court should have resolved in favour of the appellant. The prosecution is supposed to prove all the three elements in a defilement case beyond any reasonable doubt. That was not the case in this case.
42. Accordingly, I find that the conviction of the appellant was unsafe. I quash the conviction and set aside the sentence. The appellant is to be forthwith set at liberty unless otherwise lawfully held.
It is so decreed.