REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E127 OF 2024
DENNIS WEKESA………..……………………………………..APPELLANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
(Being an appeal on conviction and sentence in Chief Magistrate's Court at Bungoma in Criminal Case No. E119 of 2022 by Hon. H. Getenga (SRM) delivered on 28th August 2024).
JUDGEMENT
A. BACKGROUND
1. The Appellant, DENNIS WEKESA, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Secual Offences Act No. 3 of 2006. The particulars were that on 15th October 2022, at [Particulars withheld] village in Khasoko Location, Bumula Sub-County within Bungoma County intentionally and unlawfully caused his penis to penetrate the vagina of, L.W. a girl aged 12 years.
2. He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
B. THE DUTY OF A FIRST APPELLATE COURT
3. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:-
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
4. The same position was restated in the case of Okeno Vs R (1972) EA 32 thus: -
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must Itself weigh conflicting evidence and draw its own conclusion”.
C. EVIDENCE
5. The Appellant pleaded not guilty to all the charges and the case then went to full trial in which the Respondent called 4 witnesses.
6. After a brief viore dire examination, Complainant testified as PW1. It was her testimony that on 15th October 2022, while at home in the company of her siblings, the Appellant herein who is her an uncle and neighbor, called her with the intention of sending her on an errand. That when she got inside his house, she found him alone and that is when he instructed her to undress. It was at that point that she realized that he had no intention of sending her anywhere. That she had worn a skirt which she removed and the Appellant then laid her on his bed and proceeded to lie over her and do “tabia mbaya” to her using his penis. She described to the Court that the Appellant inserted his penis into her vagina, while toughing her breasts with his hands and he kissed her over her back. She told the Court that the Appellant injured her private parts with his penis.
7. On cross-examination, she had told the Court that she used to reside with her mother and on the material day she had been with her brother, Titus, who did not witness the act, as had she left him at home to answer to the Appellant’s summon.
8. PW2, Godfrey Wesonga, testified that the PW1 was his niece; she was a daughter of his sister while the Appellant was his cousin. That on 15th October 2022, while he was at the market, he was summoned by his brother Victor who told him that the Appellant herein had kidnapped PW1 and she had been found in his house. On rushing back home, he had found that the Appellant had been arrested by members of the public and PW1 was in his house. He then summoned the area village elders and the chairman of their clan. Further that he then rushed PW1 to the hospital, whereat the doctors confirmed that she had been defiled.
9. On cross-examination, he told the Court that the Appellant had been caught in the act and he was apprehended by members of the public
10. PW3, Edwin Luballa, a clinical officer attached to Kabula Health Centre had testified that PW1 had been presented to the health centre on 17th October 2022 with a history of defilement by a person known to her. On examination, he observed that the Complainant’s genitalia had whitish discharge, tenderness on her private parts with redness and there was a bruise on her private parts/vagina at 6 o’clock. On laboratory examination, the urinalysis indicated presence of puss cells with red blood cells. It was his prognosis that the Appellant herein was defiled. This witness had produced the Complainant’s Patient record book, P.R.C form and P3 form collectively as PEXH 1 and the age assessment form and Outpatient card collectively as PEXH 4.
11. PW4, P.C (W) 11621 Cleorida Chepngtich, a police officer had told the Court that on 15th October 2022, the Complainant had been taken to the station by PW2 to lodge a defilement report. Subsequently, she referred them to Kabula Health Center where PW1 was examined and treated and sent back to the station. The medical report had indicated that the Complainant had been defiled. On interrogation PW1 had told her that she was defiled by the Appellant and that she had screamed during the act out of pain and that was when members of the public went to her rescue and PW2 was summoned. She told the Court that the Appellant had been apprehended by members of the public. That PW1 had disclosed that the Appellant lured her into his house with a promise of buying her a book and that was when he pounced on her and defiled her.
12. On cross-examination, PW4 told the Court the Appellant was arrested at his house and that she visited the scene and established that the Complainant had been found naked at the scene. She told the Court that the Appellant was apprehended by members of the public.
13. At the close of the Respondent’s case, the Appellant was found to have a case to answer and was placed on his defence under Section 210 of the Criminal Procedure Code, whereupon the Appellant tendered his unsworn evidence denying committing the alleged offence and that maintained that there were pre-existing land boundary dispute between him and PW2 and that the charges against him were a frame up.
14. By the Judgment delivered on 8th August 2024, the trial court convicted the Appellant on the main charge and on 28th August 2024, he was to serve Twenty (20) years imprisonment.
D. APPEAL
15. Dissatisfied with the said decision of the trial Court, the Appellant instituted this appeal, against the conviction and sentence on 8 grounds reproduced verbatim as follows:
a. That I didn’t plead guilty to the charges.
b. That the learned trial magistrate erred in law and facts by convicting the Appellant on uncorroborated evidence.
c. That the learned trial magistrate erred in law and facts by failing to observe forensic investigations as stipulated.
d. That the Prosecution failed to prove its case beyond reasonable doubt.
e. That the learned trial magistrate erred in law and facts by rejecting my alibi defense that if considered was enough to overturn the decision at the lower Court
f. That I wish to adduce more grounds during the hearing of this appeal.
16. The Appellant prayed that this Court allows his appeal in its entirety, quash his conviction and the sentence be set aside, and he be set at liberty.
17. The appeal was canvassed through written submissions. Only the Respondent complied with the Court directive. Despite extension of time on 2nd July 2025, by this Court the Appellant did not file his written submissions.
E. ISSUE FOR DETERMINATION
18. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the rival submissions thereto, and the applicable law and the issues for determination emanating therein are as follows:
a. Whether the Respondent proved its case to the desired threshold;
b. Whether the sentence meted upon the Appellant was appropriate.
D. ANALYSIS AND DETERMINATION
a. Whether the Respondent proved its case to the desired threshold
19. The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides:
8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement
8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
20. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under Section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (see George Opondo Olunga vs. Republic [2016] eKLR.)
Proof of age of the Complainant.
21. The definition section 2 of the Children Act 2022 defines a child as a person under the age of eighteen years. Is the victim herein a child?
22. In the case of Hilary Nyongesa Vs Republic Eldoret Criminal Appeal, No. 123 of 2009 the Court stated that:
“Age is such a critical aspect in Sexual Offences that it has to be conclusively proved…. And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”
23. In Musyoki Mwakavi –VS- Republic Machakos High Court Criminal Appeal No. 172 of 2012, the court was of the view that:-
“…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense…”.
24. It was the evidence of PW3 that the age assessment report placed the age of PW1 at 12 years as at 14th March 2023 when the assessment was done. The Appellant was stated to have defiled the Complainant on 15th October 2022 and based on the report she was 12 years at the time of the offence. The Appellant did not avail any evidence to rebut this. It is therefore sufficient to say that the age of the victim was proved beyond any reasonable doubt. I uphold the trial Court’s holding on age.
Proof of penetration
25. Penetration is proved through the evidence of the Complainant as corroborated by medical evidence. The testimony of the victim coupled with a medical examination suffices to determine whether penetration occurred.
26. Section 2 of the Sexual Offences Act provides that: -
“Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
27. In George Owiti Raya Vs Republic [2013] eKLR it was held that: -
“There was superficial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul-smelling discharge seen on the genitalia... it remains therefore that there can be penetration without going past the hymen membrane.”
28. In yet another the case of Erick Onyango Ondeng V. Republic (2014) eKLR the Court of Appeal held as follows on the aspect of penetration:
"In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."
29. Similarly, the Supreme Court of Uganda rendered itself on this issue in the case of Bassita vs. Uganda S.C. Criminal Appeal Number 35 of 1995, that: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt”.
30. The testimony of PW1 as already analyzed hereinabove clearly demonstrates how the appellant used deceit to lure PW1 into his house on 15th October 2022, whereat he had caused his penis to penetrate the victim’s vagina. PW1 was consistent and gave a clear narration of the ordeal that the Appellant put her through. This evidence was corroborated by the medical evidence of PW3, a Clinical Officer. Whereas the appellant had denied the charge, the evidence of PW1 and PW3 proves that he had penetrated the victim’s vagina with his penis. He was also caught in the act wherefore penetration was proved to the required standard.
Whether the Appellant was positivity identified by the Complainant as her assailant.
31. PW1 told the Court that the Appellant herein was well known to her as he was a neighbor and uncle. Her identification of the Appellant was thus through recognition. I find that the threshold as set in the case of Republic Vs. Turnbull & Others (1976) 3 All ERhad been met.
32. It is trite law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59).
33. PW2 testified that the Appellant was caught in the act by members of the public.
34. The Appellant’s defence that there existed a longstanding land boundary dispute between him and PW2 did not cast any doubt on the Respondent’s case.
35. The evidence by the Respondent leaves no doubt that the Appellant is the one who caused penetration of the PW1. Accordingly, I find that the elements of defilement namely, penetration and minority age of the victim were proved beyond doubt. The conviction was therefore proper.
b. Whether the sentence meted upon the Appellant was appropriate
36. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist”.
37. I note that Section 8 (2) of the Sexual Offences Act to convict provides as follows:
“8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
38. In the result, I will not interfere with the sentence as meted save to say that the Appellant is lucky to escape the mandatory sentence that would have been applicable if the Respondent if it would have properly invoked the jurisdiction of this Court.
E. CONCLUSION
39. Consequently, the appeal is devoid of any merit. It is dismissed in its entirety.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 18th day of December 2025.
M.S.Shariff
Judge
In the presence of:
APPELLANT
MS KIBET FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E127 OF 2024
DENNIS WEKESA………..……………………………………..APPELLANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
(Being an appeal on conviction and sentence in Chief Magistrate's Court at Bungoma in Criminal Case No. E119 of 2022 by Hon. H. Getenga (SRM) delivered on 28th August 2024).
JUDGEMENT
A. BACKGROUND
1. The Appellant, DENNIS WEKESA, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Secual Offences Act No. 3 of 2006. The particulars were that on 15th October 2022, at [Particulars withheld] village in Khasoko Location, Bumula Sub-County within Bungoma County intentionally and unlawfully caused his penis to penetrate the vagina of, L.W. a girl aged 12 years.
2. He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
B. THE DUTY OF A FIRST APPELLATE COURT
3. The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows:-
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.”
4. The same position was restated in the case of Okeno Vs R (1972) EA 32 thus: -
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must Itself weigh conflicting evidence and draw its own conclusion”.
C. EVIDENCE
5. The Appellant pleaded not guilty to all the charges and the case then went to full trial in which the Respondent called 4 witnesses.
6. After a brief viore dire examination, Complainant testified as PW1. It was her testimony that on 15th October 2022, while at home in the company of her siblings, the Appellant herein who is her an uncle and neighbor, called her with the intention of sending her on an errand. That when she got inside his house, she found him alone and that is when he instructed her to undress. It was at that point that she realized that he had no intention of sending her anywhere. That she had worn a skirt which she removed and the Appellant then laid her on his bed and proceeded to lie over her and do “tabia mbaya” to her using his penis. She described to the Court that the Appellant inserted his penis into her vagina, while toughing her breasts with his hands and he kissed her over her back. She told the Court that the Appellant injured her private parts with his penis.
7. On cross-examination, she had told the Court that she used to reside with her mother and on the material day she had been with her brother, Titus, who did not witness the act, as had she left him at home to answer to the Appellant’s summon.
8. PW2, Godfrey Wesonga, testified that the PW1 was his niece; she was a daughter of his sister while the Appellant was his cousin. That on 15th October 2022, while he was at the market, he was summoned by his brother Victor who told him that the Appellant herein had kidnapped PW1 and she had been found in his house. On rushing back home, he had found that the Appellant had been arrested by members of the public and PW1 was in his house. He then summoned the area village elders and the chairman of their clan. Further that he then rushed PW1 to the hospital, whereat the doctors confirmed that she had been defiled.
9. On cross-examination, he told the Court that the Appellant had been caught in the act and he was apprehended by members of the public
10. PW3, Edwin Luballa, a clinical officer attached to Kabula Health Centre had testified that PW1 had been presented to the health centre on 17th October 2022 with a history of defilement by a person known to her. On examination, he observed that the Complainant’s genitalia had whitish discharge, tenderness on her private parts with redness and there was a bruise on her private parts/vagina at 6 o’clock. On laboratory examination, the urinalysis indicated presence of puss cells with red blood cells. It was his prognosis that the Appellant herein was defiled. This witness had produced the Complainant’s Patient record book, P.R.C form and P3 form collectively as PEXH 1 and the age assessment form and Outpatient card collectively as PEXH 4.
11. PW4, P.C (W) 11621 Cleorida Chepngtich, a police officer had told the Court that on 15th October 2022, the Complainant had been taken to the station by PW2 to lodge a defilement report. Subsequently, she referred them to Kabula Health Center where PW1 was examined and treated and sent back to the station. The medical report had indicated that the Complainant had been defiled. On interrogation PW1 had told her that she was defiled by the Appellant and that she had screamed during the act out of pain and that was when members of the public went to her rescue and PW2 was summoned. She told the Court that the Appellant had been apprehended by members of the public. That PW1 had disclosed that the Appellant lured her into his house with a promise of buying her a book and that was when he pounced on her and defiled her.
12. On cross-examination, PW4 told the Court the Appellant was arrested at his house and that she visited the scene and established that the Complainant had been found naked at the scene. She told the Court that the Appellant was apprehended by members of the public.
13. At the close of the Respondent’s case, the Appellant was found to have a case to answer and was placed on his defence under Section 210 of the Criminal Procedure Code, whereupon the Appellant tendered his unsworn evidence denying committing the alleged offence and that maintained that there were pre-existing land boundary dispute between him and PW2 and that the charges against him were a frame up.
14. By the Judgment delivered on 8th August 2024, the trial court convicted the Appellant on the main charge and on 28th August 2024, he was to serve Twenty (20) years imprisonment.
D. APPEAL
15. Dissatisfied with the said decision of the trial Court, the Appellant instituted this appeal, against the conviction and sentence on 8 grounds reproduced verbatim as follows:
a. That I didn’t plead guilty to the charges.
b. That the learned trial magistrate erred in law and facts by convicting the Appellant on uncorroborated evidence.
c. That the learned trial magistrate erred in law and facts by failing to observe forensic investigations as stipulated.
d. That the Prosecution failed to prove its case beyond reasonable doubt.
e. That the learned trial magistrate erred in law and facts by rejecting my alibi defense that if considered was enough to overturn the decision at the lower Court
f. That I wish to adduce more grounds during the hearing of this appeal.
16. The Appellant prayed that this Court allows his appeal in its entirety, quash his conviction and the sentence be set aside, and he be set at liberty.
17. The appeal was canvassed through written submissions. Only the Respondent complied with the Court directive. Despite extension of time on 2nd July 2025, by this Court the Appellant did not file his written submissions.
E. ISSUE FOR DETERMINATION
18. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the rival submissions thereto, and the applicable law and the issues for determination emanating therein are as follows:
a. Whether the Respondent proved its case to the desired threshold;
b. Whether the sentence meted upon the Appellant was appropriate.
D. ANALYSIS AND DETERMINATION
a. Whether the Respondent proved its case to the desired threshold
19. The Appellant was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act which provides:
8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement
8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
20. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under Section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (see George Opondo Olunga vs. Republic [2016] eKLR.)
Proof of age of the Complainant.
21. The definition section 2 of the Children Act 2022 defines a child as a person under the age of eighteen years. Is the victim herein a child?
22. In the case of Hilary Nyongesa Vs Republic Eldoret Criminal Appeal, No. 123 of 2009 the Court stated that:
“Age is such a critical aspect in Sexual Offences that it has to be conclusively proved…. And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.”
23. In Musyoki Mwakavi –VS- Republic Machakos High Court Criminal Appeal No. 172 of 2012, the court was of the view that:-
“…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense…”.
24. It was the evidence of PW3 that the age assessment report placed the age of PW1 at 12 years as at 14th March 2023 when the assessment was done. The Appellant was stated to have defiled the Complainant on 15th October 2022 and based on the report she was 12 years at the time of the offence. The Appellant did not avail any evidence to rebut this. It is therefore sufficient to say that the age of the victim was proved beyond any reasonable doubt. I uphold the trial Court’s holding on age.
Proof of penetration
25. Penetration is proved through the evidence of the Complainant as corroborated by medical evidence. The testimony of the victim coupled with a medical examination suffices to determine whether penetration occurred.
26. Section 2 of the Sexual Offences Act provides that: -
“Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
27. In George Owiti Raya Vs Republic [2013] eKLR it was held that: -
“There was superficial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul-smelling discharge seen on the genitalia... it remains therefore that there can be penetration without going past the hymen membrane.”
28. In yet another the case of Erick Onyango Ondeng V. Republic (2014) eKLR the Court of Appeal held as follows on the aspect of penetration:
"In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."
29. Similarly, the Supreme Court of Uganda rendered itself on this issue in the case of Bassita vs. Uganda S.C. Criminal Appeal Number 35 of 1995, that: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt”.
30. The testimony of PW1 as already analyzed hereinabove clearly demonstrates how the appellant used deceit to lure PW1 into his house on 15th October 2022, whereat he had caused his penis to penetrate the victim’s vagina. PW1 was consistent and gave a clear narration of the ordeal that the Appellant put her through. This evidence was corroborated by the medical evidence of PW3, a Clinical Officer. Whereas the appellant had denied the charge, the evidence of PW1 and PW3 proves that he had penetrated the victim’s vagina with his penis. He was also caught in the act wherefore penetration was proved to the required standard.
Whether the Appellant was positivity identified by the Complainant as her assailant.
31. PW1 told the Court that the Appellant herein was well known to her as he was a neighbor and uncle. Her identification of the Appellant was thus through recognition. I find that the threshold as set in the case of Republic Vs. Turnbull & Others (1976) 3 All ERhad been met.
32. It is trite law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59).
33. PW2 testified that the Appellant was caught in the act by members of the public.
34. The Appellant’s defence that there existed a longstanding land boundary dispute between him and PW2 did not cast any doubt on the Respondent’s case.
35. The evidence by the Respondent leaves no doubt that the Appellant is the one who caused penetration of the PW1. Accordingly, I find that the elements of defilement namely, penetration and minority age of the victim were proved beyond doubt. The conviction was therefore proper.
b. Whether the sentence meted upon the Appellant was appropriate
36. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist”.
37. I note that Section 8 (2) of the Sexual Offences Act to convict provides as follows:
“8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
38. In the result, I will not interfere with the sentence as meted save to say that the Appellant is lucky to escape the mandatory sentence that would have been applicable if the Respondent if it would have properly invoked the jurisdiction of this Court.
E. CONCLUSION
39. Consequently, the appeal is devoid of any merit. It is dismissed in its entirety.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 18th day of December 2025.
M.S.Shariff
Judge
In the presence of:
APPELLANT
MS KIBET FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT