The Appellants’ Case;
1. The Appellant opened his submissions by seeking leave to amend his
Petition of Appeal pursuant to Section 350(2)(v) of the Criminal Procure Code to wit;
1) That the trial magistrate erred in law and in fact by failing to consider that it was just a frame up by the mother of the complainant.
2) That the trial magistrate erred in law and in fact by failing to consider that the elements of the offence charged was not proved beyond any reasonable doubt.
3) That the trial magistrate erred in law and in fact by convicting the Appellant without considering that the crucial and essential witnesses were not called to testify.
4) That the trial magistrate erred in law and in fact by rejecting his plausible defence without a cogent reason to do so.
He amended his grounds of appeal as per Section 350(2)(V) of the CPC and instead, relies on the following grounds of appeal.
1) THAT, the trial magistrate erred in law and fact by failing to consider that I was just frame-up by the mother of the complainant.
2) THAT, the trial magistrate erred in law and fact by failing to consider that the elements of the offence charged was not proved beyond any reasonable doubts.
3) THAT, the trial magistrate erred in law and facts by convicted I the
a. appellant without considering that the crucial and essential witnesses were not called upon to testify.
4) THAT, the trial magistrate erred law and facts by rejecting my plausible defence without a cogent reason to do so.
5) THAT, other further grounds to be adduced at the hearing of this appeal.
2. The Appellant then proceeded to submit on the grounds of appeal. He
urged that the trial magistrate failed to consider that there was disagreement between the appellant and the mother of the complainant who told him that he refused to buy from her business. Further, that PW1 was not a credible witness and that her mother coached her to testify against him. He cited the decision in Eliud Waweru vs Republic (2019) eKLR, urging that the Sexual Offences Act was used to settle grudges. He urged that the evidence tendered was flimsy and scanty and that the court should disregard the prosecutions’ evidence.
3. The Appellant submitted that the elements of the offence were not
proved to the required standard, citing the case of Fappyton Mutuku Ngui vs republic (2010) eKLR and Francis Ndungu Tweni vs Republic (2017) eKLR in this regard.
He questioned the evidence of PW4 and urged that he did not explain his professionality. Further, that the Complainant was not examined on the same day and her evidence was not corroborated. He further submitted that there was no penetration proved as per section 8(2) of the Sexual offences Act and, that PW4 did not explain whether the hymen was old broken or freshly broken.
4. The Appellant urged that there were essential witnesses who were not
called to testify.
He argued that PW2 testified that she sent her small child to look for the complainant but they were not called to testify. Further, that the people who rent the houses were not called as witnesses yet they were essential. He cited the case of Bukenya vs Republic and urged that it was the burden of the prosecution to call the witnesses. He also cited the case of Woolmington vs DPP Ac 462 and maintained that the prosecution failed to prove their case to the required standard.
5. On sentence, he urged that minimum sentences are unconstitutional,
citing the case of Philip Mueke Maingi vs DPP and Attorney General – Pet No. E017 of 2021 at Machakos in this regard. He prayed that the court allow the appeal against conviction and sentence.
The Respondents’ Submissions;
6. Learned Counsel for the state submitted that the ground of the
Appellant that there was a disagreement could not stand as the issue of the grudge was only brought up during the defence hearing.
Further, he argued that when PW2 testified, the Appellant did not bring up the grudge or cross examine her on it and therefore, the same is an afterthought.
Additionally, that the minor cannot be said to have been untruthful as she did not say the purpose of the charger and, that this was not a fact that went to the heart of the case and should thus be dismissed.
7. Counsel submitted that the age of the victim was proved by P-Exhibit 1, with a birth certificate belonging to the minor. It showed that she was born on 6th June 2025 making her 14 years 2 months old at the time of the offence and this evidence was corroborated by her mother as well as the minor herself.
8. The Appellant was positively identified and was not a stranger to the minor, as they lived within the locality, and he was her friend.
9. On penetration, Counsel urged that when the minor was cross
examined, she explained that the appellant ‘put his thing for urinating into my thing for urinating’ and stated that he used a condom in the act.
She explained that this could explain the absence of spermatozoa. Further, that the cause of penetration was penile as stated by the minor. She maintained that all the elements of the offence were proved and urged the court to find the same.
10. On the issue of witnesses, Counsel urged that the prosecution called
four witnesses and cited Section 143 of the Evidence Act in this regard. She submitted that the witnesses who were called were enough since they proved the case beyond reasonable doubt.
11. On sentence, Counsel urged that the sentence was provided for by law
and therefore, there is no need to interfere with the same. She prayed the court dismiss the Appeal accordingly.
12. The accused was charged with defilement contrary to Section 8(3) of the sexual offences act no 3 of 2006. The particulars were that on the 1st day of August 2019 at Githambo village in Kahuro sub-county within Muranga County, you intentionally caused your penis to penetrate the vagina of PWG, a child aged 14years.
13. The accused was charged with the alternative charge of committing an
indecent act with a child contrary to Section 11(1) of The Sexual Offences Act No 3 of 2006. The particulars were that on the 1st day of August 2019 at Githambo village in Kahuro sub-county within Muranga County, you intentionally touched the vagina of PWG, a child aged 14years.
14. Being an appeal against both sentence and conviction arising from S.O.
Case NO. 10 OF 2020 at Muranga Law Court. Delivered on 28 Day of December 2022 by Hon. V. Ochanda (SRM) court at Muranga. Whereby I was sentenced to server 20 years imprisonment. For the offence of defilement c/Section 8(1) as read with Section 8 (3) of S.O.A.
Analysis and Determination;
The issue for determination is whether the appeal has merit.
15. In Kiilu & Another v Republic [2005]1 KLR 174, the Court of
Appeal stated thus:
“1. 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 to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
16. The burden of proof always lie with the prosecution to prove its case
against the accused person beyond reasonable doubt and that burden does not shift to the accused person. Section 8 of the Sexual Offences Act provides as follows:-
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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.
(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.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if -it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(a) the accused reasonably believed that the child was over the age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
(7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’ s Act.
(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.”
17. It is trite that for the accused to be convicted of the offence of
defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. See the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, where it was stated that:-
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
18. In Kaingu Elias Kasomo v Republic the Court of Appeal in Malindi
Criminal Appeal No. 504 of 2010 stated:
“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
19. The age of the child was proven through the birth certificate.
20. On the issue of penetration, the complainant testified that she was in court during cross examination because I had sex with the accused. She gave a graphic narrative of the ordeal. She explained that the appellant ‘’put his thing for urinating into my thing for urinating' as is seen on page 8 line 16 and 17 of the proceedings. She testified that she was feeling pain in the pelvic area.
21. The court has also looked at the Ministry of Health record which point out that the victim had a broken hymen. This is repeated in the P3 form this court is of the view that her testimony was credible.The broken hymen recovers fast. The lack of spermatozoa is adequately explained by the fact that appellant used a condom.
22. On the issue of identification,the appellant was not a stranger to the girl. She testified that they lived in the same block and that he used to greet her.
23. The victim testified that at the time the defilement took place she had
taken to him a charger. This shows that the two had an existing interaction and she could recognise him.
24. Further the victims brother seemed to know the appellant. He went to
peep through the house. He clearly knew where he was going, probably to her sister’s aid. The appellant told the victim that the mom will not beat her. This is a clear demonstrated that they were neighbours.
25. The ground that the trial magistrate erred in law and fact by failing to
consider that the elements of the offence charged was not proved beyond any reasonable doubts fails.
26. On the ground of the failure to call witnesses, this court is alive to the fact there is no legal requirement in law on the number of witnesses to prove a fact. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides:-
“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”
27. In Bukenya Vs R (UGC 1952), the court stated:
“(i) The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
(ii) That Court has right and the duty to call witnesses whose evidence appears essential to the just decision of the case.
(iii) Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.”
28. In Donald Majiwa Achilwa and 2 other v R (2009) eKLR; the
Court stated:-
“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”
29. In Keter v Republic [2007] 1 EA 135 the court held inter alia:
“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”
30. In the instant case the prosecution was at liberty to call the witnesses
they deemed necessary to establish and prove their case. The trial court was in my opinion not at liberty to determine which witnesses are sufficient to prove the prosecution case. The is no mandatory number of witness s who must testify.
31. The ground that the trial magistrate erred in law and facts by convicted
the appellant without considering that the crucial and essential witnesses were not called upon to testify fails.
Mitigation;
32. The court considered his mitigation and applied the appropriate weight to the same before sentencing the appellant.
Sentencing:
33. The former Court of Appeal for Eastern Africa stated in Wanjema v
Republic [1971] EA 494 that:
“An appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, too into account some immaterial factors, acted on the wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
The court is of the view that the sentencing was proportional and legal.
The appeal lacks merit and the same is hereby dismissed.
Dated, Signed and Delivered virtually at Eldoret this 13th Day of May, 2026.
1. The Appellant opened his submissions by seeking leave to amend his
Petition of Appeal pursuant to Section 350(2)(v) of the Criminal Procure Code to wit;
1) That the trial magistrate erred in law and in fact by failing to consider that it was just a frame up by the mother of the complainant.
2) That the trial magistrate erred in law and in fact by failing to consider that the elements of the offence charged was not proved beyond any reasonable doubt.
3) That the trial magistrate erred in law and in fact by convicting the Appellant without considering that the crucial and essential witnesses were not called to testify.
4) That the trial magistrate erred in law and in fact by rejecting his plausible defence without a cogent reason to do so.
He amended his grounds of appeal as per Section 350(2)(V) of the CPC and instead, relies on the following grounds of appeal.
1) THAT, the trial magistrate erred in law and fact by failing to consider that I was just frame-up by the mother of the complainant.
2) THAT, the trial magistrate erred in law and fact by failing to consider that the elements of the offence charged was not proved beyond any reasonable doubts.
3) THAT, the trial magistrate erred in law and facts by convicted I the
a. appellant without considering that the crucial and essential witnesses were not called upon to testify.
4) THAT, the trial magistrate erred law and facts by rejecting my plausible defence without a cogent reason to do so.
5) THAT, other further grounds to be adduced at the hearing of this appeal.
2. The Appellant then proceeded to submit on the grounds of appeal. He
urged that the trial magistrate failed to consider that there was disagreement between the appellant and the mother of the complainant who told him that he refused to buy from her business. Further, that PW1 was not a credible witness and that her mother coached her to testify against him. He cited the decision in Eliud Waweru vs Republic (2019) eKLR, urging that the Sexual Offences Act was used to settle grudges. He urged that the evidence tendered was flimsy and scanty and that the court should disregard the prosecutions’ evidence.
3. The Appellant submitted that the elements of the offence were not
proved to the required standard, citing the case of Fappyton Mutuku Ngui vs republic (2010) eKLR and Francis Ndungu Tweni vs Republic (2017) eKLR in this regard.
He questioned the evidence of PW4 and urged that he did not explain his professionality. Further, that the Complainant was not examined on the same day and her evidence was not corroborated. He further submitted that there was no penetration proved as per section 8(2) of the Sexual offences Act and, that PW4 did not explain whether the hymen was old broken or freshly broken.
4. The Appellant urged that there were essential witnesses who were not
called to testify.
He argued that PW2 testified that she sent her small child to look for the complainant but they were not called to testify. Further, that the people who rent the houses were not called as witnesses yet they were essential. He cited the case of Bukenya vs Republic and urged that it was the burden of the prosecution to call the witnesses. He also cited the case of Woolmington vs DPP Ac 462 and maintained that the prosecution failed to prove their case to the required standard.
5. On sentence, he urged that minimum sentences are unconstitutional,
citing the case of Philip Mueke Maingi vs DPP and Attorney General – Pet No. E017 of 2021 at Machakos in this regard. He prayed that the court allow the appeal against conviction and sentence.
The Respondents’ Submissions;
6. Learned Counsel for the state submitted that the ground of the
Appellant that there was a disagreement could not stand as the issue of the grudge was only brought up during the defence hearing.
Further, he argued that when PW2 testified, the Appellant did not bring up the grudge or cross examine her on it and therefore, the same is an afterthought.
Additionally, that the minor cannot be said to have been untruthful as she did not say the purpose of the charger and, that this was not a fact that went to the heart of the case and should thus be dismissed.
7. Counsel submitted that the age of the victim was proved by P-Exhibit 1, with a birth certificate belonging to the minor. It showed that she was born on 6th June 2025 making her 14 years 2 months old at the time of the offence and this evidence was corroborated by her mother as well as the minor herself.
8. The Appellant was positively identified and was not a stranger to the minor, as they lived within the locality, and he was her friend.
9. On penetration, Counsel urged that when the minor was cross
examined, she explained that the appellant ‘put his thing for urinating into my thing for urinating’ and stated that he used a condom in the act.
She explained that this could explain the absence of spermatozoa. Further, that the cause of penetration was penile as stated by the minor. She maintained that all the elements of the offence were proved and urged the court to find the same.
10. On the issue of witnesses, Counsel urged that the prosecution called
four witnesses and cited Section 143 of the Evidence Act in this regard. She submitted that the witnesses who were called were enough since they proved the case beyond reasonable doubt.
11. On sentence, Counsel urged that the sentence was provided for by law
and therefore, there is no need to interfere with the same. She prayed the court dismiss the Appeal accordingly.
12. The accused was charged with defilement contrary to Section 8(3) of the sexual offences act no 3 of 2006. The particulars were that on the 1st day of August 2019 at Githambo village in Kahuro sub-county within Muranga County, you intentionally caused your penis to penetrate the vagina of PWG, a child aged 14years.
13. The accused was charged with the alternative charge of committing an
indecent act with a child contrary to Section 11(1) of The Sexual Offences Act No 3 of 2006. The particulars were that on the 1st day of August 2019 at Githambo village in Kahuro sub-county within Muranga County, you intentionally touched the vagina of PWG, a child aged 14years.
14. Being an appeal against both sentence and conviction arising from S.O.
Case NO. 10 OF 2020 at Muranga Law Court. Delivered on 28 Day of December 2022 by Hon. V. Ochanda (SRM) court at Muranga. Whereby I was sentenced to server 20 years imprisonment. For the offence of defilement c/Section 8(1) as read with Section 8 (3) of S.O.A.
Analysis and Determination;
The issue for determination is whether the appeal has merit.
15. In Kiilu & Another v Republic [2005]1 KLR 174, the Court of
Appeal stated thus:
“1. 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 to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
16. The burden of proof always lie with the prosecution to prove its case
against the accused person beyond reasonable doubt and that burden does not shift to the accused person. Section 8 of the Sexual Offences Act provides as follows:-
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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.
(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.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if -it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(a) the accused reasonably believed that the child was over the age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
(7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’ s Act.
(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.”
17. It is trite that for the accused to be convicted of the offence of
defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. See the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, where it was stated that:-
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
18. In Kaingu Elias Kasomo v Republic the Court of Appeal in Malindi
Criminal Appeal No. 504 of 2010 stated:
“Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
19. The age of the child was proven through the birth certificate.
20. On the issue of penetration, the complainant testified that she was in court during cross examination because I had sex with the accused. She gave a graphic narrative of the ordeal. She explained that the appellant ‘’put his thing for urinating into my thing for urinating' as is seen on page 8 line 16 and 17 of the proceedings. She testified that she was feeling pain in the pelvic area.
21. The court has also looked at the Ministry of Health record which point out that the victim had a broken hymen. This is repeated in the P3 form this court is of the view that her testimony was credible.The broken hymen recovers fast. The lack of spermatozoa is adequately explained by the fact that appellant used a condom.
22. On the issue of identification,the appellant was not a stranger to the girl. She testified that they lived in the same block and that he used to greet her.
23. The victim testified that at the time the defilement took place she had
taken to him a charger. This shows that the two had an existing interaction and she could recognise him.
24. Further the victims brother seemed to know the appellant. He went to
peep through the house. He clearly knew where he was going, probably to her sister’s aid. The appellant told the victim that the mom will not beat her. This is a clear demonstrated that they were neighbours.
25. The ground that the trial magistrate erred in law and fact by failing to
consider that the elements of the offence charged was not proved beyond any reasonable doubts fails.
26. On the ground of the failure to call witnesses, this court is alive to the fact there is no legal requirement in law on the number of witnesses to prove a fact. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides:-
“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”
27. In Bukenya Vs R (UGC 1952), the court stated:
“(i) The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
(ii) That Court has right and the duty to call witnesses whose evidence appears essential to the just decision of the case.
(iii) Where the evidence called is barely adequate, the court may infer that the evidence of uncalled witnesses would have tendered to be adverse to the prosecution.”
28. In Donald Majiwa Achilwa and 2 other v R (2009) eKLR; the
Court stated:-
“The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”
29. In Keter v Republic [2007] 1 EA 135 the court held inter alia:
“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”
30. In the instant case the prosecution was at liberty to call the witnesses
they deemed necessary to establish and prove their case. The trial court was in my opinion not at liberty to determine which witnesses are sufficient to prove the prosecution case. The is no mandatory number of witness s who must testify.
31. The ground that the trial magistrate erred in law and facts by convicted
the appellant without considering that the crucial and essential witnesses were not called upon to testify fails.
Mitigation;
32. The court considered his mitigation and applied the appropriate weight to the same before sentencing the appellant.
Sentencing:
33. The former Court of Appeal for Eastern Africa stated in Wanjema v
Republic [1971] EA 494 that:
“An appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, too into account some immaterial factors, acted on the wrong principle or the sentence is manifestly excessive in the circumstances of the case.”
The court is of the view that the sentencing was proportional and legal.
The appeal lacks merit and the same is hereby dismissed.
Dated, Signed and Delivered virtually at Eldoret this 13th Day of May, 2026.