1) The appellant was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on 30 th day of December, 2017 at Milimani ‘A’ village in Lugari Sub-County within Kakamega County, the accused unlawfully and intentionally caused penetration with his genital organ namely penis into the genital organ namely vagina of ML a child aged 8 years.
2) In the alternative, the appellant was charged with the offence of committing indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 30 th day of December, 2017 at Milimani ‘A’ village in Lugari Sub-County within Kakamega County the appellant unlawfully and intentionally caused his genital organ namely penis to come into contact with the genital organ namely vagina of ML a child aged 8 years.
3) The trial court considered the evidence of 7 prosecution and 1 defence witness and found the appellant guilty of the offence of defilement. Upon conviction, the court sentenced the appellant to serve life imprisonment.
4) Being dissatisfied with the judgment and sentence of the trial court, the appellant preferred this appeal. The appeal is based on three grounds namely:
a) That the trial magistrate erred in law and fact by convicting and sentencing the appellant without observing that prosecution failed to prove the offence of defilement.
b) That the trial court erred in law and fact by failing to note that the appellant’s charge sheet is incurably defective.
c) That the learned trial magistrate erred in law and fact by failing to accord the appellant the benefit of doubts that were observed in the prosecution case.
5) PW1, the complainant, gave unsworn evidence. In her evidence, PW1, stated she lived in Chekalini and schooled at Chekalini Primary School. She also stated she was in class 3 and that she was 8 years old. On 30/12/2017 at around 6.00pm while she was playing with D, B and P outside their house, PW1 stated, the appellant came and told them to accompany him to graze cows next to a sugar cane plantation PW1 also stated that she knew Mudavadi (appellant) and he was their neighbour. PW1, further, stated the appellant told her friends to herd the cows at a distance which he took behind sugarcane and did manners to her.
6) In this regard, PW1 stated the appellant took his penis and inserted into her vagina after removing her inner and skirt. PW1, further, stated she screamed but houses were far and the appellant threatened to cut her neck if she reported what happened to her mother.
7) The following day, PW1 stated, her mother took her to hospital - Chekalini Dispensary because she felt pain in her private parts where she treated and also to Lumakanda Hospital. Thereafter, PW1 stated, they recorded statements at a police station.
8) On cross-examination, PW1 stated, it was at 6.00pm when the appellant told her to go and herd cows but there was still light when they reached sugarcane plantation. She also stated that she reported the incident to her mother the following day. Finally, ML stated it was the first time that somebody did bad manners to her.
9) PW2, DK, a minor stated that he was in class 3 in Chekalini Primary School and was aged 9 years. PW2 gave sworn evidence. On 30/12/2017 at about 6.00pm, PW2, while they were playing with M, P and B at M’s home, Mudavadi came and asked for help to look after cows. Mudavadi was their neighbour, PW2 stated and that they have been neighbours for a long time. PW2, further stated, the appellant asked M to remain behind so that she could go and buy for them mandazis and she remained.
10) As they looked after the cows about 50 metres away, PW2 state, M came out of a sugarcane plantation next to their home and was not walking well. PW2, further, stated that M told them the appellant had done bad manners to her.
11) PW2 also stated that the appellant threatened to cut them with a panga if they reported what happened. They, however, PW2 stated, told M’s mother what happened. On cross-examination, PW2 stated he did not see Melinda enter the aforesaid sugarcane plantation.
12) PW3, PM, aged 6 schooled at Chekalini Primary school and gave unsworn evidence. She is M’s (PW1) younger sister. On 30/12/2017 at 6:00 pm, PW3 stated, while they were playing football at home with M, B and D, the appellant requested them to go and help him to look after cows as M remained behind so that she could take for them mandazi . Instead, PW3 stated the appellant threw M to a sugarcane plantation. PW3, further, stated that the accused was their neighbour. As they drove cows to Mudavadi’s home, PW3, stated he threatened to cut their necks if they reported what happened but they told their mother what transpired. On cross-examination, PW3 stated she saw the appellant pushing Melinda to sugarcane plantation. PW3, further, stated with ML walked with difficulties and slowly. She also stated the incident occurred in the evening when it was dark.
13) PW4, Jackline Wichenje, stated that M is her 2 nd born and was born on 27/7/2009 at home. PW4, further, stated that she sells groceries. On 31.12.2007 at 9:00 am she left the market and found M still sleeping and her private parts were swollen. On asking what happened, PW4 stated, PW1 revealed to her that the previous day Mudavadi found her playing with her friends and requested them to go and look after animals. PW1 further informed her, PW4stated, that the appellant asked her to remain behind so that she could take her friends mandazis but pushed her to a sugarcane plantation and defiled her. She took the complainant to a health centre but was referred to Lumakanda Hospital where PW1 was examined and treated. She also reported the matter to the police and was issued a P3 form which was filed at Lumakanda Hospital. PW4 also stated that the appellant was their neighbour since 2015. She, further, stated she has no grudge with the appellant and that fetched water from her home.
14) On cross-examination, PW4 stated that she came home at about 7:00 pm on 30.12.2017 from the market. She also stated sugarcane were 100 metres from where the cows were herded.PW4, further, stated PW1 took time before she could walk and she nursed her wounds and that PW1 stayed at home for 2 months before she resumed school.
15) PW5, Maiyo Samuel, is a Clinical Officer based at Lumakanda Hospital. PW5 stated that PW5 was examined at the hospital on 31.12.2017. On examination, PW5 stated, the minor had swellings on the vulva, blood stains on her thighs and discharge on her private parts. PW5, further, stated PW1’s hymen was broken.PW5 produced the complainant’s P3 form (P.exhibit 1) and treatment notes dated 31/12/2017 (P. Exhibit no. 2.) On cross-examination, PW5 stated that the complainant had bloody patches on her thighs.
16) In his defence, the appellant stated that he resides in Chekalini and does manual jobs. On the material date of subject incident herein, the appellant stated, he was feeding his mother’s cows at about 2 pm. As he went to shower, the appellant stated, the police came and arrested him. The appellant stated he did not touch the minor at all. The appellant, further, stated he did not commit the alleged offence herein at all. On cross-examination the accused stated the minor is his neighbour and she knows him very well. He also stated he was at home alone and did not meet the minor and never saw her.
17) The first issue for determination by in this matter is whether the appellant’s charge sheet was incurably defective. The 2 nd issue is whether the appellant defiled the complainant. This being a first appeal this court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses. ( See. Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR )
18) The appellant was charged with defilement under Section 8 (3) of the Sexual Offences Act although the particulars of the offence indicate the complainant was aged 8years.This provision applies defilement of minors aged between twelve to fifteen years and conviction attracts a minimum sentence of twenty years. The trial court, however, also relied on said provisions in its judgement and sentenced the appellant to serve life imprisonment. It is, therefore, very clear the appellant was prosecuted, convicted and sentenced on basis of a defective charge sheet. As the defect goes into the root of the nature of the offence and length of the sentence prescribed, the same was fatal.
19) The complainant who gave unsworn testimony stated she was aged 8 years on the date of the alleged incident herein. Her mother (PW4) stated the complainant was born on 22.7.2009 but stated her documents including baptismal card got burnt. No age assessment for complainant was, however, was done. This court finds the age of the complainant was not conclusively proved and that it was, therefore, not safe for the trial court to convict the appellant and sentence him to serve life imprisonment.
20) The upshot of the findings above is that this appeal has merit and the same is allowed. Consequently, the conviction of the appellant is quashed, his life sentence set aside and appellant is set at liberty forthwith unless otherwise lawfully held.
Right of appeal within 14 days.
Dated, signed and delivered online via MS teams this 23 rd day of July 2026.
Hon. P. K. Rotich
JUDGE
2) In the alternative, the appellant was charged with the offence of committing indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 30 th day of December, 2017 at Milimani ‘A’ village in Lugari Sub-County within Kakamega County the appellant unlawfully and intentionally caused his genital organ namely penis to come into contact with the genital organ namely vagina of ML a child aged 8 years.
3) The trial court considered the evidence of 7 prosecution and 1 defence witness and found the appellant guilty of the offence of defilement. Upon conviction, the court sentenced the appellant to serve life imprisonment.
4) Being dissatisfied with the judgment and sentence of the trial court, the appellant preferred this appeal. The appeal is based on three grounds namely:
a) That the trial magistrate erred in law and fact by convicting and sentencing the appellant without observing that prosecution failed to prove the offence of defilement.
b) That the trial court erred in law and fact by failing to note that the appellant’s charge sheet is incurably defective.
c) That the learned trial magistrate erred in law and fact by failing to accord the appellant the benefit of doubts that were observed in the prosecution case.
5) PW1, the complainant, gave unsworn evidence. In her evidence, PW1, stated she lived in Chekalini and schooled at Chekalini Primary School. She also stated she was in class 3 and that she was 8 years old. On 30/12/2017 at around 6.00pm while she was playing with D, B and P outside their house, PW1 stated, the appellant came and told them to accompany him to graze cows next to a sugar cane plantation PW1 also stated that she knew Mudavadi (appellant) and he was their neighbour. PW1, further, stated the appellant told her friends to herd the cows at a distance which he took behind sugarcane and did manners to her.
6) In this regard, PW1 stated the appellant took his penis and inserted into her vagina after removing her inner and skirt. PW1, further, stated she screamed but houses were far and the appellant threatened to cut her neck if she reported what happened to her mother.
7) The following day, PW1 stated, her mother took her to hospital - Chekalini Dispensary because she felt pain in her private parts where she treated and also to Lumakanda Hospital. Thereafter, PW1 stated, they recorded statements at a police station.
8) On cross-examination, PW1 stated, it was at 6.00pm when the appellant told her to go and herd cows but there was still light when they reached sugarcane plantation. She also stated that she reported the incident to her mother the following day. Finally, ML stated it was the first time that somebody did bad manners to her.
9) PW2, DK, a minor stated that he was in class 3 in Chekalini Primary School and was aged 9 years. PW2 gave sworn evidence. On 30/12/2017 at about 6.00pm, PW2, while they were playing with M, P and B at M’s home, Mudavadi came and asked for help to look after cows. Mudavadi was their neighbour, PW2 stated and that they have been neighbours for a long time. PW2, further stated, the appellant asked M to remain behind so that she could go and buy for them mandazis and she remained.
10) As they looked after the cows about 50 metres away, PW2 state, M came out of a sugarcane plantation next to their home and was not walking well. PW2, further, stated that M told them the appellant had done bad manners to her.
11) PW2 also stated that the appellant threatened to cut them with a panga if they reported what happened. They, however, PW2 stated, told M’s mother what happened. On cross-examination, PW2 stated he did not see Melinda enter the aforesaid sugarcane plantation.
12) PW3, PM, aged 6 schooled at Chekalini Primary school and gave unsworn evidence. She is M’s (PW1) younger sister. On 30/12/2017 at 6:00 pm, PW3 stated, while they were playing football at home with M, B and D, the appellant requested them to go and help him to look after cows as M remained behind so that she could take for them mandazi . Instead, PW3 stated the appellant threw M to a sugarcane plantation. PW3, further, stated that the accused was their neighbour. As they drove cows to Mudavadi’s home, PW3, stated he threatened to cut their necks if they reported what happened but they told their mother what transpired. On cross-examination, PW3 stated she saw the appellant pushing Melinda to sugarcane plantation. PW3, further, stated with ML walked with difficulties and slowly. She also stated the incident occurred in the evening when it was dark.
13) PW4, Jackline Wichenje, stated that M is her 2 nd born and was born on 27/7/2009 at home. PW4, further, stated that she sells groceries. On 31.12.2007 at 9:00 am she left the market and found M still sleeping and her private parts were swollen. On asking what happened, PW4 stated, PW1 revealed to her that the previous day Mudavadi found her playing with her friends and requested them to go and look after animals. PW1 further informed her, PW4stated, that the appellant asked her to remain behind so that she could take her friends mandazis but pushed her to a sugarcane plantation and defiled her. She took the complainant to a health centre but was referred to Lumakanda Hospital where PW1 was examined and treated. She also reported the matter to the police and was issued a P3 form which was filed at Lumakanda Hospital. PW4 also stated that the appellant was their neighbour since 2015. She, further, stated she has no grudge with the appellant and that fetched water from her home.
14) On cross-examination, PW4 stated that she came home at about 7:00 pm on 30.12.2017 from the market. She also stated sugarcane were 100 metres from where the cows were herded.PW4, further, stated PW1 took time before she could walk and she nursed her wounds and that PW1 stayed at home for 2 months before she resumed school.
15) PW5, Maiyo Samuel, is a Clinical Officer based at Lumakanda Hospital. PW5 stated that PW5 was examined at the hospital on 31.12.2017. On examination, PW5 stated, the minor had swellings on the vulva, blood stains on her thighs and discharge on her private parts. PW5, further, stated PW1’s hymen was broken.PW5 produced the complainant’s P3 form (P.exhibit 1) and treatment notes dated 31/12/2017 (P. Exhibit no. 2.) On cross-examination, PW5 stated that the complainant had bloody patches on her thighs.
16) In his defence, the appellant stated that he resides in Chekalini and does manual jobs. On the material date of subject incident herein, the appellant stated, he was feeding his mother’s cows at about 2 pm. As he went to shower, the appellant stated, the police came and arrested him. The appellant stated he did not touch the minor at all. The appellant, further, stated he did not commit the alleged offence herein at all. On cross-examination the accused stated the minor is his neighbour and she knows him very well. He also stated he was at home alone and did not meet the minor and never saw her.
17) The first issue for determination by in this matter is whether the appellant’s charge sheet was incurably defective. The 2 nd issue is whether the appellant defiled the complainant. This being a first appeal this court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses. ( See. Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR )
18) The appellant was charged with defilement under Section 8 (3) of the Sexual Offences Act although the particulars of the offence indicate the complainant was aged 8years.This provision applies defilement of minors aged between twelve to fifteen years and conviction attracts a minimum sentence of twenty years. The trial court, however, also relied on said provisions in its judgement and sentenced the appellant to serve life imprisonment. It is, therefore, very clear the appellant was prosecuted, convicted and sentenced on basis of a defective charge sheet. As the defect goes into the root of the nature of the offence and length of the sentence prescribed, the same was fatal.
19) The complainant who gave unsworn testimony stated she was aged 8 years on the date of the alleged incident herein. Her mother (PW4) stated the complainant was born on 22.7.2009 but stated her documents including baptismal card got burnt. No age assessment for complainant was, however, was done. This court finds the age of the complainant was not conclusively proved and that it was, therefore, not safe for the trial court to convict the appellant and sentence him to serve life imprisonment.
20) The upshot of the findings above is that this appeal has merit and the same is allowed. Consequently, the conviction of the appellant is quashed, his life sentence set aside and appellant is set at liberty forthwith unless otherwise lawfully held.
Right of appeal within 14 days.
Dated, signed and delivered online via MS teams this 23 rd day of July 2026.
Hon. P. K. Rotich
JUDGE