( Being an appeal from the conviction and sentence in Rongo MCSO Case No. E025 of 2024 vide a judgement delivered by Hon. C.N.C ORUO (PM) on 9 th day of April, 2025
JUDGMENT
INTRODUCTION
1. 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 No. 3 of 2006 . The particulars of the charge were that on the 29 th day of July, 2024 around 2208hrs at Uriri village, North Kamagambo location in Rongo sub county within Migori County in the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of N.A.O a child aged 4 years.
2. The appellant was charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 . The particulars of the offence were that the appellant, on the 29 th day of July, 2024 at around 2208hr at Uriri Village, North Kamagambo location in Rongo sub county within Migori County in the Republic of Kenya, intentionally and unlawfully touched the vagina of N.A.O a child aged 4 years with your penis.
3. The Appellant was eventually convicted of the offence of defilement and was sentenced to life imprisonment.
4. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
a) That I pleaded not guilty to the charge herein.
b) That the trial court erred in both law and fact by not complying with article 50(2) (g) (h) of the Kenya Constitution 2010.
c) That the trial court erred in both law and fact by not observing that the ingredients of the offence herein were not proved to the required standard in law and in facts.
d) That the trial court erred in both law and fact by meting a harsh and excessive sentence in the circumstances .
5. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 22 nd January, 2026. The Respondent, through the Office of the Director of Public Prosecutions, likewise filed their written submissions.
6. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held 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” .
7. This duty was also articulated by the former Court of Appeal for East Africa in Okeno v Republic [1972] EA 32
ISSUES FOR DETERMINATION
8. Having considered the Petition of Appeal, the record of the trial court, and the rival submissions, the following issues arise for determination;
a) Whether the age of the complainant was proved beyond reasonable doubt.
b) Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
c) Whether the Appellant was positively identified as the perpetrator of the Offence.
d) Whether the Prosecution complied with Section 31 & 32 of the Sexual Offences Act.
e) Whether the sentence imposed was harsh, excessive, or unlawful .
ANALYSIS & DETERMINATION
9. On whether the Age of the Complainant was proved, the Court takes note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position were stated in George Opondo Olunga vs. Republic (2016) eKLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice . ”
10. The victim in this case is said to be a Four-year minor. This is as indicated in the Charge Sheet. Further a filter clinical card was produced by PW2 showing that the Complainant was aged 4 years at the time of the incident. The birth certificate produced before court No. 6380685 issued on the 23 rd February 2022, shows the complainant was born on the 2 nd September 2019. The offence was alleged to have been committed on the 29 th July 2024. The minor was thus 4 years and about 10 months at the time of the incident.
11. The age stated in the charge sheet was therefore an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant around the age of 4 years. In any event, the age of the complainant still falls within the ambit of section 8(2) of the Sexual Offences Act, No. 3 of 2006.
12. This court notes while proof of age is critically important in defilement cases as it is the age of the victim which determines the length of the sentence to be imposed on an accused person upon conviction, the age of the victim can be proved by not only production of birth certificates but by other modes of proof including the testimony of the victim’s parents, baptismal cards or other documents on which the victim’s date of birth is reflected.
13. In Joseph Kieti Seet V Republic (2014) eKLR H.C Machakos Criminal Appeal No. 91 of 2011 , the court held as follows: -
“It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni –versus- Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 , it was held thus:
“..In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…”
14. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed.
15. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
16. On whether penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
17. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
18. In the present case, the Clinical officer who testified as PW1 informed Court that on examination, there were signs of forceful penetration on the vagina, at the time he was conducting the examination she came without the inner pants. Further on genital examination there was swelling with redness, injuries on the clitoris and semen oozing from the vagina a confirmation that defilement of the complainant had occurred. He further stated that he also examined the Appellant and on genital examination while squeezing the penis he noticed semen were oozing from the penis a clear indication of sexual satisfaction by the accused/Appellant. He further testified to there being laceration to the grant of penis meaning there was attempted penetration. This information was further backed up with Treatment Notes & P3 Form & PRC Form to which this Honourable Court has had the opportunity to carefully examine.
19. In light of the statutory definition and the authority of the Court of Appeal herein quoted. The medical findings were consistent with partial penetration within the meaning of section 2 of the Act. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
20. On the issue of identification, the Court finds that the prosecution case rested on a combination of recognition and circumstantial evidence. The complainant's mother (PW2) testified that the appellant was her nephew, thereby establishing that he was a person well known to the complainant and her family. Although PW2 testified as an intermediary, it was the complainant's account that the appellant came to their house, took her to the plantation where the offence was committed, and that she knew him. The evidence was therefore one of recognition rather than identification of a stranger. PW3 further corroborated the above when he testified that he heard the minor screaming and when he went to where the noise was coming from he was able to see someone approaching him. It is trite that recognition is generally more reliable than the identification of an unknown person, though the Court must nonetheless exercise caution and examine the circumstances carefully.
21. The prosecution case was further fortified by circumstantial evidence. The complainant was found in the plantation shortly after the incident, and a shoe allegedly belonging to the appellant was recovered at or near the scene. That evidence, viewed together with the complainant's recognition of the appellant and the relationship between the parties, constituted circumstantial evidence pointing towards the appellant as the perpetrator. Circumstantial evidence is capable of sustaining a conviction provided it forms a complete chain leading irresistibly to the guilt of the accused and is incapable of explanation upon any other reasonable hypothesis than that of guilt.
22. The principles governing circumstantial evidence are well settled. In Sawe v Republic [2003] KLR 364, the Court of Appeal held that before a court can base a conviction on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.
23. Similarly, in Abanga alias Onyango v Republic Cr. App. No. 32 of 1990 , the Court stated that the circumstances from which an inference of guilt is drawn must be cogently and firmly established, should unerringly point to the guilt of the accused, and, taken cumulatively, should form a complete chain leaving no escape from the conclusion that within all human probability the offence was committed by the accused and no one else.
24. Applying those principles to the present case, the Court is satisfied that the complainant's recognition of the appellant, the familial relationship between them, the appellant's alleged presence with the complainant immediately before the commission of the offence, and the recovery of a shoe said to belong to the appellant at the scene constituted mutually reinforcing circumstances. In the absence of any reasonable explanation consistent with innocence, those circumstances formed a complete chain pointing irresistibly to the appellant as the perpetrator of the offence.
25. In his defence, the Appellant did not deny that he was well known to both the complainant and her Mother in fact he did not deny that he was a nephew to the Complainant’s mother. He only denied defiling the minor that night but did not give any kind of evidence that would place him away from the incident.
26. In the circumstances of this case, I am of the considered view that the prosecution evidence sufficiently established the elements of the offence and I am satisfied with the same.
27. On whether the prosecution complied with Section 31 & 32 of the Sexual Offences Act , the record shows that, upon an application by the prosecution, the trial court declared the complainant, who was four (4) years old, a vulnerable witness pursuant to Section 31 of the Sexual Offences Act on account of her being a child of tender years. Having made that declaration, the court permitted the complainant to testify through her mother as an intermediary in accordance with Sections 31 and 32 of the Sexual Offences Act , which provide for the appointment and use of intermediaries to facilitate the testimony of vulnerable witnesses. The appellant, who was present during the proceedings, did not object either to the declaration of the complainant as a vulnerable witness or to the appointment of the complainant's mother as an intermediary.
28. This Court has carefully perused the proceedings and is satisfied that the trial court substantially complied with the requirements of Sections 31 and 32 of the Sexual Offences Act . The intermediary did not exceed her statutory role of facilitating communication between the complainant and the court. The record demonstrates that she merely assisted in relaying the questions posed to the complainant and communicating the complainant's responses to the court. There is no indication that the intermediary coached, influenced, interpreted, embellished or substituted the complainant's evidence, or otherwise assumed the role of a witness. The appellant was afforded the opportunity to cross-examine the complainant through the intermediary, and no prejudice to his right to a fair trial under Article 50 of the Constitution has been demonstrated.
29. The foregoing position accords with the decision of the Court of Appeal in Koech v Republic [2023] KECA 1377 (KLR ) , where the Court held that where no prejudice is shown to have been occasioned by the procedure adopted regarding the appointment or use of an intermediary, any procedural irregularity is curable under Section 382 of the Criminal Procedure Code . In the circumstances of this case, this Court finds that the use of the complainant's mother as an intermediary achieved the statutory objective contemplated under Sections 31 and 32 of the Sexual Offences Act , namely, to facilitate the reception of the evidence of a vulnerable witness without compromising the fairness of the trial. Consequently, even assuming that there was any procedural lapse in the manner of the intermediary's appointment, the same did not occasion a failure of justice and does not warrant interference with the conviction.
30. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was harsh and excessive.
31. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below. The sentences was therefore legal and I see no reason to interfere with it.
32. In the premises, the appeal is found to be lacking in merit and is dismissed in its entirety forthwith.
It is so ordered
Dated, signed and delivered virtually via Microsoft Teams this 6 th day of August 2026.
HCCRA NO. E040 OF 2025 DENNIS OCHIENG NYANDA VS REPUBLIC JUDGMENT Pg. 8
JUDGMENT
INTRODUCTION
1. 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 No. 3 of 2006 . The particulars of the charge were that on the 29 th day of July, 2024 around 2208hrs at Uriri village, North Kamagambo location in Rongo sub county within Migori County in the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of N.A.O a child aged 4 years.
2. The appellant was charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 . The particulars of the offence were that the appellant, on the 29 th day of July, 2024 at around 2208hr at Uriri Village, North Kamagambo location in Rongo sub county within Migori County in the Republic of Kenya, intentionally and unlawfully touched the vagina of N.A.O a child aged 4 years with your penis.
3. The Appellant was eventually convicted of the offence of defilement and was sentenced to life imprisonment.
4. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
a) That I pleaded not guilty to the charge herein.
b) That the trial court erred in both law and fact by not complying with article 50(2) (g) (h) of the Kenya Constitution 2010.
c) That the trial court erred in both law and fact by not observing that the ingredients of the offence herein were not proved to the required standard in law and in facts.
d) That the trial court erred in both law and fact by meting a harsh and excessive sentence in the circumstances .
5. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 22 nd January, 2026. The Respondent, through the Office of the Director of Public Prosecutions, likewise filed their written submissions.
6. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held 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” .
7. This duty was also articulated by the former Court of Appeal for East Africa in Okeno v Republic [1972] EA 32
ISSUES FOR DETERMINATION
8. Having considered the Petition of Appeal, the record of the trial court, and the rival submissions, the following issues arise for determination;
a) Whether the age of the complainant was proved beyond reasonable doubt.
b) Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
c) Whether the Appellant was positively identified as the perpetrator of the Offence.
d) Whether the Prosecution complied with Section 31 & 32 of the Sexual Offences Act.
e) Whether the sentence imposed was harsh, excessive, or unlawful .
ANALYSIS & DETERMINATION
9. On whether the Age of the Complainant was proved, the Court takes note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position were stated in George Opondo Olunga vs. Republic (2016) eKLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice . ”
10. The victim in this case is said to be a Four-year minor. This is as indicated in the Charge Sheet. Further a filter clinical card was produced by PW2 showing that the Complainant was aged 4 years at the time of the incident. The birth certificate produced before court No. 6380685 issued on the 23 rd February 2022, shows the complainant was born on the 2 nd September 2019. The offence was alleged to have been committed on the 29 th July 2024. The minor was thus 4 years and about 10 months at the time of the incident.
11. The age stated in the charge sheet was therefore an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant around the age of 4 years. In any event, the age of the complainant still falls within the ambit of section 8(2) of the Sexual Offences Act, No. 3 of 2006.
12. This court notes while proof of age is critically important in defilement cases as it is the age of the victim which determines the length of the sentence to be imposed on an accused person upon conviction, the age of the victim can be proved by not only production of birth certificates but by other modes of proof including the testimony of the victim’s parents, baptismal cards or other documents on which the victim’s date of birth is reflected.
13. In Joseph Kieti Seet V Republic (2014) eKLR H.C Machakos Criminal Appeal No. 91 of 2011 , the court held as follows: -
“It is trite law that the age of a victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni –versus- Uganda, Court of Appeal Criminal Appeal No. 2 of 2000 , it was held thus:
“..In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…”
14. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed.
15. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
16. On whether penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
17. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
18. In the present case, the Clinical officer who testified as PW1 informed Court that on examination, there were signs of forceful penetration on the vagina, at the time he was conducting the examination she came without the inner pants. Further on genital examination there was swelling with redness, injuries on the clitoris and semen oozing from the vagina a confirmation that defilement of the complainant had occurred. He further stated that he also examined the Appellant and on genital examination while squeezing the penis he noticed semen were oozing from the penis a clear indication of sexual satisfaction by the accused/Appellant. He further testified to there being laceration to the grant of penis meaning there was attempted penetration. This information was further backed up with Treatment Notes & P3 Form & PRC Form to which this Honourable Court has had the opportunity to carefully examine.
19. In light of the statutory definition and the authority of the Court of Appeal herein quoted. The medical findings were consistent with partial penetration within the meaning of section 2 of the Act. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
20. On the issue of identification, the Court finds that the prosecution case rested on a combination of recognition and circumstantial evidence. The complainant's mother (PW2) testified that the appellant was her nephew, thereby establishing that he was a person well known to the complainant and her family. Although PW2 testified as an intermediary, it was the complainant's account that the appellant came to their house, took her to the plantation where the offence was committed, and that she knew him. The evidence was therefore one of recognition rather than identification of a stranger. PW3 further corroborated the above when he testified that he heard the minor screaming and when he went to where the noise was coming from he was able to see someone approaching him. It is trite that recognition is generally more reliable than the identification of an unknown person, though the Court must nonetheless exercise caution and examine the circumstances carefully.
21. The prosecution case was further fortified by circumstantial evidence. The complainant was found in the plantation shortly after the incident, and a shoe allegedly belonging to the appellant was recovered at or near the scene. That evidence, viewed together with the complainant's recognition of the appellant and the relationship between the parties, constituted circumstantial evidence pointing towards the appellant as the perpetrator. Circumstantial evidence is capable of sustaining a conviction provided it forms a complete chain leading irresistibly to the guilt of the accused and is incapable of explanation upon any other reasonable hypothesis than that of guilt.
22. The principles governing circumstantial evidence are well settled. In Sawe v Republic [2003] KLR 364, the Court of Appeal held that before a court can base a conviction on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt.
23. Similarly, in Abanga alias Onyango v Republic Cr. App. No. 32 of 1990 , the Court stated that the circumstances from which an inference of guilt is drawn must be cogently and firmly established, should unerringly point to the guilt of the accused, and, taken cumulatively, should form a complete chain leaving no escape from the conclusion that within all human probability the offence was committed by the accused and no one else.
24. Applying those principles to the present case, the Court is satisfied that the complainant's recognition of the appellant, the familial relationship between them, the appellant's alleged presence with the complainant immediately before the commission of the offence, and the recovery of a shoe said to belong to the appellant at the scene constituted mutually reinforcing circumstances. In the absence of any reasonable explanation consistent with innocence, those circumstances formed a complete chain pointing irresistibly to the appellant as the perpetrator of the offence.
25. In his defence, the Appellant did not deny that he was well known to both the complainant and her Mother in fact he did not deny that he was a nephew to the Complainant’s mother. He only denied defiling the minor that night but did not give any kind of evidence that would place him away from the incident.
26. In the circumstances of this case, I am of the considered view that the prosecution evidence sufficiently established the elements of the offence and I am satisfied with the same.
27. On whether the prosecution complied with Section 31 & 32 of the Sexual Offences Act , the record shows that, upon an application by the prosecution, the trial court declared the complainant, who was four (4) years old, a vulnerable witness pursuant to Section 31 of the Sexual Offences Act on account of her being a child of tender years. Having made that declaration, the court permitted the complainant to testify through her mother as an intermediary in accordance with Sections 31 and 32 of the Sexual Offences Act , which provide for the appointment and use of intermediaries to facilitate the testimony of vulnerable witnesses. The appellant, who was present during the proceedings, did not object either to the declaration of the complainant as a vulnerable witness or to the appointment of the complainant's mother as an intermediary.
28. This Court has carefully perused the proceedings and is satisfied that the trial court substantially complied with the requirements of Sections 31 and 32 of the Sexual Offences Act . The intermediary did not exceed her statutory role of facilitating communication between the complainant and the court. The record demonstrates that she merely assisted in relaying the questions posed to the complainant and communicating the complainant's responses to the court. There is no indication that the intermediary coached, influenced, interpreted, embellished or substituted the complainant's evidence, or otherwise assumed the role of a witness. The appellant was afforded the opportunity to cross-examine the complainant through the intermediary, and no prejudice to his right to a fair trial under Article 50 of the Constitution has been demonstrated.
29. The foregoing position accords with the decision of the Court of Appeal in Koech v Republic [2023] KECA 1377 (KLR ) , where the Court held that where no prejudice is shown to have been occasioned by the procedure adopted regarding the appointment or use of an intermediary, any procedural irregularity is curable under Section 382 of the Criminal Procedure Code . In the circumstances of this case, this Court finds that the use of the complainant's mother as an intermediary achieved the statutory objective contemplated under Sections 31 and 32 of the Sexual Offences Act , namely, to facilitate the reception of the evidence of a vulnerable witness without compromising the fairness of the trial. Consequently, even assuming that there was any procedural lapse in the manner of the intermediary's appointment, the same did not occasion a failure of justice and does not warrant interference with the conviction.
30. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was harsh and excessive.
31. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below. The sentences was therefore legal and I see no reason to interfere with it.
32. In the premises, the appeal is found to be lacking in merit and is dismissed in its entirety forthwith.
It is so ordered
Dated, signed and delivered virtually via Microsoft Teams this 6 th day of August 2026.
HCCRA NO. E040 OF 2025 DENNIS OCHIENG NYANDA VS REPUBLIC JUDGMENT Pg. 8