( Being an appeal from the conviction and sentence in Migori MCSO Case No. E012 of 2022 vide a judgement delivered by Hon. Naomi Wairimu Senior Principal Magistrate, on 13 th March, 2024 )
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 19 th day of February, 2020 at Radienya village within Migori County in the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of N.G a child aged 8 years.
2. The appellant was also 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 19 th day of February, 2020 at Radienya Village within Migori County in the Republic of Kenya intentionally and unlawfully touched the vagina of N.G a child aged 8 years with his penis.
3. The appellant was informed of his rights under Article 50 of the Constitution at the commencement of the suit which he informed Court that he understood but proceeded by way of self-representation. The Appellant was eventually convicted of the offence of defilement and was sentenced to 30 years' imprisonment.
4. The appellant was aggrieved by the conviction and filed the amended ground of appeal dated the 5 th day of May, 2026. He set out the following grounds:
a) That the trial learned magistrate erred in law and in fact when she found the Appellant guilty as charged and filed to note that the prosecution case lacked corroboration in its nature.
b) That the learned trial magistrate in matters of law when she fully certified that the appellant was guilty as charged and failed to note that the medical evidence did not complainant’s contention.
c) That the learned trial magistrate erred in matter of law when she found that Appellant guilty in the present case and failed to observe the appellant’s fundamental rights were fully violated during the trial matter.
d) That the learned trial magistrate erred in both law and in fact when convicted the appellant on prosecution case which was marred with contradictions, inconsistencies and discrepancies which were not proved .
e) That the learned trial magistrate erred in law by rejecting the appellants defence of alibi which was trustful & cogent to secure an acquittal to the Appellant .
5. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 24 th April, 2026. The Respondent however did not file submissions in opposition of the Appeal.
6. This being a first appeal, this court is under a duty to reevaluate 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 corroboration was required.
e) Whether the Appellant’s defence was considered.
f) 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) e KLR 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 an 8 years minor at the time of the incident. This is as indicated by the Charge Sheet. Further when she testified before Court she stated that she was Nine (9) years and that the defilement occurred approximately one (1) year prior to the court hearing. A Birth Certificate was produced by PW3 which indicated the Complainant was born on the 16 th November, 2012.
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 well below the age of eleven years.
12. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
13. 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.
14. 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.
15. In the present case, the Clinical officer who testified as PW2 stated that, on the 09/02/2020 at around 6:30 pm the victim was taken to their facility, and her under pant was dirty and she had injuries on the left chest wall abdomen, left wrist joint painful, her vaginal walls were painful and slightly swollen. He further testified that the hymen was missing and there were blood stains on the vaginal wall. On high vaginal swab test done on the victim, PW2 testified that there was presence of blood clots due to minor bleeding. He further stated that the absence of hymen meant that there was penetration. He further produced copy of the P3 Form and treatment card which this Honourable Court has had the opportunity to carefully examine.
16. In light of the statutory definition and the binding authority of the Court of Appeal. The medical findings were consistent with penetration within the meaning of section 2 of the Act. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
17. On the issue of identification of the Appellant, the complainant while giving her evidence testified that the Appellant came to their home, called her took her hand to the maize plantation where he defiled her. That she screamed and that is when Cynthia came and assisted. She further testified that she knew the accused but she did not their home. On cross examination she reiterated the same.
18. In his defence, the Appellant did not dispute that he was well known to the complainant. Indeed, he testified that they were related and that he frequently visited the complainant's family. He further admitted that he had visited their home on the material day. His own evidence therefore confirmed that this was a case of recognition rather than identification of a stranger, thereby eliminating the possibility of mistaken identity.
19. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other ”.
20. The court is satisfied that the appellant was recognized by the minor, who knew him therefore it was proved that the appellant was the perpetrator.
21. On whether there was no corroboration as alleged by the Appellant. I note that the primary evidence against the Appellant was that of the complainant, whose testimony was further supported by the medical evidence of the clinical officer who examined her and produced the P3 Form and treatment notes.
22. Section 124 of the Evidence Act requires corroboration where the evidence of a child is the sole testimony implicating an accused person. However, the proviso to that section creates an exception in cases involving sexual offences, permitting a court to convict on the sole evidence of the victim if, for reasons recorded, it is satisfied that the victim is truthful. The section provides:
" Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act... the accused shall not be liable to be convicted on such evidence unless it is corroborated by other evidence implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth ."
23. In the present case, the prosecution case was not founded solely on the complainant's testimony. Her account was materially supported by the medical evidence of the doctor, which confirmed findings consistent with sexual assault.
24. Consequently, even without resort to the proviso to Section 124 of the Evidence Act, there existed independent evidence supporting the complainant's account. In any event, there is nothing on the record that indicates that trial court did not find the complainant to be a truthful witness, thereby satisfying the requirements of the proviso to Section 124.
25. In the circumstances of this case, the prosecution evidence sufficiently established the elements of the offence herein and I find no reason to depart from it.
26. On whether the Appellant raised the Defence of Alibi as alleged in his grounds of appeal, I have carefully perused the record, it is noteworthy to note that the Appellant's contention that he raised a defence of alibi is not borne out by the record. An alibi is a defence that an accused person was at a different place at the time the offence was committed, rendering it impossible for him to have committed the offence.
27. In the present case, the Appellant did not claim to have been elsewhere. On the contrary, he visited the complainant's home on the day of the incident, having been called by his cousin, although he stated that he did not find his cousin there. He simply denied any involvement in the offence and professed ignorance of the allegations against him. His evidence therefore constituted a mere denial rather than a defence of alibi.
28. It is therefore my considered view that the trial court duly considered the Appellant's defence alongside the prosecution evidence and upon my own re-evaluation of the record, I find no basis to fault that finding and therefore see no reason to interfere with the trial court's determination on the issue.
29. 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. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below and the Appellant was sentenced to Thirty (30) years’ imprisonments.
30. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR ) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful.
31. Consequently, by law, a person convicted of defilement under section 8(2) of the Sexual Offences Act ought to be sentenced to the mandatory life imprisonment. Any term sentence will be unconstitutional.
32. While the appellant argued that the sentence should be set aside and his appeal allowed on both conviction and sentencing, I note that the sentence imposed was a term sentence of Thirty (30) years imprisonment, which is fundamentally lower than the mandatory life sentence. Suffices it to state that it was a more lenient sentence than the mandatory sentence prescribed by statute.
33. The question that follows is what this appellate court should do. Ordinarily, this court ought to correct such an irregularity by imposing the statutory prescribed sentence. However, in this case, such an act will amount to an enhancement of the sentence from 30 year’s imprisonment to life sentence. For such enhancement, it is trite law that the appellant ought to have been given prior notice of enhancement. No notice was given to the appellant.
34. Accordingly, this court finds no basis for interfering with the sentence. Based on the above.
DISPOSITION
35. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction was sound and the sentence lawful.
b) The appeal against both conviction and sentence is dismissed in its entirety.
c) Save that pursuant to Section 333(2) of the Criminal Procedure Code, the sentence shall run from the date of the Appellant's arrest, the sentence imposed by the trial court is hereby affirmed .
It is so ordered
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026
HCCRA NO. E105 OF 2024 DENNIS ORWA ISAYA ALIAS ADENO VE REPUBLIC JUDGMENT Pg. 10
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 19 th day of February, 2020 at Radienya village within Migori County in the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of N.G a child aged 8 years.
2. The appellant was also 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 19 th day of February, 2020 at Radienya Village within Migori County in the Republic of Kenya intentionally and unlawfully touched the vagina of N.G a child aged 8 years with his penis.
3. The appellant was informed of his rights under Article 50 of the Constitution at the commencement of the suit which he informed Court that he understood but proceeded by way of self-representation. The Appellant was eventually convicted of the offence of defilement and was sentenced to 30 years' imprisonment.
4. The appellant was aggrieved by the conviction and filed the amended ground of appeal dated the 5 th day of May, 2026. He set out the following grounds:
a) That the trial learned magistrate erred in law and in fact when she found the Appellant guilty as charged and filed to note that the prosecution case lacked corroboration in its nature.
b) That the learned trial magistrate in matters of law when she fully certified that the appellant was guilty as charged and failed to note that the medical evidence did not complainant’s contention.
c) That the learned trial magistrate erred in matter of law when she found that Appellant guilty in the present case and failed to observe the appellant’s fundamental rights were fully violated during the trial matter.
d) That the learned trial magistrate erred in both law and in fact when convicted the appellant on prosecution case which was marred with contradictions, inconsistencies and discrepancies which were not proved .
e) That the learned trial magistrate erred in law by rejecting the appellants defence of alibi which was trustful & cogent to secure an acquittal to the Appellant .
5. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 24 th April, 2026. The Respondent however did not file submissions in opposition of the Appeal.
6. This being a first appeal, this court is under a duty to reevaluate 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 corroboration was required.
e) Whether the Appellant’s defence was considered.
f) 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) e KLR 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 an 8 years minor at the time of the incident. This is as indicated by the Charge Sheet. Further when she testified before Court she stated that she was Nine (9) years and that the defilement occurred approximately one (1) year prior to the court hearing. A Birth Certificate was produced by PW3 which indicated the Complainant was born on the 16 th November, 2012.
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 well below the age of eleven years.
12. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
13. 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.
14. 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.
15. In the present case, the Clinical officer who testified as PW2 stated that, on the 09/02/2020 at around 6:30 pm the victim was taken to their facility, and her under pant was dirty and she had injuries on the left chest wall abdomen, left wrist joint painful, her vaginal walls were painful and slightly swollen. He further testified that the hymen was missing and there were blood stains on the vaginal wall. On high vaginal swab test done on the victim, PW2 testified that there was presence of blood clots due to minor bleeding. He further stated that the absence of hymen meant that there was penetration. He further produced copy of the P3 Form and treatment card which this Honourable Court has had the opportunity to carefully examine.
16. In light of the statutory definition and the binding authority of the Court of Appeal. The medical findings were consistent with penetration within the meaning of section 2 of the Act. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
17. On the issue of identification of the Appellant, the complainant while giving her evidence testified that the Appellant came to their home, called her took her hand to the maize plantation where he defiled her. That she screamed and that is when Cynthia came and assisted. She further testified that she knew the accused but she did not their home. On cross examination she reiterated the same.
18. In his defence, the Appellant did not dispute that he was well known to the complainant. Indeed, he testified that they were related and that he frequently visited the complainant's family. He further admitted that he had visited their home on the material day. His own evidence therefore confirmed that this was a case of recognition rather than identification of a stranger, thereby eliminating the possibility of mistaken identity.
19. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other ”.
20. The court is satisfied that the appellant was recognized by the minor, who knew him therefore it was proved that the appellant was the perpetrator.
21. On whether there was no corroboration as alleged by the Appellant. I note that the primary evidence against the Appellant was that of the complainant, whose testimony was further supported by the medical evidence of the clinical officer who examined her and produced the P3 Form and treatment notes.
22. Section 124 of the Evidence Act requires corroboration where the evidence of a child is the sole testimony implicating an accused person. However, the proviso to that section creates an exception in cases involving sexual offences, permitting a court to convict on the sole evidence of the victim if, for reasons recorded, it is satisfied that the victim is truthful. The section provides:
" Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act... the accused shall not be liable to be convicted on such evidence unless it is corroborated by other evidence implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth ."
23. In the present case, the prosecution case was not founded solely on the complainant's testimony. Her account was materially supported by the medical evidence of the doctor, which confirmed findings consistent with sexual assault.
24. Consequently, even without resort to the proviso to Section 124 of the Evidence Act, there existed independent evidence supporting the complainant's account. In any event, there is nothing on the record that indicates that trial court did not find the complainant to be a truthful witness, thereby satisfying the requirements of the proviso to Section 124.
25. In the circumstances of this case, the prosecution evidence sufficiently established the elements of the offence herein and I find no reason to depart from it.
26. On whether the Appellant raised the Defence of Alibi as alleged in his grounds of appeal, I have carefully perused the record, it is noteworthy to note that the Appellant's contention that he raised a defence of alibi is not borne out by the record. An alibi is a defence that an accused person was at a different place at the time the offence was committed, rendering it impossible for him to have committed the offence.
27. In the present case, the Appellant did not claim to have been elsewhere. On the contrary, he visited the complainant's home on the day of the incident, having been called by his cousin, although he stated that he did not find his cousin there. He simply denied any involvement in the offence and professed ignorance of the allegations against him. His evidence therefore constituted a mere denial rather than a defence of alibi.
28. It is therefore my considered view that the trial court duly considered the Appellant's defence alongside the prosecution evidence and upon my own re-evaluation of the record, I find no basis to fault that finding and therefore see no reason to interfere with the trial court's determination on the issue.
29. 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. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below and the Appellant was sentenced to Thirty (30) years’ imprisonments.
30. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR ) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful.
31. Consequently, by law, a person convicted of defilement under section 8(2) of the Sexual Offences Act ought to be sentenced to the mandatory life imprisonment. Any term sentence will be unconstitutional.
32. While the appellant argued that the sentence should be set aside and his appeal allowed on both conviction and sentencing, I note that the sentence imposed was a term sentence of Thirty (30) years imprisonment, which is fundamentally lower than the mandatory life sentence. Suffices it to state that it was a more lenient sentence than the mandatory sentence prescribed by statute.
33. The question that follows is what this appellate court should do. Ordinarily, this court ought to correct such an irregularity by imposing the statutory prescribed sentence. However, in this case, such an act will amount to an enhancement of the sentence from 30 year’s imprisonment to life sentence. For such enhancement, it is trite law that the appellant ought to have been given prior notice of enhancement. No notice was given to the appellant.
34. Accordingly, this court finds no basis for interfering with the sentence. Based on the above.
DISPOSITION
35. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction was sound and the sentence lawful.
b) The appeal against both conviction and sentence is dismissed in its entirety.
c) Save that pursuant to Section 333(2) of the Criminal Procedure Code, the sentence shall run from the date of the Appellant's arrest, the sentence imposed by the trial court is hereby affirmed .
It is so ordered
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026
HCCRA NO. E105 OF 2024 DENNIS ORWA ISAYA ALIAS ADENO VE REPUBLIC JUDGMENT Pg. 10