(Being an appeal from the judgment & conviction of Hon. R.M. Oanda SPM delivered on the 11/6/2025 in Winam SPMC in Sexual Offences Case No. E047 of 2024, R. vs Dexter Momanyi)
1. The appellant was charged with the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the charge were that, on diverse dates between July to 25/8/2024 at Manyatta Area in Kisumu Central sub-county within Kisumu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of SD a child aged 14 years.
3. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006.
4. The appellant pleaded not guilty and the matter proceeded to trial. The prosecution called four (4) witnesses while the appellant gave a sworn testimony.
5. In its judgment delivered on the 11/7/2025, the trial court found the appellant guilty of the main charge, convicted and sentenced him to serve 15 years’ imprisonment.
6. Dissatisfied by that decision, the appellant filed his petition of appeal dated 18/7/2025 raising sixteen (16) grounds which can be summarised as follows:
a) The learned trial magistrate erred both in law and fact in failing to appreciate that the charge and particulars set out in the charge sheet were inapplicable to the facts of the case as presented by the prosecution.
b) The learned trial magistrate erred both in law and fact in failing to appreciate that the prosecution failed to proof its case beyond reasonable doubt.
c) There was no medical evidence availed by the prosecution that could support the findings, ruling and the judgment of the trial court.
d) The learned trial magistrate failed to appreciate the several material contradictions in the prosecution case that raised a reasonable doubt that he ought to have resolved in favour of the appellant.
e) The trial magistrate erred in both law and fact in shifting the burden and incidence of proof to the appellant.
f) The sentence imposed upon the appellant is manifestly harsh and excessive taking into account the probation officer’s report filed in court.
7. In response to the appeal, the State filed a Notice of Enhancement of Sentence dated 1/11/2025 seeking to have the appellant’s sentence enhanced to the minimum sentence of 20 years provided in statute.
8. The parties agreed to file submissions in disposal of the appeal. The appellant submitted that the age of the complainant was not proven as the prosecution relied on the oral testimony of the complainant only without producing a baptismal card or birth certificate.
9. That the medical evidence adduced by the prosecution did not support allegations of penetration and further the evidence on his identification was uncorroborated.
10. On its part, the State submitted that the age of the complainant was proved by her oral evidence and that the appellant failed to raise a defence as provided under section 11 (2) of the Sexual Offences Act. That penetration was proved by medical evidence and corroborated by the evidence of the complainant. That identification was by recognition as the complainant was staying with the appellant, a fact the appellant confirmed in cross-examination. That the sentence meted out was legal.
11. This being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to arrive at its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.)
12. The complainant testified as Pw1. It was her testimony that in July 2024 she got pregnant after being raped by the appellant. That she stayed at Olivia’s place in Elgon together with the appellant, Olivia’s children and brother. That she could not tell how many times she slept with the appellant but that the appellant failed to use protection. That she was 4 months pregnant at the time of her testimony and had not slept with anyone else.
13. In cross-examination, the complainant testified that the appellant used to go to work during the daytime but on other days he did not go to work and they remained in the house alone.
14. Pw2 Vivian Atieno, the complainant’s mother testified that from 2023, the complainant stayed with her friend Olivia as her husband did not welcome her. That the complainant was born on the 2/2/2009. That Olivia informed her that the complainant wanted to do a Salon course. That when she went to visit the complainant at Olivia’s home, she noticed that she was pregnant so she reported the matter at Kondele Police Station and after examination at JOOTRH, it was confirmed that the complainant was 16 weeks pregnant. In cross-examination, Pw2 testified that she was informed that the appellant was known as Dexter Momanyi.
15. Pw3 David Owino, a clinical officer at JOOTRH testified that he examined the complainant after she was brought to the hospital on the 30/9/2024 with a history of suspected defilement. That he learnt that sometime in mid-July 2024, the appellant who stayed with the complainant grabbed her and took her to the bedroom and removed her inner wear and defiled her.
16. That since then the appellant had been engaging in sexual intercourse with the last incident being on the 25/8/2024 at 4pm. That on physical exam, the complainant exhibited a broken hymen and whitish discharge and on testing through ultra sound, she was found to be 16 weeks pregnant. He produced the P3 and PRC forms as PExh1 & 2, respectively.
17. In cross-examination, Pw3 testified that the appellant was never presented to him for examination and that the complainant mentioned the appellant as her defiler.
18. Pw4 No. 22222459 Sgt. Rael Akoth Ouko testified that on the 3/9/2024, a report was made by the complainant accompanied by her mother who had come from JOOTRH. That the child was aged 14 years old and was pregnant. That upon investigation, it was established that the complainant had been staying with the appellant and his sister and that in 2024, the appellant used to defile her with the last time being in August 2024.
19. When placed on his defence, the appellant gave a sworn testimony. He testified that whereas the complainant was examined, he was not examined so as to establish whether he committed the offence. That the statement of the doctor and complainant over her age were in conflict and further a Birth Certificate was not produced. That the complainant’s age was reduced in an attempt to get her justice. That the doctor failed to say anything about his explanation.
20. In cross-examination, he stated that he used to stay with his sister Olivia and the complainant. That he could not tell the complainant’s age and did not know her before.
21. Dw2 Olivia Momanyi, the appellant’s sister confirmed that she used to stay with the appellant and the complainant. That she used to buy the complainant pads but in June she did not get her periods. That she informed the complainant’s mother and the complainant informed them that she was pregnant.
22. In cross-examination, she stated that she used to discipline the complainant as her guardian during her stay with her. That the complainant went to a hair dressing course and that she paid her fees.
23. It is on the foregoing evidence that the trial court found the appellant guilty, convicted and sentenced him accordingly.
24. Section 8 (1) as read with section 8 (3) of the sexual Offences Act establishes the offence of defilement as follows: -
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(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.”
25. The specific elements of the offence of defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: -
a) Age of the complainant;
b) Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and
c) Positive identification of the perpetrator.
26. The age of the victim of defilement is an essential element because defilement is a sexual offence committed against a child who under the Children’s Act is a person below the age of 18 years. In addition, the age of the child is an aggravating factor for purposes of determining the sentence to be imposed as per the penalty clauses in the Sexual Offences Act. The younger the child, the more severe the sentence.
27. In this case, the complainants mother testified that the complainant was born on the 2/2/2009 though there was no evidence of the same vide a Birth Certificate. That placed the age of the complainant as being about 16 years as at the time of the alleged offence.
28. Pw3, the Clinical Officer, on his part testified that the PRC and P3 form for the complainant showed that she was 13 years old while Pw4, the investigating officer, testified that the complainant was 14 years old. The charge sheet read that the complainant was 14 years old.
29. The age of the minor herein could be proved by documentary evidence, such as a birth certificate, baptism card, or by oral evidence if the child is sufficiently intelligent, or the evidence of the parents or guardian, or medical evidence, among other credible forms of proof.
30. In Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) as quoted in the case of JWM v Republic [2026] KEHC 674 (KLR) the court held: -
‘‘… the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof….”
31. Medical evidence is paramount in determining the age of the victim, and the doctor is the only person who can professionally determine the age of the victim if there is doubt in respect to other types of proof. In Francis Omuroni v Uganda, CR. A 2/2000 it was held: -
“In defilement cases, 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 a birth certificate, the victim’s parents or guardian and by observation and common sense. ….”
32. In Richard Wahome Chege v Republic [2014] eKLR, the Court of Appeal stated that;
“12. On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself.”
33. So was age proved? The answer is in the affirmative for the following reasons: Firstly, the trial court had the full benefit of seeing and hearing the minor and conducted a detailed voire dire examination.
34. Secondly, the mere absence of a birth certificate or other documentary evidence does not mean the age was not proved. In Martin Wanyonyi Nyongesa v Republic, Eldoret, Criminal Appeal 661 of 2010 [2015] eKLR, it was held as follows: -
“From the evidence, besides the evidence of PC Paul Mwangi, who we consider was incompetent to ascertain the child's age, all other evidence indicated that ZN was either 12, 13 or 15 years. When this is considered against the backdrop of the charge sheet which specified the complainant's age as 12 years, it is evident that the ages indicated, all fell within the age bracket specified under section 8 (1) and (3) of the Act, and concerned the defilement of a child within the particular age bracket. As such, we find that, the charge and the sentence preferred were sound, and no prejudice could be held to have been suffered by the appellant. At any rate, we consider that the discrepancies are not material and curable under Section 382 of the Criminal Procedure Code. [underlining added].”
35. Accordingly, I find that Pw1 was aged between 14 and 16 years at the time of the offence. This will still put the offence under section 8 (1) and (3) or (4) of the Sexual Offences Act. Granted the position, the charge sheet erroneously placed the age of the complainant at 14 years old instead of 15 or probably 16. I say 16 years because, apart from the oral testimony of the Pw2 of the birth day of the complainant being 2/2/2009, there was no other evidence of the exact age of the complainant. It Oscillated between 13 and 15.6years.
36. On penetration, section 2 of the Act defines penetration as follows: -
“the partial or complete insertion of the genital organs of a person into the genital organ of another person.”
37. The complainant testified that the appellant slept with her severally and she could not tell how many times and further, that he did not use protection all the time. That the appellant threatened to beat her in case she divulged the same. On this issue, it has been held in several occasions that a fact of rape or defilement can be proved by oral evidence and circumstantial evidence without necessary calling for medical evidence. This is in line with section 124 of the Evidence Act which states that corroboration is not necessary in sexual offences.
38. In the present case, the findings of the clinical officer who testified as Pw3 was that the complainant had been penetrated. That the hymen was broken and there was a whitish discharge. The appellant contended that he was not examined to confirm that he was the one who defiled the complainant and that there was no DNA test to confirm that he was responsible for the complainant’s pregnancy.
39. In Evans Wanjala Wanyonyi v Republic [2019] eKLR, the court held that:
“An essential ingredient in the offence of defilement is penetration and not impregnation.”
40. In the case of Williamson Sowa Mbwanga v Republic (2016) eKLR the Court of Appeal held that: -
“... it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence, does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred Vs. Uganda, CR. APP. No. 139 of 2001 … It is partly for this reason that section 36(1) of the Sexual Offences Act is couched in permissive rather than mandatory terms, allowing the court, if it deems it necessary for purposes of gathering evidence to determine whether or not the accused person committed the offence, to order that samples be taken from him for forensic, scientific, or DNA testing.”
41. I find that the burden of proof was attained in this case. Pw1 stated that she had unprotected sexual intercourse with the appellant on numerous occasions. The age of the complainant was confirmed as being below 18 years old. So legal consent was not obtained. In the circumstances, I find that the prosecution proved the element of penetration beyond reasonable doubt.
42. The final issue is whether the appellant was positively identified as the perpetrator. The appellant was well known to the complainant who testified that he spent time with the appellant in the same house. The appellant in his own testimony admitted as much. From the foregoing, it is clear that the appellant was not a stranger to the victim having lived together under the same roof for about two months.
43. The accused defence was a denial. He attacked the prosecution’s case on the discrepancies in the complainant’s age which I have already addressed myself to. In my view, the appellant’s defence failed to raise any reasonable doubt regarding the evidence presented by the prosecution. There was no direct denial that he had had sexual intercourse with the complainant. If there had been such a denial, then a doubt could have been said to have been raised taking into consideration the duration of the alleged acts. I thus find that the prosecution proved its case beyond reasonable doubt.
44. The appellant complained that his conviction relied on contradictory evidence specifically of the complainant’s age. I partly agree with the appellant that there were inconsistencies in the evidence of the complainant’s age. However, as herein above found, they were minor and immaterial. Furthermore, and as stated by the Court of Appeal, in any trial there are bound to be such discrepancies. See Joseph Maina Mwangi v Republic, Criminal Appeal No. 73 of 1993.
45. In any case, the said inconsistencies and contradictions do not warrant any interference with the conclusions arrived at by the trial court. See the case of MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment).
46. Taking all the foregoing into consideration, I find that the appellant’s conviction was safe. I uphold the trial court’s conviction of the appellant.
47. Turning to the issue of sentence, the appellant termed his sentence as harsh and excessive. The State filed a Notice of Enhancement seeking to have the appellant’s sentence enhanced to the minimum provided in the law of 20 years. On the 17/11/2025, the appellant’s Counsel elected to proceed with the appeal despite warning of the Notice of Enhancement.
48. Section 8(3) of the Sexual Offences Act provides: -
“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.”
49. The trial court sentenced the appellant to 15 years’ imprisonment. That is a sentence for defilement of a child of between 16 and 18 years. Whereas in recent years there has been jurisprudence emerging from the High Court and the Court of Appeal to the effect that minimum mandatory sentences prescribed in the Sexual Offences Act were unconstitutional to the extent that they fettered the court’s discretion in imposing appropriate sentences depending on the peculiar circumstances of each case, the Supreme Court in Republic v Joshua Gichuki Mwangi Petition E018 of 2023 overruled that position.
50. In the present case, I hesitate to enhance the sentence for the contradictions in the age of the complainant. She could have been anywhere between 13 and 16 years. That doubt I resolve it in favour of the appellant and reject the enhancement of the sentence.
51. The Court therefore finds that the appellant’s appeal is without merit and is hereby dismissed.
It is so decreed.
1. The appellant was charged with the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the charge were that, on diverse dates between July to 25/8/2024 at Manyatta Area in Kisumu Central sub-county within Kisumu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of SD a child aged 14 years.
3. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006.
4. The appellant pleaded not guilty and the matter proceeded to trial. The prosecution called four (4) witnesses while the appellant gave a sworn testimony.
5. In its judgment delivered on the 11/7/2025, the trial court found the appellant guilty of the main charge, convicted and sentenced him to serve 15 years’ imprisonment.
6. Dissatisfied by that decision, the appellant filed his petition of appeal dated 18/7/2025 raising sixteen (16) grounds which can be summarised as follows:
a) The learned trial magistrate erred both in law and fact in failing to appreciate that the charge and particulars set out in the charge sheet were inapplicable to the facts of the case as presented by the prosecution.
b) The learned trial magistrate erred both in law and fact in failing to appreciate that the prosecution failed to proof its case beyond reasonable doubt.
c) There was no medical evidence availed by the prosecution that could support the findings, ruling and the judgment of the trial court.
d) The learned trial magistrate failed to appreciate the several material contradictions in the prosecution case that raised a reasonable doubt that he ought to have resolved in favour of the appellant.
e) The trial magistrate erred in both law and fact in shifting the burden and incidence of proof to the appellant.
f) The sentence imposed upon the appellant is manifestly harsh and excessive taking into account the probation officer’s report filed in court.
7. In response to the appeal, the State filed a Notice of Enhancement of Sentence dated 1/11/2025 seeking to have the appellant’s sentence enhanced to the minimum sentence of 20 years provided in statute.
8. The parties agreed to file submissions in disposal of the appeal. The appellant submitted that the age of the complainant was not proven as the prosecution relied on the oral testimony of the complainant only without producing a baptismal card or birth certificate.
9. That the medical evidence adduced by the prosecution did not support allegations of penetration and further the evidence on his identification was uncorroborated.
10. On its part, the State submitted that the age of the complainant was proved by her oral evidence and that the appellant failed to raise a defence as provided under section 11 (2) of the Sexual Offences Act. That penetration was proved by medical evidence and corroborated by the evidence of the complainant. That identification was by recognition as the complainant was staying with the appellant, a fact the appellant confirmed in cross-examination. That the sentence meted out was legal.
11. This being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to arrive at its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.)
12. The complainant testified as Pw1. It was her testimony that in July 2024 she got pregnant after being raped by the appellant. That she stayed at Olivia’s place in Elgon together with the appellant, Olivia’s children and brother. That she could not tell how many times she slept with the appellant but that the appellant failed to use protection. That she was 4 months pregnant at the time of her testimony and had not slept with anyone else.
13. In cross-examination, the complainant testified that the appellant used to go to work during the daytime but on other days he did not go to work and they remained in the house alone.
14. Pw2 Vivian Atieno, the complainant’s mother testified that from 2023, the complainant stayed with her friend Olivia as her husband did not welcome her. That the complainant was born on the 2/2/2009. That Olivia informed her that the complainant wanted to do a Salon course. That when she went to visit the complainant at Olivia’s home, she noticed that she was pregnant so she reported the matter at Kondele Police Station and after examination at JOOTRH, it was confirmed that the complainant was 16 weeks pregnant. In cross-examination, Pw2 testified that she was informed that the appellant was known as Dexter Momanyi.
15. Pw3 David Owino, a clinical officer at JOOTRH testified that he examined the complainant after she was brought to the hospital on the 30/9/2024 with a history of suspected defilement. That he learnt that sometime in mid-July 2024, the appellant who stayed with the complainant grabbed her and took her to the bedroom and removed her inner wear and defiled her.
16. That since then the appellant had been engaging in sexual intercourse with the last incident being on the 25/8/2024 at 4pm. That on physical exam, the complainant exhibited a broken hymen and whitish discharge and on testing through ultra sound, she was found to be 16 weeks pregnant. He produced the P3 and PRC forms as PExh1 & 2, respectively.
17. In cross-examination, Pw3 testified that the appellant was never presented to him for examination and that the complainant mentioned the appellant as her defiler.
18. Pw4 No. 22222459 Sgt. Rael Akoth Ouko testified that on the 3/9/2024, a report was made by the complainant accompanied by her mother who had come from JOOTRH. That the child was aged 14 years old and was pregnant. That upon investigation, it was established that the complainant had been staying with the appellant and his sister and that in 2024, the appellant used to defile her with the last time being in August 2024.
19. When placed on his defence, the appellant gave a sworn testimony. He testified that whereas the complainant was examined, he was not examined so as to establish whether he committed the offence. That the statement of the doctor and complainant over her age were in conflict and further a Birth Certificate was not produced. That the complainant’s age was reduced in an attempt to get her justice. That the doctor failed to say anything about his explanation.
20. In cross-examination, he stated that he used to stay with his sister Olivia and the complainant. That he could not tell the complainant’s age and did not know her before.
21. Dw2 Olivia Momanyi, the appellant’s sister confirmed that she used to stay with the appellant and the complainant. That she used to buy the complainant pads but in June she did not get her periods. That she informed the complainant’s mother and the complainant informed them that she was pregnant.
22. In cross-examination, she stated that she used to discipline the complainant as her guardian during her stay with her. That the complainant went to a hair dressing course and that she paid her fees.
23. It is on the foregoing evidence that the trial court found the appellant guilty, convicted and sentenced him accordingly.
24. Section 8 (1) as read with section 8 (3) of the sexual Offences Act establishes the offence of defilement as follows: -
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(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.”
25. The specific elements of the offence of defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: -
a) Age of the complainant;
b) Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and
c) Positive identification of the perpetrator.
26. The age of the victim of defilement is an essential element because defilement is a sexual offence committed against a child who under the Children’s Act is a person below the age of 18 years. In addition, the age of the child is an aggravating factor for purposes of determining the sentence to be imposed as per the penalty clauses in the Sexual Offences Act. The younger the child, the more severe the sentence.
27. In this case, the complainants mother testified that the complainant was born on the 2/2/2009 though there was no evidence of the same vide a Birth Certificate. That placed the age of the complainant as being about 16 years as at the time of the alleged offence.
28. Pw3, the Clinical Officer, on his part testified that the PRC and P3 form for the complainant showed that she was 13 years old while Pw4, the investigating officer, testified that the complainant was 14 years old. The charge sheet read that the complainant was 14 years old.
29. The age of the minor herein could be proved by documentary evidence, such as a birth certificate, baptism card, or by oral evidence if the child is sufficiently intelligent, or the evidence of the parents or guardian, or medical evidence, among other credible forms of proof.
30. In Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) as quoted in the case of JWM v Republic [2026] KEHC 674 (KLR) the court held: -
‘‘… the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof….”
31. Medical evidence is paramount in determining the age of the victim, and the doctor is the only person who can professionally determine the age of the victim if there is doubt in respect to other types of proof. In Francis Omuroni v Uganda, CR. A 2/2000 it was held: -
“In defilement cases, 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 a birth certificate, the victim’s parents or guardian and by observation and common sense. ….”
32. In Richard Wahome Chege v Republic [2014] eKLR, the Court of Appeal stated that;
“12. On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself.”
33. So was age proved? The answer is in the affirmative for the following reasons: Firstly, the trial court had the full benefit of seeing and hearing the minor and conducted a detailed voire dire examination.
34. Secondly, the mere absence of a birth certificate or other documentary evidence does not mean the age was not proved. In Martin Wanyonyi Nyongesa v Republic, Eldoret, Criminal Appeal 661 of 2010 [2015] eKLR, it was held as follows: -
“From the evidence, besides the evidence of PC Paul Mwangi, who we consider was incompetent to ascertain the child's age, all other evidence indicated that ZN was either 12, 13 or 15 years. When this is considered against the backdrop of the charge sheet which specified the complainant's age as 12 years, it is evident that the ages indicated, all fell within the age bracket specified under section 8 (1) and (3) of the Act, and concerned the defilement of a child within the particular age bracket. As such, we find that, the charge and the sentence preferred were sound, and no prejudice could be held to have been suffered by the appellant. At any rate, we consider that the discrepancies are not material and curable under Section 382 of the Criminal Procedure Code. [underlining added].”
35. Accordingly, I find that Pw1 was aged between 14 and 16 years at the time of the offence. This will still put the offence under section 8 (1) and (3) or (4) of the Sexual Offences Act. Granted the position, the charge sheet erroneously placed the age of the complainant at 14 years old instead of 15 or probably 16. I say 16 years because, apart from the oral testimony of the Pw2 of the birth day of the complainant being 2/2/2009, there was no other evidence of the exact age of the complainant. It Oscillated between 13 and 15.6years.
36. On penetration, section 2 of the Act defines penetration as follows: -
“the partial or complete insertion of the genital organs of a person into the genital organ of another person.”
37. The complainant testified that the appellant slept with her severally and she could not tell how many times and further, that he did not use protection all the time. That the appellant threatened to beat her in case she divulged the same. On this issue, it has been held in several occasions that a fact of rape or defilement can be proved by oral evidence and circumstantial evidence without necessary calling for medical evidence. This is in line with section 124 of the Evidence Act which states that corroboration is not necessary in sexual offences.
38. In the present case, the findings of the clinical officer who testified as Pw3 was that the complainant had been penetrated. That the hymen was broken and there was a whitish discharge. The appellant contended that he was not examined to confirm that he was the one who defiled the complainant and that there was no DNA test to confirm that he was responsible for the complainant’s pregnancy.
39. In Evans Wanjala Wanyonyi v Republic [2019] eKLR, the court held that:
“An essential ingredient in the offence of defilement is penetration and not impregnation.”
40. In the case of Williamson Sowa Mbwanga v Republic (2016) eKLR the Court of Appeal held that: -
“... it is patently clear to us that whilst paternity of PM’s child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved. The fact, as happens in many cases, that a pregnancy does not result from conduct that would otherwise constitute a sexual offence, does not mean that the sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PM’s child, which is a different question from whether the appellant had defiled PM. As the Court of Appeal of Uganda rightly stated, in the sexual offence of defilement, the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence and that it is not necessary that the hymen be ruptured. (See Twehangane Alfred Vs. Uganda, CR. APP. No. 139 of 2001 … It is partly for this reason that section 36(1) of the Sexual Offences Act is couched in permissive rather than mandatory terms, allowing the court, if it deems it necessary for purposes of gathering evidence to determine whether or not the accused person committed the offence, to order that samples be taken from him for forensic, scientific, or DNA testing.”
41. I find that the burden of proof was attained in this case. Pw1 stated that she had unprotected sexual intercourse with the appellant on numerous occasions. The age of the complainant was confirmed as being below 18 years old. So legal consent was not obtained. In the circumstances, I find that the prosecution proved the element of penetration beyond reasonable doubt.
42. The final issue is whether the appellant was positively identified as the perpetrator. The appellant was well known to the complainant who testified that he spent time with the appellant in the same house. The appellant in his own testimony admitted as much. From the foregoing, it is clear that the appellant was not a stranger to the victim having lived together under the same roof for about two months.
43. The accused defence was a denial. He attacked the prosecution’s case on the discrepancies in the complainant’s age which I have already addressed myself to. In my view, the appellant’s defence failed to raise any reasonable doubt regarding the evidence presented by the prosecution. There was no direct denial that he had had sexual intercourse with the complainant. If there had been such a denial, then a doubt could have been said to have been raised taking into consideration the duration of the alleged acts. I thus find that the prosecution proved its case beyond reasonable doubt.
44. The appellant complained that his conviction relied on contradictory evidence specifically of the complainant’s age. I partly agree with the appellant that there were inconsistencies in the evidence of the complainant’s age. However, as herein above found, they were minor and immaterial. Furthermore, and as stated by the Court of Appeal, in any trial there are bound to be such discrepancies. See Joseph Maina Mwangi v Republic, Criminal Appeal No. 73 of 1993.
45. In any case, the said inconsistencies and contradictions do not warrant any interference with the conclusions arrived at by the trial court. See the case of MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment).
46. Taking all the foregoing into consideration, I find that the appellant’s conviction was safe. I uphold the trial court’s conviction of the appellant.
47. Turning to the issue of sentence, the appellant termed his sentence as harsh and excessive. The State filed a Notice of Enhancement seeking to have the appellant’s sentence enhanced to the minimum provided in the law of 20 years. On the 17/11/2025, the appellant’s Counsel elected to proceed with the appeal despite warning of the Notice of Enhancement.
48. Section 8(3) of the Sexual Offences Act provides: -
“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.”
49. The trial court sentenced the appellant to 15 years’ imprisonment. That is a sentence for defilement of a child of between 16 and 18 years. Whereas in recent years there has been jurisprudence emerging from the High Court and the Court of Appeal to the effect that minimum mandatory sentences prescribed in the Sexual Offences Act were unconstitutional to the extent that they fettered the court’s discretion in imposing appropriate sentences depending on the peculiar circumstances of each case, the Supreme Court in Republic v Joshua Gichuki Mwangi Petition E018 of 2023 overruled that position.
50. In the present case, I hesitate to enhance the sentence for the contradictions in the age of the complainant. She could have been anywhere between 13 and 16 years. That doubt I resolve it in favour of the appellant and reject the enhancement of the sentence.
51. The Court therefore finds that the appellant’s appeal is without merit and is hereby dismissed.
It is so decreed.