(Being an Appeal from the original conviction and sentence contained in the Judgement of Hon. Serem (Resident Magistrate) in Kisumu Magistrate’s Criminal Case No. E028 of 2021
INTRODUCTON AND BACKGROUND
1. This is an appeal against the judgement delivered in the Magistrates Court at Kisumu by Hon, G.C. Serem on 5 th December, 2023, in Republic vs Edga Mwambuki Sorongo. The charges against the accused were instituted through a charge sheet dated 22 nd July 2021.
2. The Accused was charged with Defilement, contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006; (Count 1) that on the 19 th of July 2021 at Kanyakwar Area in Kisumu Central Sub-County within Kisumu County, the accused intentionally caused his penis to penetrate the vagina of BAO a child aged 8 years.
3. The Accused was also charged with Committing an Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006; (Count 2) that on the 19 th of July 2021 at Kanyakwar Area in Kisumu Central Sub-County within Kisumu County, intentionally touched the vagina of BAO a child aged 8 years with his penis.
4. The accused entered a plea of not guilty and he was released on bond of Kshs. 50,000/= with a surety of a like sum. The matter proceeded to full trial and the prosecution proceeded by calling a total of 6 witnesses with their testimony on record.
5. Through its judgement dated 5 th December 2023, the trial court analyzed the evidence produced and relied upon by both the prosecution and the accused. The trial court placed reliance on Section 8 (1) and Section 11(1) of the Sexual offences Act while bringing out the ingredients of age of the complainant, proof of penetration, section 2(1) and positive identification of the assailant as the specific elements of the offence of defilement which were highlighted in the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013, and George Opondo Olunga V. Republic [2016] eKLR.
6. On the aspect of age, the trial court relied on the birth certificate that was produced by PW6 as exhibit 3 to confirm that the victim was born on 21 st December 2012. According to the abstract, the ordeal occurred on 19 th July 2021, hence the evidence that the victim was 9 years and hence she was a minor.
7. In addition, the court analyzed the element of penetration according to section 2(1) of the Sexual Offences Act as “ partial or complete insertion of the genital organs of a person into the genital organ of another .” The same was highlighted in the case of Mark Oiruri Mose v R [2013] eKLR. The court pronounced that there was inevitable conclusion from the analysis of evidence that there was ample evidence to prove that penetration did occur. The conclusion followed that, the victim testified and stated that the accused person took her to the bush and he removed her panty and he lay on her. PW4-Eppy Awour a registered clinician at JOOTRH stated that the survivor said that she was in pain and had lacerations on the 2 nd , 3 rd , and 9 th Oclock, she produced the PRC form, and on cross-examination, she stated that the accused defiled the survivor. Equally, PW5 produced P3 Form confirming that the hymen was broke. In defence, on 25 th September 2023, the accused remained silent and failed to give any testimony and PW4 was very clear that penetration occurred.
8. On the element of identification, the trial court pronounced itself that the accused person had been identified without any doubt as the accuser and the penetrator of the offence. PW1, PW2 and PW3 who were all witnesses identified the accused person as the perpetrator, confirmed that he was a villager, and that they had all seen him before. Similarly, the complainant was on record for having known the accused very well as he was her father’s friend. The witnesses evidence remained the same during cross-examination thus amounting to evidence of recognition which the court held to be many times stronger than that of identification. This was highlighted in Mercy Chelangat v. Republic [2022] eKLR.
9. The trial court therefore pronounced that the prosecutor had proved all ingredients of defilement beyond reasonable doubt and provided as follows: -
The accused is hereby found guilty of the offence of defilement under section 8(1) (3) of the sexual offence Act and is convicted as per section 215 of the Criminal Procedure Code.
The accused was convicted accordingly under section 215CPC. Particularly, the court considered mitigation and stated that the accused is imprisoned for 25 years imprisonment starting from 4 th December 2023.
10. The accused, being dissatisfied by the outcome of the said Judgement, appealed on the same, filing a Petition of Appeal dated 26 th February 2025, preferring the grounds of appeal as follows: -
1. That the learned trial magistrate erred in fact and in law by failing to consider that the ingredients forming the offences were not proved to the required standard.
2. That the trial court erred in law and in fact in not weighing the conflicting evidence in the prosecution case that was/is inconsequential to conviction.
3. That the trial court erred in law and in fact in not appreciating the appellant’s cogent defence that overwhelmed the prosecutions case.
4. That the learned trial magistrate erred in law and facts by failing to deal with contradictions and inconsistencies in prosecution evidence
5. That, more grounds to be adduced after perusal of court proceedings.
REASONS WHEREOF the Appellant prays that this Honourable court allows this appeal to its entirety and: -
1. Quash the conviction
2. Set aside the sentence and;
3. Appellant be at liberty
9. This is the first appellate court and as held in the matter of Okeno v R (1972) EA 32, the Court of Appeal for East Africa laid down that the duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify.
SUBMISSIONS BY THE PARTIES
10. The Appellant, vide submissions dated 5 th January, 2026, raised two issues that the trial court erred in law and in fact in not making a finding that penetration was not proved beyond reasonable doubt standard, and that the trial court erred in law and in fact in not informing the appellant his right to legal representation and not according the advocate on the state expenses.
11. The Appellant submitted that the trial court erred in law and fact in failing to find that penetration had not been proved beyond reasonable doubt. He argued that the evidence of epithelial cells found in the complainant’s urine, as testified, merely indicated friction and did not constitute proof of penetration. Reliance was placed on Benard Opiyo Alias Jemaa CRA No. 13 of 2019 where the presence of epithelial cells was held to only prove that there was some friction in the vagina. The Appellant contended that it was not concrete proof of penetration and that the trial court improperly accepted the clinical officer’s evidence without sufficient medical proof of penetration. Citing P.K.W v Republic (2012) eKLR , he submitted that the mere absence of a hymen cannot be taken as proof of defilement and that the burden of proving the cause of the hymen’s loss rested upon the prosecution.
12. The Appellant further submitted that there were significant contradictions between the medical evidence presented by Clinical Officer PW4 in the PRC Form and that of Dr. Lucy Omboko (PW5) in the P3 Form concerning the complainant’s genitalia. While the clinical officer stated that “the outer genitalia there were….2,3, 9, o’clock”, Doctor Lucy Omboko much qualified and experienced in her p3 form and in court PW5 stated that “her private parts were injured”. The Appellant argues that the contradiction is material and goes to the root of the case which the trial court failed to take consideration of, and the prosecutor failed to provide an explanation about and fill the gaps.
13. The Appellant argues in favour of the evidence of PW5 over that of PW4 on account of PW5’s superior qualifications and experience, thus arguing that there was no penetration. He cites Kimaju Mbuvi T/A Kimatu Mbuvi & Bros v Augustine Munyao Kioko (2007) EA 139 , for the proposition that medical evidence is only expert opinion and is not binding on the court, which may reject it where there is a proper and cogent basis for doing so. He further contends that PW4 was less qualified than PW5 and therefore PW4s opinion should not have been preferred.
14. The Appellant further argues that the trial court failed to comply with section 124 of the Evidence Act by convicting him without sufficient corroboration. He submits that the court was required to interrogate the reliability of the complainant’s evidence and evidence of other witnesses. In support of this proposition, he relies on South African case of Estate Kaluza v. Braeuer 1926 AD 243 , which emphasized the need for courts to carefully assess the reliability of a complainant and corroborating witnesses.
15. The Appellant pointed to the evidence of the village elder, Leornard Otula, who testified that after making inquiries, the complainant’s mother stated that the allegations had been planned and that she had not witnessed any defilement. The Appellant argues that this evidence cast doubt on the prosecution case.
16. He also submitted that PW1 did not describe the act alleged to have caused penetration with sufficient clarity to meet the standard of proof beyond reasonable doubt. According to him, PW4 testified that the complainant had reported being dragged into a bush, kissed, told that the accused loved her, penetrated, and threatened with death. He argued that these details were absent from the testimonies of PW1, PW2, and PW3, and therefore amounted to a fabrication.
17. The Appellant further challenges PW6’s testimony arguing that PW6 claimed that the complainant’s sister found him with the complainant while he was half naked and had removed his shirt, and that the complainant then informed her sister of what had happened. PW6 also stated that the complainant reported that the man had covered her mouth during the incident. The Appellant argued that these allegations did not appear in PW1s testimony. He maintained that PW1 merely stated that she felt pain, ran away, left her slippers behind, and that Edgar also ran away. He therefore contended that PW6 was framing him and introducing facts not given by the complainant in court.
18. The Appellant also highlighted inconsistencies between the evidence of PW1 and PW2. He noted that PW2 testified that she found the complainant crying when she returned home and asked what had happened. However, PW1 did not testify that her mother found her crying or that she reported the incident to her mother. Instead, PW1 stated that her sister Liz disclosed what she had been told.
19. Further, the Appellant questioned the prosecution’s account of where the incident occurred. He argued that PW6 ‘s evidence suggested that Liz found him naked with the complainant in a house, yet other evidence suggested that the incident took place in a bush. He therefore contended that the prosecution’s evidence was contradictory and unreliable, asking rhetorically whether, if Liz had indeed found him naked with the complainant in the house, she would have allowed the complainant to follow him into the bush.
20. The Appellant submits that PW1 stated that the incident occurred on a Saturday when Edgar came home and that they were at home with her sister, whereas PW2 stated that it occurred on a Monday after she had gone to work. PW6 stated that it occurred on a, Monday after she had gone to work. PW6, on the other hand testified that PW1 told her she had come from school. According to the appellant, these contradictions raised unanswered questions as to whether the incident occurred on a Saturday or Monday, whether the complainant was at home or from school, and whether their mother had left them at home or they had gone to school.
21. The Appellant further contended that PW1 testified that she was asked to pick a bottle and follow the accused, while PW4, PW5 and PW6 stated that PW1 had told them that the appellant asked them to go and collect her father’s belongings. Relying on Ndungu Kimani V. Republic (1979) KLR 283 , the appellant submitted that these contradictions undermined the prosecution case. He also argued that two persons mentioned by PW1, namely Gabby and Liz (PW1’s sister, were not called as witnesses despite capable of corroborating the complainant’s account.
22. The Appellant further submitted that the complainant’s evidence was unsworn and uncorroborated and that the trial court failed to indicate the complainant’s demeanor or provide reasons for believing her evidence. Citing Amber May v. Republic (1981) KLR, Oloo v Republic (2009) KLR, and Joh Cardon Vayner v. Republic & 2 Others (2001) eKLR , he argued that the conviction was improperly founded on uncorroborated evidence and that the court failed to record reasons for accepting PW1’s testimony as truthful.
23. On the last issue, the Appellant submitted that the trial court erred in law and fact by failing to inform the Appellant of his right to legal representation and by not providing him with an advocate at State expense. He argued that he only cross-examined witnesses and did not adequately present his defence because he was nervous, confused and unable to bring out matters favourable to him or expose weaknesses in the prosecution case. He further stated that he lacked sufficient intelligence and legal knowledge to conduct his defence effectively, and consequently suffered substantial injustice due to the absence of legal representation at state expense.
24. The Respondent filed their submissions solely on the issue that the trial court failed to observe that the prosecution failed to prove its case beyond reasonable doubt as required by law. The Respondent submitted that in criminal cases, the prosecution bears the burden of establishing all the essential elements of the offence beyond a reasonable doubt. It was contended that the prosecution presented comprehensive evidence, including witness testimonies and documentary evidence, which collectively proved the charges against the appellant beyond reasonable doubt.
25. The Respondent further submitted that under Section 8(1) of the Sexual Offences Act, the prosecution was required to prove beyond reasonable doubt the age of the complainant, proof of penetration as defined under Section 2(1) of the Sexual Offences Act, and positive identification of the assailant.
26. The Respondent relied on Charles Wamukoya Karani v Republic (Criminal Appeal No. 72 of 2013), where the court emphasized that the critical ingredients of the offence of defilement were the complainant’s age, proof of penetration, and positive identification of the assailant. Reliance was also placed on George Opondo Olunga v Republic [2016] eKLR, which reiterated that the ingredients of defilement included identification or recognition of the offender, penetration, and the victim’s age. The Respondent further cited Mark Oinuri Mose v Republic [2013] eKLR , where the court held that a complete sexual act or the presence of spermatozoa was not required to prove penetration and that surface penetration was sufficient.
27. On the age of the complainant, the Respondent submitted that a birth certificate (exhibit 3), produced by PW6, confirmed that the complainant was born on 21 st December 2012. Since the offence occurred on 19 th July 2021, the complainant was 9 years old at the time of the incident.
28. Regarding penetration, the Respondent submitted that the complainant testified that the accused took her to the bush, removed their clothing, and lay on her. PW4, a clinician at JOOTRH, testified that the survivor reported pain and lacerations, and a PRC form was produced in evidence, and was very clear that penetration did occur. PW5 also produced a P3 form confirming that the complainant’s hymen was broken. It was submitted that the trial court found there was ample evidence of penetration.
29. On identification, the Respondent submitted that PW1, PW2, and PW3 identified the accused as the perpetrator and stated that he was a villager whom they had seen before. The complainant also knew the accused well as her father’s friend. It was further submitted that their testimonies remained consistent during cross-examination.
30. The Respondent further submitted that the learned magistrate evaluated the evidence and found it to be cogent, consistent, and reliable in establishing all the essential elements of the offence. It was submitted that the decision was based on the cumulative weight of the evidence and not on speculation. Consequently, the magistrate correctly concluded that the prosecution had proved its case beyond a reasonable doubt.
31. In light of the foregoing, the Respondent respectfully urged the Honourable court to dismiss the appeal and uphold the conviction and sentence, contending that the magistrate acted in accordance with the law and that the conviction was consistent with both the law and the gravity of the offence.
ISSUES FOR DETERMINATION
32. Having reviewed the pleadings from both parties and the determination from the lower court, the following issues need to be addressed: -
i. Whether the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt.
ii. Whether the prosecution evidence was materially inconsistent or contradictory, and if so, whether those inconsistencies created reasonable doubt which the trial court failed to appreciate.
iii. Whether the Appellant's Right to a fair trial under Article 50 of the Constitution was violated by the failure of the trial court to inform him of his right to legal representation, including legal representation at State expense where applicable, and if so, what effect that had on the conviction.
ANALYSIS AND DETERMINATION
Issue 1: Whether the Prosecution proved the offence of defilement Against the Appellant beyond reasonable doubt
33. The Appellant submitted that the prosecution failed to prove the offence of defilement beyond reasonable doubt. He argued that the evidence tendered before the trial court did not satisfactorily establish the element of penetration as required under Section 8(1) of the Sexual Offences Act. According to the Appellant, the medical evidence merely showed the presence of epithelial cells, which only suggested friction and not penetration. He further contended that the evidence of PW4 and PW5 regarding the complainant's genital injuries was inconsistent and that the trial court erred in preferring the evidence of the clinical officer over that of the medical doctor. The Appellant further submitted that the complainant's evidence was uncorroborated and that the trial court failed to comply with Section 124 of the Evidence Act by recording reasons for believing her testimony.
34. The Respondent opposed the appeal and submitted that the prosecution discharged its burden of proof by establishing all the ingredients of the offence of defilement beyond reasonable doubt. It was submitted that the complainant's age was proved through the production of her birth certificate, penetration was established by both the complainant's testimony and the medical evidence contained in the PRC Form and P3 Form, while the identity of the perpetrator was proved through recognition evidence since the complainant and other prosecution witnesses knew the Appellant prior to the incident.
35. As the first appellate court, this court is under a duty to reconsider and re-evaluate the entire evidence on record and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was succinctly stated in Okeno v Republic [1972] EA 32, where the court held that a first appellate court must subject the evidence tendered before the trial court to a fresh and exhaustive examination before arriving at its own conclusions.
36. The offence of defilement is created under Section 8(1) of the Sexual Offences Act. To sustain a conviction, the prosecution must prove beyond reasonable doubt three essential ingredients, namely: the age of the complainant, proof of penetration, and the positive identification of the perpetrator. This position has consistently been affirmed by the Court of Appeal in Charles Wamukoya Karani v Republic and George Opondo Olunga v Republic [2016] eKLR .
37. On the issue of age, the record demonstrates that PW6 produced the complainant's Birth Certificate as PExhibit 3. The document indicated that the complainant was born on 21st December 2012. Considering that the offence occurred on 19th July 2021, the complainant was approximately nine years old at the time of the incident. The Appellant did not challenge either the authenticity of the Birth Certificate or the age indicated therein. This court is therefore satisfied that the prosecution proved the complainant's age beyond reasonable doubt.
38. The principal dispute in this appeal concerns whether penetration was proved. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another. The law therefore does not require complete penetration or the presence of spermatozoa before the offence can be established.
39. The Court of Appeal in Mark Oiruri Mose v Republic [2013] eKLR held that penetration need not be proved by the existence of spermatozoa or complete sexual intercourse, and that even the slightest penetration of the genital organs is sufficient to satisfy the statutory definition. Equally, in Fappyton Mutuku Ngui v Republic [2014] eKLR, the court emphasized that penetration may be established through the victim's testimony, medical evidence, or a combination of both.
40. In the present case, the complainant testified that the Appellant took her into a bush, removed her undergarments and lay on top of her. She further stated that she experienced pain after the incident. Her testimony was corroborated by PW4, the Clinical Officer, who examined the complainant shortly after the incident and observed fresh lacerations at the 2 o'clock, 3 o'clock and 9 o'clock positions of the genitalia. PW4 produced the PRC Form detailing those injuries. PW5 also produced the P3 Form, which confirmed that the complainant's hymen was broken and that injuries were present on her genitalia.
41. The Appellant argued that PW4 referred to lacerations while PW5 referred generally to injuries and therefore the medical evidence was contradictory. This court is unable to agree with that submission. The evidence of the two medical witnesses was substantially consistent in that both independently confirmed injuries to the complainant's genital organs. The mere difference in the manner in which the injuries were described did not amount to a material contradiction capable of weakening the prosecution case. As was held in Twehangane Alfred v Uganda Criminal Appeal No. 139 of 2001 , not every inconsistency is fatal; only material contradictions that go to the root of the prosecution case are capable of creating reasonable doubt.
42. The Appellant also argued that PW5, being a medical doctor, ought to have been preferred over PW4, a clinical officer. However, the law does not establish a hierarchy of medical evidence based solely on professional designation. Medical evidence constitutes expert opinion whose weight depends on the facts proved and the consistency of the evidence on record. Under Section 48 of the Evidence Act, both medical doctors and duly qualified clinical officers are competent expert witnesses. In the present case, there is no indication that either witness contradicted the essential finding that the complainant sustained genital injuries consistent with penetration.
43. The Appellant further relied on authorities suggesting that a broken hymen alone does not establish penetration. While that proposition correctly reflects the law, the present case did not rest solely upon evidence of a broken hymen. The conviction was founded upon the cumulative effect of the complainant's direct testimony, the contemporaneous medical examination revealing genital injuries, and the surrounding circumstances of the offence. The trial court therefore did not rely exclusively on the state of the hymen in reaching its conclusion.
44. The Appellant further challenged the conviction on the basis that the complainant's evidence was uncorroborated. However, Section 124 of the Evidence Act expressly provides that in sexual offence cases, a court may convict on the sole evidence of the complainant if it records reasons for believing that the complainant is telling the truth. The proviso to that section recognizes the peculiar nature of sexual offences, which are often committed in the absence of independent witnesses.
45. Having reviewed the impugned judgment, this court notes that the trial magistrate evaluated the complainant's testimony alongside the medical evidence and the testimony of the other prosecution witnesses before concluding that the complainant was truthful and credible. In any event, this was not a case founded solely on the complainant's testimony since there existed medical evidence and evidence of recognition connecting the Appellant to the offence.
46. On the issue of identification, the evidence on record demonstrates that the complainant knew the Appellant before the incident as he was her father's friend. PW2 and PW3 equally testified that they knew the Appellant as a villager. This was therefore a case of recognition rather than identification of a stranger. In Anjononi & Others v Republic [1980] KLR 59 , the Court of Appeal held that recognition is generally more reliable than identification because it is based on prior knowledge of the offender. There is nothing on record to suggest that the witnesses were mistaken as to the identity of the Appellant.
47. Having independently re-evaluated the entire evidence, this court is satisfied that the prosecution established beyond reasonable doubt the complainant's age, penetration within the meaning of Section 2 of the Sexual Offences Act, and the Appellant's identity as the perpetrator. The grounds of appeal challenging the sufficiency of the evidence are therefore without merit and fail.
Issue 2: Whether the prosecution evidence was materially inconsistent or contradictory, and if so, whether those inconsistencies created reasonable doubt which the trial court failed to appreciate
48. The Appellant submitted that the prosecution's case was riddled with material contradictions and inconsistencies which the trial court failed to adequately consider. He pointed to discrepancies regarding the circumstances under which the complainant met the Appellant, the place where the offence allegedly occurred, whether the complainant had come from school or was at home, whether the incident took place on a Saturday or Monday, and differences between the complainant's testimony and the evidence of PW2, PW4, PW5 and PW6. He further contended that certain details narrated by the medical witnesses and the investigating officer, including allegations that he kissed the complainant, professed his love to her, covered her mouth and threatened to kill her, did not feature in the complainant's testimony in court. The Appellant argued that these inconsistencies undermined the credibility of the prosecution's case and ought to have been resolved in his favour.
49. The Respondent submitted that the prosecution witnesses gave cogent and consistent evidence which established the offence beyond reasonable doubt. It was argued that any minor inconsistencies did not go to the substance of the charge and did not affect the overall strength of the prosecution's case.
50. It is settled law that the prosecution's evidence must be consistent and credible. However, not every inconsistency or contradiction is sufficient to vitiate a conviction. Courts have consistently held that only material contradictions which affect the essential ingredients of the offence or create reasonable doubt as to the guilt of the accused are capable of rendering a conviction unsafe.
51. In Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001 , the court held that minor inconsistencies are inevitable in human testimony and that they only become fatal where they are substantial enough to cast doubt on the prosecution case. Similarly, in Richard Munene v Republic [2018] eKLR , the court observed that discrepancies which do not affect the core of the prosecution's case ought not to result in an acquittal.
52. This court has carefully re-evaluated the record in light of the contradictions identified by the Appellant. While it is evident that certain witnesses differed on peripheral matters, such as whether the complainant had come from school or was at home before the incident, whether she was requested to collect a bottle or her father's belongings, and the precise sequence of events immediately preceding the offence, those differences did not relate to the fundamental ingredients of the offence of defilement.
53. Equally, the alleged inconsistency regarding whether the offence occurred inside a house or in the bush does not find support in the totality of the evidence. The complainant consistently testified that the Appellant took her into a bush where the act occurred. The evidence relied upon by the Appellant from PW6
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INTRODUCTON AND BACKGROUND
1. This is an appeal against the judgement delivered in the Magistrates Court at Kisumu by Hon, G.C. Serem on 5 th December, 2023, in Republic vs Edga Mwambuki Sorongo. The charges against the accused were instituted through a charge sheet dated 22 nd July 2021.
2. The Accused was charged with Defilement, contrary to Section 8(1)(2) of the Sexual Offences Act No. 3 of 2006; (Count 1) that on the 19 th of July 2021 at Kanyakwar Area in Kisumu Central Sub-County within Kisumu County, the accused intentionally caused his penis to penetrate the vagina of BAO a child aged 8 years.
3. The Accused was also charged with Committing an Indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006; (Count 2) that on the 19 th of July 2021 at Kanyakwar Area in Kisumu Central Sub-County within Kisumu County, intentionally touched the vagina of BAO a child aged 8 years with his penis.
4. The accused entered a plea of not guilty and he was released on bond of Kshs. 50,000/= with a surety of a like sum. The matter proceeded to full trial and the prosecution proceeded by calling a total of 6 witnesses with their testimony on record.
5. Through its judgement dated 5 th December 2023, the trial court analyzed the evidence produced and relied upon by both the prosecution and the accused. The trial court placed reliance on Section 8 (1) and Section 11(1) of the Sexual offences Act while bringing out the ingredients of age of the complainant, proof of penetration, section 2(1) and positive identification of the assailant as the specific elements of the offence of defilement which were highlighted in the case of Charles Wamukoya Karani vs Republic, Criminal Appeal No. 72 of 2013, and George Opondo Olunga V. Republic [2016] eKLR.
6. On the aspect of age, the trial court relied on the birth certificate that was produced by PW6 as exhibit 3 to confirm that the victim was born on 21 st December 2012. According to the abstract, the ordeal occurred on 19 th July 2021, hence the evidence that the victim was 9 years and hence she was a minor.
7. In addition, the court analyzed the element of penetration according to section 2(1) of the Sexual Offences Act as “ partial or complete insertion of the genital organs of a person into the genital organ of another .” The same was highlighted in the case of Mark Oiruri Mose v R [2013] eKLR. The court pronounced that there was inevitable conclusion from the analysis of evidence that there was ample evidence to prove that penetration did occur. The conclusion followed that, the victim testified and stated that the accused person took her to the bush and he removed her panty and he lay on her. PW4-Eppy Awour a registered clinician at JOOTRH stated that the survivor said that she was in pain and had lacerations on the 2 nd , 3 rd , and 9 th Oclock, she produced the PRC form, and on cross-examination, she stated that the accused defiled the survivor. Equally, PW5 produced P3 Form confirming that the hymen was broke. In defence, on 25 th September 2023, the accused remained silent and failed to give any testimony and PW4 was very clear that penetration occurred.
8. On the element of identification, the trial court pronounced itself that the accused person had been identified without any doubt as the accuser and the penetrator of the offence. PW1, PW2 and PW3 who were all witnesses identified the accused person as the perpetrator, confirmed that he was a villager, and that they had all seen him before. Similarly, the complainant was on record for having known the accused very well as he was her father’s friend. The witnesses evidence remained the same during cross-examination thus amounting to evidence of recognition which the court held to be many times stronger than that of identification. This was highlighted in Mercy Chelangat v. Republic [2022] eKLR.
9. The trial court therefore pronounced that the prosecutor had proved all ingredients of defilement beyond reasonable doubt and provided as follows: -
The accused is hereby found guilty of the offence of defilement under section 8(1) (3) of the sexual offence Act and is convicted as per section 215 of the Criminal Procedure Code.
The accused was convicted accordingly under section 215CPC. Particularly, the court considered mitigation and stated that the accused is imprisoned for 25 years imprisonment starting from 4 th December 2023.
10. The accused, being dissatisfied by the outcome of the said Judgement, appealed on the same, filing a Petition of Appeal dated 26 th February 2025, preferring the grounds of appeal as follows: -
1. That the learned trial magistrate erred in fact and in law by failing to consider that the ingredients forming the offences were not proved to the required standard.
2. That the trial court erred in law and in fact in not weighing the conflicting evidence in the prosecution case that was/is inconsequential to conviction.
3. That the trial court erred in law and in fact in not appreciating the appellant’s cogent defence that overwhelmed the prosecutions case.
4. That the learned trial magistrate erred in law and facts by failing to deal with contradictions and inconsistencies in prosecution evidence
5. That, more grounds to be adduced after perusal of court proceedings.
REASONS WHEREOF the Appellant prays that this Honourable court allows this appeal to its entirety and: -
1. Quash the conviction
2. Set aside the sentence and;
3. Appellant be at liberty
9. This is the first appellate court and as held in the matter of Okeno v R (1972) EA 32, the Court of Appeal for East Africa laid down that the duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify.
SUBMISSIONS BY THE PARTIES
10. The Appellant, vide submissions dated 5 th January, 2026, raised two issues that the trial court erred in law and in fact in not making a finding that penetration was not proved beyond reasonable doubt standard, and that the trial court erred in law and in fact in not informing the appellant his right to legal representation and not according the advocate on the state expenses.
11. The Appellant submitted that the trial court erred in law and fact in failing to find that penetration had not been proved beyond reasonable doubt. He argued that the evidence of epithelial cells found in the complainant’s urine, as testified, merely indicated friction and did not constitute proof of penetration. Reliance was placed on Benard Opiyo Alias Jemaa CRA No. 13 of 2019 where the presence of epithelial cells was held to only prove that there was some friction in the vagina. The Appellant contended that it was not concrete proof of penetration and that the trial court improperly accepted the clinical officer’s evidence without sufficient medical proof of penetration. Citing P.K.W v Republic (2012) eKLR , he submitted that the mere absence of a hymen cannot be taken as proof of defilement and that the burden of proving the cause of the hymen’s loss rested upon the prosecution.
12. The Appellant further submitted that there were significant contradictions between the medical evidence presented by Clinical Officer PW4 in the PRC Form and that of Dr. Lucy Omboko (PW5) in the P3 Form concerning the complainant’s genitalia. While the clinical officer stated that “the outer genitalia there were….2,3, 9, o’clock”, Doctor Lucy Omboko much qualified and experienced in her p3 form and in court PW5 stated that “her private parts were injured”. The Appellant argues that the contradiction is material and goes to the root of the case which the trial court failed to take consideration of, and the prosecutor failed to provide an explanation about and fill the gaps.
13. The Appellant argues in favour of the evidence of PW5 over that of PW4 on account of PW5’s superior qualifications and experience, thus arguing that there was no penetration. He cites Kimaju Mbuvi T/A Kimatu Mbuvi & Bros v Augustine Munyao Kioko (2007) EA 139 , for the proposition that medical evidence is only expert opinion and is not binding on the court, which may reject it where there is a proper and cogent basis for doing so. He further contends that PW4 was less qualified than PW5 and therefore PW4s opinion should not have been preferred.
14. The Appellant further argues that the trial court failed to comply with section 124 of the Evidence Act by convicting him without sufficient corroboration. He submits that the court was required to interrogate the reliability of the complainant’s evidence and evidence of other witnesses. In support of this proposition, he relies on South African case of Estate Kaluza v. Braeuer 1926 AD 243 , which emphasized the need for courts to carefully assess the reliability of a complainant and corroborating witnesses.
15. The Appellant pointed to the evidence of the village elder, Leornard Otula, who testified that after making inquiries, the complainant’s mother stated that the allegations had been planned and that she had not witnessed any defilement. The Appellant argues that this evidence cast doubt on the prosecution case.
16. He also submitted that PW1 did not describe the act alleged to have caused penetration with sufficient clarity to meet the standard of proof beyond reasonable doubt. According to him, PW4 testified that the complainant had reported being dragged into a bush, kissed, told that the accused loved her, penetrated, and threatened with death. He argued that these details were absent from the testimonies of PW1, PW2, and PW3, and therefore amounted to a fabrication.
17. The Appellant further challenges PW6’s testimony arguing that PW6 claimed that the complainant’s sister found him with the complainant while he was half naked and had removed his shirt, and that the complainant then informed her sister of what had happened. PW6 also stated that the complainant reported that the man had covered her mouth during the incident. The Appellant argued that these allegations did not appear in PW1s testimony. He maintained that PW1 merely stated that she felt pain, ran away, left her slippers behind, and that Edgar also ran away. He therefore contended that PW6 was framing him and introducing facts not given by the complainant in court.
18. The Appellant also highlighted inconsistencies between the evidence of PW1 and PW2. He noted that PW2 testified that she found the complainant crying when she returned home and asked what had happened. However, PW1 did not testify that her mother found her crying or that she reported the incident to her mother. Instead, PW1 stated that her sister Liz disclosed what she had been told.
19. Further, the Appellant questioned the prosecution’s account of where the incident occurred. He argued that PW6 ‘s evidence suggested that Liz found him naked with the complainant in a house, yet other evidence suggested that the incident took place in a bush. He therefore contended that the prosecution’s evidence was contradictory and unreliable, asking rhetorically whether, if Liz had indeed found him naked with the complainant in the house, she would have allowed the complainant to follow him into the bush.
20. The Appellant submits that PW1 stated that the incident occurred on a Saturday when Edgar came home and that they were at home with her sister, whereas PW2 stated that it occurred on a Monday after she had gone to work. PW6 stated that it occurred on a, Monday after she had gone to work. PW6, on the other hand testified that PW1 told her she had come from school. According to the appellant, these contradictions raised unanswered questions as to whether the incident occurred on a Saturday or Monday, whether the complainant was at home or from school, and whether their mother had left them at home or they had gone to school.
21. The Appellant further contended that PW1 testified that she was asked to pick a bottle and follow the accused, while PW4, PW5 and PW6 stated that PW1 had told them that the appellant asked them to go and collect her father’s belongings. Relying on Ndungu Kimani V. Republic (1979) KLR 283 , the appellant submitted that these contradictions undermined the prosecution case. He also argued that two persons mentioned by PW1, namely Gabby and Liz (PW1’s sister, were not called as witnesses despite capable of corroborating the complainant’s account.
22. The Appellant further submitted that the complainant’s evidence was unsworn and uncorroborated and that the trial court failed to indicate the complainant’s demeanor or provide reasons for believing her evidence. Citing Amber May v. Republic (1981) KLR, Oloo v Republic (2009) KLR, and Joh Cardon Vayner v. Republic & 2 Others (2001) eKLR , he argued that the conviction was improperly founded on uncorroborated evidence and that the court failed to record reasons for accepting PW1’s testimony as truthful.
23. On the last issue, the Appellant submitted that the trial court erred in law and fact by failing to inform the Appellant of his right to legal representation and by not providing him with an advocate at State expense. He argued that he only cross-examined witnesses and did not adequately present his defence because he was nervous, confused and unable to bring out matters favourable to him or expose weaknesses in the prosecution case. He further stated that he lacked sufficient intelligence and legal knowledge to conduct his defence effectively, and consequently suffered substantial injustice due to the absence of legal representation at state expense.
24. The Respondent filed their submissions solely on the issue that the trial court failed to observe that the prosecution failed to prove its case beyond reasonable doubt as required by law. The Respondent submitted that in criminal cases, the prosecution bears the burden of establishing all the essential elements of the offence beyond a reasonable doubt. It was contended that the prosecution presented comprehensive evidence, including witness testimonies and documentary evidence, which collectively proved the charges against the appellant beyond reasonable doubt.
25. The Respondent further submitted that under Section 8(1) of the Sexual Offences Act, the prosecution was required to prove beyond reasonable doubt the age of the complainant, proof of penetration as defined under Section 2(1) of the Sexual Offences Act, and positive identification of the assailant.
26. The Respondent relied on Charles Wamukoya Karani v Republic (Criminal Appeal No. 72 of 2013), where the court emphasized that the critical ingredients of the offence of defilement were the complainant’s age, proof of penetration, and positive identification of the assailant. Reliance was also placed on George Opondo Olunga v Republic [2016] eKLR, which reiterated that the ingredients of defilement included identification or recognition of the offender, penetration, and the victim’s age. The Respondent further cited Mark Oinuri Mose v Republic [2013] eKLR , where the court held that a complete sexual act or the presence of spermatozoa was not required to prove penetration and that surface penetration was sufficient.
27. On the age of the complainant, the Respondent submitted that a birth certificate (exhibit 3), produced by PW6, confirmed that the complainant was born on 21 st December 2012. Since the offence occurred on 19 th July 2021, the complainant was 9 years old at the time of the incident.
28. Regarding penetration, the Respondent submitted that the complainant testified that the accused took her to the bush, removed their clothing, and lay on her. PW4, a clinician at JOOTRH, testified that the survivor reported pain and lacerations, and a PRC form was produced in evidence, and was very clear that penetration did occur. PW5 also produced a P3 form confirming that the complainant’s hymen was broken. It was submitted that the trial court found there was ample evidence of penetration.
29. On identification, the Respondent submitted that PW1, PW2, and PW3 identified the accused as the perpetrator and stated that he was a villager whom they had seen before. The complainant also knew the accused well as her father’s friend. It was further submitted that their testimonies remained consistent during cross-examination.
30. The Respondent further submitted that the learned magistrate evaluated the evidence and found it to be cogent, consistent, and reliable in establishing all the essential elements of the offence. It was submitted that the decision was based on the cumulative weight of the evidence and not on speculation. Consequently, the magistrate correctly concluded that the prosecution had proved its case beyond a reasonable doubt.
31. In light of the foregoing, the Respondent respectfully urged the Honourable court to dismiss the appeal and uphold the conviction and sentence, contending that the magistrate acted in accordance with the law and that the conviction was consistent with both the law and the gravity of the offence.
ISSUES FOR DETERMINATION
32. Having reviewed the pleadings from both parties and the determination from the lower court, the following issues need to be addressed: -
i. Whether the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt.
ii. Whether the prosecution evidence was materially inconsistent or contradictory, and if so, whether those inconsistencies created reasonable doubt which the trial court failed to appreciate.
iii. Whether the Appellant's Right to a fair trial under Article 50 of the Constitution was violated by the failure of the trial court to inform him of his right to legal representation, including legal representation at State expense where applicable, and if so, what effect that had on the conviction.
ANALYSIS AND DETERMINATION
Issue 1: Whether the Prosecution proved the offence of defilement Against the Appellant beyond reasonable doubt
33. The Appellant submitted that the prosecution failed to prove the offence of defilement beyond reasonable doubt. He argued that the evidence tendered before the trial court did not satisfactorily establish the element of penetration as required under Section 8(1) of the Sexual Offences Act. According to the Appellant, the medical evidence merely showed the presence of epithelial cells, which only suggested friction and not penetration. He further contended that the evidence of PW4 and PW5 regarding the complainant's genital injuries was inconsistent and that the trial court erred in preferring the evidence of the clinical officer over that of the medical doctor. The Appellant further submitted that the complainant's evidence was uncorroborated and that the trial court failed to comply with Section 124 of the Evidence Act by recording reasons for believing her testimony.
34. The Respondent opposed the appeal and submitted that the prosecution discharged its burden of proof by establishing all the ingredients of the offence of defilement beyond reasonable doubt. It was submitted that the complainant's age was proved through the production of her birth certificate, penetration was established by both the complainant's testimony and the medical evidence contained in the PRC Form and P3 Form, while the identity of the perpetrator was proved through recognition evidence since the complainant and other prosecution witnesses knew the Appellant prior to the incident.
35. As the first appellate court, this court is under a duty to reconsider and re-evaluate the entire evidence on record and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was succinctly stated in Okeno v Republic [1972] EA 32, where the court held that a first appellate court must subject the evidence tendered before the trial court to a fresh and exhaustive examination before arriving at its own conclusions.
36. The offence of defilement is created under Section 8(1) of the Sexual Offences Act. To sustain a conviction, the prosecution must prove beyond reasonable doubt three essential ingredients, namely: the age of the complainant, proof of penetration, and the positive identification of the perpetrator. This position has consistently been affirmed by the Court of Appeal in Charles Wamukoya Karani v Republic and George Opondo Olunga v Republic [2016] eKLR .
37. On the issue of age, the record demonstrates that PW6 produced the complainant's Birth Certificate as PExhibit 3. The document indicated that the complainant was born on 21st December 2012. Considering that the offence occurred on 19th July 2021, the complainant was approximately nine years old at the time of the incident. The Appellant did not challenge either the authenticity of the Birth Certificate or the age indicated therein. This court is therefore satisfied that the prosecution proved the complainant's age beyond reasonable doubt.
38. The principal dispute in this appeal concerns whether penetration was proved. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another. The law therefore does not require complete penetration or the presence of spermatozoa before the offence can be established.
39. The Court of Appeal in Mark Oiruri Mose v Republic [2013] eKLR held that penetration need not be proved by the existence of spermatozoa or complete sexual intercourse, and that even the slightest penetration of the genital organs is sufficient to satisfy the statutory definition. Equally, in Fappyton Mutuku Ngui v Republic [2014] eKLR, the court emphasized that penetration may be established through the victim's testimony, medical evidence, or a combination of both.
40. In the present case, the complainant testified that the Appellant took her into a bush, removed her undergarments and lay on top of her. She further stated that she experienced pain after the incident. Her testimony was corroborated by PW4, the Clinical Officer, who examined the complainant shortly after the incident and observed fresh lacerations at the 2 o'clock, 3 o'clock and 9 o'clock positions of the genitalia. PW4 produced the PRC Form detailing those injuries. PW5 also produced the P3 Form, which confirmed that the complainant's hymen was broken and that injuries were present on her genitalia.
41. The Appellant argued that PW4 referred to lacerations while PW5 referred generally to injuries and therefore the medical evidence was contradictory. This court is unable to agree with that submission. The evidence of the two medical witnesses was substantially consistent in that both independently confirmed injuries to the complainant's genital organs. The mere difference in the manner in which the injuries were described did not amount to a material contradiction capable of weakening the prosecution case. As was held in Twehangane Alfred v Uganda Criminal Appeal No. 139 of 2001 , not every inconsistency is fatal; only material contradictions that go to the root of the prosecution case are capable of creating reasonable doubt.
42. The Appellant also argued that PW5, being a medical doctor, ought to have been preferred over PW4, a clinical officer. However, the law does not establish a hierarchy of medical evidence based solely on professional designation. Medical evidence constitutes expert opinion whose weight depends on the facts proved and the consistency of the evidence on record. Under Section 48 of the Evidence Act, both medical doctors and duly qualified clinical officers are competent expert witnesses. In the present case, there is no indication that either witness contradicted the essential finding that the complainant sustained genital injuries consistent with penetration.
43. The Appellant further relied on authorities suggesting that a broken hymen alone does not establish penetration. While that proposition correctly reflects the law, the present case did not rest solely upon evidence of a broken hymen. The conviction was founded upon the cumulative effect of the complainant's direct testimony, the contemporaneous medical examination revealing genital injuries, and the surrounding circumstances of the offence. The trial court therefore did not rely exclusively on the state of the hymen in reaching its conclusion.
44. The Appellant further challenged the conviction on the basis that the complainant's evidence was uncorroborated. However, Section 124 of the Evidence Act expressly provides that in sexual offence cases, a court may convict on the sole evidence of the complainant if it records reasons for believing that the complainant is telling the truth. The proviso to that section recognizes the peculiar nature of sexual offences, which are often committed in the absence of independent witnesses.
45. Having reviewed the impugned judgment, this court notes that the trial magistrate evaluated the complainant's testimony alongside the medical evidence and the testimony of the other prosecution witnesses before concluding that the complainant was truthful and credible. In any event, this was not a case founded solely on the complainant's testimony since there existed medical evidence and evidence of recognition connecting the Appellant to the offence.
46. On the issue of identification, the evidence on record demonstrates that the complainant knew the Appellant before the incident as he was her father's friend. PW2 and PW3 equally testified that they knew the Appellant as a villager. This was therefore a case of recognition rather than identification of a stranger. In Anjononi & Others v Republic [1980] KLR 59 , the Court of Appeal held that recognition is generally more reliable than identification because it is based on prior knowledge of the offender. There is nothing on record to suggest that the witnesses were mistaken as to the identity of the Appellant.
47. Having independently re-evaluated the entire evidence, this court is satisfied that the prosecution established beyond reasonable doubt the complainant's age, penetration within the meaning of Section 2 of the Sexual Offences Act, and the Appellant's identity as the perpetrator. The grounds of appeal challenging the sufficiency of the evidence are therefore without merit and fail.
Issue 2: Whether the prosecution evidence was materially inconsistent or contradictory, and if so, whether those inconsistencies created reasonable doubt which the trial court failed to appreciate
48. The Appellant submitted that the prosecution's case was riddled with material contradictions and inconsistencies which the trial court failed to adequately consider. He pointed to discrepancies regarding the circumstances under which the complainant met the Appellant, the place where the offence allegedly occurred, whether the complainant had come from school or was at home, whether the incident took place on a Saturday or Monday, and differences between the complainant's testimony and the evidence of PW2, PW4, PW5 and PW6. He further contended that certain details narrated by the medical witnesses and the investigating officer, including allegations that he kissed the complainant, professed his love to her, covered her mouth and threatened to kill her, did not feature in the complainant's testimony in court. The Appellant argued that these inconsistencies undermined the credibility of the prosecution's case and ought to have been resolved in his favour.
49. The Respondent submitted that the prosecution witnesses gave cogent and consistent evidence which established the offence beyond reasonable doubt. It was argued that any minor inconsistencies did not go to the substance of the charge and did not affect the overall strength of the prosecution's case.
50. It is settled law that the prosecution's evidence must be consistent and credible. However, not every inconsistency or contradiction is sufficient to vitiate a conviction. Courts have consistently held that only material contradictions which affect the essential ingredients of the offence or create reasonable doubt as to the guilt of the accused are capable of rendering a conviction unsafe.
51. In Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001 , the court held that minor inconsistencies are inevitable in human testimony and that they only become fatal where they are substantial enough to cast doubt on the prosecution case. Similarly, in Richard Munene v Republic [2018] eKLR , the court observed that discrepancies which do not affect the core of the prosecution's case ought not to result in an acquittal.
52. This court has carefully re-evaluated the record in light of the contradictions identified by the Appellant. While it is evident that certain witnesses differed on peripheral matters, such as whether the complainant had come from school or was at home before the incident, whether she was requested to collect a bottle or her father's belongings, and the precise sequence of events immediately preceding the offence, those differences did not relate to the fundamental ingredients of the offence of defilement.
53. Equally, the alleged inconsistency regarding whether the offence occurred inside a house or in the bush does not find support in the totality of the evidence. The complainant consistently testified that the Appellant took her into a bush where the act occurred. The evidence relied upon by the Appellant from PW6
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