1. This appeal arises from the judgment of the trial court, Hon. Damacline Bosibori SRM, in Mûkûrwe’inî MCSO No. E002 of 2024, delivered on 17-01-2025.
2. The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on diverse dates between 18.12.2023 and 7.01.2024, at Matuto Village, Githi Location of Mûkûrwe’inî Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of P.M.W., a girl aged seven (7) years.
3. There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that on diverse dates between 18.12.2023 and 7.01.2024 at Matuto village, Githi Location of Mûkûrwe’inî Sub-County within Nyeri County, the Appellant unlawfully and intentionally touched the vagina of P.M.W., a child aged 7 years.
4. The Appellant was arraigned in court on 22/01/2024. The matter was referred to court number 2 for 23/01/2024. However, the charge was still brought on the next day before the same court. The charge was read, but it is not clear which language was used. He denied the charges. The appellant was released on 07.02.2024 for Ksh. 100,000/= with one surety of the same amount. He was supplied with witness statements and supporting documents.
5. The right to legal representation was indicated to be explained after a hearing date was fixed, 7 days later. Luckily, the appellant appointed an advocate for the hearing date.
6. The court heard sworn testimony from a total of five prosecution witnesses. The appellant was placed on his defence after the court delivered a lengthy ruling finding the prosecution witnesses credible and stating that it would convict if he remained silent. This is not the correct test. The court is entitled only to peruse the evidence and find whether a prima facie case has been established.
7. It is not true that, after a prima facie case, if an accused opts to remain silent, the court must convict. The prima facie standard is a civil standard. The court should and must be guided by the standard of proof in criminal cases. An accused person does not assume the role of proving his innocence. Rebuttal can be done though cross examination. The burden of proof remains in the state throughout the trial. In the case of Republic v Abdi Ibrahim Owl [2013] KEHC 2122 (KLR) , Mutuku J posited as follows:
“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court stated as follows:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution's case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence……. It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”
8. It must be noted that the court cannot shift the burden of proof to an accused person except in very limited cases, for example, in a scenario in section 323 of the Penal Code or matters covered to a small extent in section 111 of the Evidence Act. The first of the sections provides as follows:
323. Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code (Cap. 75) and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour.
9. The presumption of innocence remains, and the burden of proof is on the state. In the locus classicus and the most oft quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462, pp. 481. Further reliance was placed on the case of Sekitoleko v Uganda (1967) EA 531 at p 533, where the legendary Sir Udo Udoma C J stated as follows:
As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution.
10. Further, the court erroneously used sections 306 and 307 of the Criminal Procedure Code. It is doubtful that the court complied with the requirements of Section 211 of the Criminal Procedure Code. It is unnecessary to address this issue at this point in view of the more poignant point raised herein.
11. Upon being placed on his defence, the Appellant, his cousin Robert and his grandfather testified as Dw1, DW2 and dw3. The court considered the prosecution's evidence, disregarded the defence evidence, and rendered the Judgement. The Court found the Appellant guilty and sentenced him to life imprisonment, with the sentence to run from the date when his bond terms were cancelled, 17.01.2025. He was informed of the right of appeal.
12. The Appellant, aggrieved, lodged this Appeal vide a memorandum of appeal dated 31-01-2025 on the following grounds;
a) That the learned trial magistrate erred in law and fact by failing to appreciate that the prosecution witnesses had discrepancies in their statements and during cross-examination, raising a lot of doubts.
b) The learned Magistrate erred in fact by failing to appreciate that it would not be humanly possible to calculate the number of penetrations of sticks, fingers, and penis by an eight-year-old during defilement in four different times.
c) The learned Magistrate erred in law by failing to appreciate that criminal cases must be proved beyond reasonable doubt.
d) The learned Magistrate erred in fact by failing to appreciate that the medical record did not connect in the sense that the minor had a sexually transmitted disease, but the appellant was not tested to show whether he also had the disease.
e) That the learned magistrate erred in law by failing to consider the appellant’s submissions before determining whether the applicant had a case to answer.
f) That the learned magistrate erred in fact by failing to consider that there were other family members present in the compound during the alleged acts as evidenced by the appellant’s witnesses.
13. The grounds, except the fifth one, are similar to those set out in the original ground. The trial are only two sub-issues raised for determination
a) Whether the complainant was defiled during the material time, and;
b) Whether it is the accused person who defiled the complainant,
14. In essence, the appellant maintained that the prosecution did not prove their case beyond a reasonable doubt. Among other issues, he posited that the prosecution's evidence contained discrepancies in its statements and in its cross-examination. He also posited that the court did not appreciate that it would not be humanly possible to calculate the number of penetrations of sticks, fingers, and penis by an eight-year-old during defilement four different times. Further, the appellant alleges that the court did not appreciate that the medical evidence did not establish that the minor had a sexually transmitted infection. However, the appellant was not tested to show whether he had the same. He further asserts that the court did not consider the appellant’s submissions and evidence before deciding the case.
Submissions
15. The appellant filed submissions dated 27.10.2025. He submitted that the complainant had been warned by her mother to tell the truth before testifying in court. While such an admonition may ordinarily be considered normal and reasonable, the appellant argued that, in the circumstances of this case, it invites closer scrutiny. First, the need to prepare the minor prior to her testimony suggests an attempt to control or shape a particular narrative. Secondly, instructing the minor to “tell the truth” implies that she may be prone, or perceived to be prone, to dishonesty, thereby raising questions about her credibility. Thirdly, and this being the appellant’s principal concern, the minor’s response regarding the consequences of not telling the truth was troubling: she stated that when she lies to her mother, she expects to be beaten. According to the appellant, this response raises the possibility that the minor’s testimony may have been influenced by fear of punishment rather than a free and voluntary recollection of events.
16. They submitted that it follows from the above that the minor was under instructions to tell the truth lest a punishment would ensue. The issue in these submissions will then be, whose truth (narrative) was she prepared to tell? It would appear that from voire dire, the trial court reached a conclusion that the minor may not have understood the value of the oath.
17. They submitted that PW1 opened her testimony by placing the locus as “Kiahungu” contrary to “Matuto” found in the charge sheet. While acknowledging the main residents of her environment, she is intrigued to state that, concerning the appellant, she did not know whether he studies or works. Despite her impressive “eloquence,” she insists she transferred to her new school while in grade 2, contrary to the evidence of PW2 and PW3. They questioned her testimony that, when examined concerning the appellant, she stated she had gone to visit her grandfather on 18.12.2023, when the appellant wronged her. Yet the evidence is that she had been resident there for a number of years. Pressed further about being ‘wronged” by appellant, she testified that appellant beat her with a stick until she started crying. Stating further that the appellant later inserted a stick into her private part, besides using his forefinger and then his penis.
18. It was submitted that although the complainant appeared remarkably composed and detailed in her testimony, purporting to clinically demonstrate the number of times various objects were allegedly used and even recalling the clothes and colours worn on the material dates, such detail was incongruous with the charge sheet. Counsel argued that neither the main nor the alternative charge specified the use of fingers or a stick as instruments of the alleged assault, raising the question whether the prosecution itself doubted that aspect of the complainant’s account.
19. Further, it was submitted that the complainant’s evidence was riddled with inconsistencies. Whereas she initially testified that no one else was present at the homestead on 18.12.2023, she later stated that one B(a minor) was outside playing with another cousin. She further testified that the incident was not isolated and introduced additional alleged dates, namely 01.01.2024, 06.01.2024, and 07.01.2024, which were not clearly anchored in the charge sheet. It was contended that these inconsistencies and omissions went to the root of the prosecution’s case, thereby undermining its credibility and significantly weakening its probative value.
20. It was his submissions that the prosecution's evidence was marked by material inconsistencies that weakened its credibility. The fact that PW1 was able to outpace PW2 as they left the church was difficult to reconcile with the evidence of PW2 and PW3 that the minor could neither walk properly nor sit. PW1 also testified that on 07.01.2024, she went out to play with her cousins, a circumstance that cast doubt on the allegation that she had already been sexually abused.
21. PW1 stated that it was on 08.01.2024 that PW2 noticed she was not walking properly and questioned her, leading to the alleged disclosure. However, PW1 never testified that she had any difficulty walking during the alleged incidents. Further contradictions emerged on how the disclosure was made. PW1 claimed it occurred in the morning, while PW2 testified that it was later in the day, after she noticed an unusual smell and decided to bathe the minor. These divergent accounts were irreconcilable.
22. It was further submitted that PW2 claimed to have observed wounds, dirt, and discharge in the minor’s vagina, yet no immediate medical or police action was taken. Despite allegedly making these observations on 08.01.2024, PW2 only sought medical attention the following day, for tonsil and common cold, and no satisfactory explanation was offered for this delay. Counsel argued that, apart from an allegation that the appellant had bought PW1 an apple, there was no clear or cogent incriminating evidence linking the appellant to the alleged offence.
23. he submitted that the court further noted the difficulty of attributing precise dates of assault to a child of tender years. PW2, as the recipient of the first report, failed to give a coherent account of what the minor told her and how the appellant was implicated. In the absence of a clear first report and given the contradictions between PW1 and PW2, a critical link in the prosecution case was missing, leaving the evidence wanting. Reliance was placed, Michael Muriithi Kinyua v Republic [2002] KECA 315 (KLR), where, it was alleged that the court emphasized the need to take into account the first report. Underscoring its importance in safeguarding a true account of what happened before the influence of others and other reflections have set in.
24. It was their submissions that the minor was finally taken to Mûkûrwe’inî subcounty Hospital the next day, 10.1.2024. Curiously, an allegedly critically ill patient, instead of being treated/ examined, was first referred to the police station to file a report. An apriori conclusion of sexual assault seems to have been drawn. Be it as it may, she was thereafter attended to and treated. PW1 evidence is that she received 4 jabs and medicine. The minor concludes that she was not present when the appellant was arrested, whereas PW5 testified that it was the minor who pointed out the appellant.
25. Finally, it was submitted that, in outlining the prosecution’s case in the judgment, the trial magistrate appears to have misdirected herself on the facts. She thereafter embarked on an analysis of the issues for determination and an exposition of the applicable law from a standpoint that, according to counsel, reflected a pre-formed conclusion. It was contended that the trial court adopted an exclusionary approach aimed at sustaining that conclusion, thereby eroding the fundamental safeguard of the presumption of innocence. In effect, counsel argued, the burden of proof impermissibly shifted from the prosecution to the accused, requiring the appellant to disprove the case against him. It was thus submitted that the trial court undertook a theoretical or abstract inquiry, rather than a strict factual evaluation of the evidence, in arriving at a finding of guilt.
26. The appellant further submitted that the trial magistrate appeared to have put the cart before the horse by effectively finding that the offence was proved before considering the defence. The defence evidence was only touched after the conclusion, only to demonstrate its perceived implausibility in light of an already-reached finding of guilt. It was contended that this misdirection impaired the court’s ability to critically analyse the evidence and objectively arrive at the conclusion it did. Counsel argued that the judgment discloses elements of confirmation bias, which prejudiced the appellant in that his defence was not subjected to an impartial and balanced consideration.
27. On the whole, neither the fact of defilement nor the guilt of the appellant was proved beyond reasonable doubt. It is our submission that the case was contrived through PW2, who felt there was something more to the cold. She discovered an injury to the minor’s anus. The court notes that the medical evidence was that there was no injury to the anus.
28. PW3 further interrogated and prodded the minor to believe she had been abused. She built and maintained a case around these suspicions. Consequently, she fixed it on the appellant, and the prosecution and the trial court swallowed it hook, line, and sinker.
29. On their part, the Respondent filed submissions dated 6.10.2025 and maintained that the appellant was correctly sentenced. The Respondent invited the court to rely on the case of Okeno v Republic [1972] EA 32 at 36 for guidance on the court's duty in a first appeal. It was the State’s submission that it had discharged the burden of proof by establishing the three elements it was required to prove. Accordingly, the Respondent addressed the Court on three sub-issues, namely:
a. Proof of Penetration
b. proof of Age of the victim.
c. Identity of the perpetrator.
30. They submitted that the complainant, though of tender years, gave a clear, consistent, and coherent account of the events. It was contended that she explained how the appellant would call her, lead her to his house, take her to the bedroom, and direct her to lie on the bed, after which the alleged act occurred on several occasions.
31. On proof of age, reliance was placed on the case of Kaingu Elias Kasomo v Republic, C.A. Cr. App. No. 504 of 2010; where they stated that the court of appeal stated that, “age is a key ingredient to the offence of defilement and failure to prove it amounts to failure to prove the offence beyond reasonable doubt.”
32. They submitted that, in her evidence, the minor stated that she was seven years old. The complainant’s mother identified a birth certificate indicating that the minor was born in January 2016. The medical report recorded the minor’s age as eight years at the time of examination, while the Investigating Officer produced a birth certificate showing that the minor was seven years old at the time of the incident. It was therefore submitted that the age of the minor was proved beyond reasonable doubt and was not contested by the appellant.
33. On the identity of the perpetrator, it was submitted that the appellant and the minor were well known to each other, being maternal cousins who shared grandparents and resided within the same compound. Given their close familial relationship and the minor’s description of the appellant’s house layout where the alleged offence occurred in broad daylight, it was contended that there was no possibility of mistaken identity.
34. They also addressed a sentence, stating that the sentence was appropriate. They cited section 8(1) (2) of The Sexual Offences Act, which provides that “a person who is found guilty of the offence of defilement with a child aged 11years or less shall, upon conviction, be sentenced to imprisonment for life. According to the Respondent, the trial court handed down an appropriate sentence as prescribed by statute” . They went ahead nevertheless and relied on the case of S V Malgas 2001(!)SACR 469 (SCA) at para 12 where it was held that:
A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court……..However, even in the absence of material discretion, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking’, “Startling” or “disturbingly inappropriate”
They also cited the case of Shadrack Kipkoech Kogo –vs- R, Eldoret Criminal Appeal No. 253 of 2023 where the court of Appeal stated that’, “ Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a very wrong principle was applied or that short of these , the sentence itself is so excessive and therefore an error of principle must be interfered.”
Finally, they also relied on the case of R –VS- Joshua Gichuki Mwangi petition no. 18 of 2023 where the supreme court was clear that , “Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law”. The court was categorical that mandatory sentences are not unconstitutional , “it should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the constitution.”
35. The court was accordingly urged to dismiss the appeal, it being contended that both the conviction and the sentence were proper and lawful.
Evidence
36. The trial court conducted a voire dire examination and found the complainant unsuitable to give sworn testimony as she did not understand the nature of an oath. She therefore testified unsworn and was cross-examined. She stated that she was eight years old, a Grade 3 pupil at MAA School, and ordinarily lived with her mother at Kahawa West, where she also attended church. She went to visit the grandparents in 2023; on a date she could not recall. She recalled that on 18.12.2023, she was staying at her grandparents’ when Edwin did something wrong to her.
37. She was in her homestead in Kiahugu village, where several relatives, including the appellant, resided in separate houses within the same compound. The houses were between 10m to 50m apart. The appellant was his cousin. The appellant stayed with DW2. DW3, her grandfather lived 10 m from their house.
38. A girl by the name Maryanne came to their home and was escorted by the grandmother. The appellant lured the minor inserted a stick a size of Bic pen, a finger and then, a penis. Another minor, B, 3-year-old, was playing outside. On 1.1.2024, the she went for onions, when appellant again lured the minor inserted a stick a size of Bic pen, a finger and then, a penis.
39. Another date, 6.1.2024, Robert left to collect milk, when the grandmother went to a burial. Robert left at 9.00 am again appellant lured the minor inserted a stick a size of Bic pen, a finger and then, a penis.
40. On 07.01.2024, she attended church with her grandmother and later played within the compound. She stated that the appellant gave her an apple and later called her to his house, where another incident allegedly occurred during the day. As with the previous occasions, she stated that she was instructed not to inform her grandmother and initially remained silent.
41. She testified that she later began experiencing pain, difficulty walking, and discomfort when using the toilet. She eventually disclosed the alleged incidents to her grandmother, who later took her for medical attention. She was examined at fya Bora clinic and given medicine. The following day, the patient was taken to Mûkûrwe’inî hospital by the police and examined. She maintained that her testimony was truthful and that she had not falsely implicated the appellant. She maintained that he hit her in her vagina using a stick four times, then inserted his index finger into her vagina and inserted the stick again. The appellant then removed his clothes and inserted his penis into her vagina four times. He had worn a red T-shirt and white trousers.
42. She stated that she left her grandmother's living room because there was no one else at her grandmother's home. Her grandmother returned at 3 pm, cooked the food, and she ate. She went to play with B(a minor) and C(a minor). She did not alert anyone about the incident.
43. On cross-examination, she stated that on 7/1/2024, on a Sunday, she went to church with her grandmother at Matuto area. The appellant had been sent by her grandfather to purchase medicine. After church, the minor ate and took a nap. She later woke up and went to play outdoors with B(a minor) within the compound. C(a minor) was showering. The appellant brought her an apple, which she ate. Grandmother asked him to harvest firewood, but he declined. she told him that the grandmother had instructed her not to eat. He asked the minor to serve him food, but she declined because of her grandmother's instructions. She went back to the house and slept. The appellant served himself and ate. She stated that her grandmother asked about who had eaten the food, and she told her it was the appellant.
44. Later, the appellant called her, and she went to his house to the bedroom. She asked her to lie on the bed and undress which she did. She had worn a white top, a green t-shirt, brown trousers, and black innerwear. She removed the trousers and innerwear to ankle length. The appellant had a pair of white trousers which he also removed to knee level together with his brown underwear. He hit her thrice below the tummy using a stick the size of a bic pen where she urinates from. She felt pain then he inserted his right index finger in her vagina. He also inserted the stick later into her vagina. He inserted the stick once, the penis thrice and the finger thrice. He then asked her to dress up and not to tell her grandmother. The incident occurred during the day and she did not inform her grandmother as she was instructed.
45. On cross-examination, she stated that on 18/12/2023, Maryanne visited home at 8 am and her grandmother escorted her at 2pm. She opened school on 8/1/2024 for that term. She confirmed that C(a minor) and B(a minor) are her cousins. B(a minor) was 3 years old while C(a minor) was 10 years old. She recalls that when Maryann visited her grandmother had left for work. Robert was also away. C(a minor) was at home during the subject time. She recalls that during the first incident she wore a pink trouser and a blue t-shirt. Her grandmother used to do her laundry. She stated that the appellant used to hit her and insert fingers, sticks and penis each time. She used to bleed and would dress up and her grandmother would do her laundry. She confirmed that the stick was the size of a bic pen. The appellant would collect sticks as they headed to the scene each time. During the first incidence the appellant wore a black trouser and a blue t-shirt.
46. She testified that she had three uncles. On 01.01.2024, her uncle Robert Mwangi visited. She stated that she was wearing a black skirt and white t-shirt, while Edwin was in blue trousers and a black t-shirt. Her grandmother had gone to borrow some onions around 10:00 a.m., even though she had some on her farm. The minor stated that the appellant committed the alleged act at approximately 9:00 a.m. She did not scream, even though her grandmother was nearby, because the appellant warned her not to tell anyone, particularly her grandmother, or he would punish her.
47. She further stated that on 06.01.2024, the minor’s grandmother went to attend a burial. The appellant visited the house while the minor was with C (a minor) in the bedroom and asked her to follow him. She stated that in her recorded statement on the same date, she had indicated that the appellant asked for food, but she declined, noting that only leftovers from the previous night remained. She further testified that the appellant served all the food. She stated that when her grandmother went for the burial, her grandfather, Mike, Robert, C (a minor), and B (a minor) were at home.
48. On 7/1/2024, she left for church with her grandmother. She then took a nap on the seat. Her grandmother also took a nap. On Sundays, they attend church. The appellant was to fetch firewood on Sunday. He had left to purchase medicine for her grandfather. She stated she was taken to the hospital at Ichamara on 8/1/2024 due to fever and a common cold. She stated that Robert and Mwangi do not reside with Edwin. Robert’s house is near Edwin’s. Mwangi does not reside at home. She stated that Robert used to be in the living room so he could not have heard her being defiled. She confirmed that she is the one who alerted her grandmother about the defilement. She had noted that the appellant bought medication on Sunday. He wore black trousers and a blue T-shirt. She stated that she studied in grade 1 at her grandmother’s home, but attended grades 2 and 3 in Nairobi. In 2023, she was studying in Nairobi.
49. The court noted the demeanor of the minor as soft-spoken and would take a long time to respond, but was consistent and maintained eye contact.
50. PW2 was Jecinta Wachuka Gathigi, a grandmother of the complainant and the appellant. The complaint was born on 12.1.2016. The appellant was born in 2004
[...truncated]
2. The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on diverse dates between 18.12.2023 and 7.01.2024, at Matuto Village, Githi Location of Mûkûrwe’inî Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of P.M.W., a girl aged seven (7) years.
3. There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that on diverse dates between 18.12.2023 and 7.01.2024 at Matuto village, Githi Location of Mûkûrwe’inî Sub-County within Nyeri County, the Appellant unlawfully and intentionally touched the vagina of P.M.W., a child aged 7 years.
4. The Appellant was arraigned in court on 22/01/2024. The matter was referred to court number 2 for 23/01/2024. However, the charge was still brought on the next day before the same court. The charge was read, but it is not clear which language was used. He denied the charges. The appellant was released on 07.02.2024 for Ksh. 100,000/= with one surety of the same amount. He was supplied with witness statements and supporting documents.
5. The right to legal representation was indicated to be explained after a hearing date was fixed, 7 days later. Luckily, the appellant appointed an advocate for the hearing date.
6. The court heard sworn testimony from a total of five prosecution witnesses. The appellant was placed on his defence after the court delivered a lengthy ruling finding the prosecution witnesses credible and stating that it would convict if he remained silent. This is not the correct test. The court is entitled only to peruse the evidence and find whether a prima facie case has been established.
7. It is not true that, after a prima facie case, if an accused opts to remain silent, the court must convict. The prima facie standard is a civil standard. The court should and must be guided by the standard of proof in criminal cases. An accused person does not assume the role of proving his innocence. Rebuttal can be done though cross examination. The burden of proof remains in the state throughout the trial. In the case of Republic v Abdi Ibrahim Owl [2013] KEHC 2122 (KLR) , Mutuku J posited as follows:
“Prima facie” is a Latin word defined by Black’s Law Dictionary, 8th Edition as “Sufficient to establish a fact or raise a presumption unless disproved or rebutted”. “Prima facie case” is defined by the same dictionary as “The establishment of a legally required rebuttable presumption”. To digest this further, in simple terms, it means the establishment of a rebuttal presumption that an accused person is guilty of the offence he/she is charged with. In Ramanlal Trambaklal Bhatt v. R [1957] E.A 332 at 334 and 335, the court stated as follows:
“Remembering that the legal onus is always on the prosecution to prove its case beyond reasonable doubt, we cannot agree that a prima facie case is made out if, at the close of the prosecution, the case is merely one “which on full consideration might possibly be thought sufficient to sustain a conviction.” This is perilously near suggesting that the court would not be prepared to convict if no defence is made, but rather hopes the defence will fill the gaps in the prosecution's case. Nor can we agree that the question whether there is a case to answer depends only on whether there is “some evidence, irrespective of its credibility or weight, sufficient to put the accused on his defence”. A mere scintilla of evidence can never be enough: nor can any amount of worthless discredited evidence……. It is may not be easy to define what is meant by a “prima facie case”, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence could convict if no explanation is offered by the defence.”
8. It must be noted that the court cannot shift the burden of proof to an accused person except in very limited cases, for example, in a scenario in section 323 of the Penal Code or matters covered to a small extent in section 111 of the Evidence Act. The first of the sections provides as follows:
323. Any person who has been detained as a result of the exercise of the powers conferred by section 26 of the Criminal Procedure Code (Cap. 75) and is charged with having in his possession or conveying in any manner anything which may be reasonably suspected of having been stolen or unlawfully obtained, and who does not give an account to the satisfaction of the court of how he came by the same, is guilty of a misdemeanour.
9. The presumption of innocence remains, and the burden of proof is on the state. In the locus classicus and the most oft quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462, pp. 481. Further reliance was placed on the case of Sekitoleko v Uganda (1967) EA 531 at p 533, where the legendary Sir Udo Udoma C J stated as follows:
As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution.
10. Further, the court erroneously used sections 306 and 307 of the Criminal Procedure Code. It is doubtful that the court complied with the requirements of Section 211 of the Criminal Procedure Code. It is unnecessary to address this issue at this point in view of the more poignant point raised herein.
11. Upon being placed on his defence, the Appellant, his cousin Robert and his grandfather testified as Dw1, DW2 and dw3. The court considered the prosecution's evidence, disregarded the defence evidence, and rendered the Judgement. The Court found the Appellant guilty and sentenced him to life imprisonment, with the sentence to run from the date when his bond terms were cancelled, 17.01.2025. He was informed of the right of appeal.
12. The Appellant, aggrieved, lodged this Appeal vide a memorandum of appeal dated 31-01-2025 on the following grounds;
a) That the learned trial magistrate erred in law and fact by failing to appreciate that the prosecution witnesses had discrepancies in their statements and during cross-examination, raising a lot of doubts.
b) The learned Magistrate erred in fact by failing to appreciate that it would not be humanly possible to calculate the number of penetrations of sticks, fingers, and penis by an eight-year-old during defilement in four different times.
c) The learned Magistrate erred in law by failing to appreciate that criminal cases must be proved beyond reasonable doubt.
d) The learned Magistrate erred in fact by failing to appreciate that the medical record did not connect in the sense that the minor had a sexually transmitted disease, but the appellant was not tested to show whether he also had the disease.
e) That the learned magistrate erred in law by failing to consider the appellant’s submissions before determining whether the applicant had a case to answer.
f) That the learned magistrate erred in fact by failing to consider that there were other family members present in the compound during the alleged acts as evidenced by the appellant’s witnesses.
13. The grounds, except the fifth one, are similar to those set out in the original ground. The trial are only two sub-issues raised for determination
a) Whether the complainant was defiled during the material time, and;
b) Whether it is the accused person who defiled the complainant,
14. In essence, the appellant maintained that the prosecution did not prove their case beyond a reasonable doubt. Among other issues, he posited that the prosecution's evidence contained discrepancies in its statements and in its cross-examination. He also posited that the court did not appreciate that it would not be humanly possible to calculate the number of penetrations of sticks, fingers, and penis by an eight-year-old during defilement four different times. Further, the appellant alleges that the court did not appreciate that the medical evidence did not establish that the minor had a sexually transmitted infection. However, the appellant was not tested to show whether he had the same. He further asserts that the court did not consider the appellant’s submissions and evidence before deciding the case.
Submissions
15. The appellant filed submissions dated 27.10.2025. He submitted that the complainant had been warned by her mother to tell the truth before testifying in court. While such an admonition may ordinarily be considered normal and reasonable, the appellant argued that, in the circumstances of this case, it invites closer scrutiny. First, the need to prepare the minor prior to her testimony suggests an attempt to control or shape a particular narrative. Secondly, instructing the minor to “tell the truth” implies that she may be prone, or perceived to be prone, to dishonesty, thereby raising questions about her credibility. Thirdly, and this being the appellant’s principal concern, the minor’s response regarding the consequences of not telling the truth was troubling: she stated that when she lies to her mother, she expects to be beaten. According to the appellant, this response raises the possibility that the minor’s testimony may have been influenced by fear of punishment rather than a free and voluntary recollection of events.
16. They submitted that it follows from the above that the minor was under instructions to tell the truth lest a punishment would ensue. The issue in these submissions will then be, whose truth (narrative) was she prepared to tell? It would appear that from voire dire, the trial court reached a conclusion that the minor may not have understood the value of the oath.
17. They submitted that PW1 opened her testimony by placing the locus as “Kiahungu” contrary to “Matuto” found in the charge sheet. While acknowledging the main residents of her environment, she is intrigued to state that, concerning the appellant, she did not know whether he studies or works. Despite her impressive “eloquence,” she insists she transferred to her new school while in grade 2, contrary to the evidence of PW2 and PW3. They questioned her testimony that, when examined concerning the appellant, she stated she had gone to visit her grandfather on 18.12.2023, when the appellant wronged her. Yet the evidence is that she had been resident there for a number of years. Pressed further about being ‘wronged” by appellant, she testified that appellant beat her with a stick until she started crying. Stating further that the appellant later inserted a stick into her private part, besides using his forefinger and then his penis.
18. It was submitted that although the complainant appeared remarkably composed and detailed in her testimony, purporting to clinically demonstrate the number of times various objects were allegedly used and even recalling the clothes and colours worn on the material dates, such detail was incongruous with the charge sheet. Counsel argued that neither the main nor the alternative charge specified the use of fingers or a stick as instruments of the alleged assault, raising the question whether the prosecution itself doubted that aspect of the complainant’s account.
19. Further, it was submitted that the complainant’s evidence was riddled with inconsistencies. Whereas she initially testified that no one else was present at the homestead on 18.12.2023, she later stated that one B(a minor) was outside playing with another cousin. She further testified that the incident was not isolated and introduced additional alleged dates, namely 01.01.2024, 06.01.2024, and 07.01.2024, which were not clearly anchored in the charge sheet. It was contended that these inconsistencies and omissions went to the root of the prosecution’s case, thereby undermining its credibility and significantly weakening its probative value.
20. It was his submissions that the prosecution's evidence was marked by material inconsistencies that weakened its credibility. The fact that PW1 was able to outpace PW2 as they left the church was difficult to reconcile with the evidence of PW2 and PW3 that the minor could neither walk properly nor sit. PW1 also testified that on 07.01.2024, she went out to play with her cousins, a circumstance that cast doubt on the allegation that she had already been sexually abused.
21. PW1 stated that it was on 08.01.2024 that PW2 noticed she was not walking properly and questioned her, leading to the alleged disclosure. However, PW1 never testified that she had any difficulty walking during the alleged incidents. Further contradictions emerged on how the disclosure was made. PW1 claimed it occurred in the morning, while PW2 testified that it was later in the day, after she noticed an unusual smell and decided to bathe the minor. These divergent accounts were irreconcilable.
22. It was further submitted that PW2 claimed to have observed wounds, dirt, and discharge in the minor’s vagina, yet no immediate medical or police action was taken. Despite allegedly making these observations on 08.01.2024, PW2 only sought medical attention the following day, for tonsil and common cold, and no satisfactory explanation was offered for this delay. Counsel argued that, apart from an allegation that the appellant had bought PW1 an apple, there was no clear or cogent incriminating evidence linking the appellant to the alleged offence.
23. he submitted that the court further noted the difficulty of attributing precise dates of assault to a child of tender years. PW2, as the recipient of the first report, failed to give a coherent account of what the minor told her and how the appellant was implicated. In the absence of a clear first report and given the contradictions between PW1 and PW2, a critical link in the prosecution case was missing, leaving the evidence wanting. Reliance was placed, Michael Muriithi Kinyua v Republic [2002] KECA 315 (KLR), where, it was alleged that the court emphasized the need to take into account the first report. Underscoring its importance in safeguarding a true account of what happened before the influence of others and other reflections have set in.
24. It was their submissions that the minor was finally taken to Mûkûrwe’inî subcounty Hospital the next day, 10.1.2024. Curiously, an allegedly critically ill patient, instead of being treated/ examined, was first referred to the police station to file a report. An apriori conclusion of sexual assault seems to have been drawn. Be it as it may, she was thereafter attended to and treated. PW1 evidence is that she received 4 jabs and medicine. The minor concludes that she was not present when the appellant was arrested, whereas PW5 testified that it was the minor who pointed out the appellant.
25. Finally, it was submitted that, in outlining the prosecution’s case in the judgment, the trial magistrate appears to have misdirected herself on the facts. She thereafter embarked on an analysis of the issues for determination and an exposition of the applicable law from a standpoint that, according to counsel, reflected a pre-formed conclusion. It was contended that the trial court adopted an exclusionary approach aimed at sustaining that conclusion, thereby eroding the fundamental safeguard of the presumption of innocence. In effect, counsel argued, the burden of proof impermissibly shifted from the prosecution to the accused, requiring the appellant to disprove the case against him. It was thus submitted that the trial court undertook a theoretical or abstract inquiry, rather than a strict factual evaluation of the evidence, in arriving at a finding of guilt.
26. The appellant further submitted that the trial magistrate appeared to have put the cart before the horse by effectively finding that the offence was proved before considering the defence. The defence evidence was only touched after the conclusion, only to demonstrate its perceived implausibility in light of an already-reached finding of guilt. It was contended that this misdirection impaired the court’s ability to critically analyse the evidence and objectively arrive at the conclusion it did. Counsel argued that the judgment discloses elements of confirmation bias, which prejudiced the appellant in that his defence was not subjected to an impartial and balanced consideration.
27. On the whole, neither the fact of defilement nor the guilt of the appellant was proved beyond reasonable doubt. It is our submission that the case was contrived through PW2, who felt there was something more to the cold. She discovered an injury to the minor’s anus. The court notes that the medical evidence was that there was no injury to the anus.
28. PW3 further interrogated and prodded the minor to believe she had been abused. She built and maintained a case around these suspicions. Consequently, she fixed it on the appellant, and the prosecution and the trial court swallowed it hook, line, and sinker.
29. On their part, the Respondent filed submissions dated 6.10.2025 and maintained that the appellant was correctly sentenced. The Respondent invited the court to rely on the case of Okeno v Republic [1972] EA 32 at 36 for guidance on the court's duty in a first appeal. It was the State’s submission that it had discharged the burden of proof by establishing the three elements it was required to prove. Accordingly, the Respondent addressed the Court on three sub-issues, namely:
a. Proof of Penetration
b. proof of Age of the victim.
c. Identity of the perpetrator.
30. They submitted that the complainant, though of tender years, gave a clear, consistent, and coherent account of the events. It was contended that she explained how the appellant would call her, lead her to his house, take her to the bedroom, and direct her to lie on the bed, after which the alleged act occurred on several occasions.
31. On proof of age, reliance was placed on the case of Kaingu Elias Kasomo v Republic, C.A. Cr. App. No. 504 of 2010; where they stated that the court of appeal stated that, “age is a key ingredient to the offence of defilement and failure to prove it amounts to failure to prove the offence beyond reasonable doubt.”
32. They submitted that, in her evidence, the minor stated that she was seven years old. The complainant’s mother identified a birth certificate indicating that the minor was born in January 2016. The medical report recorded the minor’s age as eight years at the time of examination, while the Investigating Officer produced a birth certificate showing that the minor was seven years old at the time of the incident. It was therefore submitted that the age of the minor was proved beyond reasonable doubt and was not contested by the appellant.
33. On the identity of the perpetrator, it was submitted that the appellant and the minor were well known to each other, being maternal cousins who shared grandparents and resided within the same compound. Given their close familial relationship and the minor’s description of the appellant’s house layout where the alleged offence occurred in broad daylight, it was contended that there was no possibility of mistaken identity.
34. They also addressed a sentence, stating that the sentence was appropriate. They cited section 8(1) (2) of The Sexual Offences Act, which provides that “a person who is found guilty of the offence of defilement with a child aged 11years or less shall, upon conviction, be sentenced to imprisonment for life. According to the Respondent, the trial court handed down an appropriate sentence as prescribed by statute” . They went ahead nevertheless and relied on the case of S V Malgas 2001(!)SACR 469 (SCA) at para 12 where it was held that:
A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court……..However, even in the absence of material discretion, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking’, “Startling” or “disturbingly inappropriate”
They also cited the case of Shadrack Kipkoech Kogo –vs- R, Eldoret Criminal Appeal No. 253 of 2023 where the court of Appeal stated that’, “ Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a very wrong principle was applied or that short of these , the sentence itself is so excessive and therefore an error of principle must be interfered.”
Finally, they also relied on the case of R –VS- Joshua Gichuki Mwangi petition no. 18 of 2023 where the supreme court was clear that , “Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law”. The court was categorical that mandatory sentences are not unconstitutional , “it should be apparent from the foregoing that Muruatetu cannot be the authority for stating that all provisions of the law prescribing mandatory or minimum sentences are inconsistent with the constitution.”
35. The court was accordingly urged to dismiss the appeal, it being contended that both the conviction and the sentence were proper and lawful.
Evidence
36. The trial court conducted a voire dire examination and found the complainant unsuitable to give sworn testimony as she did not understand the nature of an oath. She therefore testified unsworn and was cross-examined. She stated that she was eight years old, a Grade 3 pupil at MAA School, and ordinarily lived with her mother at Kahawa West, where she also attended church. She went to visit the grandparents in 2023; on a date she could not recall. She recalled that on 18.12.2023, she was staying at her grandparents’ when Edwin did something wrong to her.
37. She was in her homestead in Kiahugu village, where several relatives, including the appellant, resided in separate houses within the same compound. The houses were between 10m to 50m apart. The appellant was his cousin. The appellant stayed with DW2. DW3, her grandfather lived 10 m from their house.
38. A girl by the name Maryanne came to their home and was escorted by the grandmother. The appellant lured the minor inserted a stick a size of Bic pen, a finger and then, a penis. Another minor, B, 3-year-old, was playing outside. On 1.1.2024, the she went for onions, when appellant again lured the minor inserted a stick a size of Bic pen, a finger and then, a penis.
39. Another date, 6.1.2024, Robert left to collect milk, when the grandmother went to a burial. Robert left at 9.00 am again appellant lured the minor inserted a stick a size of Bic pen, a finger and then, a penis.
40. On 07.01.2024, she attended church with her grandmother and later played within the compound. She stated that the appellant gave her an apple and later called her to his house, where another incident allegedly occurred during the day. As with the previous occasions, she stated that she was instructed not to inform her grandmother and initially remained silent.
41. She testified that she later began experiencing pain, difficulty walking, and discomfort when using the toilet. She eventually disclosed the alleged incidents to her grandmother, who later took her for medical attention. She was examined at fya Bora clinic and given medicine. The following day, the patient was taken to Mûkûrwe’inî hospital by the police and examined. She maintained that her testimony was truthful and that she had not falsely implicated the appellant. She maintained that he hit her in her vagina using a stick four times, then inserted his index finger into her vagina and inserted the stick again. The appellant then removed his clothes and inserted his penis into her vagina four times. He had worn a red T-shirt and white trousers.
42. She stated that she left her grandmother's living room because there was no one else at her grandmother's home. Her grandmother returned at 3 pm, cooked the food, and she ate. She went to play with B(a minor) and C(a minor). She did not alert anyone about the incident.
43. On cross-examination, she stated that on 7/1/2024, on a Sunday, she went to church with her grandmother at Matuto area. The appellant had been sent by her grandfather to purchase medicine. After church, the minor ate and took a nap. She later woke up and went to play outdoors with B(a minor) within the compound. C(a minor) was showering. The appellant brought her an apple, which she ate. Grandmother asked him to harvest firewood, but he declined. she told him that the grandmother had instructed her not to eat. He asked the minor to serve him food, but she declined because of her grandmother's instructions. She went back to the house and slept. The appellant served himself and ate. She stated that her grandmother asked about who had eaten the food, and she told her it was the appellant.
44. Later, the appellant called her, and she went to his house to the bedroom. She asked her to lie on the bed and undress which she did. She had worn a white top, a green t-shirt, brown trousers, and black innerwear. She removed the trousers and innerwear to ankle length. The appellant had a pair of white trousers which he also removed to knee level together with his brown underwear. He hit her thrice below the tummy using a stick the size of a bic pen where she urinates from. She felt pain then he inserted his right index finger in her vagina. He also inserted the stick later into her vagina. He inserted the stick once, the penis thrice and the finger thrice. He then asked her to dress up and not to tell her grandmother. The incident occurred during the day and she did not inform her grandmother as she was instructed.
45. On cross-examination, she stated that on 18/12/2023, Maryanne visited home at 8 am and her grandmother escorted her at 2pm. She opened school on 8/1/2024 for that term. She confirmed that C(a minor) and B(a minor) are her cousins. B(a minor) was 3 years old while C(a minor) was 10 years old. She recalls that when Maryann visited her grandmother had left for work. Robert was also away. C(a minor) was at home during the subject time. She recalls that during the first incident she wore a pink trouser and a blue t-shirt. Her grandmother used to do her laundry. She stated that the appellant used to hit her and insert fingers, sticks and penis each time. She used to bleed and would dress up and her grandmother would do her laundry. She confirmed that the stick was the size of a bic pen. The appellant would collect sticks as they headed to the scene each time. During the first incidence the appellant wore a black trouser and a blue t-shirt.
46. She testified that she had three uncles. On 01.01.2024, her uncle Robert Mwangi visited. She stated that she was wearing a black skirt and white t-shirt, while Edwin was in blue trousers and a black t-shirt. Her grandmother had gone to borrow some onions around 10:00 a.m., even though she had some on her farm. The minor stated that the appellant committed the alleged act at approximately 9:00 a.m. She did not scream, even though her grandmother was nearby, because the appellant warned her not to tell anyone, particularly her grandmother, or he would punish her.
47. She further stated that on 06.01.2024, the minor’s grandmother went to attend a burial. The appellant visited the house while the minor was with C (a minor) in the bedroom and asked her to follow him. She stated that in her recorded statement on the same date, she had indicated that the appellant asked for food, but she declined, noting that only leftovers from the previous night remained. She further testified that the appellant served all the food. She stated that when her grandmother went for the burial, her grandfather, Mike, Robert, C (a minor), and B (a minor) were at home.
48. On 7/1/2024, she left for church with her grandmother. She then took a nap on the seat. Her grandmother also took a nap. On Sundays, they attend church. The appellant was to fetch firewood on Sunday. He had left to purchase medicine for her grandfather. She stated she was taken to the hospital at Ichamara on 8/1/2024 due to fever and a common cold. She stated that Robert and Mwangi do not reside with Edwin. Robert’s house is near Edwin’s. Mwangi does not reside at home. She stated that Robert used to be in the living room so he could not have heard her being defiled. She confirmed that she is the one who alerted her grandmother about the defilement. She had noted that the appellant bought medication on Sunday. He wore black trousers and a blue T-shirt. She stated that she studied in grade 1 at her grandmother’s home, but attended grades 2 and 3 in Nairobi. In 2023, she was studying in Nairobi.
49. The court noted the demeanor of the minor as soft-spoken and would take a long time to respond, but was consistent and maintained eye contact.
50. PW2 was Jecinta Wachuka Gathigi, a grandmother of the complainant and the appellant. The complaint was born on 12.1.2016. The appellant was born in 2004
[...truncated]