(Being an Appeal from the judgment and sentence of Honourable A Ndungu- PM dated 15th June, 2023 in Makindu Senior Principal Magistrate’s Court SO Criminal Case No. 124 of 2019)
1. The Appellant, Elisha Amega Osinde, was charged in the Makindu Senior Principal Magistrate’s Court SO Criminal Case No. 124 of 2019, with the offence of Defilement Contrary to section 8(1) and (2) of the Sexual Offences Act. No. 3 of 2006. The particulars were that on the 18th day of November, 2019 at Muuni Village, Nguumo Location in Makindu Sub-County within Makueni County, the Appellant intentionally, and unlawfully caused his male genital organ (Penis) to penetrate the female genital organ (Vagina) of G.C.N.M a child aged 3 years.
2. The Appellant, in the alternative, faced a charge of committing an indecent act with a child contrary to section 11(1), of the Sexual Offences Act. No. 3 of 2006, the facts being that on the said date at the same place, he intentionally and unlawfully touched the genital organ(vagina) of G.C.N.M, a child aged 3 years with his penis.
3. In support of its case, the prosecution called Five (5) witnesses. After voire dire examination, the complainant (PW1) gave unsworn statement and stated that she knows the Appellant herein, whom she saw at his residence. She told the trial court that the Appellant gave her a sweet, carried her on his lap, removed her dress and touched her vagina with an object resembling metal which caused her to scream. She was subsequently taken to the hospital by her mother and Aunt Nthenya, where her private parts were examined.
4. In Cross-examination, she stated that she accompanied her sister, Milka Mwende, to Kamolo homestead to collect books when the incident occurred. She maintained that the accused defiled her by touching her vagina with a metal like object while he was seated on a metal chair. She reiterated that her mother and Kadogo took her to the hospital.
5. PW2, Milka Mwende, a minor of 10 years and the complainant’s sister stated that on the material day in 2019, she went to their neighbor's house (Kwa Kamolo) accompanied by PW1 to copy mathematics homework from a schoolmate named Mercy. Having realized she forgot her pen, she briefly left PW1 behind to fetch it from home. Upon her return, she found PW1 holding a doll and a ball. PW1 informed her that the accused had given her a sweet, and the accused subsequently offered sweets to both her and Mercy.
6. In cross examination, she stated that she did not observe any physical injuries on PW1 at the time, nor did the complainant complain of pain while they were playing. She further noted that she did not know the underlying reason why the accused gave them sweets.
7. PW3, Mary Wayua Mutune, the grandmother to PW1 and PW2 testified that on the stated date, PW1 and PW2 went to play at Kamolo’s residence, roughly 200 meters away. They returned at around 6:00 PM. While preparing a bath for PW1, the child adamantly complained of pain, imploring her grandmother not to touch her private parts. The following day, the children left for Mombasa to join their mother. Shortly after, she received a distress call from her daughter-in-law at the bus stage, stating that PW1 was crying in extreme pain while attempting to urinate. Medical examinations in Mombasa later confirmed defilement, prompting their return to report the matter.
8. Upon cross-examination, she conceded that she did not immediately comprehend that the child had been defiled when she initially bathed her.
9. PW4, Dr. Josephine Mueni Maithya, a Medical Officer at Makindu Sub-County Hospital, examined the complainant on 20th November 2019. While the general systemic physical examination was normal, a local examination of the genitalia revealed a torn hymen and a whitish vaginal discharge. Laboratory analysis indicated the presence of protein cells and yeast cells. She classified the nature of the offence as defilement and estimating the age of the injury to be 6 days prior.
10. On cross-examination, she clarified that her examination was conducted 6 days post-incident, following the victim's preliminary treatment at Jiloni Medical Centre on 16th November 2019. She stated that she did not examine the accused person.
11. PW5, Phaneil Indeche, the Investigating Officer, testified that the matter was reported to Makindu Police Station after medical personnel in Mombasa discovered the child had been defiled. Police accompanied the victim for re-examination at Makindu Sub-County Hospital and subsequently recorded witness statements. Both the complainant and PW2 positively identified the Appellant, an employee at the neighbor's homestead, as the perpetrator. An Age Assessment Report was conducted, establishing the complainant's age as 3 years. The Appellant was thereafter arrested at his place of work.
12. On cross examination, he confirmed that the grandmother was initially unaware of the defilement during the bath. He noted the distance between the Appellant’s and the complainant’s residences was roughly 70–100 meters, and defended the integrity of his investigation, confirming the arrest was formally processed via the occurrence book.
13. At the close of the prosecution’s case, the Appellant was placed on his defence. He gave sworn testimony and completely denied the charges. He stated that on 19th November 2019, he was unwell at home. After his Aunt left for church, he was left in charge of the homestead and the children. He prepared food and later walked to the farm to check on his relatives who were weeding maize. Shortly after, two men approached him, leading to his arrest. He categorically denied placing the complainant on his lap, removing her clothes, penetrating her genitalia, or offering her lollipops. He claimed he was being maliciously framed by the grandmother (PW3), asserting that PW3 had previously pursued a romantic relationship with him which he declined, prompting her to fabricate these allegations out of spite. He further claimed that the medical evidence was manufactured and bought by his accusers.
14. Upon cross examination, he stated that he did not know the complainant prior to the case, though he knew her sister, PW2. He maintained his stance that the entire case was a conspiracy orchestrated by PW3.
15. In the judgement delivered on 15th June, 2023, the learned trial magistrate found the main charge of defilement was proved beyond reasonable doubt. The Appellant was convicted accordingly and sentenced to serve 30 years in prison.
16. In this appeal, the appellant set out the following grounds: -
1) That the learned Trial Magistrate erred in law and in fact in issuing a 30 years sentence when the prosecution evidence on the three elements to establish a defilement offence were not met.
2) That the learned trial magistrate erred in law and in fact in pronouncing 30 years imprisonment in absolute disregard to exercise of discretion and award a sentence that mitigates the rehabilitation.
3) That the Appellant prays for the Honourable Court to fully consider the defence evidence and resolve any doubts in the Appellant’s favour.
17. On that basis, the Appellant prays that the conviction be quashed, the sentence of 30 years imprisonment be set aside and the Appeal allowed forthwith.
18. In his submissions, the Appellant raises four distinct grounds challenging his conviction and subsequent 30-year prison sentence for defilement. First, he contends that the trial magistrate erred by relying on the unsworn testimony of a minor (PW-1) who was legally found incompetent to take an oath or distinguish truth from falsehood. Second, he claims that the admitted evidence regarding penetration was medically unsupported and riddled with contradictions. Third, he argues that the court relied heavily on contradictory and unreliable documentary exhibits. Finally, the Appellant asserts that the trial court erroneously dismissed his plausible sworn defense, which ought to have outweighed the prosecution case built on conflicting timelines.
19. In developing the arguments for the first two consolidated grounds as identified in the submissions, the Appellant underscores the trial court's explicit voir dire finding that the three-year-old complainant (PW-1) did not understand the nature of an oath or the concept of truth. This is contrary to the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap 15), which provides that such unsworn child testimony strictly demands independent corroboration. The appellant relies on Johnson Muiruri v Republic [1983] KLR 445 to emphasize that a conviction cannot properly stand on unsworn child testimony without material corroboration, an issue that the trial magistrate failed to apply.
20. Furthermore, the Appellant argues that PW-1’s testimony was fundamentally unreliable. It is argued that she stated during cross-examination that she was defiled using a metal, directly contradicting her primary assertion that the Appellant touched her with his penis. Citing Keter v Republic [2007] 1 EA 135, the Appellant notes that evidence riddled with contradictions is entirely unsafe to sustain a conviction.
21. The Appellant asserts that the prosecution failed to provide independent corroboration through its other witnesses. PW-2 testified that immediately after the alleged incident, the child was playing normally with a doll and ball, showing no signs of bleeding, injury, or distress. Additionally, vital eye-witnesses mentioned such as Mama Mercy, Mary, and Mwende, were never called to testify. Invoking Kuuma v Republic (Criminal Appeal 22 of 2021), the Appellant contends that while the prosecution has discretion in calling witnesses, failing to call material witnesses when the case is barely adequate justifies drawing an adverse inference against the prosecution.
22. Addressing the third ground, the Appellant points to irreconcilable conflicts within the medical evidence. He argued that, the Medical Officer (PW-4) testified that the complainant's injuries were roughly six days old when examined on 20th November, 2019, positioning the incident around 14th November, 2019. This directly clashes with the charge sheet, which fixed the crime date as 18th November, 2019. Moreover, the PRC Form indicated that the victim received treatment even earlier on 16th November at Tikoni Medical Centre, yet no practitioner from that facility was called to secure the evidential chain. Guided by Okeno v Republic [1972] EA 32 on the first appellate court's duty to re-evaluate evidence, and Kiarie v Republic [1984] KLR 739, which mandates that medical and documentary evidence must be consistently be linked to the offense, the Appellant argues these substantive defects of the unsworn and contradictory statement by the complainant, the lack of corroboration from other witnesses and inconsistence in the medical and documentary evidence, rendered the conviction unsafe and therefore, the prosecution failed to prove the offence of defilement beyond reasonable doubt as provided for under section 107 of the Evidence Act (Cap 80).
23. Under the fourth ground, the Appellant maintains that the trial court committed a grave legal error by summarily dismissing his consistent, unshakeable sworn defense, in which he denied the offense and any knowledge of the complainant. He argued that the burden of proof never shifts to an accused person. Relying on Okethi Okale & Others v Republic [1965] EA 555, the Appellant asserts that weaknesses in a defence cannot cure a prosecution case that has failed to hit the requisite threshold.
24. Finally, referencing Sawe v Republic [2003] KLR 364, in which the Court of Appeal stressed that mere suspicion, no matter how strong, cannot be a basis of conviction and that the evidence must irresistibly point to the accused, he argued that his defence raised doubts that were never dispelled by the prosecution and which the trial court did not give any weight.
Analysis and Determination
25. This Court has carefully considered the grounds set out in the Petition of Appeal, the Record of Appeal, the evidence contained therein together with the written submissions. Being a first appellate court, this Court is enjoined to re-evaluate and re-analyze the entire evidence that was placed before the trial court and to arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. This duty of a first appellate court was authoritatively stated by the Court of Appeal in Okeno v Republic [1972] EA 32, where the Court observed as follows:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwal v R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”
26. Equally, the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336 in respect to the duty of a first appellant court, stated as follows; -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
27. The import of the foregoing is that a first appellate court must do more than merely review of the judgment of the trial court. It is enjoined to reconsider, re-evaluate and re-analyze the entirety of the evidence on record afresh and draw its own independent conclusions, while giving due allowance to the fact that it neither saw nor heard the witnesses testify. It must then determine whether the findings and conclusions reached by the trial court are borne out by the evidence and the law.
28. The Appellant herein was charged under section 8(1) and (2) of the Sexual offences Act, No. 3 of 2006. Section 8 (1) and (2) provides as follows:
“8. (1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
29. The Court of Appeal in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) held: -
“Under the Sexual Offences Act the main elements of the offence of defilement are as follows:(i) The victim must be a minor, and (ii) There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice. Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond a reasonable doubt.”
30. It is thus settled that for the accused to be convicted of the offence of defilement, the following ingredients must be proved beyond reasonable doubt;
1) Age of the complainant.
2) Penetration.
3) Whether the penetration was by the Appellant.
31. On the first ingredient of the offence, namely the age of the complainant, Uganda Court of Appeal case of Francis Omuroni vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, is instructive on the age as follows:
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”
32. The age of the minor, in this case, was not in dispute. Both the oral and documentary evidence adduced before the trial court established that the complainant was three (3) years old at the time the offence was committed. In particular, the Age Assessment Report dated 20th November 2019, produced as Prosecution Exhibit 3, confirmed the complainant's age as three years at the material time. This Court is therefore satisfied that the prosecution proved the complainant's age beyond reasonable doubt.
33. As regards the second ingredient, Section 2 of the Sexual Offences Act defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
34. Consequently, for the offence of defilement to be established, the prosecution must prove that there was partial or complete insertion of the appellant's genital organ into the complainant's genital organ. Mere contact between the genital organs, without proof of insertion, does not amount to penetration within the meaning of the Act. It is, however, well settled that proof of complete penetration is unnecessary, as partial insertion is sufficient to satisfy the statutory requirement.
35. The Appellant challenged the prosecution's evidence on penetration, contending that PW1 testified in her examination-in-chief that she had been defiled using the Appellant's penis, but contradicted herself during cross-examination by stating that the object used was ‘a metal’.
36. I have carefully re-evaluated the evidence on record. The complainant, who was only three years old at the time of the incident, gave a coherent account of the events of the material day. She testified that the Appellant carried her on his lap, removed her clothes, and touched her genital area. Although she initially stated that she did not know the object the Appellant used to touch her private parts, she later described it as "something like metal."
37. In my considered view, that description does not constitute a material contradiction. Given the complainant's tender age, it would be unreasonable to expect her to accurately identify or describe the Appellant's genital organ. Her description must therefore be considered in the context of her age, level of understanding, and ability. The expression "something like metal" was merely an attempt by a child of tender years to describe an object she was unable to identify with precision. Her evidence, taken as a whole, remained consistent on the material particulars of the offence.
38. In addition, the complainant's evidence was corroborated by the medical evidence on record. The Post Rape Care (PRC) Form and the P3 Form, both completed on 20th November 2019, confirmed that the complainant's hymen was broken and assessed the injuries to have been approximately six days old. This medical evidence placed the occurrence of the injury on or about the 14th November 2019, the very date on which the offence was alleged to have been committed. The medical findings therefore lend credence to the complainant's account and establish that penetration occurred.
39. Although the medical evidence corroborated the complainant's testimony, it is important to note that corroboration was not, in the circumstances of this case, a legal prerequisite to conviction. Section 124 of the Evidence Act provides that in prosecution for sexual offences, a court may convict on the sole evidence of the complainant if, for reasons to be recorded, it is satisfied that the complainant is truthful. For emphasize, that sections state as follows;
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
40. The complainant in this case was a child of tender years. Upon conducting a voire dire examination, the trial court found that she did not understand the nature of an oath and accordingly received her unsworn evidence. The fact that her testimony was unsworn did not render it inadmissible. In Sula v Uganda [2001] EA 556, the Supreme Court of Uganda held that a child who gives unsworn evidence remains liable to cross-examination in order to test the veracity of that evidence. Indeed, the record shows that the complainant was duly cross-examined, and nothing emerged to discredit her testimony.
41. This Court further notes that the trial court expressly found the complainant to be a truthful and credible witness, despite her tender age and recorded its reasons for believing her evidence. Having independently re-evaluated her testimony, I find no basis for departing from that finding. Her evidence was clear, consistent and remained unshaken on the material aspects of the prosecution's case.
42. Turning to the final ingredient of the identity of the perpetrator, the complainant identified the Appellant in court as the person who defiled her. PW2 equally testified that the Appellant was their neighbour at Kwa Kamolo and confirmed that he was at the said homestead on the material date and even gave them sweets. PW3 also testified that she knew the Appellant prior to the incident. Significantly, the Appellant himself admitted that he knew both PW2 and PW3, although he denied knowing the complainant. His defence was that PW3 falsely implicated him after he declined her advances.
43. The evidence on record leaves no doubt that the Appellant was well known to the complainant's family before the incident. This was therefore a case of recognition rather than identification of a stranger, thereby substantially eliminating the possibility of mistaken identity. I am accordingly satisfied that the Appellant was positively identified as the perpetrator.
44. On that basis and upon my own independent evaluation of the entire evidence on record, I find that the prosecution proved beyond reasonable doubt each of the essential ingredients of the offence of defilement, namely the age of the complainant, penetration, and the identity of the Appellant as the perpetrator. The conviction entered by the trial court was therefore safe.
45. On the sentence, the Appellant contended that the sentence imposed was excessive and did not consider the mitigating factors. Section 8(2) of the Sexual Offences Act prescribes life imprisonment for the offence of defilement where the child is aged eleven years or below. It is not disputed that the complainant in this case was only three years old.
46. Notwithstanding the statutory sentence, the trial court sentenced the Appellant to thirty (30) year’s imprisonment. Having considered the circumstances of the offence and the applicable law, I find no basis upon which to interfere with the sentence imposed. The sentence was lawful and cannot be said to have been harsh or excessive in the circumstances of this case.
Final Disposition
47. In the result, I find that this appeal is devoid of merit. The conviction is upheld, and the sentence imposed by the trial court is affirmed. Accordingly, the appeal against both conviction and sentence is dismissed in its entirety.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY,2026 THROUGH THE MICROSOFT TEAMS PLATFORM
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
APPELLANT IN PERSON FROM KAMITI MAX PRISON
MS MUSANGU FOR THE STATE
COURT ASSISTANT: JAEL NOSIM
1. The Appellant, Elisha Amega Osinde, was charged in the Makindu Senior Principal Magistrate’s Court SO Criminal Case No. 124 of 2019, with the offence of Defilement Contrary to section 8(1) and (2) of the Sexual Offences Act. No. 3 of 2006. The particulars were that on the 18th day of November, 2019 at Muuni Village, Nguumo Location in Makindu Sub-County within Makueni County, the Appellant intentionally, and unlawfully caused his male genital organ (Penis) to penetrate the female genital organ (Vagina) of G.C.N.M a child aged 3 years.
2. The Appellant, in the alternative, faced a charge of committing an indecent act with a child contrary to section 11(1), of the Sexual Offences Act. No. 3 of 2006, the facts being that on the said date at the same place, he intentionally and unlawfully touched the genital organ(vagina) of G.C.N.M, a child aged 3 years with his penis.
3. In support of its case, the prosecution called Five (5) witnesses. After voire dire examination, the complainant (PW1) gave unsworn statement and stated that she knows the Appellant herein, whom she saw at his residence. She told the trial court that the Appellant gave her a sweet, carried her on his lap, removed her dress and touched her vagina with an object resembling metal which caused her to scream. She was subsequently taken to the hospital by her mother and Aunt Nthenya, where her private parts were examined.
4. In Cross-examination, she stated that she accompanied her sister, Milka Mwende, to Kamolo homestead to collect books when the incident occurred. She maintained that the accused defiled her by touching her vagina with a metal like object while he was seated on a metal chair. She reiterated that her mother and Kadogo took her to the hospital.
5. PW2, Milka Mwende, a minor of 10 years and the complainant’s sister stated that on the material day in 2019, she went to their neighbor's house (Kwa Kamolo) accompanied by PW1 to copy mathematics homework from a schoolmate named Mercy. Having realized she forgot her pen, she briefly left PW1 behind to fetch it from home. Upon her return, she found PW1 holding a doll and a ball. PW1 informed her that the accused had given her a sweet, and the accused subsequently offered sweets to both her and Mercy.
6. In cross examination, she stated that she did not observe any physical injuries on PW1 at the time, nor did the complainant complain of pain while they were playing. She further noted that she did not know the underlying reason why the accused gave them sweets.
7. PW3, Mary Wayua Mutune, the grandmother to PW1 and PW2 testified that on the stated date, PW1 and PW2 went to play at Kamolo’s residence, roughly 200 meters away. They returned at around 6:00 PM. While preparing a bath for PW1, the child adamantly complained of pain, imploring her grandmother not to touch her private parts. The following day, the children left for Mombasa to join their mother. Shortly after, she received a distress call from her daughter-in-law at the bus stage, stating that PW1 was crying in extreme pain while attempting to urinate. Medical examinations in Mombasa later confirmed defilement, prompting their return to report the matter.
8. Upon cross-examination, she conceded that she did not immediately comprehend that the child had been defiled when she initially bathed her.
9. PW4, Dr. Josephine Mueni Maithya, a Medical Officer at Makindu Sub-County Hospital, examined the complainant on 20th November 2019. While the general systemic physical examination was normal, a local examination of the genitalia revealed a torn hymen and a whitish vaginal discharge. Laboratory analysis indicated the presence of protein cells and yeast cells. She classified the nature of the offence as defilement and estimating the age of the injury to be 6 days prior.
10. On cross-examination, she clarified that her examination was conducted 6 days post-incident, following the victim's preliminary treatment at Jiloni Medical Centre on 16th November 2019. She stated that she did not examine the accused person.
11. PW5, Phaneil Indeche, the Investigating Officer, testified that the matter was reported to Makindu Police Station after medical personnel in Mombasa discovered the child had been defiled. Police accompanied the victim for re-examination at Makindu Sub-County Hospital and subsequently recorded witness statements. Both the complainant and PW2 positively identified the Appellant, an employee at the neighbor's homestead, as the perpetrator. An Age Assessment Report was conducted, establishing the complainant's age as 3 years. The Appellant was thereafter arrested at his place of work.
12. On cross examination, he confirmed that the grandmother was initially unaware of the defilement during the bath. He noted the distance between the Appellant’s and the complainant’s residences was roughly 70–100 meters, and defended the integrity of his investigation, confirming the arrest was formally processed via the occurrence book.
13. At the close of the prosecution’s case, the Appellant was placed on his defence. He gave sworn testimony and completely denied the charges. He stated that on 19th November 2019, he was unwell at home. After his Aunt left for church, he was left in charge of the homestead and the children. He prepared food and later walked to the farm to check on his relatives who were weeding maize. Shortly after, two men approached him, leading to his arrest. He categorically denied placing the complainant on his lap, removing her clothes, penetrating her genitalia, or offering her lollipops. He claimed he was being maliciously framed by the grandmother (PW3), asserting that PW3 had previously pursued a romantic relationship with him which he declined, prompting her to fabricate these allegations out of spite. He further claimed that the medical evidence was manufactured and bought by his accusers.
14. Upon cross examination, he stated that he did not know the complainant prior to the case, though he knew her sister, PW2. He maintained his stance that the entire case was a conspiracy orchestrated by PW3.
15. In the judgement delivered on 15th June, 2023, the learned trial magistrate found the main charge of defilement was proved beyond reasonable doubt. The Appellant was convicted accordingly and sentenced to serve 30 years in prison.
16. In this appeal, the appellant set out the following grounds: -
1) That the learned Trial Magistrate erred in law and in fact in issuing a 30 years sentence when the prosecution evidence on the three elements to establish a defilement offence were not met.
2) That the learned trial magistrate erred in law and in fact in pronouncing 30 years imprisonment in absolute disregard to exercise of discretion and award a sentence that mitigates the rehabilitation.
3) That the Appellant prays for the Honourable Court to fully consider the defence evidence and resolve any doubts in the Appellant’s favour.
17. On that basis, the Appellant prays that the conviction be quashed, the sentence of 30 years imprisonment be set aside and the Appeal allowed forthwith.
18. In his submissions, the Appellant raises four distinct grounds challenging his conviction and subsequent 30-year prison sentence for defilement. First, he contends that the trial magistrate erred by relying on the unsworn testimony of a minor (PW-1) who was legally found incompetent to take an oath or distinguish truth from falsehood. Second, he claims that the admitted evidence regarding penetration was medically unsupported and riddled with contradictions. Third, he argues that the court relied heavily on contradictory and unreliable documentary exhibits. Finally, the Appellant asserts that the trial court erroneously dismissed his plausible sworn defense, which ought to have outweighed the prosecution case built on conflicting timelines.
19. In developing the arguments for the first two consolidated grounds as identified in the submissions, the Appellant underscores the trial court's explicit voir dire finding that the three-year-old complainant (PW-1) did not understand the nature of an oath or the concept of truth. This is contrary to the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap 15), which provides that such unsworn child testimony strictly demands independent corroboration. The appellant relies on Johnson Muiruri v Republic [1983] KLR 445 to emphasize that a conviction cannot properly stand on unsworn child testimony without material corroboration, an issue that the trial magistrate failed to apply.
20. Furthermore, the Appellant argues that PW-1’s testimony was fundamentally unreliable. It is argued that she stated during cross-examination that she was defiled using a metal, directly contradicting her primary assertion that the Appellant touched her with his penis. Citing Keter v Republic [2007] 1 EA 135, the Appellant notes that evidence riddled with contradictions is entirely unsafe to sustain a conviction.
21. The Appellant asserts that the prosecution failed to provide independent corroboration through its other witnesses. PW-2 testified that immediately after the alleged incident, the child was playing normally with a doll and ball, showing no signs of bleeding, injury, or distress. Additionally, vital eye-witnesses mentioned such as Mama Mercy, Mary, and Mwende, were never called to testify. Invoking Kuuma v Republic (Criminal Appeal 22 of 2021), the Appellant contends that while the prosecution has discretion in calling witnesses, failing to call material witnesses when the case is barely adequate justifies drawing an adverse inference against the prosecution.
22. Addressing the third ground, the Appellant points to irreconcilable conflicts within the medical evidence. He argued that, the Medical Officer (PW-4) testified that the complainant's injuries were roughly six days old when examined on 20th November, 2019, positioning the incident around 14th November, 2019. This directly clashes with the charge sheet, which fixed the crime date as 18th November, 2019. Moreover, the PRC Form indicated that the victim received treatment even earlier on 16th November at Tikoni Medical Centre, yet no practitioner from that facility was called to secure the evidential chain. Guided by Okeno v Republic [1972] EA 32 on the first appellate court's duty to re-evaluate evidence, and Kiarie v Republic [1984] KLR 739, which mandates that medical and documentary evidence must be consistently be linked to the offense, the Appellant argues these substantive defects of the unsworn and contradictory statement by the complainant, the lack of corroboration from other witnesses and inconsistence in the medical and documentary evidence, rendered the conviction unsafe and therefore, the prosecution failed to prove the offence of defilement beyond reasonable doubt as provided for under section 107 of the Evidence Act (Cap 80).
23. Under the fourth ground, the Appellant maintains that the trial court committed a grave legal error by summarily dismissing his consistent, unshakeable sworn defense, in which he denied the offense and any knowledge of the complainant. He argued that the burden of proof never shifts to an accused person. Relying on Okethi Okale & Others v Republic [1965] EA 555, the Appellant asserts that weaknesses in a defence cannot cure a prosecution case that has failed to hit the requisite threshold.
24. Finally, referencing Sawe v Republic [2003] KLR 364, in which the Court of Appeal stressed that mere suspicion, no matter how strong, cannot be a basis of conviction and that the evidence must irresistibly point to the accused, he argued that his defence raised doubts that were never dispelled by the prosecution and which the trial court did not give any weight.
Analysis and Determination
25. This Court has carefully considered the grounds set out in the Petition of Appeal, the Record of Appeal, the evidence contained therein together with the written submissions. Being a first appellate court, this Court is enjoined to re-evaluate and re-analyze the entire evidence that was placed before the trial court and to arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage. This duty of a first appellate court was authoritatively stated by the Court of Appeal in Okeno v Republic [1972] EA 32, where the Court observed as follows:
“An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Republic [1957] EA. (336) and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwal v R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424.”
26. Equally, the Court of Appeal for Eastern Africa in Pandya v Republic [1957] EA 336 in respect to the duty of a first appellant court, stated as follows; -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
27. The import of the foregoing is that a first appellate court must do more than merely review of the judgment of the trial court. It is enjoined to reconsider, re-evaluate and re-analyze the entirety of the evidence on record afresh and draw its own independent conclusions, while giving due allowance to the fact that it neither saw nor heard the witnesses testify. It must then determine whether the findings and conclusions reached by the trial court are borne out by the evidence and the law.
28. The Appellant herein was charged under section 8(1) and (2) of the Sexual offences Act, No. 3 of 2006. Section 8 (1) and (2) provides as follows:
“8. (1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.”
29. The Court of Appeal in John Mutua Munyoki v Republic [2017] KECA 376 (KLR) held: -
“Under the Sexual Offences Act the main elements of the offence of defilement are as follows:(i) The victim must be a minor, and (ii) There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice. Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond a reasonable doubt.”
30. It is thus settled that for the accused to be convicted of the offence of defilement, the following ingredients must be proved beyond reasonable doubt;
1) Age of the complainant.
2) Penetration.
3) Whether the penetration was by the Appellant.
31. On the first ingredient of the offence, namely the age of the complainant, Uganda Court of Appeal case of Francis Omuroni vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, is instructive on the age as follows:
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”
32. The age of the minor, in this case, was not in dispute. Both the oral and documentary evidence adduced before the trial court established that the complainant was three (3) years old at the time the offence was committed. In particular, the Age Assessment Report dated 20th November 2019, produced as Prosecution Exhibit 3, confirmed the complainant's age as three years at the material time. This Court is therefore satisfied that the prosecution proved the complainant's age beyond reasonable doubt.
33. As regards the second ingredient, Section 2 of the Sexual Offences Act defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
34. Consequently, for the offence of defilement to be established, the prosecution must prove that there was partial or complete insertion of the appellant's genital organ into the complainant's genital organ. Mere contact between the genital organs, without proof of insertion, does not amount to penetration within the meaning of the Act. It is, however, well settled that proof of complete penetration is unnecessary, as partial insertion is sufficient to satisfy the statutory requirement.
35. The Appellant challenged the prosecution's evidence on penetration, contending that PW1 testified in her examination-in-chief that she had been defiled using the Appellant's penis, but contradicted herself during cross-examination by stating that the object used was ‘a metal’.
36. I have carefully re-evaluated the evidence on record. The complainant, who was only three years old at the time of the incident, gave a coherent account of the events of the material day. She testified that the Appellant carried her on his lap, removed her clothes, and touched her genital area. Although she initially stated that she did not know the object the Appellant used to touch her private parts, she later described it as "something like metal."
37. In my considered view, that description does not constitute a material contradiction. Given the complainant's tender age, it would be unreasonable to expect her to accurately identify or describe the Appellant's genital organ. Her description must therefore be considered in the context of her age, level of understanding, and ability. The expression "something like metal" was merely an attempt by a child of tender years to describe an object she was unable to identify with precision. Her evidence, taken as a whole, remained consistent on the material particulars of the offence.
38. In addition, the complainant's evidence was corroborated by the medical evidence on record. The Post Rape Care (PRC) Form and the P3 Form, both completed on 20th November 2019, confirmed that the complainant's hymen was broken and assessed the injuries to have been approximately six days old. This medical evidence placed the occurrence of the injury on or about the 14th November 2019, the very date on which the offence was alleged to have been committed. The medical findings therefore lend credence to the complainant's account and establish that penetration occurred.
39. Although the medical evidence corroborated the complainant's testimony, it is important to note that corroboration was not, in the circumstances of this case, a legal prerequisite to conviction. Section 124 of the Evidence Act provides that in prosecution for sexual offences, a court may convict on the sole evidence of the complainant if, for reasons to be recorded, it is satisfied that the complainant is truthful. For emphasize, that sections state as follows;
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
40. The complainant in this case was a child of tender years. Upon conducting a voire dire examination, the trial court found that she did not understand the nature of an oath and accordingly received her unsworn evidence. The fact that her testimony was unsworn did not render it inadmissible. In Sula v Uganda [2001] EA 556, the Supreme Court of Uganda held that a child who gives unsworn evidence remains liable to cross-examination in order to test the veracity of that evidence. Indeed, the record shows that the complainant was duly cross-examined, and nothing emerged to discredit her testimony.
41. This Court further notes that the trial court expressly found the complainant to be a truthful and credible witness, despite her tender age and recorded its reasons for believing her evidence. Having independently re-evaluated her testimony, I find no basis for departing from that finding. Her evidence was clear, consistent and remained unshaken on the material aspects of the prosecution's case.
42. Turning to the final ingredient of the identity of the perpetrator, the complainant identified the Appellant in court as the person who defiled her. PW2 equally testified that the Appellant was their neighbour at Kwa Kamolo and confirmed that he was at the said homestead on the material date and even gave them sweets. PW3 also testified that she knew the Appellant prior to the incident. Significantly, the Appellant himself admitted that he knew both PW2 and PW3, although he denied knowing the complainant. His defence was that PW3 falsely implicated him after he declined her advances.
43. The evidence on record leaves no doubt that the Appellant was well known to the complainant's family before the incident. This was therefore a case of recognition rather than identification of a stranger, thereby substantially eliminating the possibility of mistaken identity. I am accordingly satisfied that the Appellant was positively identified as the perpetrator.
44. On that basis and upon my own independent evaluation of the entire evidence on record, I find that the prosecution proved beyond reasonable doubt each of the essential ingredients of the offence of defilement, namely the age of the complainant, penetration, and the identity of the Appellant as the perpetrator. The conviction entered by the trial court was therefore safe.
45. On the sentence, the Appellant contended that the sentence imposed was excessive and did not consider the mitigating factors. Section 8(2) of the Sexual Offences Act prescribes life imprisonment for the offence of defilement where the child is aged eleven years or below. It is not disputed that the complainant in this case was only three years old.
46. Notwithstanding the statutory sentence, the trial court sentenced the Appellant to thirty (30) year’s imprisonment. Having considered the circumstances of the offence and the applicable law, I find no basis upon which to interfere with the sentence imposed. The sentence was lawful and cannot be said to have been harsh or excessive in the circumstances of this case.
Final Disposition
47. In the result, I find that this appeal is devoid of merit. The conviction is upheld, and the sentence imposed by the trial court is affirmed. Accordingly, the appeal against both conviction and sentence is dismissed in its entirety.
DATED, SIGNED AND DELIVERED AT NAIROBI THIS 3RD DAY OF JULY,2026 THROUGH THE MICROSOFT TEAMS PLATFORM
KENNEDY KANDET
JUDGE
IN THE PRESENCE OF:
APPELLANT IN PERSON FROM KAMITI MAX PRISON
MS MUSANGU FOR THE STATE
COURT ASSISTANT: JAEL NOSIM