(Being an appeal from the Judgment and Sentence of the Magistrate’s Court at Mombasa in MCSO No. 50 of 2019 delivered on 22nd March 2024 by Hon. R. Orora (SRM))
1. The appellant was charged with the offence of defilement contrary to section 8(1) read with section 8(3) of the Sexual Offences Act, 2006. The particulars of the offence were that on 13/5/2019 at Royal Junior Academy in Mombasa Sub- County, Mombasa County, he unlawfully and intentionally caused his penis to penetrate the anus of J.A., a child aged 14 years.
2. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that on 13/5/2019 at Royal Junior Academy in Mombasa Sub- County, Mombasa County, he unlawfully and intentionally touched the anus of J.A., a child aged 14 years, with his penis.
3. The appellant was convicted on the main count and sentenced to 20 years’ imprisonment. The sentence was to be considered from 11/6/2019.
4. Dissatisfied with the trial court’s judgment, the appellant preferred this appeal.
5. The appellant’s grounds of appeal are summarized as follows:
a) The learned trial magistrate erred in law and fact by failing to see that the prosecution case was riddled with massive inconsistencies and contradictions.
b) The learned trial magistrate erred in law by recording a conviction in reliance on the evidence of a single witness.
c) The learned trial magistrate erred in law and fact by ignoring contradictions and inconsistencies in the prosecution evidence.
d) The learned trial magistrate erred in law and fact by failing to take into consideration the period the appellant spent in remand during trial.
Prosecution’s case
6. PW1 J.A. (the complainant) testified that he is 17 years old and was born on 8/7/2003. He knew the accused, Elphas Mukangali, who was his class teacher at Royal Junior Academy in class 8 in 2019. On 13/5/2019 at around 3:00 pm they were doing homework. As they had not handed over their books, Mr. Mukangali called them into the office. They found Mr. Elphas in the office; there were six pupils, and the complainant was the last to be called.
7. PW1 stated that the accused unzipped his trousers and sodomized him, inserting his penis into the complainant’s anus. It took a few minutes. The accused repeated the act and then asked him to go to class. The complainant then went to the toilet to wash his buttocks. PW1 stated that this was the fifth time he had been sodomized by Mr. Elphas; it started in 2018 and occurred in the staff room on previous occasions.
8. On cross-examination PW1 stated that he had not reported the previous incidents. He had never had sexual intercourse before. He told a person called George that he had been defiled but did not report the incident to the head teacher. He was taken to the hospital a day after he reported the matter to the police station. He denied being a habitual gay person.
9. PW2 Stephen Abednego Ochieng, age 17 and a pupil of Royal Junior Academy (class 7 and 8), testified that Elphas Mukangali was his class teacher and that he is also the complainant’s cousin. PW2 stated that on 13/5/2019 the teacher called Joshua (the complainant) to his office in the morning and locked the door. PW2 said he was walking to the toilet and saw the accused try to remove Joshua’s trousers through the window. Joshua refused. PW2 later told his mother what he had witnessed, and his mother called Joshua’s father.
10. PW2 further stated that the accused had previously asked his mother to allow him to drop PW2 at school in the mornings. The accused called PW2 to the staff room, connected his phone to Wi-Fi, and played pornographic material which PW2 declined to view. The accused attempted to cane PW2 and tried to remove PW2’s trousers, but PW2 declined and ran to the toilet, remaining there until pupils reported to school. The accused later called him and asked him to go to school.
11. On cross-examination PW2 stated that he was forced to record his statement at the police station but was not forced to testify. He did not lie in his police statement. He knew the accused before the incident. He maintained that he saw the accused try to remove Joshua’s trousers but did not witness an act of defilement. He heard what was said in the accused’s office through the window. He told a friend who wrote a letter to the head teacher; the head teacher did not respond.
12. PW3 Zeddy Amai Aduvaga, father of four male children including Joshua, stated that Joshua was born on 8/7/2003 and produced his birth certificate (PEXH-1). On 13/5/2019 at around 6–7 am, Stephen’s mother called and informed him of rumours that Elphas had a sexual relationship with Joshua. PW3 asked Joshua, who confirmed the rumours and said that Elphas had forcefully defiled him on three occasions in the mornings when he reported to school.
13. PW3 stated that he reported the matter to Madam Alice at the school, who asked him not to report it as the school had retained a lawyer. On 28/5/2019 PW3 took Joshua to Central Police Station, and the child was taken to Coast General Hospital. The accused was arrested by other parents whose children had also complained. PW3 said Elphas had been a good friend and there was no dispute between them.
14. On cross-examination PW3 stated that he did not witness the accused defiling Joshua. He did not report the matter to the police on 14/5/2019 but reported it to the school. He took the child to the hospital on 28/5/2019.
15. PW4 Dr. Mohamed Ali Mohamed of Coast General Hospital testified regarding a P3 form filled by Dr. Nafisa Seif (PEX-2). He said the P3 was for J.A., aged 14 years, with a history of defilement. On examination there was a healed scar around the anus; no discharge was noted. The injuries were approximately three weeks old and classified as harm probably caused by a blunt injury compatible with a human penis. The P3 form was signed and stamped on 3/6/2019.
16. On cross-examination PW4 stated he did not personally examine the complainant; he recognized the handwriting and signature of Dr. Nafisa Seif. He had not seen any laboratory report or DNA test. On re-examination PW4 stated the P3 form documents the history of anal defilement.
17. The trial court was on transfer and the matter was taken over by Hon. Orora; section 200 was explained to the accused.
18. PW5 D.C. William Shiundu of Central Police Station stated that on 28/5/2019 a report was made by Joshua Adura that he had been assaulted by his teacher. He summoned the witness and took the complainant to hospital, where a P3 and PRC form were filled. He said the accused had already taken plea on S.O. 43/2019 and S.O. 44/2019 on 24/5/2019.
19. On cross-examination PW5 stated he was not at the scene of arrest; his colleague visited the scene. He did not know whether the appellant was acquitted in other files. He did not take photographs from the scene, did not record statements from the head teacher, deputy head teacher, director, or other pupils from the class, and did not obtain CCTV footage from the school.
20. PW5 stated that the P3 form bears the rubber stamp of the OCS police station. The PRC had been signed by Nurse Saida Mwinyi. The officer who picked the PRC form was D.C. Wanjiku. He did not have the accused’s statement. The P3 form was forwarded to the hospital on 3/6/2019. On re-examination he denied fabricating any evidence.
21. PW6 Saida Mwinyi of Coast General Hospital stated on oath that she had a PRC form dated 28/5/2019 for J.A. She signed the document. The victim attended the hospital on 28/5/2019 at 11:43 am and reported anal penetration by his teacher. She noted healed scars on the anus consistent with previous laceration and concluded there was anal penetration; the survivor said the penetration happened several times.
22. On cross-examination PW6 stated she filled the PRC form and saw the patient on 28/5/2019 at 11:43 am. She did not know when the PRC was filled relative to the P3. Both the P3 and PRC are admissible in court. She stated she was the author and signer of the P3 form. On re-examination she stated the P3 and PRC may be filled on different days and that the conclusion was healed scars.
Defence case
23. DW1 Elphas Mukangali testified under oath that he was a teacher at Royal Junior Academy and is 40 years old. He alleged Madam Rosaline had a problem with him because he enforced the use of English in school. He claimed the case was a plan between Madam Rosaline and her brother (the father of the complainant). He alleged that the investigating officer did not visit the scene or record statements from the head teacher.
24. DW1 stated there was CCTV footage in the school compound which was produced in court. He alleged the investigating officer brought forged P3, PRC and laboratory results which were not stamped. He produced a laboratory result from Likoni Sub-county (DEX1) and a PRC form for Gra Kazo from POM Hospital (DEX2) for comparison. On cross-examination he stated those documents related to another case.
Analysis and Determination
25. This is a first appeal. I must examine and analyze all evidence ad novo and arrive at my own independent findings and conclusions on both facts and law. The principle is established in Okeno v Republic [1972] EA 32 at 36 and subsequent authorities.
26. The issues for determination are:
i. Whether the prosecution proved its case beyond reasonable doubt; and
ii. Whether the sentence imposed was harsh.
Whether the prosecution proved its case beyond reasonable doubt
27. Section 8 of the Sexual Offences Act, 2006 creates the offence of defilement and prescribes penalties. Section 11(1) creates the offence of committing an indecent act with a child and prescribes penalties.
28. The essential elements of defilement are:
i. An act causing penetration;
ii. The age of the victim (a child); and
iii. Positive identification of the accused as the perpetrator.
Penetration
29. Section 2 of the Sexual Offences Act defines penetration as partial or complete insertion of the genital organ of a person into the genital organs of another.
30. PW1 stated the accused unzipped his trousers and inserted his penis into his anus repeatedly on 13/5/2019. PW2 testified he saw the accused attempt to remove Joshua’s trousers but did not see penetration. PW4 and PW6 produced medical documentation indicating healed scars consistent with anal penetration. The P3 form signed and stamped on 3/6/2019 indicates injuries approximately three weeks old. The PRC on record similarly shows healed scars around the anus.
31. On the evidence, it is not disputed that the complainant sustained anal injuries consistent with penetration. I find that penetration was established beyond reasonable doubt.
Age of the victim
32. Proof of age is a critical component. The complainant’s birth certificate (PEXH-1) shows date of birth 8/7/2003, making him 15 years old on 13/5/2019. I find the age of the victim was proved beyond reasonable doubt.
Positive identification of the assailant
33. Only PW1 (the complainant) and PW2 purport to have witnessed events on 13/5/2019. Their accounts diverge on material particulars. PW1 stated the incident occurred at around 3:00 pm and that the accused sodomized him. PW2 said he saw the accused attempt to remove Joshua’s trousers in the morning and that he did not see an act of defilement; he viewed events through a window. PW2 therefore did not witness penetration.
34. There are material inconsistencies in timing and in the extent of what PW2 actually witnessed. PW1’s evidence indicates prior occasions of defilement which were not reported contemporaneously. PW1 also testified that his statement was extracted after he was beaten, indicating some hesitancy. Further, the record indicates that the P3 form was not in the lower court file at the time of this appeal, and the PRC on record lacks a hospital stamp; PW6’s evidence was unclear on timing and authorship of particular entries. PW5 (the investigating officer) conceded he did not take statements from key school personnel nor obtain CCTV footage.
35. The criminal standard remains proof beyond reasonable doubt. The prosecution bears the burden of proving that the accused was the person who committed the act. In the circumstances, although penetration and age are established, the direct evidence identifying the appellant as the perpetrator is materially weakened by inconsistencies, gaps in investigation, and the limited corroboration of the act occurring in the appellant’s presence.
36. Suspicion, however strong, cannot supplant proof beyond reasonable doubt (Sawe v Republic (2003) KLR 364; Mary Wanjiku Gichira v Republic Criminal Appeal No. 17 of 1998). Applying these principles, the evidence against the appellant does not attain the required degree of cogency to displace the presumption of innocence.
37. I therefore find the prosecution did not prove beyond reasonable doubt that the appellant was the perpetrator of the offence charged.
Conclusion and Orders
38. For the foregoing reasons, the conviction is unsafe.
39. I allow the appeal, quash the conviction and set aside the sentence of 20 years’ imprisonment. Unless the appellant is otherwise lawfully held, he shall be released from custody forthwith.
40. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF FEBRUARY 2026.
1. The appellant was charged with the offence of defilement contrary to section 8(1) read with section 8(3) of the Sexual Offences Act, 2006. The particulars of the offence were that on 13/5/2019 at Royal Junior Academy in Mombasa Sub- County, Mombasa County, he unlawfully and intentionally caused his penis to penetrate the anus of J.A., a child aged 14 years.
2. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars were that on 13/5/2019 at Royal Junior Academy in Mombasa Sub- County, Mombasa County, he unlawfully and intentionally touched the anus of J.A., a child aged 14 years, with his penis.
3. The appellant was convicted on the main count and sentenced to 20 years’ imprisonment. The sentence was to be considered from 11/6/2019.
4. Dissatisfied with the trial court’s judgment, the appellant preferred this appeal.
5. The appellant’s grounds of appeal are summarized as follows:
a) The learned trial magistrate erred in law and fact by failing to see that the prosecution case was riddled with massive inconsistencies and contradictions.
b) The learned trial magistrate erred in law by recording a conviction in reliance on the evidence of a single witness.
c) The learned trial magistrate erred in law and fact by ignoring contradictions and inconsistencies in the prosecution evidence.
d) The learned trial magistrate erred in law and fact by failing to take into consideration the period the appellant spent in remand during trial.
Prosecution’s case
6. PW1 J.A. (the complainant) testified that he is 17 years old and was born on 8/7/2003. He knew the accused, Elphas Mukangali, who was his class teacher at Royal Junior Academy in class 8 in 2019. On 13/5/2019 at around 3:00 pm they were doing homework. As they had not handed over their books, Mr. Mukangali called them into the office. They found Mr. Elphas in the office; there were six pupils, and the complainant was the last to be called.
7. PW1 stated that the accused unzipped his trousers and sodomized him, inserting his penis into the complainant’s anus. It took a few minutes. The accused repeated the act and then asked him to go to class. The complainant then went to the toilet to wash his buttocks. PW1 stated that this was the fifth time he had been sodomized by Mr. Elphas; it started in 2018 and occurred in the staff room on previous occasions.
8. On cross-examination PW1 stated that he had not reported the previous incidents. He had never had sexual intercourse before. He told a person called George that he had been defiled but did not report the incident to the head teacher. He was taken to the hospital a day after he reported the matter to the police station. He denied being a habitual gay person.
9. PW2 Stephen Abednego Ochieng, age 17 and a pupil of Royal Junior Academy (class 7 and 8), testified that Elphas Mukangali was his class teacher and that he is also the complainant’s cousin. PW2 stated that on 13/5/2019 the teacher called Joshua (the complainant) to his office in the morning and locked the door. PW2 said he was walking to the toilet and saw the accused try to remove Joshua’s trousers through the window. Joshua refused. PW2 later told his mother what he had witnessed, and his mother called Joshua’s father.
10. PW2 further stated that the accused had previously asked his mother to allow him to drop PW2 at school in the mornings. The accused called PW2 to the staff room, connected his phone to Wi-Fi, and played pornographic material which PW2 declined to view. The accused attempted to cane PW2 and tried to remove PW2’s trousers, but PW2 declined and ran to the toilet, remaining there until pupils reported to school. The accused later called him and asked him to go to school.
11. On cross-examination PW2 stated that he was forced to record his statement at the police station but was not forced to testify. He did not lie in his police statement. He knew the accused before the incident. He maintained that he saw the accused try to remove Joshua’s trousers but did not witness an act of defilement. He heard what was said in the accused’s office through the window. He told a friend who wrote a letter to the head teacher; the head teacher did not respond.
12. PW3 Zeddy Amai Aduvaga, father of four male children including Joshua, stated that Joshua was born on 8/7/2003 and produced his birth certificate (PEXH-1). On 13/5/2019 at around 6–7 am, Stephen’s mother called and informed him of rumours that Elphas had a sexual relationship with Joshua. PW3 asked Joshua, who confirmed the rumours and said that Elphas had forcefully defiled him on three occasions in the mornings when he reported to school.
13. PW3 stated that he reported the matter to Madam Alice at the school, who asked him not to report it as the school had retained a lawyer. On 28/5/2019 PW3 took Joshua to Central Police Station, and the child was taken to Coast General Hospital. The accused was arrested by other parents whose children had also complained. PW3 said Elphas had been a good friend and there was no dispute between them.
14. On cross-examination PW3 stated that he did not witness the accused defiling Joshua. He did not report the matter to the police on 14/5/2019 but reported it to the school. He took the child to the hospital on 28/5/2019.
15. PW4 Dr. Mohamed Ali Mohamed of Coast General Hospital testified regarding a P3 form filled by Dr. Nafisa Seif (PEX-2). He said the P3 was for J.A., aged 14 years, with a history of defilement. On examination there was a healed scar around the anus; no discharge was noted. The injuries were approximately three weeks old and classified as harm probably caused by a blunt injury compatible with a human penis. The P3 form was signed and stamped on 3/6/2019.
16. On cross-examination PW4 stated he did not personally examine the complainant; he recognized the handwriting and signature of Dr. Nafisa Seif. He had not seen any laboratory report or DNA test. On re-examination PW4 stated the P3 form documents the history of anal defilement.
17. The trial court was on transfer and the matter was taken over by Hon. Orora; section 200 was explained to the accused.
18. PW5 D.C. William Shiundu of Central Police Station stated that on 28/5/2019 a report was made by Joshua Adura that he had been assaulted by his teacher. He summoned the witness and took the complainant to hospital, where a P3 and PRC form were filled. He said the accused had already taken plea on S.O. 43/2019 and S.O. 44/2019 on 24/5/2019.
19. On cross-examination PW5 stated he was not at the scene of arrest; his colleague visited the scene. He did not know whether the appellant was acquitted in other files. He did not take photographs from the scene, did not record statements from the head teacher, deputy head teacher, director, or other pupils from the class, and did not obtain CCTV footage from the school.
20. PW5 stated that the P3 form bears the rubber stamp of the OCS police station. The PRC had been signed by Nurse Saida Mwinyi. The officer who picked the PRC form was D.C. Wanjiku. He did not have the accused’s statement. The P3 form was forwarded to the hospital on 3/6/2019. On re-examination he denied fabricating any evidence.
21. PW6 Saida Mwinyi of Coast General Hospital stated on oath that she had a PRC form dated 28/5/2019 for J.A. She signed the document. The victim attended the hospital on 28/5/2019 at 11:43 am and reported anal penetration by his teacher. She noted healed scars on the anus consistent with previous laceration and concluded there was anal penetration; the survivor said the penetration happened several times.
22. On cross-examination PW6 stated she filled the PRC form and saw the patient on 28/5/2019 at 11:43 am. She did not know when the PRC was filled relative to the P3. Both the P3 and PRC are admissible in court. She stated she was the author and signer of the P3 form. On re-examination she stated the P3 and PRC may be filled on different days and that the conclusion was healed scars.
Defence case
23. DW1 Elphas Mukangali testified under oath that he was a teacher at Royal Junior Academy and is 40 years old. He alleged Madam Rosaline had a problem with him because he enforced the use of English in school. He claimed the case was a plan between Madam Rosaline and her brother (the father of the complainant). He alleged that the investigating officer did not visit the scene or record statements from the head teacher.
24. DW1 stated there was CCTV footage in the school compound which was produced in court. He alleged the investigating officer brought forged P3, PRC and laboratory results which were not stamped. He produced a laboratory result from Likoni Sub-county (DEX1) and a PRC form for Gra Kazo from POM Hospital (DEX2) for comparison. On cross-examination he stated those documents related to another case.
Analysis and Determination
25. This is a first appeal. I must examine and analyze all evidence ad novo and arrive at my own independent findings and conclusions on both facts and law. The principle is established in Okeno v Republic [1972] EA 32 at 36 and subsequent authorities.
26. The issues for determination are:
i. Whether the prosecution proved its case beyond reasonable doubt; and
ii. Whether the sentence imposed was harsh.
Whether the prosecution proved its case beyond reasonable doubt
27. Section 8 of the Sexual Offences Act, 2006 creates the offence of defilement and prescribes penalties. Section 11(1) creates the offence of committing an indecent act with a child and prescribes penalties.
28. The essential elements of defilement are:
i. An act causing penetration;
ii. The age of the victim (a child); and
iii. Positive identification of the accused as the perpetrator.
Penetration
29. Section 2 of the Sexual Offences Act defines penetration as partial or complete insertion of the genital organ of a person into the genital organs of another.
30. PW1 stated the accused unzipped his trousers and inserted his penis into his anus repeatedly on 13/5/2019. PW2 testified he saw the accused attempt to remove Joshua’s trousers but did not see penetration. PW4 and PW6 produced medical documentation indicating healed scars consistent with anal penetration. The P3 form signed and stamped on 3/6/2019 indicates injuries approximately three weeks old. The PRC on record similarly shows healed scars around the anus.
31. On the evidence, it is not disputed that the complainant sustained anal injuries consistent with penetration. I find that penetration was established beyond reasonable doubt.
Age of the victim
32. Proof of age is a critical component. The complainant’s birth certificate (PEXH-1) shows date of birth 8/7/2003, making him 15 years old on 13/5/2019. I find the age of the victim was proved beyond reasonable doubt.
Positive identification of the assailant
33. Only PW1 (the complainant) and PW2 purport to have witnessed events on 13/5/2019. Their accounts diverge on material particulars. PW1 stated the incident occurred at around 3:00 pm and that the accused sodomized him. PW2 said he saw the accused attempt to remove Joshua’s trousers in the morning and that he did not see an act of defilement; he viewed events through a window. PW2 therefore did not witness penetration.
34. There are material inconsistencies in timing and in the extent of what PW2 actually witnessed. PW1’s evidence indicates prior occasions of defilement which were not reported contemporaneously. PW1 also testified that his statement was extracted after he was beaten, indicating some hesitancy. Further, the record indicates that the P3 form was not in the lower court file at the time of this appeal, and the PRC on record lacks a hospital stamp; PW6’s evidence was unclear on timing and authorship of particular entries. PW5 (the investigating officer) conceded he did not take statements from key school personnel nor obtain CCTV footage.
35. The criminal standard remains proof beyond reasonable doubt. The prosecution bears the burden of proving that the accused was the person who committed the act. In the circumstances, although penetration and age are established, the direct evidence identifying the appellant as the perpetrator is materially weakened by inconsistencies, gaps in investigation, and the limited corroboration of the act occurring in the appellant’s presence.
36. Suspicion, however strong, cannot supplant proof beyond reasonable doubt (Sawe v Republic (2003) KLR 364; Mary Wanjiku Gichira v Republic Criminal Appeal No. 17 of 1998). Applying these principles, the evidence against the appellant does not attain the required degree of cogency to displace the presumption of innocence.
37. I therefore find the prosecution did not prove beyond reasonable doubt that the appellant was the perpetrator of the offence charged.
Conclusion and Orders
38. For the foregoing reasons, the conviction is unsafe.
39. I allow the appeal, quash the conviction and set aside the sentence of 20 years’ imprisonment. Unless the appellant is otherwise lawfully held, he shall be released from custody forthwith.
40. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25TH DAY OF FEBRUARY 2026.