(Being an Appeal against the judgment by Hon. J.R. Ndururi (SPM) in Chief Magistrate’s Court at Kimilili, Case No E041 of 2024, Delivered on 2 nd December, 2025)
Introduction:
1. The Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 held as follows: - “The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, ...........The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”
2. In Pandya Vs. Republic (1957) EA. (336), the Court of Appeal stated thus: - “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.”
3. In Okeno Vs. Republic [1972] EA 32, the Court of Appeal stated: “An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination ( Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M. Ruwala V. R [1957] E.A. 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 findings and conclusions; 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 V Sunday Post 1978) E.A. 424.”
4. In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 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 findings and 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.”
Prosecution Case:
5. CAO(PW1) told court that she was tricked by the appellant who is her neighbour to accompany him to Kamukuywa to collect maize on his motor bike. Upon reaching there, the appellant and the victim entered into a building and therein, the appellant forcefully had sex with the victim. The victim raised an alarm, but no one came to her rescue. The victim bled and the appellant returned her back home. She disclosed the ordeal to her sister-in-law and the wife to the appellant and had to seek medical attention at Kimilili Sub- County Hospital. The victim produced a birth certificate as exhibit 1 to demonstrate that she was born on the 23 rd December 2009.
6. Cyrus SitemuPW2 ) told court that she is stationed at Kimilili Sub-County Hospital and that on 2 nd August, 2024 he examined the victim following complaint of vaginal bleeding and vaginal pain. He found bruises on both labia, perforation of the hymen and bleeding on the vaginal walls. The red blood and epitheal cells were indications of recent friction. The witness produced the P3 Form as Exhibit 3 and the treatment notes as Exhibit 4.
7. Eunice Amojong (PW3) told court that the victim came home on 19 th August, 2024 looking as if she was crying and later, she noticed the victim was bleeding from her private parts. The witness and her sister insisted to know what was up and upon beaten, she disclosed that she had been defiled by the appellant and so they took her to Kimilili Sub-County Hospital for treatment and later to the police station.
8. PC Caroline Chebet (PW4) told court that on 22 nd August, 2024, the matter was reported at the police station and so she issued a P3 Form to CAO and the blood stained underpants was handed over to her. She recorded statements from the witnesses, arrested the appellant and had him charged in the main count with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 20o6. Particulars of the offence were; on the 19 th August, 2024 at Kamukuywa Market in Kimilili Sub-County within Bungoma County unlawfully and intentionally caused your penis to penetrate the vagina of CAO a child aged 15 years.
9. In the alternative count, the Appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 and Particulars of the offence were; on the 19 th August, 2024 at Kamukuywa Market in Kimilili Sub-County within Bungoma County unlawfully and intentionally did cause your penis to come into contact with the vagina of CAO a child aged 15 years.
10. The Appellant Erick Wekesa Masika in his sworn testimony told court that on 19 th August, 2024, he carried a client to Bungoma Town on his motor cycle where they stayed till 5:30pm. He went back home and arrived at 6:45pm. However, he was arrested on the 24 th August, 2024 from his house at 9pm.
11. Bilha Naliaka Wafula (PW2) told court that she had nothing to say about the charges against the accused person.
12. Cyrus Wangila Juma(DW3) told court that he hired the appellant to ferry him at Bungoma town and upon completing his stuff, the appellant returned him back to Kimilili and arrived between 5:30 and 6pm.
13. In the judgement delivered by the learned Magistrate, the appellant was aggrieved with the findings and proffered an appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;
a. That the learned trial Magistrate erred in law and fact because did not plead guilty.
b. That the learned trial Magistrate erred in law and fact by entering a conviction despite the contradicting evidence on the prosecution side.
c. That the learned trial Magistrate erred in law and fact to convict by failing to appreciate that the witnesses had a grudge against the appellant.
d. That the learned trial Magistrate erred in law and fact to convict by failing to appreciate that he was a mistaken identity.
e. That the learned trial Magistrate erred in law and fact to convict then appellant by failing to hearing the crucial witnesses.
f. That the learned trial Magistrate erred in law and fact by failing to consider the appellants sworn defence.
g. That the learned trial Magistrate erred in law and fact by failing to appreciate that the appellant was not examined by the Doctor.
h. That the learned trial Magistrate erred in law and fact by failing to allow the appellant to mitigate.
14. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
15. I have carefully considered the submissions made by the Appellants and the Respondents. I have also reviewed the evidence on record and the relevant law. I propose at this stage to examine the ingredients of the offence of defilement so as to link it up with the evidence adduced and determine whether indeed the offence was proved beyond reasonable doubt.
16. In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed 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...”
17. In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu), the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).
18. In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the court held: “The critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant.
19. In the case of Kaingu K. Kasamo Vs R CR Appeal No. 504 of 2010 where the Court of Appeal stated: “Age of the victim of the sexual assault under the Sexual Offences act is a critical component. It forms part of the charge which must be proved the same way as penetration in the case of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will depend on the age of the victim. It is legally permissible that age is proved by medical evidence, birth certificate, guardian or parents and by observation or common sense.
20. These are just but a few of the decisions which sets the tempo of my analysis in an offence of defilement. Clearly, three ingredients that must be proved by the prosecution are; age, penetration and positive identification of the assailant. Consequently, the court is obligated to sieve the evidence on record and particularly, on the part of the prosecution and find, if, the three ingredients have been proved beyond reasonable doubt.
21. The first lamentation by the Appellant was on alleged error on the part of the learned magistrate’s finding, that he did not plead guilty. I have perused the primary file and note that the plea was read to the appellant in Kiswahili, a language he understood to which he replied that it was not true and accordingly, plea of not guilty was entered. Consequently, the case proceeded to full trial and the appellant participated fully to its conclusion and even cross examined the witnesses.
22. The 2 nd lamentation was that on contradictions. I have perused the Petition of Appeal, supplementary grounds of appeal as well as the written submissions. I must state that the list of witnesses on a body of the charge sheet does not make it defective. The list is but a signal of the witnesses lined up to testify. The fullness of these names come out at the trial where the appellant had a chance to cross examine. The crucial part of the charge sheet that is relevant is the Count and the particulars of an offence. The appellant has not raised an issue in respect and therefore, the ground is, stale.
23. In respect to the age as shown in the P3 Form, it appears to have been recorded either as 16 or 15. To e this is not a significant contradiction because, the crucial documents to prove age of the victim are captured in the adverted decisions above. They are; “ Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...” (see: Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000). The complainant produced a birth certificate which is a conclusively proof, that the victim was born on 23 rd December, 2009 and therefore, aged 15 years at the date the offence was committed.
24. The 3 rd lamentation is that the trial magistrate failed to consider that there were no crucial witnesses. The appellant alleged that one lady at Kamukuywa was not called as witnesses including the lady who opened the door. The law is clear on the number of the witnesses who can prove a fact. Donald Majiwa Achilwa and 2 other Vs R (2009) eKLR the Court stated: “The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”
25. In Keter Vs. Republic [2007] 1 EA 135 , it was held, inter alia, that : “The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”
26. The learned Magistrate based his findings that the basic ingredients of defilement as set out, were proved beyond doubt and therefore, and I believe therefore, the lady at Kamukuywa would not have added any value to the case.
27. The appellant in his petition alleged that some of the witnesses had a grudge against him. However, perusal of the entire proceedings, the appellant did not cross examine any witness on the aspect of a grudge. In any event, the appellant is a neighbour to the victim and well known by her sister. So, there was no mistaken identity. In respect to the mother to the victim, there was no link with the offence.
28. In respect to the lamentation on failure by the learned Magistrate to consider the appellant’s defence, the appellant does not expound on what piece of defence that was not considered, I say so because I have perused the analysis of the Learned Magistrate’s judgement where, it is recorded; “I have also considered the accused’s person’s alibi. Neither the accused person nor DW3 presented any other evidence, other than their words of mouth to prove the accused person was in Bungoma and not at Kamukuywa market at the material time.”
29. Equally, in his defence, the appellant testified that on the material date at 11am, he was hired to ferry a client at Bungoma opposite County Assembly where he waited till 5:30pm and they travelled back to Kimilili and arrived at 6:45 pm. Basically, the appellant raised alibi that he was not at the scene where the crime was allegedly committed. Was this a plausible defence? It is clear that it was raised at the defence stage and therefore, the prosecution lost an opportunity to investigate had it been raised in the first instance or at the plea taking.
30. The general guidelines on alibi are well captured in various Superior court decisions. In the case of Charles Anjare Mwamusi V. R CRA No. 226 of 2002 the Court of Appeal stated that an alibi raises a specific defence and an accused person who puts forward an alibi as an answer to the charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable Kiarie V. Republic (1984) KLR 739 at page 745 paragraph 25.
31. Cognizance ought to be taken of the principle that by setting up an alibi defence, the accused does not assume the burden of proving the alibi- ( Ssentale Vs. Uganda [1968] EA 36) . The foregoing was restated in the case of Wang’ombe Vs. Republic [1976-80] 1 KLR 1683 where it was stated the prosecution always bears the burden of disproving the alibi and proving the appellant’s guilt.
32. However, this defence should also be raised at the earliest opportune time as was held in the case of R Vs Sukha Singh S/O Wazir Singh & Others (1939) 6EACA 145 that if a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there’s naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment, it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.
33. In the case of Victor Mwendwa Mulinge Vs Republic {2014} eKLR the court of appeal rendered itself on the issue of alibi that it is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution (Karanja Vs Republic {1983}KLR 501) where court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilty is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought.
34. It must be recalled that the accused raised the define of alibi at the defence stage which would not have afforded the Prosecution opportunity to test and approve or disapprove it. This was an afterthought and in law, it is no defence.
35. In respect to age of the victim , the law is now established that it can be proved by medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. Birth certificate was produced as exhibit 1, which show, that the victim was at the commission of the offence, was aged 15 years old.
36. In respect to penetration, the law is equally distilled that penetration can be partial or full. The Clinical Officer examined the victim and found bruises on both labia, perforation of the hymen and bleeding on the vaginal walls. The red blood and epitheal cells were indications of recent friction. The witness produced the P3 Form and the treatment notes as Exhibits. I am convinced beyond doubt, that this element was conclusively, proved.
37. In respect to positive identification by the assailant , the victim’s testimony was clear that the appellant is her neighbour. More significantly, the appellant does not dispute the victim’s narration as her neighbour. Instead, the appellant raises an alibi as his defence at the defence stage which is not on the strength of the decisions cited, is not an alibi. Therefore, on positive identification, it is with no doubt, conclusively proved.
38. Disposal:
a. The Appeal lacks merit and is hereby, dismissed.
Delivered virtually this 21 st May, 2026 in the presence of the Appellant, Ms Matere for ODPP and Court Assitant, Aziza Abdi.
Orders Accordingly.
In presence of:
Miss Matere for the ODPPAppellant in personC/A: Aziza Abdi.
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Introduction:
1. The Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 held as follows: - “The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, ...........The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”
2. In Pandya Vs. Republic (1957) EA. (336), the Court of Appeal stated thus: - “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.”
3. In Okeno Vs. Republic [1972] EA 32, the Court of Appeal stated: “An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination ( Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M. Ruwala V. R [1957] E.A. 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 findings and conclusions; 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 V Sunday Post 1978) E.A. 424.”
4. In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. 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 findings and 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.”
Prosecution Case:
5. CAO(PW1) told court that she was tricked by the appellant who is her neighbour to accompany him to Kamukuywa to collect maize on his motor bike. Upon reaching there, the appellant and the victim entered into a building and therein, the appellant forcefully had sex with the victim. The victim raised an alarm, but no one came to her rescue. The victim bled and the appellant returned her back home. She disclosed the ordeal to her sister-in-law and the wife to the appellant and had to seek medical attention at Kimilili Sub- County Hospital. The victim produced a birth certificate as exhibit 1 to demonstrate that she was born on the 23 rd December 2009.
6. Cyrus SitemuPW2 ) told court that she is stationed at Kimilili Sub-County Hospital and that on 2 nd August, 2024 he examined the victim following complaint of vaginal bleeding and vaginal pain. He found bruises on both labia, perforation of the hymen and bleeding on the vaginal walls. The red blood and epitheal cells were indications of recent friction. The witness produced the P3 Form as Exhibit 3 and the treatment notes as Exhibit 4.
7. Eunice Amojong (PW3) told court that the victim came home on 19 th August, 2024 looking as if she was crying and later, she noticed the victim was bleeding from her private parts. The witness and her sister insisted to know what was up and upon beaten, she disclosed that she had been defiled by the appellant and so they took her to Kimilili Sub-County Hospital for treatment and later to the police station.
8. PC Caroline Chebet (PW4) told court that on 22 nd August, 2024, the matter was reported at the police station and so she issued a P3 Form to CAO and the blood stained underpants was handed over to her. She recorded statements from the witnesses, arrested the appellant and had him charged in the main count with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 20o6. Particulars of the offence were; on the 19 th August, 2024 at Kamukuywa Market in Kimilili Sub-County within Bungoma County unlawfully and intentionally caused your penis to penetrate the vagina of CAO a child aged 15 years.
9. In the alternative count, the Appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 and Particulars of the offence were; on the 19 th August, 2024 at Kamukuywa Market in Kimilili Sub-County within Bungoma County unlawfully and intentionally did cause your penis to come into contact with the vagina of CAO a child aged 15 years.
10. The Appellant Erick Wekesa Masika in his sworn testimony told court that on 19 th August, 2024, he carried a client to Bungoma Town on his motor cycle where they stayed till 5:30pm. He went back home and arrived at 6:45pm. However, he was arrested on the 24 th August, 2024 from his house at 9pm.
11. Bilha Naliaka Wafula (PW2) told court that she had nothing to say about the charges against the accused person.
12. Cyrus Wangila Juma(DW3) told court that he hired the appellant to ferry him at Bungoma town and upon completing his stuff, the appellant returned him back to Kimilili and arrived between 5:30 and 6pm.
13. In the judgement delivered by the learned Magistrate, the appellant was aggrieved with the findings and proffered an appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;
a. That the learned trial Magistrate erred in law and fact because did not plead guilty.
b. That the learned trial Magistrate erred in law and fact by entering a conviction despite the contradicting evidence on the prosecution side.
c. That the learned trial Magistrate erred in law and fact to convict by failing to appreciate that the witnesses had a grudge against the appellant.
d. That the learned trial Magistrate erred in law and fact to convict by failing to appreciate that he was a mistaken identity.
e. That the learned trial Magistrate erred in law and fact to convict then appellant by failing to hearing the crucial witnesses.
f. That the learned trial Magistrate erred in law and fact by failing to consider the appellants sworn defence.
g. That the learned trial Magistrate erred in law and fact by failing to appreciate that the appellant was not examined by the Doctor.
h. That the learned trial Magistrate erred in law and fact by failing to allow the appellant to mitigate.
14. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
15. I have carefully considered the submissions made by the Appellants and the Respondents. I have also reviewed the evidence on record and the relevant law. I propose at this stage to examine the ingredients of the offence of defilement so as to link it up with the evidence adduced and determine whether indeed the offence was proved beyond reasonable doubt.
16. In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed 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...”
17. In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu), the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).
18. In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the court held: “The critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant.
19. In the case of Kaingu K. Kasamo Vs R CR Appeal No. 504 of 2010 where the Court of Appeal stated: “Age of the victim of the sexual assault under the Sexual Offences act is a critical component. It forms part of the charge which must be proved the same way as penetration in the case of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will depend on the age of the victim. It is legally permissible that age is proved by medical evidence, birth certificate, guardian or parents and by observation or common sense.
20. These are just but a few of the decisions which sets the tempo of my analysis in an offence of defilement. Clearly, three ingredients that must be proved by the prosecution are; age, penetration and positive identification of the assailant. Consequently, the court is obligated to sieve the evidence on record and particularly, on the part of the prosecution and find, if, the three ingredients have been proved beyond reasonable doubt.
21. The first lamentation by the Appellant was on alleged error on the part of the learned magistrate’s finding, that he did not plead guilty. I have perused the primary file and note that the plea was read to the appellant in Kiswahili, a language he understood to which he replied that it was not true and accordingly, plea of not guilty was entered. Consequently, the case proceeded to full trial and the appellant participated fully to its conclusion and even cross examined the witnesses.
22. The 2 nd lamentation was that on contradictions. I have perused the Petition of Appeal, supplementary grounds of appeal as well as the written submissions. I must state that the list of witnesses on a body of the charge sheet does not make it defective. The list is but a signal of the witnesses lined up to testify. The fullness of these names come out at the trial where the appellant had a chance to cross examine. The crucial part of the charge sheet that is relevant is the Count and the particulars of an offence. The appellant has not raised an issue in respect and therefore, the ground is, stale.
23. In respect to the age as shown in the P3 Form, it appears to have been recorded either as 16 or 15. To e this is not a significant contradiction because, the crucial documents to prove age of the victim are captured in the adverted decisions above. They are; “ Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...” (see: Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000). The complainant produced a birth certificate which is a conclusively proof, that the victim was born on 23 rd December, 2009 and therefore, aged 15 years at the date the offence was committed.
24. The 3 rd lamentation is that the trial magistrate failed to consider that there were no crucial witnesses. The appellant alleged that one lady at Kamukuywa was not called as witnesses including the lady who opened the door. The law is clear on the number of the witnesses who can prove a fact. Donald Majiwa Achilwa and 2 other Vs R (2009) eKLR the Court stated: “The law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case. (See Bukenya & Others v. Uganda [1972] EA 549). That is, however, not the position here. We find no basis for raising such an adverse inference.”
25. In Keter Vs. Republic [2007] 1 EA 135 , it was held, inter alia, that : “The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.”
26. The learned Magistrate based his findings that the basic ingredients of defilement as set out, were proved beyond doubt and therefore, and I believe therefore, the lady at Kamukuywa would not have added any value to the case.
27. The appellant in his petition alleged that some of the witnesses had a grudge against him. However, perusal of the entire proceedings, the appellant did not cross examine any witness on the aspect of a grudge. In any event, the appellant is a neighbour to the victim and well known by her sister. So, there was no mistaken identity. In respect to the mother to the victim, there was no link with the offence.
28. In respect to the lamentation on failure by the learned Magistrate to consider the appellant’s defence, the appellant does not expound on what piece of defence that was not considered, I say so because I have perused the analysis of the Learned Magistrate’s judgement where, it is recorded; “I have also considered the accused’s person’s alibi. Neither the accused person nor DW3 presented any other evidence, other than their words of mouth to prove the accused person was in Bungoma and not at Kamukuywa market at the material time.”
29. Equally, in his defence, the appellant testified that on the material date at 11am, he was hired to ferry a client at Bungoma opposite County Assembly where he waited till 5:30pm and they travelled back to Kimilili and arrived at 6:45 pm. Basically, the appellant raised alibi that he was not at the scene where the crime was allegedly committed. Was this a plausible defence? It is clear that it was raised at the defence stage and therefore, the prosecution lost an opportunity to investigate had it been raised in the first instance or at the plea taking.
30. The general guidelines on alibi are well captured in various Superior court decisions. In the case of Charles Anjare Mwamusi V. R CRA No. 226 of 2002 the Court of Appeal stated that an alibi raises a specific defence and an accused person who puts forward an alibi as an answer to the charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable Kiarie V. Republic (1984) KLR 739 at page 745 paragraph 25.
31. Cognizance ought to be taken of the principle that by setting up an alibi defence, the accused does not assume the burden of proving the alibi- ( Ssentale Vs. Uganda [1968] EA 36) . The foregoing was restated in the case of Wang’ombe Vs. Republic [1976-80] 1 KLR 1683 where it was stated the prosecution always bears the burden of disproving the alibi and proving the appellant’s guilt.
32. However, this defence should also be raised at the earliest opportune time as was held in the case of R Vs Sukha Singh S/O Wazir Singh & Others (1939) 6EACA 145 that if a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there’s naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment, it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.
33. In the case of Victor Mwendwa Mulinge Vs Republic {2014} eKLR the court of appeal rendered itself on the issue of alibi that it is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution (Karanja Vs Republic {1983}KLR 501) where court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilty is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought.
34. It must be recalled that the accused raised the define of alibi at the defence stage which would not have afforded the Prosecution opportunity to test and approve or disapprove it. This was an afterthought and in law, it is no defence.
35. In respect to age of the victim , the law is now established that it can be proved by medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. Birth certificate was produced as exhibit 1, which show, that the victim was at the commission of the offence, was aged 15 years old.
36. In respect to penetration, the law is equally distilled that penetration can be partial or full. The Clinical Officer examined the victim and found bruises on both labia, perforation of the hymen and bleeding on the vaginal walls. The red blood and epitheal cells were indications of recent friction. The witness produced the P3 Form and the treatment notes as Exhibits. I am convinced beyond doubt, that this element was conclusively, proved.
37. In respect to positive identification by the assailant , the victim’s testimony was clear that the appellant is her neighbour. More significantly, the appellant does not dispute the victim’s narration as her neighbour. Instead, the appellant raises an alibi as his defence at the defence stage which is not on the strength of the decisions cited, is not an alibi. Therefore, on positive identification, it is with no doubt, conclusively proved.
38. Disposal:
a. The Appeal lacks merit and is hereby, dismissed.
Delivered virtually this 21 st May, 2026 in the presence of the Appellant, Ms Matere for ODPP and Court Assitant, Aziza Abdi.
Orders Accordingly.
In presence of:
Miss Matere for the ODPPAppellant in personC/A: Aziza Abdi.
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