(Being an Appeal from the Judgment of Hon. R. AMWAYI Principal Magistrate dated 6 th October, 2025 in Kaloleni Principal Magistrate’s Court S.O No. E008 of 2025)
Introduction.
1. The appellant was charged and convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars are that on diverse months between March and November, 2024 at Miyani village, Miyani Sub-location, Kinagoni Location, in Kaloleni Sub-County within Kilifi County of Coast Region intentionally and unlawfully caused his male genital organ namely penis to penetrate the vagina of S.K a child aged 17 years.
2. The appellant was aggrieved by the conviction and sentence of the trial court and preferred this appeal to the High Court raising the following grounds:
1. That the learned trial magistrate erred in law and fact in finding that the prosecution had proved its case beyond reasonable doubt despite glaring inconsistencies and contradictions in the prosecution evidence.
2. That the learned trial magistrate failed to consider that the prosecution did not conduct a DNA test to establish the paternity of the complainant’s pregnancy which would have been crucial in linking the appellant with the alleged offence.
3. That the trial court erred in law and fact by relying solely on the uncorroborated testimony of the complainant contrary to the established principles of criminal law that require corroboration in sexual offence cases.
4. That the learned trial magistrate erred in law and fact by failing to consider that the prosecution did not call critical witnesses including the complainant’s roommate and the teacher who first noticed and reported the pregnancy whose testimonies were vital to establishing the truth of the allegations.
5. That the learned trial magistrate misdirected herself in fact and law by not appreciating that the prosecution’s case against the appellant was fraught with inconsistencies and great doubt.
6. That the sentence of fifteen (15) years was harsh and excessive in the circumstances especially in light of the week evidence adduced.
7. That the learned trial magistrate erred in law and fact by failing to appreciate that the prosecution evidence was purely circumstantial and did not meet the threshold required to sustain a conviction.
Prosecution Case.
3. The prosecution case was that the complainant a student at (particulars withheld) was aged 17 years having been born on 12 th October, 2007. The complainant told the court that the appellant was known to her as they were in the same school. She was in Form two whereas the appellant was in Form four.
4. Sometimes in the month of March, 2024 when the complainant was coming from school together with the appellant, she decided to go to her parent’s home at Gotani. The appellant offered to escort her. Apparently, the complainant and appellant had rented houses in the same plot. On the way, the appellant started pestering the complainant for a love relationship.
5. According to the complainant, the appellant kept on pursuing her for a relationship and after one month he invited her to his house where they talked and she left. Later in the month of October, 2024, they were sent home for school fees. The complainant found the appellant in his rented house. The appellant invited her in his house and asked for sexual intercourse with her but she initially resisted. The appellant persisted with the demand for sexual intercourse and she eventually gave in and they had sexual intercourse.
6. Later in the month of January, 2024 the complainant discovered that she was pregnant. She approached the appellant and told him that he was responsible for the pregnancy but he tried to deny the same. One of her teachers also realized that she was pregnant and called her mother to the school. The complainant was interrogated and the matter reported to the police station and she was referred to Mariakani Sub County hospital. The appellant was also interrogated and arrested and taken to the police station. The complainant confessed that the appellant was her boyfriend and she had not had sex with any other person apart from the appellant.
7. In cross-examination she reiterated that the appellant was known to her and they had rented houses in the same plot with the appellant’s house next to hers. She further asserted that she went to the appellant’s house several times and they had sexual intercourse.
8. PW2 the complainant’s mother received a telephone call that she was required in school. She proceeded there the following day and she was informed that her daughter was pregnant. The complainant was interrogated and said that the appellant was responsible for the pregnancy. The appellant’s parents were also called to the school. The matter was referred to the police.
9. The complainant was taken to the hospital and PW3 examined her and confirmed that she was 21 weeks pregnant. PW3 concluded that due to pregnancy, there was evidence of penetration.
10. The investigations were conducted by PW4 who upon receiving the report interrogated the complainant and recorded her statement. PW4 confirmed that after interrogating the complainant he established that she had a relationship with the appellant leading to sexual intercourse which resulted in pregnancy of the complainant. The appellant who was aged 21 years was arrested and charged.
Defence Case.
11. The appellant when placed on his defence he gave a sworn testimony and called one witness. He told the trial court that he was a student at (particulars withheld) and was aged 21 years. He also told the court that the complainant was known to him as they were in the same school and had rented houses in the same plot. He however denied having any relationship with the complainant.
12. He told the court while in school he was called into the deputy teacher’s office where he found the assistant chief and other people. It is when he was told that the complainant was pregnant and he was the one who was responsible. He said he found some other two boys in the office who were also interrogated separately. He was then taken to the police station. He denied being responsible for the complainant’s pregnancy.
13. His mother who testified as DW2 told the court that she was called to the school and told that the appellant had impregnated the complainant.
Trial Court Finding.
14. The trial court after analyzing the evidence adduced by the prosecution and the defence case, she appreciated that the burden of proof lies with the prosecution and the standard of proof is that of beyond reasonable doubt. She cited among others the cases of Woolmington vs DPP (1935) A.C 462 and Re Winship 397 US 358 (1970) on the burden and standard of proof.
15. The trial court further cited Section 8(1) as read with Section 8(4) of the Sexual Offences Act and identified the essential ingredients which the prosecution must establish in a case of defilement to wit, the age of the victim, proof of penetration and positive identification of the perpetrator. She cited the cases of Charles Wamukoya Karani vs Republic (Criminal Appeal No. 79 of 2013 and Dominic Mwilaria vs Republic (2018) e KLR where the court reiterated the ingredients of the offence of defilement.
16. The trial court found that all the ingredients of the offence were proved as required, that is, the complainant was aged 16 years at the time of the alleged offence as per her oral evidence which was corroborated by the certificate of birth, that there was penetration as per the evidence of the complainant corroborated by the medical evidence and that the appellant was positively identified as the perpetrator as he was well known to the complainant.
17. The trial court concluded that the prosecution had proved the offence defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act and accordingly convicted the appellant.
Appellant’s Submissions.
18. The appellant submitted that the prosecution case was heavily based on the evidence of the pregnancy of the complainant. However, the prosecution failed to scientifically and independently connect the pregnancy to the appellant as there was no DNA test conducted to conclusively link the appellant with the pregnancy.
19. It was further submitted that the prosecution failed to call crucial witnesses to wit, the complainant’s roommate and the teacher who first noticed that the complainant was pregnant. It is the submission of the appellant that these witnesses were crucial to assist the court in determining when the pregnancy was first discovered. It was argued that the complainant’s roommate would have assisted the court regarding the conduct of the complainant. Reliance was placed on the case of Bukenya & Others vs Uganda (1972) E.A 549 where it was held that failure by the prosecution to call crucial witnesses without explanation, the court is entitled to draw inference that the evidence of such witnesses would have been adverse to the prosecution case.
20. The appellant further submitted that the medical evidence adduced by PW3 was merely to confirm penetration but the same could not be taken to be corroboration that the penetration was caused by the appellant. The appellant emphasized the need for DNA test to connect the appellant with the pregnancy. In the appellant’s own view, the prosecution failed to conduct investigations capable of excluding other possible perpetrators especially on whether the complainant had other relationships.
21. Finally, the appellant submitted that the trial court failed to evaluate the defence by the appellant who denied the allegations and maintained that he was falsely implicated. Reliance was placed on the case of Pandya vs Republic (1957) E.A 336 where it was emphasized that the court has s duty to evaluate and consider the defence mounted by an accused against the prosecution case before arriving at its conclusion.
22. The appellant urged the court to allow the appeal, quash the conviction, set aside the sentence and release the appellant.
Respondent’s Submissions.
23. The respondent contested the appeal. It is submitted that all the essential ingredients of the offence of defilement were proved as required. On the issue age the respondent relied on the case of Francis Omuroni vs Uganda Court of Appeal Criminal Appeal No. 2 of 2000 and submitted that in this case age was proved through the birth certificate produced in court as exhibit.
24. On the issue of failure by the prosecution to conduct DNA test, the respondent relied on the case of HWN vs Republic (Criminal Appeal No. 101 of 2019) (2023) KECA 295 (KLR) where the Court of Appeal observed that Section 36 of the Sexual Offences Act on DNA is not mandatory if there is other evidence pointing at the appellant.
25. Regarding penetration, the respondent urged that the same was proved by the evidence of the complainant which was corroborated by medical evidence adduced by PW3.
26. On identification of the appellant as the perpetrator, the respondent submitted that the same was duly proved as the appellant was well known to the complainant.
27. On the argument by the appellant that the prosecution failed to call crucial witnesses, the respondent relied on Section 143 of the Evidence Act where it is provided that no particular number of witnesses are required to proof any fact.
28. Regarding the inconsistencies and contradictions, the respondent submitted that the evidence adduced by the prosecution was cogent, consistent, corroborative and overwhelming against the appellant. In any case the respondent submitted that if there are any inconsistencies or contradictions, the same ought to be evaluated based on the principles laid down in the case of Erick Onyango Odeng’ vs Republic (2014) e KLR that not all contradictions or inconsistencies must lead to the rejection of the evidence of a witness unless they point to a deliberate untruthfulness.
29. Finally, the respondent submitted that the sentence meted by the trial court was lawful as it is what is prescribed under Section 8(4) of the Sexual Offences Act which is the penal provision for offence under Section 8(1) of the Sexual Offences Act.
Analysis and Determination.
30. The duty of the first appellate court remains as set out in the case of Okeno vs Republic (1972) E.A 32 where the Court of Appeal stated:
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya vs R (1957) E.A) 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 vs R (1957) E.A 570). It is not the function of a first appellate court 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.”
31. Having re-evaluated and reconsidered the lower court record and the evidence adduced the issue is whether the prosecution proved its case against the appellant as required. It is well settled that in criminal cases the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt. The often-cited case of Woolmington vs DPP (1935) A.C 462 comes in handy where Viscount Sankey L.C in describing the burden of proof in criminal cases stated:
“Through out the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether (the offence was committed by him), the prosecution has not made out a case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
32. what amounts to ‘reasonable doubt’ was emphasized in the case of Republic vs Koech & Another (Criminal Case No. 63 of 2019 (2024) KEHC 13581 (KLR) where the court in reiterating the English position stated:
“It is the business of the prosecution to bring home the guilt of the accused to the satisfaction of the mind of the jury; but the doubt to the benefit of which the accused is entitled to must be such as rational thinking, sensible man fairly and reasonably entertain, not the doubt of vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle skepticism. There must be doubt which a man may honestly and conscientiously entertain.”
33. Bearing the foregoing in mind, the issue is whether the main ingredients of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act which provides as follows:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
34. From the foregoing provision, the elements that must be proved by the prosecution to sustain a conviction in a defilement case are, firstly, proof of penetration, secondly, age of the victim, and thirdly, the identity of the perpetrator. Courts have reiterated this in plethora of cases. In the case of Dominic Mwilaria vs Republic (supra) the court held:
“It is now beyond peradventure that, in cases of defilement, the prosecution must prove:
1. The age of the child. This is important because defilement relates to children who are persons below the age of 18 years. Secondly, the age of the victim determines the sentence to be imposed.
2. The fact of penetration in accordance with Section 2(1) of the Sexual Offences Act; and
3. That the perpetrator is the appellant.”
35. On the age, the complainant testified that she was aged 17 years as at the time she gave evidence in court. She produced certificate of birth showing that she was born on 12 th October, 2007. The offence is alleged to have been committed on diverse dates between March and November, 2024. It is clear that at the time the complainant was aged between 16 and 17 years.
36. In the premises, there is no doubt that the prosecution proved the age of the complainant to the required standard.
37. Regarding the identification of the appellant as the perpetrator, it was clear from the evidence adduced before the trial court that the appellant was well known to the complainant as they were in the same school and they had rented houses in the same plot.
38. In the premises the prosecution was able to prove that the appellant was identified by the complainant.
39. The issue which stands out for determination is whether the appellant penetrated the complainant in accordance with Section 2(1) of the Sexual Offences Act which defines penetration as: “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
40. Regarding penetration, the trial court relied on the evidence of the complainant who testified that she had sexual intercourse with the appellant resulting into pregnancy. The trial court found that this was corroborated by the medical evidence adduced by PW3 who confirmed the complainant’s pregnancy.
41. The appellant argument is that the prosecution failed to conduct DNA test to conclusively link him with the pregnancy. Section 36(1) of the Sexual Offences Act provides:
“Notwithstanding the provisions of Section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and ascertain whether or not the accused committed an offence.”
42. The foregoing section gives the court discretion to direct for forensic and scientific testing of samples including DNA test in gathering evidence and ascertain whether an offence has been committed. The appellant argument is that since the complainant gave birth, it would have been desirable that DNA test be conducted to conclusively link him with the offence.
43. Section 36 of the Sexual Offences Act has been a subject of discussion by our courts. In the case of Makenzi vs Republic (2019) KEHC 1014 (KLR) the court stated as follows:
“24. Section 36 of the Sexual Offences Act is in permissive terms. It gives the court discretion to direct the taking of samples for forensics. There is, therefore, no obligation on the part of the trial court to direct that such samples be taken, since such directions could be made at the discretion of the court in circumstances where the court deems it fit.
25. There are several court decisions where section 36 was considered. In the George Muchika Lumbasi vs Republic (2016) e KLR, it was stated that section 36 of the Sexual Offences Act does not make medical examination mandatory, except where the court thinks it was appropriate in the circumstances of the case to subject an accused person to such examination. In Evans Wamalwa Simiyu vs Republic (2016) e KLR and Edwin Maiyo Kandie vs Republic (2019) e KLR the court stated similarly.
26. The law has been settled that, despite section 36 of the Sexual Offences Act, sexual assault is proved, not by medical examination, but by evidence adduced at the trial. The evidence of the victim and that of corroborative witnesses or circumstantial evidence is usually enough to establish sexual offences such as rape and defilement.”
44. In finding that the prosecution had proved penetration, the trial relied on the evidence of the complainant. I have reviewed the evidence adduced by the complainant and it was consistent that she had sexual intercourse with the appellant resulting into pregnancy. She was also consistent that she did not have any other sexual relationship with anyone else. The appellant in his defence he merely denied having committed the offence.
45. Much as no DNA test was conducted as argued by the appellant, which in any case is discretionary and is not the only proof of sexual assault, I find that there was other evidence as adduced by the complainant that she had sexual intercourse with the appellant who was a neighbour where they had rented house.
46. In the premises, I have no reason to fault the trial court for believing in the evidence of the complainant which she was duly entitled to believe pursuant to the proviso to Section 124 of the Evidence Act. In any case the complainant evidence was corroborated by the medical evidence adduced by PW3.
47. The other issue raised by the appellant is that prosecution failed to call crucial witnesses. He argues that prosecution failed to call the complainant’s roommate and the teacher who discovered that the complainant was pregnant without any explanation. He argues that their evidence would have been adverse to the prosecution case.
48. To start with, Section 143 of the Evidence Act provides that:
“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”
49. In the case of Julius Kalewa Mutunga vs Republic (2006) e KLR the Court of Appeal stated:
“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.”
50. The appellant relied on the case of Bukenya & Others vs Uganda (supra) where the following principles were laid down: -
i) The prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent.
ii) The court has the right, and duty to call any person whose evidence appears essential to the just decision of the case.
iii) Where the evidence called barely is adequate the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
51. The bottom line of the foregoing is that, it matters less the number of witnesses the prosecution avails, but whether the evidence adduced is sufficient to prove the case. What is important is whether in the circumstances of the case failure to call a witness would result to adverse inference being made on the part of the party expected to call such witness.
52. In the instant case, the complainant was categorical that she had sexual relationship with the appellant. The evidence of her roommate and the teacher who discovered that she was pregnant would not have been beneficial to the prosecution hence no adverse inference can be made. In any case, the appellant was at liberty to call the said witnesses but he did not.
53. In the premises, I find the ground that failure to call the alleged witnesses left gaps in the prosecution case to be unmerited.
54. The appellant also argued that the trial court did not consider his defence. It is trite that failure by the trial court to consider an accused defence is fundamentally wrong in law and a conviction can be overturned.
55. I have looked at the trial court judgment and I find that she considered both the prosecution and defence case. On my part as the first appellate court, I have evaluated the appellant’s defence before the trial court. All the appellant told the court is that he did not commit the offence. Such defence was just a mere denial which looked against the prosecution case did not rebut the evidence adduced against the appellant.
56. In the premises I find the ground by the appellant that his defence was not considered to be unmerited.
57. The appellant was sentenced to serve 15 years. That is the lawful sentence provided for under the penal provision of the Sexual Offences Act under Section 8(4) and I have no reason to interfere with it.
58. The upshot is that the appeal is unmerited and the finding of the trial court both on conviction and sentence is upheld.
Dated, signed and delivered virtually this 14 th day of September, 2026.
Francis Kyambia
Judge
2
Introduction.
1. The appellant was charged and convicted for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars are that on diverse months between March and November, 2024 at Miyani village, Miyani Sub-location, Kinagoni Location, in Kaloleni Sub-County within Kilifi County of Coast Region intentionally and unlawfully caused his male genital organ namely penis to penetrate the vagina of S.K a child aged 17 years.
2. The appellant was aggrieved by the conviction and sentence of the trial court and preferred this appeal to the High Court raising the following grounds:
1. That the learned trial magistrate erred in law and fact in finding that the prosecution had proved its case beyond reasonable doubt despite glaring inconsistencies and contradictions in the prosecution evidence.
2. That the learned trial magistrate failed to consider that the prosecution did not conduct a DNA test to establish the paternity of the complainant’s pregnancy which would have been crucial in linking the appellant with the alleged offence.
3. That the trial court erred in law and fact by relying solely on the uncorroborated testimony of the complainant contrary to the established principles of criminal law that require corroboration in sexual offence cases.
4. That the learned trial magistrate erred in law and fact by failing to consider that the prosecution did not call critical witnesses including the complainant’s roommate and the teacher who first noticed and reported the pregnancy whose testimonies were vital to establishing the truth of the allegations.
5. That the learned trial magistrate misdirected herself in fact and law by not appreciating that the prosecution’s case against the appellant was fraught with inconsistencies and great doubt.
6. That the sentence of fifteen (15) years was harsh and excessive in the circumstances especially in light of the week evidence adduced.
7. That the learned trial magistrate erred in law and fact by failing to appreciate that the prosecution evidence was purely circumstantial and did not meet the threshold required to sustain a conviction.
Prosecution Case.
3. The prosecution case was that the complainant a student at (particulars withheld) was aged 17 years having been born on 12 th October, 2007. The complainant told the court that the appellant was known to her as they were in the same school. She was in Form two whereas the appellant was in Form four.
4. Sometimes in the month of March, 2024 when the complainant was coming from school together with the appellant, she decided to go to her parent’s home at Gotani. The appellant offered to escort her. Apparently, the complainant and appellant had rented houses in the same plot. On the way, the appellant started pestering the complainant for a love relationship.
5. According to the complainant, the appellant kept on pursuing her for a relationship and after one month he invited her to his house where they talked and she left. Later in the month of October, 2024, they were sent home for school fees. The complainant found the appellant in his rented house. The appellant invited her in his house and asked for sexual intercourse with her but she initially resisted. The appellant persisted with the demand for sexual intercourse and she eventually gave in and they had sexual intercourse.
6. Later in the month of January, 2024 the complainant discovered that she was pregnant. She approached the appellant and told him that he was responsible for the pregnancy but he tried to deny the same. One of her teachers also realized that she was pregnant and called her mother to the school. The complainant was interrogated and the matter reported to the police station and she was referred to Mariakani Sub County hospital. The appellant was also interrogated and arrested and taken to the police station. The complainant confessed that the appellant was her boyfriend and she had not had sex with any other person apart from the appellant.
7. In cross-examination she reiterated that the appellant was known to her and they had rented houses in the same plot with the appellant’s house next to hers. She further asserted that she went to the appellant’s house several times and they had sexual intercourse.
8. PW2 the complainant’s mother received a telephone call that she was required in school. She proceeded there the following day and she was informed that her daughter was pregnant. The complainant was interrogated and said that the appellant was responsible for the pregnancy. The appellant’s parents were also called to the school. The matter was referred to the police.
9. The complainant was taken to the hospital and PW3 examined her and confirmed that she was 21 weeks pregnant. PW3 concluded that due to pregnancy, there was evidence of penetration.
10. The investigations were conducted by PW4 who upon receiving the report interrogated the complainant and recorded her statement. PW4 confirmed that after interrogating the complainant he established that she had a relationship with the appellant leading to sexual intercourse which resulted in pregnancy of the complainant. The appellant who was aged 21 years was arrested and charged.
Defence Case.
11. The appellant when placed on his defence he gave a sworn testimony and called one witness. He told the trial court that he was a student at (particulars withheld) and was aged 21 years. He also told the court that the complainant was known to him as they were in the same school and had rented houses in the same plot. He however denied having any relationship with the complainant.
12. He told the court while in school he was called into the deputy teacher’s office where he found the assistant chief and other people. It is when he was told that the complainant was pregnant and he was the one who was responsible. He said he found some other two boys in the office who were also interrogated separately. He was then taken to the police station. He denied being responsible for the complainant’s pregnancy.
13. His mother who testified as DW2 told the court that she was called to the school and told that the appellant had impregnated the complainant.
Trial Court Finding.
14. The trial court after analyzing the evidence adduced by the prosecution and the defence case, she appreciated that the burden of proof lies with the prosecution and the standard of proof is that of beyond reasonable doubt. She cited among others the cases of Woolmington vs DPP (1935) A.C 462 and Re Winship 397 US 358 (1970) on the burden and standard of proof.
15. The trial court further cited Section 8(1) as read with Section 8(4) of the Sexual Offences Act and identified the essential ingredients which the prosecution must establish in a case of defilement to wit, the age of the victim, proof of penetration and positive identification of the perpetrator. She cited the cases of Charles Wamukoya Karani vs Republic (Criminal Appeal No. 79 of 2013 and Dominic Mwilaria vs Republic (2018) e KLR where the court reiterated the ingredients of the offence of defilement.
16. The trial court found that all the ingredients of the offence were proved as required, that is, the complainant was aged 16 years at the time of the alleged offence as per her oral evidence which was corroborated by the certificate of birth, that there was penetration as per the evidence of the complainant corroborated by the medical evidence and that the appellant was positively identified as the perpetrator as he was well known to the complainant.
17. The trial court concluded that the prosecution had proved the offence defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act and accordingly convicted the appellant.
Appellant’s Submissions.
18. The appellant submitted that the prosecution case was heavily based on the evidence of the pregnancy of the complainant. However, the prosecution failed to scientifically and independently connect the pregnancy to the appellant as there was no DNA test conducted to conclusively link the appellant with the pregnancy.
19. It was further submitted that the prosecution failed to call crucial witnesses to wit, the complainant’s roommate and the teacher who first noticed that the complainant was pregnant. It is the submission of the appellant that these witnesses were crucial to assist the court in determining when the pregnancy was first discovered. It was argued that the complainant’s roommate would have assisted the court regarding the conduct of the complainant. Reliance was placed on the case of Bukenya & Others vs Uganda (1972) E.A 549 where it was held that failure by the prosecution to call crucial witnesses without explanation, the court is entitled to draw inference that the evidence of such witnesses would have been adverse to the prosecution case.
20. The appellant further submitted that the medical evidence adduced by PW3 was merely to confirm penetration but the same could not be taken to be corroboration that the penetration was caused by the appellant. The appellant emphasized the need for DNA test to connect the appellant with the pregnancy. In the appellant’s own view, the prosecution failed to conduct investigations capable of excluding other possible perpetrators especially on whether the complainant had other relationships.
21. Finally, the appellant submitted that the trial court failed to evaluate the defence by the appellant who denied the allegations and maintained that he was falsely implicated. Reliance was placed on the case of Pandya vs Republic (1957) E.A 336 where it was emphasized that the court has s duty to evaluate and consider the defence mounted by an accused against the prosecution case before arriving at its conclusion.
22. The appellant urged the court to allow the appeal, quash the conviction, set aside the sentence and release the appellant.
Respondent’s Submissions.
23. The respondent contested the appeal. It is submitted that all the essential ingredients of the offence of defilement were proved as required. On the issue age the respondent relied on the case of Francis Omuroni vs Uganda Court of Appeal Criminal Appeal No. 2 of 2000 and submitted that in this case age was proved through the birth certificate produced in court as exhibit.
24. On the issue of failure by the prosecution to conduct DNA test, the respondent relied on the case of HWN vs Republic (Criminal Appeal No. 101 of 2019) (2023) KECA 295 (KLR) where the Court of Appeal observed that Section 36 of the Sexual Offences Act on DNA is not mandatory if there is other evidence pointing at the appellant.
25. Regarding penetration, the respondent urged that the same was proved by the evidence of the complainant which was corroborated by medical evidence adduced by PW3.
26. On identification of the appellant as the perpetrator, the respondent submitted that the same was duly proved as the appellant was well known to the complainant.
27. On the argument by the appellant that the prosecution failed to call crucial witnesses, the respondent relied on Section 143 of the Evidence Act where it is provided that no particular number of witnesses are required to proof any fact.
28. Regarding the inconsistencies and contradictions, the respondent submitted that the evidence adduced by the prosecution was cogent, consistent, corroborative and overwhelming against the appellant. In any case the respondent submitted that if there are any inconsistencies or contradictions, the same ought to be evaluated based on the principles laid down in the case of Erick Onyango Odeng’ vs Republic (2014) e KLR that not all contradictions or inconsistencies must lead to the rejection of the evidence of a witness unless they point to a deliberate untruthfulness.
29. Finally, the respondent submitted that the sentence meted by the trial court was lawful as it is what is prescribed under Section 8(4) of the Sexual Offences Act which is the penal provision for offence under Section 8(1) of the Sexual Offences Act.
Analysis and Determination.
30. The duty of the first appellate court remains as set out in the case of Okeno vs Republic (1972) E.A 32 where the Court of Appeal stated:
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya vs R (1957) E.A) 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 vs R (1957) E.A 570). It is not the function of a first appellate court 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.”
31. Having re-evaluated and reconsidered the lower court record and the evidence adduced the issue is whether the prosecution proved its case against the appellant as required. It is well settled that in criminal cases the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt. The often-cited case of Woolmington vs DPP (1935) A.C 462 comes in handy where Viscount Sankey L.C in describing the burden of proof in criminal cases stated:
“Through out the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether (the offence was committed by him), the prosecution has not made out a case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.”
32. what amounts to ‘reasonable doubt’ was emphasized in the case of Republic vs Koech & Another (Criminal Case No. 63 of 2019 (2024) KEHC 13581 (KLR) where the court in reiterating the English position stated:
“It is the business of the prosecution to bring home the guilt of the accused to the satisfaction of the mind of the jury; but the doubt to the benefit of which the accused is entitled to must be such as rational thinking, sensible man fairly and reasonably entertain, not the doubt of vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle skepticism. There must be doubt which a man may honestly and conscientiously entertain.”
33. Bearing the foregoing in mind, the issue is whether the main ingredients of the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act which provides as follows:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
34. From the foregoing provision, the elements that must be proved by the prosecution to sustain a conviction in a defilement case are, firstly, proof of penetration, secondly, age of the victim, and thirdly, the identity of the perpetrator. Courts have reiterated this in plethora of cases. In the case of Dominic Mwilaria vs Republic (supra) the court held:
“It is now beyond peradventure that, in cases of defilement, the prosecution must prove:
1. The age of the child. This is important because defilement relates to children who are persons below the age of 18 years. Secondly, the age of the victim determines the sentence to be imposed.
2. The fact of penetration in accordance with Section 2(1) of the Sexual Offences Act; and
3. That the perpetrator is the appellant.”
35. On the age, the complainant testified that she was aged 17 years as at the time she gave evidence in court. She produced certificate of birth showing that she was born on 12 th October, 2007. The offence is alleged to have been committed on diverse dates between March and November, 2024. It is clear that at the time the complainant was aged between 16 and 17 years.
36. In the premises, there is no doubt that the prosecution proved the age of the complainant to the required standard.
37. Regarding the identification of the appellant as the perpetrator, it was clear from the evidence adduced before the trial court that the appellant was well known to the complainant as they were in the same school and they had rented houses in the same plot.
38. In the premises the prosecution was able to prove that the appellant was identified by the complainant.
39. The issue which stands out for determination is whether the appellant penetrated the complainant in accordance with Section 2(1) of the Sexual Offences Act which defines penetration as: “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
40. Regarding penetration, the trial court relied on the evidence of the complainant who testified that she had sexual intercourse with the appellant resulting into pregnancy. The trial court found that this was corroborated by the medical evidence adduced by PW3 who confirmed the complainant’s pregnancy.
41. The appellant argument is that the prosecution failed to conduct DNA test to conclusively link him with the pregnancy. Section 36(1) of the Sexual Offences Act provides:
“Notwithstanding the provisions of Section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and ascertain whether or not the accused committed an offence.”
42. The foregoing section gives the court discretion to direct for forensic and scientific testing of samples including DNA test in gathering evidence and ascertain whether an offence has been committed. The appellant argument is that since the complainant gave birth, it would have been desirable that DNA test be conducted to conclusively link him with the offence.
43. Section 36 of the Sexual Offences Act has been a subject of discussion by our courts. In the case of Makenzi vs Republic (2019) KEHC 1014 (KLR) the court stated as follows:
“24. Section 36 of the Sexual Offences Act is in permissive terms. It gives the court discretion to direct the taking of samples for forensics. There is, therefore, no obligation on the part of the trial court to direct that such samples be taken, since such directions could be made at the discretion of the court in circumstances where the court deems it fit.
25. There are several court decisions where section 36 was considered. In the George Muchika Lumbasi vs Republic (2016) e KLR, it was stated that section 36 of the Sexual Offences Act does not make medical examination mandatory, except where the court thinks it was appropriate in the circumstances of the case to subject an accused person to such examination. In Evans Wamalwa Simiyu vs Republic (2016) e KLR and Edwin Maiyo Kandie vs Republic (2019) e KLR the court stated similarly.
26. The law has been settled that, despite section 36 of the Sexual Offences Act, sexual assault is proved, not by medical examination, but by evidence adduced at the trial. The evidence of the victim and that of corroborative witnesses or circumstantial evidence is usually enough to establish sexual offences such as rape and defilement.”
44. In finding that the prosecution had proved penetration, the trial relied on the evidence of the complainant. I have reviewed the evidence adduced by the complainant and it was consistent that she had sexual intercourse with the appellant resulting into pregnancy. She was also consistent that she did not have any other sexual relationship with anyone else. The appellant in his defence he merely denied having committed the offence.
45. Much as no DNA test was conducted as argued by the appellant, which in any case is discretionary and is not the only proof of sexual assault, I find that there was other evidence as adduced by the complainant that she had sexual intercourse with the appellant who was a neighbour where they had rented house.
46. In the premises, I have no reason to fault the trial court for believing in the evidence of the complainant which she was duly entitled to believe pursuant to the proviso to Section 124 of the Evidence Act. In any case the complainant evidence was corroborated by the medical evidence adduced by PW3.
47. The other issue raised by the appellant is that prosecution failed to call crucial witnesses. He argues that prosecution failed to call the complainant’s roommate and the teacher who discovered that the complainant was pregnant without any explanation. He argues that their evidence would have been adverse to the prosecution case.
48. To start with, Section 143 of the Evidence Act provides that:
“No particular number of witnesses shall in absence of any provision of the law to the contrary be required for proof of any fact.”
49. In the case of Julius Kalewa Mutunga vs Republic (2006) e KLR the Court of Appeal stated:
“…As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive.”
50. The appellant relied on the case of Bukenya & Others vs Uganda (supra) where the following principles were laid down: -
i) The prosecution must make available all witnesses necessary to establish the truth, even though their evidence may be inconsistent.
ii) The court has the right, and duty to call any person whose evidence appears essential to the just decision of the case.
iii) Where the evidence called barely is adequate the court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.
51. The bottom line of the foregoing is that, it matters less the number of witnesses the prosecution avails, but whether the evidence adduced is sufficient to prove the case. What is important is whether in the circumstances of the case failure to call a witness would result to adverse inference being made on the part of the party expected to call such witness.
52. In the instant case, the complainant was categorical that she had sexual relationship with the appellant. The evidence of her roommate and the teacher who discovered that she was pregnant would not have been beneficial to the prosecution hence no adverse inference can be made. In any case, the appellant was at liberty to call the said witnesses but he did not.
53. In the premises, I find the ground that failure to call the alleged witnesses left gaps in the prosecution case to be unmerited.
54. The appellant also argued that the trial court did not consider his defence. It is trite that failure by the trial court to consider an accused defence is fundamentally wrong in law and a conviction can be overturned.
55. I have looked at the trial court judgment and I find that she considered both the prosecution and defence case. On my part as the first appellate court, I have evaluated the appellant’s defence before the trial court. All the appellant told the court is that he did not commit the offence. Such defence was just a mere denial which looked against the prosecution case did not rebut the evidence adduced against the appellant.
56. In the premises I find the ground by the appellant that his defence was not considered to be unmerited.
57. The appellant was sentenced to serve 15 years. That is the lawful sentence provided for under the penal provision of the Sexual Offences Act under Section 8(4) and I have no reason to interfere with it.
58. The upshot is that the appeal is unmerited and the finding of the trial court both on conviction and sentence is upheld.
Dated, signed and delivered virtually this 14 th day of September, 2026.
Francis Kyambia
Judge
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