(Being an appeal against the conviction and sentence by Hon. F.C Ngetich (RM) in Makueni CMC (SO) Case No. E025 of 2023)
1. The appellant herein, Francis Kituu Kingóo, was convicted and sentenced to 25 years imprisonment by the Chief Magistrates’ Court at Makueni for the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006.
2. The particulars of the offence are that on diverse dates between 1 September 2023 and 8 October 2023 at Nthiani village Kitise location Kathonzweni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate into the vagina of P.K, a child aged 13 years. He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act with particulars stating that on diverse dates between 1 September 2023 and 8 October 2023 at Nthiani village Kitise location Kathonzweni Sub-County within Makueni County intentionally and unlawfully caused his penis to touch the vagina of P.K, a child aged 13 years.
3. He denied the allegations prompting the trial where the prosecution called five (5) witnesses to prove its case. PW1 the complainant testified that she was 13 years having been born on 8 April 2010 as per her birth certificate. She recalled that in September 2023, she was heading home from school while cycling in a bicycle when appellant stopped her by grabbing her bicycle, directed her to the bushes nearby, removed his clothes and inserted his penis in her vagina without using a condom. After finishing, he gave her Ksh.100 and warned her not to tell anyone.
4. On 8 October 2023 at around 4pm, she met the appellant who asked to have sex with her. He took her to then bushes, removed his clothes and her pant and inserted his penis in her vagina without using a condom. He did that twice. She testified that on both occasions, she felt pain but didn’t scream since there was no one nearby. The appellant gave her Ksh.500 and she went home but did not tell anyone. She later disclosed the incidents to her grandparents (PW3 and PW4) after they probed her, where they reported the matter to the police and she was taken to hospital for medical examination and treatment. She stated that she knew the appellant since he usually sells vegetables at the market.
5. PW3 Joshua Mutua, the complainant’s grandfather testified that he lived with the complainant together with PW4, his wife. That on 8 October 2023 the complainant arrived home from church at around 7pm and he noticed her walking style was not normal. On inquiry she lied that she had fallen from the bicycle but he did not believe. On 10 October 2023, he probed her further, inquiring where she had been getting money and that when she opened up and told him that the appellant has been having sex with her in the bushes. He immediately informed PW4 and they reported the matter to Kitise police station where the complainant identified the appellant who was arrested. The next day, she was taken to hospital where tests established that she had an infection and was given medicine.
6. PW4 Tabitha Mutua, the grandmother of the complainant reiterated the evidence of PW3 an added that she knew the appellant since she usually sees him in Kitise where he sells vegetables. PW2 Jackson Nzivo a clinical officer at Kathonzweni health centre testified that on 11 October 2023, he examined the complainant and established that her external genitalia was normal, hymen was broken, she had whitish vaginal discharge that was smelly, there was presence of epithelia cells, purse cells and yeast cells. He concluded that there evidence of vagina penetration due to broken hymen and presence of sexually transmitted infection similar to the appellant.
7. He further testified that the appellant was tested and examined the same day where he was found to have contracted a sexually transmitted infection similar to that of the complainant. He produced the Post Rape Care Form (exhibit 2), Patient treatment card appellant (exhibit 3), P3 form (exhibit 4) and treatment notes PW1 (exhibit 5).
8. PW5 PC Kendry Chelogoi the investigating officer testified that on 10 October 2023, PW1, PW2 and PW3 reported a case of defilement at the police station. He investigated the case and established that the complainant was born on 8 April 2010 as per the birth certificate which was produced as exhibit 1. PW3 handed him Ksh.500 which the witness said was the money given by the appellant that he had recovered from the complainant. The money was produced as an exhibit. He stated that the complainant told him that the appellant had defiled her and directed him to Kitise market where the appellant had groceries shop as well as car wash business. They went to the place as directed and arrested the appellant.
9. At the close of the prosecution’s case, the court found that a prima facie case had been established and placed the appellant in his defence.
10. In defence, the appellant denied committing the offence and stated that he was a vegetable vendor. He testified that on 8 October 2023 which was a Sunday, he opened his business at 8.00am and stayed there until 8.00pm. He the went to his carwash job where he stayed until 10.50pm when he went to sleep.
11. At the close of the trial, the appellant was found guilty of defilement and sentenced to 25 years imprisonment. Aggrieved, he filed the present appeal where he raised the following grounds of appeal:
i. The trial court erred in law and fact by failing to evaluate the whole evidence by the prosecution as required including circumstantial evidence and exhibits relevant to Section 8 (5) (a) and (b) of the Sexual Offences Act.
ii. The trial court erred in law and fact by failing to find that the trial was unfair in contravention of Article 25 (c) of the Constitution.
iii. The trial court erred in law and fact by failing to adequately consider the appellant’s defence and submissions in violation of Article 50 of the Constitution.
iv. The trial court erred in law and fact by failing to find that the essential prosecution witnesses necessary to prove the case were not produced.
v. The trial court erred in law and fact by upholding circumstantial evidence/exhibits that is doubtful, unreliable and not credible contrary to Article 50 (4) of the Constitution and Section 77 (1) and (3) of the Evidence Act rendering the conviction unsafe.
vi. The trial court erred in law and fact by failing to observe that the sentence imposed on the appellant at was harsh.
12. The appellant filed written submissions which they relied on at the hearing of the appeal. He submitted that the prosecution bore the burden prove the case beyond reasonable standards as established in Sekitoliko vs Uganda (1967) EA 531 . He went on to state that the essential elements of the offence of defilement are proof of age, penetration and positive identification of the perpetrator. As regards the element of penetration, he contested the evidence of PW1 and argued that it was not corroborated by PW2. He urged the court to disregard the evidence of PW2 which he termed as valueless.
13. He further submitted that the evidence of PW1 was not credible on account of voire dire which established that the victim did not understand the meaning of oath thereby rendering her evidence valueless and that there were material contradictions, discrepancies and inconsistencies in the prosecution witnesses. He cited the cases of Ndungu Kimani vs Republic (1979) KLR 282 and Wanjoka vs Republic (2023) eKLR and urged the court to find that the material contradictions by the prosecution witnesses were fatal to their case. He implored upon the court find in his favour, quash the conviction and sentence and acquit him.
14. The respondent opposed the appeal and field written submissions. It reiterated that the offence of defilement was rooted on three main ingredients; age of the victim, penetration and identification of the perpetrator ( See Edwin Nyabongo Onsongo vs Republic (2016) eKLR).
15. It was submitted that age was proved by PW1’s evidence and the birth certificate which showed that the victim was born on 8 April 2010 and hence 13 years old at the time of commission of the offence. As regards penetration, it was submitted that the same was proved by the evidence of PW1 which was corroborated by PW2 and medical evidence that established that the hymen was broken, there were whitish smelly discharge and presence of epithelial cells which proved evidence of sexual activity. The cases of DS vs Republic and Twehangane Alfred vs Uganda, Cr. App. No. 139 of 2001 were cited in support.
16. On the element of positive identification, it was submitted that PW1 positively identified the appellant as the perpetrator by name and told the court that he usually sells vegetables in the market.
17. As regards the contention that there were material contradictions and inconsistencies in the prosecution’s case, it was submitted that the evidence of all prosecution witnesses was corroborative and corroborated the medical findings and that there were no contradictions or inconsistencies at all. On the issue of voire dire, it was submitted that it was properly undertaken to PW1 in compliance with Section 125 (1) of the Evidence Act and Section 19 (1) of the Oaths and Statutory Declarations Act.
18. On sentencing, the respondent argued that it was proper in view of the minor’s age and the relevant law and that mandatory minimum sentences under the Sexual Offences Act are lawful as held by the Supreme Court in Republic vs Joshua Gichuki Mwangi (2024) KESC 34. The court was urged to dismiss the appeal and uphold both conviction and sentence.
Analysis and determination
19. This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32.
20. The court of appeal, in Kiilu & Another v Republic [2005]1 KLR 174 , 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."
21. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty
of an offence termed as defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
22. The issues for determination in this appeal are as follows: -
i. Whether the appellant’s constitutional rights under Article 25 and 50 of the Constitution were violated
ii. Whether the prosecution proved the offence of defilement beyond reasonable doubt
iii. Whether the sentence was excessive, harsh and unjustified
Whether the appellant’s constitutional rights to fair trial under Article 25 and 50 of the Constitution were violated
23. The appellant in his grounds of appeal faulted the trial court for failing to find that the trial was unfair in contravention of Article 25 (c) of the Constitution, that his rights to fair trial under Article 50 of the Constitution were violated when the court failed to consider his defence and submissions, and that the court relied on illegally obtained evidence contrary to Article 50 (4) of the Constitution and Section 77 (1) and (3) of the Evidence Act.
24. Article 50 of the Constitution, which cannot be limited by dint of Article 25, guarantees fair hearing and forms the foundation upon which all trial’s rest upon. A violation of Article 50 of the Constitution may lead to the quashing convictions , invalidation of proceedings, or exclusion tainted evidence (see Article 50 (4)), as the case may be . If the breach is severe enough to compromise the entire trial process, it will result in an acquittal or, in limited cases, an order for a retrial. See John vs Republic (Cr App No. E036 of 2025) 2022 KEHC 410 (KLR).
25. The appellant, however, did not expound the alleged instances of violation of the constitution in his submissions. From the grounds of appeal, the appellant contends that his defence and submission were not considered. However, an analysis of the judgement shows that the appellant’s defence, from cross examination to his evidence tendered during defence hearing, was duly considered but found not sufficient to outweigh the evidence by the prosecution.
26. On the issue of reliance on illegally obtained evidence, the appellant did not point out any evidence that was illegally obtained. Neither did he object to the production of any evidence during trial on grounds that it was illegally obtained. This court has examined the record of proceedings before the trial court and has not found any evidence that was illegally obtained or adduced. The court finds no evidence to support the contention of violation of constitutional rights.
Whether the prosecution proved the offence of defilement beyond reasonable doubt
27. The specific elements of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are age of the complainant, proof of penetration and positive identification of the assailant. See Charles Wamukoya Karani v Republic , Criminal Appeal No. 72 of 2013 .
Proof of age of the victim
28. It is of utmost importance to prove the age of the victim in a case of defilement. In Hadson Ali Mwachongo vs Republic (2016) eKLR , the Court of Appeal held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
29. The age of a victim may be proved in various ways. In Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR , the court stated:
“ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof . We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
30. The complainant testified that she was 13 years old having been born on 8 April 2010. This was corroborated by PW5 produced the complainant’s birth certificate as exhibit 1 which shows that she was born on 8 April 2010 meaning that she was 13 years and 6 months at the time the offence occurred. The appellant did not challenge the authenticity of the birth certificate and the court finds no reason to doubt it. The court finds that age of the complainant was proved beyond any reasonable doubt.
Proof of Penetration
31. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
32. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Cr iminal Appeal No. 35 of 1995 . The court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
33. PW1’s testified that she had sex with the appellant on two different occasions, the first in September 2023 and the second on 8 October 2023. She testified that on both occasions the appellant led her to the forest by the road side, removed his penis and inserted it in her vagina without using a condom. The appellant gave her money after each occasion, the first being Ksh.100 and the second Ksh.500. She knew the appellant as someone who sells vegetables. Her evidence was corroborated by PW 3 who recovered from her the Ksh. 500 that she was given by the appellant and produced it in court as exhibit 5 as well as PW4 who reiterated that she had seen the appellant doing business of selling vegetables in the market.
34. Evidence of PW2, who conducted medical tests and examined the complainant established that her hymen was broken, she had whitish vaginal discharge that was smelly, there was presence of epithelia cells, purse cells, there were yeast cells and that the complainant had contracted a sexually transmitted infection similar to the appellant. He concluded that there was evidence of vagina penetration, thereby providing further corroboration to PW1’s evidence.
35. PW5 on the other hand testified that he established that the appellant was carrying out a business of selling vegetables in the market, a fact that was confirmed by the appellant in his defence. This corroborated the narrative given by PW1, PW3 and PW4.
36. The appellant contended that there were material contradictions, discrepancies and inconsistencies in the prosecution witnesses which rendered the conviction unsafe. However, the court has analyzed the prosecution case and did not find any material contradictions, discrepancies or inconsistencies at all. On the contrary, all prosecution witnesses provided cogent, consistent and corroborative evidence that proved the offence beyond any doubt.
37. The appellant also challenged the evidence of PW1 contending that it was not credible and could not form the basis of his conviction since voire dire had established that the victim did not understand the meaning of oath, thereby rendering her evidence valueless.
38. The purpose of voire dire is to determine whether or not a witness of tender age understands the meaning of oath. This will assist the trial court determine whether such a person should give sworn or unsworn evidence. Section 125 (1) of the Evidence Act provides that all persons are competent to testify unless they are prevented from understanding the questions or from giving rational answers on account of, inter alia , tender age. Evidence given by a witness of tender age through unsworn evidence the same weight as evidence given on oath, especially when the witness is subjected to cross examination as was the case for PW1.
39. The trial court duly conducted voire dire and established that PW1 was fit to testify though not on oath. She gave a coherent testimony and answered all questions in cross examination. The court is satisfied that her evidence was properly on record and that Section 19 (1) of the Oaths and Statutory Declarations Act and Section 125 (1) of the Evidence Act were duly complied with. The court finds penetration has been proved beyond reasonable doubt.
Identification of the appellant as the perpetrator
40. On the issue of identification, the evidence shows that the complainant identified the appellant as the perpetrator. She identified him by his name and testified that she knows him and he usually sells vegetables at the market. In both occasions, the defilement occurred during the day and she had an opportunity to clearly see the perpetrator. PW4 and PW5 testified that the appellant was selling vegetables in the market thereby corroborating the evidence of PW1 on her description of the appellant. Having considered the circumstances and facts of the case, the court finds that the appellant was positively identified by recognition.
41. This court is therefore finds that the prosecution proved all ingredients of the offence beyond reasonable doubt and finds the conviction by the trial court properly grounded in law.
Whether the sentence was excessive, harsh and unjustified
42. The appellant contends that the sentence of 25 years imprisonment is harsh and excessive whereas the respondent submitted the sentence was proper in view of the minor’s age and the relevant law. The appellant was convicted of defilement contrary to section 8 (1) and (3) of the Sexual Offences Act. Section 8 (3) of the Act provide minimum sentence of 20 years.
43. Sentencing is an exercise of discretion by the trial court and the High Court would not interfere with the sentence imposed unless it finds that it was illegal, unlawful or founded on a wrong principle of law. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”
44. Further, mandatory minimum sentences under the Sexual Offences Act remain lawful. See SC Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi and Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR.
45. Section 354 (3) (a) (ii) of the Criminal Procedure Code empowers this court to vary the sentence on appeal. The court has consider the mitigation by the appellant, the circumstances of the case and the objective of punishment that include rehabilitation of the offender and finds merit in reviewing the sentence.
Final Orders
46. Thus, the court makes the following orders:
i. The appeal against conviction lacks merit and is accordingly dismissed.
ii. The sentence of 25 years imprisonment is set aside and substituted with a sentence of 20 years imprisonment.
iii. The sentence shall run from 12 October 2023.
Dated, signed and delivered virtually at Nairobi on this 22 nd day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
1. The appellant herein, Francis Kituu Kingóo, was convicted and sentenced to 25 years imprisonment by the Chief Magistrates’ Court at Makueni for the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006.
2. The particulars of the offence are that on diverse dates between 1 September 2023 and 8 October 2023 at Nthiani village Kitise location Kathonzweni Sub-County within Makueni County intentionally and unlawfully caused his penis to penetrate into the vagina of P.K, a child aged 13 years. He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act with particulars stating that on diverse dates between 1 September 2023 and 8 October 2023 at Nthiani village Kitise location Kathonzweni Sub-County within Makueni County intentionally and unlawfully caused his penis to touch the vagina of P.K, a child aged 13 years.
3. He denied the allegations prompting the trial where the prosecution called five (5) witnesses to prove its case. PW1 the complainant testified that she was 13 years having been born on 8 April 2010 as per her birth certificate. She recalled that in September 2023, she was heading home from school while cycling in a bicycle when appellant stopped her by grabbing her bicycle, directed her to the bushes nearby, removed his clothes and inserted his penis in her vagina without using a condom. After finishing, he gave her Ksh.100 and warned her not to tell anyone.
4. On 8 October 2023 at around 4pm, she met the appellant who asked to have sex with her. He took her to then bushes, removed his clothes and her pant and inserted his penis in her vagina without using a condom. He did that twice. She testified that on both occasions, she felt pain but didn’t scream since there was no one nearby. The appellant gave her Ksh.500 and she went home but did not tell anyone. She later disclosed the incidents to her grandparents (PW3 and PW4) after they probed her, where they reported the matter to the police and she was taken to hospital for medical examination and treatment. She stated that she knew the appellant since he usually sells vegetables at the market.
5. PW3 Joshua Mutua, the complainant’s grandfather testified that he lived with the complainant together with PW4, his wife. That on 8 October 2023 the complainant arrived home from church at around 7pm and he noticed her walking style was not normal. On inquiry she lied that she had fallen from the bicycle but he did not believe. On 10 October 2023, he probed her further, inquiring where she had been getting money and that when she opened up and told him that the appellant has been having sex with her in the bushes. He immediately informed PW4 and they reported the matter to Kitise police station where the complainant identified the appellant who was arrested. The next day, she was taken to hospital where tests established that she had an infection and was given medicine.
6. PW4 Tabitha Mutua, the grandmother of the complainant reiterated the evidence of PW3 an added that she knew the appellant since she usually sees him in Kitise where he sells vegetables. PW2 Jackson Nzivo a clinical officer at Kathonzweni health centre testified that on 11 October 2023, he examined the complainant and established that her external genitalia was normal, hymen was broken, she had whitish vaginal discharge that was smelly, there was presence of epithelia cells, purse cells and yeast cells. He concluded that there evidence of vagina penetration due to broken hymen and presence of sexually transmitted infection similar to the appellant.
7. He further testified that the appellant was tested and examined the same day where he was found to have contracted a sexually transmitted infection similar to that of the complainant. He produced the Post Rape Care Form (exhibit 2), Patient treatment card appellant (exhibit 3), P3 form (exhibit 4) and treatment notes PW1 (exhibit 5).
8. PW5 PC Kendry Chelogoi the investigating officer testified that on 10 October 2023, PW1, PW2 and PW3 reported a case of defilement at the police station. He investigated the case and established that the complainant was born on 8 April 2010 as per the birth certificate which was produced as exhibit 1. PW3 handed him Ksh.500 which the witness said was the money given by the appellant that he had recovered from the complainant. The money was produced as an exhibit. He stated that the complainant told him that the appellant had defiled her and directed him to Kitise market where the appellant had groceries shop as well as car wash business. They went to the place as directed and arrested the appellant.
9. At the close of the prosecution’s case, the court found that a prima facie case had been established and placed the appellant in his defence.
10. In defence, the appellant denied committing the offence and stated that he was a vegetable vendor. He testified that on 8 October 2023 which was a Sunday, he opened his business at 8.00am and stayed there until 8.00pm. He the went to his carwash job where he stayed until 10.50pm when he went to sleep.
11. At the close of the trial, the appellant was found guilty of defilement and sentenced to 25 years imprisonment. Aggrieved, he filed the present appeal where he raised the following grounds of appeal:
i. The trial court erred in law and fact by failing to evaluate the whole evidence by the prosecution as required including circumstantial evidence and exhibits relevant to Section 8 (5) (a) and (b) of the Sexual Offences Act.
ii. The trial court erred in law and fact by failing to find that the trial was unfair in contravention of Article 25 (c) of the Constitution.
iii. The trial court erred in law and fact by failing to adequately consider the appellant’s defence and submissions in violation of Article 50 of the Constitution.
iv. The trial court erred in law and fact by failing to find that the essential prosecution witnesses necessary to prove the case were not produced.
v. The trial court erred in law and fact by upholding circumstantial evidence/exhibits that is doubtful, unreliable and not credible contrary to Article 50 (4) of the Constitution and Section 77 (1) and (3) of the Evidence Act rendering the conviction unsafe.
vi. The trial court erred in law and fact by failing to observe that the sentence imposed on the appellant at was harsh.
12. The appellant filed written submissions which they relied on at the hearing of the appeal. He submitted that the prosecution bore the burden prove the case beyond reasonable standards as established in Sekitoliko vs Uganda (1967) EA 531 . He went on to state that the essential elements of the offence of defilement are proof of age, penetration and positive identification of the perpetrator. As regards the element of penetration, he contested the evidence of PW1 and argued that it was not corroborated by PW2. He urged the court to disregard the evidence of PW2 which he termed as valueless.
13. He further submitted that the evidence of PW1 was not credible on account of voire dire which established that the victim did not understand the meaning of oath thereby rendering her evidence valueless and that there were material contradictions, discrepancies and inconsistencies in the prosecution witnesses. He cited the cases of Ndungu Kimani vs Republic (1979) KLR 282 and Wanjoka vs Republic (2023) eKLR and urged the court to find that the material contradictions by the prosecution witnesses were fatal to their case. He implored upon the court find in his favour, quash the conviction and sentence and acquit him.
14. The respondent opposed the appeal and field written submissions. It reiterated that the offence of defilement was rooted on three main ingredients; age of the victim, penetration and identification of the perpetrator ( See Edwin Nyabongo Onsongo vs Republic (2016) eKLR).
15. It was submitted that age was proved by PW1’s evidence and the birth certificate which showed that the victim was born on 8 April 2010 and hence 13 years old at the time of commission of the offence. As regards penetration, it was submitted that the same was proved by the evidence of PW1 which was corroborated by PW2 and medical evidence that established that the hymen was broken, there were whitish smelly discharge and presence of epithelial cells which proved evidence of sexual activity. The cases of DS vs Republic and Twehangane Alfred vs Uganda, Cr. App. No. 139 of 2001 were cited in support.
16. On the element of positive identification, it was submitted that PW1 positively identified the appellant as the perpetrator by name and told the court that he usually sells vegetables in the market.
17. As regards the contention that there were material contradictions and inconsistencies in the prosecution’s case, it was submitted that the evidence of all prosecution witnesses was corroborative and corroborated the medical findings and that there were no contradictions or inconsistencies at all. On the issue of voire dire, it was submitted that it was properly undertaken to PW1 in compliance with Section 125 (1) of the Evidence Act and Section 19 (1) of the Oaths and Statutory Declarations Act.
18. On sentencing, the respondent argued that it was proper in view of the minor’s age and the relevant law and that mandatory minimum sentences under the Sexual Offences Act are lawful as held by the Supreme Court in Republic vs Joshua Gichuki Mwangi (2024) KESC 34. The court was urged to dismiss the appeal and uphold both conviction and sentence.
Analysis and determination
19. This being the first appeal, the duty of this court is to examine and re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. See Okeno vs Republic [1972] EA 32.
20. The court of appeal, in Kiilu & Another v Republic [2005]1 KLR 174 , 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."
21. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty
of an offence termed as defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
22. The issues for determination in this appeal are as follows: -
i. Whether the appellant’s constitutional rights under Article 25 and 50 of the Constitution were violated
ii. Whether the prosecution proved the offence of defilement beyond reasonable doubt
iii. Whether the sentence was excessive, harsh and unjustified
Whether the appellant’s constitutional rights to fair trial under Article 25 and 50 of the Constitution were violated
23. The appellant in his grounds of appeal faulted the trial court for failing to find that the trial was unfair in contravention of Article 25 (c) of the Constitution, that his rights to fair trial under Article 50 of the Constitution were violated when the court failed to consider his defence and submissions, and that the court relied on illegally obtained evidence contrary to Article 50 (4) of the Constitution and Section 77 (1) and (3) of the Evidence Act.
24. Article 50 of the Constitution, which cannot be limited by dint of Article 25, guarantees fair hearing and forms the foundation upon which all trial’s rest upon. A violation of Article 50 of the Constitution may lead to the quashing convictions , invalidation of proceedings, or exclusion tainted evidence (see Article 50 (4)), as the case may be . If the breach is severe enough to compromise the entire trial process, it will result in an acquittal or, in limited cases, an order for a retrial. See John vs Republic (Cr App No. E036 of 2025) 2022 KEHC 410 (KLR).
25. The appellant, however, did not expound the alleged instances of violation of the constitution in his submissions. From the grounds of appeal, the appellant contends that his defence and submission were not considered. However, an analysis of the judgement shows that the appellant’s defence, from cross examination to his evidence tendered during defence hearing, was duly considered but found not sufficient to outweigh the evidence by the prosecution.
26. On the issue of reliance on illegally obtained evidence, the appellant did not point out any evidence that was illegally obtained. Neither did he object to the production of any evidence during trial on grounds that it was illegally obtained. This court has examined the record of proceedings before the trial court and has not found any evidence that was illegally obtained or adduced. The court finds no evidence to support the contention of violation of constitutional rights.
Whether the prosecution proved the offence of defilement beyond reasonable doubt
27. The specific elements of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are age of the complainant, proof of penetration and positive identification of the assailant. See Charles Wamukoya Karani v Republic , Criminal Appeal No. 72 of 2013 .
Proof of age of the victim
28. It is of utmost importance to prove the age of the victim in a case of defilement. In Hadson Ali Mwachongo vs Republic (2016) eKLR , the Court of Appeal held that:
“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.”
29. The age of a victim may be proved in various ways. In Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR , the court stated:
“ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof . We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
30. The complainant testified that she was 13 years old having been born on 8 April 2010. This was corroborated by PW5 produced the complainant’s birth certificate as exhibit 1 which shows that she was born on 8 April 2010 meaning that she was 13 years and 6 months at the time the offence occurred. The appellant did not challenge the authenticity of the birth certificate and the court finds no reason to doubt it. The court finds that age of the complainant was proved beyond any reasonable doubt.
Proof of Penetration
31. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person . “genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
32. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Cr iminal Appeal No. 35 of 1995 . The court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
33. PW1’s testified that she had sex with the appellant on two different occasions, the first in September 2023 and the second on 8 October 2023. She testified that on both occasions the appellant led her to the forest by the road side, removed his penis and inserted it in her vagina without using a condom. The appellant gave her money after each occasion, the first being Ksh.100 and the second Ksh.500. She knew the appellant as someone who sells vegetables. Her evidence was corroborated by PW 3 who recovered from her the Ksh. 500 that she was given by the appellant and produced it in court as exhibit 5 as well as PW4 who reiterated that she had seen the appellant doing business of selling vegetables in the market.
34. Evidence of PW2, who conducted medical tests and examined the complainant established that her hymen was broken, she had whitish vaginal discharge that was smelly, there was presence of epithelia cells, purse cells, there were yeast cells and that the complainant had contracted a sexually transmitted infection similar to the appellant. He concluded that there was evidence of vagina penetration, thereby providing further corroboration to PW1’s evidence.
35. PW5 on the other hand testified that he established that the appellant was carrying out a business of selling vegetables in the market, a fact that was confirmed by the appellant in his defence. This corroborated the narrative given by PW1, PW3 and PW4.
36. The appellant contended that there were material contradictions, discrepancies and inconsistencies in the prosecution witnesses which rendered the conviction unsafe. However, the court has analyzed the prosecution case and did not find any material contradictions, discrepancies or inconsistencies at all. On the contrary, all prosecution witnesses provided cogent, consistent and corroborative evidence that proved the offence beyond any doubt.
37. The appellant also challenged the evidence of PW1 contending that it was not credible and could not form the basis of his conviction since voire dire had established that the victim did not understand the meaning of oath, thereby rendering her evidence valueless.
38. The purpose of voire dire is to determine whether or not a witness of tender age understands the meaning of oath. This will assist the trial court determine whether such a person should give sworn or unsworn evidence. Section 125 (1) of the Evidence Act provides that all persons are competent to testify unless they are prevented from understanding the questions or from giving rational answers on account of, inter alia , tender age. Evidence given by a witness of tender age through unsworn evidence the same weight as evidence given on oath, especially when the witness is subjected to cross examination as was the case for PW1.
39. The trial court duly conducted voire dire and established that PW1 was fit to testify though not on oath. She gave a coherent testimony and answered all questions in cross examination. The court is satisfied that her evidence was properly on record and that Section 19 (1) of the Oaths and Statutory Declarations Act and Section 125 (1) of the Evidence Act were duly complied with. The court finds penetration has been proved beyond reasonable doubt.
Identification of the appellant as the perpetrator
40. On the issue of identification, the evidence shows that the complainant identified the appellant as the perpetrator. She identified him by his name and testified that she knows him and he usually sells vegetables at the market. In both occasions, the defilement occurred during the day and she had an opportunity to clearly see the perpetrator. PW4 and PW5 testified that the appellant was selling vegetables in the market thereby corroborating the evidence of PW1 on her description of the appellant. Having considered the circumstances and facts of the case, the court finds that the appellant was positively identified by recognition.
41. This court is therefore finds that the prosecution proved all ingredients of the offence beyond reasonable doubt and finds the conviction by the trial court properly grounded in law.
Whether the sentence was excessive, harsh and unjustified
42. The appellant contends that the sentence of 25 years imprisonment is harsh and excessive whereas the respondent submitted the sentence was proper in view of the minor’s age and the relevant law. The appellant was convicted of defilement contrary to section 8 (1) and (3) of the Sexual Offences Act. Section 8 (3) of the Act provide minimum sentence of 20 years.
43. Sentencing is an exercise of discretion by the trial court and the High Court would not interfere with the sentence imposed unless it finds that it was illegal, unlawful or founded on a wrong principle of law. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held:
“It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.”
44. Further, mandatory minimum sentences under the Sexual Offences Act remain lawful. See SC Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi and Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR.
45. Section 354 (3) (a) (ii) of the Criminal Procedure Code empowers this court to vary the sentence on appeal. The court has consider the mitigation by the appellant, the circumstances of the case and the objective of punishment that include rehabilitation of the offender and finds merit in reviewing the sentence.
Final Orders
46. Thus, the court makes the following orders:
i. The appeal against conviction lacks merit and is accordingly dismissed.
ii. The sentence of 25 years imprisonment is set aside and substituted with a sentence of 20 years imprisonment.
iii. The sentence shall run from 12 October 2023.
Dated, signed and delivered virtually at Nairobi on this 22 nd day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE