1. The appellant was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act .
2. The particulars of the offence were that the appellant, on 23rd April 2022 at Utunenei village, Utunenei sub location at Mbooni East Sub County, within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of S.B.M, a child aged 13 years.
3. The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act . On 23rd April 2022 at Utunenei village, Utunenei sub location at Mbooni East Sub County, within Makueni County, intentionally and unlawfully, he intentionally touched the vagina of S.B.M, a child aged 13 years.
4. The appellant was convicted of the offence of defilement and was sentenced to 10 years' imprisonment.
5. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
i) That the trial court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the required standard in law and facts.
ii) That the trial court erred in both law and facts by failing to consider material contradictions and inconsistencies in the evidence which rendered the prosecution witnesses incredible and worthless of belief but also impugned the whole of the prosecution’s case.
iii) That the trial court erred in both law and facts by failing to find that the charges against the appellant were unprocedural and eventually bore unprocedural conviction.
iv) That the trial court erred in both law and facts by not failing to give the appellant a fair hearing because the appellant went through litigation process without any prosecution statements which contravened Article 50(2) a, b, j and k of the Kenyan Constitution 2010.
v) That the trial court erred in both law and facts by not considering the accused cogent defence that did not only exonerate him from the charges but also made him a sacrosanct.
6. The appellant was arraigned in court on 25.4.2022, where he pleaded not guilty.
7. On 7 th June 2022 and 26 th July 2022, when the witnesses appeared before the court to testify, the appellant told the court that he was not ready to proceed, for the reason that he had not been supplied with witness statement. The trial court in both instances allowed the appellant’s request for adjournment, and subsequently made orders that the witness statements be supplied to the appellant. On 16 th August 2022 when the case came up for hearing, the appellant infirmed the court that he then was ready to proceed. He did not raise the issue of non- availability of witness statements at that stage, nor later during the trial.
8. Subsequently, the court carried out voir dire for the minor and found her to be intelligent enough to give sworn testimony and to understand the meaning of an oath. S.M, the complainant in this case told the court that she was born on 8 th November 2008, and was a secondary school student. Her evidence was that on 2 3rd April 2022, at around 6 a.m, her mother had left for work. She was asleep when the appellant went to her bed, started touching her breasts and then had sex with her. The appellant warned her against reporting the incident otherwise he would kill her.
9. When her mother knocked the door, the appellant got startled, and rushed to the bedroom. The mother to the victim sought to know what was happening, and the complainant informed her what had transpired, and that is when the matter was reported to the police and dither complainant taken to hospital for examination. The victim told the court that she knew the appellant well, as he was in a relationship with the mort her. She could not tell if the mother and the appellant wear having issues with their relationship.
10. Juliana Nduku Mwange is the mother to the complainant. She produced the Certificate of Birth in respect of PW 1, and confirmed that she was born on 8 th November 2008. She told the court that she left her house, leaving the appellant and the complainant. When she came back at around 8.30 a, she found the door locked from inside. She knocked the door severally, and when PW 1 eventually opened the door, she informed her that the appellant had defiled. The mother to the victim told the court that according to the minor, this was the 3 rd time the appellant had defiled her. She reported the case to the police station and the appellant was arrested on the same day.
11. Covine Mwangangi is a clinical officer based at Tawa Sub County Hospital. She examined the complainant on 23 rd April 2022. Upon examination of the victim’s genitalia, the hymen was broken. No tears or bruises were noted, and there was no spermatozoa seen. She explained that the absence of spermatozoa could have been as a result of failure of ejaculation.
12. The case was investigated by No. P.C Douglas Wafula. He stated that the victim was escorted to the lice post by her mother, and that when he interrogated her, she informed that she had been defiled by the appellant. The victim was referred to the hospital, and upon completion of investigations, the appellant was charged with the offence before court. He also visited the scene and established that there were three houses in the neighborhood.
13. When placed on his defence, the appellant denied the charges and stated that he was not present when the alleged offence took pace. That the mother to the complainant had also lied to the court, and further that this case was reported due to a disagreement at home. He urged the court to relapse him since there was no medical evidence to support the charges.
14. In cross examination, he stated that pw 2 was his wife of three years, and that they used to stay together with the complainant. He confirmed that the complainant was a child, and that she knew him very well.
Submissions.
15. In his submissions, the appellant raised issue with the fact that there was contradictions in respect to the exact time when the alleged offence took place. He also stated that the medical evidence was not conclusive since the medical officer could not tell when the hymen was broken, and that no spermatozoa was seen, coupled with lack of tears or bruise on the victims genitalia. Appellant submitted that the prosecution evidence was riddled with contradictions and inconsistencies, and that the case was fabricated and fragmented in order to secure a conviction.
Analysis
16. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it.
When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different conclusion”
17. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
18. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
19. Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:
“ The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
20. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:
“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
21. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:
‘Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.”
22. It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only two issues, that is:
a. Whether the trial court failed to comply with the provision of Article 50(2) 50(2) a, b, j and k of the Kenyan Constitution 2010.
b. Whether the offence was proved to the required standards .
23. The court will thus address the appeal on each of the two issues raised. The first issue is that there was a mistrial due to non-compliance with article 50(2) a, b, j and k of the Constitution of Kenya 2010.
24. The appellant submitted that he was not supplied with witness statements thought the trial. However. Looking at the record of the court, the request was made, and the same allowed. Indeed, he trial court on two occasions allowed the case to be adjourned to allow the appellant sufficient time to get the witness statements. When the case came up for hearing, the appellant indicated that he was ready to proceed. One can only assume that he had adequately prepared for the trial. To this end, I find that he has not demonstrated that his rights were breached.
25. The next issue is the question of proof of the offence of defilement. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(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.
(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.
26. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act , which provides as follows:
( 1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
(2)It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years
27. In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013 , it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
28. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In this case, the age of the minor was proved by way of production of a birth certificate. At the age of the alleged offence, the complainant was aged 13 years. The appellant also stated in his defence that he knew the complainant well and that she was a child.
29 .On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”
30. The minor testified and identified the appellant as the perpetrator. She stated that she knew him as the mother’s boyfriend and that they lived in the same house. PW 2 also stated that she found the appellant in her house when she returned from work. The minor did not just do identification but recognition. The court is satisfied that the appellant was recognized by the minor and PW 2, who knew and lived with him.
31. The last issue is penetration. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
32. In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) , the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:
“ Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”
33. The medical evidence, in form of treatment notes dated 23 rd April 2022, indicated that the complainant told the doctor that the appellant had defiled her on three different occasions, and that this was the third time. The medical officer could not tell when the hymen got torn, and there were no tears or bruises seen. No explanation was given in regard to the presence of epithelial cells. Additionally, I have looked at the P3 form and the Post Rape Care form, and I find no express indication by the medical officer that there was evidence of defilement.
34. Though the court may safely convict based on the evidence adduced by the complaint, the trial magistrate did not indicate if the court found the complainant a truthful witness. The medical evidence was not conclusive, as no physical and medical evidence was documented to suggest that there was sexual activity with the minor that morning as alleged. No remarks were made on the P3 for or the Post Rape care form. The torn hymen alone, cannot be relied upon as a basis upon which to form a basis of conviction.
35. I wish to reiterate the findings of the Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different conclusion”
36. In my view the medical evidence could not corroborate the allegation of penetration. However Section 124 of the Evidence Act makes this quite clear that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth .” [Emphasis added]
37. It is therefore clear that the evidence of the complainant, if a minor, requires corroboration, save that in sexual offences where the minor is the victim of the offence, the evidence of that minor, if believed by the trial court, can, without corroboration, found a conviction.
38. Dealing with a similar issue in the case of Mohamed vs. R , (2008) 1 KLR G&F 1175 , the Court held that:
“ It is now well settled that the courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”
39. However as was held in John Mutua Munyoki vs. Republic (supra)
“As we shall endeavour to demonstrate later in this judgment, much as the trial court believed the testimony of the complainant, there was no strict compliance with the requirements of the proviso to section 124 of the Evidence Act aforesaid. It is quite clear that there was doubt as to whether the complainant was actually defiled by the appellant since there was no credible evidence as to the penetration of the complainant. It is trite that those doubts should have been resolved in favour of the appellant.”
40. Having so said, I find that there was no sufficient evidence to support the element of penetration, and hence the conviction on the charge of defilement was unsafe and is hereby quashed.
41. On the alternative charge, I equally find that based on the reasons outline above, it would be unsafe to convict the appellant on such evidence, and he is equally acquitted on the alternative charge of indecent act with a child.
Determination
42. In the circumstances, I make the following orders: -
a. The Appeal on conviction is merited and is hereby allowed.
b. The sentence set aside and the appellant is released from custody unless lawfully held.
c. Right of appeal 14 days.
d. The file is closed.
DELIVERED, DATED AND SIGNED ON THIS 17 TH SEPTEMBER, 2026.
JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU.
JUDGE
In the presence of: -
Miss Omol for the State
Appellant in person.
Court Assistant – Mr. Kibet.
MAKUENI HCCRA NO. E026 OF 2025 1 | Page
2. The particulars of the offence were that the appellant, on 23rd April 2022 at Utunenei village, Utunenei sub location at Mbooni East Sub County, within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of S.B.M, a child aged 13 years.
3. The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act . On 23rd April 2022 at Utunenei village, Utunenei sub location at Mbooni East Sub County, within Makueni County, intentionally and unlawfully, he intentionally touched the vagina of S.B.M, a child aged 13 years.
4. The appellant was convicted of the offence of defilement and was sentenced to 10 years' imprisonment.
5. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
i) That the trial court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the required standard in law and facts.
ii) That the trial court erred in both law and facts by failing to consider material contradictions and inconsistencies in the evidence which rendered the prosecution witnesses incredible and worthless of belief but also impugned the whole of the prosecution’s case.
iii) That the trial court erred in both law and facts by failing to find that the charges against the appellant were unprocedural and eventually bore unprocedural conviction.
iv) That the trial court erred in both law and facts by not failing to give the appellant a fair hearing because the appellant went through litigation process without any prosecution statements which contravened Article 50(2) a, b, j and k of the Kenyan Constitution 2010.
v) That the trial court erred in both law and facts by not considering the accused cogent defence that did not only exonerate him from the charges but also made him a sacrosanct.
6. The appellant was arraigned in court on 25.4.2022, where he pleaded not guilty.
7. On 7 th June 2022 and 26 th July 2022, when the witnesses appeared before the court to testify, the appellant told the court that he was not ready to proceed, for the reason that he had not been supplied with witness statement. The trial court in both instances allowed the appellant’s request for adjournment, and subsequently made orders that the witness statements be supplied to the appellant. On 16 th August 2022 when the case came up for hearing, the appellant infirmed the court that he then was ready to proceed. He did not raise the issue of non- availability of witness statements at that stage, nor later during the trial.
8. Subsequently, the court carried out voir dire for the minor and found her to be intelligent enough to give sworn testimony and to understand the meaning of an oath. S.M, the complainant in this case told the court that she was born on 8 th November 2008, and was a secondary school student. Her evidence was that on 2 3rd April 2022, at around 6 a.m, her mother had left for work. She was asleep when the appellant went to her bed, started touching her breasts and then had sex with her. The appellant warned her against reporting the incident otherwise he would kill her.
9. When her mother knocked the door, the appellant got startled, and rushed to the bedroom. The mother to the victim sought to know what was happening, and the complainant informed her what had transpired, and that is when the matter was reported to the police and dither complainant taken to hospital for examination. The victim told the court that she knew the appellant well, as he was in a relationship with the mort her. She could not tell if the mother and the appellant wear having issues with their relationship.
10. Juliana Nduku Mwange is the mother to the complainant. She produced the Certificate of Birth in respect of PW 1, and confirmed that she was born on 8 th November 2008. She told the court that she left her house, leaving the appellant and the complainant. When she came back at around 8.30 a, she found the door locked from inside. She knocked the door severally, and when PW 1 eventually opened the door, she informed her that the appellant had defiled. The mother to the victim told the court that according to the minor, this was the 3 rd time the appellant had defiled her. She reported the case to the police station and the appellant was arrested on the same day.
11. Covine Mwangangi is a clinical officer based at Tawa Sub County Hospital. She examined the complainant on 23 rd April 2022. Upon examination of the victim’s genitalia, the hymen was broken. No tears or bruises were noted, and there was no spermatozoa seen. She explained that the absence of spermatozoa could have been as a result of failure of ejaculation.
12. The case was investigated by No. P.C Douglas Wafula. He stated that the victim was escorted to the lice post by her mother, and that when he interrogated her, she informed that she had been defiled by the appellant. The victim was referred to the hospital, and upon completion of investigations, the appellant was charged with the offence before court. He also visited the scene and established that there were three houses in the neighborhood.
13. When placed on his defence, the appellant denied the charges and stated that he was not present when the alleged offence took pace. That the mother to the complainant had also lied to the court, and further that this case was reported due to a disagreement at home. He urged the court to relapse him since there was no medical evidence to support the charges.
14. In cross examination, he stated that pw 2 was his wife of three years, and that they used to stay together with the complainant. He confirmed that the complainant was a child, and that she knew him very well.
Submissions.
15. In his submissions, the appellant raised issue with the fact that there was contradictions in respect to the exact time when the alleged offence took place. He also stated that the medical evidence was not conclusive since the medical officer could not tell when the hymen was broken, and that no spermatozoa was seen, coupled with lack of tears or bruise on the victims genitalia. Appellant submitted that the prosecution evidence was riddled with contradictions and inconsistencies, and that the case was fabricated and fragmented in order to secure a conviction.
Analysis
16. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it.
When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different conclusion”
17. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
18. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
19. Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:
“ The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
20. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:
“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
21. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:
‘Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.”
22. It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only two issues, that is:
a. Whether the trial court failed to comply with the provision of Article 50(2) 50(2) a, b, j and k of the Kenyan Constitution 2010.
b. Whether the offence was proved to the required standards .
23. The court will thus address the appeal on each of the two issues raised. The first issue is that there was a mistrial due to non-compliance with article 50(2) a, b, j and k of the Constitution of Kenya 2010.
24. The appellant submitted that he was not supplied with witness statements thought the trial. However. Looking at the record of the court, the request was made, and the same allowed. Indeed, he trial court on two occasions allowed the case to be adjourned to allow the appellant sufficient time to get the witness statements. When the case came up for hearing, the appellant indicated that he was ready to proceed. One can only assume that he had adequately prepared for the trial. To this end, I find that he has not demonstrated that his rights were breached.
25. The next issue is the question of proof of the offence of defilement. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(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.
(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.
26. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act , which provides as follows:
( 1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.
(2)It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years
27. In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013 , it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
28. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In this case, the age of the minor was proved by way of production of a birth certificate. At the age of the alleged offence, the complainant was aged 13 years. The appellant also stated in his defence that he knew the complainant well and that she was a child.
29 .On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”
30. The minor testified and identified the appellant as the perpetrator. She stated that she knew him as the mother’s boyfriend and that they lived in the same house. PW 2 also stated that she found the appellant in her house when she returned from work. The minor did not just do identification but recognition. The court is satisfied that the appellant was recognized by the minor and PW 2, who knew and lived with him.
31. The last issue is penetration. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
32. In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) , the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:
“ Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.”
33. The medical evidence, in form of treatment notes dated 23 rd April 2022, indicated that the complainant told the doctor that the appellant had defiled her on three different occasions, and that this was the third time. The medical officer could not tell when the hymen got torn, and there were no tears or bruises seen. No explanation was given in regard to the presence of epithelial cells. Additionally, I have looked at the P3 form and the Post Rape Care form, and I find no express indication by the medical officer that there was evidence of defilement.
34. Though the court may safely convict based on the evidence adduced by the complaint, the trial magistrate did not indicate if the court found the complainant a truthful witness. The medical evidence was not conclusive, as no physical and medical evidence was documented to suggest that there was sexual activity with the minor that morning as alleged. No remarks were made on the P3 for or the Post Rape care form. The torn hymen alone, cannot be relied upon as a basis upon which to form a basis of conviction.
35. I wish to reiterate the findings of the Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different conclusion”
36. In my view the medical evidence could not corroborate the allegation of penetration. However Section 124 of the Evidence Act makes this quite clear that:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth .” [Emphasis added]
37. It is therefore clear that the evidence of the complainant, if a minor, requires corroboration, save that in sexual offences where the minor is the victim of the offence, the evidence of that minor, if believed by the trial court, can, without corroboration, found a conviction.
38. Dealing with a similar issue in the case of Mohamed vs. R , (2008) 1 KLR G&F 1175 , the Court held that:
“ It is now well settled that the courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.”
39. However as was held in John Mutua Munyoki vs. Republic (supra)
“As we shall endeavour to demonstrate later in this judgment, much as the trial court believed the testimony of the complainant, there was no strict compliance with the requirements of the proviso to section 124 of the Evidence Act aforesaid. It is quite clear that there was doubt as to whether the complainant was actually defiled by the appellant since there was no credible evidence as to the penetration of the complainant. It is trite that those doubts should have been resolved in favour of the appellant.”
40. Having so said, I find that there was no sufficient evidence to support the element of penetration, and hence the conviction on the charge of defilement was unsafe and is hereby quashed.
41. On the alternative charge, I equally find that based on the reasons outline above, it would be unsafe to convict the appellant on such evidence, and he is equally acquitted on the alternative charge of indecent act with a child.
Determination
42. In the circumstances, I make the following orders: -
a. The Appeal on conviction is merited and is hereby allowed.
b. The sentence set aside and the appellant is released from custody unless lawfully held.
c. Right of appeal 14 days.
d. The file is closed.
DELIVERED, DATED AND SIGNED ON THIS 17 TH SEPTEMBER, 2026.
JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU.
JUDGE
In the presence of: -
Miss Omol for the State
Appellant in person.
Court Assistant – Mr. Kibet.
MAKUENI HCCRA NO. E026 OF 2025 1 | Page