(Being an appeal from the conviction and sentence in Ogembo Magistrate Court Sexual Offence Case Number MCSO E035 of 2025 delivered on 23 rd July 2025 by Hon. I K Rono RM )
Introduction
1. The Appellant, Geofrey Machuki Onyango was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act in Ogembo Chief Magistrate Sexual Offence Case No. E035 of 2025. The particulars of the offence are that on 6 th April 2025 at Randani Vilage, Kenyanya Sub County, within Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of S.B , a child aged 4 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act . Following a full hearing the Appellant was convicted of the offence of defilement contrary to Section 20 (1) of the Sexual Offences Act and sentenced to serve life imprisonment.
2. Aggrieved by both the conviction and sentence, the Appellant preferred the appeal herein vide a Petition of Appeal dated 25 th July 2025 . In his nine grounds the Appellant states that, the trial court erred in law by failing to reconsider and evaluate the evidence afresh, to note that the medical evidence did not link the Appellant to the offence, to appreciate that the prosecution case was full of contradictions, insufficient, thus the prosecution did not prove its case beyond reasonable doubt threshold. That the trial court failed in law and fact by disregarding the Appellant’s story that dispute arose from a family feud coupled with vengeance. That the judgment of the trial court was a nullity, the Appellant was not accorded a fair trial in compliance to Article 50 (2) to be represented by an advocate . Lastly, he prayed for trial proceedings to enable him erect more grounds of Appeal under Section 350 2 (v) of the Criminal Procedure Code. The Appellant urged this Court to allow the appeal in its entirety
3. Upon the appeal being admitted, on 21 st May 2026 parties appeared before the honorable court. This court directed the appeal to be canvassed by way of written submissions, the Appellant was not certain if his counsel on record had filed his written submissions. The Respondent had filed and served its written submissions dated 6 th March 2026. The Appellant was granted 10 days to file his submissions but none was filed at the time of writing this judgment.
4. To start with, this court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court.
Prosecution Case
5. The prosecution called four witnesses. PW1, the complainant's mother testified that on 6 th April 2025 she left home at 10.00 a.m. to purchase food at Magena, leaving the Appellant with their two daughters, V.M 8 years old and S.B 4 years old. On returning at 2.00 p.m., she found S.B. alone and crying; she was informed that V.M. had gone to fetch firewood, and could not locate the Appellant. When the Appellant returned, the child continued crying and, on undressing her, she noticed nothing initially, but the child later disclosed that his father had defiled her in bed. On removing the child's underpants, PW1 observed inflammation and wetness in the private parts, screamed, and neighbours confirmed the issue before the Appellant fled. The child was eventually examined at Magena Hospital and confirmed defiled. PW1 produced the child's birth notification. In cross-examination, the Appellant put it to her that she had left the child in his care and that no other incident of defilement had occurred, in re-examination she maintained that S.B. had named the father, the Appellant as her defiler.
6. PW2, the minor complainant S.B, aged 4years old, was found by the trial court, following voir dire examination to be intelligent but unable to understand the nature and obligation of an oath, and accordingly she gave unsworn testimony. She stated that she lived with Baba, Mama, and V. and that when her mother went out she was left with V. She described being hurt and infected in her groin/private parts, pointing to the area, and stated "Baba hurt me here," identifying the Appellant in court. In cross-examination she maintained she had never slept in the Appellant’s bed and slept with her mother; she clarified in re-examination that she slept in the house with her mother while the Appellant slept in the kitchen, each having a separate bed.
7. PW3, Zipporah Nyaboke , a Clinical Officer at Magena Level 3 Hospital, testified that she examined the Complainant on 7 th April 2025 after she was brought in by PW1, who reported that the child had been defiled by a person known to her and that the perpetrator had asked the child not to report the matter or he would harm her. On examination, the child appeared sad and tired, with a freshly torn hymen, painful and lacerated vaginal area, and yellowish, foul-smelling discharge from which laboratory tests were conducted. PW3 filled and produced the P3 form, the PRC form, and treatment notes as exhibits, concluding that the child had been penetrated and noting the offence as defilement. In cross-examination, she conceded the yellowish discharge was watery, not normal in children, but that on further re-examination she clarified the discharge could occur in children generally on a case by case basis, was not necessarily linked to sexual intercourse, and that while laboratory results did not show spermatozoa, they showed numerous epithelial cells; she was not able to conduct investigations linking the discharge to any specific perpetrator, nor to identify the perpetrator, as this was outside her mandate.
8. PW4, PC (W) Caroline Langat, the Investigating Officer attached to Magena Police Station, testified that the complaint was reported by the mother on 7 th April 2025 , that she recorded statements from witnesses, filled the P3 form, arrested and charged the accused, and that the minor identified the accused clearly in court as her defiler. In cross-examination, she conceded there was a delay in recording the Appellant’s statement, that he was not arrested until 8 th April 2025 , two days after the alleged incident of 6 th April 2025 and was charged on 9 th April 2025 , and that he was arrested while at the hospital following up on his child, not at the scene. She produced the child's Birth Notification, confirming the child was aged 4 years old.
Defence Case
9. DW1, the Appellant Geoffrey Machuki Onyango, a boda-boda operator resident in Rondoni, testified that he knows the complainant as his child, aged 4 years old. On 6 th April 2025 at about 9.00 a.m. he was riding his motorcycle ferrying a customer to Magena hospital and upon reaching he met his ex-wife PW1who informed him their child, S.B had been brought to hospital and defiled. He denied having gone to the hospital himself, but stated he was returning the customer’s bag to Magena Hospital after he realized that the customer had forgotten it. He was subsequently arrested by police officers at the hospital and taken to the police station, where he was fingerprinted, and detained, and alleged that he had assaulted PW1. He raised a background of a land dispute with his uncle following his father's death on 17 th October 2024 , asserting his uncle had sold family land prompting a dispute that was handled at Kiango Police Post. The Appellant testified that his ex-wife is a friend to the uncle, and the reason they separated with his ex-wife is because he found her with the uncle at night, and asserted that his ex-wife and uncle instigated the case over the said land issues, seeking the court to balance the scales in that regard.
10. In cross-examination, DW1 maintained he lived alone in Rondoni village, separate from his ex-wife and children who reside in Mansaine, and that he was not at home on 6 th April 2025 when he was summoned to the police station. He stated PW1 lived with his uncle, whose home was not far from his own, that he had never stepped into his uncle's home when the children visited, and denied defiling the child, attributing the accusation to the ongoing land dispute with his uncle. He conceded no reason had been given for his arrest beyond the assault allegation and denied any dispute with his ex-wife save for the assault claim, the relationship with the uncle while acknowledging S.B. and another child, V, were born of a different father.
11. After the Defence case, the trial court found the Appellant guilty of the offence of incest and pursuant to Section 186 of the Criminal Procedure Code (Repealed) and Section 20(1) of the Sexual Offences Act convicted him accordingly. Subsequent to the conviction he was acquitted of the alternative charge of Indecent act with a child.
12. The trial court before sentencing the Appellant noted that he is a first offender and called for mitigation. The trial court after considering mitigation tendered, noted that the Appellant is the father who ought to have protected the complainant as opposed to defiling her. The court sentenced the appellant to serve life imprisonment.
Submissions
13. The Appellant did not file any submissions despite having been given sufficient time to do so. By the time of writing this judgement more than two months from the time of taking directions on written submissions, the Appellant had still not filed any.
14. The Respondent in its submissions opposes the appeal on three main grounds. The Respondent identifies the three elements of defilement, age of the complainant, penetration, and identification of the perpetrator and submits all three were proved. PW1's evidence and the birth Notification showed the complainant was born 4 th February 2021 , making her 4 years old at the time of the offence. On penetration, it is submitted that PW2's direct account, corroborated by the Clinical Officer PW3's findings; painful vaginal area, lacerations, foul-smelling yellowish discharge, and freshly torn hymen, proved penetration to the required standard, with the P3 form, treatment notes and PRC form produced as exhibits. On identification, PW2 knew the appellant as Baba with whom she lived, and the Appellant himself acknowledged in his defence that the complainant was his child and that he knew her well satisfying identification. The Respondent submits the trial court adequately analyzed the evidence in its entirety, found the prosecution's case consistent and free of contradictions, and properly convicted on proof beyond reasonable doubt.
15. The Respondent submits life imprisonment was not harsh or excessive but was in fact the maximum sentence prescribed under Section 8(2) of the Sexual Offences Act , so this ground is unsupported in law. The Respondent submits the trial court complied with Article 50(2)(g), having promptly informed the Appellant of his right to legal representation at plea on 9 th April 2025 , and that Article 50(2)(h) on state-funded counsel only arises where substantial injustice would otherwise result, relying on Republic v Chengo & 2 others [2017] KESC 15 (KLR) where the Supreme Court held that the right to state funded legal representation is not open ended but conditional on substantial injustice resulting. Also, Manyeso v Republic [2023] KECA 827 (KLR) where the Court of Appeal declined to find a fair trial violation where the Appellant did not raise the issue of legal representation at trial, participated fully, and cross-examined witnesses, such that no substantial injustice was shown. The Respondent submits no substantial injustice arose, as the Appellant fully participated in the trial, cross-examined all prosecution witnesses and conducted his own defence, and that having not raised the representation issue at trial, he cannot now claim the trial court erred. Lastly the Respondent urges this Court to find the conviction safe, uphold the conviction and sentence, and dismiss the appeal.
Analysis and determination
16. This being a first appeal, the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions. In the case of Okeno v Republic [1972] EA 32 , East Africa Court of Appeal put this duty as follows:
“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] EA 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] EA 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] EA 424.”
17. I have at length read the respondent’s submissions, given due consideration to the trial court’s proceedings, the record of appeal and the Petition of Appeal dated 25 th July 2025. The following issues arise for the determination of this Court: -
i. Whether the prosecution proved its case beyond reasonable doubt.
ii. Whether the sentence was harsh and excessive.
iii. Whether the appellant’s right to fair trial were threatened, denied, violated and/or infringed.
Whether the prosecution proved its case beyond reasonable doubt.
18. The Appellant herein was charged with the offence of defilement under Section 8(1), as read with Section 8(2), of the Sexual Offences Act, which states;
“(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.”
19. The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act, the main elements of the offence of defilement are as that; the complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice.
20. As to whether the Complainant is a minor. In Mwalango Chichoro Mwanjembe V. Republic , Mombasa Criminal Appeal No. 24 of 2015 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 documentary 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. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R ,Cr. Appeal No.19 of 2014 and Omar Uche v R ,Cr.App.No.11 of 2015.
21. In this appeal, a birth notification was produced as evidence in proof of age. This is a document issued under The Births and Death Registration Act on notification of birth pending issuance of a birth certificate. At the trial court, its productivity of admissibility was not in question. Section 38 of the Evidence Act provides:
An entry in any public or other official book, register or record, stating a fact in issue or a relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.
22. The age of the complainant is a vital legal element in sexual offences involving minors, and must be proven to establish the offense and determine the correct sentence, a birth notification serial No 5401500 was produced as exhibit 1. It showed that the minor SB was born on 4 th February 2021 .The same age was captured as 4 years in the P3 form and Treatment notes produced as evidence. When the complainant took the stand she testified that she is 4 years old. This evidence was corroborated by all the witnesses and admitted by the Appellant. Therefore; the age of the minor was sufficiently proved.
23. On penetration, the Complainant testified that she had been infected at her groin area, pointing at it, and she felt pain. She attempted to undress before the prosecution intervened. She stated that she was hurt by Baba, the Appellant who was present and identified in court.
24. The mother PW1 testified that she had left the complainant in company of the Appellant and VM. Upon her return the complainant was crying, she examined her and realized her private parts was inflamed and wet, an observation which was confirmed by the neighbors. The Appellant thereafter fled from the scene. PW3 Clinical officer Zipporah Nyaboke testified that she examined the complainant on 7 th April 2025 and observed that the complainant was sad and tired her vaginal area painful with lacerations. She also noted unusual yellowish foul-smelling discharge from the vagina and her hymen was freshly torn. She concluded that the evidence pointed out the fact that the complainant had been penetrated. In support she produces the P3 form, Post Rape Care form and Treatment notes.
25. On his defence, the Appellant denied defiling the complainant. He denies that they are living together with the complainant and PW1. He states that he was coincidentally arrested when he had met PW1 at the hospital after dropping a customer’s hand bag.
26. This court observes that the Complainant testified that she was infected and hurt at her private parts by baba . She clearly narrates to the court that Baba took her to bed and sustained the injuries which was observed by PW1, clinically confirmed by PW3 and investigated by PW4 to be factually true. In support of her testimony the medical examination noted the existence of a freshly broken hymen, epithelial cells and yellowish discharge evidencing penetration.
27. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
28. The above section brings out the two main ingredients of defilement; the mens rea which constitutes the intention to insert a genital organ of the other into the genitals of the other and the actus reus which constitutes the act of penetration which ought not to be complete.
29. The Court of Appeal in the case of Mark Ouiruri v Republic (2013) eKLR , expressed itself on what amounts to penetration as follows: -
"…... In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. 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 the penetration need not be deep inside the girl’s organ….”
30. The Complainant gave unsworn testimony that she knew the Appellant as the Baba, the identification was corroborated PW1 who left the Complainant with the Appellant when she left home to fetch firewood. She clearly narrates that how the Appellant defiled her. She clearly narrated the sensual feeling of pain she endured, including the inflamed genitalia. This is equally backed up by medical evidence.
31. From the evidence adduced, there is no shadow of doubt that penetration did occur.
32. On positive identification and/or recognition of the perpetrator, the Complainant stated that it was the Father ‘Baba,’ the Appellant a person well known to her. The Appellant in his testimony equally confirms that she knows the Complainant as his child.
33. The trial court subjected the Complainant to a voir dire test for reason that the sole evidence of the penetration was that of the Complainant. As guided Section 124 of the Evidence Act allows the court to receive evidence of an alleged complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant 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 Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth .” (Underlined for emphasis)
34. The trial court upon ascertaining that the Complainant was 4 years of age, allowed unsworn testimony. The trial court noted that the complainant is intelligent but she may not appreciate the purpose of the oath. In its judgment, the trial court was persuaded that the complainant of 4 years identified the Appellant in broad daylight, she had an ample time to observe what was happening and he positively identified the assailant as the Father who was placed at the scene on 6 th April, 2025 The trial court rightfully found that the Appellant’s defence was an afterthought and the allegation of land issues related witch-hunt was not plausible. This court rightly observes that the Complainant positively identified the Appellant.
35. On contradictions and inconsistencies, no such contradictions have been pointed out to this court, upon perusal of the record this court could not find any glaring contradictions and inconsistencies Section 382 of the Criminal Procedure Code provides;
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
39. In absence of such contradictions or any objection raised at the trial court nothing warrants this court to disturb the trial court finding on account of error, omission or irregularity.
Whether the sentence was harsh and excessive and unconstitutional.
40. As to whether the sentence to serve life imprisonment was harsh and excessive and unconstitutional? The trial court before meting out the sentence allowed the Appellant to mitigate, wherein he invited the trial court to relook his, sought for forgiveness and that he is the only child at home after his father’s death in October 2024. The court further considered that the Appellant is a first offender and sentence him to serve a life sentence in jail.
41. This Court equally notes that the Appellant is a father who should be taking care of the daughter however he did defile her in a way that will change her life forever. The trial court before convicting the Appellant applied provision of Section 186 of the Criminal Procedure Code and found the Appellant guilty for the offence of incest.
42. It is noteworthy and as held by the Court of Appeal in Kasanga v Republic [2025] KECA 693 (KLR) that Section 186 of the Criminal Procedure Code was deleted by the Statute Law (Miscellaneous Amendments) Act, 2023 (No. 19 of 2023), which entered into force on 11 th December 2023. Consequently, Section 179 of the Criminal Procedure Code persists as the governing fallback provision, empowering the court to enter a conviction for a proved minor and cognate offence notwithstanding its omission from the formal charge sheet. The trial court properly convicted the Appellant of the offence of incest as provided under Section 179.
43. The complainant was defiled when she was 4 years. Section 20(1) of the Sexual Offences Act provides that any male person who commits incest with a female person who is under the age of eighteen years shall be liable to imprisonment for life.
44. The Sentencing Policy Guidelines 2023 outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender.
45. On constitutionality of Mandatory Minimum sentences, the Supreme court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) upheld that Mandatory sentences are applicable. The Apex court held as follows
“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence.”
46. The aggravating circumstances in this case are quite dire, a father defiling his 4 year old. The Appellant who was under a legal and moral duty to protect and care for the child instead turned perpetrator. The effects of this offence will have long lasting profound effect on the Complainant. A sentence of life imprisonment is neither harsh nor excessive but proportionate to the gravity of the offence. The age of the victim and relationship between the offender and the child.
Whether the appellant’s right to fair trial were threatened, denied, violated and/or infringed.
47. On the right to counsel, Article 50(2) (g & h) of the Constitution provides that an accused person has a right to appoint an advocate of choice. Further the Court shall appoint and an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result .
48. A review of the record shows that at plea, the charges were read over to the Appellant and explained in English and Kiswahili, which a plea of not guilty was entered, the record indicates that both English and Kiswahili were used in court. The Appellant comprehensively cross examined all the witnesses. Alike, when called upon to give his defence, the record shows that he lodged a defence without any difficulty. Clearly the Appellant actively participated during and he was not prejudiced by for failure to have counsel on record. An option he did not elect.
49. I therefore find no basis on the Appellant’s claim that his right to a fair trial was infringed.
50. The Appellant on his last ground of appeal sought to be served with the trial court proceedings to enable him erect more grounds of appeal. This court takes note that the Appellant was served the record of appeal on 4 th February 2026. The Appellant subsequently didn’t seek leave under section 350 2 (v ) or the Criminal Procedure Code or raised any other supplementary grounds, as such the ground is moot.
Disposition
51. Having carefully reconsidered the entire record, the grounds of appeal, the applicable law and evidence adduced, I find no basis for interfering with either the conviction or the sentence. The Conviction was supported by cogent credible evidence and the sentence of life imprisonment lawful, appropriate and commensurate with the seriousness of the offence.
52. Accordingly, this Court finds that the appeal lacks merit and is hereby dismissed in its entirety.
JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 7 TH DAY OF AUGUST 2026
ANNE M. OKUTOYI
JUDGE
Judgment delivered in the presence of:
Geoffrey Machoka Onyango-Appellant present from Naivasha Main Prison.
Mr. Njeru for the State.
Ms. Mokeira -Court Assistant.
Introduction
1. The Appellant, Geofrey Machuki Onyango was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act in Ogembo Chief Magistrate Sexual Offence Case No. E035 of 2025. The particulars of the offence are that on 6 th April 2025 at Randani Vilage, Kenyanya Sub County, within Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of S.B , a child aged 4 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act . Following a full hearing the Appellant was convicted of the offence of defilement contrary to Section 20 (1) of the Sexual Offences Act and sentenced to serve life imprisonment.
2. Aggrieved by both the conviction and sentence, the Appellant preferred the appeal herein vide a Petition of Appeal dated 25 th July 2025 . In his nine grounds the Appellant states that, the trial court erred in law by failing to reconsider and evaluate the evidence afresh, to note that the medical evidence did not link the Appellant to the offence, to appreciate that the prosecution case was full of contradictions, insufficient, thus the prosecution did not prove its case beyond reasonable doubt threshold. That the trial court failed in law and fact by disregarding the Appellant’s story that dispute arose from a family feud coupled with vengeance. That the judgment of the trial court was a nullity, the Appellant was not accorded a fair trial in compliance to Article 50 (2) to be represented by an advocate . Lastly, he prayed for trial proceedings to enable him erect more grounds of Appeal under Section 350 2 (v) of the Criminal Procedure Code. The Appellant urged this Court to allow the appeal in its entirety
3. Upon the appeal being admitted, on 21 st May 2026 parties appeared before the honorable court. This court directed the appeal to be canvassed by way of written submissions, the Appellant was not certain if his counsel on record had filed his written submissions. The Respondent had filed and served its written submissions dated 6 th March 2026. The Appellant was granted 10 days to file his submissions but none was filed at the time of writing this judgment.
4. To start with, this court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court.
Prosecution Case
5. The prosecution called four witnesses. PW1, the complainant's mother testified that on 6 th April 2025 she left home at 10.00 a.m. to purchase food at Magena, leaving the Appellant with their two daughters, V.M 8 years old and S.B 4 years old. On returning at 2.00 p.m., she found S.B. alone and crying; she was informed that V.M. had gone to fetch firewood, and could not locate the Appellant. When the Appellant returned, the child continued crying and, on undressing her, she noticed nothing initially, but the child later disclosed that his father had defiled her in bed. On removing the child's underpants, PW1 observed inflammation and wetness in the private parts, screamed, and neighbours confirmed the issue before the Appellant fled. The child was eventually examined at Magena Hospital and confirmed defiled. PW1 produced the child's birth notification. In cross-examination, the Appellant put it to her that she had left the child in his care and that no other incident of defilement had occurred, in re-examination she maintained that S.B. had named the father, the Appellant as her defiler.
6. PW2, the minor complainant S.B, aged 4years old, was found by the trial court, following voir dire examination to be intelligent but unable to understand the nature and obligation of an oath, and accordingly she gave unsworn testimony. She stated that she lived with Baba, Mama, and V. and that when her mother went out she was left with V. She described being hurt and infected in her groin/private parts, pointing to the area, and stated "Baba hurt me here," identifying the Appellant in court. In cross-examination she maintained she had never slept in the Appellant’s bed and slept with her mother; she clarified in re-examination that she slept in the house with her mother while the Appellant slept in the kitchen, each having a separate bed.
7. PW3, Zipporah Nyaboke , a Clinical Officer at Magena Level 3 Hospital, testified that she examined the Complainant on 7 th April 2025 after she was brought in by PW1, who reported that the child had been defiled by a person known to her and that the perpetrator had asked the child not to report the matter or he would harm her. On examination, the child appeared sad and tired, with a freshly torn hymen, painful and lacerated vaginal area, and yellowish, foul-smelling discharge from which laboratory tests were conducted. PW3 filled and produced the P3 form, the PRC form, and treatment notes as exhibits, concluding that the child had been penetrated and noting the offence as defilement. In cross-examination, she conceded the yellowish discharge was watery, not normal in children, but that on further re-examination she clarified the discharge could occur in children generally on a case by case basis, was not necessarily linked to sexual intercourse, and that while laboratory results did not show spermatozoa, they showed numerous epithelial cells; she was not able to conduct investigations linking the discharge to any specific perpetrator, nor to identify the perpetrator, as this was outside her mandate.
8. PW4, PC (W) Caroline Langat, the Investigating Officer attached to Magena Police Station, testified that the complaint was reported by the mother on 7 th April 2025 , that she recorded statements from witnesses, filled the P3 form, arrested and charged the accused, and that the minor identified the accused clearly in court as her defiler. In cross-examination, she conceded there was a delay in recording the Appellant’s statement, that he was not arrested until 8 th April 2025 , two days after the alleged incident of 6 th April 2025 and was charged on 9 th April 2025 , and that he was arrested while at the hospital following up on his child, not at the scene. She produced the child's Birth Notification, confirming the child was aged 4 years old.
Defence Case
9. DW1, the Appellant Geoffrey Machuki Onyango, a boda-boda operator resident in Rondoni, testified that he knows the complainant as his child, aged 4 years old. On 6 th April 2025 at about 9.00 a.m. he was riding his motorcycle ferrying a customer to Magena hospital and upon reaching he met his ex-wife PW1who informed him their child, S.B had been brought to hospital and defiled. He denied having gone to the hospital himself, but stated he was returning the customer’s bag to Magena Hospital after he realized that the customer had forgotten it. He was subsequently arrested by police officers at the hospital and taken to the police station, where he was fingerprinted, and detained, and alleged that he had assaulted PW1. He raised a background of a land dispute with his uncle following his father's death on 17 th October 2024 , asserting his uncle had sold family land prompting a dispute that was handled at Kiango Police Post. The Appellant testified that his ex-wife is a friend to the uncle, and the reason they separated with his ex-wife is because he found her with the uncle at night, and asserted that his ex-wife and uncle instigated the case over the said land issues, seeking the court to balance the scales in that regard.
10. In cross-examination, DW1 maintained he lived alone in Rondoni village, separate from his ex-wife and children who reside in Mansaine, and that he was not at home on 6 th April 2025 when he was summoned to the police station. He stated PW1 lived with his uncle, whose home was not far from his own, that he had never stepped into his uncle's home when the children visited, and denied defiling the child, attributing the accusation to the ongoing land dispute with his uncle. He conceded no reason had been given for his arrest beyond the assault allegation and denied any dispute with his ex-wife save for the assault claim, the relationship with the uncle while acknowledging S.B. and another child, V, were born of a different father.
11. After the Defence case, the trial court found the Appellant guilty of the offence of incest and pursuant to Section 186 of the Criminal Procedure Code (Repealed) and Section 20(1) of the Sexual Offences Act convicted him accordingly. Subsequent to the conviction he was acquitted of the alternative charge of Indecent act with a child.
12. The trial court before sentencing the Appellant noted that he is a first offender and called for mitigation. The trial court after considering mitigation tendered, noted that the Appellant is the father who ought to have protected the complainant as opposed to defiling her. The court sentenced the appellant to serve life imprisonment.
Submissions
13. The Appellant did not file any submissions despite having been given sufficient time to do so. By the time of writing this judgement more than two months from the time of taking directions on written submissions, the Appellant had still not filed any.
14. The Respondent in its submissions opposes the appeal on three main grounds. The Respondent identifies the three elements of defilement, age of the complainant, penetration, and identification of the perpetrator and submits all three were proved. PW1's evidence and the birth Notification showed the complainant was born 4 th February 2021 , making her 4 years old at the time of the offence. On penetration, it is submitted that PW2's direct account, corroborated by the Clinical Officer PW3's findings; painful vaginal area, lacerations, foul-smelling yellowish discharge, and freshly torn hymen, proved penetration to the required standard, with the P3 form, treatment notes and PRC form produced as exhibits. On identification, PW2 knew the appellant as Baba with whom she lived, and the Appellant himself acknowledged in his defence that the complainant was his child and that he knew her well satisfying identification. The Respondent submits the trial court adequately analyzed the evidence in its entirety, found the prosecution's case consistent and free of contradictions, and properly convicted on proof beyond reasonable doubt.
15. The Respondent submits life imprisonment was not harsh or excessive but was in fact the maximum sentence prescribed under Section 8(2) of the Sexual Offences Act , so this ground is unsupported in law. The Respondent submits the trial court complied with Article 50(2)(g), having promptly informed the Appellant of his right to legal representation at plea on 9 th April 2025 , and that Article 50(2)(h) on state-funded counsel only arises where substantial injustice would otherwise result, relying on Republic v Chengo & 2 others [2017] KESC 15 (KLR) where the Supreme Court held that the right to state funded legal representation is not open ended but conditional on substantial injustice resulting. Also, Manyeso v Republic [2023] KECA 827 (KLR) where the Court of Appeal declined to find a fair trial violation where the Appellant did not raise the issue of legal representation at trial, participated fully, and cross-examined witnesses, such that no substantial injustice was shown. The Respondent submits no substantial injustice arose, as the Appellant fully participated in the trial, cross-examined all prosecution witnesses and conducted his own defence, and that having not raised the representation issue at trial, he cannot now claim the trial court erred. Lastly the Respondent urges this Court to find the conviction safe, uphold the conviction and sentence, and dismiss the appeal.
Analysis and determination
16. This being a first appeal, the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions. In the case of Okeno v Republic [1972] EA 32 , East Africa Court of Appeal put this duty as follows:
“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] EA 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] EA 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] EA 424.”
17. I have at length read the respondent’s submissions, given due consideration to the trial court’s proceedings, the record of appeal and the Petition of Appeal dated 25 th July 2025. The following issues arise for the determination of this Court: -
i. Whether the prosecution proved its case beyond reasonable doubt.
ii. Whether the sentence was harsh and excessive.
iii. Whether the appellant’s right to fair trial were threatened, denied, violated and/or infringed.
Whether the prosecution proved its case beyond reasonable doubt.
18. The Appellant herein was charged with the offence of defilement under Section 8(1), as read with Section 8(2), of the Sexual Offences Act, which states;
“(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.”
19. The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act, the main elements of the offence of defilement are as that; the complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice.
20. As to whether the Complainant is a minor. In Mwalango Chichoro Mwanjembe V. Republic , Mombasa Criminal Appeal No. 24 of 2015 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 documentary 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. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R ,Cr. Appeal No.19 of 2014 and Omar Uche v R ,Cr.App.No.11 of 2015.
21. In this appeal, a birth notification was produced as evidence in proof of age. This is a document issued under The Births and Death Registration Act on notification of birth pending issuance of a birth certificate. At the trial court, its productivity of admissibility was not in question. Section 38 of the Evidence Act provides:
An entry in any public or other official book, register or record, stating a fact in issue or a relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.
22. The age of the complainant is a vital legal element in sexual offences involving minors, and must be proven to establish the offense and determine the correct sentence, a birth notification serial No 5401500 was produced as exhibit 1. It showed that the minor SB was born on 4 th February 2021 .The same age was captured as 4 years in the P3 form and Treatment notes produced as evidence. When the complainant took the stand she testified that she is 4 years old. This evidence was corroborated by all the witnesses and admitted by the Appellant. Therefore; the age of the minor was sufficiently proved.
23. On penetration, the Complainant testified that she had been infected at her groin area, pointing at it, and she felt pain. She attempted to undress before the prosecution intervened. She stated that she was hurt by Baba, the Appellant who was present and identified in court.
24. The mother PW1 testified that she had left the complainant in company of the Appellant and VM. Upon her return the complainant was crying, she examined her and realized her private parts was inflamed and wet, an observation which was confirmed by the neighbors. The Appellant thereafter fled from the scene. PW3 Clinical officer Zipporah Nyaboke testified that she examined the complainant on 7 th April 2025 and observed that the complainant was sad and tired her vaginal area painful with lacerations. She also noted unusual yellowish foul-smelling discharge from the vagina and her hymen was freshly torn. She concluded that the evidence pointed out the fact that the complainant had been penetrated. In support she produces the P3 form, Post Rape Care form and Treatment notes.
25. On his defence, the Appellant denied defiling the complainant. He denies that they are living together with the complainant and PW1. He states that he was coincidentally arrested when he had met PW1 at the hospital after dropping a customer’s hand bag.
26. This court observes that the Complainant testified that she was infected and hurt at her private parts by baba . She clearly narrates to the court that Baba took her to bed and sustained the injuries which was observed by PW1, clinically confirmed by PW3 and investigated by PW4 to be factually true. In support of her testimony the medical examination noted the existence of a freshly broken hymen, epithelial cells and yellowish discharge evidencing penetration.
27. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
28. The above section brings out the two main ingredients of defilement; the mens rea which constitutes the intention to insert a genital organ of the other into the genitals of the other and the actus reus which constitutes the act of penetration which ought not to be complete.
29. The Court of Appeal in the case of Mark Ouiruri v Republic (2013) eKLR , expressed itself on what amounts to penetration as follows: -
"…... In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. 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 the penetration need not be deep inside the girl’s organ….”
30. The Complainant gave unsworn testimony that she knew the Appellant as the Baba, the identification was corroborated PW1 who left the Complainant with the Appellant when she left home to fetch firewood. She clearly narrates that how the Appellant defiled her. She clearly narrated the sensual feeling of pain she endured, including the inflamed genitalia. This is equally backed up by medical evidence.
31. From the evidence adduced, there is no shadow of doubt that penetration did occur.
32. On positive identification and/or recognition of the perpetrator, the Complainant stated that it was the Father ‘Baba,’ the Appellant a person well known to her. The Appellant in his testimony equally confirms that she knows the Complainant as his child.
33. The trial court subjected the Complainant to a voir dire test for reason that the sole evidence of the penetration was that of the Complainant. As guided Section 124 of the Evidence Act allows the court to receive evidence of an alleged complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant 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 Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth .” (Underlined for emphasis)
34. The trial court upon ascertaining that the Complainant was 4 years of age, allowed unsworn testimony. The trial court noted that the complainant is intelligent but she may not appreciate the purpose of the oath. In its judgment, the trial court was persuaded that the complainant of 4 years identified the Appellant in broad daylight, she had an ample time to observe what was happening and he positively identified the assailant as the Father who was placed at the scene on 6 th April, 2025 The trial court rightfully found that the Appellant’s defence was an afterthought and the allegation of land issues related witch-hunt was not plausible. This court rightly observes that the Complainant positively identified the Appellant.
35. On contradictions and inconsistencies, no such contradictions have been pointed out to this court, upon perusal of the record this court could not find any glaring contradictions and inconsistencies Section 382 of the Criminal Procedure Code provides;
“Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.”
39. In absence of such contradictions or any objection raised at the trial court nothing warrants this court to disturb the trial court finding on account of error, omission or irregularity.
Whether the sentence was harsh and excessive and unconstitutional.
40. As to whether the sentence to serve life imprisonment was harsh and excessive and unconstitutional? The trial court before meting out the sentence allowed the Appellant to mitigate, wherein he invited the trial court to relook his, sought for forgiveness and that he is the only child at home after his father’s death in October 2024. The court further considered that the Appellant is a first offender and sentence him to serve a life sentence in jail.
41. This Court equally notes that the Appellant is a father who should be taking care of the daughter however he did defile her in a way that will change her life forever. The trial court before convicting the Appellant applied provision of Section 186 of the Criminal Procedure Code and found the Appellant guilty for the offence of incest.
42. It is noteworthy and as held by the Court of Appeal in Kasanga v Republic [2025] KECA 693 (KLR) that Section 186 of the Criminal Procedure Code was deleted by the Statute Law (Miscellaneous Amendments) Act, 2023 (No. 19 of 2023), which entered into force on 11 th December 2023. Consequently, Section 179 of the Criminal Procedure Code persists as the governing fallback provision, empowering the court to enter a conviction for a proved minor and cognate offence notwithstanding its omission from the formal charge sheet. The trial court properly convicted the Appellant of the offence of incest as provided under Section 179.
43. The complainant was defiled when she was 4 years. Section 20(1) of the Sexual Offences Act provides that any male person who commits incest with a female person who is under the age of eighteen years shall be liable to imprisonment for life.
44. The Sentencing Policy Guidelines 2023 outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender.
45. On constitutionality of Mandatory Minimum sentences, the Supreme court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) upheld that Mandatory sentences are applicable. The Apex court held as follows
“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence.”
46. The aggravating circumstances in this case are quite dire, a father defiling his 4 year old. The Appellant who was under a legal and moral duty to protect and care for the child instead turned perpetrator. The effects of this offence will have long lasting profound effect on the Complainant. A sentence of life imprisonment is neither harsh nor excessive but proportionate to the gravity of the offence. The age of the victim and relationship between the offender and the child.
Whether the appellant’s right to fair trial were threatened, denied, violated and/or infringed.
47. On the right to counsel, Article 50(2) (g & h) of the Constitution provides that an accused person has a right to appoint an advocate of choice. Further the Court shall appoint and an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result .
48. A review of the record shows that at plea, the charges were read over to the Appellant and explained in English and Kiswahili, which a plea of not guilty was entered, the record indicates that both English and Kiswahili were used in court. The Appellant comprehensively cross examined all the witnesses. Alike, when called upon to give his defence, the record shows that he lodged a defence without any difficulty. Clearly the Appellant actively participated during and he was not prejudiced by for failure to have counsel on record. An option he did not elect.
49. I therefore find no basis on the Appellant’s claim that his right to a fair trial was infringed.
50. The Appellant on his last ground of appeal sought to be served with the trial court proceedings to enable him erect more grounds of appeal. This court takes note that the Appellant was served the record of appeal on 4 th February 2026. The Appellant subsequently didn’t seek leave under section 350 2 (v ) or the Criminal Procedure Code or raised any other supplementary grounds, as such the ground is moot.
Disposition
51. Having carefully reconsidered the entire record, the grounds of appeal, the applicable law and evidence adduced, I find no basis for interfering with either the conviction or the sentence. The Conviction was supported by cogent credible evidence and the sentence of life imprisonment lawful, appropriate and commensurate with the seriousness of the offence.
52. Accordingly, this Court finds that the appeal lacks merit and is hereby dismissed in its entirety.
JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 7 TH DAY OF AUGUST 2026
ANNE M. OKUTOYI
JUDGE
Judgment delivered in the presence of:
Geoffrey Machoka Onyango-Appellant present from Naivasha Main Prison.
Mr. Njeru for the State.
Ms. Mokeira -Court Assistant.