(Being an Appeal from Judgment and Conviction Hon. N.C Adalo SRM delivered on 29 th November, 2021 at Senior Principal Magistrate’s Court in MCSO E013 OF 2021)
The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on 30 th day of January, 2021 at Mkwanjuni village, Mariakani location Kaloleni Sub County within Kilifi County in Coast Region intentionally and unlawfully caused his penis to penetrate the anus of D.K.M a boy aged 13 years.
The appellant faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on 30 th January, 2021 at Mkwanjuni village, Mariakani location Kaloleni Sub County within Kilifi County of the Coast Region unlawfully and intentionally used his penis to touch the anus of D.K.M a child aged 13 years.
The appellant pleaded not guilty to the charges when he was arraigned in court. The prosecution called four witnesses to prove the charges against the accused. At the close of the prosecution case the appellant was paced on his defence. He opted to give a sworn statement. In a judgment delivered on 29 th November, 2021 the trial court found the appellant guilty of the main charge of defilement and was accordingly convicted and subsequently sentenced to serve twenty years imprisonment.
The appellant was aggrieved by the conviction and sentence and he preferred this appeal. The appellant raised three grounds of appeal in his amended grounds of appeal. The appellant faulted the trial court for erring in law and fact by failing to consider that the charge of defilement was not proved to the required standard. He further faulted the trial court for erring in law and facts by failing to consider that the elements of the offence of defilement to wit the identification of the assailant was not proved to the required standard to warrant conviction of the appellant. Finally, the appellant faulted the trial court for failing to consider Section 333(2) of the Criminal Procedure Code when meting the sentence as the trial court did not consider the period the appellant was in custody.
Briefly the prosecution case can be summarized as follows:
PW1 the complainant told the court that he was aged 13 years having been born on 28 th September, 2007. He identified the birth certificate in court. He further told the trial court that he knew the appellant as he is a neighbour at home. He stated that on 30 th January, 2021 around 3.00pm he was ta playing football with his friends. At 6.00pm each left to their respective homes. As he was heading home, he met with the appellant who told him they do ‘tabia mbaya’. They went to the field, he undressed him. He also undressed and inserted his penis to his anus. After he finished, he put on his clothes and went home by himself. He did not tell anyone on that day but there is a boy who saw them and went and told his parents that he had seen him with the appellant in the field having sex. He was beaten by his uncle. They reported the matter to the police station and he was taken to hospital. The appellant was later arrested. In cross-examination he maintained that the appellant defiled him and that Mumo saw what happened but he did not record statement.
PW2 is the mother of the complainant. She confirmed that the complainant was aged 13 years. She testified that on 31 st January, 2021 she was at her place of work when she was told by the cousin to Hamisi called Mumo that something bad had happened. She investigated the allegation and found that it was true. She found that the appellant had been taking small boys to the field and he had been sodomizing them and that her son was one the victim. She said the complainant refused to talk about the incident. She took him to his uncle who beat him and he admitted that the appellant had defiled him. She took him to hospital for medical examination and reported the matter to the police. The appellant was thereafter arrested. In cross-examination she said her evidence was based on what she was told. She said Mumo said he will not record statement because the appellant was his cousin. She further said the medical report confirmed that the complainant was defiled. She refuted claims that the appellant was framed.
PW3 the investigating officer told the court that on 2 nd February, 2021 the complainant in the company of his mother came to the station and reported that on 31 st January, 2021 the complainant was playing football with other children. When the complainant was in his way home he met with the appellant who defiled him. He said the appellant’s cousin was in the field and saw what happened. Later the appellant’s cousin told the complainant’s mother about the incident. The appellant’s cousin however refused to testify for fear of how the family would treat him. In the course of the investigations, she established that the complainant was aged 13 years as per the birth certificate which was availed by his mother.
PW4 a senior clinical officer attached at Mariakani Sub County hospital testified that the complainant was brought to the hospital on 1 st February, 2021 with allegations of sexual abuse by a known person. On examination he found that the complainant had healing abrasion around the anal orifice which was approximately 3 days old. He concluded that there was anal penetration. He produced in court the P3 Form, treatment notes and laboratory results as exhibits. In cross-examination he said the complainant was walking. He said the complainant went to hospital after three days. He further said the appellant was never brought to him for examination. He said though it was advisable that the complainant should not take bath and change clothes, in the instant case he had taken bath and changed clothes.
The appellant in his defence told the court that on 1 st February, 2021 he was from work when he met people who started assaulting him saying he had committed a crime which he did not know. He was taken to the police station and later charged before the court. In cross-examination he told the court he knew the complainant as he was a neighbour but denied the allegations. He also said he knew Mumo as he was his cousin.
The appeal was heard by way of written submissions. The appellant on his undated submissions. The respondent submissions are dated 3 rd February, 2026. I have carefully perused and considered the submissions by the appellant and the respondent. This being the first appellate court and as expected, I have analyzed and evaluated the evidence adduced before the trial court to make my own independent decision. I have done so cautiously not overlooking the fact that I did not have the opportunity to hear and see the witnesses testify before the trial court. This has been stated in various decisions of the Court of Appeal and this court among them the case of Kiilu & Another vs Republic (2005) e KLR where the Court of Appeal rendered itself thus:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
Further to the foregoing, it must also be remembered that it is the duty of the prosecution to prove the charges against an accused beyond reasonable doubt. This cardinal principle of criminal law has been restated in numerous cases among them the case of Stephen Nguli Mulili vs Republic (2014) e KLR where the court emphasized the prosecution duty in criminal cases and stated that:
“…it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan position.”
In the instant case the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act which provides as follows:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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.”
From the foregoing for the prosecution to proof the offence of defilement the essential ingredients which must be established are:
1. The age of the victim;
2. Proof of penetration; and
3. The positive identification of the perpetrator.
Regarding the age of the complainant in this case the prosecution produced birth certificate indicating that the complainant was born on 28 th September, 2007. The offence is alleged to have been committed on 30 th January, 2021. This puts the age of the complainant at 13 years and about 5 months. This is within the bracket provided for under Section 8(3) of the Sexual Offences Act. The trial court therefore correctly found that the age of the complainant was proved as required. It is notable that the appellant attempted to contest the production of the birth certificate alleging that what was produced was a copy which was not certified. However, the evidence adduced before the trial court clearly shows that the birth certificate was properly admitted as exhibit. It is not indicated in the evidence that the appellant contested the production of the same. In any case the evidence of PW3 clearly shows that what was produced in court was the birth certificate. It is common practice that in such proceedings as these one the prosecution always produces a copy of the birth certificate as the original is usually retained by the complainant. The argument by the appellant that age was not proved is a red-erring.
Regarding the element of penetration, the appellant in his submission faulted the trial court for relying on the documents produced in court by submitting that the same were produced contrary to Sections 64 and 65 of the Evidence Act as the same were not certified. I have looked at the documents produced by PW4 to wit the P3 Form and treatment notes and it is not true that they were photocopies as alleged by the appellant. The appellant further faulted the prosecution for failure to produce PRC Form. In my view all the prosecution was required is to prove penetration either partial or compete as defined under Sexual Offences Act. In this case the complainant testified that the appellant lured him when he was heading home and defiled him. The trial court did not only believe the complainant but also found that there was corroboration from the medical evidence adduced by PW4. I have no reason to fault the trial court on the finding that there was penetration.
On the element of identification of the appellant as the perpetrator, I have evaluated the evidence adduced before the trial court. It is not disputed that the complainant and the appellant were neighbours. This was confirmed by the evidence of the complainant and the appellant in his defence. Further it is also not in dispute that the offence was committed in daylight and chances of mistaken identification of the appellant were very remote. The argument by the appellant that the prosecution failed to call Mumo who informed the complainant’s mother that he saw the appellant defile the complainant does not rebut the evidence adduced by the complainant whom the trial court believed to be truthful. In any case there is no requirement that the prosecution should call any number of witnesses to prove their case so long there is cogent evidence pointing at the guilty of an accused person.
The appellant in his submissions statedbthat the trial court failed to consider the appellant’s defence, I have evaluated the evidence adduced before the trial court and I find that the trial court considered the appellant’s defence and found that the same did not rebut the evidence adduced by the prosecution to prove the guilt of the appellant. In my own view the appellant’s defence was mere denial and as the trial court found the same did not rebut the evidence adduced by the prosecution.
The appellant argued that the trial court did not consider the period he was in custody pending trial in imposing the sentence. On this the respondent the conceded that the trial court did not specify when the sentence was to run. I agree with the appellant that the trial court did not take into consideration the period the appellant was in custody pending trial. From the charge sheet the appellant was arrested on 3 rd February, 2021. He was in custody until he was convicted and sentenced. The trial court ought to have considered the period the appellant was in custody pursuant to Section 333(2) of the Criminal Procedure Code. A simple arithmetic shows that the appellant was in custody for a period of 10 months and 25 days before he was sentenced.
Having considered all the evidence adduced before the trial court, I find that the charge of defilement contrary to Section 8(1) as read with Section 8(3) was duly proved and I find the conviction was based on cogent evidence and I uphold the same. Regarding the sentence, the same was lawful albeit that the trial court failed to comply with Section 333(2) of the Criminal Procedure Code. I must disturb the sentence. The imprisonment for twenty years shall be less 10 months and 25 days.
The upshot is that the appeal herein partially succeeds to the extent that the conviction is upheld but the sentence is reduced by 10 months and 25 days.
Dated, signed and delivered virtually this 15 th day of July, 2026
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually
Ms. Mutua for respondent appearing virtually
Ms. Otwo Court Assistant
2
The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on 30 th day of January, 2021 at Mkwanjuni village, Mariakani location Kaloleni Sub County within Kilifi County in Coast Region intentionally and unlawfully caused his penis to penetrate the anus of D.K.M a boy aged 13 years.
The appellant faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars were that on 30 th January, 2021 at Mkwanjuni village, Mariakani location Kaloleni Sub County within Kilifi County of the Coast Region unlawfully and intentionally used his penis to touch the anus of D.K.M a child aged 13 years.
The appellant pleaded not guilty to the charges when he was arraigned in court. The prosecution called four witnesses to prove the charges against the accused. At the close of the prosecution case the appellant was paced on his defence. He opted to give a sworn statement. In a judgment delivered on 29 th November, 2021 the trial court found the appellant guilty of the main charge of defilement and was accordingly convicted and subsequently sentenced to serve twenty years imprisonment.
The appellant was aggrieved by the conviction and sentence and he preferred this appeal. The appellant raised three grounds of appeal in his amended grounds of appeal. The appellant faulted the trial court for erring in law and fact by failing to consider that the charge of defilement was not proved to the required standard. He further faulted the trial court for erring in law and facts by failing to consider that the elements of the offence of defilement to wit the identification of the assailant was not proved to the required standard to warrant conviction of the appellant. Finally, the appellant faulted the trial court for failing to consider Section 333(2) of the Criminal Procedure Code when meting the sentence as the trial court did not consider the period the appellant was in custody.
Briefly the prosecution case can be summarized as follows:
PW1 the complainant told the court that he was aged 13 years having been born on 28 th September, 2007. He identified the birth certificate in court. He further told the trial court that he knew the appellant as he is a neighbour at home. He stated that on 30 th January, 2021 around 3.00pm he was ta playing football with his friends. At 6.00pm each left to their respective homes. As he was heading home, he met with the appellant who told him they do ‘tabia mbaya’. They went to the field, he undressed him. He also undressed and inserted his penis to his anus. After he finished, he put on his clothes and went home by himself. He did not tell anyone on that day but there is a boy who saw them and went and told his parents that he had seen him with the appellant in the field having sex. He was beaten by his uncle. They reported the matter to the police station and he was taken to hospital. The appellant was later arrested. In cross-examination he maintained that the appellant defiled him and that Mumo saw what happened but he did not record statement.
PW2 is the mother of the complainant. She confirmed that the complainant was aged 13 years. She testified that on 31 st January, 2021 she was at her place of work when she was told by the cousin to Hamisi called Mumo that something bad had happened. She investigated the allegation and found that it was true. She found that the appellant had been taking small boys to the field and he had been sodomizing them and that her son was one the victim. She said the complainant refused to talk about the incident. She took him to his uncle who beat him and he admitted that the appellant had defiled him. She took him to hospital for medical examination and reported the matter to the police. The appellant was thereafter arrested. In cross-examination she said her evidence was based on what she was told. She said Mumo said he will not record statement because the appellant was his cousin. She further said the medical report confirmed that the complainant was defiled. She refuted claims that the appellant was framed.
PW3 the investigating officer told the court that on 2 nd February, 2021 the complainant in the company of his mother came to the station and reported that on 31 st January, 2021 the complainant was playing football with other children. When the complainant was in his way home he met with the appellant who defiled him. He said the appellant’s cousin was in the field and saw what happened. Later the appellant’s cousin told the complainant’s mother about the incident. The appellant’s cousin however refused to testify for fear of how the family would treat him. In the course of the investigations, she established that the complainant was aged 13 years as per the birth certificate which was availed by his mother.
PW4 a senior clinical officer attached at Mariakani Sub County hospital testified that the complainant was brought to the hospital on 1 st February, 2021 with allegations of sexual abuse by a known person. On examination he found that the complainant had healing abrasion around the anal orifice which was approximately 3 days old. He concluded that there was anal penetration. He produced in court the P3 Form, treatment notes and laboratory results as exhibits. In cross-examination he said the complainant was walking. He said the complainant went to hospital after three days. He further said the appellant was never brought to him for examination. He said though it was advisable that the complainant should not take bath and change clothes, in the instant case he had taken bath and changed clothes.
The appellant in his defence told the court that on 1 st February, 2021 he was from work when he met people who started assaulting him saying he had committed a crime which he did not know. He was taken to the police station and later charged before the court. In cross-examination he told the court he knew the complainant as he was a neighbour but denied the allegations. He also said he knew Mumo as he was his cousin.
The appeal was heard by way of written submissions. The appellant on his undated submissions. The respondent submissions are dated 3 rd February, 2026. I have carefully perused and considered the submissions by the appellant and the respondent. This being the first appellate court and as expected, I have analyzed and evaluated the evidence adduced before the trial court to make my own independent decision. I have done so cautiously not overlooking the fact that I did not have the opportunity to hear and see the witnesses testify before the trial court. This has been stated in various decisions of the Court of Appeal and this court among them the case of Kiilu & Another vs Republic (2005) e KLR where the Court of Appeal rendered itself thus:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
Further to the foregoing, it must also be remembered that it is the duty of the prosecution to prove the charges against an accused beyond reasonable doubt. This cardinal principle of criminal law has been restated in numerous cases among them the case of Stephen Nguli Mulili vs Republic (2014) e KLR where the court emphasized the prosecution duty in criminal cases and stated that:
“…it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UKHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan position.”
In the instant case the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act which provides as follows:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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.”
From the foregoing for the prosecution to proof the offence of defilement the essential ingredients which must be established are:
1. The age of the victim;
2. Proof of penetration; and
3. The positive identification of the perpetrator.
Regarding the age of the complainant in this case the prosecution produced birth certificate indicating that the complainant was born on 28 th September, 2007. The offence is alleged to have been committed on 30 th January, 2021. This puts the age of the complainant at 13 years and about 5 months. This is within the bracket provided for under Section 8(3) of the Sexual Offences Act. The trial court therefore correctly found that the age of the complainant was proved as required. It is notable that the appellant attempted to contest the production of the birth certificate alleging that what was produced was a copy which was not certified. However, the evidence adduced before the trial court clearly shows that the birth certificate was properly admitted as exhibit. It is not indicated in the evidence that the appellant contested the production of the same. In any case the evidence of PW3 clearly shows that what was produced in court was the birth certificate. It is common practice that in such proceedings as these one the prosecution always produces a copy of the birth certificate as the original is usually retained by the complainant. The argument by the appellant that age was not proved is a red-erring.
Regarding the element of penetration, the appellant in his submission faulted the trial court for relying on the documents produced in court by submitting that the same were produced contrary to Sections 64 and 65 of the Evidence Act as the same were not certified. I have looked at the documents produced by PW4 to wit the P3 Form and treatment notes and it is not true that they were photocopies as alleged by the appellant. The appellant further faulted the prosecution for failure to produce PRC Form. In my view all the prosecution was required is to prove penetration either partial or compete as defined under Sexual Offences Act. In this case the complainant testified that the appellant lured him when he was heading home and defiled him. The trial court did not only believe the complainant but also found that there was corroboration from the medical evidence adduced by PW4. I have no reason to fault the trial court on the finding that there was penetration.
On the element of identification of the appellant as the perpetrator, I have evaluated the evidence adduced before the trial court. It is not disputed that the complainant and the appellant were neighbours. This was confirmed by the evidence of the complainant and the appellant in his defence. Further it is also not in dispute that the offence was committed in daylight and chances of mistaken identification of the appellant were very remote. The argument by the appellant that the prosecution failed to call Mumo who informed the complainant’s mother that he saw the appellant defile the complainant does not rebut the evidence adduced by the complainant whom the trial court believed to be truthful. In any case there is no requirement that the prosecution should call any number of witnesses to prove their case so long there is cogent evidence pointing at the guilty of an accused person.
The appellant in his submissions statedbthat the trial court failed to consider the appellant’s defence, I have evaluated the evidence adduced before the trial court and I find that the trial court considered the appellant’s defence and found that the same did not rebut the evidence adduced by the prosecution to prove the guilt of the appellant. In my own view the appellant’s defence was mere denial and as the trial court found the same did not rebut the evidence adduced by the prosecution.
The appellant argued that the trial court did not consider the period he was in custody pending trial in imposing the sentence. On this the respondent the conceded that the trial court did not specify when the sentence was to run. I agree with the appellant that the trial court did not take into consideration the period the appellant was in custody pending trial. From the charge sheet the appellant was arrested on 3 rd February, 2021. He was in custody until he was convicted and sentenced. The trial court ought to have considered the period the appellant was in custody pursuant to Section 333(2) of the Criminal Procedure Code. A simple arithmetic shows that the appellant was in custody for a period of 10 months and 25 days before he was sentenced.
Having considered all the evidence adduced before the trial court, I find that the charge of defilement contrary to Section 8(1) as read with Section 8(3) was duly proved and I find the conviction was based on cogent evidence and I uphold the same. Regarding the sentence, the same was lawful albeit that the trial court failed to comply with Section 333(2) of the Criminal Procedure Code. I must disturb the sentence. The imprisonment for twenty years shall be less 10 months and 25 days.
The upshot is that the appeal herein partially succeeds to the extent that the conviction is upheld but the sentence is reduced by 10 months and 25 days.
Dated, signed and delivered virtually this 15 th day of July, 2026
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually
Ms. Mutua for respondent appearing virtually
Ms. Otwo Court Assistant
2