REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL APPEAL NO. E030 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
( Being an appeal from the Judgment, conviction, and sentence delivered on 25 th November 2025 in Kilgoris MCSO Case No. E001 of 2023 by Hon. M. I. G. Moranga, Chief Magistrate)
IBRAHIM SAMWEL….………………………..………………………………APPELLANT
-VERSUS-
REPUBLIC…………………………………………………………………. RESPONDENT
JUDGMENT
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This is the first appeal arising from the judgment of the Chief Magistrate's Court at Kilgoris in MCSO Case No. E001 of 2023 delivered on 25 th November 2025.
2) The Appellant, Ibrahim Samwel, was charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on diverse dates between 1 st and 2 nd January 2023 at Migori Town in Suna East Sub-County within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of P.B., a child aged seventeen (17) years.
3) In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
4) The Appellant pleaded not guilty, and the matter proceeded to a full hearing. The prosecution called five witnesses. The complainant (PW1) testified that she voluntarily travelled with her friend (PW2) from Lolgorian to Migori to visit the Appellant, who was her boyfriend, and that they spent the night together, during which they had sexual intercourse. PW2 confirmed accompanying the complainant to Migori and spending the night in the same house together with the Appellant and another friend, George. PW3, the complainant's mother, testified regarding the complainant's disappearance and subsequent recovery. PW4, the investigating officer, narrated the investigations leading to the Appellant's arrest, while PW5, the clinical officer, produced the complainant's treatment notes, PRC Form, and P3 Form.
5) Upon being placed on his defence, the Appellant gave sworn testimony denying that he had sexual intercourse with the complainant. He admitted that the complainant and PW2 visited their house to celebrate the New Year, but maintained that he did not engage in any sexual activity with her. He further asserted that, in his estimation, the complainant appeared to be eighteen years old.
6) After considering the evidence, the trial court found that the prosecution had proved all the ingredients of the offence of defilement beyond a reasonable doubt. The Appellant was convicted on the main charge and sentenced to serve fifteen (15) years' imprisonment, being the minimum sentence prescribed under section 8(4) of the Sexual Offences Act.
7) Aggrieved by both conviction and sentence, the Appellant lodged the present appeal challenging the findings of the trial court on procedural, evidential, and sentencing grounds.
B. MEMORANDUM OF APPEAL
8) The Appellant, through the Memorandum of Appeal dated 8 th December 2025, challenges the entirety of the judgment, conviction, and sentence delivered by the Principal Magistrate in Kilgoris Criminal Case No. E001 of 2023. The appeal raises both procedural and substantive complaints, contending that the trial was conducted in violation of the Appellant's constitutional and statutory rights and that the evidence on record did not establish the offence beyond a reasonable doubt. The appellant raised the following grounds;
1. The learned trial magistrate erred in law and procedure in taking the plea and fixing the case for hearing to be on 12/01/2023 before explaining to the appellant his right under Article 50(g) of the Constitution of Kenya 2010.
2. The learned trial magistrate erred in law and fact by failing to order an age assessment, despite the complainant presenting conflicting information on her age.
3. The learned trial magistrate erred in law and fact by failing to take into account the contradiction, being that the birth certificate indicates a date of birth of 23/01/2005, while the complainant informed the court on 12/01/2023 that she was 18 years old.
4. The learned trial magistrate erred in law and fact by failing to note that the inconsistency created doubt which required an age assessment, and failure to conduct one prejudiced the Appellant.
5. The magistrate erred in finding that the prosecution had proved penetration to the required standard when:
a. The complainant merely stated "we had sexual intercourse" without giving any description clarifying whether the legal standard of penetration was met.
b. The P3 Report indicated no injuries, no ulcers, and no abnormal findings on 03 DEC 2025 suggestive of force or recent activity.
c. The medical officer explained the only noted discharge as something that could arise from various non-sexual causes, including common infections.
6. The learned trial magistrate erred in law and fact when he failed to resolve the doubt created in favour of the Appellant.
7. The learned magistrate failed to give sufficient weight to the medical officer's testimony clarifying that the noted discharge was not necessarily linked to the alleged act and could result from other medical conditions. The court instead relied on assumptions rather than expert evidence.
8. The trial court improperly placed undue weight on uncorroborated testimony. It shifted the evidential burden to the Appellant, contrary to the requirement that the prosecution must prove its case beyond a reasonable doubt.
9. The learned magistrate failed to consider that, according to the presentence report dated 25/11/2025, the Appellant was 18 years old at the time of the alleged offence - a factor relevant to sentencing and overall proportionality of punishment.
10. The learned trial magistrate erred in law and fact when she imposed a sentence that is harsh, excessive, and not supported by the evidence on record.
11. The conviction was unsafe, against the weight of the evidence, and bad in law.
9) Ultimately, the Appellant prays that the appeal be allowed, the conviction quashed, the sentence set aside, and that the High Court grant any further orders that it deems just and appropriate.
C. SUBMISSIONS
i. Appellant’s Submissions
10) The Appellant filed written submissions urging the Court, as the first appellate court, to subject the entire record of the trial court to a fresh and exhaustive evaluation in accordance with the principles set out in Okeno v Republic [1972] EA 32, where the former Court of Appeal for East Africa held that a first appellate court must reconsider and re-evaluate the evidence afresh and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The Appellant further relied on Pandya v Republic [1957] EA 336, Shantilal M. Ruwala v Republic [1957] EA 570, and Peters v Sunday Post Ltd [1958] EA 424, all of which underscore the duty of a first appellate court to independently analyse the evidence rather than merely determine whether there was some evidence to support the findings of the trial court.
11) The Appellant submitted that the prosecution failed to prove the complainant's age beyond a reasonable doubt, contending that age is an essential ingredient of the offence of defilement. Counsel argued that the complainant testified in court that she was eighteen years old. Yet, the birth certificate produced by the prosecution indicated that she was born on 23 January 2005, making her seventeen years, eleven months, and nineteen days old at the time of the alleged offence. According to the Appellant, this inconsistency created a material doubt which ought to have prompted the trial court to order an age assessment before determining the issue. Counsel maintained that by failing to resolve the contradiction, the trial court prejudiced the Appellant by treating the complainant as a minor despite the uncertainty regarding her age. In support of this argument, reliance was placed on MAM v Republic, in which the court observed that age may be established by a birth certificate, an age assessment report, school records, or medical evidence, and that, where uncertainty exists, courts should undertake further inquiry to remove doubt.
12) The Appellant further submitted that the complainant's conduct demonstrated that she presented herself as an adult. It was argued that she voluntarily left home, travelled to Migori to meet the Appellant, spent the night with him, and only narrated the alleged incident after being apprehended and allegedly compelled by her parents. Counsel contended that these circumstances brought the matter within the ambit of the defence provided under section 8(5) of the Sexual Offences Act. In that regard, reliance was placed on Kaige v Republic [2024] KEHC 2718 (KLR), where the High Court held that an accused person may rely on the statutory defence where the complainant conducted herself as an adult. There was reason to believe that she had attained the age of eighteen years. The Appellant also cited Martin Charo v Republic [2016] eKLR, which discusses the defence of reasonable belief as to age under section 8(5) of the Sexual Offences Act. Further reliance was placed on Emodo v Republic [2025] KEHC 1630 (KLR) and Meshack Nyongesa v Republic [2016] KECA 84 (KLR ), in which the Court of Appeal observed that young women may appear older than their actual age and emphasised that trial courts should consider whether an accused had reasonable grounds to believe that a complainant above sixteen years was in fact an adult.
13) On the issue of penetration, the Appellant submitted that the prosecution failed to prove this essential ingredient beyond a reasonable doubt. Counsel argued that the complainant merely testified that she and the Appellant "had sexual intercourse" without describing the act in a manner capable of satisfying the statutory definition of penetration under section 2 of the Sexual Offences Act, namely the partial or complete insertion of the genital organs of one person into the genital organs of another. It was submitted that the complainant did not testify regarding the insertion of the Appellant's penis into her vagina, nor did she describe any circumstances surrounding the alleged act, such as removal of clothing or other particulars demonstrating penetration. Counsel, therefore, contended that the evidence remained vague and incapable of proving penetration to the requisite criminal standard. In support of this proposition, reliance was placed on Maweu v Republic [2025] KEHC 13423 (KLR), where the High Court is said to have held that a conviction could not safely rest on a complainant's bare assertion that she had been raped without evidence establishing penetration.
14) The Appellant further argued that the medical evidence did not corroborate the complainant's account. Counsel pointed to the testimony of the clinical officer, who found no injuries, no ulcers, no spermatozoa, and no evidence of recent penetration, while explaining that the white vaginal discharge observed could have resulted from infection or other medical conditions. It was further submitted that the complainant was already approximately two weeks pregnant at the time of examination, and that the pregnancy was never linked to the Appellant. Counsel therefore contended that the trial court improperly relied on speculation rather than expert medical evidence in concluding that penetration had occurred, and that any doubt arising from the medical evidence ought to have been resolved in favour of the Appellant.
15) The Appellant also submitted that the trial court impermissibly shifted the burden of proof to the defence instead of requiring the prosecution to establish every element of the offence beyond a reasonable doubt. Counsel argued that although four people allegedly slept in the same room with the lights on, no witness heard or observed any sexual activity between the Appellant and the complainant. It was contended that this circumstance created significant doubt which the trial court failed to resolve in favour of the Appellant. Reliance was placed on the celebrated decision in Woolmington v Director of Public Prosecutions [1935] AC 462, where the House of Lords affirmed the fundamental principle that the burden of proving an accused person's guilt rests throughout upon the prosecution and never shifts, save for limited statutory exceptions.
16) With respect to the sentence, the Appellant submitted that the trial court failed to accord due weight to the pre-sentence report, which indicated that he was only eighteen years old at the time of the alleged offence and was a first offender. Counsel argued that sentencing ought to take into account the offender's age, the circumstances of the offence, and the prospects of rehabilitation. It was further submitted that the complainant was within approximately one year of the Appellant's age and that the circumstances disclosed a consensual relationship rather than predatory conduct, thereby rendering the sentence of fifteen years' imprisonment disproportionate. In support of this submission, reliance was placed on AO v Republic [2025] KEHC 547 (KLR), where the Court emphasised that sentencing must reflect fairness and proportionality. The Appellant also cited Wafula v Republic [2022] KEHC 12614 (KLR), in which the High Court reduced a fifteen-year sentence imposed for defilement after considering that the parties were lovers, the appellant was a young first offender, no violence had been used, and the trial court had treated the statutory minimum sentence as mandatory. Counsel also relied on Eliud Waweru Wambui v Republic [2019] eKLR, where the court recognised the discretion to impose an appropriate sentence notwithstanding the prescribed minimum sentence.
17) In conclusion, the Appellant submitted that the cumulative effect of the contradictions regarding the complainant's age, the alleged inadequacy of the evidence on penetration, the medical evidence said to be inconsistent with the prosecution's case, and the failure by the trial court to resolve doubts in favour of the defence rendered the conviction unsafe. Relying once again on Woolmington v Director of Public Prosecutions [1935] AC 462, counsel argued that the prosecution had failed to discharge its burden of proving the offence beyond a reasonable doubt. The Appellant accordingly urged the Court to allow the appeal, quash the conviction, set aside the sentence, and grant any further orders that the Court considered just.
ii. Respondent’s Submissions
18) The Respondent opposed the appeal in its entirety and urged the Court to uphold both the conviction and sentence imposed by the trial court. The Respondent submitted that, as the first appellate court, this Court has a duty to re-evaluate and re-analyse the entire evidence before arriving at its own independent conclusions while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. In support of this proposition, reliance was placed on Ngala & 2 Others v Republic (Criminal Appeal E117 of 2023) [2025] KECA 660 (KLR), where the Court of Appeal reiterated that a first appeal is by way of a rehearing and that the appellate court must independently reconsider the evidence. The Respondent also relied on Ogaro v Republic [1981] eKLR and Selle & Another v Associated Motorboat Co. Ltd. & Others [1968] EA 123, which affirm the duty of a first appellate court to conduct a fresh evaluation of the evidence while giving due allowance to the trial court's advantage of seeing and hearing witnesses.
19) On the complaint that the Appellant was denied a fair trial by not being informed of his right to legal representation under Article 50(2)(g) of the Constitution, the Respondent submitted that the record clearly demonstrated that the trial court informed the Appellant of his constitutional right to counsel before the plea was taken. Further, the Respondent pointed out that the Appellant subsequently retained counsel of his own choice, who formally came on record during the proceedings, successfully applied for the recall of prosecution witnesses, and extensively cross-examined them. Counsel argued that both the Appellant and his advocate were afforded adequate opportunity to challenge the prosecution's case and, consequently, the proceedings fully complied with the constitutional guarantees of a fair hearing under Article 50 of the Constitution.
20) The Respondent further submitted that the prosecution proved all the essential ingredients of the offence of defilement beyond a reasonable doubt, namely the age of the complainant, penetration, and the identity of the perpetrator. Reliance was placed on Kamau v Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR), where the High Court reaffirmed that these three elements constitute the essential ingredients of the offence under section 8 of the Sexual Offences Act.
21) Regarding the complainant's age, the Respondent submitted that there was overwhelming and consistent evidence establishing that the complainant was seventeen years old at the time of the offence. Counsel referred to the complainant's testimony, the evidence of her mother, the birth certificate showing her date of birth as 23 rd January 2005, and the age reflected in both the P3 Form and the Post Rape Care (PRC) Form. It was argued that these pieces of evidence corroborated one another and conclusively established the complainant's age. The Respondent further contended that the Appellant did not challenge the complainant's age during cross-examination or in his defence and could not therefore seek to raise doubts on appeal. In support of the sufficiency of such evidence, reliance was placed on Richard Wahome Chege v Republic [2014] eKLR, which was cited with approval in JND v Republic (Criminal Appeal E135 of 2022) [2025] KEHC 9446 (KLR), where the Court of Appeal held that the testimony of a complainant's mother, together with supporting evidence such as medical evidence and the complainant's own testimony, constitutes satisfactory proof of age.
22) On the issue of penetration, the Respondent submitted that the complainant unequivocally testified that she spent the night with the Appellant, who was her boyfriend, and that they had sexual intercourse. Counsel argued that this evidence was corroborated by the medical findings of the clinical officer, who observed that the complainant had an old broken hymen, whitish foul-smelling discharge, and was pregnant by not more than twelve weeks. The treatment notes, PRC Form, and P3 Form were produced as exhibits. The Respondent submitted that these medical findings, when read together with the complainant's testimony, sufficiently established penetration within the meaning of section 2 of the Sexual Offences Act.
23) In support of the legal principles governing proof of penetration, the Respondent relied on Mark Oiruri Mose v Republic [2013] eKLR, as cited with approval in Ali v Republic (Criminal Appeal E294 of 2023) [2025] KEHC 2805 (KLR), where the Court of Appeal held that penetration need not be complete and that proof of spermatozoa is not a legal requirement, provided there is evidence of partial or complete insertion of the genital organs. The Respondent further relied on the decision of the Supreme Court of Uganda in Bassita v Uganda, Supreme Court Criminal Appeal No. 35 of 1995 , which was also cited in Ali v Republic (supra), for the proposition that penetration may be proved by either direct or circumstantial evidence, and that although medical evidence is desirable, the testimony of the complainant alone may suffice if it establishes the offence beyond reasonable doubt.
24) On identification, the Respondent submitted that there was no possibility of mistaken identity. It was argued that the complainant had known the Appellant for approximately two years as her boyfriend, had travelled voluntarily to meet him in Migori Town, had spent several hours with him, and had slept in his house on the material night. The Respondent further submitted that PW2 corroborated the complainant's account by confirming that she accompanied the complainant to Migori, knew the Appellant as the complainant's friend, and spent the night in the same house with the Appellant and another individual. Counsel therefore argued that the Appellant was positively identified by recognition, which is generally more dependable than identification of a stranger. Reliance was placed on the well-known English decision of R v Turnbull [1977] QB 224; [1976] 3 All ER 549, as cited with approval by the Court of Appeal in Michael Nganga Kinyanjui v Republic [2014] eKLR, where guidelines were laid down on the proper evaluation of identification evidence, including the duration of observation, lighting conditions, proximity, prior acquaintance, and the possibility of error.
25) On sentence, the Respondent submitted that the fifteen-year custodial sentence imposed by the trial court was lawful, neither harsh nor excessive, as it represented the minimum sentence prescribed under section 8(4) of the Sexual Offences Act for defilement of a child aged between sixteen and eighteen years. Counsel argued that the trial court carefully considered the Appellant's mitigation and the favourable pre-sentence report before imposing the statutory minimum sentence. The Respondent submitted that there was therefore no basis upon which the appellate court could interfere with the exercise of the trial court's sentencing discretion.
26) In support of the limited circumstances under which an appellate or revisional court may interfere with sentence, the Respondent relied on Juma v Republic (Criminal Revision E001 of 2024) [2024] KEHC 4043 (KLR), where Nzioka J. held that a sentence may only be interfered with if it is illegal, improper, based on no evidence, ignores material evidence, or is founded upon an arbitrary or perverse exercise of judicial discretion. Counsel argued that the Appellant had demonstrated none of those circumstances.
27) Finally, the Respondent submitted that the question of minimum sentences under the Sexual Offences Act has now been settled by the Supreme Court in Republic v Joshua Mwangi Gichuki, Supreme Court Petition No. E018 of 2023, which affirmed the continued validity and applicability of the statutory minimum sentences prescribed under the Sexual Offences Act. Accordingly, the Respondent urged the Court to find that both the conviction and sentence were lawful, supported by the evidence, and free from error, and consequently to dismiss the appeal in its entirety.
D. ISSUES FOR DETERMINATION
28) Having considered the record of appeal, the memorandum of appeal, the rival submissions, and the applicable law, the following issues arise for determination—
i. Whether the Appellant's right to a fair trial under Article 50(2)(g) of the Constitution was violated.
ii. Whether the prosecution proved the offence of defilement beyond a reasonable doubt, particularly—
a. the age of the complainant;
b. penetration; and
c. the identity of the perpetrator.
iii. Whether the trial court shifted the burden of proof to the Appellant.
iv. Whether the sentence of fifteen (15) years' imprisonment was lawful, harsh, or excessive.
E. ANALYSIS AND DETERMINATION
a) Duty of a First Appellate Court
29) This being a first appeal, this Court is obligated to reconsider, re-evaluate, and analyse the entire evidence afresh before arriving at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify.
30) The principles governing a first appeal were settled in Okeno v Republic [1972] EA 32, where the former East African Court of Appeal held that a first appellate court must subject the evidence to a fresh and exhaustive examination and draw its own conclusions. The same principle was affirmed in Pandya v Republic [1957] EA 336, Shantilal M. Ruwala v Republic [1957] EA 570, Peters v Sunday Post Ltd [1958] EA 424 , and more recently by the Court of Appeal in Ngala & 2 Others v Republic (Criminal Appeal E117 of 2023) [2025] KECA 660 (KLR).
31) The appeal shall therefore be determined based on an independent evaluation of the entire record.
i. Whether the Appellant's right to legal representation was violated.
32) The Appellant contended that the trial court failed to inform him of his right to legal representation under Article 50(2)(g) of the Constitution before the plea was taken.
33) I have carefully examined the record of the trial court. The proceedings clearly show that before the plea was taken, the learned trial magistrate informed the Appellant of his constitutional right to legal representation.
34) More importantly, during the hearing, the Appellant retained counsel of his own choice. Counsel came on record, successfully applied for the recall of prosecution witnesses, and extensively cross-examined them.
35) The purpose of Article 50(2)(g) is to ensure that an accused person is aware of the right to legal representation. Once informed, the accused is at liberty to engage counsel.
36) In the present case, not only was the Appellant informed of that right, but he actually exercised it. Consequently, I find no violation whatsoever of Article 50(2)(g) or Article 50 of the Constitution.
37) This ground of appeal, therefore, fails.
ii. Whether the complainant's age was proved beyond a reasonable doubt.
38) Age is one of the essential ingredients of the offence of defilement.
39) The Court of Appeal has consistently held that age may be proved by a birth certificate, an age assessment report, school records, or oral evidence. See Richard Wahome Chege v Republic [2014] eKLR, cited with approval in JND v Republic (Criminal Appeal E135 of 2022) [2025] KEHC 9446 (KLR).
40) The Appellant argues that because the complainant stated in court that she was eighteen years old while her birth certificate indicated that she was born on 23 rd January 2005, the trial court ought to have ordered an age assessment. I do not agree. Documentary evidence takes precedence over an obvious mistake by a witness concerning her age. The birth certificate produced in evidence was never challenged. It showed that the complainant was born on 23 rd January 2005.
41) The alleged offence occurred between 1 st and 2 nd January 2023, barely twenty-one days before the complainant's eighteenth birthday.
42) Consequently, on the material date, she was still seventeen years old and therefore a child within the meaning of Article 260 of the Constitution and section 2 of the Children Act.
43) The complainant's mother's testimony, the birth certificate, the P3 Form, and the PRC Form all consistently reflected the complainant's age.
44) An age assessment only becomes necessary where documentary evidence is unavailable or where genuine uncertainty exists.
45) In the present case, there was no uncertainty requiring further inquiry.
46) I therefore find that the prosecution proved the complainant's age beyond a reasonable doubt.
iii. Whether the prosecution proved penetration and the identity of the perpetrator beyond a reasonable doubt
47) The offence of defilement under section 8 of the Sexual Offences Act is established upon proof of three essential ingredients, namely the age of the complainant, penetration, and the identity of the perpetrator. Having found that the complainant was a child within the meaning of the law, I now turn to consider whether the prosecution proved penetration and the identity of the Appellant beyond a reasonable doubt.
48) Section 2 of the Sexual Offences Act defines penetration as "the partial or complete insertion of the genital organs of a person into the genital organs of another person." It is therefore unnecessary for the prosecution to prove ejaculation, rupture of the hymen, or the presence of spermatozoa. Partial penetration is sufficient.
49) The Court of Appeal in Mark Oiruri Mose v Republic [2013] eKLR held that proof of penetration does not depend upon the production of spermatozoa and that even slight penetration is sufficient to satisfy the statutory definition. The same principle was reaffirmed in Ali v Republic (Criminal Appeal E294 of 2023) [2025] KEHC 2805 (KLR), where the High Court adopted the reasoning in Bassita v Uganda, Supreme Court Criminal Appeal No. 35 of 1995 , that penetration may be proved by direct or circumstantial evidence and that medical evidence, though desirable, is not invariably indispensable where the complainant's testimony is credible.
50) In the present appeal, the complainant's evidence was unequivocal. She testified that after travelling to Migori, she spent the night in the Appellant's house, slept on the same bed with him, and that they had sexual intercourse. Upon recall by defence counsel, she maintained the same account without wavering during extensive cross-examination.
51) The Appellant argued that the complainant merely stated that they had sexual intercourse without describing the mechanics of the act. I am unable to agree with that submission. A complainant is not required to narrate intimate anatomical details to prove penetration. Once a witness states, in clear and unequivocal terms, that sexual intercourse took place, the court is entitled to interpret that evidence in light of the statutory definition and the surrounding circumstances. Courts have consistently discouraged requiring victims of sexual offences to give unnecessarily graphic descriptions of the sexual act.
52) The medical evidence substantially corroborated the complainant's testimony. PW5, the clinical officer, examined th
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IN THE HIGH COURT OF KENYA AT KILGORIS
CRIMINAL APPEAL NO. E030 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
( Being an appeal from the Judgment, conviction, and sentence delivered on 25 th November 2025 in Kilgoris MCSO Case No. E001 of 2023 by Hon. M. I. G. Moranga, Chief Magistrate)
IBRAHIM SAMWEL….………………………..………………………………APPELLANT
-VERSUS-
REPUBLIC…………………………………………………………………. RESPONDENT
JUDGMENT
03/07/2026
A. INTRODUCTION AND BACKGROUND
1) This is the first appeal arising from the judgment of the Chief Magistrate's Court at Kilgoris in MCSO Case No. E001 of 2023 delivered on 25 th November 2025.
2) The Appellant, Ibrahim Samwel, was charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on diverse dates between 1 st and 2 nd January 2023 at Migori Town in Suna East Sub-County within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of P.B., a child aged seventeen (17) years.
3) In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
4) The Appellant pleaded not guilty, and the matter proceeded to a full hearing. The prosecution called five witnesses. The complainant (PW1) testified that she voluntarily travelled with her friend (PW2) from Lolgorian to Migori to visit the Appellant, who was her boyfriend, and that they spent the night together, during which they had sexual intercourse. PW2 confirmed accompanying the complainant to Migori and spending the night in the same house together with the Appellant and another friend, George. PW3, the complainant's mother, testified regarding the complainant's disappearance and subsequent recovery. PW4, the investigating officer, narrated the investigations leading to the Appellant's arrest, while PW5, the clinical officer, produced the complainant's treatment notes, PRC Form, and P3 Form.
5) Upon being placed on his defence, the Appellant gave sworn testimony denying that he had sexual intercourse with the complainant. He admitted that the complainant and PW2 visited their house to celebrate the New Year, but maintained that he did not engage in any sexual activity with her. He further asserted that, in his estimation, the complainant appeared to be eighteen years old.
6) After considering the evidence, the trial court found that the prosecution had proved all the ingredients of the offence of defilement beyond a reasonable doubt. The Appellant was convicted on the main charge and sentenced to serve fifteen (15) years' imprisonment, being the minimum sentence prescribed under section 8(4) of the Sexual Offences Act.
7) Aggrieved by both conviction and sentence, the Appellant lodged the present appeal challenging the findings of the trial court on procedural, evidential, and sentencing grounds.
B. MEMORANDUM OF APPEAL
8) The Appellant, through the Memorandum of Appeal dated 8 th December 2025, challenges the entirety of the judgment, conviction, and sentence delivered by the Principal Magistrate in Kilgoris Criminal Case No. E001 of 2023. The appeal raises both procedural and substantive complaints, contending that the trial was conducted in violation of the Appellant's constitutional and statutory rights and that the evidence on record did not establish the offence beyond a reasonable doubt. The appellant raised the following grounds;
1. The learned trial magistrate erred in law and procedure in taking the plea and fixing the case for hearing to be on 12/01/2023 before explaining to the appellant his right under Article 50(g) of the Constitution of Kenya 2010.
2. The learned trial magistrate erred in law and fact by failing to order an age assessment, despite the complainant presenting conflicting information on her age.
3. The learned trial magistrate erred in law and fact by failing to take into account the contradiction, being that the birth certificate indicates a date of birth of 23/01/2005, while the complainant informed the court on 12/01/2023 that she was 18 years old.
4. The learned trial magistrate erred in law and fact by failing to note that the inconsistency created doubt which required an age assessment, and failure to conduct one prejudiced the Appellant.
5. The magistrate erred in finding that the prosecution had proved penetration to the required standard when:
a. The complainant merely stated "we had sexual intercourse" without giving any description clarifying whether the legal standard of penetration was met.
b. The P3 Report indicated no injuries, no ulcers, and no abnormal findings on 03 DEC 2025 suggestive of force or recent activity.
c. The medical officer explained the only noted discharge as something that could arise from various non-sexual causes, including common infections.
6. The learned trial magistrate erred in law and fact when he failed to resolve the doubt created in favour of the Appellant.
7. The learned magistrate failed to give sufficient weight to the medical officer's testimony clarifying that the noted discharge was not necessarily linked to the alleged act and could result from other medical conditions. The court instead relied on assumptions rather than expert evidence.
8. The trial court improperly placed undue weight on uncorroborated testimony. It shifted the evidential burden to the Appellant, contrary to the requirement that the prosecution must prove its case beyond a reasonable doubt.
9. The learned magistrate failed to consider that, according to the presentence report dated 25/11/2025, the Appellant was 18 years old at the time of the alleged offence - a factor relevant to sentencing and overall proportionality of punishment.
10. The learned trial magistrate erred in law and fact when she imposed a sentence that is harsh, excessive, and not supported by the evidence on record.
11. The conviction was unsafe, against the weight of the evidence, and bad in law.
9) Ultimately, the Appellant prays that the appeal be allowed, the conviction quashed, the sentence set aside, and that the High Court grant any further orders that it deems just and appropriate.
C. SUBMISSIONS
i. Appellant’s Submissions
10) The Appellant filed written submissions urging the Court, as the first appellate court, to subject the entire record of the trial court to a fresh and exhaustive evaluation in accordance with the principles set out in Okeno v Republic [1972] EA 32, where the former Court of Appeal for East Africa held that a first appellate court must reconsider and re-evaluate the evidence afresh and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The Appellant further relied on Pandya v Republic [1957] EA 336, Shantilal M. Ruwala v Republic [1957] EA 570, and Peters v Sunday Post Ltd [1958] EA 424, all of which underscore the duty of a first appellate court to independently analyse the evidence rather than merely determine whether there was some evidence to support the findings of the trial court.
11) The Appellant submitted that the prosecution failed to prove the complainant's age beyond a reasonable doubt, contending that age is an essential ingredient of the offence of defilement. Counsel argued that the complainant testified in court that she was eighteen years old. Yet, the birth certificate produced by the prosecution indicated that she was born on 23 January 2005, making her seventeen years, eleven months, and nineteen days old at the time of the alleged offence. According to the Appellant, this inconsistency created a material doubt which ought to have prompted the trial court to order an age assessment before determining the issue. Counsel maintained that by failing to resolve the contradiction, the trial court prejudiced the Appellant by treating the complainant as a minor despite the uncertainty regarding her age. In support of this argument, reliance was placed on MAM v Republic, in which the court observed that age may be established by a birth certificate, an age assessment report, school records, or medical evidence, and that, where uncertainty exists, courts should undertake further inquiry to remove doubt.
12) The Appellant further submitted that the complainant's conduct demonstrated that she presented herself as an adult. It was argued that she voluntarily left home, travelled to Migori to meet the Appellant, spent the night with him, and only narrated the alleged incident after being apprehended and allegedly compelled by her parents. Counsel contended that these circumstances brought the matter within the ambit of the defence provided under section 8(5) of the Sexual Offences Act. In that regard, reliance was placed on Kaige v Republic [2024] KEHC 2718 (KLR), where the High Court held that an accused person may rely on the statutory defence where the complainant conducted herself as an adult. There was reason to believe that she had attained the age of eighteen years. The Appellant also cited Martin Charo v Republic [2016] eKLR, which discusses the defence of reasonable belief as to age under section 8(5) of the Sexual Offences Act. Further reliance was placed on Emodo v Republic [2025] KEHC 1630 (KLR) and Meshack Nyongesa v Republic [2016] KECA 84 (KLR ), in which the Court of Appeal observed that young women may appear older than their actual age and emphasised that trial courts should consider whether an accused had reasonable grounds to believe that a complainant above sixteen years was in fact an adult.
13) On the issue of penetration, the Appellant submitted that the prosecution failed to prove this essential ingredient beyond a reasonable doubt. Counsel argued that the complainant merely testified that she and the Appellant "had sexual intercourse" without describing the act in a manner capable of satisfying the statutory definition of penetration under section 2 of the Sexual Offences Act, namely the partial or complete insertion of the genital organs of one person into the genital organs of another. It was submitted that the complainant did not testify regarding the insertion of the Appellant's penis into her vagina, nor did she describe any circumstances surrounding the alleged act, such as removal of clothing or other particulars demonstrating penetration. Counsel, therefore, contended that the evidence remained vague and incapable of proving penetration to the requisite criminal standard. In support of this proposition, reliance was placed on Maweu v Republic [2025] KEHC 13423 (KLR), where the High Court is said to have held that a conviction could not safely rest on a complainant's bare assertion that she had been raped without evidence establishing penetration.
14) The Appellant further argued that the medical evidence did not corroborate the complainant's account. Counsel pointed to the testimony of the clinical officer, who found no injuries, no ulcers, no spermatozoa, and no evidence of recent penetration, while explaining that the white vaginal discharge observed could have resulted from infection or other medical conditions. It was further submitted that the complainant was already approximately two weeks pregnant at the time of examination, and that the pregnancy was never linked to the Appellant. Counsel therefore contended that the trial court improperly relied on speculation rather than expert medical evidence in concluding that penetration had occurred, and that any doubt arising from the medical evidence ought to have been resolved in favour of the Appellant.
15) The Appellant also submitted that the trial court impermissibly shifted the burden of proof to the defence instead of requiring the prosecution to establish every element of the offence beyond a reasonable doubt. Counsel argued that although four people allegedly slept in the same room with the lights on, no witness heard or observed any sexual activity between the Appellant and the complainant. It was contended that this circumstance created significant doubt which the trial court failed to resolve in favour of the Appellant. Reliance was placed on the celebrated decision in Woolmington v Director of Public Prosecutions [1935] AC 462, where the House of Lords affirmed the fundamental principle that the burden of proving an accused person's guilt rests throughout upon the prosecution and never shifts, save for limited statutory exceptions.
16) With respect to the sentence, the Appellant submitted that the trial court failed to accord due weight to the pre-sentence report, which indicated that he was only eighteen years old at the time of the alleged offence and was a first offender. Counsel argued that sentencing ought to take into account the offender's age, the circumstances of the offence, and the prospects of rehabilitation. It was further submitted that the complainant was within approximately one year of the Appellant's age and that the circumstances disclosed a consensual relationship rather than predatory conduct, thereby rendering the sentence of fifteen years' imprisonment disproportionate. In support of this submission, reliance was placed on AO v Republic [2025] KEHC 547 (KLR), where the Court emphasised that sentencing must reflect fairness and proportionality. The Appellant also cited Wafula v Republic [2022] KEHC 12614 (KLR), in which the High Court reduced a fifteen-year sentence imposed for defilement after considering that the parties were lovers, the appellant was a young first offender, no violence had been used, and the trial court had treated the statutory minimum sentence as mandatory. Counsel also relied on Eliud Waweru Wambui v Republic [2019] eKLR, where the court recognised the discretion to impose an appropriate sentence notwithstanding the prescribed minimum sentence.
17) In conclusion, the Appellant submitted that the cumulative effect of the contradictions regarding the complainant's age, the alleged inadequacy of the evidence on penetration, the medical evidence said to be inconsistent with the prosecution's case, and the failure by the trial court to resolve doubts in favour of the defence rendered the conviction unsafe. Relying once again on Woolmington v Director of Public Prosecutions [1935] AC 462, counsel argued that the prosecution had failed to discharge its burden of proving the offence beyond a reasonable doubt. The Appellant accordingly urged the Court to allow the appeal, quash the conviction, set aside the sentence, and grant any further orders that the Court considered just.
ii. Respondent’s Submissions
18) The Respondent opposed the appeal in its entirety and urged the Court to uphold both the conviction and sentence imposed by the trial court. The Respondent submitted that, as the first appellate court, this Court has a duty to re-evaluate and re-analyse the entire evidence before arriving at its own independent conclusions while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. In support of this proposition, reliance was placed on Ngala & 2 Others v Republic (Criminal Appeal E117 of 2023) [2025] KECA 660 (KLR), where the Court of Appeal reiterated that a first appeal is by way of a rehearing and that the appellate court must independently reconsider the evidence. The Respondent also relied on Ogaro v Republic [1981] eKLR and Selle & Another v Associated Motorboat Co. Ltd. & Others [1968] EA 123, which affirm the duty of a first appellate court to conduct a fresh evaluation of the evidence while giving due allowance to the trial court's advantage of seeing and hearing witnesses.
19) On the complaint that the Appellant was denied a fair trial by not being informed of his right to legal representation under Article 50(2)(g) of the Constitution, the Respondent submitted that the record clearly demonstrated that the trial court informed the Appellant of his constitutional right to counsel before the plea was taken. Further, the Respondent pointed out that the Appellant subsequently retained counsel of his own choice, who formally came on record during the proceedings, successfully applied for the recall of prosecution witnesses, and extensively cross-examined them. Counsel argued that both the Appellant and his advocate were afforded adequate opportunity to challenge the prosecution's case and, consequently, the proceedings fully complied with the constitutional guarantees of a fair hearing under Article 50 of the Constitution.
20) The Respondent further submitted that the prosecution proved all the essential ingredients of the offence of defilement beyond a reasonable doubt, namely the age of the complainant, penetration, and the identity of the perpetrator. Reliance was placed on Kamau v Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR), where the High Court reaffirmed that these three elements constitute the essential ingredients of the offence under section 8 of the Sexual Offences Act.
21) Regarding the complainant's age, the Respondent submitted that there was overwhelming and consistent evidence establishing that the complainant was seventeen years old at the time of the offence. Counsel referred to the complainant's testimony, the evidence of her mother, the birth certificate showing her date of birth as 23 rd January 2005, and the age reflected in both the P3 Form and the Post Rape Care (PRC) Form. It was argued that these pieces of evidence corroborated one another and conclusively established the complainant's age. The Respondent further contended that the Appellant did not challenge the complainant's age during cross-examination or in his defence and could not therefore seek to raise doubts on appeal. In support of the sufficiency of such evidence, reliance was placed on Richard Wahome Chege v Republic [2014] eKLR, which was cited with approval in JND v Republic (Criminal Appeal E135 of 2022) [2025] KEHC 9446 (KLR), where the Court of Appeal held that the testimony of a complainant's mother, together with supporting evidence such as medical evidence and the complainant's own testimony, constitutes satisfactory proof of age.
22) On the issue of penetration, the Respondent submitted that the complainant unequivocally testified that she spent the night with the Appellant, who was her boyfriend, and that they had sexual intercourse. Counsel argued that this evidence was corroborated by the medical findings of the clinical officer, who observed that the complainant had an old broken hymen, whitish foul-smelling discharge, and was pregnant by not more than twelve weeks. The treatment notes, PRC Form, and P3 Form were produced as exhibits. The Respondent submitted that these medical findings, when read together with the complainant's testimony, sufficiently established penetration within the meaning of section 2 of the Sexual Offences Act.
23) In support of the legal principles governing proof of penetration, the Respondent relied on Mark Oiruri Mose v Republic [2013] eKLR, as cited with approval in Ali v Republic (Criminal Appeal E294 of 2023) [2025] KEHC 2805 (KLR), where the Court of Appeal held that penetration need not be complete and that proof of spermatozoa is not a legal requirement, provided there is evidence of partial or complete insertion of the genital organs. The Respondent further relied on the decision of the Supreme Court of Uganda in Bassita v Uganda, Supreme Court Criminal Appeal No. 35 of 1995 , which was also cited in Ali v Republic (supra), for the proposition that penetration may be proved by either direct or circumstantial evidence, and that although medical evidence is desirable, the testimony of the complainant alone may suffice if it establishes the offence beyond reasonable doubt.
24) On identification, the Respondent submitted that there was no possibility of mistaken identity. It was argued that the complainant had known the Appellant for approximately two years as her boyfriend, had travelled voluntarily to meet him in Migori Town, had spent several hours with him, and had slept in his house on the material night. The Respondent further submitted that PW2 corroborated the complainant's account by confirming that she accompanied the complainant to Migori, knew the Appellant as the complainant's friend, and spent the night in the same house with the Appellant and another individual. Counsel therefore argued that the Appellant was positively identified by recognition, which is generally more dependable than identification of a stranger. Reliance was placed on the well-known English decision of R v Turnbull [1977] QB 224; [1976] 3 All ER 549, as cited with approval by the Court of Appeal in Michael Nganga Kinyanjui v Republic [2014] eKLR, where guidelines were laid down on the proper evaluation of identification evidence, including the duration of observation, lighting conditions, proximity, prior acquaintance, and the possibility of error.
25) On sentence, the Respondent submitted that the fifteen-year custodial sentence imposed by the trial court was lawful, neither harsh nor excessive, as it represented the minimum sentence prescribed under section 8(4) of the Sexual Offences Act for defilement of a child aged between sixteen and eighteen years. Counsel argued that the trial court carefully considered the Appellant's mitigation and the favourable pre-sentence report before imposing the statutory minimum sentence. The Respondent submitted that there was therefore no basis upon which the appellate court could interfere with the exercise of the trial court's sentencing discretion.
26) In support of the limited circumstances under which an appellate or revisional court may interfere with sentence, the Respondent relied on Juma v Republic (Criminal Revision E001 of 2024) [2024] KEHC 4043 (KLR), where Nzioka J. held that a sentence may only be interfered with if it is illegal, improper, based on no evidence, ignores material evidence, or is founded upon an arbitrary or perverse exercise of judicial discretion. Counsel argued that the Appellant had demonstrated none of those circumstances.
27) Finally, the Respondent submitted that the question of minimum sentences under the Sexual Offences Act has now been settled by the Supreme Court in Republic v Joshua Mwangi Gichuki, Supreme Court Petition No. E018 of 2023, which affirmed the continued validity and applicability of the statutory minimum sentences prescribed under the Sexual Offences Act. Accordingly, the Respondent urged the Court to find that both the conviction and sentence were lawful, supported by the evidence, and free from error, and consequently to dismiss the appeal in its entirety.
D. ISSUES FOR DETERMINATION
28) Having considered the record of appeal, the memorandum of appeal, the rival submissions, and the applicable law, the following issues arise for determination—
i. Whether the Appellant's right to a fair trial under Article 50(2)(g) of the Constitution was violated.
ii. Whether the prosecution proved the offence of defilement beyond a reasonable doubt, particularly—
a. the age of the complainant;
b. penetration; and
c. the identity of the perpetrator.
iii. Whether the trial court shifted the burden of proof to the Appellant.
iv. Whether the sentence of fifteen (15) years' imprisonment was lawful, harsh, or excessive.
E. ANALYSIS AND DETERMINATION
a) Duty of a First Appellate Court
29) This being a first appeal, this Court is obligated to reconsider, re-evaluate, and analyse the entire evidence afresh before arriving at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify.
30) The principles governing a first appeal were settled in Okeno v Republic [1972] EA 32, where the former East African Court of Appeal held that a first appellate court must subject the evidence to a fresh and exhaustive examination and draw its own conclusions. The same principle was affirmed in Pandya v Republic [1957] EA 336, Shantilal M. Ruwala v Republic [1957] EA 570, Peters v Sunday Post Ltd [1958] EA 424 , and more recently by the Court of Appeal in Ngala & 2 Others v Republic (Criminal Appeal E117 of 2023) [2025] KECA 660 (KLR).
31) The appeal shall therefore be determined based on an independent evaluation of the entire record.
i. Whether the Appellant's right to legal representation was violated.
32) The Appellant contended that the trial court failed to inform him of his right to legal representation under Article 50(2)(g) of the Constitution before the plea was taken.
33) I have carefully examined the record of the trial court. The proceedings clearly show that before the plea was taken, the learned trial magistrate informed the Appellant of his constitutional right to legal representation.
34) More importantly, during the hearing, the Appellant retained counsel of his own choice. Counsel came on record, successfully applied for the recall of prosecution witnesses, and extensively cross-examined them.
35) The purpose of Article 50(2)(g) is to ensure that an accused person is aware of the right to legal representation. Once informed, the accused is at liberty to engage counsel.
36) In the present case, not only was the Appellant informed of that right, but he actually exercised it. Consequently, I find no violation whatsoever of Article 50(2)(g) or Article 50 of the Constitution.
37) This ground of appeal, therefore, fails.
ii. Whether the complainant's age was proved beyond a reasonable doubt.
38) Age is one of the essential ingredients of the offence of defilement.
39) The Court of Appeal has consistently held that age may be proved by a birth certificate, an age assessment report, school records, or oral evidence. See Richard Wahome Chege v Republic [2014] eKLR, cited with approval in JND v Republic (Criminal Appeal E135 of 2022) [2025] KEHC 9446 (KLR).
40) The Appellant argues that because the complainant stated in court that she was eighteen years old while her birth certificate indicated that she was born on 23 rd January 2005, the trial court ought to have ordered an age assessment. I do not agree. Documentary evidence takes precedence over an obvious mistake by a witness concerning her age. The birth certificate produced in evidence was never challenged. It showed that the complainant was born on 23 rd January 2005.
41) The alleged offence occurred between 1 st and 2 nd January 2023, barely twenty-one days before the complainant's eighteenth birthday.
42) Consequently, on the material date, she was still seventeen years old and therefore a child within the meaning of Article 260 of the Constitution and section 2 of the Children Act.
43) The complainant's mother's testimony, the birth certificate, the P3 Form, and the PRC Form all consistently reflected the complainant's age.
44) An age assessment only becomes necessary where documentary evidence is unavailable or where genuine uncertainty exists.
45) In the present case, there was no uncertainty requiring further inquiry.
46) I therefore find that the prosecution proved the complainant's age beyond a reasonable doubt.
iii. Whether the prosecution proved penetration and the identity of the perpetrator beyond a reasonable doubt
47) The offence of defilement under section 8 of the Sexual Offences Act is established upon proof of three essential ingredients, namely the age of the complainant, penetration, and the identity of the perpetrator. Having found that the complainant was a child within the meaning of the law, I now turn to consider whether the prosecution proved penetration and the identity of the Appellant beyond a reasonable doubt.
48) Section 2 of the Sexual Offences Act defines penetration as "the partial or complete insertion of the genital organs of a person into the genital organs of another person." It is therefore unnecessary for the prosecution to prove ejaculation, rupture of the hymen, or the presence of spermatozoa. Partial penetration is sufficient.
49) The Court of Appeal in Mark Oiruri Mose v Republic [2013] eKLR held that proof of penetration does not depend upon the production of spermatozoa and that even slight penetration is sufficient to satisfy the statutory definition. The same principle was reaffirmed in Ali v Republic (Criminal Appeal E294 of 2023) [2025] KEHC 2805 (KLR), where the High Court adopted the reasoning in Bassita v Uganda, Supreme Court Criminal Appeal No. 35 of 1995 , that penetration may be proved by direct or circumstantial evidence and that medical evidence, though desirable, is not invariably indispensable where the complainant's testimony is credible.
50) In the present appeal, the complainant's evidence was unequivocal. She testified that after travelling to Migori, she spent the night in the Appellant's house, slept on the same bed with him, and that they had sexual intercourse. Upon recall by defence counsel, she maintained the same account without wavering during extensive cross-examination.
51) The Appellant argued that the complainant merely stated that they had sexual intercourse without describing the mechanics of the act. I am unable to agree with that submission. A complainant is not required to narrate intimate anatomical details to prove penetration. Once a witness states, in clear and unequivocal terms, that sexual intercourse took place, the court is entitled to interpret that evidence in light of the statutory definition and the surrounding circumstances. Courts have consistently discouraged requiring victims of sexual offences to give unnecessarily graphic descriptions of the sexual act.
52) The medical evidence substantially corroborated the complainant's testimony. PW5, the clinical officer, examined th
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