( Appeal against the Judgment of Hon. V. Karanja - PM, delivered on 20/06/2024 in Iten Senior Principal Magistrate’s Court Criminal (Sexual Offences) Case No. E060 of 2023 )
JUDGMENT
1. The Appellant was charged in the said criminal case with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act , 2006 . The particulars were that on 26/11/2023 at around 1400 hours at [……...] location in Marakwet West Sub-County, within Elgeyo Marakwet County, he intentionally and unlawfully caused his penis to penetrate the vagina of EJ, a girl-child aged 10 years. The Appellant was also charged with the alternative offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 . The particulars were that on the same date, time and place, he intentionally touched the vagina of the same girl aged 10 years.
2. The Appellant pleaded not guilty to the charges, and the case proceeded to full trial, in which the Prosecution called 5 witnesses. At the close of the Prosecution’s case, the trial Court found the Appellant as having a case to answer and put him on his defence. He then gave sworn evidence and called no witnesses. By the said Judgment delivered on 20/06/2024, he was convicted on the main charge, and sentenced to serve 50 years’ imprisonment.
3. Dissatisfied with the decision, the Appellant filed this Appeal on 17/07/2024 against both conviction and sentence. He however subsequently filed the “ Amended Grounds of Appeal ” dated 26/05/2025, which is what he now relies on. Perhaps because of being a lay person, the same is unnecessarily lengthy, verbose, and contains even factual arguments. As a result, it sounds more like Submissions. Quoted verbatim, it is crafted as follows:
i) That the trial Magistrate erred in law and fact when he convicted and sentenced the Appellant while most of the ingredients of the alleged offence were not proved more so the penetration ingredient. The doctor conducted his examination 3 days after the incident meaning no evidence could be recovered for recent penetration. On identification (my) name is Ismael Malabo and not ‘Major’. The prosecution failed in its duty to prove its case beyond reasonable doubt as provided in the Evidence Act Section 107. Reliance is on the authority of William Kiprotich Cheruiyot Vs Republic (2021) where it was held the burden of prove lay with the prosecution.
ii) That the trial Magistrate erred in law and fact by not making a finding that the prosecution did not link him to the alleged offence first she was wrong to hold the view that it was only penetration that could have caused the harm sustained. lt is on record the complainant was playing and sometimes injuries like torn hymen are sustained, epithelial cell presence are ( sic ) a normal occurrence The mother to the complainant could have inflicted the said injuries while beating her up for a confession The injuries that was claimed to be present can also be attributed to other causes.
iii) That the learned trial Magistrate erred in matters of law and fact by not giving the general defence of the Appellant adequate attention that he did not commit the offence. The credibility and truthfulness of the allegation remained shaky as the complainant took long to report the alleged incident after 3 days as she was thoroughly beaten to frame the Appellant This conduct gives credence to (my) assertion that the case was fabricated against (me) to get back at (me) for various reasons namely refusing to re-establish (our) relationship, not giving her money, a relative Policeman was used in the case to fix him.
iv) That the learned trial Magistrate erred in matters law and fact by shifting the burden of proof to him when she mentioned that (I) did not raise my claim on being framed earlier during cross examination and termed it as an afterthought. She went further to contradict herself by stating that the Appellant did not have a duty to prove his case, that he was innocent. (I) raised it at the appropriate time during the cross examination when I asked her whether she had brought the case against (me) for not allowing her back in my life, unfortunately, she did not record it in the proceedings (I)raised it again in my defence.
v) That the Appellant is faulting the police for conducting a very shoddy investigation which does not meet the minimum standard for police investigation procedures. The police did not pursue the exculpatory evidence that the Appellant was previously his wife and had very good reasons of a sour relationship to implicate him with the offence. She had wanted to re-establish the relationship but (I) had moved on after (I) remarried and (my) refusal to give her money.
vi) That the learned trial Magistrate erred in matters of law and fact by not offering him an opportunity to offer a mitigation in his case. This procedural impropriety was as a result of the Court being biased/partial (Article 50 (1) of COK).
vii) That the sentence of 50 years imposed on Appellant was harsh, excessive, inhumane as it affords the psychological torture on the Appellant. The Court disregarded emerging jurisprudences on sentencing, the clear example of this was the Court of appeal case of Evans Ayako Minari in Kisumu which translated a life sentence to be a period of 30 years sentence.
viii) That the learned trial Magistrate erred in matters of law and fact by not applying the principles of sentencing as enumerated in the sentencing policy guidelines 2023 namely proportionality, mitigation accountability, respect for human right among others. The sentence was wrong on principle as his mitigation which was not considered was capable of earning him one third reduction of 50 years sentence. His right to a fair trial were not respected under Section 25 (c) and 50 (2) (p) of COK as the imposed sentence was unusually harsh and excessive notwithstanding the legality and constitutionality of mandatory sentence (supra).
ix) That the trial Magistrate erred in law and fact by not making the complainant was beaten by her mother to implicate the Appellant. The Constitution ones not allow an illegally obtained evidence to be used to find accused to be guilty.
x) That the trial Magistrate erred in law and fact by not making an adverse inference that the prosecution witnesses whose evidence were crucial in this case were never called to testify. A good example are the children who were reported to have played with the complainant [………] and [……..] during the alleged time the incident happened.
xi) That, the trial Magistrate erred in law in not complying with its obligatory duty under section 333 (2) of the Criminal Procedure Code that required him to take into account the period Appellant spent in remand custody while undergoing trial. The appellate Court should order the sentence to commence from 23 rd March 2024 or alternatively reduce the 50 years sentence by 5 months.
xii) That the learned trial Magistrate erred in matters of law and fact in not according the benefit of the least severe sentence as guaranteed in the Constitution in Article 50 (2)(p) of COK. The Court did not consider principles of sentencing which when applied should have seen a reduction of (my) sentence to reasonable terms. On account of this (I) urge the Court to declare the trial process a nullity for not considering this constitutional provision.
xiii) That the learned trial Magistrate erred in matters of law and fact by not complying with provisions of Section 169 of the Criminal Procedure Code on procedures of making a judgement. The omission is not curable under Section 382 of CPC and therefore fatal to this case.
4. Regarding the testimonies presented, the complainant, EJ , a minor, testified as PW1 . Due to her age, she was taken through a voir dire examination upon which the trial Magistrate found that she understood the duty of oath taking and directed that she gives sworn evidence, which she then did. She then testified that she is a grade 4 primary school pupil and that the Appellant is known to her. She stated that on 26/11/2023 at 2.00 pm, she was playing at her uncle’s home with her friends C and F when she was called by “ Major ” who promised to go and buy her sweets, but he then took her to his house, removed her dress and her pant, lay on top of her, and put his “ dudu” into her “ dudu ” and she felt a lot of pain and bled. She testified that he did it 4 times and then told her to go home, which she did, that she was bleeding and since her pant was soaked in blood, she hid it in her uncle’s shamba and went out to play. She stated that her mother later realised that she did not have her pant on and asked her to go and bring it, which she had to do as she went to the uncle’s shamba and brought the pant and showed it to her mother. She testified that it is then that her mother took her to Kapsowar. Regarding her age, she testified that she was born in 2014 and was therefore 9 years old. She then identified the Appellant in Court as the said “ Major ” she had referred to and whom, she reiterated, was their neighbour. She denied that she had been “coached” by her mother on how to come and testify, and stated that she informed her mother about the incident after 3 days, which she had to do because her mother noticed that she did not have her pant on when she asked the complainant to go and bathe. She also stated that her mother beat her up until she disclosed the truth of what had transpired. In re-examination, she stated that the Appellant told her that she would not buy her sweets should she tell anyone about the incident.
5. PW2 was SK , who stated that the complainant is his niece as the complainant’s mother is his sister. He testified that he was at home on 29/11/2023 when the complainant and her mother went to his home and the complainant narrated the incident of her defilement after her mother beat her up. He testified that they then went to the Appellants’ home to inquire about the matter but the Appellant turned violent and instead, went and reported that he had been assaulted. He stated that they then went to the police station and reported the defilement case and were issued with a P3 Form. He testified further that the complainant is 10 years old, and he then identified the Appellant, adding that that he did not have any grudge with him. In cross-examination, he stated that the complainant and her mother went to his home at around 7.00 pm, and that the Appellant scared them with a panga while screaming that they had assaulted him, and they therefore ran away.
6. PW3 was Dr. Wilfred Kimosop who introduced himself as a doctor at AIC Kapsowar Mission Hospital. He testified that the complainant was brought to the facility with a history of defilement, that on examination, she was found to have bruises on the labias at 4 O’clock and 7 O’clock positions, multiple lacerations on the hymen at 5-9 O’clock position, but with no active bleeding or discharge, and that it was more than 72 hours after the incident. He testified further that laboratory test results revealed presence of epithelial cells but no spermatozoa was seen, and urine analysis did not reveal any pus cells or epithelial cells, but there was evidence of forceful penetration. He then produced the P3 and the Post Rape Care Forms Form. In cross-examination, he stated that a penis falls within the category of a “ blunt object ” referred to in the P3 Form, and reiterated that penetration was confirmed.
7. PW4 was EN , who introduced herself as the complainant’s mother. She testified that the complainant was 10 years old having been born on 28/02/2014, and she referred to the complainant’s Certificate of Birth. She stated that on 26/11/2023, she had gone to her grandfather’s house leaving her children at home, and that she returned at 8.00 pm. She testified that she told the complainant to go and bathe but discovered that the complainant had no panty, that she wanted to beat the complainant but she confessed that her panty was wet and that she had thrown it away in a farm. She stated that the complainant then told her that “ Majuu ” had done “ tabia mbaya ”, and that he always used to buy sweets for the children and had told her to follow him to buy sweets, but he instead took her to his house where he did “ tabia mbaya ” to her. She further testified that the Appellant is a neighbour and she identified him in Court as the Appellant. She also stated that she then took the complainant to hospital and reported the matter after which the Appellant was arrested and charged in Court. In cross-examination, she denied that she borrowed any money from the Appellant.
8. PW5 was recorded as Police Constable Ann , who introduced herself as a police officer attached at the Kapsowar Police Station. She testified that the case was minuted to her on 30/11/2023 for investigations, and that she issued the complainant with a P3 Form and recorded statements from witnesses. She stated that the complainant narrated to her how she was playing at her grandfather’s house when the Appellant came and lured her to his house with a promise to buy her sweets, but defiled her thrice, how she then went back to play and on realising that her pant was wet, she removed it and threw it in a banana plantation, how when the complainant went home, her mother realised that she did not have the pant and the complainant disclosed to the mother how she had been defiled by the Appellant. PW5 also testified how the mother narrated to her how they went to the Appellant’s home to inquire about the incident but the Appellant turned hostile and chased them away with a panga. She testified that the Appellant was later arrested and charged, and she also produced the complainant’s Certificate of Birth and stated that the complainant was 10 years old, and also produced the blood-stained biker. In cross-examination, she stated that the biker was brought to the police station, and she agreed that the Appellant went to the police station to report being assaulted by the complainant’s family, which act she however described as an attempted cover by the Appellant of his act defilement. She also insisted that she only arrested the Appellant after conducting investigations, and stated that she did not find any reason why the complainant would frame the Appellant for the offence, and insisted that she interrogated the minor for hours. In re-examination, she stated that the complainant’s mother told her that she and the Appellant had a relationship but they had separated.
9. As aforesaid, at the close of the Prosecution’s case, the trial Court found the Appellant as having a case to answer and put him on his defence. The Appellant then, in his defence, gave a sworn statement, and did not call any other witnesses.
10. The Appellant, testifying as DW1 , stated that on 2/12/2023, the complainant and a police officer came and arrested him on allegations of defilement. He testified that the complainant’s mother was his wife for 1 year but disappeared after he was involved in an accident and got married elsewhere before returning after 2 years, and that she asked him for Kshs 1,000/- to go for a funds drive but he did not have the cash, and he had already married a different woman. He denied having committed the offence and urged that he had lived in the same plot for 20 years and had never been involved in such an act. He wondered how he could have defiled the complainant on a Sunday, and also how the complainant managed to walk back to play if she had been defiled. He also pointed out that the doctor testified that there was no discharge in the complainant’s genitalia, and that he was, himself, never taken for any examination. He also claimed that the Investigating Officer was a relative to the complainant’s mother, and urged that the pant was never taken for any forensic examination, and also pointed out that none of the children who were playing with the complainant were called to testify. In conclusion, he insisted that he was framed as the complainants’ mother wanted him to sell maize so as to raise money and give to her for her brother’s dowry payment.
11. The Appeal was then canvassed by way of written Submissions. The Appellant filed the Submissions dated 3/06/2025, while the State, through Prosecution Counsel Rachel Mwangi , filed the Submissions dated 12/09/2025.
Appellant’s Submissions
12. The Appellant submitted that the ingredients of the offence of defilement were not proved, particularly the medical evidence. He urged that the doctor examined the complainant 3 days after the incident and could not therefore establish any evidence of “ penetration ”, and also that the doctor did not collect any samples that could link the Appellant to the offence. He cited the case of William Cherotich Cherui vs Republic [2021] eKLR . He urged that as there were no other witnesses to the incident, the testimony of the rest of the witnesses was hearsay, and urged that the injuries could have been sustained by other sources other than penile penetration, such as a stick, and that the absence of spermatozoa and bleeding raises doubt on the claim of “ penile penetration ”. He also claimed that he was not given an opportunity to prove his alibi defence, that the charges were fabricated against him, and that the complainant was beaten in order to implicate him because he had refused to give money to her mother. He further claimed that the trial Magistrate shifted the burden of proof to him, that the witnesses committed perjury, and he faulted the trial Court’s finding that the allegation of being framed was an afterthought yet he raised it during cross-examination. He submitted further that the investigations were shoddy as the Investigating Officer never accompanied the complainant to hospital for verification, never pursued the exculpatory evidence that he was in a relationship with the complainant’s mother, that the evidence presented was contradictory and full of discrepancies, and that the reference to him by the complainant as “ Major ” and his mother as “ Majuu ” was an afterthought. Regarding “ identification ”, he contended that the same was not free from error as there was no proof that he was at the scene during the incident. Regarding “ sentence ”, he submitted that it was harsh, cruel and excessive, that the trial Magistrate did not take into account the mitigating factors and his mitigation, that he was not accorded an opportunity for more mitigation, and that the Court did not take into account the time he had spent in custody as required under Section 333(2) of the Criminal Procedure Code as he had been in custody from 23/03/2024.
Respondent’s Submissions
13. On her part, Prosecution Counsel Ms. Rachel Mwangi , urged that the Prosecution proved its case beyond reasonable doubt. She recounted the complainant’s testimony and urged that the same was corroborated by the testimony of the doctor, PW3 , who examined her and established evidence of forceful “ penetration ”. Regarding the ingredient of “ age ”, Counsel cited Section 2 of the Children Act 2022 on the definition of a “ child ” and pointed out the complainant’s testimony that she was born in 2014, which testimony she submitted, was corroborated by the testimony of her mother ( PW4 ), who stated that the complainant was born on 28/02/2014, and also by way of the complainant’s Certificate of Birth produced in evidence. Regarding “ identification ”, she submitted that the complainant positively identified the Appellant as the perpetrator, and who was not a stranger to her as he is a neighbour. She cited the Court of Appeal case of Wanjohi and Another vs Republic [1989] KLR 436 , and also the case of Anjononi and Others vs Republic [1989] KLR . On the issue of “ sentence ”, Counsel denied that the same was harsh or excessive, or illegal. She pointed out that Section 8(2) of the Sexual Offences Act provides for life imprisonment as the only penalty for the offence of defilement, and submitted that the sentence of 50 years’ imprisonment imposed by the trial Magistrate was therefore unconstitutional as the trial Magistrate did not have the capacity to substitute the life sentence stipulated by the law for another sentence. She cited the case of Joshua Gichuki Mwangi NC (2024) KESC34 [KLR ], and also the Supreme Court case of Republic v Ayako (Petition E002 of 2024) 20251 KESC 20 (KLR) . Counsel submitted that the legal implication of the decisions cited is that Courts must strictly apply mandatory sentences as provided by the law, unless and until Parliament amends the law, and that Courts cannot, therefore, replace life imprisonment with a fixed term, as the Courts are restricted from altering sentences through reinterpretation, unless a constitutional issue is properly raised and addressed through the correct legal process. Counsel therefore urged the Court to enhance the sentence of 50 years imprisonment to life imprisonment.
Determination
14. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions, bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses. (See Okeno vs. Republic [1972] E.A 32) .
15. The issues that arise for determination in this matter are evidently the following:
a) Whether the defilement charge against the Appellant was proved beyond reasonable doubt.
b) Whether the sentence of life imprisonment imposed against the Appellant was justified.
16. As is well-known, for the offence of defilement to be established, 3 ingredients must be proved, namely, (i) the age of the victim, (ii) penetration and (iii) positive identification of the offender (see the case of George Opondo Olunga v Republic [2016] eKLR) , and also the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 .
17. In this case, the complainant’s Certificate of Birth produced in evidence indicates that she was born on 28/02/2014. There being no contrary evidence, and the alleged offence having reportedly been committed on 26/11/2023, it follows that the minor was indeed, at the material time, about 9 years and 9 months years in age, thus within the category of “ a child aged eleven years or less ” stipulated in Section 8(2) of the Sexual Offences Act . In any case, the trial Court’s finding on the complainant’s age has not been seriously challenged in this Appeal.
18. In respect to “ penetration ”, Section 2(1 ) of the Sexual Offences Act defines the term as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
19. In this case, medical evidence was provided by PW3 , Dr. Wilfred Kimosop , who testified that he noted the presence of bruises on both the complainant’s labias , and also multiple lacerations on her hymen. He also testified that he examined the complainant on 30/11/2023 while the act of defilement was reported to have taken place 26/11/2023, 3 days before. It was also the doctor’s opinion that forceful penetration had occurred and that the complainant had therefore been defiled. These findings and conclusion are also apparent in the P3 Report produced. The above findings, in my view, sufficiently established that “ penetration ” had occurred. Contrary to the Appellant’s submission, the mere absence of evidence of discharge in the genitalia could not rule out “ penetration ” considering the 3 days lapse.
20. There being no evidence, medical or otherwise, to the contrary, there was no material before the Court to justify departing from the medical evidence produced by the doctor. I therefore have no reason to interfere with the trial Magistrate’s finding that “ penetration ” was proved, and that the complainant was defiled.
21. The complainant herself testified that she was playing at her uncle’s home with her friends when she was lured by the Appellant with the promise to buy for her sweets, but he then took her to his house, removed her dress and her pant, lay on top of her, and put his “ dudu” into her “ dudu ” and that she felt a lot of pain and bled. She testified that he did it 4 times and then told her to go home, that she was bleeding and since her pant was soaked in blood, she hid it in her uncle’s shamba and went out to play. She stated that her mother later realised that she did not have her pant on and asked her to go and bring it. She stated that she thus returned to the uncle’s shamba, retrieved the pant, brought it home and showed it to her mother.
22. Reading through the complainant’s testimony, I find her to have been quite cogent and firm, and her testimony was also not shaken or contradicted in cross-examination. To me, she sounded to be a credible and believable witness. I therefore find no fault by the trial Magistrate in believing the complainant’s testimony.
23. Regarding the minor’s use of the term “ tabia mbaya ” and “ dudu ”, the Court of Appeal, in the case of Muganga Chilejo Saha v Republic [2017] eKLR, acknowledged that this is an acceptable description of defilement. In accepting that in Kenya, the society has adopted such terms as a euphemism to mean phrases generally used by children, and even adults, to describe sexual acts, the Court of Appeal stated as follows:
“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a Court room. If the trend in the decided cases is anything to go by, Courts in this country have generally accepted the use of euphemisms like, “ alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016 ), “he pricked me with a thorn from the front part of this body.”, ( Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015 ), “he used his thing for peeing”, ( David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015 ), “he inserted his " dudu " into my " mapaja ", ( Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016 ), “he used his munyunyu”, ( Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011 ), as apt description of acts of defilement. We, however, need to remind trial Courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M V R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015 , among several others. Trial Courts should record as nearly as possible what the child says happened to him or her. (emphasis added).”
24. The contention by the Appellant that the complainant would not have been able to walk home or return to play if she had been defiled is also not a serious one. It does not automatically follow that every victim of defilement would be unable to walk after the act. His allegations that the injuries could have been caused by another source such as a stick, though theoretically correct, is also unfounded in that nothing was presented before the trial Court to lay a basis for suspicion that this is what could have actually happened in this case.
25. Regarding the Appellant’s contention that “ penetration ” was not proved simply because no spermatozoa or discharge was found upon examination of the complainant, the Court of Appeal in the case of Mark Oiruri Mose v R (2013 eKLR , guided as follows:
“….. In any event the offence is against penetration of a minor and penetration does not necessarily end in 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 if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.”
26. It is therefore clear that in the absence of any other exonerating evidence, the mere absence of spermatozoa within the genitalia of the defiled complainant cannot by itself vitiate a conviction. In this case, the 3 days lapse before the examination was conducted was sufficient explanation for the absence of traces of spermatozoa.
27. On the issue of identification, the Court of Appeal in the case of Cleophas Wamunga v Republic [1989] eKLR stated that:
“ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.
28. In this case, there is no dispute that the Appellant is well known to the complainant as he was a neighbour. The Appellant himself testified that the complainant’s mother was his “wife” with whom he lived for 1 year. The identification evidence in this case is therefore one of recognition, rather than identification of a stranger. In respect to this nature of identification, the Court of Appeal, in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR , stated that:
“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. …………………….
29. I also agree
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JUDGMENT
1. The Appellant was charged in the said criminal case with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act , 2006 . The particulars were that on 26/11/2023 at around 1400 hours at [……...] location in Marakwet West Sub-County, within Elgeyo Marakwet County, he intentionally and unlawfully caused his penis to penetrate the vagina of EJ, a girl-child aged 10 years. The Appellant was also charged with the alternative offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 . The particulars were that on the same date, time and place, he intentionally touched the vagina of the same girl aged 10 years.
2. The Appellant pleaded not guilty to the charges, and the case proceeded to full trial, in which the Prosecution called 5 witnesses. At the close of the Prosecution’s case, the trial Court found the Appellant as having a case to answer and put him on his defence. He then gave sworn evidence and called no witnesses. By the said Judgment delivered on 20/06/2024, he was convicted on the main charge, and sentenced to serve 50 years’ imprisonment.
3. Dissatisfied with the decision, the Appellant filed this Appeal on 17/07/2024 against both conviction and sentence. He however subsequently filed the “ Amended Grounds of Appeal ” dated 26/05/2025, which is what he now relies on. Perhaps because of being a lay person, the same is unnecessarily lengthy, verbose, and contains even factual arguments. As a result, it sounds more like Submissions. Quoted verbatim, it is crafted as follows:
i) That the trial Magistrate erred in law and fact when he convicted and sentenced the Appellant while most of the ingredients of the alleged offence were not proved more so the penetration ingredient. The doctor conducted his examination 3 days after the incident meaning no evidence could be recovered for recent penetration. On identification (my) name is Ismael Malabo and not ‘Major’. The prosecution failed in its duty to prove its case beyond reasonable doubt as provided in the Evidence Act Section 107. Reliance is on the authority of William Kiprotich Cheruiyot Vs Republic (2021) where it was held the burden of prove lay with the prosecution.
ii) That the trial Magistrate erred in law and fact by not making a finding that the prosecution did not link him to the alleged offence first she was wrong to hold the view that it was only penetration that could have caused the harm sustained. lt is on record the complainant was playing and sometimes injuries like torn hymen are sustained, epithelial cell presence are ( sic ) a normal occurrence The mother to the complainant could have inflicted the said injuries while beating her up for a confession The injuries that was claimed to be present can also be attributed to other causes.
iii) That the learned trial Magistrate erred in matters of law and fact by not giving the general defence of the Appellant adequate attention that he did not commit the offence. The credibility and truthfulness of the allegation remained shaky as the complainant took long to report the alleged incident after 3 days as she was thoroughly beaten to frame the Appellant This conduct gives credence to (my) assertion that the case was fabricated against (me) to get back at (me) for various reasons namely refusing to re-establish (our) relationship, not giving her money, a relative Policeman was used in the case to fix him.
iv) That the learned trial Magistrate erred in matters law and fact by shifting the burden of proof to him when she mentioned that (I) did not raise my claim on being framed earlier during cross examination and termed it as an afterthought. She went further to contradict herself by stating that the Appellant did not have a duty to prove his case, that he was innocent. (I) raised it at the appropriate time during the cross examination when I asked her whether she had brought the case against (me) for not allowing her back in my life, unfortunately, she did not record it in the proceedings (I)raised it again in my defence.
v) That the Appellant is faulting the police for conducting a very shoddy investigation which does not meet the minimum standard for police investigation procedures. The police did not pursue the exculpatory evidence that the Appellant was previously his wife and had very good reasons of a sour relationship to implicate him with the offence. She had wanted to re-establish the relationship but (I) had moved on after (I) remarried and (my) refusal to give her money.
vi) That the learned trial Magistrate erred in matters of law and fact by not offering him an opportunity to offer a mitigation in his case. This procedural impropriety was as a result of the Court being biased/partial (Article 50 (1) of COK).
vii) That the sentence of 50 years imposed on Appellant was harsh, excessive, inhumane as it affords the psychological torture on the Appellant. The Court disregarded emerging jurisprudences on sentencing, the clear example of this was the Court of appeal case of Evans Ayako Minari in Kisumu which translated a life sentence to be a period of 30 years sentence.
viii) That the learned trial Magistrate erred in matters of law and fact by not applying the principles of sentencing as enumerated in the sentencing policy guidelines 2023 namely proportionality, mitigation accountability, respect for human right among others. The sentence was wrong on principle as his mitigation which was not considered was capable of earning him one third reduction of 50 years sentence. His right to a fair trial were not respected under Section 25 (c) and 50 (2) (p) of COK as the imposed sentence was unusually harsh and excessive notwithstanding the legality and constitutionality of mandatory sentence (supra).
ix) That the trial Magistrate erred in law and fact by not making the complainant was beaten by her mother to implicate the Appellant. The Constitution ones not allow an illegally obtained evidence to be used to find accused to be guilty.
x) That the trial Magistrate erred in law and fact by not making an adverse inference that the prosecution witnesses whose evidence were crucial in this case were never called to testify. A good example are the children who were reported to have played with the complainant [………] and [……..] during the alleged time the incident happened.
xi) That, the trial Magistrate erred in law in not complying with its obligatory duty under section 333 (2) of the Criminal Procedure Code that required him to take into account the period Appellant spent in remand custody while undergoing trial. The appellate Court should order the sentence to commence from 23 rd March 2024 or alternatively reduce the 50 years sentence by 5 months.
xii) That the learned trial Magistrate erred in matters of law and fact in not according the benefit of the least severe sentence as guaranteed in the Constitution in Article 50 (2)(p) of COK. The Court did not consider principles of sentencing which when applied should have seen a reduction of (my) sentence to reasonable terms. On account of this (I) urge the Court to declare the trial process a nullity for not considering this constitutional provision.
xiii) That the learned trial Magistrate erred in matters of law and fact by not complying with provisions of Section 169 of the Criminal Procedure Code on procedures of making a judgement. The omission is not curable under Section 382 of CPC and therefore fatal to this case.
4. Regarding the testimonies presented, the complainant, EJ , a minor, testified as PW1 . Due to her age, she was taken through a voir dire examination upon which the trial Magistrate found that she understood the duty of oath taking and directed that she gives sworn evidence, which she then did. She then testified that she is a grade 4 primary school pupil and that the Appellant is known to her. She stated that on 26/11/2023 at 2.00 pm, she was playing at her uncle’s home with her friends C and F when she was called by “ Major ” who promised to go and buy her sweets, but he then took her to his house, removed her dress and her pant, lay on top of her, and put his “ dudu” into her “ dudu ” and she felt a lot of pain and bled. She testified that he did it 4 times and then told her to go home, which she did, that she was bleeding and since her pant was soaked in blood, she hid it in her uncle’s shamba and went out to play. She stated that her mother later realised that she did not have her pant on and asked her to go and bring it, which she had to do as she went to the uncle’s shamba and brought the pant and showed it to her mother. She testified that it is then that her mother took her to Kapsowar. Regarding her age, she testified that she was born in 2014 and was therefore 9 years old. She then identified the Appellant in Court as the said “ Major ” she had referred to and whom, she reiterated, was their neighbour. She denied that she had been “coached” by her mother on how to come and testify, and stated that she informed her mother about the incident after 3 days, which she had to do because her mother noticed that she did not have her pant on when she asked the complainant to go and bathe. She also stated that her mother beat her up until she disclosed the truth of what had transpired. In re-examination, she stated that the Appellant told her that she would not buy her sweets should she tell anyone about the incident.
5. PW2 was SK , who stated that the complainant is his niece as the complainant’s mother is his sister. He testified that he was at home on 29/11/2023 when the complainant and her mother went to his home and the complainant narrated the incident of her defilement after her mother beat her up. He testified that they then went to the Appellants’ home to inquire about the matter but the Appellant turned violent and instead, went and reported that he had been assaulted. He stated that they then went to the police station and reported the defilement case and were issued with a P3 Form. He testified further that the complainant is 10 years old, and he then identified the Appellant, adding that that he did not have any grudge with him. In cross-examination, he stated that the complainant and her mother went to his home at around 7.00 pm, and that the Appellant scared them with a panga while screaming that they had assaulted him, and they therefore ran away.
6. PW3 was Dr. Wilfred Kimosop who introduced himself as a doctor at AIC Kapsowar Mission Hospital. He testified that the complainant was brought to the facility with a history of defilement, that on examination, she was found to have bruises on the labias at 4 O’clock and 7 O’clock positions, multiple lacerations on the hymen at 5-9 O’clock position, but with no active bleeding or discharge, and that it was more than 72 hours after the incident. He testified further that laboratory test results revealed presence of epithelial cells but no spermatozoa was seen, and urine analysis did not reveal any pus cells or epithelial cells, but there was evidence of forceful penetration. He then produced the P3 and the Post Rape Care Forms Form. In cross-examination, he stated that a penis falls within the category of a “ blunt object ” referred to in the P3 Form, and reiterated that penetration was confirmed.
7. PW4 was EN , who introduced herself as the complainant’s mother. She testified that the complainant was 10 years old having been born on 28/02/2014, and she referred to the complainant’s Certificate of Birth. She stated that on 26/11/2023, she had gone to her grandfather’s house leaving her children at home, and that she returned at 8.00 pm. She testified that she told the complainant to go and bathe but discovered that the complainant had no panty, that she wanted to beat the complainant but she confessed that her panty was wet and that she had thrown it away in a farm. She stated that the complainant then told her that “ Majuu ” had done “ tabia mbaya ”, and that he always used to buy sweets for the children and had told her to follow him to buy sweets, but he instead took her to his house where he did “ tabia mbaya ” to her. She further testified that the Appellant is a neighbour and she identified him in Court as the Appellant. She also stated that she then took the complainant to hospital and reported the matter after which the Appellant was arrested and charged in Court. In cross-examination, she denied that she borrowed any money from the Appellant.
8. PW5 was recorded as Police Constable Ann , who introduced herself as a police officer attached at the Kapsowar Police Station. She testified that the case was minuted to her on 30/11/2023 for investigations, and that she issued the complainant with a P3 Form and recorded statements from witnesses. She stated that the complainant narrated to her how she was playing at her grandfather’s house when the Appellant came and lured her to his house with a promise to buy her sweets, but defiled her thrice, how she then went back to play and on realising that her pant was wet, she removed it and threw it in a banana plantation, how when the complainant went home, her mother realised that she did not have the pant and the complainant disclosed to the mother how she had been defiled by the Appellant. PW5 also testified how the mother narrated to her how they went to the Appellant’s home to inquire about the incident but the Appellant turned hostile and chased them away with a panga. She testified that the Appellant was later arrested and charged, and she also produced the complainant’s Certificate of Birth and stated that the complainant was 10 years old, and also produced the blood-stained biker. In cross-examination, she stated that the biker was brought to the police station, and she agreed that the Appellant went to the police station to report being assaulted by the complainant’s family, which act she however described as an attempted cover by the Appellant of his act defilement. She also insisted that she only arrested the Appellant after conducting investigations, and stated that she did not find any reason why the complainant would frame the Appellant for the offence, and insisted that she interrogated the minor for hours. In re-examination, she stated that the complainant’s mother told her that she and the Appellant had a relationship but they had separated.
9. As aforesaid, at the close of the Prosecution’s case, the trial Court found the Appellant as having a case to answer and put him on his defence. The Appellant then, in his defence, gave a sworn statement, and did not call any other witnesses.
10. The Appellant, testifying as DW1 , stated that on 2/12/2023, the complainant and a police officer came and arrested him on allegations of defilement. He testified that the complainant’s mother was his wife for 1 year but disappeared after he was involved in an accident and got married elsewhere before returning after 2 years, and that she asked him for Kshs 1,000/- to go for a funds drive but he did not have the cash, and he had already married a different woman. He denied having committed the offence and urged that he had lived in the same plot for 20 years and had never been involved in such an act. He wondered how he could have defiled the complainant on a Sunday, and also how the complainant managed to walk back to play if she had been defiled. He also pointed out that the doctor testified that there was no discharge in the complainant’s genitalia, and that he was, himself, never taken for any examination. He also claimed that the Investigating Officer was a relative to the complainant’s mother, and urged that the pant was never taken for any forensic examination, and also pointed out that none of the children who were playing with the complainant were called to testify. In conclusion, he insisted that he was framed as the complainants’ mother wanted him to sell maize so as to raise money and give to her for her brother’s dowry payment.
11. The Appeal was then canvassed by way of written Submissions. The Appellant filed the Submissions dated 3/06/2025, while the State, through Prosecution Counsel Rachel Mwangi , filed the Submissions dated 12/09/2025.
Appellant’s Submissions
12. The Appellant submitted that the ingredients of the offence of defilement were not proved, particularly the medical evidence. He urged that the doctor examined the complainant 3 days after the incident and could not therefore establish any evidence of “ penetration ”, and also that the doctor did not collect any samples that could link the Appellant to the offence. He cited the case of William Cherotich Cherui vs Republic [2021] eKLR . He urged that as there were no other witnesses to the incident, the testimony of the rest of the witnesses was hearsay, and urged that the injuries could have been sustained by other sources other than penile penetration, such as a stick, and that the absence of spermatozoa and bleeding raises doubt on the claim of “ penile penetration ”. He also claimed that he was not given an opportunity to prove his alibi defence, that the charges were fabricated against him, and that the complainant was beaten in order to implicate him because he had refused to give money to her mother. He further claimed that the trial Magistrate shifted the burden of proof to him, that the witnesses committed perjury, and he faulted the trial Court’s finding that the allegation of being framed was an afterthought yet he raised it during cross-examination. He submitted further that the investigations were shoddy as the Investigating Officer never accompanied the complainant to hospital for verification, never pursued the exculpatory evidence that he was in a relationship with the complainant’s mother, that the evidence presented was contradictory and full of discrepancies, and that the reference to him by the complainant as “ Major ” and his mother as “ Majuu ” was an afterthought. Regarding “ identification ”, he contended that the same was not free from error as there was no proof that he was at the scene during the incident. Regarding “ sentence ”, he submitted that it was harsh, cruel and excessive, that the trial Magistrate did not take into account the mitigating factors and his mitigation, that he was not accorded an opportunity for more mitigation, and that the Court did not take into account the time he had spent in custody as required under Section 333(2) of the Criminal Procedure Code as he had been in custody from 23/03/2024.
Respondent’s Submissions
13. On her part, Prosecution Counsel Ms. Rachel Mwangi , urged that the Prosecution proved its case beyond reasonable doubt. She recounted the complainant’s testimony and urged that the same was corroborated by the testimony of the doctor, PW3 , who examined her and established evidence of forceful “ penetration ”. Regarding the ingredient of “ age ”, Counsel cited Section 2 of the Children Act 2022 on the definition of a “ child ” and pointed out the complainant’s testimony that she was born in 2014, which testimony she submitted, was corroborated by the testimony of her mother ( PW4 ), who stated that the complainant was born on 28/02/2014, and also by way of the complainant’s Certificate of Birth produced in evidence. Regarding “ identification ”, she submitted that the complainant positively identified the Appellant as the perpetrator, and who was not a stranger to her as he is a neighbour. She cited the Court of Appeal case of Wanjohi and Another vs Republic [1989] KLR 436 , and also the case of Anjononi and Others vs Republic [1989] KLR . On the issue of “ sentence ”, Counsel denied that the same was harsh or excessive, or illegal. She pointed out that Section 8(2) of the Sexual Offences Act provides for life imprisonment as the only penalty for the offence of defilement, and submitted that the sentence of 50 years’ imprisonment imposed by the trial Magistrate was therefore unconstitutional as the trial Magistrate did not have the capacity to substitute the life sentence stipulated by the law for another sentence. She cited the case of Joshua Gichuki Mwangi NC (2024) KESC34 [KLR ], and also the Supreme Court case of Republic v Ayako (Petition E002 of 2024) 20251 KESC 20 (KLR) . Counsel submitted that the legal implication of the decisions cited is that Courts must strictly apply mandatory sentences as provided by the law, unless and until Parliament amends the law, and that Courts cannot, therefore, replace life imprisonment with a fixed term, as the Courts are restricted from altering sentences through reinterpretation, unless a constitutional issue is properly raised and addressed through the correct legal process. Counsel therefore urged the Court to enhance the sentence of 50 years imprisonment to life imprisonment.
Determination
14. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions, bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses. (See Okeno vs. Republic [1972] E.A 32) .
15. The issues that arise for determination in this matter are evidently the following:
a) Whether the defilement charge against the Appellant was proved beyond reasonable doubt.
b) Whether the sentence of life imprisonment imposed against the Appellant was justified.
16. As is well-known, for the offence of defilement to be established, 3 ingredients must be proved, namely, (i) the age of the victim, (ii) penetration and (iii) positive identification of the offender (see the case of George Opondo Olunga v Republic [2016] eKLR) , and also the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 .
17. In this case, the complainant’s Certificate of Birth produced in evidence indicates that she was born on 28/02/2014. There being no contrary evidence, and the alleged offence having reportedly been committed on 26/11/2023, it follows that the minor was indeed, at the material time, about 9 years and 9 months years in age, thus within the category of “ a child aged eleven years or less ” stipulated in Section 8(2) of the Sexual Offences Act . In any case, the trial Court’s finding on the complainant’s age has not been seriously challenged in this Appeal.
18. In respect to “ penetration ”, Section 2(1 ) of the Sexual Offences Act defines the term as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
19. In this case, medical evidence was provided by PW3 , Dr. Wilfred Kimosop , who testified that he noted the presence of bruises on both the complainant’s labias , and also multiple lacerations on her hymen. He also testified that he examined the complainant on 30/11/2023 while the act of defilement was reported to have taken place 26/11/2023, 3 days before. It was also the doctor’s opinion that forceful penetration had occurred and that the complainant had therefore been defiled. These findings and conclusion are also apparent in the P3 Report produced. The above findings, in my view, sufficiently established that “ penetration ” had occurred. Contrary to the Appellant’s submission, the mere absence of evidence of discharge in the genitalia could not rule out “ penetration ” considering the 3 days lapse.
20. There being no evidence, medical or otherwise, to the contrary, there was no material before the Court to justify departing from the medical evidence produced by the doctor. I therefore have no reason to interfere with the trial Magistrate’s finding that “ penetration ” was proved, and that the complainant was defiled.
21. The complainant herself testified that she was playing at her uncle’s home with her friends when she was lured by the Appellant with the promise to buy for her sweets, but he then took her to his house, removed her dress and her pant, lay on top of her, and put his “ dudu” into her “ dudu ” and that she felt a lot of pain and bled. She testified that he did it 4 times and then told her to go home, that she was bleeding and since her pant was soaked in blood, she hid it in her uncle’s shamba and went out to play. She stated that her mother later realised that she did not have her pant on and asked her to go and bring it. She stated that she thus returned to the uncle’s shamba, retrieved the pant, brought it home and showed it to her mother.
22. Reading through the complainant’s testimony, I find her to have been quite cogent and firm, and her testimony was also not shaken or contradicted in cross-examination. To me, she sounded to be a credible and believable witness. I therefore find no fault by the trial Magistrate in believing the complainant’s testimony.
23. Regarding the minor’s use of the term “ tabia mbaya ” and “ dudu ”, the Court of Appeal, in the case of Muganga Chilejo Saha v Republic [2017] eKLR, acknowledged that this is an acceptable description of defilement. In accepting that in Kenya, the society has adopted such terms as a euphemism to mean phrases generally used by children, and even adults, to describe sexual acts, the Court of Appeal stated as follows:
“Naturally children who are victims of sexual abuse are likely to be devastated by the experience and given their innocence, they may feel shy, embarrassed and ashamed to relate that experience before people and more so in a Court room. If the trend in the decided cases is anything to go by, Courts in this country have generally accepted the use of euphemisms like, “ alinifanyia tabia mbaya”, (IE V R, Kapenguria H.C Cr. Case No. 11 of 2016 ), “he pricked me with a thorn from the front part of this body.”, ( Samuel Mwangi Kinyati v R, Nanyuki HC.CR.A. NO. 48 of 2015 ), “he used his thing for peeing”, ( David Otieno Alex v R, Homa Bay H.C Cr Ap. No. 44 of 2015 ), “he inserted his " dudu " into my " mapaja ", ( Joses Kaburu v R, Meru H.C Cr. Case No. 196 of 2016 ), “he used his munyunyu”, ( Thomas Alugha Ndegwa, Nbi H.C. Cr. Appeal No. 116 of 2011 ), as apt description of acts of defilement. We, however, need to remind trial Courts that the use of certain words and phrases like “he defiled me”, which are sometimes attributed to child victims, are inappropriate, technical and unlikely to be used by them in their testimony. See A M V R Voi H.C Cr. App. No. 35 of 2014, EMM V R Mombasa H.C Cr. Case No. 110 of 2015 , among several others. Trial Courts should record as nearly as possible what the child says happened to him or her. (emphasis added).”
24. The contention by the Appellant that the complainant would not have been able to walk home or return to play if she had been defiled is also not a serious one. It does not automatically follow that every victim of defilement would be unable to walk after the act. His allegations that the injuries could have been caused by another source such as a stick, though theoretically correct, is also unfounded in that nothing was presented before the trial Court to lay a basis for suspicion that this is what could have actually happened in this case.
25. Regarding the Appellant’s contention that “ penetration ” was not proved simply because no spermatozoa or discharge was found upon examination of the complainant, the Court of Appeal in the case of Mark Oiruri Mose v R (2013 eKLR , guided as follows:
“….. In any event the offence is against penetration of a minor and penetration does not necessarily end in 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 if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.”
26. It is therefore clear that in the absence of any other exonerating evidence, the mere absence of spermatozoa within the genitalia of the defiled complainant cannot by itself vitiate a conviction. In this case, the 3 days lapse before the examination was conducted was sufficient explanation for the absence of traces of spermatozoa.
27. On the issue of identification, the Court of Appeal in the case of Cleophas Wamunga v Republic [1989] eKLR stated that:
“ Evidence of visual identification in criminal cases can bring about miscarriage of justice and it is of vital importance that such evidence is examined carefully to minimize this danger. Whenever the case against a defendant wholly depends or to a great extent on the correctness of more identifications of the accused which he alleges to be mistaken, the Court must warn itself of the special need for caution before convicting the defendant in reliance on the correctness of the identification”.
28. In this case, there is no dispute that the Appellant is well known to the complainant as he was a neighbour. The Appellant himself testified that the complainant’s mother was his “wife” with whom he lived for 1 year. The identification evidence in this case is therefore one of recognition, rather than identification of a stranger. In respect to this nature of identification, the Court of Appeal, in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR , stated that:
“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. …………………….
29. I also agree
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