1. James Kinuthia Njoroge, the Appellant, was charged with the offence of Defilement of a child contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Particulars of the offence were that on 2 nd May, 2022, at 0600 hours at Visions Academy in Subukia Sub-County within Nakuru County intentionally and unlawfully caused his male organ namely penis to penetrate the anus of FMN a child aged 12 years.
2. In the alternative, he faced a charge of Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. Particulars of the offence being that on 2 nd May, 2022, at 0600 hours at Visions Academy in Subukia Sub-County within Nakuru County intentionally and unlawfully touched the anus of FMN a child aged 12 years with his penis.
3. Having denied the charges, he was taken through full trial, found guilty, on the main charge, convicted and sentenced to serve ten (10) years imprisonment.
4. Aggrieved, the Appellant appeals on grounds as follows;
1) That the learned trial Magistrate erred in both law and in fact by finding conviction against the Appellant against the weight of evidence on record.
2) That the learned trial Magistrate erred in both law and in fact by failing to appreciate that the main ingredients of the offence charged had not been proven beyond reasonable doubt by the prosecution.
3) That the learned trial Magistrate erred in both law and in fact by failing to find that the evidence by the prosecution did not support the charges against the Appellant.
4) That the learned trial Magistrate erred in law and in fact in failing to find that the Complainant’s evidence was not corroborated in any material way by direct evidence of the other prosecution witness.
5) That the learned trial Magistrate erred in law and in fact by finding that the prosecution had proven its case while the prosecution failed to call very material witnesses in the case but failed to do so.
6) That the learned trial Magistrate erred in law and in fact by considering the evidence of the prosecution in total disregard to that of the defence.
7) That the trial Magistrate erred in both law and fact by finding a conviction against the Appellant when there were glaring contradictions in the evidence of prosecution witnesses.
8) That the conduct of the trial herein and the subsequent judgment and conviction of the Appellant on the charges before court was oppressive and caused a serious miscarriage of justice.
9) That the learned trial Magistrate erred in both law and fact by receiving the evidence of the Complainant without fully complying with the provisions of Section 19 of the Oaths and Statutory Declarations Act Cap 15 of the Laws of Kenya.
10) That the conviction and sentence of the Appellant was not founded on sound principals of the law, was oppressive and caused a miscarriage of justice and that sentence was manifestly harsh and excessive in view of the circumstances of this case.
5. Briefly, facts of the case were that the Complainant, then a pupil at Visions Academy in Grade 5, on 2 nd May, 2022, went to class with other pupils. At about 6.50am or thereabout, PW4 M.W. went to his class and informed him that he was required by the Appellant. He complied and went to see the Appellant, his teacher and boys’ patron who alleged that he had not taken a bath but he told him that contrary to the allegations he had. He told him to go back to class. Thereafter, he sent another girl to call him. He complied and found the Appellant in the staff room and he instructed him to go and fetch water as he wanted to wash him himself. Indeed, he fetched water and took to the bathroom at the dormitory.
6. Having been dressed in uniform he removed his trouser and the Appellant arrived and told him to get to the bed so that he could wash his head. He asked him whether he ordinarily showers with his shorts on and he heard him unzip his trouser, then he penetrated his anus with his penis. He told him that he was feeling pain then he released him and told him to dress up and go to class, which he did and told PW3 MWK of what had befallen him who advised him to report the matter to the school Director. The matter was escalated, the Complainant was subjected to medical examination while the police on receiving the report arrested the Appellant. Investigations were conducted which culminated into the Appellant being arraigned in court.
7. Upon being placed on his defence, the Appellant testified that on the material day, which was a holiday, there was a parents’ meeting, hence pupils woke up at 6.00am, did cleaning and they went for breakfast. That he went to the assembly and did the briefing and then proceeded to arrange for the parents’ meeting. That he was the teacher on duty jointly with Madam Lucy Ngeno. That no incident was reported to either of them and he did saw the Complainant at 8.40am inside his class, he was normal and did not have any problem.
8. That he was informed of the incident six days later on a Sunday long after he continued discharging his usual duties. That the boys’ bathrooms were inside the dormitory and had no doors unlike the toilets. That ordinarily the children would bathe at 6.00pm but those who used to wet beds would shower in the morning. He denied having asked the complainant to take a shower or sending Mary to go call him from the class. That PW4 recorded a statement a year later after he was charged. He denied having talked to the Deputy Headteacher or having been called by the Headteacher. That the Headteacher called him to go to school and since he needed to collect a note book from school, he went only to be arrested.
9. On cross – examination he denied having caned the pupil or having seen him being caned. He admitted having been on duty on 2 nd May, 2019. That they were allowed to enter the dormitory and he checked on cleaning. He denied having any issue with the parents of the victim.
10. The Appellant called a witness Samuel Gitau Kamau, his friend of many years. He stated that when the Appellant was arrested he went to Kirengero Police Station to follow up on his case. And, when he made inquiries he was arrested and placed in custody where he stayed for three (3) hours. And, on being released he was not told the reasons for his arrest. But, the police wanted parties to reconcile which must have been some grudge.
11. The appeal was canvassed through written submissions. The Appellant deposed grounds 1, 2, 3, 4 and 6 jointly. It is urged that when the alleged incident occurred the complainant had been in school for only four (4) months having been transferred from Machakos Group of Schools and that the Complainant never wanted to join the school in the first place as disclosed in cross – examination. That the examination of the buttocks by the Headteacher who found only pimples was contradicted by that of the mother of the victim who alleged that she found wounds and injuries. And on examination by Dr. Bahati the fissure found on the anus of PW1 could as well have resulted from constipation or passing of stool.
12. That PW1 was not creditworthy and the Appellant was not positively identified. In this respect reliance was placed on the case of Joseph Ndung’u Kimanyi v Republic [1979] eKLR where the Court of Appeal stated that;
“The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
13. Further, that the Appellant was taken for medical tests that were conveniently not availed to court. Reliance in that respect was placed on Mohamed v Republic [2023] KEHC KLR where the court observed that;
“This being the case, I find that the medical evidence adduced at the trial court was not sufficiently corroborative of the fact that the minor was penetrated. I find that other than the evidence of PW-3, there is no other evidence pointing to the appellant’s culpability in the offence.”
14. And, in Ngatia v Republic (Criminal Appeal E003 of 2024) [2025] KEHC (KLR) where the court stated that;
“This evidence confirms the explanation by the Appellant that he was subjected to medical examination. The question lingering is what the results were and why they were not adduced in evidence. The prosecution is constitutionally obligated to disclose exculpatory evidence that may help the court reach a just decision. The unanswered question would be why the Appellant was subjected to medical evidence but the results were not introduced in evidence. The inference drawn in that the evidence may have either exonerated the Appellant or weakened the prosecution case.”
15. The Appellant questions why several hospitals close to the school were disregarded and the Appellant and Complainant taken to Bahati Sub-County Hospital that was far away.
16. That the defence was dismissed without any consideration which was prejudicial to the Appellant’s case. And hence the prosecution failed to positively show that the Appellant was the perpetrator of the offence.
17. On ground 5 it is urged that the prosecution failed to call crucial witnesses, Marcus Junior Wangui, the Deputy Headteacher, Peter Ndung’u and the teacher on duty Madam Lucy and that no explanation was given why the investigation officer PW7, only recorded the statement of PW4 a year after the incident allegedly took place. And, Grade 1 boys who were in the bathroom should have been called to testify.
18. The Appellant urged that there were inconsistencies on the prosecution’s case; evidence of the Complainant and other minor’s evidence raised questions on credibility and competency which established lack of understanding of the nature of oath contrary to the finding of the trial court.
19. The Respondent in opposition of the appeal, through Ms. Mumbe learned prosecution counsel submitted that the testimony of the Complainant that he was penetrated in the anal area was supported by evidence of the doctor who noted that the injuries sustained were related to an act of penetration as per the victim’s testimony. On the question of penetration reliance was placed on the case of Eric Onyango Ondeng v Republic [2014] eKLR where it was held that penetration did not need to be deep inside a victim’s organ or need for presence of spermatozoa and that it was sufficient that penetration be only on the surface. That evidence adduced proved penetration.
That during trial, the defence associated the victim’s injuries with caning, but the trial court found that the injuries were not as a result of penetration but not caning ; and; there was no evidence that the victim had been caned on the material date. On identification, it was urged that the victim who was called by a fellow pupil to go and see the Appellant, identified him as the perpetrator.
On sentence it is urged that the trial court imposed on illegal sentence of 10 years imprisonment it is submitted that the sentence provided for the offence is not less than 20 years imprisonment.
On age, reliance was placed on the case of Edwin Nyambogo Onsungo v Republic (2016) eKLR and urged that during the commission of the offence the victim was 12 years.
20. This being a first appellate court it is duty bound to re-examine evidence adduced at trial and scrutinize the findings bearing in mind that it did not have the opportunity of seeing or hearing witnesses to assess their demeanour, then form its independent conclusions. This, was summed up in Okeno v Republic (1972) EA 32 thus;
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
21. The offence of defilement is provided for in Section 8(1) of the Sexual Offences Act which stipulate that;
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
22. In the instant case, the prosecution was obligated to prove beyond reasonable doubt that the victim was below the age of 18 years; penetration did occur; and; the Accused (Appellant herein) was the perpetrator.
23. On the question of age, in Elias Kaingu v Republic, Malindi Criminal Appeal No. 504 of 2020 the Court of Appeal stated that;
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
24. In Rugaizi v Uganda (Criminal Appeal 332 of 2016) [2025] UGCA 151 (21 st May 2025) the Court of Appeal emphasized stated that;
“The trial court in its judgment rightly cited the case of Francis Omuroni v Uganda Court of Appeal Criminal Appeal No. 2 of 2000, wherein this court held thus;
“In defilement case medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. Observation and common sense are relevant in cases where it is too obvious to everybody that the victim is a person below age by mere observation and common sense. It is only in circumstances where the victim’s appearance may not be sufficient to satisfy court and………………….that some kind of evidence should be adduced."
25. To prove age of the victim, PW2, the Complainant’s mother testified that he was 12 years old. The victim PW1, stated that he was 12 years old having been born on 21 st December, 2010. A certificate of his birth entry number (withheld) was adduced in evidence which confirmed the fact of the victim having been 12 years at the time of the act, hence below 18 years old, and a child for that matter.
26. On the ingredient of penetration; Section 2 of the Sexual Offences Act defines the act of penetration as;
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
27. In Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) the Court of Appeal stated that;
“penetration does not necessarily end in release of sperms into the victim. Many times the attacker does not fully complete sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ.”
28. In Wepukhulu Nguguli v Uganda SC. Criminal Appeal No. 21 of 2001, the Supreme Court of Uganda stated that penetration however slight suffices to prove sexual intercourse.
29. Evidence of penetration was adduced by the Complainant whose competency to testify is questioned. It is argued that PW1 and PW4 were children of tender years and whose evidence was recorded on oath but, it was not clear how the trial court arrived at the conclusion that the witnesses understood the nature and duty of telling the truth which raises the issue of their credibility and competency.
30. The Children Act, Section 2 defines a child as;
"child" means an individual who has not attained the age of eighteen years.
31. A child of tender age is defined as;
"Tender age" (or tender years) in legal terms generally refers to a child of very young age—often under 10 or 12 years old.
32. However, as correctly submitted by the Appellant, courts have maintained a higher threshold of the age as fourteen (14) years. In Kibageny v Republic [1959] EA 92, the Eastern Court of Appeal held that;
“There is no definition in Oaths and Statutory Declaration Ordinance of the explanation “child of an age or apparent age of under fourteen years.”
33. Section 19 of the Oaths and Statutory Declarations Act (K) provides thus;
(1)Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.
(2)If any child whose evidence is received under subsection (1) willfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be guilty of an offence and liable to be dealt with as if he had been guilty of an offence punishable in the case of an adult with imprisonment.
34. In Peter Kiriga Kiune v Republic, Criminal Appeal No 77 of 1982 (unreported) the Court of Appeal rendered itself thus;
"Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which event his sworn evidence may be received. If the court is not so satisfied his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him (section 19, Oaths and Statutory Declarations Act, Cap. 20. The Evidence Act, (s. 124, cap. 80).
It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided, and not be forced to make assumptions."
35. Both children were 12 years old. With regard to PW4 on being taken through voire dire examination she gave answers thus;
“What is your name?
I am MWK.
How old are you?
I am 12 years old.
When were you born?
I was born on 19/04/2009.
Do you attend school?
Yes, I do.
What is the name of your school?
I am at Visions Academy.
Which grade are you in?
I am in Class 8.
Where are you today?
I am at Nyahururu Law Court.
Do you know you will need to be sworn in court before giving evidence?
Yes, I do.
Do you understand the meaning and purposes of swearing?
Yes I do.
What is the meaning of swearing?
It means that one has to tell the truth.
Do you know the consequences of giving a false testimony?
Yes it will be a curse to a liar.
36. Following answers given the court formed an opinion and thus;
“The subject understands the questions put him. She understands the implications of swearing. She has responded very well to all the questions put to her. She will give sworn testimony.”
37. For the Complainant the record reads thus;
“What is your name?
I am FD.
How old are you?
I am 12 years.
When were you born?
I was born on 21/12/2010.
Which class are you in?
I am in class 6.
What is the name of your school?
I am a pupil at Roots Academy.
Do you go to church?
Yes, I do.
What is the name of your child?
I got to St. Peter Catholic Kiambu near Kiamuo.
Have you ever been to court?
Yes I have.
Do you know that from your testify before court you will be sworn by the bible.
Yes I do.
Do you understand the nature and meaning of swearing before testifying?
No I don’t.
Do you know if you give a false testimony upon being sworn you may be charged in court of law?
Yes I do.”
38. The court opined thus;
“I find the subject understands the nature and meaning of oath. He is intelligent enough to understand question put to him. He will give sworn testimony.”
39. Unlike PW4, the victim/complainant stated with clarity that he did not understand what swearing entailed. However, the trial court in its wisdom opted to have him give sworn evidence based on the fact of the subject being intelligent.
40. Generally, competency to testify is provided for in Section 125(1) of the Evidence Act which provides thus;
All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.
41. And, to be sworn, if a child is of tender age, it would require that he comprehends the nature of an oath. And of importance would be such a child understanding the duty of telling the truth. The purpose of cross – examination is to test the credibility of a witness. What a witness re-collects or inconsistences that may be apparent can only be established through cross – examination. It would be to the benefit of the defence to cross – examine a vulnerable child so as to undermine his intellect. The court must have balanced the child’s intellect and the knowledge of the oath and found it proper to have him testify on oath.
42. At the time of testifying, PW1 was 13 years old. This was a child who was subjected to through cross – examination. The veracity of his evidence was tested and he answered respective questions accordingly. No prejudice was suffered by the Appellant.
43. The complainant stated that he was violated. The assailant unzipped his trouser and inserted his penis into his anus and only released him when he complained of feeling pain.
44. PW3 MWK the Complainant’s class mate was in class with him when he was called out. It was his testimony that when he returned he appeared like wanted to cry and he went and sat alone at a corner. PW3 went and asked what the problem was, he stated that he was not okay and started to cry. And, further, he indicated that he was having pains in the buttocks.
45. The incident occurred on 2 nd May, 2022. The matter was reported to the administration on the same day but the victim was taken to hospital on 4 th May, 2022. According to the Post Rape Care form (PRC) the victim had fissure that was tender on the anal region. A P3 was subsequently filled by Dr. Bahati Ruddy who found that indeed the victim had sustained fissure (laceration) that was tender at 3 o’clock on the anal canal.
46. PW2 the mother of the victim was called to the school on 5 th May, 2022 when she examined her son, according to her, he had bruises on his anal region. On cross – examination PW1 said his Headteacher also examined his anal area and told him he had noticed some blood stains. He also admitted that he had some pimples on his buttock. It is therefore argued that the prosecution’s case was marred with inconsistencies.
47. In Twehangane Alfred v Uganda Criminal Appeal No. 139 of 2001 [2003] UGCA 6 the court held that;
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
48. In Dickson Elia Njamba Shepwata & Another v the Republic Criminal Appeal No. 92 of 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and held that;
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”
49. Having a pimple on the gluteal area cannot be the same as having a laceration in the anus these are totally different parts of the body. If PW2 saw what she referred to as a bruise, her evidence may have not been relied on since she was not a medical practitioner. Evidence of whether there was some injury on the anus to be relied on had to be for a medical practitioner. Classification of injury noted was an expert’s opinion which only serves as guidance to the court. The question would be whether the perpetrator inserted his genital organ into that of the victim?
50. In Bassita v Uganda SC Criminal Appeal No. 35 of 1995 the Supreme Court stated that;
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.’’
51. In Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) the court stated that;
“………the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence”.
52. In Section 124 of the Evidence Act it is provided that;
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
53. The trial court analyzed evidence adduced and believed the victim. The basis being that indeed he sustained injuries on 2 nd May, 2022 which the defence associated with canning and pimples on the buttocks of the victim but there was no evidence that he had been caned.
54. Evidence of the Complainant that he was molested was believed by the trial Magistrate and was corroborated by the medical evidence adduced. His demeanor when he returned to class as observed by PW2, on returning to class he avoided them by going to sit alone and seemed to have an underlying emotional grief. And on PW3 expressing his concern he said with clarity that the was not okay and cried and told him that he had been violated. This was a child to be believed and the trial court rightly did so.
55. On the issue whether the perpetrator was positively identified; PW1 testified that he was already in class when he was called by Peter Ndung’u. he went to the staff room where he found the Appellant who told him that he never used to bath but he denied the allegations then he told him to go back to class. Subsequently he sent a girl whose name he could not recall to call him. On cross – examination, he said it could have been ‘M’. PW4 MW of Grade 8 stated that the Appellant sent her to call ‘F’ of Grade 5 which she did. On cross – examination she said she recorded her statement on 14 th May, 2023. The question of recording the statement late was explained by PW6 the Investigating Officer who said the statement dated 14 th May,2023 was a further statement as an earlier statement recorded on 8 th May, 2022 got lost. However, there was unchallenged evidence by PW3 that ‘M’ went to their class and told the Complainant that the Appellant wanted to see him.
56. The Appellant complains that material witnesses were not called to testify. Section 143 of the Evidence Act provides thus;
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
57. In this respect the Appellant relies on the case of Oloro & Daitanyi v Reginum (1956) 23, 23 EACA 49 where the court observed that;
“The prosecution has a duty to call material witnesses. If they fail, the presumption is that if the evidence had been called that evidence would have been unfavourable to prosecution.
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2. In the alternative, he faced a charge of Committing an Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. Particulars of the offence being that on 2 nd May, 2022, at 0600 hours at Visions Academy in Subukia Sub-County within Nakuru County intentionally and unlawfully touched the anus of FMN a child aged 12 years with his penis.
3. Having denied the charges, he was taken through full trial, found guilty, on the main charge, convicted and sentenced to serve ten (10) years imprisonment.
4. Aggrieved, the Appellant appeals on grounds as follows;
1) That the learned trial Magistrate erred in both law and in fact by finding conviction against the Appellant against the weight of evidence on record.
2) That the learned trial Magistrate erred in both law and in fact by failing to appreciate that the main ingredients of the offence charged had not been proven beyond reasonable doubt by the prosecution.
3) That the learned trial Magistrate erred in both law and in fact by failing to find that the evidence by the prosecution did not support the charges against the Appellant.
4) That the learned trial Magistrate erred in law and in fact in failing to find that the Complainant’s evidence was not corroborated in any material way by direct evidence of the other prosecution witness.
5) That the learned trial Magistrate erred in law and in fact by finding that the prosecution had proven its case while the prosecution failed to call very material witnesses in the case but failed to do so.
6) That the learned trial Magistrate erred in law and in fact by considering the evidence of the prosecution in total disregard to that of the defence.
7) That the trial Magistrate erred in both law and fact by finding a conviction against the Appellant when there were glaring contradictions in the evidence of prosecution witnesses.
8) That the conduct of the trial herein and the subsequent judgment and conviction of the Appellant on the charges before court was oppressive and caused a serious miscarriage of justice.
9) That the learned trial Magistrate erred in both law and fact by receiving the evidence of the Complainant without fully complying with the provisions of Section 19 of the Oaths and Statutory Declarations Act Cap 15 of the Laws of Kenya.
10) That the conviction and sentence of the Appellant was not founded on sound principals of the law, was oppressive and caused a miscarriage of justice and that sentence was manifestly harsh and excessive in view of the circumstances of this case.
5. Briefly, facts of the case were that the Complainant, then a pupil at Visions Academy in Grade 5, on 2 nd May, 2022, went to class with other pupils. At about 6.50am or thereabout, PW4 M.W. went to his class and informed him that he was required by the Appellant. He complied and went to see the Appellant, his teacher and boys’ patron who alleged that he had not taken a bath but he told him that contrary to the allegations he had. He told him to go back to class. Thereafter, he sent another girl to call him. He complied and found the Appellant in the staff room and he instructed him to go and fetch water as he wanted to wash him himself. Indeed, he fetched water and took to the bathroom at the dormitory.
6. Having been dressed in uniform he removed his trouser and the Appellant arrived and told him to get to the bed so that he could wash his head. He asked him whether he ordinarily showers with his shorts on and he heard him unzip his trouser, then he penetrated his anus with his penis. He told him that he was feeling pain then he released him and told him to dress up and go to class, which he did and told PW3 MWK of what had befallen him who advised him to report the matter to the school Director. The matter was escalated, the Complainant was subjected to medical examination while the police on receiving the report arrested the Appellant. Investigations were conducted which culminated into the Appellant being arraigned in court.
7. Upon being placed on his defence, the Appellant testified that on the material day, which was a holiday, there was a parents’ meeting, hence pupils woke up at 6.00am, did cleaning and they went for breakfast. That he went to the assembly and did the briefing and then proceeded to arrange for the parents’ meeting. That he was the teacher on duty jointly with Madam Lucy Ngeno. That no incident was reported to either of them and he did saw the Complainant at 8.40am inside his class, he was normal and did not have any problem.
8. That he was informed of the incident six days later on a Sunday long after he continued discharging his usual duties. That the boys’ bathrooms were inside the dormitory and had no doors unlike the toilets. That ordinarily the children would bathe at 6.00pm but those who used to wet beds would shower in the morning. He denied having asked the complainant to take a shower or sending Mary to go call him from the class. That PW4 recorded a statement a year later after he was charged. He denied having talked to the Deputy Headteacher or having been called by the Headteacher. That the Headteacher called him to go to school and since he needed to collect a note book from school, he went only to be arrested.
9. On cross – examination he denied having caned the pupil or having seen him being caned. He admitted having been on duty on 2 nd May, 2019. That they were allowed to enter the dormitory and he checked on cleaning. He denied having any issue with the parents of the victim.
10. The Appellant called a witness Samuel Gitau Kamau, his friend of many years. He stated that when the Appellant was arrested he went to Kirengero Police Station to follow up on his case. And, when he made inquiries he was arrested and placed in custody where he stayed for three (3) hours. And, on being released he was not told the reasons for his arrest. But, the police wanted parties to reconcile which must have been some grudge.
11. The appeal was canvassed through written submissions. The Appellant deposed grounds 1, 2, 3, 4 and 6 jointly. It is urged that when the alleged incident occurred the complainant had been in school for only four (4) months having been transferred from Machakos Group of Schools and that the Complainant never wanted to join the school in the first place as disclosed in cross – examination. That the examination of the buttocks by the Headteacher who found only pimples was contradicted by that of the mother of the victim who alleged that she found wounds and injuries. And on examination by Dr. Bahati the fissure found on the anus of PW1 could as well have resulted from constipation or passing of stool.
12. That PW1 was not creditworthy and the Appellant was not positively identified. In this respect reliance was placed on the case of Joseph Ndung’u Kimanyi v Republic [1979] eKLR where the Court of Appeal stated that;
“The witness upon whose evidence it is proposed to rely should not create an impression in the mind of the Court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
13. Further, that the Appellant was taken for medical tests that were conveniently not availed to court. Reliance in that respect was placed on Mohamed v Republic [2023] KEHC KLR where the court observed that;
“This being the case, I find that the medical evidence adduced at the trial court was not sufficiently corroborative of the fact that the minor was penetrated. I find that other than the evidence of PW-3, there is no other evidence pointing to the appellant’s culpability in the offence.”
14. And, in Ngatia v Republic (Criminal Appeal E003 of 2024) [2025] KEHC (KLR) where the court stated that;
“This evidence confirms the explanation by the Appellant that he was subjected to medical examination. The question lingering is what the results were and why they were not adduced in evidence. The prosecution is constitutionally obligated to disclose exculpatory evidence that may help the court reach a just decision. The unanswered question would be why the Appellant was subjected to medical evidence but the results were not introduced in evidence. The inference drawn in that the evidence may have either exonerated the Appellant or weakened the prosecution case.”
15. The Appellant questions why several hospitals close to the school were disregarded and the Appellant and Complainant taken to Bahati Sub-County Hospital that was far away.
16. That the defence was dismissed without any consideration which was prejudicial to the Appellant’s case. And hence the prosecution failed to positively show that the Appellant was the perpetrator of the offence.
17. On ground 5 it is urged that the prosecution failed to call crucial witnesses, Marcus Junior Wangui, the Deputy Headteacher, Peter Ndung’u and the teacher on duty Madam Lucy and that no explanation was given why the investigation officer PW7, only recorded the statement of PW4 a year after the incident allegedly took place. And, Grade 1 boys who were in the bathroom should have been called to testify.
18. The Appellant urged that there were inconsistencies on the prosecution’s case; evidence of the Complainant and other minor’s evidence raised questions on credibility and competency which established lack of understanding of the nature of oath contrary to the finding of the trial court.
19. The Respondent in opposition of the appeal, through Ms. Mumbe learned prosecution counsel submitted that the testimony of the Complainant that he was penetrated in the anal area was supported by evidence of the doctor who noted that the injuries sustained were related to an act of penetration as per the victim’s testimony. On the question of penetration reliance was placed on the case of Eric Onyango Ondeng v Republic [2014] eKLR where it was held that penetration did not need to be deep inside a victim’s organ or need for presence of spermatozoa and that it was sufficient that penetration be only on the surface. That evidence adduced proved penetration.
That during trial, the defence associated the victim’s injuries with caning, but the trial court found that the injuries were not as a result of penetration but not caning ; and; there was no evidence that the victim had been caned on the material date. On identification, it was urged that the victim who was called by a fellow pupil to go and see the Appellant, identified him as the perpetrator.
On sentence it is urged that the trial court imposed on illegal sentence of 10 years imprisonment it is submitted that the sentence provided for the offence is not less than 20 years imprisonment.
On age, reliance was placed on the case of Edwin Nyambogo Onsungo v Republic (2016) eKLR and urged that during the commission of the offence the victim was 12 years.
20. This being a first appellate court it is duty bound to re-examine evidence adduced at trial and scrutinize the findings bearing in mind that it did not have the opportunity of seeing or hearing witnesses to assess their demeanour, then form its independent conclusions. This, was summed up in Okeno v Republic (1972) EA 32 thus;
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.”
21. The offence of defilement is provided for in Section 8(1) of the Sexual Offences Act which stipulate that;
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
22. In the instant case, the prosecution was obligated to prove beyond reasonable doubt that the victim was below the age of 18 years; penetration did occur; and; the Accused (Appellant herein) was the perpetrator.
23. On the question of age, in Elias Kaingu v Republic, Malindi Criminal Appeal No. 504 of 2020 the Court of Appeal stated that;
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
24. In Rugaizi v Uganda (Criminal Appeal 332 of 2016) [2025] UGCA 151 (21 st May 2025) the Court of Appeal emphasized stated that;
“The trial court in its judgment rightly cited the case of Francis Omuroni v Uganda Court of Appeal Criminal Appeal No. 2 of 2000, wherein this court held thus;
“In defilement case medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence, age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. Observation and common sense are relevant in cases where it is too obvious to everybody that the victim is a person below age by mere observation and common sense. It is only in circumstances where the victim’s appearance may not be sufficient to satisfy court and………………….that some kind of evidence should be adduced."
25. To prove age of the victim, PW2, the Complainant’s mother testified that he was 12 years old. The victim PW1, stated that he was 12 years old having been born on 21 st December, 2010. A certificate of his birth entry number (withheld) was adduced in evidence which confirmed the fact of the victim having been 12 years at the time of the act, hence below 18 years old, and a child for that matter.
26. On the ingredient of penetration; Section 2 of the Sexual Offences Act defines the act of penetration as;
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
27. In Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) the Court of Appeal stated that;
“penetration does not necessarily end in release of sperms into the victim. Many times the attacker does not fully complete sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ.”
28. In Wepukhulu Nguguli v Uganda SC. Criminal Appeal No. 21 of 2001, the Supreme Court of Uganda stated that penetration however slight suffices to prove sexual intercourse.
29. Evidence of penetration was adduced by the Complainant whose competency to testify is questioned. It is argued that PW1 and PW4 were children of tender years and whose evidence was recorded on oath but, it was not clear how the trial court arrived at the conclusion that the witnesses understood the nature and duty of telling the truth which raises the issue of their credibility and competency.
30. The Children Act, Section 2 defines a child as;
"child" means an individual who has not attained the age of eighteen years.
31. A child of tender age is defined as;
"Tender age" (or tender years) in legal terms generally refers to a child of very young age—often under 10 or 12 years old.
32. However, as correctly submitted by the Appellant, courts have maintained a higher threshold of the age as fourteen (14) years. In Kibageny v Republic [1959] EA 92, the Eastern Court of Appeal held that;
“There is no definition in Oaths and Statutory Declaration Ordinance of the explanation “child of an age or apparent age of under fourteen years.”
33. Section 19 of the Oaths and Statutory Declarations Act (K) provides thus;
(1)Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.
(2)If any child whose evidence is received under subsection (1) willfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be guilty of an offence and liable to be dealt with as if he had been guilty of an offence punishable in the case of an adult with imprisonment.
34. In Peter Kiriga Kiune v Republic, Criminal Appeal No 77 of 1982 (unreported) the Court of Appeal rendered itself thus;
"Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which event his sworn evidence may be received. If the court is not so satisfied his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him (section 19, Oaths and Statutory Declarations Act, Cap. 20. The Evidence Act, (s. 124, cap. 80).
It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided, and not be forced to make assumptions."
35. Both children were 12 years old. With regard to PW4 on being taken through voire dire examination she gave answers thus;
“What is your name?
I am MWK.
How old are you?
I am 12 years old.
When were you born?
I was born on 19/04/2009.
Do you attend school?
Yes, I do.
What is the name of your school?
I am at Visions Academy.
Which grade are you in?
I am in Class 8.
Where are you today?
I am at Nyahururu Law Court.
Do you know you will need to be sworn in court before giving evidence?
Yes, I do.
Do you understand the meaning and purposes of swearing?
Yes I do.
What is the meaning of swearing?
It means that one has to tell the truth.
Do you know the consequences of giving a false testimony?
Yes it will be a curse to a liar.
36. Following answers given the court formed an opinion and thus;
“The subject understands the questions put him. She understands the implications of swearing. She has responded very well to all the questions put to her. She will give sworn testimony.”
37. For the Complainant the record reads thus;
“What is your name?
I am FD.
How old are you?
I am 12 years.
When were you born?
I was born on 21/12/2010.
Which class are you in?
I am in class 6.
What is the name of your school?
I am a pupil at Roots Academy.
Do you go to church?
Yes, I do.
What is the name of your child?
I got to St. Peter Catholic Kiambu near Kiamuo.
Have you ever been to court?
Yes I have.
Do you know that from your testify before court you will be sworn by the bible.
Yes I do.
Do you understand the nature and meaning of swearing before testifying?
No I don’t.
Do you know if you give a false testimony upon being sworn you may be charged in court of law?
Yes I do.”
38. The court opined thus;
“I find the subject understands the nature and meaning of oath. He is intelligent enough to understand question put to him. He will give sworn testimony.”
39. Unlike PW4, the victim/complainant stated with clarity that he did not understand what swearing entailed. However, the trial court in its wisdom opted to have him give sworn evidence based on the fact of the subject being intelligent.
40. Generally, competency to testify is provided for in Section 125(1) of the Evidence Act which provides thus;
All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause.
41. And, to be sworn, if a child is of tender age, it would require that he comprehends the nature of an oath. And of importance would be such a child understanding the duty of telling the truth. The purpose of cross – examination is to test the credibility of a witness. What a witness re-collects or inconsistences that may be apparent can only be established through cross – examination. It would be to the benefit of the defence to cross – examine a vulnerable child so as to undermine his intellect. The court must have balanced the child’s intellect and the knowledge of the oath and found it proper to have him testify on oath.
42. At the time of testifying, PW1 was 13 years old. This was a child who was subjected to through cross – examination. The veracity of his evidence was tested and he answered respective questions accordingly. No prejudice was suffered by the Appellant.
43. The complainant stated that he was violated. The assailant unzipped his trouser and inserted his penis into his anus and only released him when he complained of feeling pain.
44. PW3 MWK the Complainant’s class mate was in class with him when he was called out. It was his testimony that when he returned he appeared like wanted to cry and he went and sat alone at a corner. PW3 went and asked what the problem was, he stated that he was not okay and started to cry. And, further, he indicated that he was having pains in the buttocks.
45. The incident occurred on 2 nd May, 2022. The matter was reported to the administration on the same day but the victim was taken to hospital on 4 th May, 2022. According to the Post Rape Care form (PRC) the victim had fissure that was tender on the anal region. A P3 was subsequently filled by Dr. Bahati Ruddy who found that indeed the victim had sustained fissure (laceration) that was tender at 3 o’clock on the anal canal.
46. PW2 the mother of the victim was called to the school on 5 th May, 2022 when she examined her son, according to her, he had bruises on his anal region. On cross – examination PW1 said his Headteacher also examined his anal area and told him he had noticed some blood stains. He also admitted that he had some pimples on his buttock. It is therefore argued that the prosecution’s case was marred with inconsistencies.
47. In Twehangane Alfred v Uganda Criminal Appeal No. 139 of 2001 [2003] UGCA 6 the court held that;
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
48. In Dickson Elia Njamba Shepwata & Another v the Republic Criminal Appeal No. 92 of 2007 the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and held that;
“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.”
49. Having a pimple on the gluteal area cannot be the same as having a laceration in the anus these are totally different parts of the body. If PW2 saw what she referred to as a bruise, her evidence may have not been relied on since she was not a medical practitioner. Evidence of whether there was some injury on the anus to be relied on had to be for a medical practitioner. Classification of injury noted was an expert’s opinion which only serves as guidance to the court. The question would be whether the perpetrator inserted his genital organ into that of the victim?
50. In Bassita v Uganda SC Criminal Appeal No. 35 of 1995 the Supreme Court stated that;
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.’’
51. In Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) the court stated that;
“………the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence”.
52. In Section 124 of the Evidence Act it is provided that;
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
53. The trial court analyzed evidence adduced and believed the victim. The basis being that indeed he sustained injuries on 2 nd May, 2022 which the defence associated with canning and pimples on the buttocks of the victim but there was no evidence that he had been caned.
54. Evidence of the Complainant that he was molested was believed by the trial Magistrate and was corroborated by the medical evidence adduced. His demeanor when he returned to class as observed by PW2, on returning to class he avoided them by going to sit alone and seemed to have an underlying emotional grief. And on PW3 expressing his concern he said with clarity that the was not okay and cried and told him that he had been violated. This was a child to be believed and the trial court rightly did so.
55. On the issue whether the perpetrator was positively identified; PW1 testified that he was already in class when he was called by Peter Ndung’u. he went to the staff room where he found the Appellant who told him that he never used to bath but he denied the allegations then he told him to go back to class. Subsequently he sent a girl whose name he could not recall to call him. On cross – examination, he said it could have been ‘M’. PW4 MW of Grade 8 stated that the Appellant sent her to call ‘F’ of Grade 5 which she did. On cross – examination she said she recorded her statement on 14 th May, 2023. The question of recording the statement late was explained by PW6 the Investigating Officer who said the statement dated 14 th May,2023 was a further statement as an earlier statement recorded on 8 th May, 2022 got lost. However, there was unchallenged evidence by PW3 that ‘M’ went to their class and told the Complainant that the Appellant wanted to see him.
56. The Appellant complains that material witnesses were not called to testify. Section 143 of the Evidence Act provides thus;
No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.
57. In this respect the Appellant relies on the case of Oloro & Daitanyi v Reginum (1956) 23, 23 EACA 49 where the court observed that;
“The prosecution has a duty to call material witnesses. If they fail, the presumption is that if the evidence had been called that evidence would have been unfavourable to prosecution.
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