Introduction
1. The Appellant herein, James Kipng’etich Letting, was charged in the Chief Magistrate Court at Eldoret, Sexual Offense Case No. 237 of 2020. He faced one main count of Defilement contrary to section 8(1) of the Sexual Offences Act. In the alternative, the appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006.
2. The particulars of the offence were as follows;
Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006
On the 9 th Day of September, 2020 at [particulars withheld] in Soy sub-county within Uasin Gishu County, unlawfully and intentionally caused your genital organ namely (penis) to penetrate the genital organ namely (vagina) of AN, a girl aged 2 years old.
3. When arraigned before Court, the Accused pleaded not guilty to the offences. After a full trial, the Accused was found guilty and convicted as charged the offence. He was subsequently sentenced serve 20 years imprisonment on the charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act.
The Appeal
4. The Appellant herein was aggrieved by the conviction and sentence. He filed a Petition of Appeal and amended grounds of appeal. The Appellant challenged the conviction and sentence on the grounds that the trial magistrate erred in both facts and law by convicting him on inconsistent and incredible evidence and that the offense was not proven beyond reasonable doubt. He further alleged that he was convicted on the basis of circumstantial evidence and that his defense was not considered.
5. This Court was then urged to allow the appeal by quashing the conviction, setting aside the sentence and forthwith setting the Appellant at liberty.
6. During the hearing of the appeal, the Appellant relied on his written submissions wherein he expounded on the grounds of appeal. He also referred to various decisions.
7. The court directed parties to file written submissions and at the time of writing this judgement, it is only the Appellant who had complied.
Analysis and Determination
8. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
9. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:
“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
10. In view of the above, I have perused and considered the evidence adduced before the trial court, grounds of appeal together with submissions by the parties and consider the only issue for determination being whether the prosecution proved the elements of defilement beyond reasonable doubt.
11. Section 8(1) & (2) of the Sexual Offences Act provides as follows;
“8. Defilement
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) …”
12. The Court of Appeal in John Mutua Munyoki v Republic [2017] eKLR held that under the Sexual Offences Act, the main elements of the offence of defilement are as follows:
a. The victim must be a minor, and
b. There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice.
13. Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt. Did the prosecution discharge this task? According to the appellant the prosecution failed in this undertaking.
14. In this regard, it is notable that the age of the victim was indicated in the P3 form produced by the prosecution as 2 years and it was subsequently noted by the trial court in its judgement delivered on 30/09/2022. The Prosecution produced the child’s birth clinic card showing her date of birth as 21/10/2018. This was supported by the consistent testimonies of her parents, PW1 and PW3. I note that at the time of the alleged offense on 9th September, 2020, the child was exactly 1 year and 10 months old. I find that this element was proven beyond reasonable doubt.
15. Turning to the second ingredient of the offence, the Appellant argues that penetration was not proved. In F O D - v -Republic [2014] eKLR , it was stated in order to secure a conviction for the offence of defilement under the Sexual Offences Act, the prosecution must establish that the person has committed an act which causes penetration with a child.
16. Penetration under section 2 of the Act means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
17. PW2 produced the P3 form and testified to swelling of the labia minora, lacerations of the labia majora bilaterally, erythema and a fresh tear at the posterior fourchette, an intact hymen, and a whitish discharge, findings she described as indicating partial penetration. The complainant tested positive for gonorrhea. No spermatozoa or male DNA was recovered on examination. In Munjaru v Republic (Criminal Appeal E023 of 2024) [2025] KEHC 12018 (KLR) , it was held that the law does not require proof of spermatozoa, since an attacker does not always complete the sexual act, and that penetration, whether complete or partial, is sufficient to found the offence.
18. On the evidence of PW2, read together with the account of PW1 and PW3, I am satisfied, as was the trial court, that penetration was established beyond reasonable doubt.
19. The third and most contested element is whether it was the Appellant who penetrated the minor, A.N. No witness testified to seeing the act take place, and the complainant, then two years old, did not give evidence. The prosecution's case rests on the evidence that PW1 and PW3 who testified that on their return home A.N was found alone and distressed on the Appellant's bed while the Appellant was absent from the house, and that the Appellant and PW1 were the only two adult males residing in that compound.
20. The Court of Appeal in Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR) (6 June 2003) (Judgment) stated that where a conviction rests wholly or substantially on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than guilt, and there must be no co-existing circumstance weakening the inference sought to be drawn.
21. Applying that test, the evidence that the complainant was left exclusively in the Appellant's charge and was found alone distressed and injured on his own bed while he could not be found points strongly to opportunity and proximity. PW1 & PW3 testimony taken together with the medical findings of partial penetration, I find that the prosecution's case remains incompatible with any reasonable hypothesis of innocence.
22. I note that the Appellant's reliance on Sections 31 and 32 of the Sexual Offences Act and the intermediary decisions in Phineas Irungu Nguujiri v Republic, Criminal Appeal No. 191 of 2013 is misconceived. Those provisions and authorities govern the manner in which a child's own evidence is received, whether directly or through an intermediary. They do not require that a child of two years be produced to testify at all. Section 143 of the Evidence Act fixes no minimum number of witnesses required to prove a fact, and the prosecution was entitled to prove its case through the evidence of the complainant's parents, the examining doctor and the investigating officer without calling the complainant herself.
23. I therefore find that the prosecution has proved all the ingredients of defilement beyond reasonable doubt.
24. The Appellant further alleges that his defense was not considered by the trial court. I have looked at the record of appeal and I note that the Appellant raised the defense of alibi and that the case was fabricated against him because of a monetary grudge. The trial court dismissed the Appellant’s evidence on the ground that it did not address the question on trial. I find this finding to be correct. It is highly improbable and against common human experience that parents would go to the extreme length of inflicting severe physical injuries on the private parts of their own 2-year-old child and subjecting her to a painful medical process just to frame a colleague over a minor monetary dispute.
25. The appeal against both conviction and sentence is dismissed in its entirety.
It is so ordered.
Right of appeal 14 days.
Dated, signed and delivered via TEAMS at Nairobi on this 17 th day of July, 2026.
………….………………….….
ROSELINE A. OGANYO
JUDGE
In the presence of: -
Court Asst…. E, Sana.
N/A by both parties despite notice
1. The Appellant herein, James Kipng’etich Letting, was charged in the Chief Magistrate Court at Eldoret, Sexual Offense Case No. 237 of 2020. He faced one main count of Defilement contrary to section 8(1) of the Sexual Offences Act. In the alternative, the appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006.
2. The particulars of the offence were as follows;
Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006
On the 9 th Day of September, 2020 at [particulars withheld] in Soy sub-county within Uasin Gishu County, unlawfully and intentionally caused your genital organ namely (penis) to penetrate the genital organ namely (vagina) of AN, a girl aged 2 years old.
3. When arraigned before Court, the Accused pleaded not guilty to the offences. After a full trial, the Accused was found guilty and convicted as charged the offence. He was subsequently sentenced serve 20 years imprisonment on the charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act.
The Appeal
4. The Appellant herein was aggrieved by the conviction and sentence. He filed a Petition of Appeal and amended grounds of appeal. The Appellant challenged the conviction and sentence on the grounds that the trial magistrate erred in both facts and law by convicting him on inconsistent and incredible evidence and that the offense was not proven beyond reasonable doubt. He further alleged that he was convicted on the basis of circumstantial evidence and that his defense was not considered.
5. This Court was then urged to allow the appeal by quashing the conviction, setting aside the sentence and forthwith setting the Appellant at liberty.
6. During the hearing of the appeal, the Appellant relied on his written submissions wherein he expounded on the grounds of appeal. He also referred to various decisions.
7. The court directed parties to file written submissions and at the time of writing this judgement, it is only the Appellant who had complied.
Analysis and Determination
8. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
9. In Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR the Court of Appeal stated that:
“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”
10. In view of the above, I have perused and considered the evidence adduced before the trial court, grounds of appeal together with submissions by the parties and consider the only issue for determination being whether the prosecution proved the elements of defilement beyond reasonable doubt.
11. Section 8(1) & (2) of the Sexual Offences Act provides as follows;
“8. Defilement
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) …”
12. The Court of Appeal in John Mutua Munyoki v Republic [2017] eKLR held that under the Sexual Offences Act, the main elements of the offence of defilement are as follows:
a. The victim must be a minor, and
b. There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice.
13. Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt. Did the prosecution discharge this task? According to the appellant the prosecution failed in this undertaking.
14. In this regard, it is notable that the age of the victim was indicated in the P3 form produced by the prosecution as 2 years and it was subsequently noted by the trial court in its judgement delivered on 30/09/2022. The Prosecution produced the child’s birth clinic card showing her date of birth as 21/10/2018. This was supported by the consistent testimonies of her parents, PW1 and PW3. I note that at the time of the alleged offense on 9th September, 2020, the child was exactly 1 year and 10 months old. I find that this element was proven beyond reasonable doubt.
15. Turning to the second ingredient of the offence, the Appellant argues that penetration was not proved. In F O D - v -Republic [2014] eKLR , it was stated in order to secure a conviction for the offence of defilement under the Sexual Offences Act, the prosecution must establish that the person has committed an act which causes penetration with a child.
16. Penetration under section 2 of the Act means, “the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
17. PW2 produced the P3 form and testified to swelling of the labia minora, lacerations of the labia majora bilaterally, erythema and a fresh tear at the posterior fourchette, an intact hymen, and a whitish discharge, findings she described as indicating partial penetration. The complainant tested positive for gonorrhea. No spermatozoa or male DNA was recovered on examination. In Munjaru v Republic (Criminal Appeal E023 of 2024) [2025] KEHC 12018 (KLR) , it was held that the law does not require proof of spermatozoa, since an attacker does not always complete the sexual act, and that penetration, whether complete or partial, is sufficient to found the offence.
18. On the evidence of PW2, read together with the account of PW1 and PW3, I am satisfied, as was the trial court, that penetration was established beyond reasonable doubt.
19. The third and most contested element is whether it was the Appellant who penetrated the minor, A.N. No witness testified to seeing the act take place, and the complainant, then two years old, did not give evidence. The prosecution's case rests on the evidence that PW1 and PW3 who testified that on their return home A.N was found alone and distressed on the Appellant's bed while the Appellant was absent from the house, and that the Appellant and PW1 were the only two adult males residing in that compound.
20. The Court of Appeal in Sawe v Republic (Criminal Appeal 2 of 2002) [2003] KECA 182 (KLR) (6 June 2003) (Judgment) stated that where a conviction rests wholly or substantially on circumstantial evidence, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation on any reasonable hypothesis other than guilt, and there must be no co-existing circumstance weakening the inference sought to be drawn.
21. Applying that test, the evidence that the complainant was left exclusively in the Appellant's charge and was found alone distressed and injured on his own bed while he could not be found points strongly to opportunity and proximity. PW1 & PW3 testimony taken together with the medical findings of partial penetration, I find that the prosecution's case remains incompatible with any reasonable hypothesis of innocence.
22. I note that the Appellant's reliance on Sections 31 and 32 of the Sexual Offences Act and the intermediary decisions in Phineas Irungu Nguujiri v Republic, Criminal Appeal No. 191 of 2013 is misconceived. Those provisions and authorities govern the manner in which a child's own evidence is received, whether directly or through an intermediary. They do not require that a child of two years be produced to testify at all. Section 143 of the Evidence Act fixes no minimum number of witnesses required to prove a fact, and the prosecution was entitled to prove its case through the evidence of the complainant's parents, the examining doctor and the investigating officer without calling the complainant herself.
23. I therefore find that the prosecution has proved all the ingredients of defilement beyond reasonable doubt.
24. The Appellant further alleges that his defense was not considered by the trial court. I have looked at the record of appeal and I note that the Appellant raised the defense of alibi and that the case was fabricated against him because of a monetary grudge. The trial court dismissed the Appellant’s evidence on the ground that it did not address the question on trial. I find this finding to be correct. It is highly improbable and against common human experience that parents would go to the extreme length of inflicting severe physical injuries on the private parts of their own 2-year-old child and subjecting her to a painful medical process just to frame a colleague over a minor monetary dispute.
25. The appeal against both conviction and sentence is dismissed in its entirety.
It is so ordered.
Right of appeal 14 days.
Dated, signed and delivered via TEAMS at Nairobi on this 17 th day of July, 2026.
………….………………….….
ROSELINE A. OGANYO
JUDGE
In the presence of: -
Court Asst…. E, Sana.
N/A by both parties despite notice