(Being an appeal arising from the conviction and sentence in Mombasa CMCR (SO) No. E093 of 2022 delivered on 14th February 2025 by Hon. L. N. Juma, Principal Magistrate)
Introduction
1. The appellant, James Musyoka alias Mworia, was charged before the trial court with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that, on diverse dates between 1st May 2022 and 17th July 2022 at VOK Area, Nyali Sub-County within Mombasa County, he intentionally and unlawfully caused penetration of the vagina of D.W., a child aged 16 years, by inserting his penis into her vagina.
2. In the alternative, the appellant faced a charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. It was alleged that during the same period and at the same place, he intentionally caused contact between his penis and the complainant's vagina.
3. Upon conclusion of the trial, the appellant was convicted on the principal count of defilement and sentenced to serve fifteen (15) years' imprisonment.
4. Being dissatisfied with both the conviction and sentence, he lodged the present appeal.
Grounds of Appeal
5. The grounds of appeal may be summarised as follows—
i. That the learned trial magistrate erred in law and fact by relying on a birth certificate to prove the complainant's age whereas the document was merely marked for identification and was never formally produced as an exhibit.
ii. That the trial court erred in failing to call material witnesses necessary to prove the prosecution case.
iii. That the prosecution failed to prove penetration beyond reasonable doubt.
iv. That the prosecution did not prove its case beyond reasonable doubt.
Prosecution Case
6. PW1, Grace Mushila, the complainant's mother, testified that the complainant was born on 27th June 2006. She stated that the complainant had dropped out of school because she was dyslexic and required specialised educational support. She further testified that the complainant was registered with the National Council for Persons with Disabilities and also suffered from bipolar disorder.
7. PW1 stated that the appellant was their former neighbour. On 17th July 2022, the complainant went missing. Together with police officers, she searched for her, including at the appellant's residence, but he was not found. The following day, while at the police station, two women brought the complainant there. According to PW1, the complainant disclosed that she had spent the previous night at the appellant's house. PW1 testified that she had previously warned the appellant on several occasions to keep away from her daughter. The complainant was thereafter taken for medical examination. PW1 produced the complainant's National Council for Persons with Disabilities card.
8. PW2, Hamisi Mangi Ali, a village elder, testified that both the appellant and the complainant were his neighbours. On the material day, he saw the complainant carrying a soft drink and proceed towards the appellant's residence. Later, he saw police officers accompanied by the complainant and her mother proceed to the appellant's house, from where the appellant was arrested. He also stated that the appellant previously lived with a woman who had since left.
9. PW3, Valentina Wakesho, testified that on 18th July 2022 at about 9.00 a.m., she found the complainant outside a shop. The complainant informed her that she had not returned home the previous night because she had slept at the home of a male friend. PW3 persuaded her to accompany her home.
10. PW4, Dr. Gabriel Mugola of Coast General Teaching and Referral Hospital, produced the complainant's PRC Form and P3 Form. Upon examination, he observed that the complainant had an old broken hymen with a healed scar and an alteration at the 12 o'clock position. No vaginal discharge was noted. He also stated that the complainant had a psychiatric illness. The PRC Form and P3 Form were produced as prosecution exhibits.
11. PW5, the complainant, testified as a vulnerable witness pursuant to Section 39 of the Sexual Offences Act. She told the court that she was 16 years old and identified the appellant, whom she knew as "Baba Mwende," as their neighbour. She testified that on the material day she went to the appellant's house where they were alone, slept on the same bed with him, and had sexual intercourse. She further stated that this was not the first occasion, as they had engaged in sexual intercourse on several previous occasions, although she could not recall the exact number of times.
12. PW6, Sergeant Hawa Habib, the investigating officer, testified that she took over investigations after the complainant was reported missing. She recorded statements, escorted the complainant for medical examination, and produced the complainant's disability clinic card. She further testified that the complainant led police officers to the appellant's place of work and subsequently to his residence, where he was eventually arrested.
Defence Case
13. The appellant gave an unsworn statement in which he denied committing the offence. He maintained that the allegations were false, challenged the complainant's evidence, disputed proof of her age, and contended that there was no evidence establishing that she suffered from any mental disability.
Issues for Determination
14. Having considered the record of appeal, the grounds advanced, and the submissions, the following issue arises for determination:
Whether the prosecution proved the offence of defilement beyond reasonable doubt.
Analysis and Determination
15. As the first appellate court, I am under a duty to re-evaluate and reconsider the entire evidence and arrive at my own independent conclusions while bearing in mind that I neither saw nor heard the witnesses testify. This duty was succinctly stated in Okeno v Republic [1972] EA 32, where the Court held that a first appellate court must subject the entire evidence to fresh and exhaustive examination and draw its own conclusions.
(a) Whether penetration was proved
16. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another.
17. The complainant testified that she spent the night at the appellant's house, slept on his bed, and had sexual intercourse with him. Her evidence was consistent and remained unshaken during cross-examination.
18. The medical evidence adduced by PW4 established that the complainant had an old broken hymen with healed scarring, findings consistent with previous penetration. Although the medical examination did not reveal recent injuries, the charge related to repeated acts occurring over a period of time, and therefore the absence of fresh injuries was not inconsistent with the prosecution case.
19. In Bassita Hussein v Uganda, Supreme Court Criminal Appeal No. 35 of 1995, the Court observed that penetration may be proved through the evidence of the victim corroborated by medical or other evidence.
20. Upon independently evaluating the evidence, I am satisfied that the complainant's testimony, taken together with the medical findings, proved the element of penetration beyond reasonable doubt.
(b) Whether the complainant's age was proved
21. Proof of age is an essential ingredient of the offence of defilement because it determines both criminal liability and the applicable sentence. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal affirmed that age must be proved by credible evidence.
22. The appellant argued that the birth certificate was not formally produced as an exhibit. The record indeed indicates that although reference was made to the birth certificate, it was not produced as an exhibit.
23. Nevertheless, age may be proved by evidence other than a birth certificate. The complainant's mother testified that the complainant was born on 27th June 2006. PW4, the examining doctor, also assessed and recorded her age as 16 years, while the complainant herself stated that she was 16 years old. The charge sheet equally reflected her age as 16 years.
24. In the circumstances of this case, the omission to formally produce the birth certificate did not occasion a miscarriage of justice. The totality of the evidence satisfactorily established that the complainant was aged 16 years at the time of the offence.
(c) Whether the appellant was positively identified
25. The complainant knew the appellant well before the incident, as he was their neighbour. This was therefore a case of recognition rather than identification of a stranger.
26. She consistently testified that she voluntarily went to the appellant's house, spent the night there, and engaged in sexual intercourse with him. Her evidence was corroborated by PW2, who saw her proceed towards the appellant's residence, and by PW3, to whom the complainant disclosed the following morning that she had spent the night at the home of a male friend.
27. The appellant did not dispute that he knew the complainant or that they were neighbours. His defence amounted to a bare denial and did not displace the prosecution evidence placing him at the centre of the offence.
28. I therefore find that the appellant was positively identified as the perpetrator.
(d) Failure to call additional witnesses
29. The appellant faulted the prosecution for failing to call certain witnesses. However, the prosecution is only required to call such witnesses as are necessary to establish its case. The evidence tendered by the six prosecution witnesses sufficiently proved all the essential ingredients of the offence. No adverse inference can therefore be drawn from the failure to call additional witnesses.
Conclusion
30. Having independently re-evaluated the entire evidence on record, I find that the prosecution proved beyond reasonable doubt that:
a. the complainant was a child aged 16 years;
b. there was penetration;
c. the appellant was positively recognised as the perpetrator.
31. I am therefore satisfied that the conviction was safe and founded on credible evidence. I find no basis upon which to interfere with either the conviction or the sentence imposed by the trial court.
32. Consequently, the appeal lacks merit and is hereby dismissed. The conviction and sentence are affirmed.
33. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 28TH DAY OF MAY 2026.
WENDY KAGENDO
JUDGE
In the presence of:
The Appellant in person
Mr. Sirima for the State
Bebora – Court Assistant
Introduction
1. The appellant, James Musyoka alias Mworia, was charged before the trial court with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that, on diverse dates between 1st May 2022 and 17th July 2022 at VOK Area, Nyali Sub-County within Mombasa County, he intentionally and unlawfully caused penetration of the vagina of D.W., a child aged 16 years, by inserting his penis into her vagina.
2. In the alternative, the appellant faced a charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. It was alleged that during the same period and at the same place, he intentionally caused contact between his penis and the complainant's vagina.
3. Upon conclusion of the trial, the appellant was convicted on the principal count of defilement and sentenced to serve fifteen (15) years' imprisonment.
4. Being dissatisfied with both the conviction and sentence, he lodged the present appeal.
Grounds of Appeal
5. The grounds of appeal may be summarised as follows—
i. That the learned trial magistrate erred in law and fact by relying on a birth certificate to prove the complainant's age whereas the document was merely marked for identification and was never formally produced as an exhibit.
ii. That the trial court erred in failing to call material witnesses necessary to prove the prosecution case.
iii. That the prosecution failed to prove penetration beyond reasonable doubt.
iv. That the prosecution did not prove its case beyond reasonable doubt.
Prosecution Case
6. PW1, Grace Mushila, the complainant's mother, testified that the complainant was born on 27th June 2006. She stated that the complainant had dropped out of school because she was dyslexic and required specialised educational support. She further testified that the complainant was registered with the National Council for Persons with Disabilities and also suffered from bipolar disorder.
7. PW1 stated that the appellant was their former neighbour. On 17th July 2022, the complainant went missing. Together with police officers, she searched for her, including at the appellant's residence, but he was not found. The following day, while at the police station, two women brought the complainant there. According to PW1, the complainant disclosed that she had spent the previous night at the appellant's house. PW1 testified that she had previously warned the appellant on several occasions to keep away from her daughter. The complainant was thereafter taken for medical examination. PW1 produced the complainant's National Council for Persons with Disabilities card.
8. PW2, Hamisi Mangi Ali, a village elder, testified that both the appellant and the complainant were his neighbours. On the material day, he saw the complainant carrying a soft drink and proceed towards the appellant's residence. Later, he saw police officers accompanied by the complainant and her mother proceed to the appellant's house, from where the appellant was arrested. He also stated that the appellant previously lived with a woman who had since left.
9. PW3, Valentina Wakesho, testified that on 18th July 2022 at about 9.00 a.m., she found the complainant outside a shop. The complainant informed her that she had not returned home the previous night because she had slept at the home of a male friend. PW3 persuaded her to accompany her home.
10. PW4, Dr. Gabriel Mugola of Coast General Teaching and Referral Hospital, produced the complainant's PRC Form and P3 Form. Upon examination, he observed that the complainant had an old broken hymen with a healed scar and an alteration at the 12 o'clock position. No vaginal discharge was noted. He also stated that the complainant had a psychiatric illness. The PRC Form and P3 Form were produced as prosecution exhibits.
11. PW5, the complainant, testified as a vulnerable witness pursuant to Section 39 of the Sexual Offences Act. She told the court that she was 16 years old and identified the appellant, whom she knew as "Baba Mwende," as their neighbour. She testified that on the material day she went to the appellant's house where they were alone, slept on the same bed with him, and had sexual intercourse. She further stated that this was not the first occasion, as they had engaged in sexual intercourse on several previous occasions, although she could not recall the exact number of times.
12. PW6, Sergeant Hawa Habib, the investigating officer, testified that she took over investigations after the complainant was reported missing. She recorded statements, escorted the complainant for medical examination, and produced the complainant's disability clinic card. She further testified that the complainant led police officers to the appellant's place of work and subsequently to his residence, where he was eventually arrested.
Defence Case
13. The appellant gave an unsworn statement in which he denied committing the offence. He maintained that the allegations were false, challenged the complainant's evidence, disputed proof of her age, and contended that there was no evidence establishing that she suffered from any mental disability.
Issues for Determination
14. Having considered the record of appeal, the grounds advanced, and the submissions, the following issue arises for determination:
Whether the prosecution proved the offence of defilement beyond reasonable doubt.
Analysis and Determination
15. As the first appellate court, I am under a duty to re-evaluate and reconsider the entire evidence and arrive at my own independent conclusions while bearing in mind that I neither saw nor heard the witnesses testify. This duty was succinctly stated in Okeno v Republic [1972] EA 32, where the Court held that a first appellate court must subject the entire evidence to fresh and exhaustive examination and draw its own conclusions.
(a) Whether penetration was proved
16. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another.
17. The complainant testified that she spent the night at the appellant's house, slept on his bed, and had sexual intercourse with him. Her evidence was consistent and remained unshaken during cross-examination.
18. The medical evidence adduced by PW4 established that the complainant had an old broken hymen with healed scarring, findings consistent with previous penetration. Although the medical examination did not reveal recent injuries, the charge related to repeated acts occurring over a period of time, and therefore the absence of fresh injuries was not inconsistent with the prosecution case.
19. In Bassita Hussein v Uganda, Supreme Court Criminal Appeal No. 35 of 1995, the Court observed that penetration may be proved through the evidence of the victim corroborated by medical or other evidence.
20. Upon independently evaluating the evidence, I am satisfied that the complainant's testimony, taken together with the medical findings, proved the element of penetration beyond reasonable doubt.
(b) Whether the complainant's age was proved
21. Proof of age is an essential ingredient of the offence of defilement because it determines both criminal liability and the applicable sentence. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal affirmed that age must be proved by credible evidence.
22. The appellant argued that the birth certificate was not formally produced as an exhibit. The record indeed indicates that although reference was made to the birth certificate, it was not produced as an exhibit.
23. Nevertheless, age may be proved by evidence other than a birth certificate. The complainant's mother testified that the complainant was born on 27th June 2006. PW4, the examining doctor, also assessed and recorded her age as 16 years, while the complainant herself stated that she was 16 years old. The charge sheet equally reflected her age as 16 years.
24. In the circumstances of this case, the omission to formally produce the birth certificate did not occasion a miscarriage of justice. The totality of the evidence satisfactorily established that the complainant was aged 16 years at the time of the offence.
(c) Whether the appellant was positively identified
25. The complainant knew the appellant well before the incident, as he was their neighbour. This was therefore a case of recognition rather than identification of a stranger.
26. She consistently testified that she voluntarily went to the appellant's house, spent the night there, and engaged in sexual intercourse with him. Her evidence was corroborated by PW2, who saw her proceed towards the appellant's residence, and by PW3, to whom the complainant disclosed the following morning that she had spent the night at the home of a male friend.
27. The appellant did not dispute that he knew the complainant or that they were neighbours. His defence amounted to a bare denial and did not displace the prosecution evidence placing him at the centre of the offence.
28. I therefore find that the appellant was positively identified as the perpetrator.
(d) Failure to call additional witnesses
29. The appellant faulted the prosecution for failing to call certain witnesses. However, the prosecution is only required to call such witnesses as are necessary to establish its case. The evidence tendered by the six prosecution witnesses sufficiently proved all the essential ingredients of the offence. No adverse inference can therefore be drawn from the failure to call additional witnesses.
Conclusion
30. Having independently re-evaluated the entire evidence on record, I find that the prosecution proved beyond reasonable doubt that:
a. the complainant was a child aged 16 years;
b. there was penetration;
c. the appellant was positively recognised as the perpetrator.
31. I am therefore satisfied that the conviction was safe and founded on credible evidence. I find no basis upon which to interfere with either the conviction or the sentence imposed by the trial court.
32. Consequently, the appeal lacks merit and is hereby dismissed. The conviction and sentence are affirmed.
33. It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 28TH DAY OF MAY 2026.
WENDY KAGENDO
JUDGE
In the presence of:
The Appellant in person
Mr. Sirima for the State
Bebora – Court Assistant