1. This appeal arises from the judgment of the trial court, Hon. M. Sudi (PM) in Kandara MCSO No. E022 of 2022, delivered on 22.08.2023.
2. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on 09.05.2022 at about 1930 hours at Ngelelya Trading Centre at Ithanga-Kakuzi Sub- County within Murang’a County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the anus of CWM, a child aged 12 years old.
3. There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that on 09.05.2022 at about 1930 hours at Ngelelya Trading Centre at Ithanga-Kakuzi Sub- County within Murang’a County of the Republic of Kenya, intentionally and unlawfully touched the buttocks of CWM, a child aged 12 years with his penis.
4. The appellant was sentenced to 20 years imprisonment. The Appellant, aggrieved, lodged an undated petition of appeal and raised the following grounds of appeal:
a) That the trial magistrate erred in both law and facts by convicting the appellant based on a defective charge sheet contrary to the law, as the charge sheet varies with the evidence tendered on record.
b) That the trial court erred in both law and facts to convict the appellant based on insufficient evidence of penile penetration, a necessary ingredient needed to prove the offence charged.
c) That the trial court erred in both law and facts by convicting the appellant despite the prosecution failing to prove its case of defilement beyond reasonable doubt.
d) That the trial magistrate erred in both law and facts to convict the appellant based on evidence that was inconsistent, contradictory and full of discrepancies.
e) That the prosecution’s case was not proved beyond any reasonable doubt as the crucial exhibits were not produced in court.
f) That the ingredients of the offence of defilement were not proved.
g) That the court shifted the burden of proof to the appellant by dismissing his defence contrary to the law.
5. The Appellant was arraigned in court on 12.05.2022 and pleaded not guilty. He was granted bond of 100,000/= with alternative cash bail of Ksh. 5,000/= with one surety of the same amount. He was supplied with witness statements and supporting documents. The court had voire dire on the minor. He was found fit to give sworn testimony. The minor was placing her younger sister to bed as she was on the ground.
6. Someone came from behind and gagged her with paper. She was wearing a skirt. He removed her panty, tied her hands with a leso and inserted his penis into her anus. He gave her Ksh. 60/=. He passed through the back door. She pushed the paper out of the mouth and a neighbour came. The neighbour came and went for a torch. They saw the appellant using the neighbour’s security lights.
7. On cross examination, she stated that the sister was one year old and could not talk. She was not sent to give James Nduva the appellant Ksh 1,000/=. The mother untied her and she told her that it was Nduva who defiled her. She went to the hospital and the appellant was arrested next day at 1500 hours.
8. PW2 was the minor’s mother, she was working and was called by a neighbour to go home. When she was there, she found the minor tied with a leso on hands and legs. The assailant took the minor to the toilet corridor and penetrated her from behind. She was taken to hospital on the same night. The medical record indicated anal penetration. She never sent the minor to pick money from the appellant. The minor gave a name at the police station. She identified the appellant in the dock.
9. On cross examination she stated that the child did not explain to the chief who did it as she was in pain. She was also asked other irrelevant questions.
10. PW3 was Ann Njambi. She stated that on 9.05.2022, she was at home when the minor called. She went and found the minor tied on the hands and legs with a leso. She called the mother and later they called the chief. The Chief advised that they go to hospital. The minor indicated she had been defiled by Nduva. On cross examination, she stated that it was raining and only heard when she came out. They were not looking for money.
11. PW4 was PC Emily Mwangi No. 2009019608. She recalled that on 09.05.2022, at 10.30 am a mother and a daughter went to report that his child was raped. The mother reported that the appellant went through the back door and they found her near the toilet. He defiled her after tying her with a leso. The appellant gagged the minor with papers and penetrated her from behind. The appellant tied her legs from behind.
12. PW5 was Simon Karanja Muturi a registered Clinical Officer. He testified on behalf of a clinical officer Patrick who went for further studies. The minor was sodomised by a person known to her. She was injured in the anus, though it was normal. The appellant was placed on his defence. Section 211 of the Criminal Procedure Act was complied with.
13. The Appellant gave unsworn statement. On 09.05.2022 he was from work and took tea at the market. A girl whose name she could not remember came and asked for a sum of Ksh. 1,000/=. The minor removed a sum of Ksh 70/=. He went to work the following day and was arrested. He stayed in custody for three days.
Submissions
14. The appellant filed submissions dated 15.07.2025. He set out seven grounds of appeal, other than the original grounds. They are on the same points. He submitted that the three elements of defilement were not proved. Reliance was placed on the question of penetration on the case of Omumbo v Republic [2008] KECA 315 (KLR) , where the court of appeal [RSC Omolo, EO O'kubasu & JA Aluoch, JJA] posited as follows:
From the above definition, it is clear that “penetration” is an important ingredient in a charge of defilement under the Sexual Offences Act which must be proved by tire prosecution. In this case, the evidence of Meshack the clinical officer confirmed that there was penetration. The two courts below accepted this evidence, as well as the evidence of PA that she was defiled by the appellant. Though PA’s evidence was that of a child of tender years, tire court can convict on it by virtue of the proviso to section 124 of the Evidence Act cap 80 Laws of Kenya, as amended by Act No 5 of 2003. The proviso reads.
"Provided that where in a criminal case involving a sexual offence the only evidence is that of a child of tender years who is the alleged victim of the offence, the court shall receive the evidence of the child and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the child is telling the truth.”
15. He stated that there was no evidence that the complainant had been sodomised. Sodomy was said to be 16 hours old. The medical evidence did not link the appellant to the offence. They also stated that the charge is defective for failure to include the word unlawful in the charge sheet. He lamented that the evidence was that the appellant placed the penis into the buttocks. On the aspect of failure to have the word unlawful, I dismiss it pronto. There can be no lawful defilement. The same does not form part of the section establishing the offence. The said section provides as follows:
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
16. Therefore, unlawful is not part of the offence as established. They further submitted that the medical officer found the anus was normal. Reliance was placed on the locus classicus and the most oft quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington v DPP [1935] AC 462, pp. 481.
17. He submitted that the evidence does not accord with the charge sheet. This was because the evidence had rape as part of the witness testimony. They also submitted that there was no amendment under section 214 of Criminal Procedure Code. Reliance was placed on the case of Jason Akumu Yongo v Republic [1983] KECA 79 (KLR) , where the court of appeal stated as follows:
As stated in 11 Halsbury’s Laws of England (4th edn) para 218, the power to amend is not limited to those cases in which the indictment is bad on its face and provided the amendment causes no injustice to the accused, alteration in matters of particulars may be made.
In England it has been said:
“An indictment is defective not only when it is bad on the face of it, but also (i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein, (ii) when for such reasons it does not accord with the evidence given at the trial.”
See Archbold, Criminal pleading Evidence and practice (40th edn) p 52. In our opinion a charge is defective under Section 214(1) of the Criminal procedure Code where:
(a) it does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; or
(b) it does not, for such reasons, accord with the evidence given at the trial; or
(c) it gives a misdescription of the alleged offence in its particular
18. It was submitted that he was confused as charges were defective. Reliance was placed on Sections 134 and 137 of the Criminal Procedure Code. He raised issue on the absence of spermatozoa as a ground for submitting that there was no defilement. He submitted that there was no proof of penile penetration. He submitted that the complainant mentioned the intercourse only once and there was no corroborating evidence. Reliance was placed in the case of Mutonyi & another v Republic [1982] KECA 25 (KLR) , where the court of appeal [Madan, Miller & Potter JJA ) ] held as follows:
He appears to have overlooked an important element in the definition of corroboration, which is that it “affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it”. See Republic v Manilal Ishwerlal Purohit (1942) 9 EACA 58, 61.
19. It was submitted that the evidence was contradictory, inconsistent and full of inconsistencies. They relied on the case of Ramkrishan Pandya v R [1957] EA 336 .
20. What he indicted as contradictions are not contradictions at all. It was testified that there was no evidence that the complainant was school going. Also, the paper with which he gagged the minor, the money given, and the panty were all not produced. Section 65 of the Evidence Act was said to be offended. He submitted that there was no evidence to sustain a conviction. He also submitted that the burden of proof was shifted to him. Reliance was placed on the case of Dorcas Jemutai Sang v Republic [2018] KECA 491 (KLR) , where the court of appeal [Waki, Mwera & Murgor, JJ.A.] held as follows:
Therefore, other than the exception, the burden of proof in criminal cases always rests with the prosecution and cannot and should not be seen to shift to the accused person. Accordingly, all judicial officers conducting criminal prosecutions should ensure that at no time does the burden of proof shift to the accused person and, more importantly, such a judicial officer should not appear in his/her decision to shift that burden.
In the present case we are satisfied that both the courts below appeared to or shifted the burden of proving innocence on the appellant. This we say in the light of the quotations we have reproduced above where the learned trial magistrate stated that the appellant:
“…did not call witness to support her defence,”
and the learned Judge remarked that:
“…it was a significant fact that the appellant did not call …any witness at the trial.”
By these sentiments, both the courts below appeared to say that the appellant was obliged to call witnesses to prove her innocence. As stated above, that was a wrong approach regarding the burden of proof in a criminal prosecution and therefore we allow the appeal on this ground.
21. On sentence he submitted that the court failed to take into consideration section 333(2) of the Criminal Procedure Code.
22. The state/respondent filed submissions on 15.12.2025 and stated that a birth certificate was produced and other exhibits including treatment notes, and P3, all meeting the standard of the case. They submitted that the charge was proved beyond reasonable doubt. The ingredients were said to be proved as set out in the case of George Opondo Olunga v Republic [2016] eKLR, that is:
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
23. They submitted that the minor was born on 6.04.2010. The age is also not disputed. On penetration they submitted that the appellant took his penis and inserted into the minor’s anus/buttocks. The minor was examined at Ithanga Health Centre. The minor was injured and the weapon was a penis. The minor did not contradict the medical evidence. This was corroborated by the complainant’s mother’s testimony. The minor was taken first to Ngelelya Dispensary but notes were unfortunately not available.
24. They submitted that the minor identified the appellant from the neighbour’s security light. He also recognized the appellant by voice. The appellant tied the minor.
25. They further submitted that the minor was found to be truthful. Even in absence of medical evidence, rape can be proved by oral evidence of the victim or circumstantial evidence.
26. They submitted that the appellant did not call his friend Mwangi who witnessed the exchange of Ksh. 70/= and demand of Ksh. 1,000/= from the minor. I will dismiss this kind of evidence as it places the burden of proof on the appellant who was an accused person.
27. They submitted that the defence of alibi was an afterthought. They submitted that the burden of proof was not shifted. They posited that the sentence was wrong as the mandatory sentence is 20 years.
28. The court found that the complainant’s evidence was candid. The court placed reliance on section 124 of the Evidence Act. The court placed reliance on the case of Geoffrey Kionji vs Republic Cr. Appeal No 270 of 2010 , where it was held as thus:
Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80, Laws of
Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.
As such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded.
Analysis
29. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
30. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
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.
31. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
32. Brennan J, addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
33. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
34. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
35. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
36. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma and can only be justified based on indisputable evidence.
The Law
37. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
38. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.
39. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic , Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:
Age of the victim of the 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.
40. The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR) , addressed this aspect as follows:
In the case of Kaingu Elias Kasomo V R , Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence.
However, as the Court clarified in Tumaini Maasai Mwanya V R , MSA CR.A. NO. 364 OF 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age.
41. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that:
In defilement cases, medical evidence is paramount in determining the age of the victim. 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.
42. The minor was born on 6.4.2010, making her 12 years on 9.05.2022. The age was thus proved as 12 years.
43. Regarding penetration the medical evidence showed that there was an injury on the anus. Though the appellant raised issue that the minor was sodomised or raped and not defiled. This appears to be a confusion relating to what constitutes defilement. Defilement is set out in section 8(1) of the Sexual Offences Act. On the other hand, penetration, is defined under section 2 of the said Act as follows:
"Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
44. On the other hand, the Act defines "genital organs" as follows:
“Includes the whole or part of male or female genital organs and for purposes of this Act.”
45. Therefore, penetration of the anus qualifies as penetration for purposes of section 8(1) of the Sexual Offences Act. The evidence of the minor was consistent what happened.
46. The medical evidence shows that the minor was penetrated. It is not useful to raise the question of absence of spermatozoa. There is no requirement for ejaculation at all. Complete, or partial penetration, even if for fleeting moments, is still penetration. These were expert evidence. In addressing expert evidence, the court must have regard to the entire gamut of evidence, not just expert evidence. Courts have consistently emphasized the value of expert opinions in judicial proceedings; such evidence is not necessarily conclusive or binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:
The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.
47. Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:
… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.
48. Courts must give proper respect to the opinions of experts; such opinions are not, as it were, binding on the courts, and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eklr; [19951998] 1 EA 29, where it was held tha
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2. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on 09.05.2022 at about 1930 hours at Ngelelya Trading Centre at Ithanga-Kakuzi Sub- County within Murang’a County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the anus of CWM, a child aged 12 years old.
3. There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that on 09.05.2022 at about 1930 hours at Ngelelya Trading Centre at Ithanga-Kakuzi Sub- County within Murang’a County of the Republic of Kenya, intentionally and unlawfully touched the buttocks of CWM, a child aged 12 years with his penis.
4. The appellant was sentenced to 20 years imprisonment. The Appellant, aggrieved, lodged an undated petition of appeal and raised the following grounds of appeal:
a) That the trial magistrate erred in both law and facts by convicting the appellant based on a defective charge sheet contrary to the law, as the charge sheet varies with the evidence tendered on record.
b) That the trial court erred in both law and facts to convict the appellant based on insufficient evidence of penile penetration, a necessary ingredient needed to prove the offence charged.
c) That the trial court erred in both law and facts by convicting the appellant despite the prosecution failing to prove its case of defilement beyond reasonable doubt.
d) That the trial magistrate erred in both law and facts to convict the appellant based on evidence that was inconsistent, contradictory and full of discrepancies.
e) That the prosecution’s case was not proved beyond any reasonable doubt as the crucial exhibits were not produced in court.
f) That the ingredients of the offence of defilement were not proved.
g) That the court shifted the burden of proof to the appellant by dismissing his defence contrary to the law.
5. The Appellant was arraigned in court on 12.05.2022 and pleaded not guilty. He was granted bond of 100,000/= with alternative cash bail of Ksh. 5,000/= with one surety of the same amount. He was supplied with witness statements and supporting documents. The court had voire dire on the minor. He was found fit to give sworn testimony. The minor was placing her younger sister to bed as she was on the ground.
6. Someone came from behind and gagged her with paper. She was wearing a skirt. He removed her panty, tied her hands with a leso and inserted his penis into her anus. He gave her Ksh. 60/=. He passed through the back door. She pushed the paper out of the mouth and a neighbour came. The neighbour came and went for a torch. They saw the appellant using the neighbour’s security lights.
7. On cross examination, she stated that the sister was one year old and could not talk. She was not sent to give James Nduva the appellant Ksh 1,000/=. The mother untied her and she told her that it was Nduva who defiled her. She went to the hospital and the appellant was arrested next day at 1500 hours.
8. PW2 was the minor’s mother, she was working and was called by a neighbour to go home. When she was there, she found the minor tied with a leso on hands and legs. The assailant took the minor to the toilet corridor and penetrated her from behind. She was taken to hospital on the same night. The medical record indicated anal penetration. She never sent the minor to pick money from the appellant. The minor gave a name at the police station. She identified the appellant in the dock.
9. On cross examination she stated that the child did not explain to the chief who did it as she was in pain. She was also asked other irrelevant questions.
10. PW3 was Ann Njambi. She stated that on 9.05.2022, she was at home when the minor called. She went and found the minor tied on the hands and legs with a leso. She called the mother and later they called the chief. The Chief advised that they go to hospital. The minor indicated she had been defiled by Nduva. On cross examination, she stated that it was raining and only heard when she came out. They were not looking for money.
11. PW4 was PC Emily Mwangi No. 2009019608. She recalled that on 09.05.2022, at 10.30 am a mother and a daughter went to report that his child was raped. The mother reported that the appellant went through the back door and they found her near the toilet. He defiled her after tying her with a leso. The appellant gagged the minor with papers and penetrated her from behind. The appellant tied her legs from behind.
12. PW5 was Simon Karanja Muturi a registered Clinical Officer. He testified on behalf of a clinical officer Patrick who went for further studies. The minor was sodomised by a person known to her. She was injured in the anus, though it was normal. The appellant was placed on his defence. Section 211 of the Criminal Procedure Act was complied with.
13. The Appellant gave unsworn statement. On 09.05.2022 he was from work and took tea at the market. A girl whose name she could not remember came and asked for a sum of Ksh. 1,000/=. The minor removed a sum of Ksh 70/=. He went to work the following day and was arrested. He stayed in custody for three days.
Submissions
14. The appellant filed submissions dated 15.07.2025. He set out seven grounds of appeal, other than the original grounds. They are on the same points. He submitted that the three elements of defilement were not proved. Reliance was placed on the question of penetration on the case of Omumbo v Republic [2008] KECA 315 (KLR) , where the court of appeal [RSC Omolo, EO O'kubasu & JA Aluoch, JJA] posited as follows:
From the above definition, it is clear that “penetration” is an important ingredient in a charge of defilement under the Sexual Offences Act which must be proved by tire prosecution. In this case, the evidence of Meshack the clinical officer confirmed that there was penetration. The two courts below accepted this evidence, as well as the evidence of PA that she was defiled by the appellant. Though PA’s evidence was that of a child of tender years, tire court can convict on it by virtue of the proviso to section 124 of the Evidence Act cap 80 Laws of Kenya, as amended by Act No 5 of 2003. The proviso reads.
"Provided that where in a criminal case involving a sexual offence the only evidence is that of a child of tender years who is the alleged victim of the offence, the court shall receive the evidence of the child and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the child is telling the truth.”
15. He stated that there was no evidence that the complainant had been sodomised. Sodomy was said to be 16 hours old. The medical evidence did not link the appellant to the offence. They also stated that the charge is defective for failure to include the word unlawful in the charge sheet. He lamented that the evidence was that the appellant placed the penis into the buttocks. On the aspect of failure to have the word unlawful, I dismiss it pronto. There can be no lawful defilement. The same does not form part of the section establishing the offence. The said section provides as follows:
A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
16. Therefore, unlawful is not part of the offence as established. They further submitted that the medical officer found the anus was normal. Reliance was placed on the locus classicus and the most oft quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington v DPP [1935] AC 462, pp. 481.
17. He submitted that the evidence does not accord with the charge sheet. This was because the evidence had rape as part of the witness testimony. They also submitted that there was no amendment under section 214 of Criminal Procedure Code. Reliance was placed on the case of Jason Akumu Yongo v Republic [1983] KECA 79 (KLR) , where the court of appeal stated as follows:
As stated in 11 Halsbury’s Laws of England (4th edn) para 218, the power to amend is not limited to those cases in which the indictment is bad on its face and provided the amendment causes no injustice to the accused, alteration in matters of particulars may be made.
In England it has been said:
“An indictment is defective not only when it is bad on the face of it, but also (i) when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein, (ii) when for such reasons it does not accord with the evidence given at the trial.”
See Archbold, Criminal pleading Evidence and practice (40th edn) p 52. In our opinion a charge is defective under Section 214(1) of the Criminal procedure Code where:
(a) it does not accord with the evidence in committal proceedings because of inaccuracies or deficiencies in the charge or because it charges offences in the charge not disclosed in such evidence or fails to charge an offence which the evidence in the committal proceedings discloses; or
(b) it does not, for such reasons, accord with the evidence given at the trial; or
(c) it gives a misdescription of the alleged offence in its particular
18. It was submitted that he was confused as charges were defective. Reliance was placed on Sections 134 and 137 of the Criminal Procedure Code. He raised issue on the absence of spermatozoa as a ground for submitting that there was no defilement. He submitted that there was no proof of penile penetration. He submitted that the complainant mentioned the intercourse only once and there was no corroborating evidence. Reliance was placed in the case of Mutonyi & another v Republic [1982] KECA 25 (KLR) , where the court of appeal [Madan, Miller & Potter JJA ) ] held as follows:
He appears to have overlooked an important element in the definition of corroboration, which is that it “affects the accused by connecting him or tending to connect him with the crime, confirming in some material particular not only the evidence that the crime has been committed but also that the accused committed it”. See Republic v Manilal Ishwerlal Purohit (1942) 9 EACA 58, 61.
19. It was submitted that the evidence was contradictory, inconsistent and full of inconsistencies. They relied on the case of Ramkrishan Pandya v R [1957] EA 336 .
20. What he indicted as contradictions are not contradictions at all. It was testified that there was no evidence that the complainant was school going. Also, the paper with which he gagged the minor, the money given, and the panty were all not produced. Section 65 of the Evidence Act was said to be offended. He submitted that there was no evidence to sustain a conviction. He also submitted that the burden of proof was shifted to him. Reliance was placed on the case of Dorcas Jemutai Sang v Republic [2018] KECA 491 (KLR) , where the court of appeal [Waki, Mwera & Murgor, JJ.A.] held as follows:
Therefore, other than the exception, the burden of proof in criminal cases always rests with the prosecution and cannot and should not be seen to shift to the accused person. Accordingly, all judicial officers conducting criminal prosecutions should ensure that at no time does the burden of proof shift to the accused person and, more importantly, such a judicial officer should not appear in his/her decision to shift that burden.
In the present case we are satisfied that both the courts below appeared to or shifted the burden of proving innocence on the appellant. This we say in the light of the quotations we have reproduced above where the learned trial magistrate stated that the appellant:
“…did not call witness to support her defence,”
and the learned Judge remarked that:
“…it was a significant fact that the appellant did not call …any witness at the trial.”
By these sentiments, both the courts below appeared to say that the appellant was obliged to call witnesses to prove her innocence. As stated above, that was a wrong approach regarding the burden of proof in a criminal prosecution and therefore we allow the appeal on this ground.
21. On sentence he submitted that the court failed to take into consideration section 333(2) of the Criminal Procedure Code.
22. The state/respondent filed submissions on 15.12.2025 and stated that a birth certificate was produced and other exhibits including treatment notes, and P3, all meeting the standard of the case. They submitted that the charge was proved beyond reasonable doubt. The ingredients were said to be proved as set out in the case of George Opondo Olunga v Republic [2016] eKLR, that is:
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
23. They submitted that the minor was born on 6.04.2010. The age is also not disputed. On penetration they submitted that the appellant took his penis and inserted into the minor’s anus/buttocks. The minor was examined at Ithanga Health Centre. The minor was injured and the weapon was a penis. The minor did not contradict the medical evidence. This was corroborated by the complainant’s mother’s testimony. The minor was taken first to Ngelelya Dispensary but notes were unfortunately not available.
24. They submitted that the minor identified the appellant from the neighbour’s security light. He also recognized the appellant by voice. The appellant tied the minor.
25. They further submitted that the minor was found to be truthful. Even in absence of medical evidence, rape can be proved by oral evidence of the victim or circumstantial evidence.
26. They submitted that the appellant did not call his friend Mwangi who witnessed the exchange of Ksh. 70/= and demand of Ksh. 1,000/= from the minor. I will dismiss this kind of evidence as it places the burden of proof on the appellant who was an accused person.
27. They submitted that the defence of alibi was an afterthought. They submitted that the burden of proof was not shifted. They posited that the sentence was wrong as the mandatory sentence is 20 years.
28. The court found that the complainant’s evidence was candid. The court placed reliance on section 124 of the Evidence Act. The court placed reliance on the case of Geoffrey Kionji vs Republic Cr. Appeal No 270 of 2010 , where it was held as thus:
Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80, Laws of
Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.
As such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded.
Analysis
29. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
30. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
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.
31. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus, a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
32. Brennan J, addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
33. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
34. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
35. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
36. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma and can only be justified based on indisputable evidence.
The Law
37. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
38. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.
39. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic , Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:
Age of the victim of the 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.
40. The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR) , addressed this aspect as follows:
In the case of Kaingu Elias Kasomo V R , Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence.
However, as the Court clarified in Tumaini Maasai Mwanya V R , MSA CR.A. NO. 364 OF 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age.
41. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that:
In defilement cases, medical evidence is paramount in determining the age of the victim. 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.
42. The minor was born on 6.4.2010, making her 12 years on 9.05.2022. The age was thus proved as 12 years.
43. Regarding penetration the medical evidence showed that there was an injury on the anus. Though the appellant raised issue that the minor was sodomised or raped and not defiled. This appears to be a confusion relating to what constitutes defilement. Defilement is set out in section 8(1) of the Sexual Offences Act. On the other hand, penetration, is defined under section 2 of the said Act as follows:
"Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
44. On the other hand, the Act defines "genital organs" as follows:
“Includes the whole or part of male or female genital organs and for purposes of this Act.”
45. Therefore, penetration of the anus qualifies as penetration for purposes of section 8(1) of the Sexual Offences Act. The evidence of the minor was consistent what happened.
46. The medical evidence shows that the minor was penetrated. It is not useful to raise the question of absence of spermatozoa. There is no requirement for ejaculation at all. Complete, or partial penetration, even if for fleeting moments, is still penetration. These were expert evidence. In addressing expert evidence, the court must have regard to the entire gamut of evidence, not just expert evidence. Courts have consistently emphasized the value of expert opinions in judicial proceedings; such evidence is not necessarily conclusive or binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:
The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.
47. Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:
… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.
48. Courts must give proper respect to the opinions of experts; such opinions are not, as it were, binding on the courts, and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eklr; [19951998] 1 EA 29, where it was held tha
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