(Being an Appeal from the whole of the Judgment, Conviction and Sentence of Hon. Geno Okwengu (SRM) in Kilungu Sexual Offences Case No. E050 of 2023, delivered on 30 th July 2025)
A. Background
1. The Appellant faced four counts of defilement contrary to the Sexual Offences Act No. 3 of 2006, each with an alternative charge of sexual assault. The charges were as follows.
2. On the first count, the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between June 2022 and November 2023, at Kyandui Village, Kitaingo Location, Mukaa Sub-County, Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of CMS, a child aged 12 years.
3. In the alternative to the first count, the Appellant was charged with sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act, it being alleged that on the same diverse dates and at the same location, the Appellant intentionally and unlawfully used his fingers to penetrate the vagina of CMS.
4. On the second count, the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between June 2022 and November 2023, at the same location, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of NSS, a child aged 9 years.
5. In the alternative, the Appellant was charged with sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act, it being alleged that on the same diverse dates and at the same location, the Appellant intentionally and unlawfully used his fingers to penetrate the vagina of NSS.
6. On the third count, the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between June 2022 and November 2023, at the same location, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of RMJ, a child aged 12 years.
7. In the alternative, the Appellant was charged with sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act, it being alleged that on the same diverse dates and at the same location, the Appellant intentionally and unlawfully used his fingers to penetrate the vagina of RMJ.
8. On the fourth count, the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between June 2022 and November 2023, at the same location, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of PMJ, a child aged 6 years.
9. In the alternative, the Appellant was charged with sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act, it being alleged that on the same diverse dates and at the same location, the Appellant intentionally and unlawfully used his fingers to penetrate the vagina of PMJ .
10. The Appellant pleaded not guilty to all four counts, whereupon the matter proceeded to full trial. In support of its case, the prosecution called nine (9) witnesses. At the close of the prosecution's case, the Appellant was placed on his defence and elected to give sworn testimony.
11. Upon considering the entirety of the evidence placed before it, the trial court, in a judgment delivered on 30 th July 2025, found the Appellant guilty on all four counts of defilement and convicted him accordingly. In respect of Count I, the Appellant was sentenced to twenty (20) years' imprisonment, in Count II, to life imprisonment; in Count III, to twenty (20) years' imprisonment and in Count IV, to life imprisonment. The learned trial magistrate directed that the sentences run concurrently.
12. Dissatisfied with both the conviction and sentence, the Appellant lodged the present appeal and challenges the decision of the trial court on the following grounds:
a) That the learned trial Magistrate erred in law and in fact by relying on evidence that was unreliable, fabricated, and allegedly procured through duress, thereby occasioning a miscarriage of justice.
b) That the learned trial Magistrate erred in law and in fact by relying on hearsay evidence and failing to appreciate that the charges against the Appellant were actuated by malice and ill will.
c) That the learned trial Magistrate erred in law and in fact by convicting the Appellant on mere allegations and presumptions without the benefit of DNA evidence linking him to the commission of the offences.
d) That the learned trial Magistrate erred in law and in fact by convicting the Appellant in the absence of medical evidence demonstrating his involvement in the alleged offences.
e) That the learned trial Magistrate erred in law and in fact by failing to properly scrutinise the prosecution evidence and by relying on inconsistent and insufficient evidence lacking probative value.
f) That the learned trial Magistrate erred in law and in fact by failing to appreciate the alleged inadequacies in the investigations conducted by the investigating officer.
g) That the learned trial Magistrate erred in law and in fact by failing to find that the delay in reporting the alleged offences cast doubt on the credibility of the prosecution case.
h) That the learned trial Magistrate erred in law and in fact by impermissibly shifting the burden of proof to the Appellant.
i) That the learned trial Magistrate erred in law and in fact by relying on testimony that was allegedly false despite having been given on oath.
j) That the learned trial Magistrate erred in law and in fact by finding that the prosecution had proved its case beyond reasonable doubt.
k) That the learned trial Magistrate erred in law and in fact by admitting and relying on medical evidence that allegedly offended the provisions of Section 77 of the Evidence Act.
l) That the learned trial Magistrate erred in law and in fact by conducting the trial in a manner that violated the Appellant’s right to a fair trial, particularly the guarantees under Article 50(2)(h) of the Constitution.
m) That the learned trial Magistrate erred in law and in fact by basing the conviction on unsworn evidence without the requisite corroboration.
13. The Appellant therefore prays that this Court allows the appeal, quashes the convictions, sets aside the sentences imposed by the trial court, and orders his immediate release unless otherwise lawfully held.
B. The Evidence in Brief
14. PMJ, the 4 th complainant, testified as PW1. Prior to receiving her evidence, the trial court conducted a voir dire examination. Upon conclusion, the court found that the minor had not demonstrated sufficient understanding of the nature of an oath and accordingly directed that her evidence be received on an unsworn basis.
15. PW1 testified that she previously lived with the Appellant and her siblings before being placed in a children’s home. She further stated that, behind closed doors, the Appellant would engage in what she termed as “bad manners” and would inappropriately touch her. She added that the Appellant, who she identified as her father, subjected her to such conduct, though she did not report the incidents to anyone at the time.
14. PW2 was subjected to a voir dire examination, upon the conclusion of which the court was satisfied that he understood the nature and obligation of an oath. He accordingly gave sworn testimony. He testified that the Appellant was his father and that they all resided under one roof. He identified the PW7 and PW1 as his sisters and stated that PW4 and PW5 were neighbours who frequently visited and spent the night at their residence. PW2 that at night, the Appellant would enter the complainants' room, instruct him to go to sleep, remove the girls' clothing and proceed to sleep with them. He stated that he witnessed this conduct over a period of approximately one week , after which he reported the matter to his uncle.
15. The trial court conducted a voir dire examination on PW4, the 1 st complainant, CMS. The court was satisfied that she understood the nature of an oath and could distinguish right from wrong, and she accordingly gave sworn testimony. PW4 testified that she was 12 years of age and that the 2 nd complainant NSS was her sister. She stated that the Appellant was well known to her as her grandfather, and that she and the other complainants had worked for him collecting sand, for which he paid them between Kshs. 50 and Kshs. 200.
16. PW4 recounted a specific incident in which the Appellant called her, NSS, and RMJ into his house, directed them to sit on the bed and remove their underwear, and proceeded to insert his fingers into each of their private parts in turn. He thereafter gave them bananas and threatened to kill them if they disclosed what had occurred.
17. PW4 recounted a further incident in which she had been sent by her grandmother to purchase milk. She left in the company of NSS and decided to call on RMJ along the way. Upon arriving at RMJ's home, they found the Appellant instead. The Appellant called them into the house, instructed them to remove their underwear, locked the door, and proceeded to defile PW4 by placing himself on top of her, thereafter doing the same to NSS. PW4 observed a white substance emanating from the Appellant's private parts, which spilled onto the bed. The Appellant gave them three doughnuts and warned them to maintain silence.
18. She further testified as to the profound consequences of the abuse, stating that she and her sister were no longer able to attend school as they had been driven from the area, and that other children at school had mocked them upon learning of what had occurred.
19. On cross-examination, PW4 did not waver and maintained that the Appellant had defiled her and her sister NSS. However, the Court notes that on re-examination, PW4 departed markedly from her evidence in chief and alleged that she had been directed by a manager to implicate the Appellant and that the events she had described had in fact not occurred. This retraction is a matter that the Court will address in due course when evaluating the credibility and weight of PW4's testimony.
20. The trial court conducted a voir dire examination on PW5, the 2 nd complainant, NSS, and was satisfied that she possessed sufficient intelligence to distinguish right from wrong. She accordingly gave sworn testimony. PW5 testified that the Appellant was her grandfather and that she and her sister CMS had worked for him as their mother did not provide them with financial support and their grandmother had directed them to seek employment. The Appellant remunerated them for their labour at varying rates of between Kshs. 50 and Kshs. 100.
21. The substance of PW5's testimony was largely consistent with the account given by her sister PW4. She recounted multiple incidents of defilement by the Appellant and stated that on one occasion she had reported the matter to her grandmother. She further recounted a specific incident in 2023 in which she and CMS were at the river when the Appellant appeared, directed them to remove their clothing, and proceeded to defile them. Their acts were interrupted when someone called Ngina (who did not testify before the court) came upon them and screamed, causing a gathering of people. Before the crowd arrived, the Appellant hastily instructed them to dress. PW5 reported the matter to her grandmother, who informed the village manager, who in turn escalated the matter to the police. PW5 was subsequently taken to hospital where she was examined and received treatment.
22. Following a voir dire examination, the trial court was satisfied that PW7, the 3 rd complainant RMJ, possessed sufficient intelligence to distinguish right from wrong, and she accordingly gave sworn testimony. PW7 testified that the Appellant was her father and that CMS was her friend and schoolmate. She narrated an encounter in which she had gone to fetch water at the river and was defiled in the bush by an unknown individual. She categorically denied that the person who defiled her was her father, the Appellant, and refuted the suggestion that she had ever been defiled by him. She stated that following the report of the matter, she was taken to hospital and examined.
23. The Court notes that PW7's evidence stands in stark contrast to the accounts of the other complainants, and this divergence will require careful evaluation when the Court considers the totality of the evidence.
24. In his defence the Appellant opted to give sworn testimony. He recounted the circumstances of his arrest on 12 th November 2023 and his subsequent arraignment before the trial court on 14 th November 2023. He denied any involvement in the offences with which he was charged and attributed his arrest to the machinations of his neighbour, one Peninah, with whom he was engaged in a land dispute.
25. The appeal was canvassed by way of written submissions, with both parties duly filing their respective submissions for the consideration of this Court.
C. Issues for Determination
26. From the memorandum of appeal and the submissions, the court deduces the following issues for determination:
(i) Whether the prosecution proved the offence of defilement beyond reasonable doubt on all four counts.
(ii) Whether the absence or nature of medical and DNA evidence undermined the prosecution case.
(iii) Whether the Appellant's right to a fair trial was violated by the trial court under Article 50(2)(h) of the Constitution.
(iv) Whether the medical evidence was properly admitted and compliant with Section 77 of the Evidence Act.
(v) Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case.
D. Legal Analysis
27. The duty of this Court on a first appeal is well settled. In Okeno v Republic [1972] EA 32 , it was held that a first appellate court must subject the entire evidence to fresh and exhaustive scrutiny while bearing in mind that it did not have the opportunity to see or hear witnesses.
28. The same position was reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that an appellate court is not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own independent conclusions. It always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
i. Whether the prosecution proved the offence of defilement beyond reasonable doubt on all four counts.
29. The offence of defilement is anchored on three key ingredients, namely: the age of the complainant (who must be a minor) , proof of penetration, and positive identification of the perpetrator . These elements are codified under Section 8(1) of the Sexual Offences Act, and each must be proved beyond reasonable doubt for a conviction to stand. (See George Opondo Olunga v Republic [2016] eKLR.)
30. Section 8(1)(2) and (3) of the Sexual Offences Act provides that:
(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) 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.
a. Age of the Complainant
31. The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v. Republic, Cr. App. No. 203 of 2009 , the Court of Appeal stated as follows:
In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1)...”(See also Kaingu Elias Kasomo v. Republic, Cr. App. No. 504 of 2010)
32. The Court of Appeal in Edwin Nyambogo Onsongo v 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 must be credible and reliable.” (emphasis added) .
33. In the present case, the prosecution placed on record birth certificates establishing the ages of the four complainants as follows:
i. The 1 st complainant, CMS, was born on 23 rd April 2012, making her approximately 10 years old at the time the incident first occurred.
ii. The 2 nd complainant, NSS (also referred to as NMS), was born on 15 th May 2014, making her about 8 years old at the time of the initial incident in June 2022, and approximately 9 years old when the matter was reported and the Appellant arrested in November 2023.
iii. The 3 rd complainant, RMJ, was born on 31 st January 2011, making her approximately 11 years old at the time the incident first occurred.
iv. The 4 th complainant, PMJ, was born on 2 nd February 2017, making her about 5 years old at the time of the initial incident in June 2022, and approximately 6 years old when the matter was reported and the Appellant apprehended in November 2023 .
34. Notably, the Appellant does not dispute the issue of age. In the circumstances, this Court finds that the element of age of the complainants was proved beyond reasonable doubt .
b. Identification of the Perpetrator
35. The distinction between recognition and identification of a total stranger is significant. As the Court of Appeal observed in Reuben Taabu Anjononi & 2 Others v Republic [1980] KECA 23 (KLR) , recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.
36. More recently, in Abuku & Another v Republic [2026] KECA 722 (KLR), the Court of Appeal reaffirmed the evidentiary strength of recognition evidence stating thus:
Courts distinguish between identification of a stranger and recognition of a known person, asserting that recognition evidence generally carries higher probative value because it involves a familiar cognitive process rather than a fresh observation. When a witness identifies someone known to them, it is a process of recognition, which is a different and often more reliable cognitive process than identifying a stranger. Prior knowledge of an accused means a witness requires less time to make an accurate identification.
37. The 1 st and 2 nd complainants testified that the Appellant was their grandfather and a person well known to them, as they frequently worked for him and interacted with the 3rd and 4th complainants, who were his children. The Appellant does not dispute that he was known to the complainants by virtue of this familial relationship.
38. However, it is important to note that the issue of identification is not limited to mere recognition of the Appellant as a known person but extends to establishing whether he was the perpetrator of the offences alleged. The central question, therefore, is whether the Appellant was positively identified as the person who committed the offences charged. This issue shall be considered in greater detail in the analysis of the evidence relating to penetration.
c. Proof of Penetration
39. Penetration is a fundamental element of the offence of defilement and must be established through cogent and credible evidence. 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 person.
40. In sexual offence cases, proof of penetration may be established through the testimony of the victim and, where available, corroborative medical or circumstantial evidence. In the case of Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration:
The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt .
41. Further, in Mark Oiruri Mose v Republic [2013] eKLR , the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. Also, in Hilary Nyongesa v Republic [2010] eKLR and Kassim Ali v Republic [2006] eKLR , the Court of Appeal reaffirmed that hymenal tears, whether fresh or healed, together with vaginal lacerations constitute strong proof of penetration.
42. There is no dispute on the medical evidence. The clinical examinations conducted on all four complainants confirmed that they had each been defiled. The sole question for determination, therefore, is whether the prosecution established beyond reasonable doubt that it was the Appellant who committed the offences. The Court now proceeds to address itself on that question.
i. Count I
43. The Court now turns to the evidence in respect of the 1 st complainant, CMS, who testified as PW4. As noted above, PW4 gave sworn testimony and provided a detailed and cogent account of multiple incidents of defilement by the Appellant. The difficulty, however, arises from PW4's conduct on re-examination, during which she retracted the entirety of her evidence in chief and alleged that she had been directed by a manager to falsely implicate the Appellant. The Court must therefore grapple with the question of which version of PW4's testimony represents the truth.
44. The starting point is the established legal position on hostile witnesses. In Coles v Coles (1866) L.R. 1P. & D. 70 , cited with approval by the Court of Appeal in Abel Monari Nyanamba & 4 others v Republic [1996] eKLR , defined a hostile witness as one who, from the manner in which he gives evidence, shows that he is not desirous of telling the truth to the court. Further, in Alowo v Republic [1972] EA 324 , the court stated that the basis for treating a witness as hostile is that the conflict between the evidence being given and an earlier statement renders the witness unreliable, making their evidence of negligible probative value.
45. In the case of Batala v Republic (1974) EA. 402 the court held that:-
The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to cross-examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile and it can be given little, if any, weight.
46. The Court is guided by the well-established principle that a retraction does not automatically render the original testimony unreliable or incapable of being acted upon. The trial court, having had the benefit of observing PW4 give her evidence, was best placed to assess her demeanour and the weight to be attached to each version of her account. The Court notes that PW4's evidence in chief was detailed, spontaneous, and internally consistent. These characteristics are difficult to attribute to a coached or fabricated narrative. Her retraction, by contrast, was bare and unsubstantiated, offering no cogent explanation for how or why a child of her age came to fabricate such a specific and detailed account of repeated sexual abuse.
47. Critically, PW4's evidence in chief finds direct and independent corroboration in the sworn testimony of PW5, her sister, whose account of the incidents of defilement was strikingly similar in its particulars — the same modus operandi, the same location, the same inducements, and the same threats. The convergence of these two independent accounts is, in the Court's assessment, far more consistent with the truth than with a coordinated fabrication. The suggestion that these children were coached to give a common false narrative is, in the absence of any credible evidence to that effect, speculative and unpersuasive.
48. The Court further notes the medical evidence confirming that CMS had been defiled, which is entirely consistent with her evidence in chief.
49. Taking the evidence as a whole, this Court is satisfied that the retraction by PW4 was not a truthful account but rather an attempt, whether born of fear, familial pressure, or external influence, to resile from testimony that truthfully implicated the Appellant. The Court finds that the prosecution established the ingredients of age, penetration, and identity of the perpetrator beyond reasonable doubt in respect of Count 1.
50. The conviction of the Appellant on Count 1 for the defilement of CMS contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 is accordingly upheld.
ii. Count II
51. Turning to the evidence in respect of the 2nd complainant, NSS, who testified as PW5, the Court notes that PW5 gave sworn testimony that was detailed, consistent, and unshaken under cross-examination.
52. The Court has already noted the striking similarity between the testimony of PW5 and that of PW4 in her evidence in chief. That similarity, far from suggesting coaching, points to a shared experience of abuse at the hands of the same perpetrator. PW5's testimony was independent, consistent, and corroborated by the medical evidence confirming that she had been defiled.
53. This Court is satisfied that the prosecution established the ingredients of age, penetration, and identity of the perpetrator beyond reasonable doubt in respect of Count 2.
54. The conviction of the Appellant on Count 2 for the defilement of NSS contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 is accordingly upheld.
iii. Count III
55. The determination on Count 3 presents the Court with its most difficult analytical challenge. The 3rd complainant, RMJ, testified as PW7 and gave sworn testimony. Unlike the other complainants, PW7 categorically denied that the Appellant was responsible for her defilement. She testified that she had been defiled by an unknown person in the bush while she was fetching water at the river, and she maintained this position consistently throughout her testimony.
56. The Court is acutely conscious of the evidential significance of this denial. PW7 is the Appellant's own daughter. The Court observes that in cases of intra-familial sexual abuse, it is not uncommon for child complainants who share a close relationship with the accused to deny or minimise the abuse, whether out of loyalty, fear of family disruption, or as a result of pressure brought to bear upon them. The Court is therefore not obliged to accept PW7's denial at face value, and must consider it in the context of all the evidence on record.
57. In this regard, the Court notes the evidence of PW2, who testified that he witnessed the Appellant entering the room where all four complainants slept and having sexual intercourse with the girls therein.
58. This Court is therefore unable to say, with the degree of certainty that the law demands, that the chain of circumstantial evidence in respect of Count 3 is so complete as to exclude every reasonable hypothesis other than the guilt of the Appellant. The possibility that RMJ was indeed defiled by a person other than the Appellant, as she herself consistently maintained, cannot, on the evidence before this Court, be excluded beyond reasonable doubt.
59. Accordingly, this Court finds that the prosecution failed to establish beyond reasonable doubt that it was the Appellant who defiled RMJ. The conviction of the Appellant on Count 3 for the defilement of RMJ contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 is hereby quashed and the sentence in respect thereof set aside. The Appellant is acquitted on Count 3.
iv. Count IV
60. PW1 gave unsworn testimony. She identified the Appellant as her father and testified that he would enter her room at night and subject her to what she termed "bad manners," and that he would touch her. The Appellant contends that the trial court erred in convicting him on the basis of unsworn testimony, a
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A. Background
1. The Appellant faced four counts of defilement contrary to the Sexual Offences Act No. 3 of 2006, each with an alternative charge of sexual assault. The charges were as follows.
2. On the first count, the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between June 2022 and November 2023, at Kyandui Village, Kitaingo Location, Mukaa Sub-County, Makueni County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of CMS, a child aged 12 years.
3. In the alternative to the first count, the Appellant was charged with sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act, it being alleged that on the same diverse dates and at the same location, the Appellant intentionally and unlawfully used his fingers to penetrate the vagina of CMS.
4. On the second count, the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between June 2022 and November 2023, at the same location, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of NSS, a child aged 9 years.
5. In the alternative, the Appellant was charged with sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act, it being alleged that on the same diverse dates and at the same location, the Appellant intentionally and unlawfully used his fingers to penetrate the vagina of NSS.
6. On the third count, the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between June 2022 and November 2023, at the same location, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of RMJ, a child aged 12 years.
7. In the alternative, the Appellant was charged with sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act, it being alleged that on the same diverse dates and at the same location, the Appellant intentionally and unlawfully used his fingers to penetrate the vagina of RMJ.
8. On the fourth count, the Appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between June 2022 and November 2023, at the same location, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of PMJ, a child aged 6 years.
9. In the alternative, the Appellant was charged with sexual assault contrary to Section 5(1)(a)(i) as read with Section 5(2) of the Sexual Offences Act, it being alleged that on the same diverse dates and at the same location, the Appellant intentionally and unlawfully used his fingers to penetrate the vagina of PMJ .
10. The Appellant pleaded not guilty to all four counts, whereupon the matter proceeded to full trial. In support of its case, the prosecution called nine (9) witnesses. At the close of the prosecution's case, the Appellant was placed on his defence and elected to give sworn testimony.
11. Upon considering the entirety of the evidence placed before it, the trial court, in a judgment delivered on 30 th July 2025, found the Appellant guilty on all four counts of defilement and convicted him accordingly. In respect of Count I, the Appellant was sentenced to twenty (20) years' imprisonment, in Count II, to life imprisonment; in Count III, to twenty (20) years' imprisonment and in Count IV, to life imprisonment. The learned trial magistrate directed that the sentences run concurrently.
12. Dissatisfied with both the conviction and sentence, the Appellant lodged the present appeal and challenges the decision of the trial court on the following grounds:
a) That the learned trial Magistrate erred in law and in fact by relying on evidence that was unreliable, fabricated, and allegedly procured through duress, thereby occasioning a miscarriage of justice.
b) That the learned trial Magistrate erred in law and in fact by relying on hearsay evidence and failing to appreciate that the charges against the Appellant were actuated by malice and ill will.
c) That the learned trial Magistrate erred in law and in fact by convicting the Appellant on mere allegations and presumptions without the benefit of DNA evidence linking him to the commission of the offences.
d) That the learned trial Magistrate erred in law and in fact by convicting the Appellant in the absence of medical evidence demonstrating his involvement in the alleged offences.
e) That the learned trial Magistrate erred in law and in fact by failing to properly scrutinise the prosecution evidence and by relying on inconsistent and insufficient evidence lacking probative value.
f) That the learned trial Magistrate erred in law and in fact by failing to appreciate the alleged inadequacies in the investigations conducted by the investigating officer.
g) That the learned trial Magistrate erred in law and in fact by failing to find that the delay in reporting the alleged offences cast doubt on the credibility of the prosecution case.
h) That the learned trial Magistrate erred in law and in fact by impermissibly shifting the burden of proof to the Appellant.
i) That the learned trial Magistrate erred in law and in fact by relying on testimony that was allegedly false despite having been given on oath.
j) That the learned trial Magistrate erred in law and in fact by finding that the prosecution had proved its case beyond reasonable doubt.
k) That the learned trial Magistrate erred in law and in fact by admitting and relying on medical evidence that allegedly offended the provisions of Section 77 of the Evidence Act.
l) That the learned trial Magistrate erred in law and in fact by conducting the trial in a manner that violated the Appellant’s right to a fair trial, particularly the guarantees under Article 50(2)(h) of the Constitution.
m) That the learned trial Magistrate erred in law and in fact by basing the conviction on unsworn evidence without the requisite corroboration.
13. The Appellant therefore prays that this Court allows the appeal, quashes the convictions, sets aside the sentences imposed by the trial court, and orders his immediate release unless otherwise lawfully held.
B. The Evidence in Brief
14. PMJ, the 4 th complainant, testified as PW1. Prior to receiving her evidence, the trial court conducted a voir dire examination. Upon conclusion, the court found that the minor had not demonstrated sufficient understanding of the nature of an oath and accordingly directed that her evidence be received on an unsworn basis.
15. PW1 testified that she previously lived with the Appellant and her siblings before being placed in a children’s home. She further stated that, behind closed doors, the Appellant would engage in what she termed as “bad manners” and would inappropriately touch her. She added that the Appellant, who she identified as her father, subjected her to such conduct, though she did not report the incidents to anyone at the time.
14. PW2 was subjected to a voir dire examination, upon the conclusion of which the court was satisfied that he understood the nature and obligation of an oath. He accordingly gave sworn testimony. He testified that the Appellant was his father and that they all resided under one roof. He identified the PW7 and PW1 as his sisters and stated that PW4 and PW5 were neighbours who frequently visited and spent the night at their residence. PW2 that at night, the Appellant would enter the complainants' room, instruct him to go to sleep, remove the girls' clothing and proceed to sleep with them. He stated that he witnessed this conduct over a period of approximately one week , after which he reported the matter to his uncle.
15. The trial court conducted a voir dire examination on PW4, the 1 st complainant, CMS. The court was satisfied that she understood the nature of an oath and could distinguish right from wrong, and she accordingly gave sworn testimony. PW4 testified that she was 12 years of age and that the 2 nd complainant NSS was her sister. She stated that the Appellant was well known to her as her grandfather, and that she and the other complainants had worked for him collecting sand, for which he paid them between Kshs. 50 and Kshs. 200.
16. PW4 recounted a specific incident in which the Appellant called her, NSS, and RMJ into his house, directed them to sit on the bed and remove their underwear, and proceeded to insert his fingers into each of their private parts in turn. He thereafter gave them bananas and threatened to kill them if they disclosed what had occurred.
17. PW4 recounted a further incident in which she had been sent by her grandmother to purchase milk. She left in the company of NSS and decided to call on RMJ along the way. Upon arriving at RMJ's home, they found the Appellant instead. The Appellant called them into the house, instructed them to remove their underwear, locked the door, and proceeded to defile PW4 by placing himself on top of her, thereafter doing the same to NSS. PW4 observed a white substance emanating from the Appellant's private parts, which spilled onto the bed. The Appellant gave them three doughnuts and warned them to maintain silence.
18. She further testified as to the profound consequences of the abuse, stating that she and her sister were no longer able to attend school as they had been driven from the area, and that other children at school had mocked them upon learning of what had occurred.
19. On cross-examination, PW4 did not waver and maintained that the Appellant had defiled her and her sister NSS. However, the Court notes that on re-examination, PW4 departed markedly from her evidence in chief and alleged that she had been directed by a manager to implicate the Appellant and that the events she had described had in fact not occurred. This retraction is a matter that the Court will address in due course when evaluating the credibility and weight of PW4's testimony.
20. The trial court conducted a voir dire examination on PW5, the 2 nd complainant, NSS, and was satisfied that she possessed sufficient intelligence to distinguish right from wrong. She accordingly gave sworn testimony. PW5 testified that the Appellant was her grandfather and that she and her sister CMS had worked for him as their mother did not provide them with financial support and their grandmother had directed them to seek employment. The Appellant remunerated them for their labour at varying rates of between Kshs. 50 and Kshs. 100.
21. The substance of PW5's testimony was largely consistent with the account given by her sister PW4. She recounted multiple incidents of defilement by the Appellant and stated that on one occasion she had reported the matter to her grandmother. She further recounted a specific incident in 2023 in which she and CMS were at the river when the Appellant appeared, directed them to remove their clothing, and proceeded to defile them. Their acts were interrupted when someone called Ngina (who did not testify before the court) came upon them and screamed, causing a gathering of people. Before the crowd arrived, the Appellant hastily instructed them to dress. PW5 reported the matter to her grandmother, who informed the village manager, who in turn escalated the matter to the police. PW5 was subsequently taken to hospital where she was examined and received treatment.
22. Following a voir dire examination, the trial court was satisfied that PW7, the 3 rd complainant RMJ, possessed sufficient intelligence to distinguish right from wrong, and she accordingly gave sworn testimony. PW7 testified that the Appellant was her father and that CMS was her friend and schoolmate. She narrated an encounter in which she had gone to fetch water at the river and was defiled in the bush by an unknown individual. She categorically denied that the person who defiled her was her father, the Appellant, and refuted the suggestion that she had ever been defiled by him. She stated that following the report of the matter, she was taken to hospital and examined.
23. The Court notes that PW7's evidence stands in stark contrast to the accounts of the other complainants, and this divergence will require careful evaluation when the Court considers the totality of the evidence.
24. In his defence the Appellant opted to give sworn testimony. He recounted the circumstances of his arrest on 12 th November 2023 and his subsequent arraignment before the trial court on 14 th November 2023. He denied any involvement in the offences with which he was charged and attributed his arrest to the machinations of his neighbour, one Peninah, with whom he was engaged in a land dispute.
25. The appeal was canvassed by way of written submissions, with both parties duly filing their respective submissions for the consideration of this Court.
C. Issues for Determination
26. From the memorandum of appeal and the submissions, the court deduces the following issues for determination:
(i) Whether the prosecution proved the offence of defilement beyond reasonable doubt on all four counts.
(ii) Whether the absence or nature of medical and DNA evidence undermined the prosecution case.
(iii) Whether the Appellant's right to a fair trial was violated by the trial court under Article 50(2)(h) of the Constitution.
(iv) Whether the medical evidence was properly admitted and compliant with Section 77 of the Evidence Act.
(v) Whether the conviction and sentence by the trial court were safe and justified in the circumstances of the case.
D. Legal Analysis
27. The duty of this Court on a first appeal is well settled. In Okeno v Republic [1972] EA 32 , it was held that a first appellate court must subject the entire evidence to fresh and exhaustive scrutiny while bearing in mind that it did not have the opportunity to see or hear witnesses.
28. The same position was reiterated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that an appellate court is not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own independent conclusions. It always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
i. Whether the prosecution proved the offence of defilement beyond reasonable doubt on all four counts.
29. The offence of defilement is anchored on three key ingredients, namely: the age of the complainant (who must be a minor) , proof of penetration, and positive identification of the perpetrator . These elements are codified under Section 8(1) of the Sexual Offences Act, and each must be proved beyond reasonable doubt for a conviction to stand. (See George Opondo Olunga v Republic [2016] eKLR.)
30. Section 8(1)(2) and (3) of the Sexual Offences Act provides that:
(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) 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.
a. Age of the Complainant
31. The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v. Republic, Cr. App. No. 203 of 2009 , the Court of Appeal stated as follows:
In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1)...”(See also Kaingu Elias Kasomo v. Republic, Cr. App. No. 504 of 2010)
32. The Court of Appeal in Edwin Nyambogo Onsongo v 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 must be credible and reliable.” (emphasis added) .
33. In the present case, the prosecution placed on record birth certificates establishing the ages of the four complainants as follows:
i. The 1 st complainant, CMS, was born on 23 rd April 2012, making her approximately 10 years old at the time the incident first occurred.
ii. The 2 nd complainant, NSS (also referred to as NMS), was born on 15 th May 2014, making her about 8 years old at the time of the initial incident in June 2022, and approximately 9 years old when the matter was reported and the Appellant arrested in November 2023.
iii. The 3 rd complainant, RMJ, was born on 31 st January 2011, making her approximately 11 years old at the time the incident first occurred.
iv. The 4 th complainant, PMJ, was born on 2 nd February 2017, making her about 5 years old at the time of the initial incident in June 2022, and approximately 6 years old when the matter was reported and the Appellant apprehended in November 2023 .
34. Notably, the Appellant does not dispute the issue of age. In the circumstances, this Court finds that the element of age of the complainants was proved beyond reasonable doubt .
b. Identification of the Perpetrator
35. The distinction between recognition and identification of a total stranger is significant. As the Court of Appeal observed in Reuben Taabu Anjononi & 2 Others v Republic [1980] KECA 23 (KLR) , recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.
36. More recently, in Abuku & Another v Republic [2026] KECA 722 (KLR), the Court of Appeal reaffirmed the evidentiary strength of recognition evidence stating thus:
Courts distinguish between identification of a stranger and recognition of a known person, asserting that recognition evidence generally carries higher probative value because it involves a familiar cognitive process rather than a fresh observation. When a witness identifies someone known to them, it is a process of recognition, which is a different and often more reliable cognitive process than identifying a stranger. Prior knowledge of an accused means a witness requires less time to make an accurate identification.
37. The 1 st and 2 nd complainants testified that the Appellant was their grandfather and a person well known to them, as they frequently worked for him and interacted with the 3rd and 4th complainants, who were his children. The Appellant does not dispute that he was known to the complainants by virtue of this familial relationship.
38. However, it is important to note that the issue of identification is not limited to mere recognition of the Appellant as a known person but extends to establishing whether he was the perpetrator of the offences alleged. The central question, therefore, is whether the Appellant was positively identified as the person who committed the offences charged. This issue shall be considered in greater detail in the analysis of the evidence relating to penetration.
c. Proof of Penetration
39. Penetration is a fundamental element of the offence of defilement and must be established through cogent and credible evidence. 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 person.
40. In sexual offence cases, proof of penetration may be established through the testimony of the victim and, where available, corroborative medical or circumstantial evidence. In the case of Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration:
The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt .
41. Further, in Mark Oiruri Mose v Republic [2013] eKLR , the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. Also, in Hilary Nyongesa v Republic [2010] eKLR and Kassim Ali v Republic [2006] eKLR , the Court of Appeal reaffirmed that hymenal tears, whether fresh or healed, together with vaginal lacerations constitute strong proof of penetration.
42. There is no dispute on the medical evidence. The clinical examinations conducted on all four complainants confirmed that they had each been defiled. The sole question for determination, therefore, is whether the prosecution established beyond reasonable doubt that it was the Appellant who committed the offences. The Court now proceeds to address itself on that question.
i. Count I
43. The Court now turns to the evidence in respect of the 1 st complainant, CMS, who testified as PW4. As noted above, PW4 gave sworn testimony and provided a detailed and cogent account of multiple incidents of defilement by the Appellant. The difficulty, however, arises from PW4's conduct on re-examination, during which she retracted the entirety of her evidence in chief and alleged that she had been directed by a manager to falsely implicate the Appellant. The Court must therefore grapple with the question of which version of PW4's testimony represents the truth.
44. The starting point is the established legal position on hostile witnesses. In Coles v Coles (1866) L.R. 1P. & D. 70 , cited with approval by the Court of Appeal in Abel Monari Nyanamba & 4 others v Republic [1996] eKLR , defined a hostile witness as one who, from the manner in which he gives evidence, shows that he is not desirous of telling the truth to the court. Further, in Alowo v Republic [1972] EA 324 , the court stated that the basis for treating a witness as hostile is that the conflict between the evidence being given and an earlier statement renders the witness unreliable, making their evidence of negligible probative value.
45. In the case of Batala v Republic (1974) EA. 402 the court held that:-
The giving of leave to treat a witness as hostile is equivalent to a finding that the witness is unreliable. It enables the party calling the witness to cross-examine him and destroy his evidence. If a witness is unreliable, none of his evidence can be relied on, whether given before or after he was treated as hostile and it can be given little, if any, weight.
46. The Court is guided by the well-established principle that a retraction does not automatically render the original testimony unreliable or incapable of being acted upon. The trial court, having had the benefit of observing PW4 give her evidence, was best placed to assess her demeanour and the weight to be attached to each version of her account. The Court notes that PW4's evidence in chief was detailed, spontaneous, and internally consistent. These characteristics are difficult to attribute to a coached or fabricated narrative. Her retraction, by contrast, was bare and unsubstantiated, offering no cogent explanation for how or why a child of her age came to fabricate such a specific and detailed account of repeated sexual abuse.
47. Critically, PW4's evidence in chief finds direct and independent corroboration in the sworn testimony of PW5, her sister, whose account of the incidents of defilement was strikingly similar in its particulars — the same modus operandi, the same location, the same inducements, and the same threats. The convergence of these two independent accounts is, in the Court's assessment, far more consistent with the truth than with a coordinated fabrication. The suggestion that these children were coached to give a common false narrative is, in the absence of any credible evidence to that effect, speculative and unpersuasive.
48. The Court further notes the medical evidence confirming that CMS had been defiled, which is entirely consistent with her evidence in chief.
49. Taking the evidence as a whole, this Court is satisfied that the retraction by PW4 was not a truthful account but rather an attempt, whether born of fear, familial pressure, or external influence, to resile from testimony that truthfully implicated the Appellant. The Court finds that the prosecution established the ingredients of age, penetration, and identity of the perpetrator beyond reasonable doubt in respect of Count 1.
50. The conviction of the Appellant on Count 1 for the defilement of CMS contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 is accordingly upheld.
ii. Count II
51. Turning to the evidence in respect of the 2nd complainant, NSS, who testified as PW5, the Court notes that PW5 gave sworn testimony that was detailed, consistent, and unshaken under cross-examination.
52. The Court has already noted the striking similarity between the testimony of PW5 and that of PW4 in her evidence in chief. That similarity, far from suggesting coaching, points to a shared experience of abuse at the hands of the same perpetrator. PW5's testimony was independent, consistent, and corroborated by the medical evidence confirming that she had been defiled.
53. This Court is satisfied that the prosecution established the ingredients of age, penetration, and identity of the perpetrator beyond reasonable doubt in respect of Count 2.
54. The conviction of the Appellant on Count 2 for the defilement of NSS contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 is accordingly upheld.
iii. Count III
55. The determination on Count 3 presents the Court with its most difficult analytical challenge. The 3rd complainant, RMJ, testified as PW7 and gave sworn testimony. Unlike the other complainants, PW7 categorically denied that the Appellant was responsible for her defilement. She testified that she had been defiled by an unknown person in the bush while she was fetching water at the river, and she maintained this position consistently throughout her testimony.
56. The Court is acutely conscious of the evidential significance of this denial. PW7 is the Appellant's own daughter. The Court observes that in cases of intra-familial sexual abuse, it is not uncommon for child complainants who share a close relationship with the accused to deny or minimise the abuse, whether out of loyalty, fear of family disruption, or as a result of pressure brought to bear upon them. The Court is therefore not obliged to accept PW7's denial at face value, and must consider it in the context of all the evidence on record.
57. In this regard, the Court notes the evidence of PW2, who testified that he witnessed the Appellant entering the room where all four complainants slept and having sexual intercourse with the girls therein.
58. This Court is therefore unable to say, with the degree of certainty that the law demands, that the chain of circumstantial evidence in respect of Count 3 is so complete as to exclude every reasonable hypothesis other than the guilt of the Appellant. The possibility that RMJ was indeed defiled by a person other than the Appellant, as she herself consistently maintained, cannot, on the evidence before this Court, be excluded beyond reasonable doubt.
59. Accordingly, this Court finds that the prosecution failed to establish beyond reasonable doubt that it was the Appellant who defiled RMJ. The conviction of the Appellant on Count 3 for the defilement of RMJ contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 is hereby quashed and the sentence in respect thereof set aside. The Appellant is acquitted on Count 3.
iv. Count IV
60. PW1 gave unsworn testimony. She identified the Appellant as her father and testified that he would enter her room at night and subject her to what she termed "bad manners," and that he would touch her. The Appellant contends that the trial court erred in convicting him on the basis of unsworn testimony, a
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