[1] Before the lower court, the appellant, Jared Odira Oyugi , was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on the 18 th day of October 2024 at Kadwet Sub-location in Ndhiwa Sub-County within the County of Homa Bay in the Republic of Kenya, he intentionally and unlawfully caused his penis to penetrate the vagina of F A O, a child aged 14 years.
[2] In the alternative, the appellant was charged with committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on the 18 th day of October 2024 at Kadwet Sub-location in Ndhiwa Sub-County within the County of Homa Bay in the Republic of Kenya, he intentionally and unlawfully caused his penis to touch the vagina of F A O, a child aged 14 years.
[3] The appellant denied the charges and upon trial, was found guilty of the substantive charge. He was accordingly convicted thereof and sentenced to 20 years’ imprisonment on the 8 th May 2025.
[4] Being dissatisfied with his conviction and sentence, the appellant filed this appeal on the 21 st May 2025. He thereafter filed Amended Grounds of Appeal raising the following grounds:
[a] That the learned trial magistrate grossly erred in law and fact by convicting him on a defective plea.
[b] The learned trial magistrate grossly erred in law and fact by presiding over a defective or unfair trial contrary to Article 50(2)(m) of the Constitution.
[c] The learned trial magistrate erred both in law and fact in failing to simultaneously analyze and evaluate the evidence on record with a view to arriving at balanced and objective findings based on the evidence on record.
[d] The learned trial magistrate grossly erred in law and fact by making a finding that the prosecution had proved its case beyond reasonable doubt despite opaque layer of contradictions, inconsistencies and discrepancies in the prosecution case which pointed to a fabricated and/or made up case.
[e] The learned trial magistrate erroneously shifted the burden of proof to the appellant hence his defence was not given due consideration.
[f] The learned trial magistrate grossly erred in law and fact by failing to take into account the period of time that he had spent in custody prior to being sentenced, contrary to Section 333(2) of the Criminal Procedure Code.
[5] On the basis of the foregoing, the appellant prayed that his appeal be allowed in its entirety, the conviction and sentence set aside.
[6] Directions were given herein on the 25 th November 2025 that the appeal be canvassed by way of written submissions. Hence, the appellant complied and filed his written submissions herein on 25 th November 2025. He submitted that the plea was defective in that, upon recording his response to the charges and the particulars supplied, the learned magistrate did not enter a plea of guilty or not guilty as required. The appellant argued that that omission rendered the proceedings a nullity. He relied on Ephantus Kamau & another v Republic [2014] eKLR as to the import of Section 297 of the Criminal Procedure Code.
[7] The appellant further submitted that the learned magistrate erred by failing to indicate the language used in the course of the trial. He pointed out that some of the witnesses gave evidence in English and others in Kiswahili without any indication as to whether the same was translated to Dholuo which was preferred language of communication. He urged the Court to find that his right to fair hearing as protected by Article 50(m) was grossly violated. He placed reliance in this regard on Kiyato v Republic [1982-88] KLR 418 and Swanibu Simbauni & another v Republic, Criminal Appeal No. 243 of 2005 (Kisumu).
[8] It was further the contention of the appellant that his defence was not given due attention by the learned magistrate. He cited Section 213 of the Criminal Procedure Code to support his argument that he was not given an opportunity to address the Court by way of final submissions before the judgment date was taken. On the authority of Akhunya v Republic [2003] eKLR and Salan Dean v Republic [1996] EA 272, the appellant urged the Court to find that this was a gross misdirection that amounted to a violation of his fair trial rights.
[9] Further to the foregoing, the appellant made reference to what he perceived to be fatal contradictions, inconsistencies and discrepancies in the prosecution case that ought to have entitled him to an acquittal. He relied on the case of David Oteabuo v Federal Republic of Nigeria [2014] LPE LR 22555 (CA) and John Cansio De Sa v Amin [1943] EACA and urged the Court to find that, in view of the inconsistencies, it cannot be said that the prosecution proved its case beyond reasonable doubt.
[10] On the burden of proof, the appellant impugned the judgment of the lower court and submitted that it erred by shifting the burden of proof from the prosecution where it lay to the defence. He relied on the cases of Stephen Chara Mavuo v Republic [2015] eKLR and Woolmington v Republic [1939] AC 462 to underscore the principle that it is the duty of the prosecution to prove the guilt of an accused person.
[11] Lastly, the appellant submitted that he lost his freedom on the 18 th October 2024 and was detained until the 8 th May 2025 when he was sentenced. He therefore urged the Court to find that the learned magistrate erred in failing to take that period into account as required by Section 333(2) of the Criminal Procedure Code.
[12] On the basis of the foregoing, the appellant urged the Court to find that the charge of defilement was not proved against him to the requisite standard and that his fair trial rights were violated in the process. He prayed that his appeal be allowed, the conviction recorded against him quashed and the sentence set aside.
[13] The respondent relied on the written submissions filed on 19 th December 2025. It was the submission of counsel that the lower court properly found that the offence of defilement was proved by the prosecution beyond reasonable doubt and that all the elements of the offence were proved, namely, that the victim was a child, that there was penetration and that the perpetrator was properly identified.
[14] Counsel further submitted that the prosecution was able to prove that the complainant was a child through the production of the complainant's birth certificate which indicated that she was aged 14 years, having been born on 15 th October 2010. It was further the contention of the respondent that the complainant’s age was also proved through the complainant's mother (PW1) who also testified the complaint was born on 15 th October 2010.
[15] On penetration, the respondent urged the Court to find that there was cogent proof by way of the evidence of the complainant as to how the appellant defiled her. Counsel further submitted that the complainant’s testimony was corroborated by the medical evidence of PW5, who confirmed that the complainant's external genitalia were bruised and that the vaginal walls were reddish; and that these findings were consistent with penetration.
[16] On identification of the perpetrator, the respondent submitted that the lower court correctly believed the complainant who positively identified the appellant and stated that he was well known to her because he used to work for her uncle and was her boyfriend. She further confirmed that she was arrested in the company of the appellant and that both of them were taken by the Assistant chief to Kobodo Police Station.
[17] The respondent urged the Court to note that, in addition to the evidence of the complainant, PW3, an uncle to the complainant and a security guard at her school, confirmed that, on the material day at 5.00 a.m., he saw the appellant and the complainant leaving the main gate of his brother's place where the appellant was then working as a herdsman and that on seeing him they ran away. PW3 had earlier received a call from the complaint's mother at 3.00 a.m. informing him that her daughter was missing.
[18] Based on the above, the respondent urged the Court to find that all the ingredients of the offence of defilement were proved before the lower court beyond reasonable doubt. The respondent further submitted that the prosecution's evidence was credible and consistent; and that the trial court properly convicted the appellant on a properly taken and non-defective plea. It was also the contention of the respondent that the appellant was able to communicate effectively with the lower court right from the date of his arraignment when he indicated his preferred language of communication to be Dholuo. Counsel urged the Court to note that he was able to respond to the charges and thereafter cross-examined witnesses effectively before presenting his unsworn statement of defence.
[19] As for Ground 6 where the appellant prayed for the days spent in pre-sentence custody to be taken into account, the respondent had no objection and submitted that that ground is in line with Section 333(2) of the Criminal Procedure Code. The respondent otherwise urged the Court to find that the sentence of twenty (20) years' imprisonment is lawful and need not be disturbed as it is the minimum sentence prescribed under Section 8(3) of the Sexual Offences Act where the victim is between the ages of 12 and 15 years.
[20] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that I did not have the opportunity to see or hear the witnesses testify. (see Okeno v Republic [1972] EA 32 ).
[21] Before the lower court, the prosecution called six witnesses. The first witness was J A O (PW1), the mother of the complainant. She testified that she returned home at about 21:00 hours on 17 th October 2024 and did not find the complainant at home. She inquired from her other children but none knew of the complainant’s whereabouts. She suspected that she may have gone to the house of her boyfriend known as Jack. The following morning, she went to Jack’s grandmother’s place but did not find any trace of the minor. She consequently reported the matter to the teachers at the complainant’s school and to the area chief. The following day, she was informed that the minor had been found in the company of the appellant, and that the appellant had been arrested.
[22] PW1 further stated that the minor was 14 years old at the time and gave her date of birth as 15 th October 2010. She also availed the Certificate of Birth in respect of the minor, which was exhibited before the lower court.
[23] The minor testified as PW2 and stated that she was 14 years old at the time. She stated that she was a student living with her parents; and that she used to sleep in the kitchen; and that on the night in question, she left the kitchen at about 22:00 hours and went to see her boyfriend, the appellant. She explained that the appellant was then staying at her uncle’s home where he was working; and that on arrival the appellant opened the gate for her and took her to his place of residence. They engaged in sexual intercourse that night after which she returned home but found the kitchen locked. She returned to the appellant’s place and spent the night with him.
[24] It was further the testimony of PW2 that he prevailed upon the appellant to accompany her home to explain to her mother that she had spent the night at his place. According to her version as they were about to discuss the matter with PW1, the chief arrived and arrested the appellant. They were both taken to the police station as Kobodo. She was thereafter taken for examination at Ndhiwa Sub County Hospital.
[25] The complainant gave her date of birth as 15 th October 2010 and identified her Certificate of Birth before the lower court along with the treatment documents issued to her at Ndhiwa Sub County Hospital.
[26] The complainant’s uncle, S O O (PW3), confirmed that the appellant was his brother’s employee and that he was working as a herds boy. He testified that his sister in law, PW1, called him on the night of 18 th October 2024 at about 3.00 a.m. and informed him that the minor was missing from home. He was then working as a watchman at Sango Junior Secondary School where the girl was learning. PW3 further stated that at about 5.00 a.m. he left his place of work and went to his brother’s home. He saw the minor in the company of the appellant leaving through the gate, and that on seeing him they ran away. He reported what he had seen to PW1 and was later called to go and record his statement at Kobodo Police Station.
[27] The 4 th prosecution witness before the lower court was the Assistant Chief of Kadwet Sub location, Zachary Were Odhul (PW4). He testified that on the 18 th October 2024, he received a call at about 06:30 hours from the head teacher of Sango Comprehensive School to the effect that one of the parents had reported that her daughter had been caught with a servant in one of the houses nearby; and that the servant had defiled the minor. He further stated that the name of the suspect was given to him as Jared Oyugi Odira , a person who was well known to him.
[28] PW4 further stated that he proceeded to the home of the parents of the minor where he found the suspect with other members of the public, including a watchman at Sango Secondary School. He arrested the suspect and escorted him to Kobodo Police Station in the company of the minor.
[29] Nelson Waka, a Clinical Officer at Ndhiwa Sub County Hospital, testified as PW5 before the lower court. His evidence was that he was on duty on the 18 th October 2024 when the complainant was taken to their facility for examination in respect of allegations of defilement. He examined her and noted that there were bruises in her labia majora and that her vaginal walls were hyper-red. He therefore concluded that the minor had indeed been defiled.
[30] The last prosecution witness was PC Lucy Abonda (PW6) of Kobodo Police Station. She was attached to the Gender Desk at the time. She confirmed that a defilement report was reported at their station at about 08:30 hours on the 18 th October 2024 by the Assistant Chief of Kadwet Sub Location. He brought in the suspect and was accompanied by the minor. She booked the report and took the minor and the suspect to Ndhiwa Sub County Hospital for examination. She investigated the matter and thereafter caused the appellant to be charged and arraigned before court.
[31] On being placed on his defence, the appellant stated that he was selling clothes in Mirogi at the time; and that, at about 05:30 hours on a date he could not recall, he met three people along the way. They started beating him without any apparent reason and took him to a certain homestead. He further stated that the area chief then came and took him to Kobodo Police Station from where he was transferred to Ndhiwa Police Station. He was later charged with an offence he knew nothing about.
[32] In the light of the foregoing, the issues for determination are:
[a] Whether the Prosecution proved their case against the appellant beyond reasonable doubt.
[b] Whether the trial was defective
[c] Whether the sentence of 20 years’ imprisonment imposed by the lower court is harsh or excessive.
B. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[33] For purposes of the substantive charge of defilement, Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(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.
[34] The ingredients of defilement are now well settled, namely, the age of the victim, the identity of the perpetrator and whether penetration occurred. I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of Section 8(3) of the Sexual Offences Act:
[35] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[36] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[37] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, in P.M.M. v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[38] The complainant testified before the lower court stated that she was 14 years old at the time. He was a pupil at Sango Junior Secondary School in Grade 9. She gave her date of birth as 15 th October 2010 and identified her Certificate of Birth before the lower court. The said certificate was produced by the investigating officer. Her mother corroborated her evidence as to her age and date of birth. There was therefore no dispute as to the age of the complainant as at the time of the offence.
[39] Section 8(3) of the Sexual Offences Act provides for the age bracket between 12 and 15 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration of the complainant:
[40] The complainant testified that she left her parent’s home and went to visit the appellant who she referred to as her boyfriend. She readily admitted that they had sex on the night in question. In addition to the evidence of PW1, PW3 and PW4 about the circumstances under which the appellant was arrested, the minor was examined by PW5. In his evidence PW5 stated that he noted that that there were bruises in her labia majora and that her vaginal walls were hyper-red. He added that the complainant frankly stated that the appellant was her boyfriend. He therefore concluded that the minor had indeed been defiled.
[41] In the premises, the prosecution proved prosecution to the requisite standard.
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[42] The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[43] On the issue of whether the appellant was linked to the offence of defilement, PW2 testified that she knew the appellant well and that he was her boyfriend. She stated that he was then working for her uncle as a herdsboy and that he went to his place on the night in question and engaged in sexual intercourse with him out of her own volition. The two were seen together by PW3 at about 5.00 a.m. and it was the evidence of PW3 that on seeing him they ran away. They were nevertheless eventually found and the appellant was arrested and taken to Kobodo Police Station.
[44] In those circumstances, the lower court correctly found that the identification of the appellant was sufficiently proved. Although the appellant contended that his defence was not taken into account, in his judgment, the learned magistrate clearly analyzed the same at paragraphs 37, 38, 39 and 40 of the Judgment. He found the account presented by the prosecution to be more credible and dismissed the defence given by the appellant as an afterthought.
[45] In his grounds of appeal and submissions, the appellant made reference to what he perceived to be contradictions in the prosecution case, notably as to the date of the offence. It is notable however that the incident is alleged to have occurred at midnight and therefore the median point between the 17 th and 18 th October 2024. Accordingly, when PW1 talked of 21:00 hours on 17 th October 2024 she was entirely correct. Similarly, when the complainant and PW3 talked of 18 th October 2024 and the respective time periods mentioned by them, they were similarly correct. There is no contradiction at all in their evidence.
[46] Indeed, in John Nyaga Njuki & 4 Others v Republic , Cr. App. No. 160 of 2000, the Court of Appeal explained that:
“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”
[47] Likewise, in Philip Nzaka Watu v R [2016] eKLR the Court of Appeal acknowledged that human recollection is not infallible. Here is what it had to say in this regard:
“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
[48] Needless to add that a person under 18 years is presumed by law to be incapable of giving consent. Hence, Section 43(4)(f) of the Sexual Offences Act stipulates that:
“The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act … a child.”
[49] Accordingly, I am in complete agreement with the position taken by Hon. Korir-Lagat in Luka Waithaka Ndegwa v Republic [2017] eKLR, that:
“In the offence of defilement, the law presumes that a child being one who is below the age of 18 years is incapable of giving consent to sex. I do not agree with the Martin Charo case that the conduct of the child is relevant to the offence of defilement. Children are among the vulnerable members of our society by reason of their age, their inability to protect and provide for themselves and also are unable to appreciate dangerous situations. It is for these reasons that the law presumes that they are incapable of consenting to sexual intercourse. In enacting this provision, the legislature was only discharging its duty to act in the best interest of the child.
Therefore once it is proved that the complainant was below the age of 18 years the offence is completed and it is immaterial that she or he consented to sex. The defence afforded by section 8 (5) of the Sexual Offences Act does not refer to consent, but rather to reasonable belief that the complainant was above the age of majority…That she consented to the sexual intercourse is not sufficient to exonerate the appellant of the offence. It is not the consent of the child that exonerates the appellant from the offence but the reasonable belief that she was above the age of majority therefore capable of consenting, and the evidence of steps taken to establish this fact. There was no evidence of any steps that the appellant took to ascertain the age of the complainant. This ground of appeal must fail.
[50] A similar stance was taken by Hon. Mwongo, J. in Peter Charago v Republic [2019] eKLR, that:
“…any sexual act between the two is treated as non-consensual sex and therefore amounted to defilement, as the complainant was a child under the age of 18 years and incapable of giving consent in law. Even where a minor behaves like an adult, the law still recognizes that person as a child.”
[51] In the premises, it is my finding that the offence of defilement under Section 8 (1) as read with Section 8(3) of the Sexual Offences Act was proved by the prosecution beyond reasonable doubt and therefore the appellant was rightly convicted thereof.
[52] On the language of the court, it is a constitutional right that an accused person has the right to a fair trial. Article 50(2)(m) provides that:
Every accused person has the right to a fair trial, which includes the right—
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
[53] The record of the lower court shows that before the appellant’s plea was taken, the learned magistrate specifically asked the appellant which language he understood best and which would be used throughout his trial. He made his preference known and all indications are that the lower court accorded him the right to a Dholuo interpreter. The record shows that he fully participated in the proceedings with no indication of any impediment whatsoever. He was similarly informed of his right to legal representation. There is therefore no basis for complaint in that regard.
[54] On whether the proceedings were a nullity on the basis that the plea court did not specifically indicate that “plea of not guilty entered” the record does confirm that position. However, no prejudice was suffered in this instance by that omission because the matter was not determined in a summary manner. He was accorded his full fair trial rights and his response to the charges noted.
C. On whether the sentence of 20 years is harsh or excessive:
[55] In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[56] Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides:
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.
[57] The offence was committed against a minor who was then aged 14 years. Hence, the learned magistrate had no discretion to pronounce a lower sentence than the minimum of 20 years’ imprisonment. In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment)
Paragraphs 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions ( Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) ( Muruatetu decision ) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act, or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution.
[58] It is my finding that the sentence of 20 years’ imprisonment was lawful in the circu
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[2] In the alternative, the appellant was charged with committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on the 18 th day of October 2024 at Kadwet Sub-location in Ndhiwa Sub-County within the County of Homa Bay in the Republic of Kenya, he intentionally and unlawfully caused his penis to touch the vagina of F A O, a child aged 14 years.
[3] The appellant denied the charges and upon trial, was found guilty of the substantive charge. He was accordingly convicted thereof and sentenced to 20 years’ imprisonment on the 8 th May 2025.
[4] Being dissatisfied with his conviction and sentence, the appellant filed this appeal on the 21 st May 2025. He thereafter filed Amended Grounds of Appeal raising the following grounds:
[a] That the learned trial magistrate grossly erred in law and fact by convicting him on a defective plea.
[b] The learned trial magistrate grossly erred in law and fact by presiding over a defective or unfair trial contrary to Article 50(2)(m) of the Constitution.
[c] The learned trial magistrate erred both in law and fact in failing to simultaneously analyze and evaluate the evidence on record with a view to arriving at balanced and objective findings based on the evidence on record.
[d] The learned trial magistrate grossly erred in law and fact by making a finding that the prosecution had proved its case beyond reasonable doubt despite opaque layer of contradictions, inconsistencies and discrepancies in the prosecution case which pointed to a fabricated and/or made up case.
[e] The learned trial magistrate erroneously shifted the burden of proof to the appellant hence his defence was not given due consideration.
[f] The learned trial magistrate grossly erred in law and fact by failing to take into account the period of time that he had spent in custody prior to being sentenced, contrary to Section 333(2) of the Criminal Procedure Code.
[5] On the basis of the foregoing, the appellant prayed that his appeal be allowed in its entirety, the conviction and sentence set aside.
[6] Directions were given herein on the 25 th November 2025 that the appeal be canvassed by way of written submissions. Hence, the appellant complied and filed his written submissions herein on 25 th November 2025. He submitted that the plea was defective in that, upon recording his response to the charges and the particulars supplied, the learned magistrate did not enter a plea of guilty or not guilty as required. The appellant argued that that omission rendered the proceedings a nullity. He relied on Ephantus Kamau & another v Republic [2014] eKLR as to the import of Section 297 of the Criminal Procedure Code.
[7] The appellant further submitted that the learned magistrate erred by failing to indicate the language used in the course of the trial. He pointed out that some of the witnesses gave evidence in English and others in Kiswahili without any indication as to whether the same was translated to Dholuo which was preferred language of communication. He urged the Court to find that his right to fair hearing as protected by Article 50(m) was grossly violated. He placed reliance in this regard on Kiyato v Republic [1982-88] KLR 418 and Swanibu Simbauni & another v Republic, Criminal Appeal No. 243 of 2005 (Kisumu).
[8] It was further the contention of the appellant that his defence was not given due attention by the learned magistrate. He cited Section 213 of the Criminal Procedure Code to support his argument that he was not given an opportunity to address the Court by way of final submissions before the judgment date was taken. On the authority of Akhunya v Republic [2003] eKLR and Salan Dean v Republic [1996] EA 272, the appellant urged the Court to find that this was a gross misdirection that amounted to a violation of his fair trial rights.
[9] Further to the foregoing, the appellant made reference to what he perceived to be fatal contradictions, inconsistencies and discrepancies in the prosecution case that ought to have entitled him to an acquittal. He relied on the case of David Oteabuo v Federal Republic of Nigeria [2014] LPE LR 22555 (CA) and John Cansio De Sa v Amin [1943] EACA and urged the Court to find that, in view of the inconsistencies, it cannot be said that the prosecution proved its case beyond reasonable doubt.
[10] On the burden of proof, the appellant impugned the judgment of the lower court and submitted that it erred by shifting the burden of proof from the prosecution where it lay to the defence. He relied on the cases of Stephen Chara Mavuo v Republic [2015] eKLR and Woolmington v Republic [1939] AC 462 to underscore the principle that it is the duty of the prosecution to prove the guilt of an accused person.
[11] Lastly, the appellant submitted that he lost his freedom on the 18 th October 2024 and was detained until the 8 th May 2025 when he was sentenced. He therefore urged the Court to find that the learned magistrate erred in failing to take that period into account as required by Section 333(2) of the Criminal Procedure Code.
[12] On the basis of the foregoing, the appellant urged the Court to find that the charge of defilement was not proved against him to the requisite standard and that his fair trial rights were violated in the process. He prayed that his appeal be allowed, the conviction recorded against him quashed and the sentence set aside.
[13] The respondent relied on the written submissions filed on 19 th December 2025. It was the submission of counsel that the lower court properly found that the offence of defilement was proved by the prosecution beyond reasonable doubt and that all the elements of the offence were proved, namely, that the victim was a child, that there was penetration and that the perpetrator was properly identified.
[14] Counsel further submitted that the prosecution was able to prove that the complainant was a child through the production of the complainant's birth certificate which indicated that she was aged 14 years, having been born on 15 th October 2010. It was further the contention of the respondent that the complainant’s age was also proved through the complainant's mother (PW1) who also testified the complaint was born on 15 th October 2010.
[15] On penetration, the respondent urged the Court to find that there was cogent proof by way of the evidence of the complainant as to how the appellant defiled her. Counsel further submitted that the complainant’s testimony was corroborated by the medical evidence of PW5, who confirmed that the complainant's external genitalia were bruised and that the vaginal walls were reddish; and that these findings were consistent with penetration.
[16] On identification of the perpetrator, the respondent submitted that the lower court correctly believed the complainant who positively identified the appellant and stated that he was well known to her because he used to work for her uncle and was her boyfriend. She further confirmed that she was arrested in the company of the appellant and that both of them were taken by the Assistant chief to Kobodo Police Station.
[17] The respondent urged the Court to note that, in addition to the evidence of the complainant, PW3, an uncle to the complainant and a security guard at her school, confirmed that, on the material day at 5.00 a.m., he saw the appellant and the complainant leaving the main gate of his brother's place where the appellant was then working as a herdsman and that on seeing him they ran away. PW3 had earlier received a call from the complaint's mother at 3.00 a.m. informing him that her daughter was missing.
[18] Based on the above, the respondent urged the Court to find that all the ingredients of the offence of defilement were proved before the lower court beyond reasonable doubt. The respondent further submitted that the prosecution's evidence was credible and consistent; and that the trial court properly convicted the appellant on a properly taken and non-defective plea. It was also the contention of the respondent that the appellant was able to communicate effectively with the lower court right from the date of his arraignment when he indicated his preferred language of communication to be Dholuo. Counsel urged the Court to note that he was able to respond to the charges and thereafter cross-examined witnesses effectively before presenting his unsworn statement of defence.
[19] As for Ground 6 where the appellant prayed for the days spent in pre-sentence custody to be taken into account, the respondent had no objection and submitted that that ground is in line with Section 333(2) of the Criminal Procedure Code. The respondent otherwise urged the Court to find that the sentence of twenty (20) years' imprisonment is lawful and need not be disturbed as it is the minimum sentence prescribed under Section 8(3) of the Sexual Offences Act where the victim is between the ages of 12 and 15 years.
[20] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that I did not have the opportunity to see or hear the witnesses testify. (see Okeno v Republic [1972] EA 32 ).
[21] Before the lower court, the prosecution called six witnesses. The first witness was J A O (PW1), the mother of the complainant. She testified that she returned home at about 21:00 hours on 17 th October 2024 and did not find the complainant at home. She inquired from her other children but none knew of the complainant’s whereabouts. She suspected that she may have gone to the house of her boyfriend known as Jack. The following morning, she went to Jack’s grandmother’s place but did not find any trace of the minor. She consequently reported the matter to the teachers at the complainant’s school and to the area chief. The following day, she was informed that the minor had been found in the company of the appellant, and that the appellant had been arrested.
[22] PW1 further stated that the minor was 14 years old at the time and gave her date of birth as 15 th October 2010. She also availed the Certificate of Birth in respect of the minor, which was exhibited before the lower court.
[23] The minor testified as PW2 and stated that she was 14 years old at the time. She stated that she was a student living with her parents; and that she used to sleep in the kitchen; and that on the night in question, she left the kitchen at about 22:00 hours and went to see her boyfriend, the appellant. She explained that the appellant was then staying at her uncle’s home where he was working; and that on arrival the appellant opened the gate for her and took her to his place of residence. They engaged in sexual intercourse that night after which she returned home but found the kitchen locked. She returned to the appellant’s place and spent the night with him.
[24] It was further the testimony of PW2 that he prevailed upon the appellant to accompany her home to explain to her mother that she had spent the night at his place. According to her version as they were about to discuss the matter with PW1, the chief arrived and arrested the appellant. They were both taken to the police station as Kobodo. She was thereafter taken for examination at Ndhiwa Sub County Hospital.
[25] The complainant gave her date of birth as 15 th October 2010 and identified her Certificate of Birth before the lower court along with the treatment documents issued to her at Ndhiwa Sub County Hospital.
[26] The complainant’s uncle, S O O (PW3), confirmed that the appellant was his brother’s employee and that he was working as a herds boy. He testified that his sister in law, PW1, called him on the night of 18 th October 2024 at about 3.00 a.m. and informed him that the minor was missing from home. He was then working as a watchman at Sango Junior Secondary School where the girl was learning. PW3 further stated that at about 5.00 a.m. he left his place of work and went to his brother’s home. He saw the minor in the company of the appellant leaving through the gate, and that on seeing him they ran away. He reported what he had seen to PW1 and was later called to go and record his statement at Kobodo Police Station.
[27] The 4 th prosecution witness before the lower court was the Assistant Chief of Kadwet Sub location, Zachary Were Odhul (PW4). He testified that on the 18 th October 2024, he received a call at about 06:30 hours from the head teacher of Sango Comprehensive School to the effect that one of the parents had reported that her daughter had been caught with a servant in one of the houses nearby; and that the servant had defiled the minor. He further stated that the name of the suspect was given to him as Jared Oyugi Odira , a person who was well known to him.
[28] PW4 further stated that he proceeded to the home of the parents of the minor where he found the suspect with other members of the public, including a watchman at Sango Secondary School. He arrested the suspect and escorted him to Kobodo Police Station in the company of the minor.
[29] Nelson Waka, a Clinical Officer at Ndhiwa Sub County Hospital, testified as PW5 before the lower court. His evidence was that he was on duty on the 18 th October 2024 when the complainant was taken to their facility for examination in respect of allegations of defilement. He examined her and noted that there were bruises in her labia majora and that her vaginal walls were hyper-red. He therefore concluded that the minor had indeed been defiled.
[30] The last prosecution witness was PC Lucy Abonda (PW6) of Kobodo Police Station. She was attached to the Gender Desk at the time. She confirmed that a defilement report was reported at their station at about 08:30 hours on the 18 th October 2024 by the Assistant Chief of Kadwet Sub Location. He brought in the suspect and was accompanied by the minor. She booked the report and took the minor and the suspect to Ndhiwa Sub County Hospital for examination. She investigated the matter and thereafter caused the appellant to be charged and arraigned before court.
[31] On being placed on his defence, the appellant stated that he was selling clothes in Mirogi at the time; and that, at about 05:30 hours on a date he could not recall, he met three people along the way. They started beating him without any apparent reason and took him to a certain homestead. He further stated that the area chief then came and took him to Kobodo Police Station from where he was transferred to Ndhiwa Police Station. He was later charged with an offence he knew nothing about.
[32] In the light of the foregoing, the issues for determination are:
[a] Whether the Prosecution proved their case against the appellant beyond reasonable doubt.
[b] Whether the trial was defective
[c] Whether the sentence of 20 years’ imprisonment imposed by the lower court is harsh or excessive.
B. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[33] For purposes of the substantive charge of defilement, Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides:
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) …
(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.
[34] The ingredients of defilement are now well settled, namely, the age of the victim, the identity of the perpetrator and whether penetration occurred. I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of Section 8(3) of the Sexual Offences Act:
[35] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[36] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[37] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, in P.M.M. v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[38] The complainant testified before the lower court stated that she was 14 years old at the time. He was a pupil at Sango Junior Secondary School in Grade 9. She gave her date of birth as 15 th October 2010 and identified her Certificate of Birth before the lower court. The said certificate was produced by the investigating officer. Her mother corroborated her evidence as to her age and date of birth. There was therefore no dispute as to the age of the complainant as at the time of the offence.
[39] Section 8(3) of the Sexual Offences Act provides for the age bracket between 12 and 15 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration of the complainant:
[40] The complainant testified that she left her parent’s home and went to visit the appellant who she referred to as her boyfriend. She readily admitted that they had sex on the night in question. In addition to the evidence of PW1, PW3 and PW4 about the circumstances under which the appellant was arrested, the minor was examined by PW5. In his evidence PW5 stated that he noted that that there were bruises in her labia majora and that her vaginal walls were hyper-red. He added that the complainant frankly stated that the appellant was her boyfriend. He therefore concluded that the minor had indeed been defiled.
[41] In the premises, the prosecution proved prosecution to the requisite standard.
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[42] The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[43] On the issue of whether the appellant was linked to the offence of defilement, PW2 testified that she knew the appellant well and that he was her boyfriend. She stated that he was then working for her uncle as a herdsboy and that he went to his place on the night in question and engaged in sexual intercourse with him out of her own volition. The two were seen together by PW3 at about 5.00 a.m. and it was the evidence of PW3 that on seeing him they ran away. They were nevertheless eventually found and the appellant was arrested and taken to Kobodo Police Station.
[44] In those circumstances, the lower court correctly found that the identification of the appellant was sufficiently proved. Although the appellant contended that his defence was not taken into account, in his judgment, the learned magistrate clearly analyzed the same at paragraphs 37, 38, 39 and 40 of the Judgment. He found the account presented by the prosecution to be more credible and dismissed the defence given by the appellant as an afterthought.
[45] In his grounds of appeal and submissions, the appellant made reference to what he perceived to be contradictions in the prosecution case, notably as to the date of the offence. It is notable however that the incident is alleged to have occurred at midnight and therefore the median point between the 17 th and 18 th October 2024. Accordingly, when PW1 talked of 21:00 hours on 17 th October 2024 she was entirely correct. Similarly, when the complainant and PW3 talked of 18 th October 2024 and the respective time periods mentioned by them, they were similarly correct. There is no contradiction at all in their evidence.
[46] Indeed, in John Nyaga Njuki & 4 Others v Republic , Cr. App. No. 160 of 2000, the Court of Appeal explained that:
“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”
[47] Likewise, in Philip Nzaka Watu v R [2016] eKLR the Court of Appeal acknowledged that human recollection is not infallible. Here is what it had to say in this regard:
“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
[48] Needless to add that a person under 18 years is presumed by law to be incapable of giving consent. Hence, Section 43(4)(f) of the Sexual Offences Act stipulates that:
“The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act … a child.”
[49] Accordingly, I am in complete agreement with the position taken by Hon. Korir-Lagat in Luka Waithaka Ndegwa v Republic [2017] eKLR, that:
“In the offence of defilement, the law presumes that a child being one who is below the age of 18 years is incapable of giving consent to sex. I do not agree with the Martin Charo case that the conduct of the child is relevant to the offence of defilement. Children are among the vulnerable members of our society by reason of their age, their inability to protect and provide for themselves and also are unable to appreciate dangerous situations. It is for these reasons that the law presumes that they are incapable of consenting to sexual intercourse. In enacting this provision, the legislature was only discharging its duty to act in the best interest of the child.
Therefore once it is proved that the complainant was below the age of 18 years the offence is completed and it is immaterial that she or he consented to sex. The defence afforded by section 8 (5) of the Sexual Offences Act does not refer to consent, but rather to reasonable belief that the complainant was above the age of majority…That she consented to the sexual intercourse is not sufficient to exonerate the appellant of the offence. It is not the consent of the child that exonerates the appellant from the offence but the reasonable belief that she was above the age of majority therefore capable of consenting, and the evidence of steps taken to establish this fact. There was no evidence of any steps that the appellant took to ascertain the age of the complainant. This ground of appeal must fail.
[50] A similar stance was taken by Hon. Mwongo, J. in Peter Charago v Republic [2019] eKLR, that:
“…any sexual act between the two is treated as non-consensual sex and therefore amounted to defilement, as the complainant was a child under the age of 18 years and incapable of giving consent in law. Even where a minor behaves like an adult, the law still recognizes that person as a child.”
[51] In the premises, it is my finding that the offence of defilement under Section 8 (1) as read with Section 8(3) of the Sexual Offences Act was proved by the prosecution beyond reasonable doubt and therefore the appellant was rightly convicted thereof.
[52] On the language of the court, it is a constitutional right that an accused person has the right to a fair trial. Article 50(2)(m) provides that:
Every accused person has the right to a fair trial, which includes the right—
(m) to have the assistance of an interpreter without payment if the accused person cannot understand the language used at the trial;
[53] The record of the lower court shows that before the appellant’s plea was taken, the learned magistrate specifically asked the appellant which language he understood best and which would be used throughout his trial. He made his preference known and all indications are that the lower court accorded him the right to a Dholuo interpreter. The record shows that he fully participated in the proceedings with no indication of any impediment whatsoever. He was similarly informed of his right to legal representation. There is therefore no basis for complaint in that regard.
[54] On whether the proceedings were a nullity on the basis that the plea court did not specifically indicate that “plea of not guilty entered” the record does confirm that position. However, no prejudice was suffered in this instance by that omission because the matter was not determined in a summary manner. He was accorded his full fair trial rights and his response to the charges noted.
C. On whether the sentence of 20 years is harsh or excessive:
[55] In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[56] Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides:
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.
[57] The offence was committed against a minor who was then aged 14 years. Hence, the learned magistrate had no discretion to pronounce a lower sentence than the minimum of 20 years’ imprisonment. In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment)
Paragraphs 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions ( Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) ( Muruatetu decision ) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act, or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution.
[58] It is my finding that the sentence of 20 years’ imprisonment was lawful in the circu
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