' (Being an Appeal from the against the judgement, conviction and sentence of the Chief Magistrates Court at Kabarnet ( Hon. Purity Koskey (SPM)) delivered on 7th May 2025 and passed on 14th May 2025 respectively in Kabarnet Magistrates Court Sexual Offences Case No E007 of 2023)
1. The Appellant JEFFERSON SOITE was charged with the offence of defilement contrary to section 8(1) as read with Section 8(2) of the sexual offences Act No. 3 of 2006. The particulars of the charge are that between 27th December and 28th August 2022 at Zikw village IIngr’arua location in Baringo South Sub- County within Baringo County, the accused intentionally caused his penis to penetrate the vagina of L.N a child aged 10 years.
2. The appellant faced an alternative charge of committing an indecent Act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars of the charge being that between 27th December and 28th August 2022 at Zikw village IIngr’arua location in Baringo South Sub- County within Baringo County, the appellant intentionally touched the vagina, breasts and buttocks of L.N a child aged 10 years
3. The Appellant denied all the charges and the matter was set down for full trial where the prosecution called a total of 4 witnesses in support of the charges facing the accused. Upon the close of the prosecution’s case, the court found the accused to have a case to answer and he was placed on his defence where he gave a sworn evidence and called one witness.
4. Upon the close of the defense case, the trial court through judgment delivered on 7th may 2025, found the accused guilty as charged, convicted him under section 215 of the C.P.C and sentenced him to serve 20 years imprisonment.
5. Dissatisfied with the conviction and the sentence of the trial court, the Appellant filed a petition of appeal dated 10th day of May,2024 on the the ground that the trial court erred by:
a. shifting the burden of proof to the Appellant;
b. holding that the prosecution had proved all essential elements of defilement to the required standard;
c. finding that the Appellant defiled the complainant despite glaring contradictions in evidence;
d. holding that the complainant’s age had been proved; e. holding that the identity of the perpetrator had been proved;
f. failing to consider the suspicious circumstances under which the birth certificate was procured; and
g. disregarding the fact that at the material time the complainant reasonably appeared to be an adult
6. The Appellant prays for judgement of this court in the following terms:-
i. The Appeal herein be allowed.
ii. The trial court''s judgement dated and delivered on 7th May , 2025 be set aside and or quashed.
iii. The sentence of twenty (20 ) years imprisonment imposed on the appellant by the trial court on 14th May, 2025 be set aside.
iv. That in the alternative, the Honourable Court orders for a retrial.
7. The appellant filed lengthy submissions which I will summarize hereunder. The Respondent did not file written submissions.
APPELLANT’S SUBMISSIONS
8. On whether the Learned Magistrate Shifted the Burden of Proof to the Appellant, the appellant relied on Article 50(2)(a) of the Constitution which guarantees every accused person the right to be presumed innocent until proven guilty. Further that Sections 107–109 of the Evidence Act restate that the party asserting a fact must prove it. In criminal trials, this obligation remains with the prosecution throughout.
9. The principle was firmly captured in Woolmington v DPP, where Viscount Sankey L.C. stated the “golden thread” that the prosecution must prove the guilt of the accused, save for statutory exceptions such as insanity.
10. Further that Kenyan courts have consistently applied this rule. In Sawe v Republic [2003] KLR 364, where the Court of Appeal held that suspicion, however strong, cannot shift the burden to the accused. In Kamau v Republic, Cr. Appeal E003 of 2024 [2025] KEHC 42, the High Court reaffirmed that although the defence may be expected to respond to the prosecution case, the legal burden never shifts.
11. And in this case, the Appellant raised an alibi defence. At paragraphs 32–34 of the judgment, the learned Magistrate dismissed the alibi as an afterthought because it was not raised earlier. The appellant submit that this was a misdirection as the Appellant had no obligation to raise an alibi before the prosecution presented its case.
12. That once an alibi is raised, the duty shifts to the prosecution to rebut it. This position is settled in Sekitoleko v Uganda [1967] EA 531, Victor Mwendwa Mulinge v Republic [2014] eKLR, and Kiarie v Republic [1984] KLR 739. Section 309 of the Criminal Procedure Code allows the prosecution to call rebuttal evidence if new matters arise, but no such effort was made here.
13. Further that the Court of Appeal in Charles Anjare Mwamusi v Republic, Cr. App. No. 226 of 2002, held that an accused who raises an alibi assumes no burden of proving it, and any reasonable doubt must be resolved in his favour.
14. The Appellant consistently stated that he was working in Narok during the material period, only returning home for political activities. The police ignored this lead and conducted no investigations to verify or disprove it. No witness placed the Appellant at the scene, and the prosecution failed to specify the exact date of the alleged offence, leaving an 8-month window in the charge sheet.
15. That by dismissing the alibi as an afterthought instead of examining whether the prosecution had discharged its duty to rebut it, the trial court impermissibly shifted the burden of proof to the Appellant.
16. on whether the prosecution proved the essential elements of defilement, the appellant submitted that the elements of defilement under Section 8 of the Sexual Offences Act are:
a. Proof that the complainant was a child (below 18 years);
b. Proof of penetration; and
c. Identification of the perpetrator.
17. On proof of age, the appellant submitted that age is a critical component because it determines both the offence and the prescribed sentence. Sections 8(1)– (4) set a graduated scale of punishment depending on the age bracket of the child.
18. That the Court of Appeal in Kaingu Kasomo v Republic, Cr. App. No. 504 of 2010, held that age must be proved with the same certainty as penetration. Similar emphasis appears in Hadson Ali Mwachongo v Republic (2016) eKLR; Thomas Mwambu Wenyi v Republic [2017] eKLR; and Hillary Nyongesa v Republic (2000).
19. That the High Court in Kidodi v Republic [2024] KEHC 8767 stated that age is essential because (i) defilement is an offence against a child; and (ii) age is an aggravating factor for sentencing. That the appellate courts have repeatedly held that doubt in proof of age must benefit the accused, including in Mwanya v Republic [2009] eKLR, Francis Omuroni v Uganda [2002] 2 EA 392, and Edwin Nyabaso Onsongo v Republic [2018] eKLR.
20. That in this case, the prosecution failed to prove the age of the complainant beyond reasonable doubt. The complainant was unsure of her date of birth and claimed she was 14 only because her mother told her. However, the mother testified that the child was born in April 2005 and started school in 2012–2013, placing her at 17–18 years at the time of the alleged incident. That the charge sheet (drawn in 2023) stated that the complainant was 10 years old. To support this, the prosecution produced a birth certificate indicating a date of birth of 20 May 2012.
21. That however, the certificate was registered only in 2022, 10 years after the alleged birth, both parents denied knowledge of the document and denied participating in its procurement, It was allegedly supplied by an “aunt” with no legal authority to obtain it,the investigating officer conceded he did not know how it was obtained and no verification from the Civil Registry was produced.
22. The appellant submitted that the purported “aunt” was identified in evidence as a political rival of the Appellant, raising concerns about possible manipulation of critical documents and the parents, the natural custodians of the complainant’s records were excluded from the procurement and production of the birth certificate. That the Appellant testified that from observation and interaction, the complainant appeared the same age as his own children (17–18).
23. The appellant submitted that Courts have cautioned that age cannot be proven by judicial assumptions. In Kennedy Hamisi v Republic [2021] KEHC 1026, the High Court held that a trial court cannot rely solely on its own observation to determine age where documentary evidence is available but not produced; and in Alfayo Gombe Okello v Republic, the Court of Appeal held that where age cannot be determined with certainty, the doubt must be resolved in favour of the accused.
24. The appellant submitted that in this case, glaring inconsistencies and the dubious birth certificate created overwhelming doubt. That the prosecution failed to prove age beyond reasonable doubt, and the benefit of that doubt ought to have gone to the Appellant.
ANALYSIS AND DETERMINATION
25. This being the first appellate court, this Court is obligated to reconsider and re-evaluate the evidence afresh while bearing in mind that it neither saw nor heard the witnesses testify. The duty was settled in Okeno v Republic [1972] EA 32 and reaffirmed in David Njuguna Wairimu v Republic [2010] eKLR. The Court must analyze the entire record and arrive at its own independent conclusions, while giving due allowance to the trial court’s advantage of observing demeanor and credibility.
26. In view of the above, I have perused and considered evidence adduced before the trial court together with submissions filed by the appellant and consider the following as issues for determination:
a. whether the prosecution proved the ingredients of defilement to the required standard; and
b. whether the trial court erred by rejecting the alibi defence.
c. Whether sentence imposed was harsh and excessive
a) whether the prosecution proved the ingredients of defilement to the required standard
27. The elements for the offence of defilement are age, penetration, and positive identification of the perpetrator.
(i) Whether Age Was Proved
28. The prosecution tendered a birth certificate indicating that the child was born on 6.5.2022; however the complainant’s mother indicated that the complainant was born in April 2005. The document complainant when she testified in the year 2023 said she was 14 years. she said the mother told her she was 14 years.
29. In the present case, the complainant also testified that she was in Grade 7 at the time of the incident. The appellant himself stated that the complainant was of the age of his own children, whom he said were 17–18 years old. The trial magistrate also made a visual assessment and noted that the complainant was apparently below 18 years. In her finding she found that as at 27.12.2021, the complainant was 12 years old as she was 14 years at the time she testified. He mother state that she was born in April 2005. While sentencing, she reduced the charge of defilement from 8(2) of SOA to 8(3 ) of SOA pursuant to section 179 of the criminal procedure code.
30. From the foregoing, although a birth certificate produced indicated a different date of birth which the complainant’s mother disowned, and explained circumstances under which birth certificates are issued in her area and that that the village elder may not have given the correct information. Her testimony on the child’s actual age was consistent with that of the complainant and with the trial court’s own observation of the minor’s apparent age.
31. In the case of Kaingu Kasomo v Republic, Fappyton Mutuku Ngui v Republic and JWA v Republic,the court held that where documentary evidence is unreliable, a court is entitled to rely on credible oral testimony and observation. The trial magistrate therefore correctly discounted the birth certificate and was justified in concluding that the prosecution failed to prove that the complainant was below 11 years so as to sustain a conviction under Section 8(2). The reclassification to Section 8(3) was supported by evidence and accords with the requirement to resolve doubt in favour of the accused. I find no reason to interfere with trial court finding for reason that the trial magistrate had the advantage of observing the complainant and making a finding on apparent age.
(ii) Proof of Penetration
32. PW1 gave a clear and consistent account that the appellant removed her clothing and “they slept together” in the maize plantation. She also testified that she later became pregnant and gave birth to a baby boy. PW3, the clinical officer, confirmed that she was 22 weeks pregnant at the time of examination. PW4 corroborated that evidence by stating that the complainant was about 5 months pregnant during investigations.
33. The Court of Appeal has held repeatedly that pregnancy of a minor is corroborative proof of penetration. See Fappyton Mutuku Ngui v Republic [2012] eKLR; EV v Republic [2014] eKLR. The minor’s account was not shaken during cross-examination, and she remained consistent that the appellant had sexual intercourse with her more than once. Penetration was therefore proved to the required standard.
(iii) Identification of the Perpetrator
34. From the record, I am satisfied that identification was not in issue. The appellant himself confirmed that the complainant was his neighbor and that he knew her family well. PW1 also testified that she knew the appellant as a village mate and had interacted with him on several occasions, including delivering water to his wife’s shop and guarding his farm.
35. This was therefore a case of recognition, not identification of a stranger. Recognition is more reliable, as stated in Anjononi & Others v Republic [1980] eKLR.
36. The complainant gave a detailed narrative of the interactions in the shop and the subsequent repeated sexual encounters in the appellant’s farm. Nothing in the record suggests that she was mistaken about who violated her. No other male was suggested as having had access to her, and the appellant did not challenge the fact that the complainant frequented his home and farm.
37. In sexual offences, the evidence of a single witness can suffice if the court believes the complainant. Section 124 of the Evidence Act expressly permits a conviction on the testimony of the complainant alone, provided the court records reasons for believing the child to be truthful. The trial court complied with this requirement. I therefore find that the element of identity was firmly proved.
(b) Whether the trial court erred in rejecting defence of Alibi Defence
38. The appellant contends that the trial magistrate shifted the burden of proof by rejecting his alibi as an afterthought. That the law on alibi is settled that accused person bears no obligation to prove an alibi and once raised, the prosecution must disprove it as held in Kiarie v Republic [1984] KLR 739; Sekitoleko v Uganda [1967] EA 531 and Victor Mwendwa Mulinge v Republic [2014] eKLR.
39. The appellant stated that he worked in Narok during the material period and only came home for political events. However, he did not call a witness to support the claim. He relied solely on his own assertion and he admitted being in Marigat “for long” during 2022 and at the time of voting. He also admitted having a shop and farm in the same locality as the complainant.
40. It is worth noting that the defilement was not alleged to have occurred on a single, specific date. PW1 described multiple encounters in the appellant’s farm. For an alibi to raise reasonable doubt, it must cover the entire period during which the offence is alleged to have occurred. A general statement that he worked in Narok, while simultaneously admitting regular presence in Marigat, does not meet this threshold.
41. In the case of Wangombe v Republic [1976–80] 1 KLR 1683, the court held that an alibi that is vague, uncorroborated, or inconsistent with the accused’s own admissions is insufficient to raise reasonable doubt.
42. Upon re-evaluation of evidence adduced, I agree with the trial court did that the alibi was not capable of displacing the consistent, direct evidence of PW1.I therefore find no merit in the argument that the burden of proof was shifted.
43. From the foregoing, I find that the ingredients for the offence of defilement were proved beyond reasonable doubt. I therefore see no merit in the appeal herein.
(c ) whether sentence imposed was harsh and excessive
44. Record show that the trial court imposed the mandatory minimum sentence relying on clarification by the supreme court that the decision of the supreme court declaring mandatory minimum sentence unconstitutional did not apply to sexual offence. Under section 8(3 ) of the sexual offences Act ,a person found guilty of defilement of a girl between the age of 12 to 15 years is liable to imprisonment for a term not less than 20 years. I find the sentence legal and not excessive in the circumstance. I however note that the period serve din remand was not considered.
45. FINAL ORDERS:
a. Appeal on both conviction and sentence is hereby dismissed
b. Period served by appellant in remand to be considered in the sentence.
In the presence of:
- Ms.Omari H/B for Ms. Kosgei for Accused
- CA, Elvis
- Appellant Present
'
1. The Appellant JEFFERSON SOITE was charged with the offence of defilement contrary to section 8(1) as read with Section 8(2) of the sexual offences Act No. 3 of 2006. The particulars of the charge are that between 27th December and 28th August 2022 at Zikw village IIngr’arua location in Baringo South Sub- County within Baringo County, the accused intentionally caused his penis to penetrate the vagina of L.N a child aged 10 years.
2. The appellant faced an alternative charge of committing an indecent Act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars of the charge being that between 27th December and 28th August 2022 at Zikw village IIngr’arua location in Baringo South Sub- County within Baringo County, the appellant intentionally touched the vagina, breasts and buttocks of L.N a child aged 10 years
3. The Appellant denied all the charges and the matter was set down for full trial where the prosecution called a total of 4 witnesses in support of the charges facing the accused. Upon the close of the prosecution’s case, the court found the accused to have a case to answer and he was placed on his defence where he gave a sworn evidence and called one witness.
4. Upon the close of the defense case, the trial court through judgment delivered on 7th may 2025, found the accused guilty as charged, convicted him under section 215 of the C.P.C and sentenced him to serve 20 years imprisonment.
5. Dissatisfied with the conviction and the sentence of the trial court, the Appellant filed a petition of appeal dated 10th day of May,2024 on the the ground that the trial court erred by:
a. shifting the burden of proof to the Appellant;
b. holding that the prosecution had proved all essential elements of defilement to the required standard;
c. finding that the Appellant defiled the complainant despite glaring contradictions in evidence;
d. holding that the complainant’s age had been proved; e. holding that the identity of the perpetrator had been proved;
f. failing to consider the suspicious circumstances under which the birth certificate was procured; and
g. disregarding the fact that at the material time the complainant reasonably appeared to be an adult
6. The Appellant prays for judgement of this court in the following terms:-
i. The Appeal herein be allowed.
ii. The trial court''s judgement dated and delivered on 7th May , 2025 be set aside and or quashed.
iii. The sentence of twenty (20 ) years imprisonment imposed on the appellant by the trial court on 14th May, 2025 be set aside.
iv. That in the alternative, the Honourable Court orders for a retrial.
7. The appellant filed lengthy submissions which I will summarize hereunder. The Respondent did not file written submissions.
APPELLANT’S SUBMISSIONS
8. On whether the Learned Magistrate Shifted the Burden of Proof to the Appellant, the appellant relied on Article 50(2)(a) of the Constitution which guarantees every accused person the right to be presumed innocent until proven guilty. Further that Sections 107–109 of the Evidence Act restate that the party asserting a fact must prove it. In criminal trials, this obligation remains with the prosecution throughout.
9. The principle was firmly captured in Woolmington v DPP, where Viscount Sankey L.C. stated the “golden thread” that the prosecution must prove the guilt of the accused, save for statutory exceptions such as insanity.
10. Further that Kenyan courts have consistently applied this rule. In Sawe v Republic [2003] KLR 364, where the Court of Appeal held that suspicion, however strong, cannot shift the burden to the accused. In Kamau v Republic, Cr. Appeal E003 of 2024 [2025] KEHC 42, the High Court reaffirmed that although the defence may be expected to respond to the prosecution case, the legal burden never shifts.
11. And in this case, the Appellant raised an alibi defence. At paragraphs 32–34 of the judgment, the learned Magistrate dismissed the alibi as an afterthought because it was not raised earlier. The appellant submit that this was a misdirection as the Appellant had no obligation to raise an alibi before the prosecution presented its case.
12. That once an alibi is raised, the duty shifts to the prosecution to rebut it. This position is settled in Sekitoleko v Uganda [1967] EA 531, Victor Mwendwa Mulinge v Republic [2014] eKLR, and Kiarie v Republic [1984] KLR 739. Section 309 of the Criminal Procedure Code allows the prosecution to call rebuttal evidence if new matters arise, but no such effort was made here.
13. Further that the Court of Appeal in Charles Anjare Mwamusi v Republic, Cr. App. No. 226 of 2002, held that an accused who raises an alibi assumes no burden of proving it, and any reasonable doubt must be resolved in his favour.
14. The Appellant consistently stated that he was working in Narok during the material period, only returning home for political activities. The police ignored this lead and conducted no investigations to verify or disprove it. No witness placed the Appellant at the scene, and the prosecution failed to specify the exact date of the alleged offence, leaving an 8-month window in the charge sheet.
15. That by dismissing the alibi as an afterthought instead of examining whether the prosecution had discharged its duty to rebut it, the trial court impermissibly shifted the burden of proof to the Appellant.
16. on whether the prosecution proved the essential elements of defilement, the appellant submitted that the elements of defilement under Section 8 of the Sexual Offences Act are:
a. Proof that the complainant was a child (below 18 years);
b. Proof of penetration; and
c. Identification of the perpetrator.
17. On proof of age, the appellant submitted that age is a critical component because it determines both the offence and the prescribed sentence. Sections 8(1)– (4) set a graduated scale of punishment depending on the age bracket of the child.
18. That the Court of Appeal in Kaingu Kasomo v Republic, Cr. App. No. 504 of 2010, held that age must be proved with the same certainty as penetration. Similar emphasis appears in Hadson Ali Mwachongo v Republic (2016) eKLR; Thomas Mwambu Wenyi v Republic [2017] eKLR; and Hillary Nyongesa v Republic (2000).
19. That the High Court in Kidodi v Republic [2024] KEHC 8767 stated that age is essential because (i) defilement is an offence against a child; and (ii) age is an aggravating factor for sentencing. That the appellate courts have repeatedly held that doubt in proof of age must benefit the accused, including in Mwanya v Republic [2009] eKLR, Francis Omuroni v Uganda [2002] 2 EA 392, and Edwin Nyabaso Onsongo v Republic [2018] eKLR.
20. That in this case, the prosecution failed to prove the age of the complainant beyond reasonable doubt. The complainant was unsure of her date of birth and claimed she was 14 only because her mother told her. However, the mother testified that the child was born in April 2005 and started school in 2012–2013, placing her at 17–18 years at the time of the alleged incident. That the charge sheet (drawn in 2023) stated that the complainant was 10 years old. To support this, the prosecution produced a birth certificate indicating a date of birth of 20 May 2012.
21. That however, the certificate was registered only in 2022, 10 years after the alleged birth, both parents denied knowledge of the document and denied participating in its procurement, It was allegedly supplied by an “aunt” with no legal authority to obtain it,the investigating officer conceded he did not know how it was obtained and no verification from the Civil Registry was produced.
22. The appellant submitted that the purported “aunt” was identified in evidence as a political rival of the Appellant, raising concerns about possible manipulation of critical documents and the parents, the natural custodians of the complainant’s records were excluded from the procurement and production of the birth certificate. That the Appellant testified that from observation and interaction, the complainant appeared the same age as his own children (17–18).
23. The appellant submitted that Courts have cautioned that age cannot be proven by judicial assumptions. In Kennedy Hamisi v Republic [2021] KEHC 1026, the High Court held that a trial court cannot rely solely on its own observation to determine age where documentary evidence is available but not produced; and in Alfayo Gombe Okello v Republic, the Court of Appeal held that where age cannot be determined with certainty, the doubt must be resolved in favour of the accused.
24. The appellant submitted that in this case, glaring inconsistencies and the dubious birth certificate created overwhelming doubt. That the prosecution failed to prove age beyond reasonable doubt, and the benefit of that doubt ought to have gone to the Appellant.
ANALYSIS AND DETERMINATION
25. This being the first appellate court, this Court is obligated to reconsider and re-evaluate the evidence afresh while bearing in mind that it neither saw nor heard the witnesses testify. The duty was settled in Okeno v Republic [1972] EA 32 and reaffirmed in David Njuguna Wairimu v Republic [2010] eKLR. The Court must analyze the entire record and arrive at its own independent conclusions, while giving due allowance to the trial court’s advantage of observing demeanor and credibility.
26. In view of the above, I have perused and considered evidence adduced before the trial court together with submissions filed by the appellant and consider the following as issues for determination:
a. whether the prosecution proved the ingredients of defilement to the required standard; and
b. whether the trial court erred by rejecting the alibi defence.
c. Whether sentence imposed was harsh and excessive
a) whether the prosecution proved the ingredients of defilement to the required standard
27. The elements for the offence of defilement are age, penetration, and positive identification of the perpetrator.
(i) Whether Age Was Proved
28. The prosecution tendered a birth certificate indicating that the child was born on 6.5.2022; however the complainant’s mother indicated that the complainant was born in April 2005. The document complainant when she testified in the year 2023 said she was 14 years. she said the mother told her she was 14 years.
29. In the present case, the complainant also testified that she was in Grade 7 at the time of the incident. The appellant himself stated that the complainant was of the age of his own children, whom he said were 17–18 years old. The trial magistrate also made a visual assessment and noted that the complainant was apparently below 18 years. In her finding she found that as at 27.12.2021, the complainant was 12 years old as she was 14 years at the time she testified. He mother state that she was born in April 2005. While sentencing, she reduced the charge of defilement from 8(2) of SOA to 8(3 ) of SOA pursuant to section 179 of the criminal procedure code.
30. From the foregoing, although a birth certificate produced indicated a different date of birth which the complainant’s mother disowned, and explained circumstances under which birth certificates are issued in her area and that that the village elder may not have given the correct information. Her testimony on the child’s actual age was consistent with that of the complainant and with the trial court’s own observation of the minor’s apparent age.
31. In the case of Kaingu Kasomo v Republic, Fappyton Mutuku Ngui v Republic and JWA v Republic,the court held that where documentary evidence is unreliable, a court is entitled to rely on credible oral testimony and observation. The trial magistrate therefore correctly discounted the birth certificate and was justified in concluding that the prosecution failed to prove that the complainant was below 11 years so as to sustain a conviction under Section 8(2). The reclassification to Section 8(3) was supported by evidence and accords with the requirement to resolve doubt in favour of the accused. I find no reason to interfere with trial court finding for reason that the trial magistrate had the advantage of observing the complainant and making a finding on apparent age.
(ii) Proof of Penetration
32. PW1 gave a clear and consistent account that the appellant removed her clothing and “they slept together” in the maize plantation. She also testified that she later became pregnant and gave birth to a baby boy. PW3, the clinical officer, confirmed that she was 22 weeks pregnant at the time of examination. PW4 corroborated that evidence by stating that the complainant was about 5 months pregnant during investigations.
33. The Court of Appeal has held repeatedly that pregnancy of a minor is corroborative proof of penetration. See Fappyton Mutuku Ngui v Republic [2012] eKLR; EV v Republic [2014] eKLR. The minor’s account was not shaken during cross-examination, and she remained consistent that the appellant had sexual intercourse with her more than once. Penetration was therefore proved to the required standard.
(iii) Identification of the Perpetrator
34. From the record, I am satisfied that identification was not in issue. The appellant himself confirmed that the complainant was his neighbor and that he knew her family well. PW1 also testified that she knew the appellant as a village mate and had interacted with him on several occasions, including delivering water to his wife’s shop and guarding his farm.
35. This was therefore a case of recognition, not identification of a stranger. Recognition is more reliable, as stated in Anjononi & Others v Republic [1980] eKLR.
36. The complainant gave a detailed narrative of the interactions in the shop and the subsequent repeated sexual encounters in the appellant’s farm. Nothing in the record suggests that she was mistaken about who violated her. No other male was suggested as having had access to her, and the appellant did not challenge the fact that the complainant frequented his home and farm.
37. In sexual offences, the evidence of a single witness can suffice if the court believes the complainant. Section 124 of the Evidence Act expressly permits a conviction on the testimony of the complainant alone, provided the court records reasons for believing the child to be truthful. The trial court complied with this requirement. I therefore find that the element of identity was firmly proved.
(b) Whether the trial court erred in rejecting defence of Alibi Defence
38. The appellant contends that the trial magistrate shifted the burden of proof by rejecting his alibi as an afterthought. That the law on alibi is settled that accused person bears no obligation to prove an alibi and once raised, the prosecution must disprove it as held in Kiarie v Republic [1984] KLR 739; Sekitoleko v Uganda [1967] EA 531 and Victor Mwendwa Mulinge v Republic [2014] eKLR.
39. The appellant stated that he worked in Narok during the material period and only came home for political events. However, he did not call a witness to support the claim. He relied solely on his own assertion and he admitted being in Marigat “for long” during 2022 and at the time of voting. He also admitted having a shop and farm in the same locality as the complainant.
40. It is worth noting that the defilement was not alleged to have occurred on a single, specific date. PW1 described multiple encounters in the appellant’s farm. For an alibi to raise reasonable doubt, it must cover the entire period during which the offence is alleged to have occurred. A general statement that he worked in Narok, while simultaneously admitting regular presence in Marigat, does not meet this threshold.
41. In the case of Wangombe v Republic [1976–80] 1 KLR 1683, the court held that an alibi that is vague, uncorroborated, or inconsistent with the accused’s own admissions is insufficient to raise reasonable doubt.
42. Upon re-evaluation of evidence adduced, I agree with the trial court did that the alibi was not capable of displacing the consistent, direct evidence of PW1.I therefore find no merit in the argument that the burden of proof was shifted.
43. From the foregoing, I find that the ingredients for the offence of defilement were proved beyond reasonable doubt. I therefore see no merit in the appeal herein.
(c ) whether sentence imposed was harsh and excessive
44. Record show that the trial court imposed the mandatory minimum sentence relying on clarification by the supreme court that the decision of the supreme court declaring mandatory minimum sentence unconstitutional did not apply to sexual offence. Under section 8(3 ) of the sexual offences Act ,a person found guilty of defilement of a girl between the age of 12 to 15 years is liable to imprisonment for a term not less than 20 years. I find the sentence legal and not excessive in the circumstance. I however note that the period serve din remand was not considered.
45. FINAL ORDERS:
a. Appeal on both conviction and sentence is hereby dismissed
b. Period served by appellant in remand to be considered in the sentence.
In the presence of:
- Ms.Omari H/B for Ms. Kosgei for Accused
- CA, Elvis
- Appellant Present
'