JEREMIAH CHACHA alias JOSEPH ………………….………… APPELLANT
-VERSUS-
REPUBLIC ………………………………………………………..… RESPONDENT
( Being an appeal from the conviction and sentence in Kehancha MCSO Case No. E052 of 2022 vide a judgement delivered by Hon. A.N. Kirimi (Senior Resident Magistrate) on 10 th November, 2024 )
JUDGMENT
INTRODUCTION
1. The Appellant 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 were that on the 22 nd day of August, 2022 at Mtunyigi area within Migori County, the Appellant intentionally caused his penis to penetrate the vagina of S.H.A, a child aged about Nine (9) years.
2. The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act . The particulars of the offence were that the appellant, on 22 nd day of August, 2022 at Mtunyigi area within Migori County, he intentionally caused his penis to touch the vagina of S.H.A, a child aged Nine (9) years.
3. The appellant was informed of his rights under Article 50 of the Constitution at the commencement of the suit which he informed Court that he understood but proceeded by way of self-representation
4. The Appellant after the trial, wherein the prosecution called four witnesses, and the accused opted to remain silent, was eventually convicted of the offence of defilement and sentenced to 60 years' imprisonment.
5. The appellant was aggrieved by the conviction and sentence and filed this appeal. He set out the following grounds of appeal:
a) That the trial court erred in law in not proving the ingredients of the offence in the instant case beyond reasonable doubt.
b) That the trial court erred in law and in relying on fanciful and remote possibilities to convict the appellant.
c) That the trial court erred in law and in fact in not weighing the conflicting evidence on the prosecution case that was/is inconsequential to conviction.
d) That the trial court erred in law and in fact in not appreciating the appellants’ cogent defence that overwhelmed the prosecution case.
6. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 24 th April, 2026. The Respondent, through the Office of the Director of Public Prosecutions, likewise filed written submissions dated 14 th May, 2026, urging this Court to dismiss the appeal and uphold both the conviction and the sentence stating that the sentence was lenient as Section 8(2) of the Sexual Offences Act provides for a life sentence.
7. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court to reach a different conclusion ”.
8. This duty was also articulated by the former Court of Appeal for East Africa in Okeno v Republic [1972] EA 32
ISSUES FOR DETERMINATION
9. Having considered the Petition of Appeal, the record of the trial court, and the rival submissions, the following issues arise for determination;
a) Whether the age of the complainant was proved beyond reasonable doubt.
b) Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
c) Whether the Appellant was positively identified as the perpetrator of the Offence.
d) Whether the sentence imposed was harsh, excessive, or unlawful.
ANALYSIS & DETERMINATION
10. On whether the Age of the Complainant was proved, the Court takes note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position was stated in George Opondo Olunga vs. Republic (2016) e KLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice .”
11. The victim in this case is said to be a nine-year minor. This is as indicated by the Charge Sheet. Further a Clinical Card Book was produced by PW3 showing that the Complainant was born on the 19 th October, 2012. The proceedings erroneously indicate the year of birth as 2022. The offence is alleged to have been committed on the 22 nd August, 2022.
12. The age stated in the charge sheet was therefore an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant well below the age of eleven years. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed.
13. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
14. On whether Penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
15. In the present case, the Doctor, who testified before Court as PW1 informed the trial Court that on physical examination of the complainant, there was blood stain on the genitalia, bruises on the labia majora and a tear on the perineum genitalia, the hymen was also freshly broken. The medical evidence disclosed red blood cells and spermatozoa seen and the Complainant had to be repaired at the perineum bruising on the complainant’s thighs and labia, the presence of whitish discharge, as well as pus and yeast cells. The clinical officer formed the opinion that there had been forceful penetration, albeit not full penetration. This information was further backed up with Treatment Notes & P3 Form to which this Honourable Court has had the opportunity to carefully examine.
16. In light of the statutory definition and the binding authority of the Court of Appeal, the medical findings were consistent with partial penetration within the meaning of section 2 of the Act. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
17. On the issue of Identification of the Appellant, the complainant referred to the assailant as “Jeremiah” and during cross examination the complainant informed Court that she used to see the Appellant even before he started living with Aunt Rachel.
18. Upon being placed on his defence, the Appellant opted not to adduce any evidence, either by himself or by calling witnesses. The trial court did advise the Appellant on the implications of not giving any evidence in his defence or calling witnesses and the Appellant maintained that he would keep silent and wait for the court’s decision.
19. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other ”
20. The court is satisfied that the appellant was recognized by the minor, who knew him. Consequently, it was provided that the appellant was the perpetrator. In the circumstances of this case, the prosecution evidence sufficiently established the elements of the offence.
21. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was harsh and excessive. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below and the Appellant was sentenced to Sixty (60) years’ imprisonments.
22. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful. The same position was reiterated in Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment). The court stated thus:
“ In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers ”.
23. Consequently, by law, a person convicted of defilement under section 8(2) of the Sexual Offences Act ought to be sentenced to the mandatory life imprisonment. Any term sentence will be unconstitutional.
24. While the appellant argued that the sentence was excessive and violated constitutional principles, I note that the sentence imposed was a term sentence of 60 years’ imprisonment, which is fundamentally lower than the mandatory life sentence. Suffices it to state that it was a more lenient sentence than the mandatory sentence prescribed by statute.
25. The question that follows is what this appellate court should do. Ordinarily, this court ought to correct such an irregularity by imposing the statutory prescribed sentence. However, in this case, such an act will amount to an enhancement of the sentence from 60 years’ imprisonment to life sentence. For such enhancement, it is trite law that the appellant ought to have been given prior notice of enhancement. No notice was given to the appellant.
26. Accordingly, this court finds no basis for interfering with the sentence. Based on the above findings, the court deems it appropriate to dispose of the appeal in the following manner.
DISPOSITION
27. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction was sound and the sentence lawful and the conviction and sentence of the trial court are affirmed.
b) The appeal against both conviction and sentence is dismissed in its entirety .
It is so ordered
Dated, signed and delivered virtually via Microsoft Teams this 9 th Day of July 2026.
HCCRA NO. E109 OF 2024 JEREMIAH CHACHA ALIAS JOSEPH VS REPUBLIC JUDGMENT Pg. 8
-VERSUS-
REPUBLIC ………………………………………………………..… RESPONDENT
( Being an appeal from the conviction and sentence in Kehancha MCSO Case No. E052 of 2022 vide a judgement delivered by Hon. A.N. Kirimi (Senior Resident Magistrate) on 10 th November, 2024 )
JUDGMENT
INTRODUCTION
1. The Appellant 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 were that on the 22 nd day of August, 2022 at Mtunyigi area within Migori County, the Appellant intentionally caused his penis to penetrate the vagina of S.H.A, a child aged about Nine (9) years.
2. The appellant was charged with an Alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act . The particulars of the offence were that the appellant, on 22 nd day of August, 2022 at Mtunyigi area within Migori County, he intentionally caused his penis to touch the vagina of S.H.A, a child aged Nine (9) years.
3. The appellant was informed of his rights under Article 50 of the Constitution at the commencement of the suit which he informed Court that he understood but proceeded by way of self-representation
4. The Appellant after the trial, wherein the prosecution called four witnesses, and the accused opted to remain silent, was eventually convicted of the offence of defilement and sentenced to 60 years' imprisonment.
5. The appellant was aggrieved by the conviction and sentence and filed this appeal. He set out the following grounds of appeal:
a) That the trial court erred in law in not proving the ingredients of the offence in the instant case beyond reasonable doubt.
b) That the trial court erred in law and in relying on fanciful and remote possibilities to convict the appellant.
c) That the trial court erred in law and in fact in not weighing the conflicting evidence on the prosecution case that was/is inconsequential to conviction.
d) That the trial court erred in law and in fact in not appreciating the appellants’ cogent defence that overwhelmed the prosecution case.
6. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 24 th April, 2026. The Respondent, through the Office of the Director of Public Prosecutions, likewise filed written submissions dated 14 th May, 2026, urging this Court to dismiss the appeal and uphold both the conviction and the sentence stating that the sentence was lenient as Section 8(2) of the Sexual Offences Act provides for a life sentence.
7. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court to reach a different conclusion ”.
8. This duty was also articulated by the former Court of Appeal for East Africa in Okeno v Republic [1972] EA 32
ISSUES FOR DETERMINATION
9. Having considered the Petition of Appeal, the record of the trial court, and the rival submissions, the following issues arise for determination;
a) Whether the age of the complainant was proved beyond reasonable doubt.
b) Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
c) Whether the Appellant was positively identified as the perpetrator of the Offence.
d) Whether the sentence imposed was harsh, excessive, or unlawful.
ANALYSIS & DETERMINATION
10. On whether the Age of the Complainant was proved, the Court takes note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position was stated in George Opondo Olunga vs. Republic (2016) e KLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice .”
11. The victim in this case is said to be a nine-year minor. This is as indicated by the Charge Sheet. Further a Clinical Card Book was produced by PW3 showing that the Complainant was born on the 19 th October, 2012. The proceedings erroneously indicate the year of birth as 2022. The offence is alleged to have been committed on the 22 nd August, 2022.
12. The age stated in the charge sheet was therefore an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant well below the age of eleven years. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed.
13. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
14. On whether Penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
15. In the present case, the Doctor, who testified before Court as PW1 informed the trial Court that on physical examination of the complainant, there was blood stain on the genitalia, bruises on the labia majora and a tear on the perineum genitalia, the hymen was also freshly broken. The medical evidence disclosed red blood cells and spermatozoa seen and the Complainant had to be repaired at the perineum bruising on the complainant’s thighs and labia, the presence of whitish discharge, as well as pus and yeast cells. The clinical officer formed the opinion that there had been forceful penetration, albeit not full penetration. This information was further backed up with Treatment Notes & P3 Form to which this Honourable Court has had the opportunity to carefully examine.
16. In light of the statutory definition and the binding authority of the Court of Appeal, the medical findings were consistent with partial penetration within the meaning of section 2 of the Act. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
17. On the issue of Identification of the Appellant, the complainant referred to the assailant as “Jeremiah” and during cross examination the complainant informed Court that she used to see the Appellant even before he started living with Aunt Rachel.
18. Upon being placed on his defence, the Appellant opted not to adduce any evidence, either by himself or by calling witnesses. The trial court did advise the Appellant on the implications of not giving any evidence in his defence or calling witnesses and the Appellant maintained that he would keep silent and wait for the court’s decision.
19. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other ”
20. The court is satisfied that the appellant was recognized by the minor, who knew him. Consequently, it was provided that the appellant was the perpetrator. In the circumstances of this case, the prosecution evidence sufficiently established the elements of the offence.
21. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was harsh and excessive. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below and the Appellant was sentenced to Sixty (60) years’ imprisonments.
22. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful. The same position was reiterated in Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR) (11 April 2025) (Judgment). The court stated thus:
“ In view of the foregoing, we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution for life imprisonment, as the effect would be to create a provision with the force of law while no such jurisdiction is granted to it. The term of thirty years was arrived at arbitrarily without involvement of Parliament and the people. In consequence, we find that the Court of Appeal ventured outside its mandate and powers ”.
23. Consequently, by law, a person convicted of defilement under section 8(2) of the Sexual Offences Act ought to be sentenced to the mandatory life imprisonment. Any term sentence will be unconstitutional.
24. While the appellant argued that the sentence was excessive and violated constitutional principles, I note that the sentence imposed was a term sentence of 60 years’ imprisonment, which is fundamentally lower than the mandatory life sentence. Suffices it to state that it was a more lenient sentence than the mandatory sentence prescribed by statute.
25. The question that follows is what this appellate court should do. Ordinarily, this court ought to correct such an irregularity by imposing the statutory prescribed sentence. However, in this case, such an act will amount to an enhancement of the sentence from 60 years’ imprisonment to life sentence. For such enhancement, it is trite law that the appellant ought to have been given prior notice of enhancement. No notice was given to the appellant.
26. Accordingly, this court finds no basis for interfering with the sentence. Based on the above findings, the court deems it appropriate to dispose of the appeal in the following manner.
DISPOSITION
27. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction was sound and the sentence lawful and the conviction and sentence of the trial court are affirmed.
b) The appeal against both conviction and sentence is dismissed in its entirety .
It is so ordered
Dated, signed and delivered virtually via Microsoft Teams this 9 th Day of July 2026.
HCCRA NO. E109 OF 2024 JEREMIAH CHACHA ALIAS JOSEPH VS REPUBLIC JUDGMENT Pg. 8