1. The Appellant, Jeremiah Mutika Muli, 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 alleged that on 15th November 2019, at Kilonzo Village, Kilonzo Sub-location, Kyanika Location, Nzambani Sub-County within Kitui County, he intentionally caused his penis to penetrate the vagina of AMN, a child aged four years. He was charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
2. The prosecution called five witnesses in support of its case. PW1, a minor aged 13 years and a brother of the complainant, testified that the Appellant lived with him, the complainant and the other children at their grandmother’s house. On the material day, the children were playing outside when he noticed that the complainant was no longer with them. He went behind the Appellant’s house and found the complainant crying. He stated that the complainant’s clothes had been removed and that the Appellant was also undressed. When he asked what had happened, the Appellant told him that he had been urinating and that the complainant had fallen down. PW1 further testified that the complainant told him that the Appellant had inserted a stick into her private parts, whereupon he reported the matter to their grandmother.
3. PW2, Rose Katuni David, the complainant’s grandmother, testified that she had left the children with Kamene while she attended a funeral. Upon returning home, she noticed that the complainant was walking with her legs apart and appeared to be in pain. She examined the child and observed a whitish substance on her private parts. The complainant told her that the Appellant had inserted a stick into her private parts. PW2 thereafter reported the matter to the police and the complainant was taken for medical examination.
4. PW3 was the complainant and, being a child of tender years, was subjected to a voire dire examination by the trial court before her evidence was received unsworn. She testified that on the material day she had been playing outside with the other children when the Appellant took her away, removed her clothes and inserted a stick into her private parts. She identified the Appellant as the person who had taken her and stated that he lived with her and the other children at their grandmother’s home.
5. PW4, Caroline Ndangula, a clinician produced the P3 form dated 15th November 2019, which recorded findings of bruises, erythema and a broken hymen in respect of the complainant.
6. PW5, Robinson Katena, also a clinician also a clinician, testified concerning the complainant’s medical examination and produced the PRC form dated 15th November 2019, which recorded findings of bruises, erythema and a broken hymen in respect of the complainant.
7. The Appellant gave sworn evidence in which he denied committing the offence and stated that he had spent the material day with the complainant and the other children at their grandmother’s home before going to sleep. He testified that he was subsequently awakened by police officers, arrested and taken to Nzambani Police Station, where his statement was recorded before he was charged with the offence, and maintained that he had been falsely implicated.
8. DW2, Kavindu Maundu, Appellant’s mother, testified that she had been left with the children, remained with them as they played and that their parents later came for them. She also testified concerning the Appellant’s subsequent arrest while he was asleep.
9. DW3, Benson Mwinzi, a neighbour of the Appellant, testified that he had neither witnessed nor heard of the alleged offence. He stated that the Appellant had spent the material day at home with the children, who ordinarily visited him, and that he could hear them playing with him, while acknowledging that he was not with the Appellant at the precise time when the alleged offence was said to have occurred.
10. DW4, Emily Mutie, the Appellant’s sister-in-law, testified concerning the events of 15th November 2019, stating that she had left her children with the Appellant and did not witness the alleged defilement. She knew the complainant well and stated that the complainant and the other children frequently visited their home and that their grandmother would ordinarily leave the complainant at the Appellant’s home. She described the Appellant as a good person who looked after children well.
11. The trial court upon consideration of the evidence, found the prosecution case proved and convicted the Appellant for defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act on 12th September 2024. The Appellant was thereafter sentenced to life imprisonment on 31st October 2024.
12. Being dissatisfied with both conviction and sentence, the Appellant preferred this appeal. His written submissions dated 31st August 2026 challenge the factual and legal basis of the conviction. The principal complaint is that the trial court failed to properly evaluate the evidence as a whole and, in particular, converted the complainant’s evidence that a stick had been inserted into her private parts into evidence of penile penetration, although neither the complainant nor PW1 testified to having seen penile-vaginal penetration.
13. The Appellant further challenges the medical evidence, the absence of a PRC form, the date appearing on the P3 form, the absence of DNA or other biological evidence, the failure to medically examine him, the failure to recover and examine the alleged stick, the failure to call the investigating officer and the manner in which the trial court treated his presence at the scene. He submits that his defence was improperly treated as a mere denial and that, taken cumulatively, the evidential deficiencies raised reasonable doubt.
14. The Respondent opposed the appeal and maintained that the prosecution proved the three essential ingredients of defilement, namely the age of the complainant, penetration and the identity of the perpetrator. The Respondent further submitted that the evidence of a young child must be understood in the context of the child’s age and the language ordinarily available to such a child when describing a sexual act. The authorities cited by the parties, including those relied upon in their respective written submissions, have been considered in determining the appeal.
15. On the duty of this Court as a first appellate court, the Court is required to subject the evidence presented before the trial court to a fresh and exhaustive examination, reconsider and re-evaluate it, and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. This duty, as set out in Okeno v Republic [1972] EA 32, requires the Court to weigh the evidence as a whole, consider any conflicts in it and determine for itself whether the conclusions reached by the trial court were justified by the evidence.
16. From the foregoing, the following issues arise for determination:
1) Whether the prosecution proved the age of the complainant beyond reasonable doubt;
2) Whether the prosecution proved penetration within the meaning of section 2 of the Sexual Offences Act;
3) Whether the complainant’s reference to insertion of a “stick” was properly understood and evaluated in the circumstances of the case;
4) Whether the medical evidence supported the prosecution case;
5) Whether the evidence of PW1 materially supported the complainant’s account;
6) Whether the prosecution proved that the Appellant was the person who committed the offence;
7) Whether the Appellant’s presence at the scene was improperly treated as proof of commission of the offence;
8) Whether the failure to call the investigating officer materially weakened the prosecution case;
9) Whether the absence of DNA and other forensic evidence created reasonable doubt;
10) Whether the Appellant’s defence was properly considered;
11) Whether the prosecution proved the charge beyond reasonable doubt;
12) Whether the alternative charge affects the conviction; and
13) Whether the sentence of life imprisonment imposed on 31st October 2024 was lawful and should be affirmed.
17. On the first issue, age is an essential ingredient of the offence and, in the present case, was also material to the sentence prescribed under section 8(2) of the Sexual Offences Act. The charge alleged that the complainant was four years old on 15th November 2019, while the P3 form dated 19th November 2019 recorded her age as four years.
18. In Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR), • the Court of Appeal held that the age of a child may be established through documentary evidence, the child’s own evidence where sufficiently intelligent, evidence of a parent or guardian, medical evidence or other credible evidence. In the present case, the P3 form dated 19th November 2019 recorded the complainant’s age as four years, while the trial court, following a voire dire examination, received her evidence as that of a child of tender years.
19. The trial court’s finding that the complainant was four years old at the time of the offence was supported by the evidence on record.
20. On the issue of penetration, section 8(1) of the Sexual Offences Act criminalises an act which causes penetration with a child, while section 2 defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another. The prosecution was therefore required to establish penetration as an essential ingredient of the offence. The Appellant contends that this ingredient was not proved because the complainant testified that a “stick” had been inserted into her private parts and there was no direct evidence that his penis had penetrated her.
21. The evidence relevant to that issue must be considered in its entirety. The complainant testified that the Appellant took her away, removed her clothes and inserted a stick into her private parts. PW1 found her crying with her clothes removed while the Appellant was also undressed, and the complainant immediately told him that the Appellant had inserted a stick into her private parts. PW2 received the same account from the complainant, while the P3 and PRC forms recorded bruises, erythema and a broken hymen.
22. In Sumba v Republic (Criminal Appeal 164 of 2018) [2024] KECA 521 (KLR), the Court of Appeal recognised that penetration may be established from the evidence of the child together with the surrounding circumstances and medical evidence, without requiring a child witness to express herself in technical anatomical terminology. The evidence in this case, considered in that context, establishes that the complainant was subjected to an act involving penetration of her private parts and that the medical findings were consistent with the account she gave.
23. On whether the complainant’s reference to a “stick” was properly understood, the Respondent relied on Muganga Chilejo Saha v Republic [2017] KECA 359 (KLR) and WWK v Republic [2026] KEHC 1097 (KLR) authorities concerning the assessment of a young child’s description of a sexual act. The evidence of a child of four years must be understood in its factual context, without imposing upon the child the anatomical precision expected of an adult witness.
24. The complainant consistently described the Appellant as the person who took her away, removed her clothes and inserted the object into her private parts, and her account was made shortly after the incident to PW1 and repeated to PW2. PW1 also found her crying and undressed, with the Appellant undressed, while the medical evidence recorded bruises, erythema and a broken hymen. The trial court was entitled to consider the child’s description together with those circumstances in determining what she was describing.
25. The issue is not whether the word “stick” can, without more, be equated with a penis, but whether the evidence as a whole established the act of penetration alleged in the charge. In the circumstances of this case, the trial court’s interpretation of the complainant’s evidence was grounded in the evidence before it and did not amount to the creation of evidence that she had not given.
26. Consequently, this court finds no error of principle in the trial court's treatment of the complainant's language.
27. On the issue of whether PW1's evidence supported the complainant's account, PW1 was not an eyewitness to the actual act of penetration. His evidence must therefore be understood according to what he personally observed and what the complainant told him. He found the complainant crying, with her clothes removed, and the Appellant also undressed. The Appellant offered an explanation that he had been urinating and that the complainant had fallen down. The complainant thereafter told PW1 that the Appellant had inserted a stick into her private parts.
28. The significance of this evidence is not that PW1 saw penile penetration. He did not. Its significance is that it placed the Appellant and the complainant together in circumstances immediately connected with the complainant's distress and that the complainant made a disclosure implicating the Appellant.
29. The account given by the complainant to PW1 was subsequently repeated to PW2. The consistency of the disclosure, the circumstances in which PW1 encountered the complainant and the subsequent medical findings provide support for the complainant's evidence.
30. PW1's evidence materially corroborated the surrounding circumstances of the complainant's account, and the conviction was not founded on presence alone, since it rested on the complainant's own direct evidence connecting the Appellant with the act, evidence which was not displaced by the defence case, so that the complaint that the trial court treated the Appellant's presence as conclusive proof of guilt accordingly fails.
31. On whether the medical evidence supported the prosecution case, PW4, Caroline Ndangula, a clinician, produced the P3 form dated 19th November 2019, while PW5, Robinson Katena, also a clinician, produced the PRC form dated 15th November 2019, both of which recorded bruises, erythema and a broken hymen in respect of the complainant.
32. In P.K.W v Republic [2012] KECA 103 (KLR), the Court of Appeal cautioned against treating a ruptured hymen, by itself, as conclusive proof of the particular sexual act alleged, while Ongaga v Republic [2024] KEHC 3629 (KLR) underscores the need to evaluate medical evidence in the context of the entire prosecution case.
33. From the foregoing, this court finds as did the trial court that the medical findings of bruises, erythema and a broken hymen corroborated the complainant’s account of defilement and supported the prosecution evidence on penetration.
34. On whether the Appellant was identified as the perpetrator, the evidence did not depend upon a difficult identification of a stranger, since the Appellant was known to the complainant and lived with the children at their grandmother's home, so that the complainant recognised the person she accused. He himself admitted being at the grandmother's home on the material day, and his defence was not that he was a stranger to the complainant or that he had not been present, but that he had spent time with the children and subsequently gone to sleep. DW3 and DW4 likewise placed him at the home, testifying that he spent the material day there with the children and could be heard playing with them, and that the complainant and the other children frequently visited.
35. What identified the Appellant as the perpetrator was not his presence at the home, which was undisputed, but the complainant's own account directly attributing the act to him, corroborated by PW1's finding of her condition and by the P3 and PRC forms recording her medical examination. On that basis, I find that the Appellant's identity as the perpetrator was proved beyond reasonable doubt.
36. On whether the absence of DNA evidence created reasonable doubt, the Appellant contends that the prosecution ought to have obtained forensic evidence linking him to the complainant. In Williamson Sowa Mbwanga v Republic [2016] KECA 147 (KLR), the Court of Appeal held that failure to conduct DNA analysis is not fatal where the prosecution has otherwise proved the essential ingredients of the offence beyond reasonable doubt. Section 36(1) of the Sexual Offences Act empowers the court to direct the taking of samples for forensic analysis but does not make DNA testing a mandatory requirement in every sexual offence. The question is therefore whether the evidence adduced without such analysis was sufficient to establish the charge.
37. In the present case, the prosecution case rested on the complainant’s evidence, which was supported by the circumstances in which she was found, the evidence of PW1 and PW2 and the medical findings contained in the P3 and PRC forms. The absence of DNA evidence did not leave the prosecution case without evidential support, and the Appellant has not demonstrated that such evidence was necessary to establish any of the essential ingredients of the offence.
38. On whether failure to call the investigating officer was fatal, the Appellant contends that his evidence was necessary to explain the circumstances of the arrest and reporting, the medical referral and the handling of the alleged stick and other evidence.
39. Section 143 of the Evidence Act does not require the prosecution to call any particular number of witnesses, while in Bukenya & Others v Uganda [1972] EA 549 the court held that an adverse inference may arise where a material witness is not called and the evidence adduced is insufficient to establish the prosecution case. In Keino v Republic [2024] KECA 710 (KLR), the Court of Appeal observed that the investigating officer ordinarily provides the evidential link connecting the various strands of the prosecution case and explains the investigation leading to the conclusion that the accused was culpable.
40. In the circumstances, the evidence on record was sufficient to establish the charge notwithstanding the absence of the investigating officer, and the omission was therefore not fatal.
41. On whether the Appellant’s defence was properly considered, the Appellant denied the offence and gave an account of his presence at the grandmother’s home, his interaction with the children and the circumstances of his arrest, which was supported in part by DW2, DW3 and DW4.
42. DW2 testified concerning the events of the material day and the Appellant’s arrest while he was asleep, while DW3 stated that he had heard the children playing with the Appellant but was not present when the alleged offence occurred. DW4 similarly testified that the children frequently visited the Appellant’s home and that she had left her children in his care.
43. The defence evidence explained the Appellant’s presence with the children but did not place him elsewhere at the time of the alleged offence, and none of the defence witnesses witnessed the events in question. It consequently did not displace the complainant’s evidence implicating the Appellant.
44. The trial court considered the Appellant’s defence alongside the prosecution evidence before rejecting it, and the evidence called in his support did not raise a reasonable doubt on the prosecution case.
45. On whether the prosecution proved the charge beyond reasonable doubt, the governing principle is that the burden of proof remained throughout on the prosecution and never shifted to the Appellant, as stated in Woolmington v Director of Public Prosecutions [1935] AC 462, while the requisite standard is proof beyond reasonable doubt as explained in Miller v Minister of Pensions [1947] 2 All ER 372.
46. Having determined the individual ingredients of the offence in the preceding issues and considered the defence, I find that the prosecution proved the complainant’s age, penetration and the identity of the Appellant as the perpetrator beyond reasonable doubt, with the medical evidence providing support for the evidence of penetration.
47. Having determined the individual ingredients of the offence in the preceding issues and considered the Appellant’s defence alongside the prosecution evidence, including the medical evidence which established bruises, erythema and a broken hymen, I find that the prosecution proved the complainant’s age, penetration and the identity of the Appellant as the perpetrator to the required standard and that the defence did not displace the well-established prosecution case.
48. On the alternative charge, the Appellant was also charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The alternative count would only arise for consideration if the evidence failed to establish penetration but proved the commission of an indecent act with the child.
49. Having found that the prosecution proved penetration and the other essential ingredients of defilement beyond reasonable doubt, the alternative charge does not arise for determination and there is no basis for substituting the conviction on the principal charge.
50. On sentence, the Appellant was convicted on 12th September 2024 of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and was sentenced to life imprisonment on 31st October 2024. Section 8(2) of the Sexual Offences Act provides for life imprisonment where the child in respect of whom the offence is committed is aged eleven years or less. The complainant was four years old at the time of the offence, and the sentence imposed was therefore the sentence prescribed by law.
51. Having considered the challenge to sentence, I find no error of principle, misdirection or other circumstance warranting interference with the sentence imposed by the trial court.
52. From the foregoing analysis, I find that the prosecution proved the charge beyond reasonable doubt and that the conviction under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly entered; the appeal against conviction is accordingly dismissed and the conviction upheld.
53. The sentence of life imprisonment imposed on 31st October 2024 was lawful under section 8(2) of the Sexual Offences Act, and the appeal against sentence is dismissed and the sentence affirmed.
2. The prosecution called five witnesses in support of its case. PW1, a minor aged 13 years and a brother of the complainant, testified that the Appellant lived with him, the complainant and the other children at their grandmother’s house. On the material day, the children were playing outside when he noticed that the complainant was no longer with them. He went behind the Appellant’s house and found the complainant crying. He stated that the complainant’s clothes had been removed and that the Appellant was also undressed. When he asked what had happened, the Appellant told him that he had been urinating and that the complainant had fallen down. PW1 further testified that the complainant told him that the Appellant had inserted a stick into her private parts, whereupon he reported the matter to their grandmother.
3. PW2, Rose Katuni David, the complainant’s grandmother, testified that she had left the children with Kamene while she attended a funeral. Upon returning home, she noticed that the complainant was walking with her legs apart and appeared to be in pain. She examined the child and observed a whitish substance on her private parts. The complainant told her that the Appellant had inserted a stick into her private parts. PW2 thereafter reported the matter to the police and the complainant was taken for medical examination.
4. PW3 was the complainant and, being a child of tender years, was subjected to a voire dire examination by the trial court before her evidence was received unsworn. She testified that on the material day she had been playing outside with the other children when the Appellant took her away, removed her clothes and inserted a stick into her private parts. She identified the Appellant as the person who had taken her and stated that he lived with her and the other children at their grandmother’s home.
5. PW4, Caroline Ndangula, a clinician produced the P3 form dated 15th November 2019, which recorded findings of bruises, erythema and a broken hymen in respect of the complainant.
6. PW5, Robinson Katena, also a clinician also a clinician, testified concerning the complainant’s medical examination and produced the PRC form dated 15th November 2019, which recorded findings of bruises, erythema and a broken hymen in respect of the complainant.
7. The Appellant gave sworn evidence in which he denied committing the offence and stated that he had spent the material day with the complainant and the other children at their grandmother’s home before going to sleep. He testified that he was subsequently awakened by police officers, arrested and taken to Nzambani Police Station, where his statement was recorded before he was charged with the offence, and maintained that he had been falsely implicated.
8. DW2, Kavindu Maundu, Appellant’s mother, testified that she had been left with the children, remained with them as they played and that their parents later came for them. She also testified concerning the Appellant’s subsequent arrest while he was asleep.
9. DW3, Benson Mwinzi, a neighbour of the Appellant, testified that he had neither witnessed nor heard of the alleged offence. He stated that the Appellant had spent the material day at home with the children, who ordinarily visited him, and that he could hear them playing with him, while acknowledging that he was not with the Appellant at the precise time when the alleged offence was said to have occurred.
10. DW4, Emily Mutie, the Appellant’s sister-in-law, testified concerning the events of 15th November 2019, stating that she had left her children with the Appellant and did not witness the alleged defilement. She knew the complainant well and stated that the complainant and the other children frequently visited their home and that their grandmother would ordinarily leave the complainant at the Appellant’s home. She described the Appellant as a good person who looked after children well.
11. The trial court upon consideration of the evidence, found the prosecution case proved and convicted the Appellant for defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act on 12th September 2024. The Appellant was thereafter sentenced to life imprisonment on 31st October 2024.
12. Being dissatisfied with both conviction and sentence, the Appellant preferred this appeal. His written submissions dated 31st August 2026 challenge the factual and legal basis of the conviction. The principal complaint is that the trial court failed to properly evaluate the evidence as a whole and, in particular, converted the complainant’s evidence that a stick had been inserted into her private parts into evidence of penile penetration, although neither the complainant nor PW1 testified to having seen penile-vaginal penetration.
13. The Appellant further challenges the medical evidence, the absence of a PRC form, the date appearing on the P3 form, the absence of DNA or other biological evidence, the failure to medically examine him, the failure to recover and examine the alleged stick, the failure to call the investigating officer and the manner in which the trial court treated his presence at the scene. He submits that his defence was improperly treated as a mere denial and that, taken cumulatively, the evidential deficiencies raised reasonable doubt.
14. The Respondent opposed the appeal and maintained that the prosecution proved the three essential ingredients of defilement, namely the age of the complainant, penetration and the identity of the perpetrator. The Respondent further submitted that the evidence of a young child must be understood in the context of the child’s age and the language ordinarily available to such a child when describing a sexual act. The authorities cited by the parties, including those relied upon in their respective written submissions, have been considered in determining the appeal.
15. On the duty of this Court as a first appellate court, the Court is required to subject the evidence presented before the trial court to a fresh and exhaustive examination, reconsider and re-evaluate it, and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. This duty, as set out in Okeno v Republic [1972] EA 32, requires the Court to weigh the evidence as a whole, consider any conflicts in it and determine for itself whether the conclusions reached by the trial court were justified by the evidence.
16. From the foregoing, the following issues arise for determination:
1) Whether the prosecution proved the age of the complainant beyond reasonable doubt;
2) Whether the prosecution proved penetration within the meaning of section 2 of the Sexual Offences Act;
3) Whether the complainant’s reference to insertion of a “stick” was properly understood and evaluated in the circumstances of the case;
4) Whether the medical evidence supported the prosecution case;
5) Whether the evidence of PW1 materially supported the complainant’s account;
6) Whether the prosecution proved that the Appellant was the person who committed the offence;
7) Whether the Appellant’s presence at the scene was improperly treated as proof of commission of the offence;
8) Whether the failure to call the investigating officer materially weakened the prosecution case;
9) Whether the absence of DNA and other forensic evidence created reasonable doubt;
10) Whether the Appellant’s defence was properly considered;
11) Whether the prosecution proved the charge beyond reasonable doubt;
12) Whether the alternative charge affects the conviction; and
13) Whether the sentence of life imprisonment imposed on 31st October 2024 was lawful and should be affirmed.
17. On the first issue, age is an essential ingredient of the offence and, in the present case, was also material to the sentence prescribed under section 8(2) of the Sexual Offences Act. The charge alleged that the complainant was four years old on 15th November 2019, while the P3 form dated 19th November 2019 recorded her age as four years.
18. In Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR), • the Court of Appeal held that the age of a child may be established through documentary evidence, the child’s own evidence where sufficiently intelligent, evidence of a parent or guardian, medical evidence or other credible evidence. In the present case, the P3 form dated 19th November 2019 recorded the complainant’s age as four years, while the trial court, following a voire dire examination, received her evidence as that of a child of tender years.
19. The trial court’s finding that the complainant was four years old at the time of the offence was supported by the evidence on record.
20. On the issue of penetration, section 8(1) of the Sexual Offences Act criminalises an act which causes penetration with a child, while section 2 defines penetration as the partial or complete insertion of the genital organs of one person into the genital organs of another. The prosecution was therefore required to establish penetration as an essential ingredient of the offence. The Appellant contends that this ingredient was not proved because the complainant testified that a “stick” had been inserted into her private parts and there was no direct evidence that his penis had penetrated her.
21. The evidence relevant to that issue must be considered in its entirety. The complainant testified that the Appellant took her away, removed her clothes and inserted a stick into her private parts. PW1 found her crying with her clothes removed while the Appellant was also undressed, and the complainant immediately told him that the Appellant had inserted a stick into her private parts. PW2 received the same account from the complainant, while the P3 and PRC forms recorded bruises, erythema and a broken hymen.
22. In Sumba v Republic (Criminal Appeal 164 of 2018) [2024] KECA 521 (KLR), the Court of Appeal recognised that penetration may be established from the evidence of the child together with the surrounding circumstances and medical evidence, without requiring a child witness to express herself in technical anatomical terminology. The evidence in this case, considered in that context, establishes that the complainant was subjected to an act involving penetration of her private parts and that the medical findings were consistent with the account she gave.
23. On whether the complainant’s reference to a “stick” was properly understood, the Respondent relied on Muganga Chilejo Saha v Republic [2017] KECA 359 (KLR) and WWK v Republic [2026] KEHC 1097 (KLR) authorities concerning the assessment of a young child’s description of a sexual act. The evidence of a child of four years must be understood in its factual context, without imposing upon the child the anatomical precision expected of an adult witness.
24. The complainant consistently described the Appellant as the person who took her away, removed her clothes and inserted the object into her private parts, and her account was made shortly after the incident to PW1 and repeated to PW2. PW1 also found her crying and undressed, with the Appellant undressed, while the medical evidence recorded bruises, erythema and a broken hymen. The trial court was entitled to consider the child’s description together with those circumstances in determining what she was describing.
25. The issue is not whether the word “stick” can, without more, be equated with a penis, but whether the evidence as a whole established the act of penetration alleged in the charge. In the circumstances of this case, the trial court’s interpretation of the complainant’s evidence was grounded in the evidence before it and did not amount to the creation of evidence that she had not given.
26. Consequently, this court finds no error of principle in the trial court's treatment of the complainant's language.
27. On the issue of whether PW1's evidence supported the complainant's account, PW1 was not an eyewitness to the actual act of penetration. His evidence must therefore be understood according to what he personally observed and what the complainant told him. He found the complainant crying, with her clothes removed, and the Appellant also undressed. The Appellant offered an explanation that he had been urinating and that the complainant had fallen down. The complainant thereafter told PW1 that the Appellant had inserted a stick into her private parts.
28. The significance of this evidence is not that PW1 saw penile penetration. He did not. Its significance is that it placed the Appellant and the complainant together in circumstances immediately connected with the complainant's distress and that the complainant made a disclosure implicating the Appellant.
29. The account given by the complainant to PW1 was subsequently repeated to PW2. The consistency of the disclosure, the circumstances in which PW1 encountered the complainant and the subsequent medical findings provide support for the complainant's evidence.
30. PW1's evidence materially corroborated the surrounding circumstances of the complainant's account, and the conviction was not founded on presence alone, since it rested on the complainant's own direct evidence connecting the Appellant with the act, evidence which was not displaced by the defence case, so that the complaint that the trial court treated the Appellant's presence as conclusive proof of guilt accordingly fails.
31. On whether the medical evidence supported the prosecution case, PW4, Caroline Ndangula, a clinician, produced the P3 form dated 19th November 2019, while PW5, Robinson Katena, also a clinician, produced the PRC form dated 15th November 2019, both of which recorded bruises, erythema and a broken hymen in respect of the complainant.
32. In P.K.W v Republic [2012] KECA 103 (KLR), the Court of Appeal cautioned against treating a ruptured hymen, by itself, as conclusive proof of the particular sexual act alleged, while Ongaga v Republic [2024] KEHC 3629 (KLR) underscores the need to evaluate medical evidence in the context of the entire prosecution case.
33. From the foregoing, this court finds as did the trial court that the medical findings of bruises, erythema and a broken hymen corroborated the complainant’s account of defilement and supported the prosecution evidence on penetration.
34. On whether the Appellant was identified as the perpetrator, the evidence did not depend upon a difficult identification of a stranger, since the Appellant was known to the complainant and lived with the children at their grandmother's home, so that the complainant recognised the person she accused. He himself admitted being at the grandmother's home on the material day, and his defence was not that he was a stranger to the complainant or that he had not been present, but that he had spent time with the children and subsequently gone to sleep. DW3 and DW4 likewise placed him at the home, testifying that he spent the material day there with the children and could be heard playing with them, and that the complainant and the other children frequently visited.
35. What identified the Appellant as the perpetrator was not his presence at the home, which was undisputed, but the complainant's own account directly attributing the act to him, corroborated by PW1's finding of her condition and by the P3 and PRC forms recording her medical examination. On that basis, I find that the Appellant's identity as the perpetrator was proved beyond reasonable doubt.
36. On whether the absence of DNA evidence created reasonable doubt, the Appellant contends that the prosecution ought to have obtained forensic evidence linking him to the complainant. In Williamson Sowa Mbwanga v Republic [2016] KECA 147 (KLR), the Court of Appeal held that failure to conduct DNA analysis is not fatal where the prosecution has otherwise proved the essential ingredients of the offence beyond reasonable doubt. Section 36(1) of the Sexual Offences Act empowers the court to direct the taking of samples for forensic analysis but does not make DNA testing a mandatory requirement in every sexual offence. The question is therefore whether the evidence adduced without such analysis was sufficient to establish the charge.
37. In the present case, the prosecution case rested on the complainant’s evidence, which was supported by the circumstances in which she was found, the evidence of PW1 and PW2 and the medical findings contained in the P3 and PRC forms. The absence of DNA evidence did not leave the prosecution case without evidential support, and the Appellant has not demonstrated that such evidence was necessary to establish any of the essential ingredients of the offence.
38. On whether failure to call the investigating officer was fatal, the Appellant contends that his evidence was necessary to explain the circumstances of the arrest and reporting, the medical referral and the handling of the alleged stick and other evidence.
39. Section 143 of the Evidence Act does not require the prosecution to call any particular number of witnesses, while in Bukenya & Others v Uganda [1972] EA 549 the court held that an adverse inference may arise where a material witness is not called and the evidence adduced is insufficient to establish the prosecution case. In Keino v Republic [2024] KECA 710 (KLR), the Court of Appeal observed that the investigating officer ordinarily provides the evidential link connecting the various strands of the prosecution case and explains the investigation leading to the conclusion that the accused was culpable.
40. In the circumstances, the evidence on record was sufficient to establish the charge notwithstanding the absence of the investigating officer, and the omission was therefore not fatal.
41. On whether the Appellant’s defence was properly considered, the Appellant denied the offence and gave an account of his presence at the grandmother’s home, his interaction with the children and the circumstances of his arrest, which was supported in part by DW2, DW3 and DW4.
42. DW2 testified concerning the events of the material day and the Appellant’s arrest while he was asleep, while DW3 stated that he had heard the children playing with the Appellant but was not present when the alleged offence occurred. DW4 similarly testified that the children frequently visited the Appellant’s home and that she had left her children in his care.
43. The defence evidence explained the Appellant’s presence with the children but did not place him elsewhere at the time of the alleged offence, and none of the defence witnesses witnessed the events in question. It consequently did not displace the complainant’s evidence implicating the Appellant.
44. The trial court considered the Appellant’s defence alongside the prosecution evidence before rejecting it, and the evidence called in his support did not raise a reasonable doubt on the prosecution case.
45. On whether the prosecution proved the charge beyond reasonable doubt, the governing principle is that the burden of proof remained throughout on the prosecution and never shifted to the Appellant, as stated in Woolmington v Director of Public Prosecutions [1935] AC 462, while the requisite standard is proof beyond reasonable doubt as explained in Miller v Minister of Pensions [1947] 2 All ER 372.
46. Having determined the individual ingredients of the offence in the preceding issues and considered the defence, I find that the prosecution proved the complainant’s age, penetration and the identity of the Appellant as the perpetrator beyond reasonable doubt, with the medical evidence providing support for the evidence of penetration.
47. Having determined the individual ingredients of the offence in the preceding issues and considered the Appellant’s defence alongside the prosecution evidence, including the medical evidence which established bruises, erythema and a broken hymen, I find that the prosecution proved the complainant’s age, penetration and the identity of the Appellant as the perpetrator to the required standard and that the defence did not displace the well-established prosecution case.
48. On the alternative charge, the Appellant was also charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The alternative count would only arise for consideration if the evidence failed to establish penetration but proved the commission of an indecent act with the child.
49. Having found that the prosecution proved penetration and the other essential ingredients of defilement beyond reasonable doubt, the alternative charge does not arise for determination and there is no basis for substituting the conviction on the principal charge.
50. On sentence, the Appellant was convicted on 12th September 2024 of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and was sentenced to life imprisonment on 31st October 2024. Section 8(2) of the Sexual Offences Act provides for life imprisonment where the child in respect of whom the offence is committed is aged eleven years or less. The complainant was four years old at the time of the offence, and the sentence imposed was therefore the sentence prescribed by law.
51. Having considered the challenge to sentence, I find no error of principle, misdirection or other circumstance warranting interference with the sentence imposed by the trial court.
52. From the foregoing analysis, I find that the prosecution proved the charge beyond reasonable doubt and that the conviction under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly entered; the appeal against conviction is accordingly dismissed and the conviction upheld.
53. The sentence of life imprisonment imposed on 31st October 2024 was lawful under section 8(2) of the Sexual Offences Act, and the appeal against sentence is dismissed and the sentence affirmed.