(Being an appeal against the Judgement of Hon. Lester Simiyu (PM) in Principal Magistrate’s Court at Siaya S.O CRC No. E012 OF 2021 delivered on 05.12.2022 and 15.12.2025 respectively)
1. The Appeal herein arises from the Judgement of Hon. Lester Simiyu (PM) in the Principle Magistrate’s Court at Siaya S.O. Criminal Case No. E12 of 2021 dated 05.12.2022 wherein she convicted and sentenced the Appellant herein to 30 years’ imprisonment.
2. The particulars of the charge were that on 9th February 2021 at Mur-Malanga Sub-Location in Siaya County, the Appellant intentionally caused his penis to penetrate the vagina of A.A., a child aged 5 years. He faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
3. The Appellant was aggrieved and filed an Amended Petition of Appeal dated 15 th January 2026 wherein he raised the following grounds of appeal;
I. THAT the trial court erred in law and fact in not observing that the prosecution case was full of contradictions, discrepancies and inconsistencies which were inconsequential to conviction.
II. THAT the trial court erred in law and fact in not observing that the prosecution failed to prove its case beyond reasonable doubt as legally required by law.
III. THAT the trial court erred in law while applying Sections 31(1)(b) and 31(2) of the Sexual Offences Act without following the requirements provided in law.
IV. THAT the trial court erred in law by widely interpreting sections 31(4)(e) to dispense with both the oral & written testimonies of the minor, this injudicious decision, greatly prejudiced the accused person and resulted to a wrong conviction. Defilement being a very serious offence, the trial judge ought to have restricted herself within the parameters of the law, and ought not to have devised a decision not known in law. The trail Magistrate failed in applying her discretion judiciously.
V. THAT the trial court erred in law while applying section 31(4)(e) of the Sexual Offences Act by dispensing with both the oral & written testimonies of the Minor, without applying section 31(5) of the Sexual Offences Act, which section is coined in mandatory terms.
VI. THAT the trial court erred in law and facts by eliminating the complainant from her own case and therefore wrongly convicted the appellant on the basis of testimony of other witnesses.
VII. THAT the trial court erred in law and facts by eliminating the complainant from her own case, and therefore, the said complainant did not establish her case as required in law.
VIII. THAT the trial court erred in law and facts in disregarding the appellant's defence despite the same being worth of acquittal.
IX. THAT, further grounds to be adduced once the trial court records (proceedings) are received and after pursuant of the same.
4. This being the first Appellate Court, the Court’s duty is to consider the evidence presented to the trial court and subject it to an independent analysis so as to arrive at its own conclusion. The court however will have to take into account that it neither heard nor saw the witnesses. In Okeno- Vs- Republic (1972) EA 32 it was held that;
‘‘"An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate's findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses"."
5. The case before the lower court is that the Appellant, Jeremiah Otieno Arua was charged before the Principal Magistrate's Court at Siaya 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 were that on 9 t h February 2021 at Mur-Malanga Sub-Location within Siaya County, he intentionally caused his penis to penetrate the vagina of A.A. , a child aged five (5) years. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act .
6. After a full trial, the learned trial magistrate convicted him on the main count of defilement and sentenced him to serve thirty (30) years imprisonment. The same has precipitated into the present appeal.
7. Wesley Odhiambo (PW1) testified that on 9th February 2021 at around 1:30 p.m., his 14-year-old niece informed him that a child was wailing in the bush. He armed himself with a panga and went to the thicket, where he found a stranger (the accused) on top of the child (Angel Adhiambo) with his trousers pulled down to his knees. He grabbed the accused by the t-shirt to pull him off. A struggle ensued over the panga. He sent his nephew to call for help and construction workers arrived and beat the accused. He noted that the victim's underclothing was partially off, her face was scratched and there was human fecal matter at the scene from a struggle. They hired a boda boda and took the accused and the child to Ting'wang'i Police Post. He later learned the accused was a local shamba boy. During cross examination, he stated that he could not photograph the accused in the act because his impulse was to pull him off the child who was almost dying. He explained he did not cut the accused with the panga because when the accused fell, the accused grabbed the blade while he held the handle. He confirmed that the accused had Ksh. 200 and a phone, which were handed over to the police at Ting'wang'i Post. He denied that the money was Ksh. 4,000. He confirmed the accused left behind a bicycle, which his employer was asked to keep. He stated the accused did not talk to him upon reaching Ting'wang'i. On the vehicle to Siaya, he did not sit next to the accused because two officers and the victim's mother sat between them. He stated he could not confirm if the accused's penis had penetrated the child because the accused was on top of her and had completely covered her. He noted the accused's penis was erect, but he did not examine whether the accused was circumcised.
8. John Erick Aduda (PW2) testified that on 9th February 2021, a child alerted him that a child was being killed in the bush. He ran to the thicket and found PW1 pinning down a half-naked man (the accused) who had fecal matter on him. That PW1 and the accused were struggling over a panga. That he observed that the victim had faeces smeared on her body and that her panty and biker pants were removed. He handed the child to her grandmother to be taken to the hospital, helped secure the accused, called the police and eventually transported the accused to Ting'wang'i Police Post on a boda boda. On cross examination, he clarified that it was PW1 who questioned the accused to reveal his identity. He corroborated that when he arrived, PW1 was holding the panga handle while the accused held the blade and PW1 pinned the accused down to avoid cutting him. He stated that he did not photograph the accused on top of the child but he photographed the accused naked after they pinned him down. He testified that a crowd surged to kill the accused, so he stopped photographing, saved the accused from the mob and rushed him to Ting'wang'i.
9. Mary Awuor Onyango (PW3) testified that on 9th February 2021 at 1:30 p.m., she was alerted that someone needed her. She went to the back route and found her 5-year-old granddaughter (Angel) with another boy. The minor was completely soiled with human faeces, her panties were at her ankles and she was dragging her feet. The child stated that a "mad man" dragged her into the bush. She dressed the child in fresh clothes and took her to the police station from where they were escorted to Siaya District Hospital. She identified the birth certificate (PMF1-1), P3 form (PMF1-2), Lab Request (PMF1-3) and PRC form (PMF1-4). She identified the accused in court as the man who had been caught. She stated that when she went to the hospital, she was escorted by police officers who took all the medical documents. She stated she saw the accused for the first time on the date of the offense and did not interact with him at the scene. She stated that she could not tell whether the accused had a phone or money at the scene.
10. Dr. Kennedy Opiyo (PW4) testified that he examined both the minor victim and the accused on 9th February 2021 . In his victim findings he noted bruises on the outer vaginal wall, fresh minimal blood stains on the vaginal wall, intact hymen and forced partial penetration. Urinalysis showed pus cells and moderate bacteria but no spermatozoa. He examined that the accused wore a grey-green sweater soiled with fresh blood and torn at the hands and brown trousers soiled with dirt. Genital examination showed a swollen penis with reddish lacerations on the penile region, blood on the penis and thigh and an intact dry anus. He filled the P3 form for Angel (P-Exh 2), Lab Request (P-Exh 3), PRC Form (P-Exh 4), P3 for Accused (P-Exh 5) and Lab Request for Accused (P-Exh 6). During cross examination by the accused, he confirmed that he examined the accused, completed lab investigations, and cleaned his wounds and prescribed antibiotics and painkillers before handing him over to the police because a mob was baying for his life. He stated that he did not have photographs to show that the accused committed the offense. During examination by Court In response to the court asking what nature of offense occurred, he stated that it was purely a sexual offense and the other injuries would be due to force used when pinning the child down in the bush. During second cross examination by the accused’s counsel, he confirmed that he is trained in clinical medicine (no specialization) with 10 years of experience and completed the forms consciously. He acknowledged it was an oversight that he did not indicate the time on the Lab Request form (P-Exh 3), though the PRC form indicated time elapsed as 4 hours. The P3 form showed report time at police as 15:20 hrs and he received the patient at 16:45 hrs. He confirmed recording the accused's injuries (active bleeding on left lateral eye, swollen, soil on left arm) on P-Exh 5 and agreed it was possible the mob injured the accused's genitalia and caused the blood seen on him. He agreed that female genitalia has external and internal parts. When asked about the size of a 5-year-old's vaginal opening, he stated that he was not sure and could not confirm if it was the size of a Bic biro. He stated that the diameter of an erect penis of a 28-year-old varies. He stated that the hymen does not sit at the opening of the vagina. He reiterated that the hymen was intact and there was partial penetration, adding that complete penetration would have led to bleeding at the hymen. He stated that he picked DNA samples and kept them in the lab for the police to follow up. On re-examination, he clarified that the minor's genitalia was small, the hymen was intact and that there was forced partial penetration.
11. No.95730 PC Paul Nyandomu (PW5) testified under Section 77 of the Evidence Act in place of the initial investigating officer (Corporal Eliud Shitanda, who was transferred). He stated that the matter was reported on 9th February 2021 at 15:20 hrs by Mary Awuor. The suspect had already been brought in by members of the public before the report was formally entered. Police escorted the victim and accused to Siaya Referral Hospital. Investigating officers visited the scene (a bush with loose soil and a hole) and noted signs of a struggle. He produced the birth certificate showing the victim's date of birth as 21st March 2016 (P-Exh 1). During cross examination, he acknowledged that the police statements do not show the investigating officer checked the accused's genitalia or recorded that the accused was received while injured or assaulted. He agreed that beating someone makes one a criminal. He admitted there was no minute or record in the police file showing the accused had withdrawn money, had a bicycle, had a phone snatched or that his child had been assaulted. He admitted that while the covering report states defilement occurred via the anus, the charge sheet reads that the victim's vagina was penetrated. He stated that to him, all private parts are covered though they are different body parts. He confirmed the victim was not taken to a gender violence desk and was not attended by a female police officer. He admitted that he had no exhibits or blood samples handed over by the doctor as they were not in the police store. He conceded there was a loss of evidence and agreed the case was prejudicial because the primary investigating officer was absent and another officer was sick. During re-examination, he stated that Corporal Shitanda was not an eyewitness whereas there were eyewitnesses whose evidence the court should adopt. He stated that while the covering report mentioned anal defilement, only a doctor can ascertain how defilement happened and the investigating officer made an error. He stated Ting'wang'i Post had no gender desk but officers must act quickly to take a child to the hospital regardless. He clarified that exhibits existed but were not found when he checked the store.
12. The trial court later ruled that a prima facie case had been made out against the Appellant by the Respondent and that the Appellant was subsequently placed on his defence and who gave sworn evidence and called four witnesses.
13. Joshua Otieno Arua (DW1) testified on oath that he resided in Mur-Malanga for three months prior to arrest and lived with his three children: Marline Adhiambo (13), Richard Otieno (10), and Eunice Akinyi (17). On 9th February 2021, a teacher called him to school because his child was injured and he took her to Mur-Malanga Sub-County Hospital. Afterwards, he withdrew Ksh. 4,350 at an M-Pesa agent, bought items at a chemist and shop and was leaving on his bicycle with Ksh. 4,000 balance, his child and hospital documents. Boda boda riders suddenly surrounded him, accusing him of stealing a child and severely assaulted him with rungus and slashers until he lost consciousness. He woke up handcuffed to a hospital bed with police officers. He denied all defilement charges and stated`that he lost his bicycle, phone, Ksh. 4,000, radio, USB and child's medical documents. He produced his P3 form (D-Exh 1).
14. Peter Otanja (DW2) testified that on 9th February 2021 at around 1:00 p.m., he was working at a construction site in Mur-Malanga when he heard noise on a nearby road. He went to check and found a man (the accused) being beaten while a child was crying. He spoke to the child, who told him the man being beaten was her father and that he had been accused of stealing her. He told the crowd to stop as the man was the father. He stated the allegation at the scene was child stealing not defilement. He confirmed he was not paid to testify . During cross examination, he confirmed that he arrived at the scene between 1:00 p.m. and 1:30 p.m. and found the accused already being assaulted. During examination by court, he clarified that the assault occurred on a big road bordered by bushes and shrubs near where he was working. During re-examination, he confirmed his home was in Bondo.
15. Wellington Odhiambo (DW3) testified that on 9th February 2021 while transporting a customer, he saw a crowd beating a man he recognized as "Ja-Asembo" (the accused). A child was crying and people claimed he had stolen a child. He intervened and told the riders that the child belonged to the accused, as he had previously transported the accused and his two children from Asembo to Mur-Malanga. The beating stopped. He subsequently notified the accused's family. He stated he did not see any other child or hear any allegations of defilement. On cross examination, he confirmed that when he arrived at the scene, the assault was already ongoing .
16. Dr. Everlyne Awuor Okelo (DW4) a master's level Specialist in Gynecology and Obstetrics licensed under KMPDC No. A 8308 evaluated the P3 form filled by Clinical Officer Kennedy Opiyo. She testified that female anatomy consists of external genitalia (vulva, labia majora, labia minora, clitoris, intact hymen) and internal genitalia (vagina, cervix, fallopian tubes, ovaries). She stated that there is no medical or anatomical structure called an "outer vaginal wall" the vagina is a single internal tabular structure. She explained that in a 5-year-old, the entry to the vagina is covered by a hymen. It is anatomically impossible to visualize or access the vaginal walls without touching or tearing the hymen. To examine a 5-year-old's vaginal walls, an Examination Under Anesthesia (EUA) in an operating theatre using a speculum is required which was not performed. She stated that if an erect penis (typically 9 cm wide, 16 cm long) or finger were inserted, it would cause severe trauma, tearing and bleeding to external organs (vulva, labia majora/minora, clitoris) before reaching the vagina. She concluded that the clinical officer's report was scientifically unfounded, proper examination was not performed and the report could not directly link the accused. She produced her expert report (D-Exh 2). During examination by court, she confirmed to the court that she was only provided with the P3 form for review and did not review the PRC form (which usually contains more detailed information/pictorials) or treatment notes. On re-examination, she clarified that no PRC form was brought to her only the P3 form and partial information from the PRC form which was incomplete.
17. The appeal was canvassed by way of written submissions. The Appellant filed his submissions dated 14 th June 2026.
18. The Appellant submitted that the accounts of PW1 and PW2 were secondary and hearsay because both derived their knowledge from Durance Odhiambo Ochieng who was not called to testify. Citing Section 125(1) of the Evidence Act (Cap 80), counsel argued that a 14-year-old is competent to testify. By failing to call Durance without explanation, the prosecution left only hearsay accounts. The Appellant invoked the principle of adverse inference established in Bukenya & Others v Uganda [1972] EA 549 , as well as Republic v Kipkering Arap Koske & Another [1949] 16 EACA 135 a nd Simon Muli Katiwa & Another v Republic [2006] eKLR, arguing that the court ought to infer that Durance's evidence would have been harmful to the prosecution.
19. The Appellant submitted that the prosecution's medical evidence was thoroughly demolished by DW4's expert testimony. DW4 explained that in female anatomy, the hymen sits at the entrance of the vagina, making it anatomically impossible to reach the internal vaginal walls of a 5-year-old without tearing the hymen or injuring the labia. Counsel noted that the trial magistrate relying on Stephen Kinini Wang'omu v The Ark Limited [2016] eKLR chose not to place much weight on either medical report which effectively left the prosecution without direct medical evidence of penetration. Because the child never testified, the court could not invoke the proviso to Section 124 of the Evidence Act. Citing Mnala v Republic (Criminal Appeal 250 of 2018) [2025] KECA 324 and EMN v Republic (Criminal Appeal E043 of 2022) [2022] KEHC 16687 , the Appellant argued that doubtful medical evidence cannot sustain a conviction for defilement.
20. The Appellant submitted that the trial court committed a fundamental misdirection by relying on circumstantial evidence (PW1 and PW2 finding the accused on top of the minor) to conclude that partial penetration occurred. While the trial court cited Bassita v Uganda (S.C. Criminal Appeal No. 35 of 1995), the Appellant argued that the authority was misapplied, as circumstantial evidence cannot substitute for direct proof of the physical act of penetration itself. Under cross-examination, PW1 admitted he could not confirm whether penetration had occurred. Relying on Godfrey Mudulia v Republic [2021] eKLR, counsel argued that contradictory medical evidence renders the prosecution case collapsible. Being found in a compromising position amount to suspicion which cannot substitute for proof beyond reasonable doubt .
21. The Appellant contended that the trial magistrate misapprehended Section 31 of the Sexual Offences Act. Counsel submitted that while Section 31 protects vulnerable witnesses, Section 31(5) makes it mandatory ( "shall" ) for the court to appoint an intermediary or record reasons for not doing so. The trial court failed to appoint an intermediary or record reasons, completely removing the complainant from the proceedings and depriving the Appellant of his constitutional right to cross-examine and challenge evidence under Article 50(2)(k) of the Constitution and Section 31(13) of the Sexual Offences Act.
22. The Appellant submitted that the trial court failed in its duty to properly re-evaluate the evidence. Citing Joseph Maina Mwangi v Republic [2000] eKLR , counsel argued that the contradiction between PW4's report and biological reality was fundamental rather than minor. Relying on Ibrahim v Republic (Criminal Appeal E047 of 2022) [2024] KEHC 986 (KLR) and Theuri v Republic (Criminal Appeal 32 of 2021) [2024] KEHC 8232 (KLR) , the Appellant maintained that where prosecution evidence actively contradicts penetration, the test for proof becomes even more severe and any doubt must be resolved in favor of the accused.
23. Referring to Halsbury's Laws of England (4th Ed., Vol. 17) and the U.S. Supreme Court decision in Re Winship 397 US 358 (1970), the Appellant asserted that the legal burden of proof remains constantly on the prosecution. Citing Mativo J (as he then was) in Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR , counsel argued that a single circumstance creating reasonable doubt entitles the accused to an acquittal as a matter of right. The Appellant submitted that the trial magistrate improperly filled gaps in the prosecution's case rather than crediting the doubt to the Appellant.
24. The Appellant humbly prayed that the High Court be pleased to allow the appeal; quash the conviction of the Appellant by the trial court; and make such other or further orders as the Court may deem fit and just.
25. I have considered the Amended Petition of Appeal, the record of appeal and the Appellant’s submissions and find that the issue for determination is whether the prosecution proved its case against the Appellant beyond reasonable doubt.
26. It is trite that in criminal cases, the burden of proof is upon the prosecution to discharge and that the standard of proof is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462.
27. It is noted that the Appellant had been charged with an offence of defilement under section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. In order to prove the offence therein, the Respondent was under obligation to prove certain essential ingredients and that to answer this, the Court must evaluate the three canonical ingredients of defilement namely; the age of the complainant (whether she was a child under the law); the fact of penetration and the positive identification or recognition of the Appellant as the perpetrator. These ingredients must each be proven for a conviction to ensue (See George Opondo Olunga vs Republic [2016] eKLR)
28. S ection 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: - (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
(7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children's Act.
(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees.
29. As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim.. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
30. Regarding proof of age, and as noted above, it is noteworthy to state at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim.
31. Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. There are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR ) where the court stated as follows :
“……..the question of proof of age has finally been settled by a recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof” It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...”
32. In the present case, the grandmother of the victim ( Mary Awuor Onyango (PW3)) gave direct oral evidence regarding the minor's identity and age. The prosecution produced an official Birth Certificate (P-Exhibit 1). The birth certificate established that the victim ( A.A. ) was born on March 21, 2016. As the incident occurred on February 9, 2021 the child was conclusively proven to be 5 years old at the time of the offence. I find that this ingredient was established beyond any reasonable doubt.
33. As regards the aspect of penetration, section 2 of the Sexual Offences Act No.3 of 2006 defines ‘‘Penetration’’ as the partial or complete insertion of the genital organs of a person into genital organs of another person.
34. Penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. Under the provisions of section 124 of the Evidence Act, the same provides as follows:
"Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth."
In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995 it was held thus:
"An i
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1. The Appeal herein arises from the Judgement of Hon. Lester Simiyu (PM) in the Principle Magistrate’s Court at Siaya S.O. Criminal Case No. E12 of 2021 dated 05.12.2022 wherein she convicted and sentenced the Appellant herein to 30 years’ imprisonment.
2. The particulars of the charge were that on 9th February 2021 at Mur-Malanga Sub-Location in Siaya County, the Appellant intentionally caused his penis to penetrate the vagina of A.A., a child aged 5 years. He faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
3. The Appellant was aggrieved and filed an Amended Petition of Appeal dated 15 th January 2026 wherein he raised the following grounds of appeal;
I. THAT the trial court erred in law and fact in not observing that the prosecution case was full of contradictions, discrepancies and inconsistencies which were inconsequential to conviction.
II. THAT the trial court erred in law and fact in not observing that the prosecution failed to prove its case beyond reasonable doubt as legally required by law.
III. THAT the trial court erred in law while applying Sections 31(1)(b) and 31(2) of the Sexual Offences Act without following the requirements provided in law.
IV. THAT the trial court erred in law by widely interpreting sections 31(4)(e) to dispense with both the oral & written testimonies of the minor, this injudicious decision, greatly prejudiced the accused person and resulted to a wrong conviction. Defilement being a very serious offence, the trial judge ought to have restricted herself within the parameters of the law, and ought not to have devised a decision not known in law. The trail Magistrate failed in applying her discretion judiciously.
V. THAT the trial court erred in law while applying section 31(4)(e) of the Sexual Offences Act by dispensing with both the oral & written testimonies of the Minor, without applying section 31(5) of the Sexual Offences Act, which section is coined in mandatory terms.
VI. THAT the trial court erred in law and facts by eliminating the complainant from her own case and therefore wrongly convicted the appellant on the basis of testimony of other witnesses.
VII. THAT the trial court erred in law and facts by eliminating the complainant from her own case, and therefore, the said complainant did not establish her case as required in law.
VIII. THAT the trial court erred in law and facts in disregarding the appellant's defence despite the same being worth of acquittal.
IX. THAT, further grounds to be adduced once the trial court records (proceedings) are received and after pursuant of the same.
4. This being the first Appellate Court, the Court’s duty is to consider the evidence presented to the trial court and subject it to an independent analysis so as to arrive at its own conclusion. The court however will have to take into account that it neither heard nor saw the witnesses. In Okeno- Vs- Republic (1972) EA 32 it was held that;
‘‘"An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate's findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses"."
5. The case before the lower court is that the Appellant, Jeremiah Otieno Arua was charged before the Principal Magistrate's Court at Siaya 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 were that on 9 t h February 2021 at Mur-Malanga Sub-Location within Siaya County, he intentionally caused his penis to penetrate the vagina of A.A. , a child aged five (5) years. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act .
6. After a full trial, the learned trial magistrate convicted him on the main count of defilement and sentenced him to serve thirty (30) years imprisonment. The same has precipitated into the present appeal.
7. Wesley Odhiambo (PW1) testified that on 9th February 2021 at around 1:30 p.m., his 14-year-old niece informed him that a child was wailing in the bush. He armed himself with a panga and went to the thicket, where he found a stranger (the accused) on top of the child (Angel Adhiambo) with his trousers pulled down to his knees. He grabbed the accused by the t-shirt to pull him off. A struggle ensued over the panga. He sent his nephew to call for help and construction workers arrived and beat the accused. He noted that the victim's underclothing was partially off, her face was scratched and there was human fecal matter at the scene from a struggle. They hired a boda boda and took the accused and the child to Ting'wang'i Police Post. He later learned the accused was a local shamba boy. During cross examination, he stated that he could not photograph the accused in the act because his impulse was to pull him off the child who was almost dying. He explained he did not cut the accused with the panga because when the accused fell, the accused grabbed the blade while he held the handle. He confirmed that the accused had Ksh. 200 and a phone, which were handed over to the police at Ting'wang'i Post. He denied that the money was Ksh. 4,000. He confirmed the accused left behind a bicycle, which his employer was asked to keep. He stated the accused did not talk to him upon reaching Ting'wang'i. On the vehicle to Siaya, he did not sit next to the accused because two officers and the victim's mother sat between them. He stated he could not confirm if the accused's penis had penetrated the child because the accused was on top of her and had completely covered her. He noted the accused's penis was erect, but he did not examine whether the accused was circumcised.
8. John Erick Aduda (PW2) testified that on 9th February 2021, a child alerted him that a child was being killed in the bush. He ran to the thicket and found PW1 pinning down a half-naked man (the accused) who had fecal matter on him. That PW1 and the accused were struggling over a panga. That he observed that the victim had faeces smeared on her body and that her panty and biker pants were removed. He handed the child to her grandmother to be taken to the hospital, helped secure the accused, called the police and eventually transported the accused to Ting'wang'i Police Post on a boda boda. On cross examination, he clarified that it was PW1 who questioned the accused to reveal his identity. He corroborated that when he arrived, PW1 was holding the panga handle while the accused held the blade and PW1 pinned the accused down to avoid cutting him. He stated that he did not photograph the accused on top of the child but he photographed the accused naked after they pinned him down. He testified that a crowd surged to kill the accused, so he stopped photographing, saved the accused from the mob and rushed him to Ting'wang'i.
9. Mary Awuor Onyango (PW3) testified that on 9th February 2021 at 1:30 p.m., she was alerted that someone needed her. She went to the back route and found her 5-year-old granddaughter (Angel) with another boy. The minor was completely soiled with human faeces, her panties were at her ankles and she was dragging her feet. The child stated that a "mad man" dragged her into the bush. She dressed the child in fresh clothes and took her to the police station from where they were escorted to Siaya District Hospital. She identified the birth certificate (PMF1-1), P3 form (PMF1-2), Lab Request (PMF1-3) and PRC form (PMF1-4). She identified the accused in court as the man who had been caught. She stated that when she went to the hospital, she was escorted by police officers who took all the medical documents. She stated she saw the accused for the first time on the date of the offense and did not interact with him at the scene. She stated that she could not tell whether the accused had a phone or money at the scene.
10. Dr. Kennedy Opiyo (PW4) testified that he examined both the minor victim and the accused on 9th February 2021 . In his victim findings he noted bruises on the outer vaginal wall, fresh minimal blood stains on the vaginal wall, intact hymen and forced partial penetration. Urinalysis showed pus cells and moderate bacteria but no spermatozoa. He examined that the accused wore a grey-green sweater soiled with fresh blood and torn at the hands and brown trousers soiled with dirt. Genital examination showed a swollen penis with reddish lacerations on the penile region, blood on the penis and thigh and an intact dry anus. He filled the P3 form for Angel (P-Exh 2), Lab Request (P-Exh 3), PRC Form (P-Exh 4), P3 for Accused (P-Exh 5) and Lab Request for Accused (P-Exh 6). During cross examination by the accused, he confirmed that he examined the accused, completed lab investigations, and cleaned his wounds and prescribed antibiotics and painkillers before handing him over to the police because a mob was baying for his life. He stated that he did not have photographs to show that the accused committed the offense. During examination by Court In response to the court asking what nature of offense occurred, he stated that it was purely a sexual offense and the other injuries would be due to force used when pinning the child down in the bush. During second cross examination by the accused’s counsel, he confirmed that he is trained in clinical medicine (no specialization) with 10 years of experience and completed the forms consciously. He acknowledged it was an oversight that he did not indicate the time on the Lab Request form (P-Exh 3), though the PRC form indicated time elapsed as 4 hours. The P3 form showed report time at police as 15:20 hrs and he received the patient at 16:45 hrs. He confirmed recording the accused's injuries (active bleeding on left lateral eye, swollen, soil on left arm) on P-Exh 5 and agreed it was possible the mob injured the accused's genitalia and caused the blood seen on him. He agreed that female genitalia has external and internal parts. When asked about the size of a 5-year-old's vaginal opening, he stated that he was not sure and could not confirm if it was the size of a Bic biro. He stated that the diameter of an erect penis of a 28-year-old varies. He stated that the hymen does not sit at the opening of the vagina. He reiterated that the hymen was intact and there was partial penetration, adding that complete penetration would have led to bleeding at the hymen. He stated that he picked DNA samples and kept them in the lab for the police to follow up. On re-examination, he clarified that the minor's genitalia was small, the hymen was intact and that there was forced partial penetration.
11. No.95730 PC Paul Nyandomu (PW5) testified under Section 77 of the Evidence Act in place of the initial investigating officer (Corporal Eliud Shitanda, who was transferred). He stated that the matter was reported on 9th February 2021 at 15:20 hrs by Mary Awuor. The suspect had already been brought in by members of the public before the report was formally entered. Police escorted the victim and accused to Siaya Referral Hospital. Investigating officers visited the scene (a bush with loose soil and a hole) and noted signs of a struggle. He produced the birth certificate showing the victim's date of birth as 21st March 2016 (P-Exh 1). During cross examination, he acknowledged that the police statements do not show the investigating officer checked the accused's genitalia or recorded that the accused was received while injured or assaulted. He agreed that beating someone makes one a criminal. He admitted there was no minute or record in the police file showing the accused had withdrawn money, had a bicycle, had a phone snatched or that his child had been assaulted. He admitted that while the covering report states defilement occurred via the anus, the charge sheet reads that the victim's vagina was penetrated. He stated that to him, all private parts are covered though they are different body parts. He confirmed the victim was not taken to a gender violence desk and was not attended by a female police officer. He admitted that he had no exhibits or blood samples handed over by the doctor as they were not in the police store. He conceded there was a loss of evidence and agreed the case was prejudicial because the primary investigating officer was absent and another officer was sick. During re-examination, he stated that Corporal Shitanda was not an eyewitness whereas there were eyewitnesses whose evidence the court should adopt. He stated that while the covering report mentioned anal defilement, only a doctor can ascertain how defilement happened and the investigating officer made an error. He stated Ting'wang'i Post had no gender desk but officers must act quickly to take a child to the hospital regardless. He clarified that exhibits existed but were not found when he checked the store.
12. The trial court later ruled that a prima facie case had been made out against the Appellant by the Respondent and that the Appellant was subsequently placed on his defence and who gave sworn evidence and called four witnesses.
13. Joshua Otieno Arua (DW1) testified on oath that he resided in Mur-Malanga for three months prior to arrest and lived with his three children: Marline Adhiambo (13), Richard Otieno (10), and Eunice Akinyi (17). On 9th February 2021, a teacher called him to school because his child was injured and he took her to Mur-Malanga Sub-County Hospital. Afterwards, he withdrew Ksh. 4,350 at an M-Pesa agent, bought items at a chemist and shop and was leaving on his bicycle with Ksh. 4,000 balance, his child and hospital documents. Boda boda riders suddenly surrounded him, accusing him of stealing a child and severely assaulted him with rungus and slashers until he lost consciousness. He woke up handcuffed to a hospital bed with police officers. He denied all defilement charges and stated`that he lost his bicycle, phone, Ksh. 4,000, radio, USB and child's medical documents. He produced his P3 form (D-Exh 1).
14. Peter Otanja (DW2) testified that on 9th February 2021 at around 1:00 p.m., he was working at a construction site in Mur-Malanga when he heard noise on a nearby road. He went to check and found a man (the accused) being beaten while a child was crying. He spoke to the child, who told him the man being beaten was her father and that he had been accused of stealing her. He told the crowd to stop as the man was the father. He stated the allegation at the scene was child stealing not defilement. He confirmed he was not paid to testify . During cross examination, he confirmed that he arrived at the scene between 1:00 p.m. and 1:30 p.m. and found the accused already being assaulted. During examination by court, he clarified that the assault occurred on a big road bordered by bushes and shrubs near where he was working. During re-examination, he confirmed his home was in Bondo.
15. Wellington Odhiambo (DW3) testified that on 9th February 2021 while transporting a customer, he saw a crowd beating a man he recognized as "Ja-Asembo" (the accused). A child was crying and people claimed he had stolen a child. He intervened and told the riders that the child belonged to the accused, as he had previously transported the accused and his two children from Asembo to Mur-Malanga. The beating stopped. He subsequently notified the accused's family. He stated he did not see any other child or hear any allegations of defilement. On cross examination, he confirmed that when he arrived at the scene, the assault was already ongoing .
16. Dr. Everlyne Awuor Okelo (DW4) a master's level Specialist in Gynecology and Obstetrics licensed under KMPDC No. A 8308 evaluated the P3 form filled by Clinical Officer Kennedy Opiyo. She testified that female anatomy consists of external genitalia (vulva, labia majora, labia minora, clitoris, intact hymen) and internal genitalia (vagina, cervix, fallopian tubes, ovaries). She stated that there is no medical or anatomical structure called an "outer vaginal wall" the vagina is a single internal tabular structure. She explained that in a 5-year-old, the entry to the vagina is covered by a hymen. It is anatomically impossible to visualize or access the vaginal walls without touching or tearing the hymen. To examine a 5-year-old's vaginal walls, an Examination Under Anesthesia (EUA) in an operating theatre using a speculum is required which was not performed. She stated that if an erect penis (typically 9 cm wide, 16 cm long) or finger were inserted, it would cause severe trauma, tearing and bleeding to external organs (vulva, labia majora/minora, clitoris) before reaching the vagina. She concluded that the clinical officer's report was scientifically unfounded, proper examination was not performed and the report could not directly link the accused. She produced her expert report (D-Exh 2). During examination by court, she confirmed to the court that she was only provided with the P3 form for review and did not review the PRC form (which usually contains more detailed information/pictorials) or treatment notes. On re-examination, she clarified that no PRC form was brought to her only the P3 form and partial information from the PRC form which was incomplete.
17. The appeal was canvassed by way of written submissions. The Appellant filed his submissions dated 14 th June 2026.
18. The Appellant submitted that the accounts of PW1 and PW2 were secondary and hearsay because both derived their knowledge from Durance Odhiambo Ochieng who was not called to testify. Citing Section 125(1) of the Evidence Act (Cap 80), counsel argued that a 14-year-old is competent to testify. By failing to call Durance without explanation, the prosecution left only hearsay accounts. The Appellant invoked the principle of adverse inference established in Bukenya & Others v Uganda [1972] EA 549 , as well as Republic v Kipkering Arap Koske & Another [1949] 16 EACA 135 a nd Simon Muli Katiwa & Another v Republic [2006] eKLR, arguing that the court ought to infer that Durance's evidence would have been harmful to the prosecution.
19. The Appellant submitted that the prosecution's medical evidence was thoroughly demolished by DW4's expert testimony. DW4 explained that in female anatomy, the hymen sits at the entrance of the vagina, making it anatomically impossible to reach the internal vaginal walls of a 5-year-old without tearing the hymen or injuring the labia. Counsel noted that the trial magistrate relying on Stephen Kinini Wang'omu v The Ark Limited [2016] eKLR chose not to place much weight on either medical report which effectively left the prosecution without direct medical evidence of penetration. Because the child never testified, the court could not invoke the proviso to Section 124 of the Evidence Act. Citing Mnala v Republic (Criminal Appeal 250 of 2018) [2025] KECA 324 and EMN v Republic (Criminal Appeal E043 of 2022) [2022] KEHC 16687 , the Appellant argued that doubtful medical evidence cannot sustain a conviction for defilement.
20. The Appellant submitted that the trial court committed a fundamental misdirection by relying on circumstantial evidence (PW1 and PW2 finding the accused on top of the minor) to conclude that partial penetration occurred. While the trial court cited Bassita v Uganda (S.C. Criminal Appeal No. 35 of 1995), the Appellant argued that the authority was misapplied, as circumstantial evidence cannot substitute for direct proof of the physical act of penetration itself. Under cross-examination, PW1 admitted he could not confirm whether penetration had occurred. Relying on Godfrey Mudulia v Republic [2021] eKLR, counsel argued that contradictory medical evidence renders the prosecution case collapsible. Being found in a compromising position amount to suspicion which cannot substitute for proof beyond reasonable doubt .
21. The Appellant contended that the trial magistrate misapprehended Section 31 of the Sexual Offences Act. Counsel submitted that while Section 31 protects vulnerable witnesses, Section 31(5) makes it mandatory ( "shall" ) for the court to appoint an intermediary or record reasons for not doing so. The trial court failed to appoint an intermediary or record reasons, completely removing the complainant from the proceedings and depriving the Appellant of his constitutional right to cross-examine and challenge evidence under Article 50(2)(k) of the Constitution and Section 31(13) of the Sexual Offences Act.
22. The Appellant submitted that the trial court failed in its duty to properly re-evaluate the evidence. Citing Joseph Maina Mwangi v Republic [2000] eKLR , counsel argued that the contradiction between PW4's report and biological reality was fundamental rather than minor. Relying on Ibrahim v Republic (Criminal Appeal E047 of 2022) [2024] KEHC 986 (KLR) and Theuri v Republic (Criminal Appeal 32 of 2021) [2024] KEHC 8232 (KLR) , the Appellant maintained that where prosecution evidence actively contradicts penetration, the test for proof becomes even more severe and any doubt must be resolved in favor of the accused.
23. Referring to Halsbury's Laws of England (4th Ed., Vol. 17) and the U.S. Supreme Court decision in Re Winship 397 US 358 (1970), the Appellant asserted that the legal burden of proof remains constantly on the prosecution. Citing Mativo J (as he then was) in Elizabeth Waithiegeni Gatimu v Republic [2015] eKLR , counsel argued that a single circumstance creating reasonable doubt entitles the accused to an acquittal as a matter of right. The Appellant submitted that the trial magistrate improperly filled gaps in the prosecution's case rather than crediting the doubt to the Appellant.
24. The Appellant humbly prayed that the High Court be pleased to allow the appeal; quash the conviction of the Appellant by the trial court; and make such other or further orders as the Court may deem fit and just.
25. I have considered the Amended Petition of Appeal, the record of appeal and the Appellant’s submissions and find that the issue for determination is whether the prosecution proved its case against the Appellant beyond reasonable doubt.
26. It is trite that in criminal cases, the burden of proof is upon the prosecution to discharge and that the standard of proof is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462.
27. It is noted that the Appellant had been charged with an offence of defilement under section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. In order to prove the offence therein, the Respondent was under obligation to prove certain essential ingredients and that to answer this, the Court must evaluate the three canonical ingredients of defilement namely; the age of the complainant (whether she was a child under the law); the fact of penetration and the positive identification or recognition of the Appellant as the perpetrator. These ingredients must each be proven for a conviction to ensue (See George Opondo Olunga vs Republic [2016] eKLR)
28. S ection 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: - (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
(7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children's Act.
(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees.
29. As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim.. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
30. Regarding proof of age, and as noted above, it is noteworthy to state at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim.
31. Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. There are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR ) where the court stated as follows :
“……..the question of proof of age has finally been settled by a recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof” It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...”
32. In the present case, the grandmother of the victim ( Mary Awuor Onyango (PW3)) gave direct oral evidence regarding the minor's identity and age. The prosecution produced an official Birth Certificate (P-Exhibit 1). The birth certificate established that the victim ( A.A. ) was born on March 21, 2016. As the incident occurred on February 9, 2021 the child was conclusively proven to be 5 years old at the time of the offence. I find that this ingredient was established beyond any reasonable doubt.
33. As regards the aspect of penetration, section 2 of the Sexual Offences Act No.3 of 2006 defines ‘‘Penetration’’ as the partial or complete insertion of the genital organs of a person into genital organs of another person.
34. Penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. Under the provisions of section 124 of the Evidence Act, the same provides as follows:
"Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth."
In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995 it was held thus:
"An i
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