A. INTRODUCTION
1. The Appellant, Jeremiah Wafula Juma, was convicted after a full trial of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on diverse dates between 8th September 2021 and 10th September 2021 at Milani Village, Bokoli Sub-Location, Webuye West Sub-County within Bungoma County, he intentionally and unlawfully caused his penis to penetrate the vagina of F.N.M., a child aged 12 years. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that, on the same dates and at the same place, he rubbed his penis against the vagina of F.N.M.
2. On 7th August 2023, the trial court found the Appellant guilty of the main charge and sentenced him to 15 years' imprisonment. Dissatisfied with both the conviction and the sentence, the Appellant filed an Amended Petition of Appeal dated 24th November 2025, raising the following grounds: (i) that the trial court failed to accord him his right to legal representation; (ii) that the trial court failed to consider that the prosecution's case was marred with contradictions and conflicting evidence; (iii) that the trial court based the conviction without considering the circumstances surrounding the offence; (iv) that the trial court convicted him without proper proof of penetration; and (v) that the trial court failed to have the prosecution avail key witnesses to testify.
3. The Appellant urges this Court to quash the conviction, set aside the sentence, and set him free.
B. THE DUTY OF THIS COURT
4. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
5. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
6. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR, where the Court of Appeal held that the duty of the first appellate court is to analyse and re-evaluate the evidence and come to its own conclusions, without overlooking the conclusions of the trial court; where the first appellate court arrives at the same conclusions as the lower court, having independently considered the evidence, there is nothing objectionable in doing so. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
C. SUMMARY OF THE PROSECUTION EVIDENCE
7. The prosecution called six witnesses. I note, at the outset, that the matter was partly heard before one magistrate, who was thereafter transferred; upon the rights conferred by Section 200 of the Criminal Procedure Code being explained to him, the Appellant elected to have the case start entirely afresh, and it proceeded de novo before the trial magistrate who ultimately convicted him. The evidence given before the transfer, though part of the record and referred to in submissions, was accordingly not evidence upon which the convicting magistrate based her judgment; I address its relevance, where raised, at paragraphs 55 to 56 below.
8. PW1, the complainant, was subjected to voire dire in the de novo trial and found to be intelligent and capable of appreciating the nature of an oath. She testified that she was 13 years old at the time of testifying, in Grade 7 at Chekulo Primary School, and stayed with her grandmother. In 2021 she attended St. Walumuli Primary School in Grade 6. On 8th September 2021, at around 8:00pm, she was at home with her mother when the Appellant came to her home, introduced himself as Jeremiah, and told her he wished for her to go and live with him. She packed her clothes and gave them to him, and he left with them.
9. After dinner, she told her mother she wished to go outside to relieve herself; her mother asked her brother to accompany her, but she said she would go alone. Outside, she saw the Appellant, who had moved to their neighbourhood about two weeks earlier and ran a shop by the roadside near their home, and whom she had seen several times on her way to and from school. He took her to his shop, where they spent the night; he undressed her and himself, lay on top of her, and inserted his genital organ into hers. She did not scream for help.
10. In the morning, he told her to walk quickly so she would not be seen by her mother, and she waited at his house until around 7:00pm, when he took her to the home of his brother, Denis, where he again had sexual intercourse with her. She spent three nights at Denis's house; Denis's wife gave her a basin to relieve herself in, as she had been cautioned not to leave the house lest she be seen. On the Friday, before they could sleep, her mother came looking for her; Denis denied having seen her, and her mother left. The following morning, her mother returned and asked Denis to let her go to school. That night, after supper, police officers arrived and took them to the police station, and she was then taken to Bokoli Hospital for treatment. She was also examined by a doctor at Webuye District Hospital, who assessed her age by examining her teeth and found her to be 12 years old. She confirmed she had known the Appellant for about a year before the incident through his having come to buy a plot, that he was not her boyfriend, and that during the day he would be with his wife and would come to sleep with her at the shop at night. She identified the Appellant in Court.
11. On cross-examination, she stated it was her first time to meet the Appellant, that he had promised to marry her, that it was the first time he had come to her home, and that he took her to his brother's house because his wife was at home. She did not know whether there was bad blood between her uncle and the Appellant's family.
12. PW2, Mercy Mulongo Wakungo, the complainant's mother, testified that on 8th September 2021 at around 8:00pm she was at home having dinner when the Appellant came and told her that her husband had sent him to bring her a token, which he had not found, and that she should tell her husband, if he called, that it would be brought the next day. The complainant asked to go outside to relieve herself; PW2 asked her son Innocent to accompany her, but the complainant declined. When the complainant did not return, PW2 searched for her without success, and the following morning informed her husband and the village elder, who offered to report the matter to Bokoli Police Station.
13. The Appellant came asking for the complainant and was told she was missing; he said people were claiming he had lured her away, which he denied, and left. At 8:00pm that day, the Appellant, accompanied by his brother Denis, came to PW2's house; Denis said they had information the Appellant had left with the complainant, which the Appellant denied. The village elder, Bernard Wekesa Kokonya, later called PW2 to say the complainant had been spotted at Denis's house. PW2 alerted the police, and upon arrival at the Appellant's house found his wife holding a baby; the police entered Denis's house, found people watching television, and found the Appellant and the complainant in the guest bedroom. Both were arrested, and the complainant was confirmed the following morning, on medical examination, to have been defiled.
14. On cross-examination, PW2 confirmed it was the Appellant's first visit to her house, that her husband did not know him, that she never invited him to her house or church, and denied ever threatening him or that she had access to his phone number.
15. PW3, Richard Wekesa Kokonya, the area assistant chief, testified that on 9th September 2021 at around 7:30pm he received a call from PW2 informing him the complainant was at the Appellant's house. He went to the Appellant's neighbourhood and met one Abigael Nasambu Kokonya, who confirmed the complainant was in the Appellant's house. He informed PW2, who alerted the police, and he directed the officers to the house; on knocking, the Appellant and the complainant were found inside, with Denis in the sitting room with his wife. He confirmed the Appellant had bought land from his own family, and that there was no land dispute between them.
16. PW4, Simeon Kiveu, a clinical officer with over twelve years' experience, testified that he held treatment notes for a 12-year-old female, authored by a colleague with whom he had worked for a year before that colleague's transfer, and with whose signature he was familiar. On examination on 10th September 2021, it was noted that the hymen was absent, there was whitish discharge, no lacerations, HIV and VDRL were non-reactive, urinalysis showed no abnormality, the pregnancy test was negative, and no spermatozoa were seen; PEP and antibiotics were administered. The P3 Form was completed and the conclusion recorded was defilement. On cross-examination, he confirmed he had not personally examined the Appellant and did not know him.
17. PW5, PC Peter Mugo, testified that he took over the investigation from Constable Robi, who was then indisposed. On 10th September 2021, PW2 called him to report the complainant's location, and he attended the scene. On sighting the police, the Appellant hid himself in the rafters of the house, which had no ceiling; he was persuaded to surrender and was arrested together with the complainant, who were found in a guest room within the house, separate from the sitting room where the Appellant's family and an elderly person were present. He did not take photographs of the Appellant.
18. PW6, PC Robi Mary, testified that she was the investigating officer who received PW2's initial report of the complainant's disappearance and, upon later being informed of the complainant's location, dispatched colleagues who rescued the complainant and arrested the Appellant at Denis's house, where they had locked themselves in the bedroom. She escorted the complainant to hospital, confirmed the medical findings of defilement, recorded witness statements, and denied ever soliciting a bribe from the Appellant.
19. The Appellant, put on his defence, elected to give sworn evidence and called two witnesses. He testified that PW2 had engaged him to ride her to Chwele on his motorcycle on 4th September 2021 and, upon their return, invited him for a meal and to spend the night, sending her children to their room and locking the house; he declined to sleep in her bed, and she declined to give him a blanket for the sofa. She emerged the following morning while undressed and let him out; her children were surprised to find him there. He left, and over subsequent days there were exchanges over money for potatoes he had undertaken to buy her, culminating in an argument, and an encounter with an unnamed man at PW2's home who threatened him over an allegation that he intended to marry PW2's daughter. He denied that allegation, stating he was already married. He testified that PW2 later came to his brother's house accusing him of marrying her underage daughter, that he and his brother went to ask the complainant about this but she declined to speak to them, and that he was thereafter arrested when PW2 arrived with police officers. He maintained that PW2 held a grudge against him over money he says she owed him for work done on her house, and that she had wanted him as a lover, which he had declined.
20. On cross-examination, he confirmed he had known PW2 for about three months before the incident, had been engaged by her to cement her house and to ferry her by motorcycle, and maintained his account of the events of 4th to 9th September 2021.
Judgment of the Trial Magistrate
21. The learned trial magistrate found that the age of the complainant had been proved through the age assessment report, establishing her age at approximately 12 years. On penetration, she relied on the complainant's account of the different occasions of intercourse, at the Appellant's shop and at his brother's house. On identity, she found the complainant and the Appellant were known to each other, that there had been some prior contact between them before the complainant went missing, and that the prosecution evidence placed the Appellant at the scene and linked him to the offence. She found that, regardless of the Appellant's account, it had been proved that he took the complainant to Denis's house and defiled her on several occasions, and that all the evidence, contrary to the Appellant's account, pointed to the complainant having been found at Denis's house rather than at PW2's house. She convicted the Appellant on the main charge, sentenced him to 15 years' imprisonment, and declined to make any finding on the alternative charge.
Appellant's Submissions
22. The Appellant submitted that his rights under Articles 25(c) and 50(2)(g) and (h) of the Constitution were violated, in that the trial court failed, at the time of taking his plea, to inform him of his right to legal representation, including at State expense where substantial injustice would otherwise result, relying on Lima & Another v Republic, Criminal Appeal No. 110 of 1991.
23. He submitted that the prosecution's evidence was riddled with contradictions: that PW1 testified, in the first, aborted trial, to having known the Appellant for about a year, but in the de novo trial testified it was her first time to meet him; and that PW5 stated he found the Appellant hiding in the roof, but on cross-examination said the rafters, notwithstanding the house had no ceiling. He relied on Richard Aspella v Republic, Criminal Appeal No. 45 of 1981, and Ngungu Kimanyi v Republic [1979] KLR 283, submitting that such contradictions ought not to be ignored and that the prosecution had failed to prove its case beyond reasonable doubt.
24. He further submitted that the complainant packed her clothes and left with the Appellant without being made to do so, calling into question her credibility and the true nature of any relationship between them, and noting that she lied to her mother about her reason for going outside — conduct he characterised as more consistent with an adult than a child. He relied on Absalom Okila Ombaka v Republic [2020] eKLR.
25. On penetration, he submitted that PW4's evidence did not establish penetration, that the oral evidence of PW1 could not stand in the face of weak medical evidence, and that none of the other witnesses corroborated the complainant, in particular PW2, and that the trial court failed to record reasons for believing the complainant truthful. He relied on Arthur Mshila Manga v Republic.
26. Finally, he submitted that PW1, PW2, and PW3 each named potential witnesses who were never called, whose evidence would have been material, and that the prosecution's case must fail for that omission, relying on CMN v Republic [2012] eKLR, and prayed for his acquittal.
Respondent's Submissions
27. The Respondent submitted that all the elements of defilement — age, penetration, and identity — had been proved. Its sole complaint was that the sentence of 15 years was unlawful and devoid of statutory backing, the age assessment having placed the complainant at 12 years at the time of the offence, and prayed that the sentence be enhanced to the lawful minimum of 20 years' imprisonment.
D. ANALYSIS AND DETERMINATION
28. Having summarised the record and the parties' submissions, I turn to my own independent re-evaluation. The following issues arise: (a) whether the Appellant's right to legal representation was violated; (b) whether the contradictions identified by the Appellant are material; (c) whether the circumstances surrounding the offence, as characterised by the Appellant, afford any defence; (d) whether penetration was proved; (e) whether the identity of the perpetrator was proved; (f) whether the failure to call certain witnesses is fatal to the prosecution's case; and (g) whether the sentence imposed was lawful.
29. On legal representation, Article 50(2)(h) of the Constitution entitles an accused person to have an advocate assigned by the State, at State expense, where substantial injustice would otherwise result, and to be informed of this right promptly. The leading authority, David Njoroge Macharia v Republic [2011] eKLR, held that substantial injustice arises as of course where an accused faces a capital offence carrying a sentence of death; in all other cases, whether substantial injustice would result falls to be assessed on a case-by-case basis, having regard to matters such as the complexity of the law or facts in issue, the capacity of the accused to conduct his own defence, and the public interest.
30. The offence here, defilement under Section 8(3) of the Sexual Offences Act, is not a capital offence, and the automatic rule in David Njoroge Macharia does not apply. As was held in Kirimi v Republic (Criminal Appeal 35 of 2019), and reinforced in Charles Maina Gitonga v Republic [2020] eKLR, an appellant seeking to rely on this ground must demonstrate that he raised the question of legal representation before the trial court, and that its absence in fact occasioned him substantial injustice. Nothing on this record shows that the Appellant raised the issue at plea, during trial, or at any point before this appeal. Nor, on my own review of the record, do I find that the trial was complex in law or fact, or that the Appellant was unable to conduct his own defence: to the contrary, he gave a detailed sworn account and cross-examined each prosecution witness with some precision, extracting, for instance, the very inconsistencies on which grounds (ii) is founded. This ground is not made out.
31. On the alleged contradictions, I bear in mind the guidance of the Court of Appeal in Erick Onyango Ondeng' v Republic [2014] eKLR (Criminal Appeal No. 5 of 2013), citing with approval Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001 [2003] UGCA: grave contradictions, unless satisfactorily explained, will usually, but not necessarily, lead to the rejection of a witness's evidence, whereas the court will ignore minor contradictions unless they point to deliberate untruthfulness or affect the main substance of the prosecution's case.
32. As to PW1's account of how long she had known the Appellant before the material events, I note first that the evidence given in the aborted trial, before the case began entirely afresh under Section 200 of the Criminal Procedure Code, was not evidence before the convicting magistrate, and strictly falls to be treated, at most, as a prior statement usable to test consistency rather than as substantive evidence in the case actually decided. Even treating it as such, the inconsistency — whether she had known the Appellant for about a year through his coming to buy a plot, or was meeting him for the first time on the night in question — goes to a peripheral matter, the length and nature of prior acquaintance, and not to the central and consistently maintained account across both hearings: that between 8th and 10th September 2021 the Appellant took her from her home, kept her at his shop and thereafter at his brother's house, and had sexual intercourse with her on more than one occasion. That central account did not waver. I find this contradiction falls within the category of matters the Court of Appeal directed should be ignored, not affecting the main substance of the case.
33. As to PW5's reference to the roof as against the rafters, this is, on any fair reading, a difference of description rather than of substance: it was undisputed that the house had no ceiling, and that the Appellant concealed himself in the roof structure on sighting the police, a fact independently unshaken on cross-examination. Concealment on the arrival of the police is, moreover, conduct from which an inference adverse to the Appellant may properly be drawn, being conduct inconsistent with the innocence he now asserts. I do not find this a material contradiction, still less one demonstrating deliberate untruthfulness capable of undermining the prosecution's case as a whole.
34. On the circumstances surrounding the offence, the Appellant submits that the complainant packed her own clothes unprompted, left home of her own volition, did not raise an alarm, and misled her mother as to her reasons for going outside, and that this conduct is inconsistent with that of an unwilling child victim. Whatever the emotional or psychological texture of the complainant's own conduct, it affords no legal defence to a charge under Section 8 of the Sexual Offences Act. Section 8(1) criminalises the act of penetration of a child; it is, as a matter of statutory design, an offence in which the child's consent, cooperation, or apparent willingness is legally irrelevant, a child being incapable in law of consenting to sexual intercourse with an adult. The only statutory defence available under Section 8(5) is that the child deceived the accused into believing she was over eighteen and that this belief was reasonable — a defence the Appellant has never raised, his case throughout having been an outright denial that any sexual contact took place at all. This ground, however framed, discloses no basis on which the conviction can be disturbed.
35. On penetration, Section 2(1) of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into those of another, and it is settled, per Erick Onyango Ondeng' (supra), that the slightest penetration suffices and that rupture of the hymen is not a requirement. The complainant gave a detailed account, consistent in its essentials across both the aborted and the de novo trial, of the Appellant undressing her and himself and inserting his genital organ into hers, on more than one occasion, at two distinct locations. Under Section 124 of the Evidence Act and Kassim Ali v Republic, Criminal Appeal No. 84 of 2005, a court may convict on the complainant's evidence alone, in a sexual offence, provided it is satisfied, for reasons recorded, that she is truthful.
36. That evidence was, in this case, corroborated. The clinical findings — an absent hymen and whitish discharge, with a clinical conclusion of defilement, an absent hymen, together with discharge, is a finding squarely consistent with penetrative intercourse having occurred, and was not seriously disputed. The absence of spermatozoa is not fatal; as the Court of Appeal held in Mark Oiruri Mose v Republic [2013] eKLR, an attacker does not always complete the sexual act, and the offence does not require proof that ejaculation occurred, this being the very reason the law does not insist on evidence of spermatozoa. Nor is it material that PW4 conceded he had not personally examined the Appellant: Section 36 of the Sexual Offences Act makes the taking of samples from an accused a matter of judicial discretion, not obligation, and it was held in Erick Onyango Ondeng' and in David Kipngeno Bett v Republic [2017] eKLR that there is no requirement in law that an accused be medically examined before a conviction can be sustained.
37. Most significantly, the complainant's account of being taken to, and kept at, the Appellant's brother's house was independently corroborated by PW2, PW3, PW5, and PW6, each of whom testified, with no material inconsistency between them, that the complainant was found locked in a guest bedroom together with the Appellant at that house, the Appellant having attempted to conceal himself on the arrival of the police. This is powerful circumstantial corroboration of the complainant's account of the surrounding events, even setting to one side the clinical findings, and I am satisfied, on my own independent evaluation of the whole record, that penetration was proved beyond reasonable doubt.
38. On identity, this is not seriously in issue. The complainant identified the Appellant, who does not deny his presence with her, but instead offers an entirely different account of his relationship — with her mother, rather than with her — and denies any sexual contact with the complainant at all. That account is considered next; but as to the fact that it was the Appellant, and no other person, who was found with the complainant at his brother's house, I find no basis to disturb the trial magistrate's finding.
39. I have considered the Appellant's own account: that his dealings were with PW2, not the complainant, arising from motorcycle-taxi and cementing work, a dispute over money for potatoes, and a threat made against him by an unnamed man. That account does not explain, still less displace, the consistent and corroborated evidence that the complainant was found locked in a guest room with the Appellant himself, at his own brother's house, following her three-day disappearance from home. The trial magistrate was entitled to reject the Appellant's account as not reasonably possibly true in the face of that evidence, and I reach the same conclusion on my own independent re-evaluation.
40. On the failure to call certain witnesses — among them Denis, the Appellant's brother, at whose house the complainant was found; Abigael Nasambu Kokonya, the neighbour who informed PW3 of the complainant's location; and Bernard Wekesa Kokonya, the village elder who informed PW2 — I am guided again by Erick Onyango Ondeng', which, applying Bukenya & Others v Uganda, holds that while the prosecution has a duty to call witnesses necessary to establish the truth, this must be read together with Section 143 of the Evidence Act, that no particular number of witnesses is required to prove any fact, and applies with full force only where the evidence actually called is barely adequate. The evidence here — the complainant's own detailed and twice-given account, the clinical findings, and the consistent evidence of four further witnesses as to the circumstances of the rescue and arrest — is not barely adequate; it is substantial and mutually corroborative. I would add that Denis, in particular, was equally available to the defence, being the Appellant's own brother and a witness to the very events the Appellant now says were fabricated; the Appellant elected not to call Denis, and cannot now be heard to complain of the prosecution's failure to call a witness he himself did not summon in support of his own account. This ground fails.
41. Having found that age, penetration, and identity were each proved beyond reasonable doubt, and having found no merit in any of the Appellant's other grounds, I am satisfied that the conviction on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act was safe and ought to be upheld.
42. I turn, finally, to sentence. Section 8(3) of the Sexual Offences Act provides that a person who commits defilement with a child between the ages of twelve and fifteen years is liable, upon conviction, to imprisonment for a term of not less than twenty years. The complainant here was found to be approximately 12 years old, placing the offence squarely within Section 8(3), and the trial magistrate herself convicted the Appellant under that provision. The sentence of 15 years' imprisonment imposed is, in these circumstances, below the mandatory statutory minimum, and is accordingly unlawful; it was not a sentence open to the trial court to impose as a matter of discretion, since Section 8(3) leaves no discretion to sentence below the twenty-year floor Parliament has set.
43. The Respondent, though it filed no formal cross-appeal against sentence, raised this defect in its submissions and prayed for correction to the lawful minimum. This Court's power to correct a sentence that offends a mandatory statutory minimum does not depend on the existence of a cross-appeal: it flows from the appellate and revisionary jurisdiction conferred on this Court by Sections 354 and 362 to 367 of the Criminal Procedure Code, which extend to correcting an illegality apparent on the face of the record. I however note that a cautionary statement was not presented to the Appellant of the possibility of an enhancement of his sentence and I therefore decline to uphold the same on that ground.
E. DISPOSITION
45. For the foregoing reasons, I make the following orders:
(a). The appeal against conviction is dismissed, and the conviction of the Appellant on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act is upheld;
(b). The appeal against sentence is dismissed as a cautionary statement was not issued to the Appellant;
Delivered at Kericho on the 23rd day of July 2026
In the presence of
Appellant
C/A Irene Chelang’at.
1. The Appellant, Jeremiah Wafula Juma, was convicted after a full trial of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on diverse dates between 8th September 2021 and 10th September 2021 at Milani Village, Bokoli Sub-Location, Webuye West Sub-County within Bungoma County, he intentionally and unlawfully caused his penis to penetrate the vagina of F.N.M., a child aged 12 years. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that, on the same dates and at the same place, he rubbed his penis against the vagina of F.N.M.
2. On 7th August 2023, the trial court found the Appellant guilty of the main charge and sentenced him to 15 years' imprisonment. Dissatisfied with both the conviction and the sentence, the Appellant filed an Amended Petition of Appeal dated 24th November 2025, raising the following grounds: (i) that the trial court failed to accord him his right to legal representation; (ii) that the trial court failed to consider that the prosecution's case was marred with contradictions and conflicting evidence; (iii) that the trial court based the conviction without considering the circumstances surrounding the offence; (iv) that the trial court convicted him without proper proof of penetration; and (v) that the trial court failed to have the prosecution avail key witnesses to testify.
3. The Appellant urges this Court to quash the conviction, set aside the sentence, and set him free.
B. THE DUTY OF THIS COURT
4. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
5. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
6. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR, where the Court of Appeal held that the duty of the first appellate court is to analyse and re-evaluate the evidence and come to its own conclusions, without overlooking the conclusions of the trial court; where the first appellate court arrives at the same conclusions as the lower court, having independently considered the evidence, there is nothing objectionable in doing so. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
C. SUMMARY OF THE PROSECUTION EVIDENCE
7. The prosecution called six witnesses. I note, at the outset, that the matter was partly heard before one magistrate, who was thereafter transferred; upon the rights conferred by Section 200 of the Criminal Procedure Code being explained to him, the Appellant elected to have the case start entirely afresh, and it proceeded de novo before the trial magistrate who ultimately convicted him. The evidence given before the transfer, though part of the record and referred to in submissions, was accordingly not evidence upon which the convicting magistrate based her judgment; I address its relevance, where raised, at paragraphs 55 to 56 below.
8. PW1, the complainant, was subjected to voire dire in the de novo trial and found to be intelligent and capable of appreciating the nature of an oath. She testified that she was 13 years old at the time of testifying, in Grade 7 at Chekulo Primary School, and stayed with her grandmother. In 2021 she attended St. Walumuli Primary School in Grade 6. On 8th September 2021, at around 8:00pm, she was at home with her mother when the Appellant came to her home, introduced himself as Jeremiah, and told her he wished for her to go and live with him. She packed her clothes and gave them to him, and he left with them.
9. After dinner, she told her mother she wished to go outside to relieve herself; her mother asked her brother to accompany her, but she said she would go alone. Outside, she saw the Appellant, who had moved to their neighbourhood about two weeks earlier and ran a shop by the roadside near their home, and whom she had seen several times on her way to and from school. He took her to his shop, where they spent the night; he undressed her and himself, lay on top of her, and inserted his genital organ into hers. She did not scream for help.
10. In the morning, he told her to walk quickly so she would not be seen by her mother, and she waited at his house until around 7:00pm, when he took her to the home of his brother, Denis, where he again had sexual intercourse with her. She spent three nights at Denis's house; Denis's wife gave her a basin to relieve herself in, as she had been cautioned not to leave the house lest she be seen. On the Friday, before they could sleep, her mother came looking for her; Denis denied having seen her, and her mother left. The following morning, her mother returned and asked Denis to let her go to school. That night, after supper, police officers arrived and took them to the police station, and she was then taken to Bokoli Hospital for treatment. She was also examined by a doctor at Webuye District Hospital, who assessed her age by examining her teeth and found her to be 12 years old. She confirmed she had known the Appellant for about a year before the incident through his having come to buy a plot, that he was not her boyfriend, and that during the day he would be with his wife and would come to sleep with her at the shop at night. She identified the Appellant in Court.
11. On cross-examination, she stated it was her first time to meet the Appellant, that he had promised to marry her, that it was the first time he had come to her home, and that he took her to his brother's house because his wife was at home. She did not know whether there was bad blood between her uncle and the Appellant's family.
12. PW2, Mercy Mulongo Wakungo, the complainant's mother, testified that on 8th September 2021 at around 8:00pm she was at home having dinner when the Appellant came and told her that her husband had sent him to bring her a token, which he had not found, and that she should tell her husband, if he called, that it would be brought the next day. The complainant asked to go outside to relieve herself; PW2 asked her son Innocent to accompany her, but the complainant declined. When the complainant did not return, PW2 searched for her without success, and the following morning informed her husband and the village elder, who offered to report the matter to Bokoli Police Station.
13. The Appellant came asking for the complainant and was told she was missing; he said people were claiming he had lured her away, which he denied, and left. At 8:00pm that day, the Appellant, accompanied by his brother Denis, came to PW2's house; Denis said they had information the Appellant had left with the complainant, which the Appellant denied. The village elder, Bernard Wekesa Kokonya, later called PW2 to say the complainant had been spotted at Denis's house. PW2 alerted the police, and upon arrival at the Appellant's house found his wife holding a baby; the police entered Denis's house, found people watching television, and found the Appellant and the complainant in the guest bedroom. Both were arrested, and the complainant was confirmed the following morning, on medical examination, to have been defiled.
14. On cross-examination, PW2 confirmed it was the Appellant's first visit to her house, that her husband did not know him, that she never invited him to her house or church, and denied ever threatening him or that she had access to his phone number.
15. PW3, Richard Wekesa Kokonya, the area assistant chief, testified that on 9th September 2021 at around 7:30pm he received a call from PW2 informing him the complainant was at the Appellant's house. He went to the Appellant's neighbourhood and met one Abigael Nasambu Kokonya, who confirmed the complainant was in the Appellant's house. He informed PW2, who alerted the police, and he directed the officers to the house; on knocking, the Appellant and the complainant were found inside, with Denis in the sitting room with his wife. He confirmed the Appellant had bought land from his own family, and that there was no land dispute between them.
16. PW4, Simeon Kiveu, a clinical officer with over twelve years' experience, testified that he held treatment notes for a 12-year-old female, authored by a colleague with whom he had worked for a year before that colleague's transfer, and with whose signature he was familiar. On examination on 10th September 2021, it was noted that the hymen was absent, there was whitish discharge, no lacerations, HIV and VDRL were non-reactive, urinalysis showed no abnormality, the pregnancy test was negative, and no spermatozoa were seen; PEP and antibiotics were administered. The P3 Form was completed and the conclusion recorded was defilement. On cross-examination, he confirmed he had not personally examined the Appellant and did not know him.
17. PW5, PC Peter Mugo, testified that he took over the investigation from Constable Robi, who was then indisposed. On 10th September 2021, PW2 called him to report the complainant's location, and he attended the scene. On sighting the police, the Appellant hid himself in the rafters of the house, which had no ceiling; he was persuaded to surrender and was arrested together with the complainant, who were found in a guest room within the house, separate from the sitting room where the Appellant's family and an elderly person were present. He did not take photographs of the Appellant.
18. PW6, PC Robi Mary, testified that she was the investigating officer who received PW2's initial report of the complainant's disappearance and, upon later being informed of the complainant's location, dispatched colleagues who rescued the complainant and arrested the Appellant at Denis's house, where they had locked themselves in the bedroom. She escorted the complainant to hospital, confirmed the medical findings of defilement, recorded witness statements, and denied ever soliciting a bribe from the Appellant.
19. The Appellant, put on his defence, elected to give sworn evidence and called two witnesses. He testified that PW2 had engaged him to ride her to Chwele on his motorcycle on 4th September 2021 and, upon their return, invited him for a meal and to spend the night, sending her children to their room and locking the house; he declined to sleep in her bed, and she declined to give him a blanket for the sofa. She emerged the following morning while undressed and let him out; her children were surprised to find him there. He left, and over subsequent days there were exchanges over money for potatoes he had undertaken to buy her, culminating in an argument, and an encounter with an unnamed man at PW2's home who threatened him over an allegation that he intended to marry PW2's daughter. He denied that allegation, stating he was already married. He testified that PW2 later came to his brother's house accusing him of marrying her underage daughter, that he and his brother went to ask the complainant about this but she declined to speak to them, and that he was thereafter arrested when PW2 arrived with police officers. He maintained that PW2 held a grudge against him over money he says she owed him for work done on her house, and that she had wanted him as a lover, which he had declined.
20. On cross-examination, he confirmed he had known PW2 for about three months before the incident, had been engaged by her to cement her house and to ferry her by motorcycle, and maintained his account of the events of 4th to 9th September 2021.
Judgment of the Trial Magistrate
21. The learned trial magistrate found that the age of the complainant had been proved through the age assessment report, establishing her age at approximately 12 years. On penetration, she relied on the complainant's account of the different occasions of intercourse, at the Appellant's shop and at his brother's house. On identity, she found the complainant and the Appellant were known to each other, that there had been some prior contact between them before the complainant went missing, and that the prosecution evidence placed the Appellant at the scene and linked him to the offence. She found that, regardless of the Appellant's account, it had been proved that he took the complainant to Denis's house and defiled her on several occasions, and that all the evidence, contrary to the Appellant's account, pointed to the complainant having been found at Denis's house rather than at PW2's house. She convicted the Appellant on the main charge, sentenced him to 15 years' imprisonment, and declined to make any finding on the alternative charge.
Appellant's Submissions
22. The Appellant submitted that his rights under Articles 25(c) and 50(2)(g) and (h) of the Constitution were violated, in that the trial court failed, at the time of taking his plea, to inform him of his right to legal representation, including at State expense where substantial injustice would otherwise result, relying on Lima & Another v Republic, Criminal Appeal No. 110 of 1991.
23. He submitted that the prosecution's evidence was riddled with contradictions: that PW1 testified, in the first, aborted trial, to having known the Appellant for about a year, but in the de novo trial testified it was her first time to meet him; and that PW5 stated he found the Appellant hiding in the roof, but on cross-examination said the rafters, notwithstanding the house had no ceiling. He relied on Richard Aspella v Republic, Criminal Appeal No. 45 of 1981, and Ngungu Kimanyi v Republic [1979] KLR 283, submitting that such contradictions ought not to be ignored and that the prosecution had failed to prove its case beyond reasonable doubt.
24. He further submitted that the complainant packed her clothes and left with the Appellant without being made to do so, calling into question her credibility and the true nature of any relationship between them, and noting that she lied to her mother about her reason for going outside — conduct he characterised as more consistent with an adult than a child. He relied on Absalom Okila Ombaka v Republic [2020] eKLR.
25. On penetration, he submitted that PW4's evidence did not establish penetration, that the oral evidence of PW1 could not stand in the face of weak medical evidence, and that none of the other witnesses corroborated the complainant, in particular PW2, and that the trial court failed to record reasons for believing the complainant truthful. He relied on Arthur Mshila Manga v Republic.
26. Finally, he submitted that PW1, PW2, and PW3 each named potential witnesses who were never called, whose evidence would have been material, and that the prosecution's case must fail for that omission, relying on CMN v Republic [2012] eKLR, and prayed for his acquittal.
Respondent's Submissions
27. The Respondent submitted that all the elements of defilement — age, penetration, and identity — had been proved. Its sole complaint was that the sentence of 15 years was unlawful and devoid of statutory backing, the age assessment having placed the complainant at 12 years at the time of the offence, and prayed that the sentence be enhanced to the lawful minimum of 20 years' imprisonment.
D. ANALYSIS AND DETERMINATION
28. Having summarised the record and the parties' submissions, I turn to my own independent re-evaluation. The following issues arise: (a) whether the Appellant's right to legal representation was violated; (b) whether the contradictions identified by the Appellant are material; (c) whether the circumstances surrounding the offence, as characterised by the Appellant, afford any defence; (d) whether penetration was proved; (e) whether the identity of the perpetrator was proved; (f) whether the failure to call certain witnesses is fatal to the prosecution's case; and (g) whether the sentence imposed was lawful.
29. On legal representation, Article 50(2)(h) of the Constitution entitles an accused person to have an advocate assigned by the State, at State expense, where substantial injustice would otherwise result, and to be informed of this right promptly. The leading authority, David Njoroge Macharia v Republic [2011] eKLR, held that substantial injustice arises as of course where an accused faces a capital offence carrying a sentence of death; in all other cases, whether substantial injustice would result falls to be assessed on a case-by-case basis, having regard to matters such as the complexity of the law or facts in issue, the capacity of the accused to conduct his own defence, and the public interest.
30. The offence here, defilement under Section 8(3) of the Sexual Offences Act, is not a capital offence, and the automatic rule in David Njoroge Macharia does not apply. As was held in Kirimi v Republic (Criminal Appeal 35 of 2019), and reinforced in Charles Maina Gitonga v Republic [2020] eKLR, an appellant seeking to rely on this ground must demonstrate that he raised the question of legal representation before the trial court, and that its absence in fact occasioned him substantial injustice. Nothing on this record shows that the Appellant raised the issue at plea, during trial, or at any point before this appeal. Nor, on my own review of the record, do I find that the trial was complex in law or fact, or that the Appellant was unable to conduct his own defence: to the contrary, he gave a detailed sworn account and cross-examined each prosecution witness with some precision, extracting, for instance, the very inconsistencies on which grounds (ii) is founded. This ground is not made out.
31. On the alleged contradictions, I bear in mind the guidance of the Court of Appeal in Erick Onyango Ondeng' v Republic [2014] eKLR (Criminal Appeal No. 5 of 2013), citing with approval Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001 [2003] UGCA: grave contradictions, unless satisfactorily explained, will usually, but not necessarily, lead to the rejection of a witness's evidence, whereas the court will ignore minor contradictions unless they point to deliberate untruthfulness or affect the main substance of the prosecution's case.
32. As to PW1's account of how long she had known the Appellant before the material events, I note first that the evidence given in the aborted trial, before the case began entirely afresh under Section 200 of the Criminal Procedure Code, was not evidence before the convicting magistrate, and strictly falls to be treated, at most, as a prior statement usable to test consistency rather than as substantive evidence in the case actually decided. Even treating it as such, the inconsistency — whether she had known the Appellant for about a year through his coming to buy a plot, or was meeting him for the first time on the night in question — goes to a peripheral matter, the length and nature of prior acquaintance, and not to the central and consistently maintained account across both hearings: that between 8th and 10th September 2021 the Appellant took her from her home, kept her at his shop and thereafter at his brother's house, and had sexual intercourse with her on more than one occasion. That central account did not waver. I find this contradiction falls within the category of matters the Court of Appeal directed should be ignored, not affecting the main substance of the case.
33. As to PW5's reference to the roof as against the rafters, this is, on any fair reading, a difference of description rather than of substance: it was undisputed that the house had no ceiling, and that the Appellant concealed himself in the roof structure on sighting the police, a fact independently unshaken on cross-examination. Concealment on the arrival of the police is, moreover, conduct from which an inference adverse to the Appellant may properly be drawn, being conduct inconsistent with the innocence he now asserts. I do not find this a material contradiction, still less one demonstrating deliberate untruthfulness capable of undermining the prosecution's case as a whole.
34. On the circumstances surrounding the offence, the Appellant submits that the complainant packed her own clothes unprompted, left home of her own volition, did not raise an alarm, and misled her mother as to her reasons for going outside, and that this conduct is inconsistent with that of an unwilling child victim. Whatever the emotional or psychological texture of the complainant's own conduct, it affords no legal defence to a charge under Section 8 of the Sexual Offences Act. Section 8(1) criminalises the act of penetration of a child; it is, as a matter of statutory design, an offence in which the child's consent, cooperation, or apparent willingness is legally irrelevant, a child being incapable in law of consenting to sexual intercourse with an adult. The only statutory defence available under Section 8(5) is that the child deceived the accused into believing she was over eighteen and that this belief was reasonable — a defence the Appellant has never raised, his case throughout having been an outright denial that any sexual contact took place at all. This ground, however framed, discloses no basis on which the conviction can be disturbed.
35. On penetration, Section 2(1) of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of one person into those of another, and it is settled, per Erick Onyango Ondeng' (supra), that the slightest penetration suffices and that rupture of the hymen is not a requirement. The complainant gave a detailed account, consistent in its essentials across both the aborted and the de novo trial, of the Appellant undressing her and himself and inserting his genital organ into hers, on more than one occasion, at two distinct locations. Under Section 124 of the Evidence Act and Kassim Ali v Republic, Criminal Appeal No. 84 of 2005, a court may convict on the complainant's evidence alone, in a sexual offence, provided it is satisfied, for reasons recorded, that she is truthful.
36. That evidence was, in this case, corroborated. The clinical findings — an absent hymen and whitish discharge, with a clinical conclusion of defilement, an absent hymen, together with discharge, is a finding squarely consistent with penetrative intercourse having occurred, and was not seriously disputed. The absence of spermatozoa is not fatal; as the Court of Appeal held in Mark Oiruri Mose v Republic [2013] eKLR, an attacker does not always complete the sexual act, and the offence does not require proof that ejaculation occurred, this being the very reason the law does not insist on evidence of spermatozoa. Nor is it material that PW4 conceded he had not personally examined the Appellant: Section 36 of the Sexual Offences Act makes the taking of samples from an accused a matter of judicial discretion, not obligation, and it was held in Erick Onyango Ondeng' and in David Kipngeno Bett v Republic [2017] eKLR that there is no requirement in law that an accused be medically examined before a conviction can be sustained.
37. Most significantly, the complainant's account of being taken to, and kept at, the Appellant's brother's house was independently corroborated by PW2, PW3, PW5, and PW6, each of whom testified, with no material inconsistency between them, that the complainant was found locked in a guest bedroom together with the Appellant at that house, the Appellant having attempted to conceal himself on the arrival of the police. This is powerful circumstantial corroboration of the complainant's account of the surrounding events, even setting to one side the clinical findings, and I am satisfied, on my own independent evaluation of the whole record, that penetration was proved beyond reasonable doubt.
38. On identity, this is not seriously in issue. The complainant identified the Appellant, who does not deny his presence with her, but instead offers an entirely different account of his relationship — with her mother, rather than with her — and denies any sexual contact with the complainant at all. That account is considered next; but as to the fact that it was the Appellant, and no other person, who was found with the complainant at his brother's house, I find no basis to disturb the trial magistrate's finding.
39. I have considered the Appellant's own account: that his dealings were with PW2, not the complainant, arising from motorcycle-taxi and cementing work, a dispute over money for potatoes, and a threat made against him by an unnamed man. That account does not explain, still less displace, the consistent and corroborated evidence that the complainant was found locked in a guest room with the Appellant himself, at his own brother's house, following her three-day disappearance from home. The trial magistrate was entitled to reject the Appellant's account as not reasonably possibly true in the face of that evidence, and I reach the same conclusion on my own independent re-evaluation.
40. On the failure to call certain witnesses — among them Denis, the Appellant's brother, at whose house the complainant was found; Abigael Nasambu Kokonya, the neighbour who informed PW3 of the complainant's location; and Bernard Wekesa Kokonya, the village elder who informed PW2 — I am guided again by Erick Onyango Ondeng', which, applying Bukenya & Others v Uganda, holds that while the prosecution has a duty to call witnesses necessary to establish the truth, this must be read together with Section 143 of the Evidence Act, that no particular number of witnesses is required to prove any fact, and applies with full force only where the evidence actually called is barely adequate. The evidence here — the complainant's own detailed and twice-given account, the clinical findings, and the consistent evidence of four further witnesses as to the circumstances of the rescue and arrest — is not barely adequate; it is substantial and mutually corroborative. I would add that Denis, in particular, was equally available to the defence, being the Appellant's own brother and a witness to the very events the Appellant now says were fabricated; the Appellant elected not to call Denis, and cannot now be heard to complain of the prosecution's failure to call a witness he himself did not summon in support of his own account. This ground fails.
41. Having found that age, penetration, and identity were each proved beyond reasonable doubt, and having found no merit in any of the Appellant's other grounds, I am satisfied that the conviction on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act was safe and ought to be upheld.
42. I turn, finally, to sentence. Section 8(3) of the Sexual Offences Act provides that a person who commits defilement with a child between the ages of twelve and fifteen years is liable, upon conviction, to imprisonment for a term of not less than twenty years. The complainant here was found to be approximately 12 years old, placing the offence squarely within Section 8(3), and the trial magistrate herself convicted the Appellant under that provision. The sentence of 15 years' imprisonment imposed is, in these circumstances, below the mandatory statutory minimum, and is accordingly unlawful; it was not a sentence open to the trial court to impose as a matter of discretion, since Section 8(3) leaves no discretion to sentence below the twenty-year floor Parliament has set.
43. The Respondent, though it filed no formal cross-appeal against sentence, raised this defect in its submissions and prayed for correction to the lawful minimum. This Court's power to correct a sentence that offends a mandatory statutory minimum does not depend on the existence of a cross-appeal: it flows from the appellate and revisionary jurisdiction conferred on this Court by Sections 354 and 362 to 367 of the Criminal Procedure Code, which extend to correcting an illegality apparent on the face of the record. I however note that a cautionary statement was not presented to the Appellant of the possibility of an enhancement of his sentence and I therefore decline to uphold the same on that ground.
E. DISPOSITION
45. For the foregoing reasons, I make the following orders:
(a). The appeal against conviction is dismissed, and the conviction of the Appellant on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act is upheld;
(b). The appeal against sentence is dismissed as a cautionary statement was not issued to the Appellant;
Delivered at Kericho on the 23rd day of July 2026
In the presence of
Appellant
C/A Irene Chelang’at.