(Appeal against the conviction and sentence of Hon Mathenge (SRM) in Bondo SPMCC S.O No. E054 of 2022 dated 8/1/2024)
1. The Appellant herein Joanes Ngesa Ojango was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 . The particulars were that on 12 th October 2022 at around 1700hours at Malunga Sub location in Gem Wagai Sub County within Siaya County intentionally and unlawfully caused his penis to penetrate the vagina of Z. M. O a child aged seven (7) years.
2. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars were that on 12 th October 2022 at 1700hours at Malunga East Sub location in Gem Wagai Sub County within Siaya County intentionally and unlawfully touched the vagina of Z.M.O a child aged seven (7) years with his penis.
3. The Appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called seven (7) witnesses. At the close of the prosecution’s case, the court found that the Appellant had a case to answer and thus placed him on his defense under section 211 of the Criminal Procedure Code. The Appellant tendered an unsworn statement and called one witness. By judgment delivered on 8 th January 2024, the Appellant was convicted and sentenced to serve thirty (30) years’ imprisonment.
4. Being dissatisfied with the decision of the trial court, the Appellant instituted this appeal against the conviction vide his Petition of Appeal dated 15 th September 2025 wherein he raised the following grounds of appeal namely:
i). That the learned trial magistrate erred in law and fact by convicting the Appellant notwithstanding that the ingredient forming the offence was not proved to the required standard.
ii). That the learned trial magistrate erred in law and fact in convicting the Appellant without considering his defence that could exonerate him from the offence in question.
iii). That the learned trial magistrate erred in law and fact in convicting and sentencing the Appellant to 30 years imprisonment without considering that the prosecution evidence was weak in nature and lacked limbs to sustain a proof of beyond reasonable doubt.
iv). That the learned trial magistrate erred in law and fact in not making a finding that the prosecution case had full of contradictions and inconsistencies among its witnesses.
v) That the learned trial magistrate erred in law and fact in not making a finding that the trial court breached the constitutional rights of the Appellant hence arrived at an unfair trial.
The Appellant therefore prayed that the appeal be allowed and the conviction be quashed and sentence set aside.
5. This being the first appellate court, its duty is to re-evaluate the evidence presented to the trial Court and subject to an independent analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account of the fact that it neither heard nor saw the witnesses and therefore to give due allowance for that. 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.”
6. The evidence tendered before the trial court was as follows;
7 . Z. M. O (PW1) was the complainant and after a voire dire examination, she was allowed to tender a sworn testimony. She testified that she is aged six years and a pupil at Ginga Valley Primary School and was in Grade one. That she knew the Appellant as Baba John Mark. That she recalled on the material date that the Appellant did bad manners to her after taking her to a bush and removed her underpants and also removed his clothes as well. That he put his ‘’dudu’’(organ) into her ‘’dudu’’ (organ). That she tried to scream but he covered her mouth with his hand. That when he was through, he dressed up and ran away. That she put on her clothes and then saw blood in her ‘’dudu’’ (organ). That the Appellant who was their neighbour had warned her not to tell anybody about the ordeal or else he would kill her. That she later informed her parents while in the bedroom as to what had happened.
During cross-examination, she stated inter alia; that she had been sent by her mother to go to the river and fetch water for washing the dishes; that on that date, she was the only one at the river; that the Appellant herein was at the time grazing his cows near the river; that she was later joined by other girls at the river who had also come to fetch water; that she was sitting on the tap area which injured her and that she started bleeding and that she informed her mother about it; that it was her father who took her to hospital that night; that nobody had coached her to state what she had told the court.
On re-examination, she stated that the Appellant informed her to return to the river after taking water home and that she complied and was not accompanied by any of the other girls. That it is not the tap that injured her but that it was a stone which injured her on her ‘’dudu.’’ That even though she was injured, the Appellant also had raped her. That Baba John Mark raped her.
8. George Otieno Odipo (PW2), testified that he is the father to the complainant (PW1). That on the material date the complainant had gone to fetch water from the river and brought water but she again went back to the river and this time she came back while crying. That the girl’s private part area had some blood. That he interrogated her and learnt the Appellant had directed her to go back to the river where he defiled her and ordered her not to tell anybody. That she took her to Nyabondo Health Centre where she was referred to Yala Hospital where she was treated. That the villagers were irate and wanted to harm the Appellant and that the police were alerted to come and pick him up.
On cross-examination, he stated inter alia; that the Appellant is a relative as their grandfathers were brothers; that he works as a mechanic in Nairobi; that he and his wife checked the complainant and found that the blood was coming from the complainant’s private parts; that the incident took place in a bush; that it was his in-law who took the child to hospital; that he accompanied the police officers to the scene but did not recover anything.
9. Prisca Atieno (PW3 ) testified that she is the mother of the complainant. That her daughter was aged six years old having been born on 17/3/2015 as per the birth certificate which she identified in court as Mfi-1. That on 12/10/2022 she was unwell as she had underwent a surgery. That when the complainant arrived from school she went to the river and that she later came home while walking rather funny and on confronting her, she informed her that she had fallen on the water tap but she was not wet and that upon being forced to lift up her dress, she then saw blood on her underpants. That she confronted her and that the girl began to cry and that she took her to the bedroom and examined her properly and saw that there was a tear of her vagina which went all the way to the anus and that her thighs revealed huge clots of blood. That she saw some whitish mucus like substance. That she prodded her further and who later revealed to her that the Appellant who was known to them as Baba John Mark had pulled her into a nearby bush and defiled her after removing her underpants. That the villagers arrived home and started screaming and baying for the Appellant’s blood and that the complainant pointed the Appellant as the person who had raped her. That her daughter was taken to hospital where the defilement was established. That the Appellant is her brother in law.
On cross-examination, she stated inter alia; that the complainant claimed that the water tap had injured her; that the complainant later claimed that it was the Appellant who had raped her; that the police took away the complainant’s underpants and dress before she went to hospital; that the complainant had a tear from the vagina to her anus; that the Appellant is known in the area as a pastor; that at around 5.00pm people usually are around the river to fetch water.
10. Margaret Mercy (PW4) was the assistant chief of Malunga sub location. That on the material date, the village elder alerted her of an incident of defilement involving the Appellant and the complainant. That the members of public had already apprehended the Appellant and were assaulting him when she arrived at the area. That she checked the complainant and noted some bloodstains on her thighs and vagina. That the Appellant was taken to the police station while the complainant was escorted to hospital for treatment.
11. Shadrack Kennedy (PW5) was a clinical officer attached at Yala Sub county Hospital. That he examined the complainant and noted a swollen labia majora and minora as well as lacerations on the vaginal wall. That the complainant also had a vaginal discharge in addition to active bleeding. That he conducted laboratory tests as well as filled the P3 form , PRC form, outpatient card and lab request form which he produced as exhibits 1, 2, 3 and 4 respectively. That he noted a freshly broken hymen which implied that the incident had taken place within three hours and that penetration had taken place.
On cross-examination, he stated inter alia; that the complainant was brought to the hospital while dressed in a dress which was soiled; that there are other circumstances which can cause a hymen to be broken other than sexual intercourse such as penetration by use of a finger or a banana; that penetration can cause lacerations on the labia; that it is possible for a metallic object to cause bleeding from the vagina; that the perpetrator was also examined but the medical report is not available; that the presence of spermatozoa indicated that there was ejaculation by the perpetrator.
12. Godwin Khamala Waliama (PW6) testified that he received exhibits from No. 117571 Pc Serah Sankei (PW7) which comprised of a high vaginal swab of the complainant (Z.M.O) marked A, a penile swab of the Appellant marked B, a purple innerwear in a brown envelope marked C, a cream torn bloodstained underpants in a brown envelope marked D. That he also obtained two reference persons presented by the police officers namely the complainant and Appellant. That he obtained swabs from the complainant and marked it as E while the swabs from the Appellant was marked as F. That he was to look at the exhibits and establish whether there were stains of human origin and then generate a profile and do a comparison against the sample so as to assist in determining the origin of any stains or fluid on the exhibits presented. That upon examination, he established that the stains on item A tested positive for presence of seminal fluid. That seminal fluid comes from prostate glands of a male gender. That he found that the item B was heavily stained with blood of human origin. That he listed the items with the DNA profiles generated on them and origin of those DNA profiles. That his conclusion was that the male DNA profile generated from item A from semen swab item B and innerwear item C all matched with the male DNA profile generated from the swabs of Joanes Ngesa Ojango (Appellant). That the stains on high vaginal swab originated from Joanes Ngesa Ojango. That the satins from item B and C all originated from Joanes Ngesa Ojango. The high vaginal swab was taken from the vaginal lining of Z.M.O and hence Joanes Ngesa Ojango donated to the stains in her vaginal swab. That he also concluded that the DNA profile generated from the stains from items A the high vaginal swab and underpants item D both match the DNA profile of Z.M.O. That the DNA is transferred through contact. He produced the Government analyst report as exhibit 5.
On cross-examination, he stated inter alia; that he received the exhibits on 17/10/2022 and conducted the analysis on 2/2/2023 after four months upon receipt; that it is not true that buccal swabs degenerate quickly; that buccal swabs contain bacteria and interferes with any item in it; that they took the buccal swabs on the 17/10/2022 at the laboratory and not at the police station; that Joanes Ngesa Ojango (Appellant) was in the company of a police officer Pc Serah; that the samples were collected by his collegue madam Salvine Ruto; that oral consent at the laboratory is sufficient and that there was no written consent from Joanes Ngesa Ojango; that the samples were placed in the storage facilities; that the human samples were stored in the refrigerator; that item A was stored in a safe air conditioned room and likewise item B and the rest; that item D was a female underpants; that it is not true that the exhibits fatally degenerated; that seminal fluid is not synonymous with spermatozoa but both come from the male species; that if one wears a condom and without any breakage then the seminal fluid would remain in the condom; that the high vaginal swab had seminal fluid in it.
13. No. 117571 Pc Serah Sankei (PW7) was the investigating officer. She stated that upon being informed of the incident, she went to the police station at Wagai and met the assistant chief of Malunga East sub location who had presented the suspect in the presence of the victim’s father and learnt that the victim had been rushed to hospital for treatment. That she was given the birth certificate of the minor which indicated her age as seven years at the time and that she produced the same as exhibit one. That the minor was treated and a p3 form as well as PRC form were filled. That she visited the home of the minor the following day on 13/10/2022 and found that she had difficulty walking and who also led them to the scene which was a bush near a certain stream. That on 14/10/2022 she teamed up with three male officers and escorted the Appellant to Yala hospital for check-up and later on 17/10/2022 she escorted the Appellant and the victim to Kisumu Government chemist where samples were taken. That she handed over the other samples collected at Yala sub county hospital to the Government chemist. That the underpants of both complainant and Appellant were also handed over to the analyst for DNA analysis. That the complainant identified the Appellant as Baba John Mark.
On cross-examination, she stated inter alia; that the victim was not then bleeding when she led them to the scene; that she saw the two water pipes at the stream and that there was no water control as the water just flew through the said pipes; that she obtained the Appellant’s underpants at the police station as he demanded for a DNA test; that her colleague Pc Ndege is the one who obtained the underpants from the Appellant; that the Appellant consented to the use of his underpants in the DNA analysis; that two male officers including herself escorted the Appellant to the hospital; that there was no written consent from the Appellant regarding the consent to give out samples for DNA analysis.
On re-examination, she stated that the Appellant did not object to the taking of samples from him.
14. Upon the close of the Respondent’s case, the trial court later ruled that the Appellant had a case to answer and was placed on his defence. He opted to tender an unsworn statement and called one witness.
15. Joanes Ngesa Ojango (DW1), testified that on the material date he was at home with his children when he heard noise and that he together with his children rushed to the source of the noise. That on arrival, the father of the complainant confronted him and started assaulting him while claiming that he had raped his daughter. That his innocent pleas fell on deaf ears as the irate villagers attacked him as they bayed for his blood. That the villagers claimed that ‘’wamekuwa wakinitafuta kwa muda.’’ That the village headman alerted the assistant chief who arranged for him to be rushed to Akala police station.
16. Alphonce Okongo Andagi (DW2 ) testified that the Appellant is a son to his brother and hence he is a nephew. That on the material date at 3.00 PM he had taken his cows to the river and found the Appellant also taking care of his cows and who later received a call from his brother Joshua and therefore left much earlier than him. That he later heard noise when he arrived at his home and went out to check and thus joined the Appellant as they rushed to the source of the noise which was emanating from the home of the complainant. That on arrival, the father of the complainant assaulted the Appellant while claiming that the Appellant had defiled his daughter. That since he was the village elder, he called the assistant chief and briefed her on the matter. That the assistant chief arrived and arranged to escort the Appellant to the police station. That he visited the police station the following day only for a female police officer to chase him away for trying to assist a ‘’Mkora’’(criminal). That the complainant had not been to the river as claimed.
On cross-examination, he stated inter alia; that he had demanded for witnesses who had seen the complainant at the river; that the lady with a donkey who was at the river has not been called as a witness. That he left the scene at 5.30 PM and that he could not tell whatever the Appellant was doing while he was not with him; that he had not seen the Appellant from 5.00 to 6.00 PM as he was not with him. That on arrival at the source of the noise, he saw the complainant who had bloodstains on her private parts.
17. When considering the evidence on record, the learned trial Magistrate observed that the defense brought by the Appellant did not in any way cast doubt on the prosecution’s case and convicted him under section 215 of the Criminal Procedure Code on the main count and sentenced him to serve thirty (30) years’ imprisonment.
18. The appeal was canvassed by way of written submissions. Both parties duly complied.
19. I have considered the record of the trial court and the submissions tendered. I find the issue for determination is whether the Respondent proved its case against the Appellant beyond reasonable doubt.
20. The burden of proof in all criminal trials is upon the prosecution to prove and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462 .
21. The offence of defilement has three essential ingredients which must be proved by the prosecution before a conviction can be achieved. The said elements include; age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to ensue.
“Section 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.
22. 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.”
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.
23. 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...”
24. In the present case, the prosecution discharged this burden through the birth certificate (Exhibit 1) produced by PW7, which established that the minor was born on 17/4/2015, making her age as seven years six months and five days at the time of the incident. This was further corroborated by the Clinical Officer (PW5), satisfying the legal threshold. Further, it came out clearly that the complainant and her father as well as the clinical officer plus the investigating officer talked of the age of six years instead of seven years. Indeed, the difference in the aspect of age between 6 and 7 is not that material in that the same did not cause any prejudice since the age fell within the age bracket of below 11 years for purposes of section 8(2) of the Sexual Offences Act. Iam therefore satisfied that the aspect of age was proved by the Respondent beyond any reasonable doubt.
25. 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 the genital organs of another person. 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.
26. Section 124 of the Evidence Act, Cap 80 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.”
27. In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995 , the Supreme Court of Uganda had the following to say in respect of proving penetration: -
“ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
28. In the present case, PW1 gave a graphic account of the Appellant inserting his genitalia into hers, which was corroborated by PW5’s medical findings such as swollen labia majora and minora, inflammation, vaginal discharge and that he confirmed that there was defilement.
29. The Appellant’s defense of a grudge (‘’wamekuwa wakinitafuta kwa muda’’ ) is diminished by the medical evidence; as held in Seme v Republic [2008] eKLR, that a mere denial cannot overturn positive medical findings corroborating the commission of the offense.
30. Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR , the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration.
31. In this case, the ingredient of penetration, the prosecution relied on the sworn testimony of the minor describing the insertion of a penis into her vagina, which was corroborated by the medical evidence of PW5. The Clinical Officer noted swollen labia minora and lacerations on the vagina and that he concluded that there was vaginal penetration. This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006 , where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupturing the hymen.
32. Furthermore, Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. The defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Hence, I find the second ingredient namely penetration was adequately proved based on the victim’s evidence and the medical evidence.
33. As regards the issue of identification/participation of the Appellant, the same was firm, consistent, and free from any possibility of mistake. The complainant knew the Appellant prior to the incident and positively recognized him as the perpetrator. She knew him as Baba John Mark and their neighbour. The incident took place in broad daylight and thus the complainant had no difficulty whatsoever in recognizing him and that she informed her parents as soon as she left the scene. This was therefore a case of recognition rather than identification of a stranger, which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Others v Republic [1980] eKLR , the Court of Appeal held that recogn
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1. The Appellant herein Joanes Ngesa Ojango was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 . The particulars were that on 12 th October 2022 at around 1700hours at Malunga Sub location in Gem Wagai Sub County within Siaya County intentionally and unlawfully caused his penis to penetrate the vagina of Z. M. O a child aged seven (7) years.
2. In the alternative, the Appellant was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars were that on 12 th October 2022 at 1700hours at Malunga East Sub location in Gem Wagai Sub County within Siaya County intentionally and unlawfully touched the vagina of Z.M.O a child aged seven (7) years with his penis.
3. The Appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called seven (7) witnesses. At the close of the prosecution’s case, the court found that the Appellant had a case to answer and thus placed him on his defense under section 211 of the Criminal Procedure Code. The Appellant tendered an unsworn statement and called one witness. By judgment delivered on 8 th January 2024, the Appellant was convicted and sentenced to serve thirty (30) years’ imprisonment.
4. Being dissatisfied with the decision of the trial court, the Appellant instituted this appeal against the conviction vide his Petition of Appeal dated 15 th September 2025 wherein he raised the following grounds of appeal namely:
i). That the learned trial magistrate erred in law and fact by convicting the Appellant notwithstanding that the ingredient forming the offence was not proved to the required standard.
ii). That the learned trial magistrate erred in law and fact in convicting the Appellant without considering his defence that could exonerate him from the offence in question.
iii). That the learned trial magistrate erred in law and fact in convicting and sentencing the Appellant to 30 years imprisonment without considering that the prosecution evidence was weak in nature and lacked limbs to sustain a proof of beyond reasonable doubt.
iv). That the learned trial magistrate erred in law and fact in not making a finding that the prosecution case had full of contradictions and inconsistencies among its witnesses.
v) That the learned trial magistrate erred in law and fact in not making a finding that the trial court breached the constitutional rights of the Appellant hence arrived at an unfair trial.
The Appellant therefore prayed that the appeal be allowed and the conviction be quashed and sentence set aside.
5. This being the first appellate court, its duty is to re-evaluate the evidence presented to the trial Court and subject to an independent analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account of the fact that it neither heard nor saw the witnesses and therefore to give due allowance for that. 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.”
6. The evidence tendered before the trial court was as follows;
7 . Z. M. O (PW1) was the complainant and after a voire dire examination, she was allowed to tender a sworn testimony. She testified that she is aged six years and a pupil at Ginga Valley Primary School and was in Grade one. That she knew the Appellant as Baba John Mark. That she recalled on the material date that the Appellant did bad manners to her after taking her to a bush and removed her underpants and also removed his clothes as well. That he put his ‘’dudu’’(organ) into her ‘’dudu’’ (organ). That she tried to scream but he covered her mouth with his hand. That when he was through, he dressed up and ran away. That she put on her clothes and then saw blood in her ‘’dudu’’ (organ). That the Appellant who was their neighbour had warned her not to tell anybody about the ordeal or else he would kill her. That she later informed her parents while in the bedroom as to what had happened.
During cross-examination, she stated inter alia; that she had been sent by her mother to go to the river and fetch water for washing the dishes; that on that date, she was the only one at the river; that the Appellant herein was at the time grazing his cows near the river; that she was later joined by other girls at the river who had also come to fetch water; that she was sitting on the tap area which injured her and that she started bleeding and that she informed her mother about it; that it was her father who took her to hospital that night; that nobody had coached her to state what she had told the court.
On re-examination, she stated that the Appellant informed her to return to the river after taking water home and that she complied and was not accompanied by any of the other girls. That it is not the tap that injured her but that it was a stone which injured her on her ‘’dudu.’’ That even though she was injured, the Appellant also had raped her. That Baba John Mark raped her.
8. George Otieno Odipo (PW2), testified that he is the father to the complainant (PW1). That on the material date the complainant had gone to fetch water from the river and brought water but she again went back to the river and this time she came back while crying. That the girl’s private part area had some blood. That he interrogated her and learnt the Appellant had directed her to go back to the river where he defiled her and ordered her not to tell anybody. That she took her to Nyabondo Health Centre where she was referred to Yala Hospital where she was treated. That the villagers were irate and wanted to harm the Appellant and that the police were alerted to come and pick him up.
On cross-examination, he stated inter alia; that the Appellant is a relative as their grandfathers were brothers; that he works as a mechanic in Nairobi; that he and his wife checked the complainant and found that the blood was coming from the complainant’s private parts; that the incident took place in a bush; that it was his in-law who took the child to hospital; that he accompanied the police officers to the scene but did not recover anything.
9. Prisca Atieno (PW3 ) testified that she is the mother of the complainant. That her daughter was aged six years old having been born on 17/3/2015 as per the birth certificate which she identified in court as Mfi-1. That on 12/10/2022 she was unwell as she had underwent a surgery. That when the complainant arrived from school she went to the river and that she later came home while walking rather funny and on confronting her, she informed her that she had fallen on the water tap but she was not wet and that upon being forced to lift up her dress, she then saw blood on her underpants. That she confronted her and that the girl began to cry and that she took her to the bedroom and examined her properly and saw that there was a tear of her vagina which went all the way to the anus and that her thighs revealed huge clots of blood. That she saw some whitish mucus like substance. That she prodded her further and who later revealed to her that the Appellant who was known to them as Baba John Mark had pulled her into a nearby bush and defiled her after removing her underpants. That the villagers arrived home and started screaming and baying for the Appellant’s blood and that the complainant pointed the Appellant as the person who had raped her. That her daughter was taken to hospital where the defilement was established. That the Appellant is her brother in law.
On cross-examination, she stated inter alia; that the complainant claimed that the water tap had injured her; that the complainant later claimed that it was the Appellant who had raped her; that the police took away the complainant’s underpants and dress before she went to hospital; that the complainant had a tear from the vagina to her anus; that the Appellant is known in the area as a pastor; that at around 5.00pm people usually are around the river to fetch water.
10. Margaret Mercy (PW4) was the assistant chief of Malunga sub location. That on the material date, the village elder alerted her of an incident of defilement involving the Appellant and the complainant. That the members of public had already apprehended the Appellant and were assaulting him when she arrived at the area. That she checked the complainant and noted some bloodstains on her thighs and vagina. That the Appellant was taken to the police station while the complainant was escorted to hospital for treatment.
11. Shadrack Kennedy (PW5) was a clinical officer attached at Yala Sub county Hospital. That he examined the complainant and noted a swollen labia majora and minora as well as lacerations on the vaginal wall. That the complainant also had a vaginal discharge in addition to active bleeding. That he conducted laboratory tests as well as filled the P3 form , PRC form, outpatient card and lab request form which he produced as exhibits 1, 2, 3 and 4 respectively. That he noted a freshly broken hymen which implied that the incident had taken place within three hours and that penetration had taken place.
On cross-examination, he stated inter alia; that the complainant was brought to the hospital while dressed in a dress which was soiled; that there are other circumstances which can cause a hymen to be broken other than sexual intercourse such as penetration by use of a finger or a banana; that penetration can cause lacerations on the labia; that it is possible for a metallic object to cause bleeding from the vagina; that the perpetrator was also examined but the medical report is not available; that the presence of spermatozoa indicated that there was ejaculation by the perpetrator.
12. Godwin Khamala Waliama (PW6) testified that he received exhibits from No. 117571 Pc Serah Sankei (PW7) which comprised of a high vaginal swab of the complainant (Z.M.O) marked A, a penile swab of the Appellant marked B, a purple innerwear in a brown envelope marked C, a cream torn bloodstained underpants in a brown envelope marked D. That he also obtained two reference persons presented by the police officers namely the complainant and Appellant. That he obtained swabs from the complainant and marked it as E while the swabs from the Appellant was marked as F. That he was to look at the exhibits and establish whether there were stains of human origin and then generate a profile and do a comparison against the sample so as to assist in determining the origin of any stains or fluid on the exhibits presented. That upon examination, he established that the stains on item A tested positive for presence of seminal fluid. That seminal fluid comes from prostate glands of a male gender. That he found that the item B was heavily stained with blood of human origin. That he listed the items with the DNA profiles generated on them and origin of those DNA profiles. That his conclusion was that the male DNA profile generated from item A from semen swab item B and innerwear item C all matched with the male DNA profile generated from the swabs of Joanes Ngesa Ojango (Appellant). That the stains on high vaginal swab originated from Joanes Ngesa Ojango. That the satins from item B and C all originated from Joanes Ngesa Ojango. The high vaginal swab was taken from the vaginal lining of Z.M.O and hence Joanes Ngesa Ojango donated to the stains in her vaginal swab. That he also concluded that the DNA profile generated from the stains from items A the high vaginal swab and underpants item D both match the DNA profile of Z.M.O. That the DNA is transferred through contact. He produced the Government analyst report as exhibit 5.
On cross-examination, he stated inter alia; that he received the exhibits on 17/10/2022 and conducted the analysis on 2/2/2023 after four months upon receipt; that it is not true that buccal swabs degenerate quickly; that buccal swabs contain bacteria and interferes with any item in it; that they took the buccal swabs on the 17/10/2022 at the laboratory and not at the police station; that Joanes Ngesa Ojango (Appellant) was in the company of a police officer Pc Serah; that the samples were collected by his collegue madam Salvine Ruto; that oral consent at the laboratory is sufficient and that there was no written consent from Joanes Ngesa Ojango; that the samples were placed in the storage facilities; that the human samples were stored in the refrigerator; that item A was stored in a safe air conditioned room and likewise item B and the rest; that item D was a female underpants; that it is not true that the exhibits fatally degenerated; that seminal fluid is not synonymous with spermatozoa but both come from the male species; that if one wears a condom and without any breakage then the seminal fluid would remain in the condom; that the high vaginal swab had seminal fluid in it.
13. No. 117571 Pc Serah Sankei (PW7) was the investigating officer. She stated that upon being informed of the incident, she went to the police station at Wagai and met the assistant chief of Malunga East sub location who had presented the suspect in the presence of the victim’s father and learnt that the victim had been rushed to hospital for treatment. That she was given the birth certificate of the minor which indicated her age as seven years at the time and that she produced the same as exhibit one. That the minor was treated and a p3 form as well as PRC form were filled. That she visited the home of the minor the following day on 13/10/2022 and found that she had difficulty walking and who also led them to the scene which was a bush near a certain stream. That on 14/10/2022 she teamed up with three male officers and escorted the Appellant to Yala hospital for check-up and later on 17/10/2022 she escorted the Appellant and the victim to Kisumu Government chemist where samples were taken. That she handed over the other samples collected at Yala sub county hospital to the Government chemist. That the underpants of both complainant and Appellant were also handed over to the analyst for DNA analysis. That the complainant identified the Appellant as Baba John Mark.
On cross-examination, she stated inter alia; that the victim was not then bleeding when she led them to the scene; that she saw the two water pipes at the stream and that there was no water control as the water just flew through the said pipes; that she obtained the Appellant’s underpants at the police station as he demanded for a DNA test; that her colleague Pc Ndege is the one who obtained the underpants from the Appellant; that the Appellant consented to the use of his underpants in the DNA analysis; that two male officers including herself escorted the Appellant to the hospital; that there was no written consent from the Appellant regarding the consent to give out samples for DNA analysis.
On re-examination, she stated that the Appellant did not object to the taking of samples from him.
14. Upon the close of the Respondent’s case, the trial court later ruled that the Appellant had a case to answer and was placed on his defence. He opted to tender an unsworn statement and called one witness.
15. Joanes Ngesa Ojango (DW1), testified that on the material date he was at home with his children when he heard noise and that he together with his children rushed to the source of the noise. That on arrival, the father of the complainant confronted him and started assaulting him while claiming that he had raped his daughter. That his innocent pleas fell on deaf ears as the irate villagers attacked him as they bayed for his blood. That the villagers claimed that ‘’wamekuwa wakinitafuta kwa muda.’’ That the village headman alerted the assistant chief who arranged for him to be rushed to Akala police station.
16. Alphonce Okongo Andagi (DW2 ) testified that the Appellant is a son to his brother and hence he is a nephew. That on the material date at 3.00 PM he had taken his cows to the river and found the Appellant also taking care of his cows and who later received a call from his brother Joshua and therefore left much earlier than him. That he later heard noise when he arrived at his home and went out to check and thus joined the Appellant as they rushed to the source of the noise which was emanating from the home of the complainant. That on arrival, the father of the complainant assaulted the Appellant while claiming that the Appellant had defiled his daughter. That since he was the village elder, he called the assistant chief and briefed her on the matter. That the assistant chief arrived and arranged to escort the Appellant to the police station. That he visited the police station the following day only for a female police officer to chase him away for trying to assist a ‘’Mkora’’(criminal). That the complainant had not been to the river as claimed.
On cross-examination, he stated inter alia; that he had demanded for witnesses who had seen the complainant at the river; that the lady with a donkey who was at the river has not been called as a witness. That he left the scene at 5.30 PM and that he could not tell whatever the Appellant was doing while he was not with him; that he had not seen the Appellant from 5.00 to 6.00 PM as he was not with him. That on arrival at the source of the noise, he saw the complainant who had bloodstains on her private parts.
17. When considering the evidence on record, the learned trial Magistrate observed that the defense brought by the Appellant did not in any way cast doubt on the prosecution’s case and convicted him under section 215 of the Criminal Procedure Code on the main count and sentenced him to serve thirty (30) years’ imprisonment.
18. The appeal was canvassed by way of written submissions. Both parties duly complied.
19. I have considered the record of the trial court and the submissions tendered. I find the issue for determination is whether the Respondent proved its case against the Appellant beyond reasonable doubt.
20. The burden of proof in all criminal trials is upon the prosecution to prove and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462 .
21. The offence of defilement has three essential ingredients which must be proved by the prosecution before a conviction can be achieved. The said elements include; age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to ensue.
“Section 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.
22. 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.”
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.
23. 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...”
24. In the present case, the prosecution discharged this burden through the birth certificate (Exhibit 1) produced by PW7, which established that the minor was born on 17/4/2015, making her age as seven years six months and five days at the time of the incident. This was further corroborated by the Clinical Officer (PW5), satisfying the legal threshold. Further, it came out clearly that the complainant and her father as well as the clinical officer plus the investigating officer talked of the age of six years instead of seven years. Indeed, the difference in the aspect of age between 6 and 7 is not that material in that the same did not cause any prejudice since the age fell within the age bracket of below 11 years for purposes of section 8(2) of the Sexual Offences Act. Iam therefore satisfied that the aspect of age was proved by the Respondent beyond any reasonable doubt.
25. 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 the genital organs of another person. 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.
26. Section 124 of the Evidence Act, Cap 80 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.”
27. In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995 , the Supreme Court of Uganda had the following to say in respect of proving penetration: -
“ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
28. In the present case, PW1 gave a graphic account of the Appellant inserting his genitalia into hers, which was corroborated by PW5’s medical findings such as swollen labia majora and minora, inflammation, vaginal discharge and that he confirmed that there was defilement.
29. The Appellant’s defense of a grudge (‘’wamekuwa wakinitafuta kwa muda’’ ) is diminished by the medical evidence; as held in Seme v Republic [2008] eKLR, that a mere denial cannot overturn positive medical findings corroborating the commission of the offense.
30. Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR , the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration.
31. In this case, the ingredient of penetration, the prosecution relied on the sworn testimony of the minor describing the insertion of a penis into her vagina, which was corroborated by the medical evidence of PW5. The Clinical Officer noted swollen labia minora and lacerations on the vagina and that he concluded that there was vaginal penetration. This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006 , where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupturing the hymen.
32. Furthermore, Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. The defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Hence, I find the second ingredient namely penetration was adequately proved based on the victim’s evidence and the medical evidence.
33. As regards the issue of identification/participation of the Appellant, the same was firm, consistent, and free from any possibility of mistake. The complainant knew the Appellant prior to the incident and positively recognized him as the perpetrator. She knew him as Baba John Mark and their neighbour. The incident took place in broad daylight and thus the complainant had no difficulty whatsoever in recognizing him and that she informed her parents as soon as she left the scene. This was therefore a case of recognition rather than identification of a stranger, which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Others v Republic [1980] eKLR , the Court of Appeal held that recogn
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