(Being an Appeal against the judgment of Chief Magistrate’s Court at Malindi Hon. Irene Thamara in S.O E021 of 2022 delivered on 22 nd June, 2023)
The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between January, 2022 and 11 th March, 2022 at Garashi village in Magarini Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate the vagina of R.C a child aged 12 years.
The Appellant also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between January, 2022 and 11 th March, 2022 at Garashi village, Magarini Sub County within Kilifi County intentionally and unlawfully caused his penis to touch the vagina of R.C a child aged 12 years.
The Appellant pleaded not guilty to the charges. The prosecution called five (5) witnesses to prove the charges against the Appellant. The Appellant gave a sworn statement in his defence. The trial court after considering the evidence adduced found the Appellant guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to serve twenty-three (23) years imprisonment.
Aggrieved by the conviction and sentence the Appellant preferred this appeal. In the petition of appeal and the amended grounds of appeal the Appellant has raised several grounds which can be compressed into three grounds to wit; the trial court erred in law and facts by failing to consider that the prosecution did not prove the charges beyond reasonable doubt as required, that the trial court erred in law and facts by failing to consider that the prosecution evidence was contradictory, that the trial court did not consider his defence and that the trial court imposed harsh and excessive sentence.
Both the Appellant and the respondent filed written submissions which I have carefully considered. The Appellant’s submissions consists of compilation of the grounds of appeal interspersed with excerpts from judicial authorities, but mainly the Appellant grievance is that the case was not proved beyond reasonable doubt as required.
This being the first appeal, this court is expected to analyze and evaluate all the evidence adduced before the trial court and arrive at its own independent decision, of course bearing in mind that this court did not have the opportunity to hear and see the witnesses testify in court as laid down in the case of Okeno vs Republic (1972)E.A 32 where it was held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witnesses testify.”
Bearing the foregoing in mind, it must be remembered that it is the duty of prosecution to prove the charges against an accused person beyond reasonable doubt. This cardinal principle of criminal law has been restated in numerous cases. In the case of Stephen Nguli Mulili vs Republic (2014) e KLR the court emphasized the prosecution duty in criminal cases and stated that:
“…it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UJHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan position.”
Guided by the foregoing principles, I have re-evaluated and reconsidered the evidence adduced by the prosecution and the Appellant’s defence in the lower court as well as the submissions by both sides.
In the instant case the appellant was charged with defilement contrary to Section 8(1) of the Sexual Offence Act. That Section provides as follows:
“8(1) Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 the court stated:
“That the critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
Thus, the essential ingredients which the prosecution must prove beyond reasonable doubt are the age of the complainant, penetration and identification of the accused person as the perpetrator.
Regarding the age of the complainant, I have carefully perused the submissions by the appellant and I find that the appellant has not submitted that the age was never proved. The law on the importance of prove of age has been restated in numerous cases of this court and Court of Appeal. In the case of Joseph Kiet Seet vs Republic (2014) e KLR the court held:
“It is trite that the age of the victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni vs Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, it was held thus: In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…”
In the instant case the complainant testified that she was aged 14 years as at the time she gave evidence in court on 22 nd September, 2022. PW4 Dr. Moses Rimba of Malindi Sub County Hospital produced age assessment and approximated the age of the complainant at twelve (12) years. the trial court correctly relied on the said evidence of the doctor and found that age was proved as required.
The other ingredient which the prosecution was required to prove is penetration. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“The partial or complete insertion of the genital organs into genital organ of another person.”
It was therefore incumbent upon the prosecution to prove that the appellant’s genitalia namely penis penetrated the complainant’s genitalia namely vagina. The main ways of proving penetration are by way of medical evidence, the victim’s testimony and circumstantial evidence. As regards the victim’s testimony in sexual offence, the same is admissible even without corroboration pursuant to the proviso to Section 124 of the Evidence Act so long as the trial court record reasons of convicting without corroboration.
In this case the trial court relied on the evidence of the complainant which she found was corroborated by the medical evidence adduced by PW4. The complainant gave unsworn testimony after voire dire examination in which the trial court found that though she did not understand the meaning of taking oath she could testify in court. The complainant in her evidence stated that the appellant whom she referred to as ‘Kitumbo’ ‘alinifanya tabia mbaya’. According to her evidence she said the appellant did bad manners to her sometimes at his home and some other times at the forest/bush. She relied on the case of Too vs Republic (2020) e KLR where the court took judicial notice that to minors the words ‘tabia mbaya’ means nothing short of defilement. The trial court also found that notwithstanding the testimony of the complainant, the same was corroborated by medical evidence.
I have re-evaluated the evidence adduced by the prosecution on the issue of penetration. Though the trial court did not record reasons why it believed on the testimony of the complainant, there was corroborative evidence in the form of the medical examination which established that there were vaginal injuries on the complainant’s genitalia and particularly that the hymen was perforated, lacerations were also noted and there was semen like fluid. There is also the evidence of PW2 who found the complainant headed to a tank to fetch water and upon interrogation he said she admitted having had sex with the appellant. I am satisfied that the evidence adduced before the trial court sufficiently proved that the complainant was penetrated.
On the issue of identification of the appellant as the perpetrator PW1 the complainant stated that the appellant first defiled her in the forest/bush and then in his bed. She further stated that the Sub Chief (PW3) found her with the appellant and that is the day he defiled her in the forest/bush. However, according to the evidence of PW3 he told the court that he was informed by PW2 that the complainant had been found with the appellant. Further to the foregoing, PW1 in cross-examination she told the court that she mentioned three people when she was taken to the police station but she said that those were the people she went with but they did not defile her. She maintained that it is the appellant who defiled her. PW2 on the other hand stated that he did not find the appellant and the complainant in the bush. He only alluded to the complainant being interrogated and admitted going to the bushes with the appellant to have sex.
From the foregoing, the appellant argued that there were inconsistency and contradictions in the prosecution case and it was therefore unsafe for the trial court to convict him. The respondent argued that there were no inconsistencies and if any the same ought to be evaluated with regard to the principles laid down the case of Erick Onyango Ondeng’ vs Republic (2014) e KLR where the Court of Appeal discussed when inconsistencies can lead to the rejection of evidence of a witness. The court emphasized that minor inconsistencies or contradictions may be ignored unless they point to deliberate untruthfulness. In the case of Philip Nzaka Watu vs Republic (2016) e KLR the court expressed itself thus:
“It cannot be gainsaid that to find a conviction in a criminal case, where the trial court has to be satisfied of the accused persons guilty beyond reasonable doubt, the prosecution evidence must be cogent, credible and trust worth. Evidence that is obviously self-contradictory in material particulars or which is a mare amalgam of inconsistent versions of the same event, differing fundamentally from one purported eye witness to another cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this court, some inconsistencies in evidence may signify veracity and honesty just as unusual uniformity may signal fabrication and coaching of witnesses.”
The trial court interrogated the inconsistencies and contradiction in the prosecution evidence regarding whether the appellant was found in the act of defiling the complainant and made a finding that the same could not lead to any other finding other than that the appellant was positively identified as the perpetrator. The court was satisfied that the evidence of the complainant was truthful.
I have evaluated the evidence by the prosecution regarding the inconsistencies and contradictions alluded to by the appellant. I take note that the persons who pursued the case were not relatives of the complainant but local administration. The event leading to the arrest of the appellant were that it was rumoured that he was having sex with the complainant. The complainant upon interrogation admitted having had sex with the appellant not on one occasion, but several occasions. The complainant even clarified the alleged contradictions in cross-examination when she maintained that it is the appellant who defiled her.
The appellant faulted the trial court for failing to consider his defence. His defence was that he was called by the area Sub Chief who took him to the police station. It is at the police station that he saw a woman with a child whom he did not know. An allegation was then made that he had defiled the child. He denied the charges. The trial court found his defence a mere denial. I have weighed the evidence from both sides. In light of the weight of the prosecution evidence and particularly the evidence of the complainant (PW1), PW4 the medical doctor and more importantly, the fact that PW2 and PW3 were not related to the complainant so as to frame him, the appellant’s defence cannot be possibly be true.
Through my own evaluation of the evidence in totality, am satisfied that the appellant was properly identified as the perpetrator.
The appellant faulted the trial court for rendering harsh and excessive sentence. The appellant was charged under Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The trial court found that the charge ought to have been under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. She convicted the appellant under Section 8(1) as read with Section 8(3) of the Act having found that the complainant was aged 12 years. Section 8(3) of the Act provides for minimum sentence of 20 years. The appellant was sentenced to twenty-three (23) years. I am aware that sentence is within the discretion of the trial court and unless there is a misdirection, the appellate court would be usurping the discretion of the trial court to substitute the same with the appellate court preferred sentence. In this case the appellant offered mitigations. The trial court also called for pre-sentence reports. Having regard to the foregoing, and noting that the minimum sentence provided for is twenty years (20) years I am minded to substitute the sentence of twenty-three (23) years to twenty (20) years. As ordered by the trial court the sentence shall run from the date of arrest. For avoidance of doubt the sentence shall run from 13 th March, 2022.
From the foregoing I find no grounds upon which I can fault the judgment and findings of the trial court and the appeal is dismissed save for the sentence.
Dated, signed and delivered virtually this 4 th day of June, 2026.
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually
Ms. Mutua for respondent appearing virtually
Ms. Millicent Otwo Court Assistant.
2
The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between January, 2022 and 11 th March, 2022 at Garashi village in Magarini Sub County within Kilifi County intentionally and unlawfully caused his penis to penetrate the vagina of R.C a child aged 12 years.
The Appellant also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between January, 2022 and 11 th March, 2022 at Garashi village, Magarini Sub County within Kilifi County intentionally and unlawfully caused his penis to touch the vagina of R.C a child aged 12 years.
The Appellant pleaded not guilty to the charges. The prosecution called five (5) witnesses to prove the charges against the Appellant. The Appellant gave a sworn statement in his defence. The trial court after considering the evidence adduced found the Appellant guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to serve twenty-three (23) years imprisonment.
Aggrieved by the conviction and sentence the Appellant preferred this appeal. In the petition of appeal and the amended grounds of appeal the Appellant has raised several grounds which can be compressed into three grounds to wit; the trial court erred in law and facts by failing to consider that the prosecution did not prove the charges beyond reasonable doubt as required, that the trial court erred in law and facts by failing to consider that the prosecution evidence was contradictory, that the trial court did not consider his defence and that the trial court imposed harsh and excessive sentence.
Both the Appellant and the respondent filed written submissions which I have carefully considered. The Appellant’s submissions consists of compilation of the grounds of appeal interspersed with excerpts from judicial authorities, but mainly the Appellant grievance is that the case was not proved beyond reasonable doubt as required.
This being the first appeal, this court is expected to analyze and evaluate all the evidence adduced before the trial court and arrive at its own independent decision, of course bearing in mind that this court did not have the opportunity to hear and see the witnesses testify in court as laid down in the case of Okeno vs Republic (1972)E.A 32 where it was held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witnesses testify.”
Bearing the foregoing in mind, it must be remembered that it is the duty of prosecution to prove the charges against an accused person beyond reasonable doubt. This cardinal principle of criminal law has been restated in numerous cases. In the case of Stephen Nguli Mulili vs Republic (2014) e KLR the court emphasized the prosecution duty in criminal cases and stated that:
“…it is not in doubt that the burden of proof lies with the prosecution. The locus classicus on this is the case of DPP vs Woolmington (1935) UJHL 1 where the court eloquently stated that the ‘golden thread’ in the ‘web of English common law’ is that it is the duty of the prosecution to prove its case. This has always remained the Kenyan position.”
Guided by the foregoing principles, I have re-evaluated and reconsidered the evidence adduced by the prosecution and the Appellant’s defence in the lower court as well as the submissions by both sides.
In the instant case the appellant was charged with defilement contrary to Section 8(1) of the Sexual Offence Act. That Section provides as follows:
“8(1) Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
In the case of Charles Wamukoya Karani vs Republic Criminal Appeal No. 72 of 2013 the court stated:
“That the critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
Thus, the essential ingredients which the prosecution must prove beyond reasonable doubt are the age of the complainant, penetration and identification of the accused person as the perpetrator.
Regarding the age of the complainant, I have carefully perused the submissions by the appellant and I find that the appellant has not submitted that the age was never proved. The law on the importance of prove of age has been restated in numerous cases of this court and Court of Appeal. In the case of Joseph Kiet Seet vs Republic (2014) e KLR the court held:
“It is trite that the age of the victim can be determined by medical evidence and other cogent evidence. In the case of Francis Omuroni vs Uganda, Court of Appeal Criminal Appeal No. 2 of 2000, it was held thus: In defilement case, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense…”
In the instant case the complainant testified that she was aged 14 years as at the time she gave evidence in court on 22 nd September, 2022. PW4 Dr. Moses Rimba of Malindi Sub County Hospital produced age assessment and approximated the age of the complainant at twelve (12) years. the trial court correctly relied on the said evidence of the doctor and found that age was proved as required.
The other ingredient which the prosecution was required to prove is penetration. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“The partial or complete insertion of the genital organs into genital organ of another person.”
It was therefore incumbent upon the prosecution to prove that the appellant’s genitalia namely penis penetrated the complainant’s genitalia namely vagina. The main ways of proving penetration are by way of medical evidence, the victim’s testimony and circumstantial evidence. As regards the victim’s testimony in sexual offence, the same is admissible even without corroboration pursuant to the proviso to Section 124 of the Evidence Act so long as the trial court record reasons of convicting without corroboration.
In this case the trial court relied on the evidence of the complainant which she found was corroborated by the medical evidence adduced by PW4. The complainant gave unsworn testimony after voire dire examination in which the trial court found that though she did not understand the meaning of taking oath she could testify in court. The complainant in her evidence stated that the appellant whom she referred to as ‘Kitumbo’ ‘alinifanya tabia mbaya’. According to her evidence she said the appellant did bad manners to her sometimes at his home and some other times at the forest/bush. She relied on the case of Too vs Republic (2020) e KLR where the court took judicial notice that to minors the words ‘tabia mbaya’ means nothing short of defilement. The trial court also found that notwithstanding the testimony of the complainant, the same was corroborated by medical evidence.
I have re-evaluated the evidence adduced by the prosecution on the issue of penetration. Though the trial court did not record reasons why it believed on the testimony of the complainant, there was corroborative evidence in the form of the medical examination which established that there were vaginal injuries on the complainant’s genitalia and particularly that the hymen was perforated, lacerations were also noted and there was semen like fluid. There is also the evidence of PW2 who found the complainant headed to a tank to fetch water and upon interrogation he said she admitted having had sex with the appellant. I am satisfied that the evidence adduced before the trial court sufficiently proved that the complainant was penetrated.
On the issue of identification of the appellant as the perpetrator PW1 the complainant stated that the appellant first defiled her in the forest/bush and then in his bed. She further stated that the Sub Chief (PW3) found her with the appellant and that is the day he defiled her in the forest/bush. However, according to the evidence of PW3 he told the court that he was informed by PW2 that the complainant had been found with the appellant. Further to the foregoing, PW1 in cross-examination she told the court that she mentioned three people when she was taken to the police station but she said that those were the people she went with but they did not defile her. She maintained that it is the appellant who defiled her. PW2 on the other hand stated that he did not find the appellant and the complainant in the bush. He only alluded to the complainant being interrogated and admitted going to the bushes with the appellant to have sex.
From the foregoing, the appellant argued that there were inconsistency and contradictions in the prosecution case and it was therefore unsafe for the trial court to convict him. The respondent argued that there were no inconsistencies and if any the same ought to be evaluated with regard to the principles laid down the case of Erick Onyango Ondeng’ vs Republic (2014) e KLR where the Court of Appeal discussed when inconsistencies can lead to the rejection of evidence of a witness. The court emphasized that minor inconsistencies or contradictions may be ignored unless they point to deliberate untruthfulness. In the case of Philip Nzaka Watu vs Republic (2016) e KLR the court expressed itself thus:
“It cannot be gainsaid that to find a conviction in a criminal case, where the trial court has to be satisfied of the accused persons guilty beyond reasonable doubt, the prosecution evidence must be cogent, credible and trust worth. Evidence that is obviously self-contradictory in material particulars or which is a mare amalgam of inconsistent versions of the same event, differing fundamentally from one purported eye witness to another cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this court, some inconsistencies in evidence may signify veracity and honesty just as unusual uniformity may signal fabrication and coaching of witnesses.”
The trial court interrogated the inconsistencies and contradiction in the prosecution evidence regarding whether the appellant was found in the act of defiling the complainant and made a finding that the same could not lead to any other finding other than that the appellant was positively identified as the perpetrator. The court was satisfied that the evidence of the complainant was truthful.
I have evaluated the evidence by the prosecution regarding the inconsistencies and contradictions alluded to by the appellant. I take note that the persons who pursued the case were not relatives of the complainant but local administration. The event leading to the arrest of the appellant were that it was rumoured that he was having sex with the complainant. The complainant upon interrogation admitted having had sex with the appellant not on one occasion, but several occasions. The complainant even clarified the alleged contradictions in cross-examination when she maintained that it is the appellant who defiled her.
The appellant faulted the trial court for failing to consider his defence. His defence was that he was called by the area Sub Chief who took him to the police station. It is at the police station that he saw a woman with a child whom he did not know. An allegation was then made that he had defiled the child. He denied the charges. The trial court found his defence a mere denial. I have weighed the evidence from both sides. In light of the weight of the prosecution evidence and particularly the evidence of the complainant (PW1), PW4 the medical doctor and more importantly, the fact that PW2 and PW3 were not related to the complainant so as to frame him, the appellant’s defence cannot be possibly be true.
Through my own evaluation of the evidence in totality, am satisfied that the appellant was properly identified as the perpetrator.
The appellant faulted the trial court for rendering harsh and excessive sentence. The appellant was charged under Section 8(1) as read with Section 8(4) of the Sexual Offences Act. The trial court found that the charge ought to have been under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. She convicted the appellant under Section 8(1) as read with Section 8(3) of the Act having found that the complainant was aged 12 years. Section 8(3) of the Act provides for minimum sentence of 20 years. The appellant was sentenced to twenty-three (23) years. I am aware that sentence is within the discretion of the trial court and unless there is a misdirection, the appellate court would be usurping the discretion of the trial court to substitute the same with the appellate court preferred sentence. In this case the appellant offered mitigations. The trial court also called for pre-sentence reports. Having regard to the foregoing, and noting that the minimum sentence provided for is twenty years (20) years I am minded to substitute the sentence of twenty-three (23) years to twenty (20) years. As ordered by the trial court the sentence shall run from the date of arrest. For avoidance of doubt the sentence shall run from 13 th March, 2022.
From the foregoing I find no grounds upon which I can fault the judgment and findings of the trial court and the appeal is dismissed save for the sentence.
Dated, signed and delivered virtually this 4 th day of June, 2026.
F.N Kyambia
Judge
In the presence of
Appellant appearing virtually
Ms. Mutua for respondent appearing virtually
Ms. Millicent Otwo Court Assistant.
2