[1] The appellant was arraigned before the Senior Principal Magistrate’s Court at Oyugis in Sexual Offence Case No. E006 of 2020: Republic v John Odhiambo Onyango alias Benson Odhiambo Ogundo on 9 th November 2020. He was charged with 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 the 27 th day of October 2020, at Kakelo Kamroth Sub-location in Rachuonyo East Sub County within Homa Bay County, he unlawfully and intentionally caused his penis to penetrate the vagina of I A O, a child aged 17 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. It was alleged that on the 27 th day of October 2020, at Kakelo Kamroth Sub-location in Rachuonyo East Sub County within Homa Bay County, he intentionally touched, with his penis, the vagina of I A O, a child aged 17 years.
[3] The charges were read over to the appellant and he denied the allegations levelled against him. The matter was accordingly fixed for trial before Hon. C. Okore , Principal Magistrate. The appellant was ultimately found guilty of the substantive charge of defilement and was convicted thereof. He was sentenced to 15 years’ imprisonment.
[4] Being dissatisfied with the decision of the trial court, the appellant filed this Appeal on 5 th October 2023 citing the following grounds:
[a] That the learned magistrate erred in both law and fact by convicting him without observing that the offence of defilement was not proved beyond reasonable doubt.
[b] That the learned magistrate erred in both law and fact by relying on a fabricated and shambolic report tendered by the prosecution side thus making his conviction unfit.
[c] That the learned magistrate erred both in law and fact by convicting him despite glaring contradictions.
[d] That the learned magistrate erred in both law and fact by convicting him on the basis of shoddy investigations by the prosecution side.
[5] On the basis of the foregoing grounds, the appellant prayed that his conviction be quashed and the sentence of 15 years’ imprisonment reviewed and set aside.
[6] Although the appellant stated, on 11 th February 2026, that he had filed his written submissions, no such submissions are on the e-filing portal.
[7] The respondent, on their part, duly complied and filed written submissions dated 10 th February 2026. It was the contention of the respondent that the case was well investigated and that the evidence of the prosecution witnesses was credible, consistent and very well corroborated. Accordingly, counsel for the respondent urged the Court to find that all the ingredients of the offence of defilement, namely, age of the complainant, penetration and the identity of the offender, were proved beyond reasonable doubt through the evidence of the complainant, her mother (PW2), as well as the evidence of the Clinical Officer, Irene Adhiambo Onyango (PW4).
[8] It was further the submission of the respondent that the sentence meted on the appellant was lawful. The Court was accordingly invited to uphold the same and dismiss the appeal for lack of merit.
[9] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that this Court did not have the opportunity to see or hear the witnesses testify. (see Okeno v Republic [1972] EA 32).
[10] Before the lower court, the prosecution adduced evidence from four witness. The complainant, I A O, testified as PW1. She stated that she was 17 years old at the time of the incident, having been born on 6 th May 2003; and that she was a secondary school student. It was her evidence that the appellant was well known to her as Benson Odhiambo ; and that on the 27 th October 2020, the appellant went to their home and found her cooking mandazi. She explained that the appellant was a frequent visitor to their home; and so when he told her that her mother wanted her to collect some maize from his home she did not doubt him.
[11] PW1 further testified that, once she was done with cooking, she went to the appellant’s house but did not find her mother there. Instead she found the appellant alone sitting in front of his house. She explained that the appellant greeted her and invited her to have a seat in his house as he went to fetch the maize. On return, the appellant engaged her in conversation and asked her to be his girlfriend. The complainant told the lower court that she declined that invitation, sensing that the appellant was merely interested in having sex with her. When she declined his advances, the appellant violently pulled her towards his bedroom. She added that she screamed for help but was threatened by the appellant.
[12] The complainant further stated that the appellant locked the main door and took a panga that was behind the door and threatened to cut her with it. He then slapped her on the back with the panga, tore her clothes and defiled her. She added that she went home thereafter, having abandoned the maize and reported the incident to her mother. The matter was brought to the attention of the Assistant Chief who advised that she be taken to hospital for examination and treatment. The matter was thereafter reported to the police for appropriate action.
[13] The complainant’s mother testified before the lower court at PW2. Her evidence was that she was at the local market selling mandazi and upon return in the evening, she did not find the complainant at home. As she was preparing supper, the complainant came home crying and reported to her that she had been defiled by Benson Odhiambo, the appellant. She got to learn from the complainant that the appellant had lured her by lying to her that she wanted her to go and collect some green maize from the appellant’s home.
[14] It was the evidence of PW2 that she immediately reported the incident to the area Assistant Chief who advised them to go to hospital and thereafter report the incident to the police. She added that she indeed took the complainant to hospital and thereafter filed a complaint with the police, after which the appellant was arrested and charged. PW2 also testified that the minor was 17 years old at the time. She produced her Certificate of Birth as the Prosecution’s Exhibit 1 before the lower court.
[15] PW3 before the lower court was PC George Owidi , the investigating officer in the matter. He confirmed that, on 28 th October 2020 at about 16:20 hours, he was on duty at Ringa Police Station when the complainant went there in the company of her mother to file a complaint of defilement. He issued her with a P3 Form and escorted her to Ober Level 4 Hospital for examination and treatment. He thereafter conducted his investigations and charged the appellant with the offence of defilement, He explained that the area Assistant Chief assisted him by arresting the appellant.
[16] The Clinical Officer who attended to the complainant at Ober Level 4 Hospital, Jared Odhiambo Onyango (PW4) also testified before the lower court. He confirmed that the complainant visited their facility on the 28 th October 2020 and that he personally attended to her. PW4 stated that the complainant reported that she had been defiled by a person known to her. On examining her he found her hymen broken but healed. PW4 explained that because the minor was in her menses it was not possible to tell whether she had injuries in her genitalia but pointed out that lab tests conducted revealed the presence of epithelial cells. He therefore came to the conclusion that the minor had indeed been defiled.
[17] Upon being placed on his defence, the appellant confirmed that he has two sets of names, namely , John Odhiambo Onyango and Benson Odhiambo Ogundo. He however pointed out that the name on his identity card is Benson Odhiambo Ogundo but that he is known to most people as John Odhiambo Onyango . Regarding the events of 27 th October 2020, the appellant stated that he was at home alone. He explained that he had separated from his wife in 1999. He further stated that he knows the complainant and her parents well, and added that he had known her since her birth. He conceded that she was a minor. However, the appellant’s contention was that he had differed with the complainant’s father over land.
[18] In the light of the foregoing summary of the evidence presented before the lower court and the submissions made by the respondent, the issues for determination are:
[a] Whether the prosecution proved the elements of the charge of defilement beyond reasonable doubt; and,
[b] Whether the sentence of 15 years is harsh or excessive in the circumstances.
A. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[19] The appellant was charged, in substantive count, under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8 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.
[20] From the above provisions, the ingredients of defilement are, the age of the victim, the identity of the perpetrator and whether penetration occurred. I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of the Sexual Offences Act:
[21] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, as follows:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[22] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[23] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, in P M M v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[24] The complainant testified before the lower court on 27 th September 2021 and stated that she was 17 years old, having been born on 6 th May 2003. She made reference to her Certificate of Birth, which was produced before the lower court as the Prosecution’s Exhibit 1. The document confirms that the minor was born on 6 th May 2003.
[25] The complainant’s evidence as to her age was corroborated by the evidence of her mother, PW2, who testified that the complainant was 17 years old at the time of the incident. She likewise made reference to the complainant’s Certificate of Birth aforementioned. There was therefore credible evidence in proof of the complainant’s age, noting that this aspect of the prosecution’s case was uncontroverted. Indeed, the appellant conceded that he had known the minor from her birth; and that he was well aware that she was below 18 years of age.
[26] It is immaterial that the minor was slightly over 17 years by five months. In Hadson Ali Mwachongo v Republic [2016] eKLR the Court of Appeal explained that:
"Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year."
[27] Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration:
[28] The evidence of penetration was adduced by the complaint. She narrated how the appellant lured her on the pretext that her mother had sent for her with instructions to collect some maize from the appellant’s home. PW1 further stated that, on arrival at the home of the appellant, he found him alone and she invited her into his house as he left to fetch the maize. On return, the appellant engaged her in conversation and asked her to be his girlfriend; and that when she declined, the appellant locked the main door and took a panga that was behind the door and threatened to cut her with it. He then slapped her on the back with the panga, tore her clothes and defiled her.
[29] The occurrence was promptly reported by the complainant to her mother and appropriate action taken, including seeking medical attention at Ober Level 4 Hospital. PW4 who attended to the complainant at Ober Level 4 Hospital, confirmed that the complainant visited their facility on the 28 th October 2020 and that he personally attended to her. PW4 also testified that the complainant reported that she had been defiled by a person known to her.
[30] PW4 further stated that, on examining the complainant he noted that her hymen broken but had healed. He explained that because the minor was in her menses it was not possible to tell whether she had injuries in her genitalia. He however pointed out that that lab tests conducted revealed the presence of epithelial cells. In his opinion, the minor had been defiled. He produced the treatment notes, P3 Form and lab results in respect of the complainant as the Prosecution’s Exhibits 2, 3 and 4 before the lower court.
[31] In the premises, penetration was proved beyond reasonable doubt, notwithstanding that the minor had no visible injuries in her genitalia. In Mark Oiruri Mose v Republic [2013] eKLR the Court of Appeal stated thus:
“…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ ….” (emphasis added ).
[32] Similarly, in Erick Onyango Ondeng v Republic [2014] eKLR it was held that:
"In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."
[33] Accordingly, the Court of Appeal pointed out in Kassim Ali v Republic [2006] KECA 156 (KLR) that:
“…as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.
[34] It is noteworthy too that the prosecution evidence in proof of penetration remained uncontroverted. This is because, in his defence, the appellant narrated the events surrounding his arrest on the 5 th November 2020. In the premises, it is my finding that penetration of the complainant’s genital organ was proved beyond reasonable doubt; and I so find.
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[35] The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[36] On the issue of the appellant’s identity, the complainant told the lower court that she had known him for a long time. Similarly, her mother also testified that the appellant is a person well-known to her. PW2 denied having sent the complainant to collect maize from the appellant. She added that when the complainant returned home that evening, she was crying. She inquired from her what the matter was, and the complainant did not hesitate in reporting to her that she had been defiled by the appellant.
[37] On his part, the appellant readily admitted that he has known the complainant all her life; and that he knows both her parents well, save that he had a land dispute with the complainant’s father. He conceded that he could not make any connection between the land dispute and his arrest and/or prosecution. It is also noteworthy that the incident took place broad daylight and the two had some conversation before the offensive act took place. I am therefore satisfied that the evidence presented by the prosecution proved beyond reasonable doubt that the complainant was defiled by the appellant.
[38] In the premises, it is my finding that all the elements of the offence of defilement were proved by the Prosecution beyond reasonable doubt and therefore the appellant was rightly convicted thereof.
C. On whether the sentence of 15 years is harsh or excessive:
[39] In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[40] Although the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act, the evidence presented proved that the complainant was 17 years. Consequently, he ought to have been charged under Section 8(4) of the Sexual Offences Act. However, no prejudice was occasioned to the appellant because the sentence imposed by the learned magistrate was 15 years’ imprisonment and therefore within the strictures of Section 8(4) of the Sexual Offences Act. It is the minimum provided for under that section. Indeed, in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) the Supreme Court reiterated that:
Paragraphs 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions ( Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) ( Muruatetu decision ) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution.”
[41] I therefore find no basis for interfering with the sentence imposed by the trial court. In the result, the appeal is dismissed in its entirely.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29 TH DAY OF MAY 2026
…
[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. It was alleged that on the 27 th day of October 2020, at Kakelo Kamroth Sub-location in Rachuonyo East Sub County within Homa Bay County, he intentionally touched, with his penis, the vagina of I A O, a child aged 17 years.
[3] The charges were read over to the appellant and he denied the allegations levelled against him. The matter was accordingly fixed for trial before Hon. C. Okore , Principal Magistrate. The appellant was ultimately found guilty of the substantive charge of defilement and was convicted thereof. He was sentenced to 15 years’ imprisonment.
[4] Being dissatisfied with the decision of the trial court, the appellant filed this Appeal on 5 th October 2023 citing the following grounds:
[a] That the learned magistrate erred in both law and fact by convicting him without observing that the offence of defilement was not proved beyond reasonable doubt.
[b] That the learned magistrate erred in both law and fact by relying on a fabricated and shambolic report tendered by the prosecution side thus making his conviction unfit.
[c] That the learned magistrate erred both in law and fact by convicting him despite glaring contradictions.
[d] That the learned magistrate erred in both law and fact by convicting him on the basis of shoddy investigations by the prosecution side.
[5] On the basis of the foregoing grounds, the appellant prayed that his conviction be quashed and the sentence of 15 years’ imprisonment reviewed and set aside.
[6] Although the appellant stated, on 11 th February 2026, that he had filed his written submissions, no such submissions are on the e-filing portal.
[7] The respondent, on their part, duly complied and filed written submissions dated 10 th February 2026. It was the contention of the respondent that the case was well investigated and that the evidence of the prosecution witnesses was credible, consistent and very well corroborated. Accordingly, counsel for the respondent urged the Court to find that all the ingredients of the offence of defilement, namely, age of the complainant, penetration and the identity of the offender, were proved beyond reasonable doubt through the evidence of the complainant, her mother (PW2), as well as the evidence of the Clinical Officer, Irene Adhiambo Onyango (PW4).
[8] It was further the submission of the respondent that the sentence meted on the appellant was lawful. The Court was accordingly invited to uphold the same and dismiss the appeal for lack of merit.
[9] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that this Court did not have the opportunity to see or hear the witnesses testify. (see Okeno v Republic [1972] EA 32).
[10] Before the lower court, the prosecution adduced evidence from four witness. The complainant, I A O, testified as PW1. She stated that she was 17 years old at the time of the incident, having been born on 6 th May 2003; and that she was a secondary school student. It was her evidence that the appellant was well known to her as Benson Odhiambo ; and that on the 27 th October 2020, the appellant went to their home and found her cooking mandazi. She explained that the appellant was a frequent visitor to their home; and so when he told her that her mother wanted her to collect some maize from his home she did not doubt him.
[11] PW1 further testified that, once she was done with cooking, she went to the appellant’s house but did not find her mother there. Instead she found the appellant alone sitting in front of his house. She explained that the appellant greeted her and invited her to have a seat in his house as he went to fetch the maize. On return, the appellant engaged her in conversation and asked her to be his girlfriend. The complainant told the lower court that she declined that invitation, sensing that the appellant was merely interested in having sex with her. When she declined his advances, the appellant violently pulled her towards his bedroom. She added that she screamed for help but was threatened by the appellant.
[12] The complainant further stated that the appellant locked the main door and took a panga that was behind the door and threatened to cut her with it. He then slapped her on the back with the panga, tore her clothes and defiled her. She added that she went home thereafter, having abandoned the maize and reported the incident to her mother. The matter was brought to the attention of the Assistant Chief who advised that she be taken to hospital for examination and treatment. The matter was thereafter reported to the police for appropriate action.
[13] The complainant’s mother testified before the lower court at PW2. Her evidence was that she was at the local market selling mandazi and upon return in the evening, she did not find the complainant at home. As she was preparing supper, the complainant came home crying and reported to her that she had been defiled by Benson Odhiambo, the appellant. She got to learn from the complainant that the appellant had lured her by lying to her that she wanted her to go and collect some green maize from the appellant’s home.
[14] It was the evidence of PW2 that she immediately reported the incident to the area Assistant Chief who advised them to go to hospital and thereafter report the incident to the police. She added that she indeed took the complainant to hospital and thereafter filed a complaint with the police, after which the appellant was arrested and charged. PW2 also testified that the minor was 17 years old at the time. She produced her Certificate of Birth as the Prosecution’s Exhibit 1 before the lower court.
[15] PW3 before the lower court was PC George Owidi , the investigating officer in the matter. He confirmed that, on 28 th October 2020 at about 16:20 hours, he was on duty at Ringa Police Station when the complainant went there in the company of her mother to file a complaint of defilement. He issued her with a P3 Form and escorted her to Ober Level 4 Hospital for examination and treatment. He thereafter conducted his investigations and charged the appellant with the offence of defilement, He explained that the area Assistant Chief assisted him by arresting the appellant.
[16] The Clinical Officer who attended to the complainant at Ober Level 4 Hospital, Jared Odhiambo Onyango (PW4) also testified before the lower court. He confirmed that the complainant visited their facility on the 28 th October 2020 and that he personally attended to her. PW4 stated that the complainant reported that she had been defiled by a person known to her. On examining her he found her hymen broken but healed. PW4 explained that because the minor was in her menses it was not possible to tell whether she had injuries in her genitalia but pointed out that lab tests conducted revealed the presence of epithelial cells. He therefore came to the conclusion that the minor had indeed been defiled.
[17] Upon being placed on his defence, the appellant confirmed that he has two sets of names, namely , John Odhiambo Onyango and Benson Odhiambo Ogundo. He however pointed out that the name on his identity card is Benson Odhiambo Ogundo but that he is known to most people as John Odhiambo Onyango . Regarding the events of 27 th October 2020, the appellant stated that he was at home alone. He explained that he had separated from his wife in 1999. He further stated that he knows the complainant and her parents well, and added that he had known her since her birth. He conceded that she was a minor. However, the appellant’s contention was that he had differed with the complainant’s father over land.
[18] In the light of the foregoing summary of the evidence presented before the lower court and the submissions made by the respondent, the issues for determination are:
[a] Whether the prosecution proved the elements of the charge of defilement beyond reasonable doubt; and,
[b] Whether the sentence of 15 years is harsh or excessive in the circumstances.
A. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[19] The appellant was charged, in substantive count, under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8 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.
[20] From the above provisions, the ingredients of defilement are, the age of the victim, the identity of the perpetrator and whether penetration occurred. I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of the Sexual Offences Act:
[21] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, as follows:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[22] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[23] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, in P M M v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[24] The complainant testified before the lower court on 27 th September 2021 and stated that she was 17 years old, having been born on 6 th May 2003. She made reference to her Certificate of Birth, which was produced before the lower court as the Prosecution’s Exhibit 1. The document confirms that the minor was born on 6 th May 2003.
[25] The complainant’s evidence as to her age was corroborated by the evidence of her mother, PW2, who testified that the complainant was 17 years old at the time of the incident. She likewise made reference to the complainant’s Certificate of Birth aforementioned. There was therefore credible evidence in proof of the complainant’s age, noting that this aspect of the prosecution’s case was uncontroverted. Indeed, the appellant conceded that he had known the minor from her birth; and that he was well aware that she was below 18 years of age.
[26] It is immaterial that the minor was slightly over 17 years by five months. In Hadson Ali Mwachongo v Republic [2016] eKLR the Court of Appeal explained that:
"Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year."
[27] Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration:
[28] The evidence of penetration was adduced by the complaint. She narrated how the appellant lured her on the pretext that her mother had sent for her with instructions to collect some maize from the appellant’s home. PW1 further stated that, on arrival at the home of the appellant, he found him alone and she invited her into his house as he left to fetch the maize. On return, the appellant engaged her in conversation and asked her to be his girlfriend; and that when she declined, the appellant locked the main door and took a panga that was behind the door and threatened to cut her with it. He then slapped her on the back with the panga, tore her clothes and defiled her.
[29] The occurrence was promptly reported by the complainant to her mother and appropriate action taken, including seeking medical attention at Ober Level 4 Hospital. PW4 who attended to the complainant at Ober Level 4 Hospital, confirmed that the complainant visited their facility on the 28 th October 2020 and that he personally attended to her. PW4 also testified that the complainant reported that she had been defiled by a person known to her.
[30] PW4 further stated that, on examining the complainant he noted that her hymen broken but had healed. He explained that because the minor was in her menses it was not possible to tell whether she had injuries in her genitalia. He however pointed out that that lab tests conducted revealed the presence of epithelial cells. In his opinion, the minor had been defiled. He produced the treatment notes, P3 Form and lab results in respect of the complainant as the Prosecution’s Exhibits 2, 3 and 4 before the lower court.
[31] In the premises, penetration was proved beyond reasonable doubt, notwithstanding that the minor had no visible injuries in her genitalia. In Mark Oiruri Mose v Republic [2013] eKLR the Court of Appeal stated thus:
“…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ ….” (emphasis added ).
[32] Similarly, in Erick Onyango Ondeng v Republic [2014] eKLR it was held that:
"In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."
[33] Accordingly, the Court of Appeal pointed out in Kassim Ali v Republic [2006] KECA 156 (KLR) that:
“…as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).
So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence.
[34] It is noteworthy too that the prosecution evidence in proof of penetration remained uncontroverted. This is because, in his defence, the appellant narrated the events surrounding his arrest on the 5 th November 2020. In the premises, it is my finding that penetration of the complainant’s genital organ was proved beyond reasonable doubt; and I so find.
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[35] The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[36] On the issue of the appellant’s identity, the complainant told the lower court that she had known him for a long time. Similarly, her mother also testified that the appellant is a person well-known to her. PW2 denied having sent the complainant to collect maize from the appellant. She added that when the complainant returned home that evening, she was crying. She inquired from her what the matter was, and the complainant did not hesitate in reporting to her that she had been defiled by the appellant.
[37] On his part, the appellant readily admitted that he has known the complainant all her life; and that he knows both her parents well, save that he had a land dispute with the complainant’s father. He conceded that he could not make any connection between the land dispute and his arrest and/or prosecution. It is also noteworthy that the incident took place broad daylight and the two had some conversation before the offensive act took place. I am therefore satisfied that the evidence presented by the prosecution proved beyond reasonable doubt that the complainant was defiled by the appellant.
[38] In the premises, it is my finding that all the elements of the offence of defilement were proved by the Prosecution beyond reasonable doubt and therefore the appellant was rightly convicted thereof.
C. On whether the sentence of 15 years is harsh or excessive:
[39] In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:
It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist .
[40] Although the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act, the evidence presented proved that the complainant was 17 years. Consequently, he ought to have been charged under Section 8(4) of the Sexual Offences Act. However, no prejudice was occasioned to the appellant because the sentence imposed by the learned magistrate was 15 years’ imprisonment and therefore within the strictures of Section 8(4) of the Sexual Offences Act. It is the minimum provided for under that section. Indeed, in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) the Supreme Court reiterated that:
Paragraphs 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions ( Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) ( Muruatetu decision ) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution.”
[41] I therefore find no basis for interfering with the sentence imposed by the trial court. In the result, the appeal is dismissed in its entirely.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29 TH DAY OF MAY 2026
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