(Being an appeal from original conviction only in SOA case at Mombasa CMCR (SO) no E003 of 2023 delivered on 6/2/2025 by Hon R. Orora)
1. The Appellant, Joseph Bawa Mwalungo, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act of 2006. The particulars of the offence are that on 3/1/2023 at Gambani area in Likoni sub-county within Mombasa County unlawfully and intentionally caused his penis to penetrate the vagina of A.K a child aged 6 years.
2. The accused person also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars on the 3/1/2023 at Gambani area in Likoni sub-county within Mombasa County he intentionally and unlawfully touched the vagina of MKM a child aged 10 years with his genital organ namely penis.
3. The appellant was convicted on the main count and sentenced to serve 25 years’ imprisonment.
4. The appellant was not satisfied with the judgement of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the learned trial magistrate erred in law and fact by failing to see that the ingredient of identification was not conclusively proven.
ii. That the lower court erred in law and fact by failing to see that the clinic card produced as proof of age was neither credible nor reliable form of proof of age.
iii. That the lower court erred in law and fact by failing to see that the ingredient of penetration was not proved beyond any reasonable doubt.
iv. That the prosecution case was marred with material discrepancies that couldn’t warrant a safe conviction.
Prosecution’s case
6. PW1 AK (minor) the complainant herein testified that she is in grade 1. She stated that the appellant came to their house and did “tabia mbaya” to her using his “dudu” and put it in her vagina. She said that on that day her mother had gone to work. There was no one in the house. Pw1 said that when she left the house the neighbors asked her what was happening in the house and she narrated the whole ordeal as she was crying in pain. Her mother was later informed and she was taken to the hospital and the appellant was arrested and brought to court.
7. PW2 Mbeyu Dzumba stated that she is the complainant’s mother. She said that PW1 was born on 5/5/2015. On 3/1/2023 she went to work in the morning, she cooked for her husband (points at the accused person) and child. In the evening her neighbor told her that PW1 was crying in the house during the day and she was in the house with the appellant. Pw2 said that the child left the house and went to shower. Mam Samuel stopped her and asked her why she was crying, she told her uncle had put his “dudu” in her vagina.
8. PW2 said that she asked the child what had happened and she said uncle defiled her. Pw2 reported to the police the next day and the minor was taken to the hospital. Pw2 said that she has known the appellant for 3 years. On cross-examination pw2 said that when the appellant was asked about the incident, he said he was just playing with the child. The day the child told her what had happened, she did not take her to the hospital on the same day because she did not have money.
9. PW3 Victor Oband Were a clinical officer at Likoni sub-county hospital, said that the minor visited the hospital on 6/1/2023 at 9.00 am. She was 6 years old. The mother informed them that she had had a problem walking since the previous Wednesday. On Thursday she interrogated her and told her that “uncle” put his thing in her hole. PW3 said he spoke with the child, and she confirmed what the mother had told PW3. On examination, her hymen was broken and had fresh cut wounds at 9 o’clock and 3 o’clock. The injuries were tender. The treatment book was produced as PEX-1. PRC form was produced as PEX-3 and P3 form as PEX-2. PW3 stated that her vagina had a swelling. A victim of defilement should go to the hospital within 72 hours. He said that from the injuries the child had, it is confirmed that the child was defiled.
10. PW4 PC Antonella Musyimi stated that on 6/1/2023 the OCS allocated the file to her where she called PW2 to record a statement. Pw4 said that pw1 said that her uncle defiled her. She felt pain and started crying, and he told her to go and shower. The neighbor asked her why she was crying. She explained what had happened. PW4 visited the scene and found the appellant in the house. He was arrested and brought to court. PW4 produced a clinic card as PEX-4.
Defence case
11. DWI Joseph Bawa the accused person, testified under oath that he was arrested at home and informed that he had defiled a child. He said that he lived with the complainant’s mother as his lover. He did not commit the offense.
12. In light of the above, the issues for determination before this court are; -
i. Whether the prosecution proved their case beyond reasonable doubt.
Analysis and Determination
13. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the prosecution proved their case beyond reasonable doubt
14. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“8. Defilement
(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.”
15. Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms;
“11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the
offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
Penetration
16. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case, the minor stated that the appellant did tabia mbaya to her using his dudu. On examination, her hymen was broken, and her vagina had a swelling. This clearly indicates that there was penetration in the minor’s genitals.
17. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995 , the court held: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
18. In the foregoing, I find that the evidence of the victim and that of the Doctor was consistent and sufficient to prove the element of penetration thus, there is no reason to disturb the finding of the trial court. I affirm that penetration was proved beyond reasonable doubt.
Age of the victim
19. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal stated that: -
“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.”
20. The child’s clinic card on record shows that the minor was born on 5/5/2015. I find that the minor was aged 8 years old at the time of the incident.
Positive identification of the assailant
21. PW1 stated that when the incident happened, no one was in the house except her and the appellant. She said that when she left the house, the neighbors saw her and asked her what had happened in the house because they saw her crying, as she was in pain. She narrated the ordeal to the neighbors who later told pw2 the incident. PW2 confirmed that the appellant is her husband and they were living together in the same house with the complainant. PW2 narrated that before she left the house on the material day, she cooked for the appellant together with the complainant.
22. PW2 also confirmed that she asked the appellant about the incident, and he responded that he was just playing with the child. These facts are concrete, and the court is satisfied that the minor was telling the truth. Her evidence is unshaken and the same is corroborated by PW2 as to the occurrence of the offence and positive identification of the offender. This clearly shows that the parties knew each other well and there is no room for mistaken identity. Therefore, the appellant was positively identified by the prosecution's witnesses
23. In his defense, the appellant also confirmed that he was PW2’s lover and that they were living together with the complainant. I therefore find that the appellant’s defense is a mere denial of the truth, thus the same does not hold water.
24. The upshot is that the prosecution proved its case beyond a reasonable doubt.
25. The appeal lacks merit and the same is dismissed.
26. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JUNE 2026.
WENDY KAGENDO - JUDGE
IN THE PRESENCE
THE APPELLANT in person
MS CHEROP FOR THE STATE
BEBORA COURT ASSISTANT
1. The Appellant, Joseph Bawa Mwalungo, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act of 2006. The particulars of the offence are that on 3/1/2023 at Gambani area in Likoni sub-county within Mombasa County unlawfully and intentionally caused his penis to penetrate the vagina of A.K a child aged 6 years.
2. The accused person also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars on the 3/1/2023 at Gambani area in Likoni sub-county within Mombasa County he intentionally and unlawfully touched the vagina of MKM a child aged 10 years with his genital organ namely penis.
3. The appellant was convicted on the main count and sentenced to serve 25 years’ imprisonment.
4. The appellant was not satisfied with the judgement of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the learned trial magistrate erred in law and fact by failing to see that the ingredient of identification was not conclusively proven.
ii. That the lower court erred in law and fact by failing to see that the clinic card produced as proof of age was neither credible nor reliable form of proof of age.
iii. That the lower court erred in law and fact by failing to see that the ingredient of penetration was not proved beyond any reasonable doubt.
iv. That the prosecution case was marred with material discrepancies that couldn’t warrant a safe conviction.
Prosecution’s case
6. PW1 AK (minor) the complainant herein testified that she is in grade 1. She stated that the appellant came to their house and did “tabia mbaya” to her using his “dudu” and put it in her vagina. She said that on that day her mother had gone to work. There was no one in the house. Pw1 said that when she left the house the neighbors asked her what was happening in the house and she narrated the whole ordeal as she was crying in pain. Her mother was later informed and she was taken to the hospital and the appellant was arrested and brought to court.
7. PW2 Mbeyu Dzumba stated that she is the complainant’s mother. She said that PW1 was born on 5/5/2015. On 3/1/2023 she went to work in the morning, she cooked for her husband (points at the accused person) and child. In the evening her neighbor told her that PW1 was crying in the house during the day and she was in the house with the appellant. Pw2 said that the child left the house and went to shower. Mam Samuel stopped her and asked her why she was crying, she told her uncle had put his “dudu” in her vagina.
8. PW2 said that she asked the child what had happened and she said uncle defiled her. Pw2 reported to the police the next day and the minor was taken to the hospital. Pw2 said that she has known the appellant for 3 years. On cross-examination pw2 said that when the appellant was asked about the incident, he said he was just playing with the child. The day the child told her what had happened, she did not take her to the hospital on the same day because she did not have money.
9. PW3 Victor Oband Were a clinical officer at Likoni sub-county hospital, said that the minor visited the hospital on 6/1/2023 at 9.00 am. She was 6 years old. The mother informed them that she had had a problem walking since the previous Wednesday. On Thursday she interrogated her and told her that “uncle” put his thing in her hole. PW3 said he spoke with the child, and she confirmed what the mother had told PW3. On examination, her hymen was broken and had fresh cut wounds at 9 o’clock and 3 o’clock. The injuries were tender. The treatment book was produced as PEX-1. PRC form was produced as PEX-3 and P3 form as PEX-2. PW3 stated that her vagina had a swelling. A victim of defilement should go to the hospital within 72 hours. He said that from the injuries the child had, it is confirmed that the child was defiled.
10. PW4 PC Antonella Musyimi stated that on 6/1/2023 the OCS allocated the file to her where she called PW2 to record a statement. Pw4 said that pw1 said that her uncle defiled her. She felt pain and started crying, and he told her to go and shower. The neighbor asked her why she was crying. She explained what had happened. PW4 visited the scene and found the appellant in the house. He was arrested and brought to court. PW4 produced a clinic card as PEX-4.
Defence case
11. DWI Joseph Bawa the accused person, testified under oath that he was arrested at home and informed that he had defiled a child. He said that he lived with the complainant’s mother as his lover. He did not commit the offense.
12. In light of the above, the issues for determination before this court are; -
i. Whether the prosecution proved their case beyond reasonable doubt.
Analysis and Determination
13. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the prosecution proved their case beyond reasonable doubt
14. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“8. Defilement
(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.”
15. Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms;
“11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the
offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
Penetration
16. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case, the minor stated that the appellant did tabia mbaya to her using his dudu. On examination, her hymen was broken, and her vagina had a swelling. This clearly indicates that there was penetration in the minor’s genitals.
17. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995 , the court held: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
18. In the foregoing, I find that the evidence of the victim and that of the Doctor was consistent and sufficient to prove the element of penetration thus, there is no reason to disturb the finding of the trial court. I affirm that penetration was proved beyond reasonable doubt.
Age of the victim
19. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal stated that: -
“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.”
20. The child’s clinic card on record shows that the minor was born on 5/5/2015. I find that the minor was aged 8 years old at the time of the incident.
Positive identification of the assailant
21. PW1 stated that when the incident happened, no one was in the house except her and the appellant. She said that when she left the house, the neighbors saw her and asked her what had happened in the house because they saw her crying, as she was in pain. She narrated the ordeal to the neighbors who later told pw2 the incident. PW2 confirmed that the appellant is her husband and they were living together in the same house with the complainant. PW2 narrated that before she left the house on the material day, she cooked for the appellant together with the complainant.
22. PW2 also confirmed that she asked the appellant about the incident, and he responded that he was just playing with the child. These facts are concrete, and the court is satisfied that the minor was telling the truth. Her evidence is unshaken and the same is corroborated by PW2 as to the occurrence of the offence and positive identification of the offender. This clearly shows that the parties knew each other well and there is no room for mistaken identity. Therefore, the appellant was positively identified by the prosecution's witnesses
23. In his defense, the appellant also confirmed that he was PW2’s lover and that they were living together with the complainant. I therefore find that the appellant’s defense is a mere denial of the truth, thus the same does not hold water.
24. The upshot is that the prosecution proved its case beyond a reasonable doubt.
25. The appeal lacks merit and the same is dismissed.
26. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JUNE 2026.
WENDY KAGENDO - JUDGE
IN THE PRESENCE
THE APPELLANT in person
MS CHEROP FOR THE STATE
BEBORA COURT ASSISTANT