1. The Appellant herein, Joseph Kilonzo Nduva 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 offence are that on the diverse dates of April 2024 at Kalimoni village, Muthwani sub location, Kalimoni Location in Mbooni East sub-county, intentionally and unlawfully caused his penis to penetrate the vagina of F.K.W a child aged 12 years.
2. The Appellant 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 are that on 27 th day of November 2024 at Kalimoni Village, Muthwani sub-location, Kalimoni location in Mbooni East Sub County, committed an indecent act with a child F.K.W, aged 12 years by touching her vagina with his penis.
3. The Appellant a second main charge of Sexual Assault contrary to Section 5(1) (a)(i) of the Sexual Offences Act. The particulars are that on 27 th day of November 2024 at Kalimoni Village, Muthwani sub-location, Kalimoni location in Mbooni East Sub County, intentionally and unlawfully caused his fingers to penetrate the vagina of (FKW) a child aged 12 years old.
4. On 2/07/2025 following full trial, the learned trial Magistrate acquitted the appellant of the charge of defilement contrary to section 8(1) as read with Section (3), as well as the alternative charge of committing an indecent with a child contrary to Section 11(1), but went on to convict the appellant on the charge of Sexual Assault contrary to section 5(1) (a) (i) and sentenced him to 10 years in imprisonment.
5. Being dissatisfied with the both conviction and sentence, the appellant lodged the present appeal through a Petition of Appeal dated 30 th July 2025. The conviction is being challenged on the following grounds;
i) THAT, the Learned Trial Magistrate erred both in Law and in fact by convicting him on insufficient evidence.
ii) THAT, the Learned Trial Magistrate erred in law and fact by failing to appreciate the contradictions in the prosecution case, relying on witnesses of questionable character.
5. 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.”
Prosecution’s case
6. The complainant PW1, gave direct evidence regarding the events of the material day. She testified that the appellant, whom she knew very well as an employee of her parents, called her into his room, directed her to lie on the bed, pulled down her shorts and inserted his fingers into her vagina. While inside the appellant’s room, her sister Veronica knocked on the door, but the appellant asked her not to respond. However, Veronica peeped through the door and saw her, and that is when the matter was brought to the attention of the parents.
7. In cross examination, the complainant was categorical that the appellant did not have sex with her on the particular day. That she knew him well as he was employed as a herdsman by her grandparents.
8. PW2, V.M who is the sister to the complainant herein. She testified that she became suspicious after the complainant entered the appellant’s room. She proceeded to the room, knocked several times and, upon peeping through an opening, saw the complainant inside the appellant’s room. Initially, the appellant had lied to her that the complainant was not in his house, but after she peeped, she saw her hiding under the bed. The matter was reported to the police station and the appellant later arrested.
9. P.W3 Judith Wambua who is the mother of the complainant testified that shortly after the incident, the complainant made a report to her, stating that the appellant had inserted had inserted his fingers into her vagina.
10. The medical evidence adduced by PW5 a clinical officer at Kisau Sub-county hospital. Her evidence was that she examined the complainant a few hours after the alleged offence was reported to the police. The complainant’s hymen had an old tear. She also had a whitish discharge, which she attributed to a possible infection. She produced the P3 for, Post Rape Care Form as well as the treatment notes as exhibits.
11. PW4, Police Constable Evelyne Njoki Nyaga, was the investigating officer based in Mbumbuni police station. He told the court that on 27 th November 2024 he arrested the accused in a case of defilement. He obtained the victim's birth certificate. He testified that the complainant was born on 10 th April 2012. She produced the birth certificate as exhibit no. 1.
Defence Case
12. DW1, The accused, Joseph Kilonzo Nduva, an adult male, gave sworn testimony in Kiswahili. He stated that he was a farmhand and had worked for the complainant’s family for approximately two years. He recalled that on 27 November 2024 , he proceeded to the farm at about 8.00 a.m. and later, at around noon, herded livestock to the river before returning to the homestead. He stated that upon returning, he found the complainant’s sister looking for the complainant and subsequently joined her in looking for the complainant, whom they found in the house where the accused stated that he previously lived.
13. The accused further testified that shortly thereafter, police officers arrived and arrested him , alleging that he had been with the complainant and had defiled her. He categorically denied the allegation and maintained that the case had been fabricated against him. He challenged the credibility of the prosecution witnesses, asserting that their accounts were untruthful. During cross-examination, he maintained that this was his first encounter with the police and that he did not know the officers who arrested him. He admitted that he had been employed by Musyoka , whom he identified as the complainant’s father, and that he had continued working despite not having received his salary. He further denied harboring any grudge against the complainant or her family and stated that he had worked for the family for two years for a meagre income.
14. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them.
Issues for Determination
i) Whether the prosecution proved its case beyond reasonable doubt the offence of sexual assault against the appellant.
ii) Whether the conviction and the sentence of ten (10) years' imprisonment ought to be upheld, quashed or varied.
Analysis and Determination
15. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
16. Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:
“ The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
17. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:
“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
18. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:
‘Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.”
19. It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only one issue, that is:
a. Whether the offence was proved to the required standards .
20. The next issue is the question of proof of the offence of defilement. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:
8. (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.
21. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act , which provides as follows:
( 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.
(2) It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years
22. In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013 , it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
23. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In this case, the age of the minor was proved by way of production of a birth certificate. At the age of the alleged offence, the complainant was aged 12 years.
24 .On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”
25. The minor testified and identified the appellant as the perpetrator. She stated that she knew him as their employee, and that he lived within their homestead. The minor did not just do identification but recognition. The court is satisfied that the appellant was recognized by the minor and PW 2 and PW3, who knew and lived with him.
26. The last issue is penetration. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
27. In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) , the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:
“ 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.”
28. The history given by the complainant was that the appellant told her to lie down and that he removed her pant and inserted his fingers in her vagina.
29. At no point in time did she state that he inserted his penis into her private parts. Thus I find that there was no evidence of penal penetration, and the trial magistrate was right in acquitting the appellant on the main charge of defilement contrary to section 8(1) as read with section 8(2) of the sexual offences Act
30. On the alternative charge, the trial magistrate went on to acquit the appellant on this charge, as the charge is not supported by the evidence. The charge as drawn indicates that the appellant touched the complainant’s vagina with his penis. There being no evidence of contact of the complainant’s vagina and the appellant’s penis, the findings of the trial magistrate on this charge are upheld.
31. Now turning to the second charge of Sexual Assault contrary to Section 5(1)(a)(i) of the Sexual Offences Act, the appellant is said to have inserted his fingers in the vagina of the complainant. The prosecution was therefore required to prove beyond reasonable doubt that:
• the complainant was intentionally and unlawfully penetrated by the appellant's fingers;
• the appellant was positively identified as the perpetrator; and
• the act occurred in the circumstances alleged in the charge sheet.
32. I wish to reiterate the findings of the Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different conclusion”
33. Having independently re-evaluated the evidence on record, this Court notes that the complainant (PW1) gave direct evidence regarding the events of the material day. She testified that the appellant, whom she knew well as an employee of her grandparents, called her into his room, directed her to lie on the bed, pulled down her shorts and inserted his fingers into her vagina. Her testimony was clear, consistent and unequivocal regarding the nature of the act complained of.
34 . The appellant's identity was never in dispute. The complainant knew him before the incident, having lived with him within the same homestead where he worked as a herdsman. This was therefore a case of recognition rather than identification of a stranger. The possibility of mistaken identity was effectively eliminated.
35. The complainant's account was not left unsupported. PW2 testified that she became suspicious after the complainant entered the appellant's room. She proceeded to the room, knocked several times and, upon peeping through an opening, observed the complainant inside the appellant's room. Although PW2 did not witness the actual act of penetration, her evidence corroborated the complainant's account regarding the presence of both the complainant and the appellant inside the room at the material time.
36. PW3 further testified that shortly after the incident the complainant made a report to her, stating that the appellant had inserted his fingers into her vagina. This was the first report made by the complainant and lends support to the consistency of her account.
37. The medical evidence adduced through PW5 established that there was no evidence of penile penetration. The learned trial magistrate properly appreciated this distinction and correctly found that the evidence did not sustain the main charge of defilement. However, the absence of penile penetration did not negate the allegation of digital penetration forming the basis of Count II. The medical findings were therefore not inconsistent with the complainant's testimony regarding finger penetration.
38. This Court is satisfied that the learned trial magistrate carefully distinguished between the offences charged. Rather than stretching the evidence to sustain the offence of defilement, the trial court acquitted the appellant of the main count and the alternative count, but convicted him only on the offence that the evidence disclosed. That approach demonstrates a proper appreciation of the law and the evidence.
39. It is also significant that the complainant's evidence remained substantially consistent from the time of reporting the matter to her mother, through the police investigations, and during her testimony before the trial court. No material inconsistency has been pointed out that would render her evidence unreliable.
40. The appellant, on the other hand, merely denied the allegations. While he suggested that the case had been fabricated, he did not disclose any existing grudge, disagreement or ulterior motive that would have prompted the complainant or her family to falsely implicate him in a serious sexual offence. His defence amounted to a bare denial and did not cast reasonable doubt upon the prosecution case.
41. The trial court, having had the advantage of seeing and hearing the witnesses testify, believed the complainant and found her to be truthful. While this Court is not bound by those findings, nothing on the record suggests that the learned trial magistrate misdirected himself in assessing her credibility. On the contrary, the record demonstrates that the trial court exercised caution, analysed the evidence relating to each count separately and only convicted where the evidence met the requisite standard of proof.
42. Having independently reconsidered the evidence, this Court reaches the same conclusion as the learned trial magistrate. The prosecution discharged its burden of proving beyond reasonable doubt that the appellant intentionally and unlawfully inserted his fingers into the complainant's vagina. Consequently, the appeal is without merit and is hereby dismissed.
43. The appellant also challenged the sentence imposed by the trial court.
44. The principles governing appellate interference with sentence are well settled. An appellate court will not interfere merely because it would have imposed a different sentence. It will only interfere where the trial court acted upon wrong principles, overlooked relevant considerations, considered irrelevant matters, or imposed a sentence that is illegal or manifestly excessive.
45. The appellant was convicted of the offence of sexual assault contrary to section 5(1)(a)(i) of the Sexual Offences Act. Section 5(2) of the Act provides that a person convicted of that offence shall be liable to imprisonment for a term of not less than ten years…
46. The learned trial magistrate sentenced the appellant to ten (10) years' imprisonment. That sentence is the statutory minimum prescribed by law. The record does not disclose any misdirection on the part of the trial court nor any circumstance that would justify interference by this Court.
47. The Court has also considered the appellant's mitigation as reflected in the record. While mitigation is an important component of sentencing, it cannot override a mandatory statutory minimum prescribed by Parliament. In the absence of any constitutional challenge to the sentence or any demonstrated error in principle, this Court has no lawful basis upon which to reduce the sentence imposed.
48. Consequently, I find that the sentence of ten (10) years' imprisonment was lawful, proportionate and properly imposed. The appeal against sentence therefore fails.
Final determination
49. I find no basis upon which this Court may interfere with either the conviction or the sentence.
50. Accordingly, the appeal lacks merit and is hereby dismissed in its entirety.
Orders
In the result, I make the following orders:
a. The appeal against conviction is hereby dismissed.
b. The conviction for the offence of Sexual Assault contrary to section 5(1) (a) (i) of the Sexual Offences Act is hereby upheld.
c. The sentence of ten (10) years' imprisonment imposed by the trial court is hereby affirmed.
d. The appellant shall continue serving the sentence imposed unless otherwise lawfully released.
e. Right of appeal explained.
It is so ordered.
DELIVERED, DATED AND SIGNED ON THIS 17 TH SEPTEMBER, 2026.
JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU.
JUDGE
In the presence of: -
Miss Omol for the State
Appellant in person.
Court Assistant – Mr. Kibet.
MAKUENI HCCRA NO.E052 OF 20252
2. The Appellant 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 are that on 27 th day of November 2024 at Kalimoni Village, Muthwani sub-location, Kalimoni location in Mbooni East Sub County, committed an indecent act with a child F.K.W, aged 12 years by touching her vagina with his penis.
3. The Appellant a second main charge of Sexual Assault contrary to Section 5(1) (a)(i) of the Sexual Offences Act. The particulars are that on 27 th day of November 2024 at Kalimoni Village, Muthwani sub-location, Kalimoni location in Mbooni East Sub County, intentionally and unlawfully caused his fingers to penetrate the vagina of (FKW) a child aged 12 years old.
4. On 2/07/2025 following full trial, the learned trial Magistrate acquitted the appellant of the charge of defilement contrary to section 8(1) as read with Section (3), as well as the alternative charge of committing an indecent with a child contrary to Section 11(1), but went on to convict the appellant on the charge of Sexual Assault contrary to section 5(1) (a) (i) and sentenced him to 10 years in imprisonment.
5. Being dissatisfied with the both conviction and sentence, the appellant lodged the present appeal through a Petition of Appeal dated 30 th July 2025. The conviction is being challenged on the following grounds;
i) THAT, the Learned Trial Magistrate erred both in Law and in fact by convicting him on insufficient evidence.
ii) THAT, the Learned Trial Magistrate erred in law and fact by failing to appreciate the contradictions in the prosecution case, relying on witnesses of questionable character.
5. 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.”
Prosecution’s case
6. The complainant PW1, gave direct evidence regarding the events of the material day. She testified that the appellant, whom she knew very well as an employee of her parents, called her into his room, directed her to lie on the bed, pulled down her shorts and inserted his fingers into her vagina. While inside the appellant’s room, her sister Veronica knocked on the door, but the appellant asked her not to respond. However, Veronica peeped through the door and saw her, and that is when the matter was brought to the attention of the parents.
7. In cross examination, the complainant was categorical that the appellant did not have sex with her on the particular day. That she knew him well as he was employed as a herdsman by her grandparents.
8. PW2, V.M who is the sister to the complainant herein. She testified that she became suspicious after the complainant entered the appellant’s room. She proceeded to the room, knocked several times and, upon peeping through an opening, saw the complainant inside the appellant’s room. Initially, the appellant had lied to her that the complainant was not in his house, but after she peeped, she saw her hiding under the bed. The matter was reported to the police station and the appellant later arrested.
9. P.W3 Judith Wambua who is the mother of the complainant testified that shortly after the incident, the complainant made a report to her, stating that the appellant had inserted had inserted his fingers into her vagina.
10. The medical evidence adduced by PW5 a clinical officer at Kisau Sub-county hospital. Her evidence was that she examined the complainant a few hours after the alleged offence was reported to the police. The complainant’s hymen had an old tear. She also had a whitish discharge, which she attributed to a possible infection. She produced the P3 for, Post Rape Care Form as well as the treatment notes as exhibits.
11. PW4, Police Constable Evelyne Njoki Nyaga, was the investigating officer based in Mbumbuni police station. He told the court that on 27 th November 2024 he arrested the accused in a case of defilement. He obtained the victim's birth certificate. He testified that the complainant was born on 10 th April 2012. She produced the birth certificate as exhibit no. 1.
Defence Case
12. DW1, The accused, Joseph Kilonzo Nduva, an adult male, gave sworn testimony in Kiswahili. He stated that he was a farmhand and had worked for the complainant’s family for approximately two years. He recalled that on 27 November 2024 , he proceeded to the farm at about 8.00 a.m. and later, at around noon, herded livestock to the river before returning to the homestead. He stated that upon returning, he found the complainant’s sister looking for the complainant and subsequently joined her in looking for the complainant, whom they found in the house where the accused stated that he previously lived.
13. The accused further testified that shortly thereafter, police officers arrived and arrested him , alleging that he had been with the complainant and had defiled her. He categorically denied the allegation and maintained that the case had been fabricated against him. He challenged the credibility of the prosecution witnesses, asserting that their accounts were untruthful. During cross-examination, he maintained that this was his first encounter with the police and that he did not know the officers who arrested him. He admitted that he had been employed by Musyoka , whom he identified as the complainant’s father, and that he had continued working despite not having received his salary. He further denied harboring any grudge against the complainant or her family and stated that he had worked for the family for two years for a meagre income.
14. The appeal was canvassed by way of written submissions which have been duly considered and there is no need to rehash them.
Issues for Determination
i) Whether the prosecution proved its case beyond reasonable doubt the offence of sexual assault against the appellant.
ii) Whether the conviction and the sentence of ten (10) years' imprisonment ought to be upheld, quashed or varied.
Analysis and Determination
15. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.”
16. Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:
“ The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.”
17. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:
“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.”
18. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. Conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:
‘Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.”
19. It is with this background that the court must first analyse the evidence and the proceedings. Then it must address the issues and make findings on each of the issues. The appeal raises only one issue, that is:
a. Whether the offence was proved to the required standards .
20. The next issue is the question of proof of the offence of defilement. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as follows:
8. (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.
21. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act , which provides as follows:
( 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.
(2) It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years
22. In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013 , it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
23. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In this case, the age of the minor was proved by way of production of a birth certificate. At the age of the alleged offence, the complainant was aged 12 years.
24 .On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other”
25. The minor testified and identified the appellant as the perpetrator. She stated that she knew him as their employee, and that he lived within their homestead. The minor did not just do identification but recognition. The court is satisfied that the appellant was recognized by the minor and PW 2 and PW3, who knew and lived with him.
26. The last issue is penetration. Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
27. In the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) , the Court of Appeal [Onyango Otieno, Azangalala & Kantai JJ.A ] held as follows:
“ 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.”
28. The history given by the complainant was that the appellant told her to lie down and that he removed her pant and inserted his fingers in her vagina.
29. At no point in time did she state that he inserted his penis into her private parts. Thus I find that there was no evidence of penal penetration, and the trial magistrate was right in acquitting the appellant on the main charge of defilement contrary to section 8(1) as read with section 8(2) of the sexual offences Act
30. On the alternative charge, the trial magistrate went on to acquit the appellant on this charge, as the charge is not supported by the evidence. The charge as drawn indicates that the appellant touched the complainant’s vagina with his penis. There being no evidence of contact of the complainant’s vagina and the appellant’s penis, the findings of the trial magistrate on this charge are upheld.
31. Now turning to the second charge of Sexual Assault contrary to Section 5(1)(a)(i) of the Sexual Offences Act, the appellant is said to have inserted his fingers in the vagina of the complainant. The prosecution was therefore required to prove beyond reasonable doubt that:
• the complainant was intentionally and unlawfully penetrated by the appellant's fingers;
• the appellant was positively identified as the perpetrator; and
• the act occurred in the circumstances alleged in the charge sheet.
32. I wish to reiterate the findings of the Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different conclusion”
33. Having independently re-evaluated the evidence on record, this Court notes that the complainant (PW1) gave direct evidence regarding the events of the material day. She testified that the appellant, whom she knew well as an employee of her grandparents, called her into his room, directed her to lie on the bed, pulled down her shorts and inserted his fingers into her vagina. Her testimony was clear, consistent and unequivocal regarding the nature of the act complained of.
34 . The appellant's identity was never in dispute. The complainant knew him before the incident, having lived with him within the same homestead where he worked as a herdsman. This was therefore a case of recognition rather than identification of a stranger. The possibility of mistaken identity was effectively eliminated.
35. The complainant's account was not left unsupported. PW2 testified that she became suspicious after the complainant entered the appellant's room. She proceeded to the room, knocked several times and, upon peeping through an opening, observed the complainant inside the appellant's room. Although PW2 did not witness the actual act of penetration, her evidence corroborated the complainant's account regarding the presence of both the complainant and the appellant inside the room at the material time.
36. PW3 further testified that shortly after the incident the complainant made a report to her, stating that the appellant had inserted his fingers into her vagina. This was the first report made by the complainant and lends support to the consistency of her account.
37. The medical evidence adduced through PW5 established that there was no evidence of penile penetration. The learned trial magistrate properly appreciated this distinction and correctly found that the evidence did not sustain the main charge of defilement. However, the absence of penile penetration did not negate the allegation of digital penetration forming the basis of Count II. The medical findings were therefore not inconsistent with the complainant's testimony regarding finger penetration.
38. This Court is satisfied that the learned trial magistrate carefully distinguished between the offences charged. Rather than stretching the evidence to sustain the offence of defilement, the trial court acquitted the appellant of the main count and the alternative count, but convicted him only on the offence that the evidence disclosed. That approach demonstrates a proper appreciation of the law and the evidence.
39. It is also significant that the complainant's evidence remained substantially consistent from the time of reporting the matter to her mother, through the police investigations, and during her testimony before the trial court. No material inconsistency has been pointed out that would render her evidence unreliable.
40. The appellant, on the other hand, merely denied the allegations. While he suggested that the case had been fabricated, he did not disclose any existing grudge, disagreement or ulterior motive that would have prompted the complainant or her family to falsely implicate him in a serious sexual offence. His defence amounted to a bare denial and did not cast reasonable doubt upon the prosecution case.
41. The trial court, having had the advantage of seeing and hearing the witnesses testify, believed the complainant and found her to be truthful. While this Court is not bound by those findings, nothing on the record suggests that the learned trial magistrate misdirected himself in assessing her credibility. On the contrary, the record demonstrates that the trial court exercised caution, analysed the evidence relating to each count separately and only convicted where the evidence met the requisite standard of proof.
42. Having independently reconsidered the evidence, this Court reaches the same conclusion as the learned trial magistrate. The prosecution discharged its burden of proving beyond reasonable doubt that the appellant intentionally and unlawfully inserted his fingers into the complainant's vagina. Consequently, the appeal is without merit and is hereby dismissed.
43. The appellant also challenged the sentence imposed by the trial court.
44. The principles governing appellate interference with sentence are well settled. An appellate court will not interfere merely because it would have imposed a different sentence. It will only interfere where the trial court acted upon wrong principles, overlooked relevant considerations, considered irrelevant matters, or imposed a sentence that is illegal or manifestly excessive.
45. The appellant was convicted of the offence of sexual assault contrary to section 5(1)(a)(i) of the Sexual Offences Act. Section 5(2) of the Act provides that a person convicted of that offence shall be liable to imprisonment for a term of not less than ten years…
46. The learned trial magistrate sentenced the appellant to ten (10) years' imprisonment. That sentence is the statutory minimum prescribed by law. The record does not disclose any misdirection on the part of the trial court nor any circumstance that would justify interference by this Court.
47. The Court has also considered the appellant's mitigation as reflected in the record. While mitigation is an important component of sentencing, it cannot override a mandatory statutory minimum prescribed by Parliament. In the absence of any constitutional challenge to the sentence or any demonstrated error in principle, this Court has no lawful basis upon which to reduce the sentence imposed.
48. Consequently, I find that the sentence of ten (10) years' imprisonment was lawful, proportionate and properly imposed. The appeal against sentence therefore fails.
Final determination
49. I find no basis upon which this Court may interfere with either the conviction or the sentence.
50. Accordingly, the appeal lacks merit and is hereby dismissed in its entirety.
Orders
In the result, I make the following orders:
a. The appeal against conviction is hereby dismissed.
b. The conviction for the offence of Sexual Assault contrary to section 5(1) (a) (i) of the Sexual Offences Act is hereby upheld.
c. The sentence of ten (10) years' imprisonment imposed by the trial court is hereby affirmed.
d. The appellant shall continue serving the sentence imposed unless otherwise lawfully released.
e. Right of appeal explained.
It is so ordered.
DELIVERED, DATED AND SIGNED ON THIS 17 TH SEPTEMBER, 2026.
JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU.
JUDGE
In the presence of: -
Miss Omol for the State
Appellant in person.
Court Assistant – Mr. Kibet.
MAKUENI HCCRA NO.E052 OF 20252