1. This appeal arises from the judgment of the trial court, Hon. S. Mwangi (SRM) in Murang’a MCSO No. E012 of 2022, delivered on 17.10.2022.
2. The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on 19.05.2022, at Kiangochi village, Muchungucha Location of Murang’a East Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of SMK, a girl aged seven (7) years. The appellant was convicted and sentenced to life imprisonment.
3. There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that at Kiangochi village, Muchungucha Location of Murang’a East Sub-County within Nyeri County of the Republic of Kenya, the appellant intentionally and unlawfully caused his penis to come into contact with the vagina of SMK, a girl aged seven (7) years.
4. The Appellant, aggrieved, lodged this appeal vide a petition of appeal dated 31.10.2022 on the following grounds:
a) That the trial magistrate erred in law and fact by convicting the appellant without corroborating evidence, by relying on the uncorroborated evidence of the minor.
b) That the trial magistrate erred in law and fact by convicting the appellant despite the prosecution’s case being full of inconsistencies.
c) That the learned magistrate erred in law and fact by imposing harsh sentence.
Proceedings and Evidence
5. The Appellant was arraigned in court on 25.05.2022. The appellant was granted Ksh. 300,000/= bond with one surety of the same amount. He was supplied with witness statements and supporting documents. The matter was listed for hearing on 4.08.2022.
6. PW1 was John Ndereva Mwangi, a Clinical Officer working at Murang’a Level 5 hospital. He held a diploma in Clinical Medicine and Surgery from KMTC Machakos. He had a card for SM aged 7 years. The minor was brought by the mother and she had been defiled by person known to her. High vaginal swap showed red blood cell, pus cells and bacteria cells. The hymen was freshly broken, had bruises, and vagina was swollen. On urinalysis there was pus and no spermatozoa. The minor was treated and discharged. She was treated and given post exposure prophylaxis. They used the information to fill the P3 and the PRC. The incident occurred on 19.05.2022. On cross examination, he stated that they first examined genitalia before filling the P3 form.
7. PW2 was the victim’s mother and a business woman. She testified that the complainant is her first-born daughter, whom she gave birth to on 23.04.2015 and it was indicated in exhibit 1, the birth certificate. On 20.5.2022, the victim called her as she wanted to urinate. She took her to the toilet and after they went to the house she told the mother that the panty was squeezing her and wanted to remove them. She checked the trouser and it was not wet. When she was washing the clothes the next day, they had blood stains. She kept the wet panty aside waiting for the victim to wake up. She asked if she was okay, she stated she was. She gave her tea, and she went to the toilet. She told her it was Jose who caused her the pain. She knew Jose, the appellant who had worked for them for 4 years. She stated that this was Jose of Wakanyi. She identified the appellant in the dock.
8. The minor reported that when she came from school, Jose asked her to remove her panty and lie on bed. She did not ask anything. She reported to her grandmother, Magdalene Muthoni. She directed her to mama MSO. They were shocked that it was Jose of Wakanyi. They reported the matter to Kiagochi Patrol Base and were referred to Murang’a Police Station. They were taken to hospital by Wambui where the minor was examined. She also went for social counselling. The appellant had been their shamba boy from 2018 or 2019 for 4 years.
9. On cross examination, she stated that after school on 19 th she attended a fellowship and found the minor sleeping. This was unusual. The following day the minor went to school as usual. The grandfather escorted the minor to the motorbike. She started complaining at night. She took the minor to hospital on 21 st . On the same day she learnt of the offence. On re-examination, she stated that the incident happened on Thursday.
10. PW3 was the minor. The court conducted and found her credible to give sworn evidence. She then gave evidence in Kiswahili. She told the court on oath that she came to say what Jose did to her. She had left school at 4 pm with two friends WX and MX. She took tea, and went to look for her friends after washing her bag. She asked Jose where WXXX was but the appellant told her he did not know where they went. As she was leaving the appellant called her to the house, ordered her to remove her panty and he did bad manners to her.
11. The appellant removed his jeans and underwear whereas removed her underwear and did bad manners to her. The minor was lying in bed facing up as the appellant lay on her facing down. He put the part he uses to urinate into the place she uses to urinate. The panty was so dirty. After the appellant left, he just sat there. The victim went to sleep.
12. She told the mother later at night that the panty was squeezing her and she put in the Karai. She woke up the next day and took tea and bread. The mother woke her up and called her to clothes washing place. The mother asked her what the problem was and she was in shock and told her it was Jose. The mother told other people who came to ask her what happened and she told them. They went to the police station and later to hospital. She then recorded her statement. She was examined and given medication. She identified the appellant on the dock.
13. She stated that the mother told her she could die and therefore she told her it was the appellant who did the act. She stated that she was in pain. On re-examination, she stated that she told the truth and none told her what to do.
14. PW4 was the minor’s father. On 19.05.2022 the daughter came home from school, washed her bag, and went to play. She used to play with other children. She did not take three minutes after she left and the witness also left to the farm. When he came back he found her sleeping. She denied that she was sick. The following day he asked the mother as the minor was walking strangely.
15. She stated that on Saturday when she went to play, Joseph Kimani told her to lie on the bed, remove her clothes and defiled her. The matter was reported at Kiagochi Police Patrol Base but they were referred to Murang’a hospital. They went to look for the appellant as he was a neigbour but was told that he had moved to Kamwiru, where he was arrested. The appellant used to work with them. He identified the appellant in the dock.
16. On cross examination he stated that the minor went playing and they found her sleeping. He asked her if she was sick but she denied. She also denied when asked by the mother. He stated that he observed her walking in a strange way when she was going to the toilet. He stated that they thought it was periods but when they went to hospital they were told what happened.
17. PW5 was PC Michael Nyang attached to Ngakuwe Police Post who was hitherto attached to Kiagochi patrol base. A report was made on 21.05.2022 at 9.00 am when a couple and a small child reported that their girl had been defiled by Jose, who was also their employee and a neighbour. They interrogated the minor and noted that on 19 th , she came from school and went to play but did not find playmates. Jose called her to the house and did bad manners to her. They booked the same in the occurrence book and referred to Murang’a Police Station. The assailant had already escaped from the area. On 22 nd the mother came and told them that she knew where the appellant was. In company of PC Aloice Kiptoo, and PC Moses Mbogo, the appellant was identified and arrested. He was identified in the dock.
18. On cross examination he stated that they sent the matter to Murang’a since the minor was a female and there are female officers in Murang’a. They went to his residence on 21 st and found he had already escaped. They found the appellant at Igoro. They concluded that he had escaped since he left his usual residence. They found the appellant and three others feeding cattle. The appellant’s grandfather who was the employer had not seen him.
19. PW6 was PC(W) Wambui Wambui of Murang’a Police Station performing crime office duties. On 21.05.2022, they received a report that the appellant had defiled the minor herein, aged 7 years. The appellant got the minor when she was playing and got to defile her. The complainant and the mother led the police and the appellant was thereafter arrested. The complainant was born on 23.04.2015. The offence occurred on 19 th but the minor informed the parents on 21 st . The medical records indicated that she was defiled.
20. In cross examination by the appellant, she stated that the appellant was not taken for examination for no reason. The officers arrested the appellant and took him to Kiangochi Police Post.
21. The court found that the appellant had a case to answer and complied with Section 211 of the Criminal Procedure Code. The appellant posited that he was to give unsworn statement and call 4 witnesses. He stated that he used to work for the complainant’s grandfather as a shamba boy. He worked for the complainant’s mother but it is the grandfather who paid him. He used to work for a salary of Ksh. 6,000/= until he realized that this meant that this was Ksh. 200/=. He continued working but looking for work. He got a job on 25.4.222 and he stopped working. He went to Nairobi for a short time and came back and stayed without a job.
22. On 19.5.2022 at 4 pm, one Edward called him to report at 8.00 am at Kamuiru. He went to the grandmother’s house, took tea and left before 8.00 am. Edward told him to wait for a while. He came past 8.00 am and employed him as a shamba boy and he started working the same day. He went home, 5 km away, and met the complainant and her mother who greeted him and asked him where he was from. He asked for money and was taken to Kamuiru. He stated that he was framed for stopping to work.
23. DW2 was Esther Wakanyi, the appellant’s grandmother. She stated that the appellant left home and went to work elsewhere and that is when he was arrested. It was Eliud who called him on 19.05.2022 and he started working on the same day. He had worked for three days and was arrested on the 5 th day.
24. On cross examination she stated that the appellant left home at 6.00 am and returned at 6.30 pm. He took his clothes and left. The appellant lives on his own. His house is 5m away. She called a boda boda who came for him. On re-examination, she stated that she did not see SM on that day.
25. DW3 was Eliud Njoroge Ng’ang’a who stated that he employed the appellant who worked the whole day and stayed for the whole day. The appellant worked for 5 days. On cross examination, he stated that on 19.05.2022, he called the appellant on phone though he had no evidence of this. He stated that the appellant arrived at 7 am and left as 7 pm and came back at 8 pm.
26. DW4 was Benard Indili residing at Kamuiru and stated that he knew the appellant. The appellant reported on 19.05.2022 with him and left on 23.05.2022. On cross examination, he stated that they worked together until 5 pm. He went back for his clothes, bathed and left go for home to return later at 8 pm.
27. DW5 was Macleod Angaza, who testified that he knew the appellant for a short period. The appellant worked from 7 am until 5 pm when they closed. He went at 6 pm to pick his clothes. On cross-examination, he stated that he was sure the appellant started working on 19.05.2022.
Impugned Judgment
28. The court analyzed the evidence. The court identified the three ingredients that must be provide under section 8 of the Sexual Offences Act. This are as set out in the case of Charles Wamukoya Karani v. Republic , Criminal Appeal No. 72 of 2013, where 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. The court also relied on the case of Alfayo Gombe Okello V Republic (2010) eKLR where the court frowned upon estimates of age and relied on the case of Dennis Abuya V Republic Criminal Appeal Number 164 OF 2019 . He found that the age of 7 years was proved.
29. The court found that penetration was proved. The court relied on the case of Cleophas Otieono Wamunga V republic , Criminal Appeal Number 20 of 1989 KLR 424. It found that the alibi was not water tight. Reliance was placed on the case of Wangombe v Republic (1976-80) LKLR 1683. The court found that the charges were proved. He mitigated that he had none who depended on him and had a grandmother who had hypertension. The appellant was sentenced to life imprisonment.
Submissions
30. The Appellant filed submissions dated 9.12.2025. It was submitted that the offence of defilement was not proved. He cited inter alia Fappytoin Mutuku Ngui v Re;public (2012) eKLR and supported that the ingredients were not proved. It was his submission that the evidence of the minor was not corroborated.
31. He also submitted that sentence of life imprisonment should be relooked at and reduced. He relied among others on the case of Nyeri COACRA No. 186 of 2010 PKW v Republic.
32. The Respondent filed submissions on 29.12.2025. The evidence, it was submitted was credible. Reliance was placed on section 124 of the Evidence Act. It was also submitted that there were no inconsistencies. On sentence, that the sentence was proper and according to the law.
Analysis
33. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. 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.
34. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
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. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings 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 the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
35. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it 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.
36. Brennan J, addressed the standard of proof required in such cases, in the United States Supreme Court decision in 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.
37. 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.
38. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
39. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
40. 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 standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carry a lifelong stigma and can only be justified based on indisputable evidence.
The Law
41. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:
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 .
(5) …
(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.
42. These key ingredients of the offence of defilement, were elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as follows:
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
43. 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 court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.
44. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic , Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:
Age of the victim of the 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.
45. The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR) , addressed this aspect as follows:
In the case of Kaingu Elias Kasomo V R , Malindi CR. NO. 504 of 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence.
However, as the Court clarified in Tumaini Maasai Mwanya V R , MSA CR.A. No. 364 of 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age.
46. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that:
In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.
47. The minor was 7 years. The birth certificate indicated that the minor was 7 years having been born on 23.04.2015. She was in Grade 2. Age was not disputed in cross examination. The age of the minor was thus proved. This leaves three aspects. The appellant gave what appears to be an alibi defence. It is however not an alibi at all. It is a non-alibi alibi. The appellant, as an accused, has no duty to help the state prove its case, as he remains innocent until proven otherwise. The accused was arraigned and denied the charges. A plea of not guilty was consequently recorded. In the case of R vs. Lifchus {1997}3 SCR 320 , the Supreme Court of Canada explained the standard of proof as doth:-
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.
48. The offence is said to have occurred between 4 pm and 7 pm. The minor indicated that this was on 19.05.2022 at 1730 hours. The appellant indicated that he was called on 19.05.2022 to report on the following day at 8 am. The following day is 20.05.2022. The appellant thus did not give an alibi related to his whereabouts. The minor stated that she went to play in the evening after school on the said date when the incident happened. This was corroborated by PW2 and PW4. In the case of Wachera v Republic [2025] KEHC 11843 (KLR) , this court posited as follows:
43. The court was wrong in blaming the appellant on having the alibi at the tail end. However, the court was correct in finding that these questions were not put to the witnesses. This is important since the offence occurred at home.
44.The court found that the appellant and the minor lived in the same house. The appellant was the perpetrator. In this case, there are no doubts on who the perpetrator was. It was the Appellant. The appellant raised a defense of alibi. His defence was supported by witnesses. The state had an opportunity to call rebuttal evidence which they did not call. With reference to alibi evidence, the court of appeal in Erick Otieno Meda vs. Republic [2019] eKLR stated thus:
In considering an alibi, we observe that:
a. An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.
b. An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.
c. The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.
d. The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail.
49. A successful alibi defence entirely rules out the accused as the perpetrator of
[...truncated]
2. The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on 19.05.2022, at Kiangochi village, Muchungucha Location of Murang’a East Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of SMK, a girl aged seven (7) years. The appellant was convicted and sentenced to life imprisonment.
3. There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that at Kiangochi village, Muchungucha Location of Murang’a East Sub-County within Nyeri County of the Republic of Kenya, the appellant intentionally and unlawfully caused his penis to come into contact with the vagina of SMK, a girl aged seven (7) years.
4. The Appellant, aggrieved, lodged this appeal vide a petition of appeal dated 31.10.2022 on the following grounds:
a) That the trial magistrate erred in law and fact by convicting the appellant without corroborating evidence, by relying on the uncorroborated evidence of the minor.
b) That the trial magistrate erred in law and fact by convicting the appellant despite the prosecution’s case being full of inconsistencies.
c) That the learned magistrate erred in law and fact by imposing harsh sentence.
Proceedings and Evidence
5. The Appellant was arraigned in court on 25.05.2022. The appellant was granted Ksh. 300,000/= bond with one surety of the same amount. He was supplied with witness statements and supporting documents. The matter was listed for hearing on 4.08.2022.
6. PW1 was John Ndereva Mwangi, a Clinical Officer working at Murang’a Level 5 hospital. He held a diploma in Clinical Medicine and Surgery from KMTC Machakos. He had a card for SM aged 7 years. The minor was brought by the mother and she had been defiled by person known to her. High vaginal swap showed red blood cell, pus cells and bacteria cells. The hymen was freshly broken, had bruises, and vagina was swollen. On urinalysis there was pus and no spermatozoa. The minor was treated and discharged. She was treated and given post exposure prophylaxis. They used the information to fill the P3 and the PRC. The incident occurred on 19.05.2022. On cross examination, he stated that they first examined genitalia before filling the P3 form.
7. PW2 was the victim’s mother and a business woman. She testified that the complainant is her first-born daughter, whom she gave birth to on 23.04.2015 and it was indicated in exhibit 1, the birth certificate. On 20.5.2022, the victim called her as she wanted to urinate. She took her to the toilet and after they went to the house she told the mother that the panty was squeezing her and wanted to remove them. She checked the trouser and it was not wet. When she was washing the clothes the next day, they had blood stains. She kept the wet panty aside waiting for the victim to wake up. She asked if she was okay, she stated she was. She gave her tea, and she went to the toilet. She told her it was Jose who caused her the pain. She knew Jose, the appellant who had worked for them for 4 years. She stated that this was Jose of Wakanyi. She identified the appellant in the dock.
8. The minor reported that when she came from school, Jose asked her to remove her panty and lie on bed. She did not ask anything. She reported to her grandmother, Magdalene Muthoni. She directed her to mama MSO. They were shocked that it was Jose of Wakanyi. They reported the matter to Kiagochi Patrol Base and were referred to Murang’a Police Station. They were taken to hospital by Wambui where the minor was examined. She also went for social counselling. The appellant had been their shamba boy from 2018 or 2019 for 4 years.
9. On cross examination, she stated that after school on 19 th she attended a fellowship and found the minor sleeping. This was unusual. The following day the minor went to school as usual. The grandfather escorted the minor to the motorbike. She started complaining at night. She took the minor to hospital on 21 st . On the same day she learnt of the offence. On re-examination, she stated that the incident happened on Thursday.
10. PW3 was the minor. The court conducted and found her credible to give sworn evidence. She then gave evidence in Kiswahili. She told the court on oath that she came to say what Jose did to her. She had left school at 4 pm with two friends WX and MX. She took tea, and went to look for her friends after washing her bag. She asked Jose where WXXX was but the appellant told her he did not know where they went. As she was leaving the appellant called her to the house, ordered her to remove her panty and he did bad manners to her.
11. The appellant removed his jeans and underwear whereas removed her underwear and did bad manners to her. The minor was lying in bed facing up as the appellant lay on her facing down. He put the part he uses to urinate into the place she uses to urinate. The panty was so dirty. After the appellant left, he just sat there. The victim went to sleep.
12. She told the mother later at night that the panty was squeezing her and she put in the Karai. She woke up the next day and took tea and bread. The mother woke her up and called her to clothes washing place. The mother asked her what the problem was and she was in shock and told her it was Jose. The mother told other people who came to ask her what happened and she told them. They went to the police station and later to hospital. She then recorded her statement. She was examined and given medication. She identified the appellant on the dock.
13. She stated that the mother told her she could die and therefore she told her it was the appellant who did the act. She stated that she was in pain. On re-examination, she stated that she told the truth and none told her what to do.
14. PW4 was the minor’s father. On 19.05.2022 the daughter came home from school, washed her bag, and went to play. She used to play with other children. She did not take three minutes after she left and the witness also left to the farm. When he came back he found her sleeping. She denied that she was sick. The following day he asked the mother as the minor was walking strangely.
15. She stated that on Saturday when she went to play, Joseph Kimani told her to lie on the bed, remove her clothes and defiled her. The matter was reported at Kiagochi Police Patrol Base but they were referred to Murang’a hospital. They went to look for the appellant as he was a neigbour but was told that he had moved to Kamwiru, where he was arrested. The appellant used to work with them. He identified the appellant in the dock.
16. On cross examination he stated that the minor went playing and they found her sleeping. He asked her if she was sick but she denied. She also denied when asked by the mother. He stated that he observed her walking in a strange way when she was going to the toilet. He stated that they thought it was periods but when they went to hospital they were told what happened.
17. PW5 was PC Michael Nyang attached to Ngakuwe Police Post who was hitherto attached to Kiagochi patrol base. A report was made on 21.05.2022 at 9.00 am when a couple and a small child reported that their girl had been defiled by Jose, who was also their employee and a neighbour. They interrogated the minor and noted that on 19 th , she came from school and went to play but did not find playmates. Jose called her to the house and did bad manners to her. They booked the same in the occurrence book and referred to Murang’a Police Station. The assailant had already escaped from the area. On 22 nd the mother came and told them that she knew where the appellant was. In company of PC Aloice Kiptoo, and PC Moses Mbogo, the appellant was identified and arrested. He was identified in the dock.
18. On cross examination he stated that they sent the matter to Murang’a since the minor was a female and there are female officers in Murang’a. They went to his residence on 21 st and found he had already escaped. They found the appellant at Igoro. They concluded that he had escaped since he left his usual residence. They found the appellant and three others feeding cattle. The appellant’s grandfather who was the employer had not seen him.
19. PW6 was PC(W) Wambui Wambui of Murang’a Police Station performing crime office duties. On 21.05.2022, they received a report that the appellant had defiled the minor herein, aged 7 years. The appellant got the minor when she was playing and got to defile her. The complainant and the mother led the police and the appellant was thereafter arrested. The complainant was born on 23.04.2015. The offence occurred on 19 th but the minor informed the parents on 21 st . The medical records indicated that she was defiled.
20. In cross examination by the appellant, she stated that the appellant was not taken for examination for no reason. The officers arrested the appellant and took him to Kiangochi Police Post.
21. The court found that the appellant had a case to answer and complied with Section 211 of the Criminal Procedure Code. The appellant posited that he was to give unsworn statement and call 4 witnesses. He stated that he used to work for the complainant’s grandfather as a shamba boy. He worked for the complainant’s mother but it is the grandfather who paid him. He used to work for a salary of Ksh. 6,000/= until he realized that this meant that this was Ksh. 200/=. He continued working but looking for work. He got a job on 25.4.222 and he stopped working. He went to Nairobi for a short time and came back and stayed without a job.
22. On 19.5.2022 at 4 pm, one Edward called him to report at 8.00 am at Kamuiru. He went to the grandmother’s house, took tea and left before 8.00 am. Edward told him to wait for a while. He came past 8.00 am and employed him as a shamba boy and he started working the same day. He went home, 5 km away, and met the complainant and her mother who greeted him and asked him where he was from. He asked for money and was taken to Kamuiru. He stated that he was framed for stopping to work.
23. DW2 was Esther Wakanyi, the appellant’s grandmother. She stated that the appellant left home and went to work elsewhere and that is when he was arrested. It was Eliud who called him on 19.05.2022 and he started working on the same day. He had worked for three days and was arrested on the 5 th day.
24. On cross examination she stated that the appellant left home at 6.00 am and returned at 6.30 pm. He took his clothes and left. The appellant lives on his own. His house is 5m away. She called a boda boda who came for him. On re-examination, she stated that she did not see SM on that day.
25. DW3 was Eliud Njoroge Ng’ang’a who stated that he employed the appellant who worked the whole day and stayed for the whole day. The appellant worked for 5 days. On cross examination, he stated that on 19.05.2022, he called the appellant on phone though he had no evidence of this. He stated that the appellant arrived at 7 am and left as 7 pm and came back at 8 pm.
26. DW4 was Benard Indili residing at Kamuiru and stated that he knew the appellant. The appellant reported on 19.05.2022 with him and left on 23.05.2022. On cross examination, he stated that they worked together until 5 pm. He went back for his clothes, bathed and left go for home to return later at 8 pm.
27. DW5 was Macleod Angaza, who testified that he knew the appellant for a short period. The appellant worked from 7 am until 5 pm when they closed. He went at 6 pm to pick his clothes. On cross-examination, he stated that he was sure the appellant started working on 19.05.2022.
Impugned Judgment
28. The court analyzed the evidence. The court identified the three ingredients that must be provide under section 8 of the Sexual Offences Act. This are as set out in the case of Charles Wamukoya Karani v. Republic , Criminal Appeal No. 72 of 2013, where 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. The court also relied on the case of Alfayo Gombe Okello V Republic (2010) eKLR where the court frowned upon estimates of age and relied on the case of Dennis Abuya V Republic Criminal Appeal Number 164 OF 2019 . He found that the age of 7 years was proved.
29. The court found that penetration was proved. The court relied on the case of Cleophas Otieono Wamunga V republic , Criminal Appeal Number 20 of 1989 KLR 424. It found that the alibi was not water tight. Reliance was placed on the case of Wangombe v Republic (1976-80) LKLR 1683. The court found that the charges were proved. He mitigated that he had none who depended on him and had a grandmother who had hypertension. The appellant was sentenced to life imprisonment.
Submissions
30. The Appellant filed submissions dated 9.12.2025. It was submitted that the offence of defilement was not proved. He cited inter alia Fappytoin Mutuku Ngui v Re;public (2012) eKLR and supported that the ingredients were not proved. It was his submission that the evidence of the minor was not corroborated.
31. He also submitted that sentence of life imprisonment should be relooked at and reduced. He relied among others on the case of Nyeri COACRA No. 186 of 2010 PKW v Republic.
32. The Respondent filed submissions on 29.12.2025. The evidence, it was submitted was credible. Reliance was placed on section 124 of the Evidence Act. It was also submitted that there were no inconsistencies. On sentence, that the sentence was proper and according to the law.
Analysis
33. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. 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.
34. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
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. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings 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 the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
35. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it 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.
36. Brennan J, addressed the standard of proof required in such cases, in the United States Supreme Court decision in 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.
37. 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.
38. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
39. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
40. 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 standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carry a lifelong stigma and can only be justified based on indisputable evidence.
The Law
41. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:
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 .
(5) …
(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.
42. These key ingredients of the offence of defilement, were elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as follows:
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
43. 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 court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.
44. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic , Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:
Age of the victim of the 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.
45. The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR) , addressed this aspect as follows:
In the case of Kaingu Elias Kasomo V R , Malindi CR. NO. 504 of 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence.
However, as the Court clarified in Tumaini Maasai Mwanya V R , MSA CR.A. No. 364 of 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age.
46. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that:
In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.
47. The minor was 7 years. The birth certificate indicated that the minor was 7 years having been born on 23.04.2015. She was in Grade 2. Age was not disputed in cross examination. The age of the minor was thus proved. This leaves three aspects. The appellant gave what appears to be an alibi defence. It is however not an alibi at all. It is a non-alibi alibi. The appellant, as an accused, has no duty to help the state prove its case, as he remains innocent until proven otherwise. The accused was arraigned and denied the charges. A plea of not guilty was consequently recorded. In the case of R vs. Lifchus {1997}3 SCR 320 , the Supreme Court of Canada explained the standard of proof as doth:-
The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the crown has on evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty…the term beyond a reasonable doubt has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the crown has failed to satisfy you of the guilty of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilty beyond reasonable doubt.
48. The offence is said to have occurred between 4 pm and 7 pm. The minor indicated that this was on 19.05.2022 at 1730 hours. The appellant indicated that he was called on 19.05.2022 to report on the following day at 8 am. The following day is 20.05.2022. The appellant thus did not give an alibi related to his whereabouts. The minor stated that she went to play in the evening after school on the said date when the incident happened. This was corroborated by PW2 and PW4. In the case of Wachera v Republic [2025] KEHC 11843 (KLR) , this court posited as follows:
43. The court was wrong in blaming the appellant on having the alibi at the tail end. However, the court was correct in finding that these questions were not put to the witnesses. This is important since the offence occurred at home.
44.The court found that the appellant and the minor lived in the same house. The appellant was the perpetrator. In this case, there are no doubts on who the perpetrator was. It was the Appellant. The appellant raised a defense of alibi. His defence was supported by witnesses. The state had an opportunity to call rebuttal evidence which they did not call. With reference to alibi evidence, the court of appeal in Erick Otieno Meda vs. Republic [2019] eKLR stated thus:
In considering an alibi, we observe that:
a. An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.
b. An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.
c. The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.
d. The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail.
49. A successful alibi defence entirely rules out the accused as the perpetrator of
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