1. The appellant was charged, convicted and sentenced to 25 years imprisonment for the offence of defilement contrary to section 8(1) as read with section 8(2) of the sexual offences Act. The particulars of the offence are that on 5th December 2017, at national bank area in Ongata Rongai township within Kajiado County, intentionally and unlawfully caused his genitalia organ penis to penetrate the female organ (vagina) of R.S.K.N aged 7 years.
2. The appellant was also charged with an offence of committing an indecent act with a child contrary to section 11 (1) of the sexual offences Act. The particulars are the same save that the appellant is alleged to caused his penis to touch the genitalia organ (vagina) of R.S.K.N a child aged 7 years.
3. Dissatisfied with the judgement and sentence meted out by the trial court, the appellant filed the petition of appeal dated 30th May 2024 setting forth ten (10) grounds which in summary relates to the magistrate application of the law and the evidence tendered in court. The appellant also challenged the credibility of the witnesses and their testimonies as a basis to found conviction. Secondly the appellant faults the learned magistrate’s decision to shift the burden of proof to the appellant and overly placing much weight on the prosecution evidence without considering that the same offended Article 50(4) and section 36(1) as read with Section 36(5) of the sexual offences Act.
4. The respondent filed grounds of opposition dated 28th July 2025 supporting the learned Magistrate determination and urging the court to dismiss the appeal as there is no legal basis to interfere with the trial court finding. The respondent also file a Notice of enhancement of the sentence.
5. I am required as a first appellate court to revisit and re-evaluate the evidence afresh, assess the same independently and make my own conclusions bearing in mind the limitations inherent in the appellate process that I neither saw nor heard the witnesses testify, and cannot therefore comment on their demeanour an important aspect in a criminal trial. See Okeno vs Republic [1972] E.A 32. And further the Court of Appeal case of Mark Oiruri Mose vs. Republic (2013) eKLR
Prosecution case
6. The prosecution called 5 witnesses to prove the charges against the appellant whose testimonies are set out herein below albeit in brief; it is worth noting that this matter proceeded before three learned magistrates. It started with Hon.L.D Ogombe, followed by Hon. Ruguru N and concluded with Hon. A.N.Makau SPM who heard the accused defence and wrote the judgement. From the onset I note significant variance in the evidence as recorded by learned magistrates. In some instances, as borne by the proceedings of the court, some details and witnesses accounts are either at variance or missing all together. I believe this is a challenge when evidence is taken by different magistrates whose view sometimes on what is material or not differs.
7. As an appellate court I shall consider the record in its entirety and arrive at a conclusion based on all that has been presented.
8. PW5 R.S.K affirmed and told the court that on 5th December 2017 at night, she was at mama Jose’s house who was their neighbour and her mother’s friend. She stated that while sleeping, the accused herein got into the house and slept on top of her. That he tore her skin tight wear and inserted his urinating organ(penis) into her vagina. She told the court that the accused had a torch which he used to light the room. She tried to scream but the accused strangled her with his hand to stop her from screaming. She said that Jose who was also sleeping in that house thought that it was his (joses) father who had entered the house. She said that she tried to fight with the accused but she was overpowered. When the accused finished, she locked the house until mama Jose came back and she opened for her. She never told her what had happened instead she told her mother the following day. They went to look for the accused in his house but did not find him but when he was called, he came and she told her mother that it was him who defiled her. The police were called and accused was arrested.
9. In cross examination the child stated that the accused had not directed the torch into her eyes.
10. PW1 the VERONICA NJERI GICHURE complainant mother testified and told the court that on 4th December 2017, she had gone for work and left the child under the care of one Naomi. While at her place of work, she called Naomi around 9:00 pm to help her with the bar business as there were many customers at the time. Naomi joined her at the bar leaving the children behind. They remained till midnight. After work she went home directly and Naomi went to her friend. On arrival she checked Naomi’s house where the child was, she checked on the door and found that same was locked with a padlock. She went to her house which was directly opposite that of Naomi.
11. Naomi later followed around 2:00 am and found the door to her house unlocked and the complainant child under the bed. The child said she was afraid of baba wangechi. She assumed that perhaps it was a nightmare. In the morning as she was talking to her mother the children grandmother, she was told that baba wangechi had defiled her. Shocked, she placed the child on the bed and checked her private part. She found her panty and her stocking torn in the middle. She informed Naomi what had happened and together they went to the accused home to look for him. The accused was not in their home at time of the visit but shortly thereafter he came. She asked the members of the public to detain the suspect as she made a report at the police station together with the child. The child was taken to Nairobi Women hospital where she was examined. She told the court that there was attempted penetration on the child which caused the tear.
12. In cross examination, she told the court that she used to leave the child with Naomi and other times with the accused mother and sometimes just left the child alone. She confirmed that she personally checked Naomi’s house and confirmed that the same was locked. She confirmed that if someone opens Naomi’s door she would hear because they are just opposite each other.
13. PW2 NAOMI OTIENO told the court that she worked in a pub and that on 4th December 2017 at 9:00 pm she locked the door to her house and went to work. She left behind her 14 years old son called joseph Mwendwa and R.S.K.N aged 7 years Veronicas Njeri’s daughter. After work at 1:00 am Veronica went home and she remained behind to see a friend at Kobil but later went home at 2:00 am. She found the door to her house opened. On entering the house, she found the minor girl under the bed and she inquired what had happened. She was told that baba wangechi had broken into the house and did bad manners on her. The child mother was informed the following day and the accused arrested.
14. PW3 Dr. CAROLINE KAMANGA a medical officer based at Ngong Sub- County Hospital testified and told the court that she recalled examining the complaint and relied on the initial treatment notes from Nairobi Women hospital. On examination of the genitalia, she found blood stains on the outer part and a small tear on the vagina wall and the hymen was broken and bleeding. On second examination, she told the court that hymen was intact but there were tears on the vaginal wall.
15. In cross- examination, she told the court that she did a second examination at the facility and established that the hymen was intact.
16. PW4 NO 51948 CPL ALICE WAIRIMU investigated the matter and recorded witness statements. Having been satisfied that an offence known in law had been committed, she preferred the charges against the accused.
17. The accused DW1 gave a detail defence under oath before the Hon A.N. MAKAU. He told the court he sells meat in a butchery and on the material, day closed the butchery at around 9:30 pm and proceeded to another of their butchery for stock taking.
18. The witness told the court that he spent the night with one of his friends whose house had been locked for none payment of rent. He was surprised the following day when he was called and told that an allegation of breaking a house and sexually defiling a minor had been made. She told the court that he was framed and the child coerced to implicate him in a matter he had no knowledge of.
19. On the basis of the evidence presented by the state, the Hon A.N Makau place the appellant on his defence, ultimately determined that he was indeed the perpetrator of the offence, convicted and sentence him as earlier stated in this judgement.
Analysis and Determination
20. From the petition of appeal the submissions and the evidence on record, the issue for determination is whether the prosecution proved the case against the appellant in the magistrate court beyond reasonable doubt and whether the sentence meted out was excessive in the circumstances.
21. The offence of defilement is proved when the age of the victim in relation to the offence is ascertained, the fact of penetration and the identity of the perpetrator. See Charles Wamukoya vs Republic Cr appeal no 72 of 2013 and George Opondo Olunga vs Republic (2016) eklr.
22. As regards the age of the victim, the evidence is at variance. Whereas the baptismal card indicate that the child was born on 13th march 2012, her mother told the court that the child was born on 13th march 2011. This variance in my view is not necessary on its on material for the reason that the age whichever the case falls within the bracket under which the appellant was charged. In any event the victim age and the variance was not taken up rightly by the appellant or counsel.
23. I am therefore satisfied that the age of the minor was established and that there was no material contradiction in this regard.
24. On the matter of penetration, PW4 Dr CAROLINE KAMANGA, initially relied on the treatment notes from Nairobi Women Hospital but later personally examined the child. Although the initial findings by the clinical officer indicated that the minor’s hymen was missing, the doctor confirmed that indeed the same was intact save for tear on the outer part of the genitalia. Based on her examination, she confirmed that the child was defiled. I have no doubt about it myself having reviewed the medical evidence and the witnesses account I am satisfied that there was penetration.
25. In the case of Alex Chemwotei Sakong v Republic [2108] eKLR the court held as follows as what penetration entails in a sexual offence;
i. “Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organ of a person into the genital organs of another person. This position was explained by the court of appeal (Onyango Otieno, Azangalala & Kantai JJ A) in the case of Mark Oiruri vs. Republic Criminal Appeal 295 of 2012 [2013] eKLR in which they opined thus:
ii. “…and the effect that the medical examination was carried out on her on 16th November, 2008 five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. 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…”
26. I am satisfied that this element of the offence was sufficiently proved.
27. On identification of the perpetrator, the evidence submitted by the prosecution and relied by the court is one that caused anxious moments. As earlier noted in the preceding paragraphs of this judgement, either owing to the several hands that dealt with the matter and the style of taking evidence, there were some troubling inconsistencies and contradiction noted while evaluating the evidence presented to the trial court. The matter proceeded before three magistrates. The Hon L.D OGEMBO (SRM) commenced the trial and heard three crucial witness the complainant minor, her mother and Naomi the neighbour whose house the victim spent the night in. On 25th January, 2019 the Hon Ruguru N. took over the matter and commenced the trial denovo on application by counsel for the appellant. The learned magistrate heard five witnesses and was later transferred and in came Hon A.N. Makau who conclude the trial by hearing the defence evidence only.
28. The evidence of the complainant minor before Hon Ogembo and Hon Ruguru are in material part contradictory and inconsistent. Whereas the first time the child stated that they were only two in Naomi’s house, the second time she mentioned a third person a girl whom they slept together in the house. Her evidence suggest that the appellant broke the house and entered with another person who she never mentioned to Naomi or her mother the following. In cross- examination by the appellant who did so elaborately, she told the court “I went and switched off the lights. I wasn’t asleep when Baba Wangechi came. Baba Wangechi Came with someone” and yet in re-exam she stated that baba Wangechi came alone. I find this contradiction significantly material as it goes to the substance of the charge on whether it was the appellant who got into the house and committed the offence or that other “someone”. In WWN VS REPUBLIC (2020) EKLR the court observed citing the case of TwehanganeAlfred vs Ugandacriminal application umber 139 of 2001, where it was held that;
“with regards to the contradictions in the prosecution case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to a deliberate untruthfulness or if they do not affect the main substance of the prosecution case”
29. It was also a concern to me that Jose Naomi’s son was at the time of the alleged offence was 14 years old boy sleeping in the same house with a 7-year-old girl. In the evidence recorded by the Hon Ogembo on 8th may 2018 Naomi Otieno also captured by the subsequent magistrate as Naomi Mutindi, told the court that Joseph Mwendwa aged 14 years R.S.K. aged 7 years were left in her house. There is no evidence whether the 14-year-old boy was interrogated and his statement recorded on exactly what happened on the material day. His testimony, now that he was in that house and the together with the minor and the strange girl mentioned by the complainant would have shed light as to exactly what transpired.
30. In my view these contradictions and inconsistencies in the same witnesses’ testimonies as recorded by the learned magistrates at different times during the trial are material and affect the substance of the charge with which the appellant was charged. I find that there exists significant doubt as to whether the appellant was the one who committed the offence or that there was another person who did it. It would be difficult to determine this in the absence of Jose’s evidence who was left with the minor on the material day. Suspicion however strong, can never be a basis to found a conviction. The offence with which the appellant was charged is a serious one and the evidence must be one that justify the court to take away the liberty of an offender for a long period of time. The evidence must be one that establishes the offence beyond reasonable doubt.
31. Such evidence was lacking in this case.
32. Consequently, I allow the appeal, quash the conviction and set aside the sentence and order that the appellant be released forthwith unless otherwise lawfully held.
2. The appellant was also charged with an offence of committing an indecent act with a child contrary to section 11 (1) of the sexual offences Act. The particulars are the same save that the appellant is alleged to caused his penis to touch the genitalia organ (vagina) of R.S.K.N a child aged 7 years.
3. Dissatisfied with the judgement and sentence meted out by the trial court, the appellant filed the petition of appeal dated 30th May 2024 setting forth ten (10) grounds which in summary relates to the magistrate application of the law and the evidence tendered in court. The appellant also challenged the credibility of the witnesses and their testimonies as a basis to found conviction. Secondly the appellant faults the learned magistrate’s decision to shift the burden of proof to the appellant and overly placing much weight on the prosecution evidence without considering that the same offended Article 50(4) and section 36(1) as read with Section 36(5) of the sexual offences Act.
4. The respondent filed grounds of opposition dated 28th July 2025 supporting the learned Magistrate determination and urging the court to dismiss the appeal as there is no legal basis to interfere with the trial court finding. The respondent also file a Notice of enhancement of the sentence.
5. I am required as a first appellate court to revisit and re-evaluate the evidence afresh, assess the same independently and make my own conclusions bearing in mind the limitations inherent in the appellate process that I neither saw nor heard the witnesses testify, and cannot therefore comment on their demeanour an important aspect in a criminal trial. See Okeno vs Republic [1972] E.A 32. And further the Court of Appeal case of Mark Oiruri Mose vs. Republic (2013) eKLR
Prosecution case
6. The prosecution called 5 witnesses to prove the charges against the appellant whose testimonies are set out herein below albeit in brief; it is worth noting that this matter proceeded before three learned magistrates. It started with Hon.L.D Ogombe, followed by Hon. Ruguru N and concluded with Hon. A.N.Makau SPM who heard the accused defence and wrote the judgement. From the onset I note significant variance in the evidence as recorded by learned magistrates. In some instances, as borne by the proceedings of the court, some details and witnesses accounts are either at variance or missing all together. I believe this is a challenge when evidence is taken by different magistrates whose view sometimes on what is material or not differs.
7. As an appellate court I shall consider the record in its entirety and arrive at a conclusion based on all that has been presented.
8. PW5 R.S.K affirmed and told the court that on 5th December 2017 at night, she was at mama Jose’s house who was their neighbour and her mother’s friend. She stated that while sleeping, the accused herein got into the house and slept on top of her. That he tore her skin tight wear and inserted his urinating organ(penis) into her vagina. She told the court that the accused had a torch which he used to light the room. She tried to scream but the accused strangled her with his hand to stop her from screaming. She said that Jose who was also sleeping in that house thought that it was his (joses) father who had entered the house. She said that she tried to fight with the accused but she was overpowered. When the accused finished, she locked the house until mama Jose came back and she opened for her. She never told her what had happened instead she told her mother the following day. They went to look for the accused in his house but did not find him but when he was called, he came and she told her mother that it was him who defiled her. The police were called and accused was arrested.
9. In cross examination the child stated that the accused had not directed the torch into her eyes.
10. PW1 the VERONICA NJERI GICHURE complainant mother testified and told the court that on 4th December 2017, she had gone for work and left the child under the care of one Naomi. While at her place of work, she called Naomi around 9:00 pm to help her with the bar business as there were many customers at the time. Naomi joined her at the bar leaving the children behind. They remained till midnight. After work she went home directly and Naomi went to her friend. On arrival she checked Naomi’s house where the child was, she checked on the door and found that same was locked with a padlock. She went to her house which was directly opposite that of Naomi.
11. Naomi later followed around 2:00 am and found the door to her house unlocked and the complainant child under the bed. The child said she was afraid of baba wangechi. She assumed that perhaps it was a nightmare. In the morning as she was talking to her mother the children grandmother, she was told that baba wangechi had defiled her. Shocked, she placed the child on the bed and checked her private part. She found her panty and her stocking torn in the middle. She informed Naomi what had happened and together they went to the accused home to look for him. The accused was not in their home at time of the visit but shortly thereafter he came. She asked the members of the public to detain the suspect as she made a report at the police station together with the child. The child was taken to Nairobi Women hospital where she was examined. She told the court that there was attempted penetration on the child which caused the tear.
12. In cross examination, she told the court that she used to leave the child with Naomi and other times with the accused mother and sometimes just left the child alone. She confirmed that she personally checked Naomi’s house and confirmed that the same was locked. She confirmed that if someone opens Naomi’s door she would hear because they are just opposite each other.
13. PW2 NAOMI OTIENO told the court that she worked in a pub and that on 4th December 2017 at 9:00 pm she locked the door to her house and went to work. She left behind her 14 years old son called joseph Mwendwa and R.S.K.N aged 7 years Veronicas Njeri’s daughter. After work at 1:00 am Veronica went home and she remained behind to see a friend at Kobil but later went home at 2:00 am. She found the door to her house opened. On entering the house, she found the minor girl under the bed and she inquired what had happened. She was told that baba wangechi had broken into the house and did bad manners on her. The child mother was informed the following day and the accused arrested.
14. PW3 Dr. CAROLINE KAMANGA a medical officer based at Ngong Sub- County Hospital testified and told the court that she recalled examining the complaint and relied on the initial treatment notes from Nairobi Women hospital. On examination of the genitalia, she found blood stains on the outer part and a small tear on the vagina wall and the hymen was broken and bleeding. On second examination, she told the court that hymen was intact but there were tears on the vaginal wall.
15. In cross- examination, she told the court that she did a second examination at the facility and established that the hymen was intact.
16. PW4 NO 51948 CPL ALICE WAIRIMU investigated the matter and recorded witness statements. Having been satisfied that an offence known in law had been committed, she preferred the charges against the accused.
17. The accused DW1 gave a detail defence under oath before the Hon A.N. MAKAU. He told the court he sells meat in a butchery and on the material, day closed the butchery at around 9:30 pm and proceeded to another of their butchery for stock taking.
18. The witness told the court that he spent the night with one of his friends whose house had been locked for none payment of rent. He was surprised the following day when he was called and told that an allegation of breaking a house and sexually defiling a minor had been made. She told the court that he was framed and the child coerced to implicate him in a matter he had no knowledge of.
19. On the basis of the evidence presented by the state, the Hon A.N Makau place the appellant on his defence, ultimately determined that he was indeed the perpetrator of the offence, convicted and sentence him as earlier stated in this judgement.
Analysis and Determination
20. From the petition of appeal the submissions and the evidence on record, the issue for determination is whether the prosecution proved the case against the appellant in the magistrate court beyond reasonable doubt and whether the sentence meted out was excessive in the circumstances.
21. The offence of defilement is proved when the age of the victim in relation to the offence is ascertained, the fact of penetration and the identity of the perpetrator. See Charles Wamukoya vs Republic Cr appeal no 72 of 2013 and George Opondo Olunga vs Republic (2016) eklr.
22. As regards the age of the victim, the evidence is at variance. Whereas the baptismal card indicate that the child was born on 13th march 2012, her mother told the court that the child was born on 13th march 2011. This variance in my view is not necessary on its on material for the reason that the age whichever the case falls within the bracket under which the appellant was charged. In any event the victim age and the variance was not taken up rightly by the appellant or counsel.
23. I am therefore satisfied that the age of the minor was established and that there was no material contradiction in this regard.
24. On the matter of penetration, PW4 Dr CAROLINE KAMANGA, initially relied on the treatment notes from Nairobi Women Hospital but later personally examined the child. Although the initial findings by the clinical officer indicated that the minor’s hymen was missing, the doctor confirmed that indeed the same was intact save for tear on the outer part of the genitalia. Based on her examination, she confirmed that the child was defiled. I have no doubt about it myself having reviewed the medical evidence and the witnesses account I am satisfied that there was penetration.
25. In the case of Alex Chemwotei Sakong v Republic [2108] eKLR the court held as follows as what penetration entails in a sexual offence;
i. “Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organ of a person into the genital organs of another person. This position was explained by the court of appeal (Onyango Otieno, Azangalala & Kantai JJ A) in the case of Mark Oiruri vs. Republic Criminal Appeal 295 of 2012 [2013] eKLR in which they opined thus:
ii. “…and the effect that the medical examination was carried out on her on 16th November, 2008 five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. 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…”
26. I am satisfied that this element of the offence was sufficiently proved.
27. On identification of the perpetrator, the evidence submitted by the prosecution and relied by the court is one that caused anxious moments. As earlier noted in the preceding paragraphs of this judgement, either owing to the several hands that dealt with the matter and the style of taking evidence, there were some troubling inconsistencies and contradiction noted while evaluating the evidence presented to the trial court. The matter proceeded before three magistrates. The Hon L.D OGEMBO (SRM) commenced the trial and heard three crucial witness the complainant minor, her mother and Naomi the neighbour whose house the victim spent the night in. On 25th January, 2019 the Hon Ruguru N. took over the matter and commenced the trial denovo on application by counsel for the appellant. The learned magistrate heard five witnesses and was later transferred and in came Hon A.N. Makau who conclude the trial by hearing the defence evidence only.
28. The evidence of the complainant minor before Hon Ogembo and Hon Ruguru are in material part contradictory and inconsistent. Whereas the first time the child stated that they were only two in Naomi’s house, the second time she mentioned a third person a girl whom they slept together in the house. Her evidence suggest that the appellant broke the house and entered with another person who she never mentioned to Naomi or her mother the following. In cross- examination by the appellant who did so elaborately, she told the court “I went and switched off the lights. I wasn’t asleep when Baba Wangechi came. Baba Wangechi Came with someone” and yet in re-exam she stated that baba Wangechi came alone. I find this contradiction significantly material as it goes to the substance of the charge on whether it was the appellant who got into the house and committed the offence or that other “someone”. In WWN VS REPUBLIC (2020) EKLR the court observed citing the case of TwehanganeAlfred vs Ugandacriminal application umber 139 of 2001, where it was held that;
“with regards to the contradictions in the prosecution case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to a deliberate untruthfulness or if they do not affect the main substance of the prosecution case”
29. It was also a concern to me that Jose Naomi’s son was at the time of the alleged offence was 14 years old boy sleeping in the same house with a 7-year-old girl. In the evidence recorded by the Hon Ogembo on 8th may 2018 Naomi Otieno also captured by the subsequent magistrate as Naomi Mutindi, told the court that Joseph Mwendwa aged 14 years R.S.K. aged 7 years were left in her house. There is no evidence whether the 14-year-old boy was interrogated and his statement recorded on exactly what happened on the material day. His testimony, now that he was in that house and the together with the minor and the strange girl mentioned by the complainant would have shed light as to exactly what transpired.
30. In my view these contradictions and inconsistencies in the same witnesses’ testimonies as recorded by the learned magistrates at different times during the trial are material and affect the substance of the charge with which the appellant was charged. I find that there exists significant doubt as to whether the appellant was the one who committed the offence or that there was another person who did it. It would be difficult to determine this in the absence of Jose’s evidence who was left with the minor on the material day. Suspicion however strong, can never be a basis to found a conviction. The offence with which the appellant was charged is a serious one and the evidence must be one that justify the court to take away the liberty of an offender for a long period of time. The evidence must be one that establishes the offence beyond reasonable doubt.
31. Such evidence was lacking in this case.
32. Consequently, I allow the appeal, quash the conviction and set aside the sentence and order that the appellant be released forthwith unless otherwise lawfully held.