1. The Appellant was charged with the offence of Defilement contrary to section 8(1) as read with Section 8(3) with an alternative of Committing an indecent act contrary to section 11(1), both counts under the Sexual Offences Act, 2006; the particulars are as contained in the charge sheet dated 12th April 2021.
2. The particulars of the offence were that on the 14th day of March 2021, at Githuya village, within Murang’a County, he intentionally and unlawfully caused his penis to penetrate the vagina of DM, a child aged 6 years while the particulars of the alternative offence were that on the same day, he intentionally and unlawfully touched the vagina of the same child.
3. The Appellant pleaded not guilty and the matter proceeded to full hearing with the prosecution calling four witnesses whereas the appellant called no witnesses and have sworn testimony.
4. During the hearing,PW1 was the minor complainant was taken through a voire dire session by the trial court who determined that the witness understood the meaning of an oath. She stated that the accused person did something to her and identified him as her step father. She stated that on 14/03/2021 she heard someone in her bed late at night who removed his trouser down to the legs and inserted his ‘fat finger’ which he used to urinate, into her part for urinating. She further testified that it was not the first time he was doing it, it was the fourth time and he told her not to tell anyone.
5. She further testified that one day she stole water to give another girl and was unable to pass water over the fence. Another woman, their neighbour, complained the water bill was going high due to stealing of water and as a result her mother beat her up. She then told her what had been happening to her.
6. They later went to the hospital and the doctor confirmed that it was true. She stated that her father used to threaten her with a knife when he would defile her. He produced a treatment card,P3 form and a Copy of birth certificate as MFI-1-3.
7. During cross examination, she stated that she shared her room with KM her brother. On that night he was asleep in the same room on a separate bed. Further, that the accused refused to let them shut the door and even told her mother never to close that door. She stated that she could not tell her brother because he had threatened her previously. That on the material date, he had a torch which he shone at her. That on the material date she wanted her mother to know what was going on and had decided while in school that she must tell her that day.
8. PW2,Dorothy Mwendwa Baabu, the mother to the complainant testified that on 15/03/2001 her daughter stole water for a girl called Wanjiru, a neighbours’ child.
9. She was unable to pass 10 litres jerrican over the fence and decided to pass water through the gate. She was there with a person her children call aunt and asked her about it and she told her that Wanjiru needed water. She then told her she should have told her about it and told her to return the water. She stated that her sister in law then came and said they caused high water bills because of stealing water. She told her they don’t steal and beat PW1 to warn her to stop.
10. Once mama Brian came and asked why she was beating her she explained and PW1 told mama Brian to tell her to stop beating her as she wanted to tell her something. Mama Brian convinced her to stop and held the child who then told her that someone entered her bed at night and defiled her. She said a man entered her bed removed her clothes, put his private finger in her private part. Her sister in law asked who it was and she said it was her father. She said she saw him leave the room and enter her bedroom. She then told mama Brian and mama Maina to check Makena’s private part.
11. They hesitated to tell her husband as he would be angry and then told him PW1 was sick and she needed to take her to hospital the next day. He saidthat he will buy drugs from chemist and she told him the previous time chemist drugs did not work. In the morning he took them to Gacharage hospital and left. As there were no doctors she called him and he came and took them to Kandara hospital.
12. She was examined and initially, she said he did it once. Then she said he did it 4 times and he threatened to kill her if she tells people. The doctor confirmed she was defiled.
13. During cross examination she stated that she did not see or hear the act happening and PW1 told her what happened. That the doctor confirmed she was defiled and she stated that she had not suspected the defilement at the time she beat her. Further, that she used to lock the children’s bedroom then her husband insisted the children’s bedroom must be left wide open at night.
14. PW3 was PC Rosemary Nthenya the investigating officer stated that on 17/3/2021 PW2 and her daughter reported a case of rape that occurred on 15/3/21. She reproduced the sequence of events as narrated by PW1 and stated that she arrested the accused on 7/4/2021. that the girl was 10 years in grade 4. She produced the birth certificate as Exh. 3.
15. PW4 was Jediel Mwangi Wahome, a clinical officer working at Kandara Level 4 hospital testified that the P3 form was filled by Martin Kariuki who he worked with for 3 years.
16. Counsel for the Accused objected to the production of the form by the witness but the court overruled the objection and he continued to testify. He reproduced the contents of the form and stated that the officer noted that there was most likely attempted penetration.
17. DW1 testified that on 14.3.2024 Monday he got home around 9 to 10. That he was not in speaking terms with his wife due to her extra marital affair in which he found her in the act. She gave him food and his younger child who had a cold sneezed and blood came off his nostrils. He told his wife he required medical attention and told her to take him to hospital the next day. She went to sleep first and he followed with the child. The next morning children prepared to go to school and he told his wife to prepare to take younger child to hospital. She sent their elder child, a boy, to seek permission for second child from school. That PW1 told him she had stomach pains from the previous day and was feeling dizzy. He took them with their mother to Kandara hospital and gave her Kshs. 500/= and left for work. She told her to call him once they were through but she did not and when he called her phone it was switched off.
18. His brother Simon called and asked why his wife was calling him from hospital and asked him to go home. He went to his brother’s home and he told him his wife told him he had defiled his daughter at night and she had taken her to hospital. He called her but she did not answer. When his brother called she picked his calls and told his brother not to tell him since she wanted him to be arrested.
19. On Cross examination he testified that he had not produced evidence to show his wife engaged in extra marital affairs but maintained that he saw her in the act. That the boda boda ridders knew my wife had an extra marital affair.
20. DW2,Simon Mwai, a boda boda operator stated that the accused was his colleague and further that he told them he had marital differences with his wife. He told them his wife wanted some money that he had collected from them and on 16th March, she came to their place of work and told them that she wanted to be given Kshs. 100,000/= to withdraw a case and if not given she will have accused charged.
19. During cross examination he stated that he was not with accused on the material date and did not know what transpired inside accused’s house that night.
20. Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial court convicted him of the main charge and sentenced him to 15 years’ imprisonment.
21. Being aggrieved with the sentence and conviction, the Appellant filed an Amended Memorandum of Appeal dated 7th November 2025 premised on the following grounds;
1) The learned trial magistrate erred in law and fact by failing to conduct Voir Dire examination of the PW1 witness before her testimony so as to gauge the witnesses’-being a child-understanding before the preliminary hearing to determine the PW1 witness competency to testify by assessing if they understand the duty to speak the truth. The learned magistrate did not question the child to establish their intelligence and understanding, and whether the process could lead to the child giving sworn testimony or unsworn testimony, depending on their responses before testifying.
2) The learned trial magistrate erred in law and fact in finding that the appellant inserted his private parts in the private part of the complainant PW1 yet the medical evidence was contrary as there was no proof of penetration.
3) The learned trial magistrate erred in law and fact in finding that the complainant had been defiled on 14/03/2021 yet medical documents presented to the court found that the genitalia of the complainant was normal and there was no tears or lacerations or blood and she had no infections whatsoever.
4) The learned trial magistrate erred in fact and in law and in assuming without evidence that the appellant must have defiled the complainant earlier than on the date of the charge sheet as the complainant had an old broken hymen and so it was possible that the appellant had defiled the complainant.
5) The learned trial magistrate erred in fact and in law by failing to appreciate evidence and the expert testimony by the medical officer to the effect that the complainant's old broken hymen could be as a result of other factors.
6) The learned magistrate erred in law and fact by ignoring the finding of the Clinical Officer who clearly upon examination made a finding that there was no spermatozoa in the Vagina of the Complainant thus limiting any possibility of sexual defilement.
7) The Learned Magistrate made a glaring and palpable error in convicting the accused person on a supposed section of law that was non-existent in the charge sheet thereby assuming and allocating herself the duty of a prosecutor.
8) The learned trial magistrate erred in law and fact by failing to note that the complainant was being severely beaten/tortured by her mother and this led to neighbours coming out to help the complainant and for the complainant to escape the severe beatings, she claimed she had something to tell the mother and the neighbours to the effect the appellant defiled her and that this could have been a natural survival instinct to divert severe beating.
9) The learned trial magistrate erred in law and fact in not finding that the complainant had been stealing water from the neighbour for some time and thus it was possible for her to make a false statement to avoid being flogged.
10) The learned trial magistrate erred in law and fact by failing to call for or question why a DNA analysis of the whitish discharge from the PW1 witness's private part was not conducted to confirm whether this was the accused’s semen as a logical conclusion of the act of rape despite glaring lapses in the testimony of various witnesses.
11) The learned trial magistrate erred in law and fact in not warning herself before convicting solely on the uncorroborated evidence of a child given the possibility of the child being coached by her mother who had attempted to extort a whooping Kshs. 100,000/= from the accused to drop the case. The learned magistrate misdirected herself stating that the accused never raised this himself except through a witness.
12) The learned trial magistrate erred in law and fact by failing to question why the prosecution left out crucial and potential witness to the court i.e.
I. The brother of the complainant who sleeps in the same room as the complainant and was present during the alleged defilement.
II. ‘Mama Brian’ the neighbour who stopped PW2 from beating PW1 and to who PW1 is alleged to have confessed that she was defiled by the appellant.
III. “Mama Maina” who also heard PWI confess of alleged defiled defilement and who together with Mama Brian checked PW1 private part by beaming a torch.
13) The appellant brother who said the matter should be resolved.
14) The learned trial magistrate erred in law and fact by not questioning how PW1 could have been defiled while every family member of PW1 was in the house and no one heard any commotion and the home is a mabati house and yet PWI states she had pain and this, she must have screamed or made some noise to wake up her mother or her big brother who was sleeping next to her on the other bed.
15) The law offices of Ogwoka Ndege and Company Advocates be allowed to replace the firm of Wanjohi Gachie and Company Advocates to come on records for the appellant.
Appellants’ Submissions
22. Counsel submitted that it is trite that the burden of proof in criminal cases is beyond reasonable doubt and such burden vests on the Prosecution and does not shift to the Accused. Reliance was placed on Elizabeth Waithegeni Gatimu vs. Republic [2015] eKLR.
23. Counsel urged that the prosecution failed to prove the charges levelled against the Appellant thus failing to discharge their burden. All the evidence adduced by them only created more doubt rather than discharge it.The same goes for their witnesses. Counsel urged that it was PW1’s testimony that she was caught stealing water and it was for this reason that her mother severely beat her up. PW2 confirmed beating her up not once but twice to a point that mama Brian came out to see what was going on. It is at this point that PW1 told mama Brian to ask her mother to stop beating her as she had something to tell her. PW2 was hesitant as she thought PW1 wanted to escape thus mama Brian had to hold her. It is at this point that she stated the Appellant had defiled her.
24. Counsel urged that the complainant was first beaten by her mother after she was caught and her mother’s sister-in-law accused them of stealing water thus causing them to have high water bills. She was then beat up a second time when her mother dragged her out of the house after instructing her to light the jiko but before she did. It is at this point that Mama Brian came out and on inquiring why PW1 was been beaten up, PW2 stated that it was because Mama Brian’s mother had accused them of stealing. This was contrary to her earlier testimony that it was Mama Brian that accused them of stealing.
25. Counsel urged that PW2 carried on with the beating until she was asked to stop by Mama Brian who claimed that PW1 wanted to tell her something. Thus, it is possible that the complainant as a natural survival instinct stated that she had been defiled in a desperate attempt to avoid being flogged further. Additionally, it is also possible that she was lying owing to the fact that her mother’s in laws had realized the water bills had significantly increased meaning she had been stealing for a while and had perfected the craft until the fateful day that she was caught.
26. Counsel reproduced the testimonies of the prosecution witnesses, urging that PW3 testified that after the matter was reported to her by PW1 and PW2 she interviewed them and subsequently visited the scene but did not find another witness. That this is baffling bearing in mind the fact that PW1 had an older brother with whom she shared a room and that from the facts herein, it is clear that Mama Brian and Mama Maina were also close neighbours to PW1. That it was PW1’s testimony that she shared a room with her older brother, a male, albeit sleeping on separate beds a fact that was confirmed by both PW2 and the Appellant. However, the investigating officer never interviewed and cleared him with regards to the report that his sister had made. PW1’s assumptions that he was deep sleeper and did not hear anything on the fateful night were never actually ascertained by the investigating officer and Court.
27. Counsel urged that additionally, PW2 testified that PW1 told her she was being defiled in the presence of Mama Brian and later Mama Maina. Similarly, these individuals were never interviewed by the investigating officer as regards PW1’s statements and what they saw when they checked her. Further, the alleged statement by Mama Maina alluding to previous similar acts by the Appellant was never verified thus begging the question whether the same was actually ever said.
28. Counsel posited that from the testimonies of the prosecution witnesses, it is crystal clear that PW1 was not brought up in confinement and isolation from the outside world but rather lived a normal life like any other child. She went to school, church and even associated with other adults and children. Thus, it is not disputed that she had a lot of interactions with other people other than the Appellant, none of whom were questioned and cleared by the investigation officer hence raising the question whether there was actually any investigation done.
29. Counsel reproduced the evidence of PW4 and urged that from her testimony, there was no indication that the complainant referred to other incidents prior to the one of 14/03/2021. Further, that there were no further tests done on the discharge so as to establish what it was and if it relates to the Appellant in any way. Furthermore, the medical report failed to draw any nexus between the complainant and the Appellant herein.
30. Counsel urged that PW2 stated that she and the Appellant had been staying together for about two years. PW1, however never specifically indicated to the Court when the supposed other three incidents preceding the one herein specifically took place. PW2 in her testimony stated that PW1 had earlier stated that the incident happened once then later changed and stated that it happened four time, this contradiction and inconsistency goes to the very core of the complaint’s testimony.
31. PW1 testified that the Appellant had a torch that he illuminated at her when he entered the room. That PW1 also stated that the person that defiled her did not speak to her. She stated that she knew it was the Appellant because he entered her mother’s bedroom. Counsel urged that this is nothing but an assumption that was never ascertained. The whole house was dark and even when asked, PW1 could not state what clothes he was wearing. Thus, casting doubt as to whether she actually identified the correct perpetrator, if any.
32. Counsel urged that the evidence as presented by the prosecution was inherently inconsistent and such inconsistency ought to have been resolved in favour of the accused which the court ignored and erred by finding the evidence was consistent. Reliance was placed on Richard Munene vs. Republic [2018] eKLR and Mary Wanjiku Gichira v Republic, Criminal Appeal No 17 of 1998.
33. Counsel urged that the Appellant’s defence was not properly considered before being rejected by the trial court for the reason that it cast doubt on the prosecution’s case. Counsel urged that the Court finds that there were contradictions and inconsistencies on the prosecution’s case to the benefit of the Appellant and that the Appellant’s defence was not properly considered before being rejected by the trial court.
Respondents’ submissions
34. Counsel for the state urged that the offence of defilement for which the appellant was charged with, is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) as read with Section 8(3) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. This was restated in George Opondo Olunga vs. Republic [2016] eKLR).
35. On penetration, Counsel reproduced the testimony of PW4 and stated that he explained that the conclusion was that there were chances of attempted defilement. He cited the definition of Penetration as per Section 2 of the Sexual Offences Act and urged that in the present case, there is no doubt there was penetration; as the minor herself explained there was defilement on multiple times and even if the medical doctor concluded there was attempted defilement, it shows there was an old hymen that was broken.
36. On identification, Counsel urged that PW1 explained that it was the appellant who defiled her. Counsel reproduced the victim’s testimony and submitted that the case was not a fabrication. The minor had been threatened by the appellant and the evidence of PW2 shows that even at the hospital, the appellant was still intimidating the minor not to speak. Counsel pointed out that the minor was 10 years at the time of the offence at which age threatening a child will ensure she doesn’t speak which is what the appellant intended to do. This however did not stop her from speaking when the truth was discovered and it was confirmed by the medical officer.
37. Counsel urged that there were only four (4) people living in the house at the time: the appellant, PW2 his wife and their two children. The minor was able to explain in detail what the appellant did to her and we submit that his identity was proved beyond reasonable doubt.
38. On sentence, Counsel urged that the trial court imposed a sentence of 15 years after considering the appellant’s mitigation as well as the pre-sentence report. She rightly pointed out the effect of the action on the victim and that he was not remorseful. Counsel submitted that the powers of the High Court under Section 354 of the Criminal Procedure Code give the court powers to alter the sentence. In this case, the sentence imposed was illegal and the appellant ought to have been sentenced under the aforementioned section 8(2).
39. Counsel cited the decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) in which the Supreme Court stated that courts are to be bound by the provisions of the Sexual Offences Act in sentencing as the law has not been amended. He urged the court to invoke its powers to alter the sentence and impose the required sentence in law.
Analysis & Determination
The issue for determination is whether the appeal has merit.
In a first appeal the appellant is entitled to expect this Court to subject the evidence on record as a whole to an exhaustive re-examination and to this Court’s decision on the evidence having given allowance to the fact that this court did not see the demeanour of witnesses. Further even where the appeal turns on a question of fact, the Court has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the trial Court with such other materials as it may have decided to admit.
41. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it. See Pandya vs. R [1957] EA. 336 and Coghlan vs. Cumberland (3) [1898] 1 Ch. 704.
42. However, it must be stated that there is no set format to which a re-evaluation of evidence by the first appellate court should conform. The Supreme Court of Uganda in the case of Uganda Breweries Ltd v. Uganda Railways Corporation [2002] 2 EA 634, thus:
“The extent and manner in which evaluation may be done depends on the circumstances of each case and the style used by the first Appellate Court. In this regard, I shall refer to what this court said in two cases. In Sembuya v Alports Services Uganda Limited [1999] LLR 109 (SCU), Tsekooko JSC said at 11: ‘I would accept Mr. Byenkya’s submission if he meant to say that the Court of Appeal did not go into details of the evidence, but that is really a question of style. There is really no set format to which the re-evaluation should conform. A first Appellate court is expected to scrutinise and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the (trial).’”
43. In the case of Odongo and Another vs. Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR), Odoki, JSC (as he then was) said: “While the length of the analysis may be indicative of a comprehensive evaluation of evidence, nevertheless the test of adequacy remains a question of substance.” In Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal stated thus:
“1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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.
2. 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; 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.”
44. Section 8 of the Sexual Offences Act provides as follows:-
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if -it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(a) the accused reasonably believed that the child was over the age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
(7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’ s Act.
(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.”
45. In the instant appeal, in order for the appellant to succeed, he must demonstrate that the court fell into an error leading to his illegal Conviction and sentence. I will begin with the issue raised by the appellant on the failure to call the alleged vital witnesses.
46. Section 143 of the Evidence Act provides that: No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. I am guided by the case of Mwangi vs. R [1984] KLR 595 where this Court stated: “Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.”
47. The prosecution is not duty bound to call all persons involved in the transaction and his failure to call them is not necessarily fatal unless the evidence adduced by him is barely sufficient to sustain the charge.
48. In Keter vs. Republic [2007] 1EA135 the court was categorical that:- “The prosecution is not obligated to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
49. The Court of Appeal sitting in Mombasa in Sahali Omar vs. Republic [2017] eKLR held that:
The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt (see. Keter v Republic [2007] 1 EA 135). In this case, the testimony and evidence adduced by the five prosecution witnesses was sufficient to prove that the complainants had been defiled by the appellant. As such, the situation hardly called for the drawing of an adverse inference with regard to the ‘missing’ witnesses.”
50. The Court of Appeal stated in Benjamin Mbugua Gitau vs. Republic [2011] eKLR that:
“It would have been clinical to call the two boys who first made the arrests to give evidence, but the two courts below accepted the evidence of PW2 and PW5 who also arrived at the scene and found the appellant and the complainant in a distressed state and reported immediately what had befallen her. This Court has stated severally that there is no particular number of witnesses who are required for proof of any fact unless the law so requires – see section 143 Evidence Act. In the circumstances therefore we find that no prejudice was caused to the appellant or to the prosecution by failure to call the two boys.”
51. It is my finding and I so hold that this ground fails.
The court now turns its attention to the ingredients that form the offence of defilement. In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was stated that:-
“The critical ingredients forming the offenc
[...truncated]
2. The particulars of the offence were that on the 14th day of March 2021, at Githuya village, within Murang’a County, he intentionally and unlawfully caused his penis to penetrate the vagina of DM, a child aged 6 years while the particulars of the alternative offence were that on the same day, he intentionally and unlawfully touched the vagina of the same child.
3. The Appellant pleaded not guilty and the matter proceeded to full hearing with the prosecution calling four witnesses whereas the appellant called no witnesses and have sworn testimony.
4. During the hearing,PW1 was the minor complainant was taken through a voire dire session by the trial court who determined that the witness understood the meaning of an oath. She stated that the accused person did something to her and identified him as her step father. She stated that on 14/03/2021 she heard someone in her bed late at night who removed his trouser down to the legs and inserted his ‘fat finger’ which he used to urinate, into her part for urinating. She further testified that it was not the first time he was doing it, it was the fourth time and he told her not to tell anyone.
5. She further testified that one day she stole water to give another girl and was unable to pass water over the fence. Another woman, their neighbour, complained the water bill was going high due to stealing of water and as a result her mother beat her up. She then told her what had been happening to her.
6. They later went to the hospital and the doctor confirmed that it was true. She stated that her father used to threaten her with a knife when he would defile her. He produced a treatment card,P3 form and a Copy of birth certificate as MFI-1-3.
7. During cross examination, she stated that she shared her room with KM her brother. On that night he was asleep in the same room on a separate bed. Further, that the accused refused to let them shut the door and even told her mother never to close that door. She stated that she could not tell her brother because he had threatened her previously. That on the material date, he had a torch which he shone at her. That on the material date she wanted her mother to know what was going on and had decided while in school that she must tell her that day.
8. PW2,Dorothy Mwendwa Baabu, the mother to the complainant testified that on 15/03/2001 her daughter stole water for a girl called Wanjiru, a neighbours’ child.
9. She was unable to pass 10 litres jerrican over the fence and decided to pass water through the gate. She was there with a person her children call aunt and asked her about it and she told her that Wanjiru needed water. She then told her she should have told her about it and told her to return the water. She stated that her sister in law then came and said they caused high water bills because of stealing water. She told her they don’t steal and beat PW1 to warn her to stop.
10. Once mama Brian came and asked why she was beating her she explained and PW1 told mama Brian to tell her to stop beating her as she wanted to tell her something. Mama Brian convinced her to stop and held the child who then told her that someone entered her bed at night and defiled her. She said a man entered her bed removed her clothes, put his private finger in her private part. Her sister in law asked who it was and she said it was her father. She said she saw him leave the room and enter her bedroom. She then told mama Brian and mama Maina to check Makena’s private part.
11. They hesitated to tell her husband as he would be angry and then told him PW1 was sick and she needed to take her to hospital the next day. He saidthat he will buy drugs from chemist and she told him the previous time chemist drugs did not work. In the morning he took them to Gacharage hospital and left. As there were no doctors she called him and he came and took them to Kandara hospital.
12. She was examined and initially, she said he did it once. Then she said he did it 4 times and he threatened to kill her if she tells people. The doctor confirmed she was defiled.
13. During cross examination she stated that she did not see or hear the act happening and PW1 told her what happened. That the doctor confirmed she was defiled and she stated that she had not suspected the defilement at the time she beat her. Further, that she used to lock the children’s bedroom then her husband insisted the children’s bedroom must be left wide open at night.
14. PW3 was PC Rosemary Nthenya the investigating officer stated that on 17/3/2021 PW2 and her daughter reported a case of rape that occurred on 15/3/21. She reproduced the sequence of events as narrated by PW1 and stated that she arrested the accused on 7/4/2021. that the girl was 10 years in grade 4. She produced the birth certificate as Exh. 3.
15. PW4 was Jediel Mwangi Wahome, a clinical officer working at Kandara Level 4 hospital testified that the P3 form was filled by Martin Kariuki who he worked with for 3 years.
16. Counsel for the Accused objected to the production of the form by the witness but the court overruled the objection and he continued to testify. He reproduced the contents of the form and stated that the officer noted that there was most likely attempted penetration.
17. DW1 testified that on 14.3.2024 Monday he got home around 9 to 10. That he was not in speaking terms with his wife due to her extra marital affair in which he found her in the act. She gave him food and his younger child who had a cold sneezed and blood came off his nostrils. He told his wife he required medical attention and told her to take him to hospital the next day. She went to sleep first and he followed with the child. The next morning children prepared to go to school and he told his wife to prepare to take younger child to hospital. She sent their elder child, a boy, to seek permission for second child from school. That PW1 told him she had stomach pains from the previous day and was feeling dizzy. He took them with their mother to Kandara hospital and gave her Kshs. 500/= and left for work. She told her to call him once they were through but she did not and when he called her phone it was switched off.
18. His brother Simon called and asked why his wife was calling him from hospital and asked him to go home. He went to his brother’s home and he told him his wife told him he had defiled his daughter at night and she had taken her to hospital. He called her but she did not answer. When his brother called she picked his calls and told his brother not to tell him since she wanted him to be arrested.
19. On Cross examination he testified that he had not produced evidence to show his wife engaged in extra marital affairs but maintained that he saw her in the act. That the boda boda ridders knew my wife had an extra marital affair.
20. DW2,Simon Mwai, a boda boda operator stated that the accused was his colleague and further that he told them he had marital differences with his wife. He told them his wife wanted some money that he had collected from them and on 16th March, she came to their place of work and told them that she wanted to be given Kshs. 100,000/= to withdraw a case and if not given she will have accused charged.
19. During cross examination he stated that he was not with accused on the material date and did not know what transpired inside accused’s house that night.
20. Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial court convicted him of the main charge and sentenced him to 15 years’ imprisonment.
21. Being aggrieved with the sentence and conviction, the Appellant filed an Amended Memorandum of Appeal dated 7th November 2025 premised on the following grounds;
1) The learned trial magistrate erred in law and fact by failing to conduct Voir Dire examination of the PW1 witness before her testimony so as to gauge the witnesses’-being a child-understanding before the preliminary hearing to determine the PW1 witness competency to testify by assessing if they understand the duty to speak the truth. The learned magistrate did not question the child to establish their intelligence and understanding, and whether the process could lead to the child giving sworn testimony or unsworn testimony, depending on their responses before testifying.
2) The learned trial magistrate erred in law and fact in finding that the appellant inserted his private parts in the private part of the complainant PW1 yet the medical evidence was contrary as there was no proof of penetration.
3) The learned trial magistrate erred in law and fact in finding that the complainant had been defiled on 14/03/2021 yet medical documents presented to the court found that the genitalia of the complainant was normal and there was no tears or lacerations or blood and she had no infections whatsoever.
4) The learned trial magistrate erred in fact and in law and in assuming without evidence that the appellant must have defiled the complainant earlier than on the date of the charge sheet as the complainant had an old broken hymen and so it was possible that the appellant had defiled the complainant.
5) The learned trial magistrate erred in fact and in law by failing to appreciate evidence and the expert testimony by the medical officer to the effect that the complainant's old broken hymen could be as a result of other factors.
6) The learned magistrate erred in law and fact by ignoring the finding of the Clinical Officer who clearly upon examination made a finding that there was no spermatozoa in the Vagina of the Complainant thus limiting any possibility of sexual defilement.
7) The Learned Magistrate made a glaring and palpable error in convicting the accused person on a supposed section of law that was non-existent in the charge sheet thereby assuming and allocating herself the duty of a prosecutor.
8) The learned trial magistrate erred in law and fact by failing to note that the complainant was being severely beaten/tortured by her mother and this led to neighbours coming out to help the complainant and for the complainant to escape the severe beatings, she claimed she had something to tell the mother and the neighbours to the effect the appellant defiled her and that this could have been a natural survival instinct to divert severe beating.
9) The learned trial magistrate erred in law and fact in not finding that the complainant had been stealing water from the neighbour for some time and thus it was possible for her to make a false statement to avoid being flogged.
10) The learned trial magistrate erred in law and fact by failing to call for or question why a DNA analysis of the whitish discharge from the PW1 witness's private part was not conducted to confirm whether this was the accused’s semen as a logical conclusion of the act of rape despite glaring lapses in the testimony of various witnesses.
11) The learned trial magistrate erred in law and fact in not warning herself before convicting solely on the uncorroborated evidence of a child given the possibility of the child being coached by her mother who had attempted to extort a whooping Kshs. 100,000/= from the accused to drop the case. The learned magistrate misdirected herself stating that the accused never raised this himself except through a witness.
12) The learned trial magistrate erred in law and fact by failing to question why the prosecution left out crucial and potential witness to the court i.e.
I. The brother of the complainant who sleeps in the same room as the complainant and was present during the alleged defilement.
II. ‘Mama Brian’ the neighbour who stopped PW2 from beating PW1 and to who PW1 is alleged to have confessed that she was defiled by the appellant.
III. “Mama Maina” who also heard PWI confess of alleged defiled defilement and who together with Mama Brian checked PW1 private part by beaming a torch.
13) The appellant brother who said the matter should be resolved.
14) The learned trial magistrate erred in law and fact by not questioning how PW1 could have been defiled while every family member of PW1 was in the house and no one heard any commotion and the home is a mabati house and yet PWI states she had pain and this, she must have screamed or made some noise to wake up her mother or her big brother who was sleeping next to her on the other bed.
15) The law offices of Ogwoka Ndege and Company Advocates be allowed to replace the firm of Wanjohi Gachie and Company Advocates to come on records for the appellant.
Appellants’ Submissions
22. Counsel submitted that it is trite that the burden of proof in criminal cases is beyond reasonable doubt and such burden vests on the Prosecution and does not shift to the Accused. Reliance was placed on Elizabeth Waithegeni Gatimu vs. Republic [2015] eKLR.
23. Counsel urged that the prosecution failed to prove the charges levelled against the Appellant thus failing to discharge their burden. All the evidence adduced by them only created more doubt rather than discharge it.The same goes for their witnesses. Counsel urged that it was PW1’s testimony that she was caught stealing water and it was for this reason that her mother severely beat her up. PW2 confirmed beating her up not once but twice to a point that mama Brian came out to see what was going on. It is at this point that PW1 told mama Brian to ask her mother to stop beating her as she had something to tell her. PW2 was hesitant as she thought PW1 wanted to escape thus mama Brian had to hold her. It is at this point that she stated the Appellant had defiled her.
24. Counsel urged that the complainant was first beaten by her mother after she was caught and her mother’s sister-in-law accused them of stealing water thus causing them to have high water bills. She was then beat up a second time when her mother dragged her out of the house after instructing her to light the jiko but before she did. It is at this point that Mama Brian came out and on inquiring why PW1 was been beaten up, PW2 stated that it was because Mama Brian’s mother had accused them of stealing. This was contrary to her earlier testimony that it was Mama Brian that accused them of stealing.
25. Counsel urged that PW2 carried on with the beating until she was asked to stop by Mama Brian who claimed that PW1 wanted to tell her something. Thus, it is possible that the complainant as a natural survival instinct stated that she had been defiled in a desperate attempt to avoid being flogged further. Additionally, it is also possible that she was lying owing to the fact that her mother’s in laws had realized the water bills had significantly increased meaning she had been stealing for a while and had perfected the craft until the fateful day that she was caught.
26. Counsel reproduced the testimonies of the prosecution witnesses, urging that PW3 testified that after the matter was reported to her by PW1 and PW2 she interviewed them and subsequently visited the scene but did not find another witness. That this is baffling bearing in mind the fact that PW1 had an older brother with whom she shared a room and that from the facts herein, it is clear that Mama Brian and Mama Maina were also close neighbours to PW1. That it was PW1’s testimony that she shared a room with her older brother, a male, albeit sleeping on separate beds a fact that was confirmed by both PW2 and the Appellant. However, the investigating officer never interviewed and cleared him with regards to the report that his sister had made. PW1’s assumptions that he was deep sleeper and did not hear anything on the fateful night were never actually ascertained by the investigating officer and Court.
27. Counsel urged that additionally, PW2 testified that PW1 told her she was being defiled in the presence of Mama Brian and later Mama Maina. Similarly, these individuals were never interviewed by the investigating officer as regards PW1’s statements and what they saw when they checked her. Further, the alleged statement by Mama Maina alluding to previous similar acts by the Appellant was never verified thus begging the question whether the same was actually ever said.
28. Counsel posited that from the testimonies of the prosecution witnesses, it is crystal clear that PW1 was not brought up in confinement and isolation from the outside world but rather lived a normal life like any other child. She went to school, church and even associated with other adults and children. Thus, it is not disputed that she had a lot of interactions with other people other than the Appellant, none of whom were questioned and cleared by the investigation officer hence raising the question whether there was actually any investigation done.
29. Counsel reproduced the evidence of PW4 and urged that from her testimony, there was no indication that the complainant referred to other incidents prior to the one of 14/03/2021. Further, that there were no further tests done on the discharge so as to establish what it was and if it relates to the Appellant in any way. Furthermore, the medical report failed to draw any nexus between the complainant and the Appellant herein.
30. Counsel urged that PW2 stated that she and the Appellant had been staying together for about two years. PW1, however never specifically indicated to the Court when the supposed other three incidents preceding the one herein specifically took place. PW2 in her testimony stated that PW1 had earlier stated that the incident happened once then later changed and stated that it happened four time, this contradiction and inconsistency goes to the very core of the complaint’s testimony.
31. PW1 testified that the Appellant had a torch that he illuminated at her when he entered the room. That PW1 also stated that the person that defiled her did not speak to her. She stated that she knew it was the Appellant because he entered her mother’s bedroom. Counsel urged that this is nothing but an assumption that was never ascertained. The whole house was dark and even when asked, PW1 could not state what clothes he was wearing. Thus, casting doubt as to whether she actually identified the correct perpetrator, if any.
32. Counsel urged that the evidence as presented by the prosecution was inherently inconsistent and such inconsistency ought to have been resolved in favour of the accused which the court ignored and erred by finding the evidence was consistent. Reliance was placed on Richard Munene vs. Republic [2018] eKLR and Mary Wanjiku Gichira v Republic, Criminal Appeal No 17 of 1998.
33. Counsel urged that the Appellant’s defence was not properly considered before being rejected by the trial court for the reason that it cast doubt on the prosecution’s case. Counsel urged that the Court finds that there were contradictions and inconsistencies on the prosecution’s case to the benefit of the Appellant and that the Appellant’s defence was not properly considered before being rejected by the trial court.
Respondents’ submissions
34. Counsel for the state urged that the offence of defilement for which the appellant was charged with, is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) as read with Section 8(3) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. This was restated in George Opondo Olunga vs. Republic [2016] eKLR).
35. On penetration, Counsel reproduced the testimony of PW4 and stated that he explained that the conclusion was that there were chances of attempted defilement. He cited the definition of Penetration as per Section 2 of the Sexual Offences Act and urged that in the present case, there is no doubt there was penetration; as the minor herself explained there was defilement on multiple times and even if the medical doctor concluded there was attempted defilement, it shows there was an old hymen that was broken.
36. On identification, Counsel urged that PW1 explained that it was the appellant who defiled her. Counsel reproduced the victim’s testimony and submitted that the case was not a fabrication. The minor had been threatened by the appellant and the evidence of PW2 shows that even at the hospital, the appellant was still intimidating the minor not to speak. Counsel pointed out that the minor was 10 years at the time of the offence at which age threatening a child will ensure she doesn’t speak which is what the appellant intended to do. This however did not stop her from speaking when the truth was discovered and it was confirmed by the medical officer.
37. Counsel urged that there were only four (4) people living in the house at the time: the appellant, PW2 his wife and their two children. The minor was able to explain in detail what the appellant did to her and we submit that his identity was proved beyond reasonable doubt.
38. On sentence, Counsel urged that the trial court imposed a sentence of 15 years after considering the appellant’s mitigation as well as the pre-sentence report. She rightly pointed out the effect of the action on the victim and that he was not remorseful. Counsel submitted that the powers of the High Court under Section 354 of the Criminal Procedure Code give the court powers to alter the sentence. In this case, the sentence imposed was illegal and the appellant ought to have been sentenced under the aforementioned section 8(2).
39. Counsel cited the decision in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) in which the Supreme Court stated that courts are to be bound by the provisions of the Sexual Offences Act in sentencing as the law has not been amended. He urged the court to invoke its powers to alter the sentence and impose the required sentence in law.
Analysis & Determination
The issue for determination is whether the appeal has merit.
In a first appeal the appellant is entitled to expect this Court to subject the evidence on record as a whole to an exhaustive re-examination and to this Court’s decision on the evidence having given allowance to the fact that this court did not see the demeanour of witnesses. Further even where the appeal turns on a question of fact, the Court has to bear in mind that its duty is to rehear the case, and the Court must reconsider the materials before the trial Court with such other materials as it may have decided to admit.
41. The Court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it. See Pandya vs. R [1957] EA. 336 and Coghlan vs. Cumberland (3) [1898] 1 Ch. 704.
42. However, it must be stated that there is no set format to which a re-evaluation of evidence by the first appellate court should conform. The Supreme Court of Uganda in the case of Uganda Breweries Ltd v. Uganda Railways Corporation [2002] 2 EA 634, thus:
“The extent and manner in which evaluation may be done depends on the circumstances of each case and the style used by the first Appellate Court. In this regard, I shall refer to what this court said in two cases. In Sembuya v Alports Services Uganda Limited [1999] LLR 109 (SCU), Tsekooko JSC said at 11: ‘I would accept Mr. Byenkya’s submission if he meant to say that the Court of Appeal did not go into details of the evidence, but that is really a question of style. There is really no set format to which the re-evaluation should conform. A first Appellate court is expected to scrutinise and make an assessment of the evidence but this does not mean that the Court of Appeal should write a judgment similar to that of the (trial).’”
43. In the case of Odongo and Another vs. Bonge Supreme Court Uganda Civil Appeal 10 of 1987 (UR), Odoki, JSC (as he then was) said: “While the length of the analysis may be indicative of a comprehensive evaluation of evidence, nevertheless the test of adequacy remains a question of substance.” In Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal stated thus:
“1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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.
2. 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; 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.”
44. Section 8 of the Sexual Offences Act provides as follows:-
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if -it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(a) the accused reasonably believed that the child was over the age of eighteen years.
(6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.
(7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’ s Act.
(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.”
45. In the instant appeal, in order for the appellant to succeed, he must demonstrate that the court fell into an error leading to his illegal Conviction and sentence. I will begin with the issue raised by the appellant on the failure to call the alleged vital witnesses.
46. Section 143 of the Evidence Act provides that: No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. I am guided by the case of Mwangi vs. R [1984] KLR 595 where this Court stated: “Whether a witness should be called by the prosecution is a matter within the discretion of the prosecution and the court will not interfere with that discretion unless it may be shown that the prosecution was influenced by some oblique motive.”
47. The prosecution is not duty bound to call all persons involved in the transaction and his failure to call them is not necessarily fatal unless the evidence adduced by him is barely sufficient to sustain the charge.
48. In Keter vs. Republic [2007] 1EA135 the court was categorical that:- “The prosecution is not obligated to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.”
49. The Court of Appeal sitting in Mombasa in Sahali Omar vs. Republic [2017] eKLR held that:
The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt (see. Keter v Republic [2007] 1 EA 135). In this case, the testimony and evidence adduced by the five prosecution witnesses was sufficient to prove that the complainants had been defiled by the appellant. As such, the situation hardly called for the drawing of an adverse inference with regard to the ‘missing’ witnesses.”
50. The Court of Appeal stated in Benjamin Mbugua Gitau vs. Republic [2011] eKLR that:
“It would have been clinical to call the two boys who first made the arrests to give evidence, but the two courts below accepted the evidence of PW2 and PW5 who also arrived at the scene and found the appellant and the complainant in a distressed state and reported immediately what had befallen her. This Court has stated severally that there is no particular number of witnesses who are required for proof of any fact unless the law so requires – see section 143 Evidence Act. In the circumstances therefore we find that no prejudice was caused to the appellant or to the prosecution by failure to call the two boys.”
51. It is my finding and I so hold that this ground fails.
The court now turns its attention to the ingredients that form the offence of defilement. In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was stated that:-
“The critical ingredients forming the offenc
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