In the lower court, the appellant was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act particulars being that on diverse days between 5 th September 2022 and 8 th September 2022 at Wataalam area in Ruiru Sub-County within Kiambu County intentionally and unlawfully caused his penis to penetrate the vagina of LAO a child aged 10 years. He also faced alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act particulars being that on diverse days between 5 th September 2022 and 8 th September 2022 at Wataalam area in Ruiru Sub-County within Kiambu County intentionally touched the vagina of LAO a child aged 10 years.
The prosecution called four witnesses while the appellant testified without calling any witness. The appellant was convicted of the main count and sentenced to serve life imprisonment. Aggrieved by both conviction and sentence, the appellant has approached this court seeking to have the same set aside in reliance on the following grounds which I comprehend despite the grammatical issues therein;
1. THAT the learned Magistrate failed in law and facts considering the evidence adduced by the doctor was not enough to warrant conviction.
2. THAT the learned Magistrate in failed law and facts that the first report of the complainant was doubtful according to other witnesses’ testimonies.
3. THAT the learned Magistrate failed in law and facts convicting me basing on witnesses’ evidence which was fully contradictory.
4. THAT the learned Magistrate failed in law and facts by failing to give due consideration on the plausible defense.
5. THAT the learned Magistrate failed in law and facts to rely on prosecution evidence that was riddled with contradictions and discrepancies leading to selective judgment.
6. THAT I pray to be furnished with copy of the trial records and judgment to be able to raise more grounds during the appeal hearing.
It is trite that in a first appeal, the court is obligated to evaluate, consider and ranalyze the evidence produced before the trial court afresh and come to its own independent conclusion. A first appeal is considered as form of a re-hearing but with difference that the parties do not adduce evidence before the appellate court unless with the leave of the court and in exceptional and special circumstances. Additionally, the appellate court must always give allowance to the fact that it did not take the evidence of the parties and did not have the opportunity and advantage of observing the demeanour of the witnesses. After citing several authorities on this point, Justice Joel Ngugi (as he then was) summarized it as follows in Ndungu Dennis v Ann Wangari & Eddah Mwihaki [2018] KEHC 8799 (KLR);
‘The appropriate standard of review established in these cases can be stated in three complementary principles:
i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.’
Based on the above position, this court will, before going to the analysis, reproduce the relevant parts of the evidence as recorded in the proceedings.
Prosecution’s (respondent’s) case
The first witness was the complainant who gave unsworn statement after the court conducted a voire dire examination and formed opinion that she was intelligent enough to answer questions but due to her age, she was only suitable for unsworn statement. She told the court that she was in grade 5 at Githunguri primary school and lived at Fort Jesus with her parents and a younger brother. On 5-09-2022 while she was going to school, she met someone she knew seated at their gate. The man who she identified as Karish and Joseph who was her father’s friend stood up and called her but she refused. He held her hand and told her to go to his house which was not far from their home and she went with him.
She added that they entered his house which had a bed and he told her to lie on the bed after removing all her clothes. She was in school uniform. She also wore a skirt, a blouse, a pant inside the uniform and a school sweater. She described the man as having been wearing a blouse and a trouser which he removed and lay on her and had sex with her.
The child added that after they finished, the man told her to dress and go to Sylvia’s place which she did. She complied and went to Sylvia’s house after she put on home clothes which she was wearing inside the school uniform. She left her uniform and bag in the appellant’s house. She added that she did not go to school and went home at 5 pm in her school uniform. She added that she did not tell her mother what happened that night out of fear.
On 6-09-2022, she left for school and found the appellant at the same spot at 6 am and he again told her to go to his house which she did where he removed her clothes and had sex with her. She did not go to school but again went to Sylvia’s house, leaving her uniforms at the appellant’s house and went for them in the evening after which she went home at 5 pm. She added that in those days, she would not find the appellant at home in the evening. The appellant used to leave his key to the house under a stone which he had shown her. The child stated further that, the appellant told her that he would be waiting for her every morning and he would to give her Kshs 20/= which she used to buy buns.
On 7-09-2022 and 8-09-2022, she left home again at 6 am and repeated the same thing but on the latter date, when she arrived home at 5 pm, her father asked her whether she was going to school which she replied in the affirmative but her father beat her accusing her of lying upon which she told him the truth. She slept at home and the following day, she was taken to hospital and given drugs. She did not tell Sylvia why she was going to her home. She identified the appellant at the dock.
In cross-examination, the child stated that she had known the appellant for long although she could not recall the exact period. She recalled that she had known him since she came from upcountry when she was in grade 1. She added that she did not scream or make noise as the appellant had told her not to. There were people in the neighbourhood but none came and nobody saw the appellant and her together although there were people on the way. She added that no one was in the plot at the times of the incident. She added that Sylvia was the one who told her mother. She was categorical that she would find the appellant at his work place where he welded doors.
Jackline Anyango Olwal who lived in Wataalam and sold samosa at Fort Jesus was the second prosecution witness. She told the court that she knew the appellant who used to visit the next plot where there was welding place for her landlord. She testified that on 8-09-2022, her neighbour one Sylvia came and found her washing and asked her where the complainant was. Sylvia told her that the child was at her workplace and had not gone to school for a week and that the child had told her that her school fees had not been paid. The child would arrive at Sylvia’s place at 6 am in home clothes and leave in the evening.
The witness added that she asked Sylvia not to alert the child and when the child came home in the evening in uniform, she asked her where she was from and she told her that she was from school. The witness told the child that she was lying upon which the child told her that the man who used to go to the welding place normally told her to go to his house. She then looked for the appellant and when she found and asked him whether he was the one who made her child not to go to school, he denied.
PW2 added that he called the child but before the child arrived, the appellant tried to run away but people arrested him. The child told her that the appellant would normally wait for her at the gate and that he tried to insert his fingers and have sex with her then give her Kshs 20/= then tell her to go and play then come back for her uniform. According to the witness, the child said that she left her uniform at the appellant’s house. The child took her to the appellant’s house where there was no bed but an old mattress on the floor where he slept.
Jackline stated further that, her husband was present when the appellant was arrested and that they took the appellant to Ruiru police station. At the police station, they were told to take the child to hospital which they did and the child was treated. She was told that the accused tried to penetrate her vagina but had not succeeded. She added that the child was born on 10-11-2012 and identified the appellant and said that she heard him being called Karis by those who arrested him.
In cross-examination, the witness stated that she found the appellant near Rockvilla at 8 pm. She denied that the appellant was in Kitengela and reiterated that the appellant was running away when he was arrested by . He started running away when the witness told him that she was going to get the child from the house. She added that the child told her after one week and that is the day the appellant was arrested. She insisted that the child was ten years and not twelve and added that the doctor confirmed that the child was defiled.
PW3 was Dr. Dennis Omondi Odhiambo a medical officer at Ruiru level 4 hospital. He testified that the child was treated on 9-09-2022 at their facility by one Brian, a clinical officer. A P3 form was filed by Dr. Irungu with whom he had worked for two years but had been transferred. The appellant had no objection to the witness testifying on behalf of Dr. Irungu.
The doctor testified further that the history of the child was that she was taken from her uncle’s place where she had stayed from 5-09-2022. She was in fair condition and looked confused. The child had said that she was involved in sex with a man. The outer of her genitalia was normal, the vagina was normal but the hymen was missing and she had whitish discharge from her private parts. The discharge had high pus cells but she tested negative for HIV and she was given antibiotics and non-exposure drugs.
The witness added that PRC form for the child was filled by Brian while the P3 form was filled Dr. Irungu who had indicated that she had changed clothes but the clothes still had discharge. Degree of injury was classified as grievous harm. He proceeded to produce an outpatient card, PRC form and P3 form as exhibits 1, 2 and 3 respectively and added that the child was defiled as she ought to have had hymen. The card showed that the child was 12 years. He concluded by stating that it is not a must for one who is defiled to bleed but the hymen can be broken.
In cross examination, the witness stated that the child had been defiled for four days and that they did not conduct a DNA test. He completed his evidence by stating that the appellant was not brought to the hospital for examination.
The investigating officer one PC Scalet Kalamu attached to Ruai police station was the fourth and the last witness for the prosecution. He told the court that after the incidence was reported at the station and file allocated to him, he established that the suspect was the appellant. The witness’ testimony was largely a repetition of what he gathered from the witnesses during his investigations. He stated that he took the child to Ruiru Sub-County hospital where P3 form was filled and on the basis of the evidence gathered, he charged the appellant. He obtained a birth certificate which showed that the child was born on 10-11-2012 which he produced as exhibit 4. He added that the child identified the appellant at the police station and during arrest.
On cross-examination, he maintained that the appellant was identified by the complainant and he did not have photographs. He added that the appellant’s fingerprints were not on the child’s dress. He stated further that the neighbour did not want to be disclosed.
Defence (appellant’s) case
In his unsworn statement, the appellant told the court that on 9-09-2022, he came from work at Athi River and when he alighted from the matatu, he heard three people behind him. While at an mpesa shop transferring money, a former colleague called him outside and asked him to give him some money as he had not been paid. He added that his phone rang and he noted that he was being called from home. His friend asked to accompany him. He saw six other people who knew where he was coming from and upon seeing them, he ran away and he fell down and he was arrested.
The six people took his phone and money and at that point, a lady called Jackline showed up and claimed that another lady called Atieno had disappeared from her house. He was taken to some boda boda riders as they said he knew the whereabouts of the lady called Atieno. He was taken to the police station. He had been beaten up and was bleeding. He claimed that he was told to keep quiet whenever he wanted to say anything.
The appellant added that Jackline and his late wife were members of the same merry go round association and that his wife died just before her turn for receiving the contribution from the association. He claimed that he was arrested because he was following up his deceased wife’s money which was due from the aforesaid association.
Analysis and determination
I have read the proceedings, the testimony of the parties and the judgment of the court as well as the submissions of the appellant dated 2 nd July 2025. Despite Miss Torosi for the respondent telling me on 11-09-2025 that she had filed submissions, I have not traced any in the file or the case tracking system. I have also carefully gone through the four exhibits produced in court.
Going by the grounds of appeal reproduced above, the appellant contends that the ingredients of the offence of defilement were not proved considering the weight of the evidence produced by the respondent. He also contends that the evidence of the child was not truthful considering the fact that she mentioned him after she was beaten by her father and that she was unreliable because she was inconsistent.
The ingredients of the offence of defilement have been settled as proof of penetration, identification of the offender and the age of the child. This has been so held in many judicial authorities including Isaac Odhiambo Abuoro v Republic [2021] KEHC 5998 (KLR) where Honourable Justice Kiarie Waweru Kiarie stated that;
‘An offence of defilement therefore, is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator; and
c) The age of the victim must be below eighteen years.’
The appellant has argued that the age of the child was not sufficiently proved because there were inconsistences between the birth certificate, the medical card and the oral testimony of the witnesses. It is true that the birth certificate shows that the child was born on 10-11-2012 while the treatment card produced as exhibit shows that the child was 12 years. According to appellant, the evidence of the child portrayed explicit evidence which could not come from a child of 10 years. He argues further that, the trial court did not in its judgment, mention or address the age of the child.
The age of a person may be established in many ways none of which is exclusive of the others. It may be proved through medical and life milestone records, oral evidence or age assessment report from qualified professionals. I do not think that a treatment card alone can prove age because it is a record which is obtained from different sources. It may be history given by the patient, their minders or third parties or from primary documents of the patient. A treatment card cannot be more factual than a birth certificate. The mother of the child was categorical that the child was ten years and she even mentioned the exact date of birth. The P3 form which is also a medical document talks of ten years on the first page and 12 years in item 1 of Part II section “C”. in my view, P3 form and treatment card are not a properly called, age assessment reports. I see no reason to doubt the birth certificate and the testimony of PW2 on the age of the child.
On penetration, the appellant has submitted that it was not proved because the only evidence was the word of the child who was not truthful. He argues that the insincerity of the child is manifested in the fact that, she did not disclose the ordeal to anyone for four days and she only did so after she was beaten by her father. He casts doubts that a child can be defiled for four consecutive days and still walk and act normally.
The charge is that the child was defiled between 5 th and 8 th September 2022. The child stated that the appellant had sex with her for four days while the mother alluded to the fact that the appellant at some time tried to penetrate but was unsuccessful which words were not from the child. It is not a coincidence that the child went into the house of the appellant for four days and came out with broken hymen and discharge from the vagina. I find the evidence of the child who was the only eye witness to the act consistent. Whether they had sexy on one or the four days she went into the house is not material. What is material is that the appellant had sex with the child even if it was not complete.
In my opinion, the fact that the complainant disclosed her ordeal after being beaten by her father does not affect the weight of the evidence. There is no evidence that the child was forced to implicate the appellant out of all the neighbours around them. She had no reason to pick on the appellant only. She did not say that the father or mother wanted her to name a particular person. If all the other evidence availed to the court pointed to the appellant having committed the act, it does not matter the circumstances under which the child disclosed the details of the incidence.
True, the absence of hymen is not the only prove of penetration and hymen can be broken by anything else. However, that fact alone cannot exonerate an accused person where there is other corroborative evidence. The status of the hymen would be useful to an accused person if it is found to be intact despite claim of penetration. In that instance, it will to some degree create doubt in the prosecution’s case.
In this matter, the child gave a narration of the appellant having had sex with her and there was no explanation of whether the sex was complete or partial. Therefore, the argument by the appellant that it was not possible for the child to be defiled for four days and walk or act normally does not in my view negate the possibility of defilement. In similar measure, the absence of spermatozoa in the samples taken from her does not eliminate the probability of the offence having been committed. She was found to have whitish discharge and pus cells in her urine.
The appellant has also argued that the P3 form is not reliable because it had classified the degree of injury as grievous harm. He goes on to explain what grievous harm means. First, the appellant is not a medical doctor and was not competent to go that route. Secondly, the categorisation of the degree of injury is not relevant in this case. It does not matter whether the injuries were harm, grievous harm or maim. What matters is that there was penetration. The totality of all the above evidence, is in my view proof of penetration.
I now turn to the ingredient of identification. The appellant’s testimony appears to me to have been an attempt to show that he was falsely implicated by the child’s mother because he was following up his wife’s dues. However, he did not demonstrate any reason that would have driven the complainant and her mother to implicate him in such a heinous offence. The mother had not interacted with the appellant neither was there any grudge demonstrated. All that the appellant said in regard to this point was that he was arrested because he was following up his late wife’s money which was due from a welfare group one Jackline who I believe was meant to be PW2 and his wife were members. There was no such evidence and this was an afterthought and an escapist defence.
The appellant has also argued that the complainant having been untruthful and Sylvia having not been called to testify, the prosecution’s case was weakened. It is trite that the prosecution does not need to call everyone who had details of the incident. There is no particular number of witnesses which the prosecution must call in order to secure a conviction. The investigating officer testified in cross-examination that the neighbour was not willing to be disclosed. The said Sylvia’s evidence in my opinion would not have added value to the case, neither did her absence diminish the strength of the case. The child did not tell Sylvia what happened between her and the appellant. I do believe that PW2’s evidence on what she did after she was informed of the child visiting the appellant and missing school was enough to cover that area. In Kamau v Republic [2024] KECA 1022 (KLR), the Court of Appeal held that;
‘On the ground of appeal that some vital witnesses were not called to testify, it is trite that it is not the quantity of the evidence but the quality, that matters. Section 143 of the Evidence Act is on point in regard to this issue. It stipulates that:
“No particular number of witnesses shall in the absence of any provisions of law to the contrary be required for purposes of proof of any fact.”
It is indisputable that the appellant was known to the complainant as Kaish or Joseph. He is said to have been a friend of the complainant’s father. The complainant knew where he worked and she was able to identify him at the time of his arrest by the public, at the police station and in court. The complainant testified that she came to the area while she was in grade one and at the time she testified, she was in grade five. That means at the time of the offence, she had been in the area for a minimum of four years. The appellant lived and worked not far from the complainant’s home. Even the appellant’s testimony is indicative of the fact that the appellant was known to the family. This was identification by recognition.
The appellant faults the identification by quoting a statement given by the doctor (PW3) during his testimony to the effect that the history of the child was taken from her uncle’s place where she had stayed from 5-09-2022. The appellant argues that this contradicts the complainant’s testimony in which she did not mention being in her uncle’s house. In my view, this is a insignificant variance and it is not every variance or contradiction that must lead to an acquittal.
For contradictions to create a reasonable doubt entitling an accused person to an acquittal, it must be material and go into the core of the matter. The core of the matter is that the appellant defiled the complainant in his house. The evidence available is that it happened. Whether the complainant referred to the appellant as Karis, uncle or Joseph is not material because she was able to identify him by recognition and narrate the events of the four days with consistency.
In view of the above discussion, this court finds that the conviction of the appellant was safe and there is no reason to disturb it. Section 8(2) of the Sexual Offences Act provides that;
‘ 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.’
I have already found that the child in this matter was less than eleven years. In that regard, the sentence meted upon the appellant was lawful.
Inevitably, the conclusion herein is that this appeal lacks merits and the same is disallowed.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of the appellant online from Kamiti Maximum Prison and Miss Torosi for the respondent.
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The prosecution called four witnesses while the appellant testified without calling any witness. The appellant was convicted of the main count and sentenced to serve life imprisonment. Aggrieved by both conviction and sentence, the appellant has approached this court seeking to have the same set aside in reliance on the following grounds which I comprehend despite the grammatical issues therein;
1. THAT the learned Magistrate failed in law and facts considering the evidence adduced by the doctor was not enough to warrant conviction.
2. THAT the learned Magistrate in failed law and facts that the first report of the complainant was doubtful according to other witnesses’ testimonies.
3. THAT the learned Magistrate failed in law and facts convicting me basing on witnesses’ evidence which was fully contradictory.
4. THAT the learned Magistrate failed in law and facts by failing to give due consideration on the plausible defense.
5. THAT the learned Magistrate failed in law and facts to rely on prosecution evidence that was riddled with contradictions and discrepancies leading to selective judgment.
6. THAT I pray to be furnished with copy of the trial records and judgment to be able to raise more grounds during the appeal hearing.
It is trite that in a first appeal, the court is obligated to evaluate, consider and ranalyze the evidence produced before the trial court afresh and come to its own independent conclusion. A first appeal is considered as form of a re-hearing but with difference that the parties do not adduce evidence before the appellate court unless with the leave of the court and in exceptional and special circumstances. Additionally, the appellate court must always give allowance to the fact that it did not take the evidence of the parties and did not have the opportunity and advantage of observing the demeanour of the witnesses. After citing several authorities on this point, Justice Joel Ngugi (as he then was) summarized it as follows in Ndungu Dennis v Ann Wangari & Eddah Mwihaki [2018] KEHC 8799 (KLR);
‘The appropriate standard of review established in these cases can be stated in three complementary principles:
i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.’
Based on the above position, this court will, before going to the analysis, reproduce the relevant parts of the evidence as recorded in the proceedings.
Prosecution’s (respondent’s) case
The first witness was the complainant who gave unsworn statement after the court conducted a voire dire examination and formed opinion that she was intelligent enough to answer questions but due to her age, she was only suitable for unsworn statement. She told the court that she was in grade 5 at Githunguri primary school and lived at Fort Jesus with her parents and a younger brother. On 5-09-2022 while she was going to school, she met someone she knew seated at their gate. The man who she identified as Karish and Joseph who was her father’s friend stood up and called her but she refused. He held her hand and told her to go to his house which was not far from their home and she went with him.
She added that they entered his house which had a bed and he told her to lie on the bed after removing all her clothes. She was in school uniform. She also wore a skirt, a blouse, a pant inside the uniform and a school sweater. She described the man as having been wearing a blouse and a trouser which he removed and lay on her and had sex with her.
The child added that after they finished, the man told her to dress and go to Sylvia’s place which she did. She complied and went to Sylvia’s house after she put on home clothes which she was wearing inside the school uniform. She left her uniform and bag in the appellant’s house. She added that she did not go to school and went home at 5 pm in her school uniform. She added that she did not tell her mother what happened that night out of fear.
On 6-09-2022, she left for school and found the appellant at the same spot at 6 am and he again told her to go to his house which she did where he removed her clothes and had sex with her. She did not go to school but again went to Sylvia’s house, leaving her uniforms at the appellant’s house and went for them in the evening after which she went home at 5 pm. She added that in those days, she would not find the appellant at home in the evening. The appellant used to leave his key to the house under a stone which he had shown her. The child stated further that, the appellant told her that he would be waiting for her every morning and he would to give her Kshs 20/= which she used to buy buns.
On 7-09-2022 and 8-09-2022, she left home again at 6 am and repeated the same thing but on the latter date, when she arrived home at 5 pm, her father asked her whether she was going to school which she replied in the affirmative but her father beat her accusing her of lying upon which she told him the truth. She slept at home and the following day, she was taken to hospital and given drugs. She did not tell Sylvia why she was going to her home. She identified the appellant at the dock.
In cross-examination, the child stated that she had known the appellant for long although she could not recall the exact period. She recalled that she had known him since she came from upcountry when she was in grade 1. She added that she did not scream or make noise as the appellant had told her not to. There were people in the neighbourhood but none came and nobody saw the appellant and her together although there were people on the way. She added that no one was in the plot at the times of the incident. She added that Sylvia was the one who told her mother. She was categorical that she would find the appellant at his work place where he welded doors.
Jackline Anyango Olwal who lived in Wataalam and sold samosa at Fort Jesus was the second prosecution witness. She told the court that she knew the appellant who used to visit the next plot where there was welding place for her landlord. She testified that on 8-09-2022, her neighbour one Sylvia came and found her washing and asked her where the complainant was. Sylvia told her that the child was at her workplace and had not gone to school for a week and that the child had told her that her school fees had not been paid. The child would arrive at Sylvia’s place at 6 am in home clothes and leave in the evening.
The witness added that she asked Sylvia not to alert the child and when the child came home in the evening in uniform, she asked her where she was from and she told her that she was from school. The witness told the child that she was lying upon which the child told her that the man who used to go to the welding place normally told her to go to his house. She then looked for the appellant and when she found and asked him whether he was the one who made her child not to go to school, he denied.
PW2 added that he called the child but before the child arrived, the appellant tried to run away but people arrested him. The child told her that the appellant would normally wait for her at the gate and that he tried to insert his fingers and have sex with her then give her Kshs 20/= then tell her to go and play then come back for her uniform. According to the witness, the child said that she left her uniform at the appellant’s house. The child took her to the appellant’s house where there was no bed but an old mattress on the floor where he slept.
Jackline stated further that, her husband was present when the appellant was arrested and that they took the appellant to Ruiru police station. At the police station, they were told to take the child to hospital which they did and the child was treated. She was told that the accused tried to penetrate her vagina but had not succeeded. She added that the child was born on 10-11-2012 and identified the appellant and said that she heard him being called Karis by those who arrested him.
In cross-examination, the witness stated that she found the appellant near Rockvilla at 8 pm. She denied that the appellant was in Kitengela and reiterated that the appellant was running away when he was arrested by . He started running away when the witness told him that she was going to get the child from the house. She added that the child told her after one week and that is the day the appellant was arrested. She insisted that the child was ten years and not twelve and added that the doctor confirmed that the child was defiled.
PW3 was Dr. Dennis Omondi Odhiambo a medical officer at Ruiru level 4 hospital. He testified that the child was treated on 9-09-2022 at their facility by one Brian, a clinical officer. A P3 form was filed by Dr. Irungu with whom he had worked for two years but had been transferred. The appellant had no objection to the witness testifying on behalf of Dr. Irungu.
The doctor testified further that the history of the child was that she was taken from her uncle’s place where she had stayed from 5-09-2022. She was in fair condition and looked confused. The child had said that she was involved in sex with a man. The outer of her genitalia was normal, the vagina was normal but the hymen was missing and she had whitish discharge from her private parts. The discharge had high pus cells but she tested negative for HIV and she was given antibiotics and non-exposure drugs.
The witness added that PRC form for the child was filled by Brian while the P3 form was filled Dr. Irungu who had indicated that she had changed clothes but the clothes still had discharge. Degree of injury was classified as grievous harm. He proceeded to produce an outpatient card, PRC form and P3 form as exhibits 1, 2 and 3 respectively and added that the child was defiled as she ought to have had hymen. The card showed that the child was 12 years. He concluded by stating that it is not a must for one who is defiled to bleed but the hymen can be broken.
In cross examination, the witness stated that the child had been defiled for four days and that they did not conduct a DNA test. He completed his evidence by stating that the appellant was not brought to the hospital for examination.
The investigating officer one PC Scalet Kalamu attached to Ruai police station was the fourth and the last witness for the prosecution. He told the court that after the incidence was reported at the station and file allocated to him, he established that the suspect was the appellant. The witness’ testimony was largely a repetition of what he gathered from the witnesses during his investigations. He stated that he took the child to Ruiru Sub-County hospital where P3 form was filled and on the basis of the evidence gathered, he charged the appellant. He obtained a birth certificate which showed that the child was born on 10-11-2012 which he produced as exhibit 4. He added that the child identified the appellant at the police station and during arrest.
On cross-examination, he maintained that the appellant was identified by the complainant and he did not have photographs. He added that the appellant’s fingerprints were not on the child’s dress. He stated further that the neighbour did not want to be disclosed.
Defence (appellant’s) case
In his unsworn statement, the appellant told the court that on 9-09-2022, he came from work at Athi River and when he alighted from the matatu, he heard three people behind him. While at an mpesa shop transferring money, a former colleague called him outside and asked him to give him some money as he had not been paid. He added that his phone rang and he noted that he was being called from home. His friend asked to accompany him. He saw six other people who knew where he was coming from and upon seeing them, he ran away and he fell down and he was arrested.
The six people took his phone and money and at that point, a lady called Jackline showed up and claimed that another lady called Atieno had disappeared from her house. He was taken to some boda boda riders as they said he knew the whereabouts of the lady called Atieno. He was taken to the police station. He had been beaten up and was bleeding. He claimed that he was told to keep quiet whenever he wanted to say anything.
The appellant added that Jackline and his late wife were members of the same merry go round association and that his wife died just before her turn for receiving the contribution from the association. He claimed that he was arrested because he was following up his deceased wife’s money which was due from the aforesaid association.
Analysis and determination
I have read the proceedings, the testimony of the parties and the judgment of the court as well as the submissions of the appellant dated 2 nd July 2025. Despite Miss Torosi for the respondent telling me on 11-09-2025 that she had filed submissions, I have not traced any in the file or the case tracking system. I have also carefully gone through the four exhibits produced in court.
Going by the grounds of appeal reproduced above, the appellant contends that the ingredients of the offence of defilement were not proved considering the weight of the evidence produced by the respondent. He also contends that the evidence of the child was not truthful considering the fact that she mentioned him after she was beaten by her father and that she was unreliable because she was inconsistent.
The ingredients of the offence of defilement have been settled as proof of penetration, identification of the offender and the age of the child. This has been so held in many judicial authorities including Isaac Odhiambo Abuoro v Republic [2021] KEHC 5998 (KLR) where Honourable Justice Kiarie Waweru Kiarie stated that;
‘An offence of defilement therefore, is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator; and
c) The age of the victim must be below eighteen years.’
The appellant has argued that the age of the child was not sufficiently proved because there were inconsistences between the birth certificate, the medical card and the oral testimony of the witnesses. It is true that the birth certificate shows that the child was born on 10-11-2012 while the treatment card produced as exhibit shows that the child was 12 years. According to appellant, the evidence of the child portrayed explicit evidence which could not come from a child of 10 years. He argues further that, the trial court did not in its judgment, mention or address the age of the child.
The age of a person may be established in many ways none of which is exclusive of the others. It may be proved through medical and life milestone records, oral evidence or age assessment report from qualified professionals. I do not think that a treatment card alone can prove age because it is a record which is obtained from different sources. It may be history given by the patient, their minders or third parties or from primary documents of the patient. A treatment card cannot be more factual than a birth certificate. The mother of the child was categorical that the child was ten years and she even mentioned the exact date of birth. The P3 form which is also a medical document talks of ten years on the first page and 12 years in item 1 of Part II section “C”. in my view, P3 form and treatment card are not a properly called, age assessment reports. I see no reason to doubt the birth certificate and the testimony of PW2 on the age of the child.
On penetration, the appellant has submitted that it was not proved because the only evidence was the word of the child who was not truthful. He argues that the insincerity of the child is manifested in the fact that, she did not disclose the ordeal to anyone for four days and she only did so after she was beaten by her father. He casts doubts that a child can be defiled for four consecutive days and still walk and act normally.
The charge is that the child was defiled between 5 th and 8 th September 2022. The child stated that the appellant had sex with her for four days while the mother alluded to the fact that the appellant at some time tried to penetrate but was unsuccessful which words were not from the child. It is not a coincidence that the child went into the house of the appellant for four days and came out with broken hymen and discharge from the vagina. I find the evidence of the child who was the only eye witness to the act consistent. Whether they had sexy on one or the four days she went into the house is not material. What is material is that the appellant had sex with the child even if it was not complete.
In my opinion, the fact that the complainant disclosed her ordeal after being beaten by her father does not affect the weight of the evidence. There is no evidence that the child was forced to implicate the appellant out of all the neighbours around them. She had no reason to pick on the appellant only. She did not say that the father or mother wanted her to name a particular person. If all the other evidence availed to the court pointed to the appellant having committed the act, it does not matter the circumstances under which the child disclosed the details of the incidence.
True, the absence of hymen is not the only prove of penetration and hymen can be broken by anything else. However, that fact alone cannot exonerate an accused person where there is other corroborative evidence. The status of the hymen would be useful to an accused person if it is found to be intact despite claim of penetration. In that instance, it will to some degree create doubt in the prosecution’s case.
In this matter, the child gave a narration of the appellant having had sex with her and there was no explanation of whether the sex was complete or partial. Therefore, the argument by the appellant that it was not possible for the child to be defiled for four days and walk or act normally does not in my view negate the possibility of defilement. In similar measure, the absence of spermatozoa in the samples taken from her does not eliminate the probability of the offence having been committed. She was found to have whitish discharge and pus cells in her urine.
The appellant has also argued that the P3 form is not reliable because it had classified the degree of injury as grievous harm. He goes on to explain what grievous harm means. First, the appellant is not a medical doctor and was not competent to go that route. Secondly, the categorisation of the degree of injury is not relevant in this case. It does not matter whether the injuries were harm, grievous harm or maim. What matters is that there was penetration. The totality of all the above evidence, is in my view proof of penetration.
I now turn to the ingredient of identification. The appellant’s testimony appears to me to have been an attempt to show that he was falsely implicated by the child’s mother because he was following up his wife’s dues. However, he did not demonstrate any reason that would have driven the complainant and her mother to implicate him in such a heinous offence. The mother had not interacted with the appellant neither was there any grudge demonstrated. All that the appellant said in regard to this point was that he was arrested because he was following up his late wife’s money which was due from a welfare group one Jackline who I believe was meant to be PW2 and his wife were members. There was no such evidence and this was an afterthought and an escapist defence.
The appellant has also argued that the complainant having been untruthful and Sylvia having not been called to testify, the prosecution’s case was weakened. It is trite that the prosecution does not need to call everyone who had details of the incident. There is no particular number of witnesses which the prosecution must call in order to secure a conviction. The investigating officer testified in cross-examination that the neighbour was not willing to be disclosed. The said Sylvia’s evidence in my opinion would not have added value to the case, neither did her absence diminish the strength of the case. The child did not tell Sylvia what happened between her and the appellant. I do believe that PW2’s evidence on what she did after she was informed of the child visiting the appellant and missing school was enough to cover that area. In Kamau v Republic [2024] KECA 1022 (KLR), the Court of Appeal held that;
‘On the ground of appeal that some vital witnesses were not called to testify, it is trite that it is not the quantity of the evidence but the quality, that matters. Section 143 of the Evidence Act is on point in regard to this issue. It stipulates that:
“No particular number of witnesses shall in the absence of any provisions of law to the contrary be required for purposes of proof of any fact.”
It is indisputable that the appellant was known to the complainant as Kaish or Joseph. He is said to have been a friend of the complainant’s father. The complainant knew where he worked and she was able to identify him at the time of his arrest by the public, at the police station and in court. The complainant testified that she came to the area while she was in grade one and at the time she testified, she was in grade five. That means at the time of the offence, she had been in the area for a minimum of four years. The appellant lived and worked not far from the complainant’s home. Even the appellant’s testimony is indicative of the fact that the appellant was known to the family. This was identification by recognition.
The appellant faults the identification by quoting a statement given by the doctor (PW3) during his testimony to the effect that the history of the child was taken from her uncle’s place where she had stayed from 5-09-2022. The appellant argues that this contradicts the complainant’s testimony in which she did not mention being in her uncle’s house. In my view, this is a insignificant variance and it is not every variance or contradiction that must lead to an acquittal.
For contradictions to create a reasonable doubt entitling an accused person to an acquittal, it must be material and go into the core of the matter. The core of the matter is that the appellant defiled the complainant in his house. The evidence available is that it happened. Whether the complainant referred to the appellant as Karis, uncle or Joseph is not material because she was able to identify him by recognition and narrate the events of the four days with consistency.
In view of the above discussion, this court finds that the conviction of the appellant was safe and there is no reason to disturb it. Section 8(2) of the Sexual Offences Act provides that;
‘ 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.’
I have already found that the child in this matter was less than eleven years. In that regard, the sentence meted upon the appellant was lawful.
Inevitably, the conclusion herein is that this appeal lacks merits and the same is disallowed.
Dated signed and delivered at Nairobi this 13 th day of March 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of the appellant online from Kamiti Maximum Prison and Miss Torosi for the respondent.
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