INTRODUCTION
1. The Appellant, Joseph Olumula, was arraigned before the Senior Principal Magistrate’s Court at Vihiga in Sexual Offence Case No. E031 of 2024 on a main count of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 13th day of May 2024 at about 1300 hours at Wamacheze village, Ebukuhunza location in Emuhaya Sub-County within Vihiga County, he intentionally and unlawfully caused his penis to penetrate the vagina of L. A., a child then alleged to be aged 14 years.
2. In the alternative he faced a count of committing an indecent act with a child contrary to Section 11(1) of the same Act, the particulars being that on the same date, at the same time and place, he intentionally and unlawfully touched the vagina of the said L. A. with his penis.
3. He took plea on 15th May 2024 before Hon. P. Karimi (RM) and denied both counts. He was admitted to bond of Kshs. 200,000/= with a surety of a like amount, which he did not take up. He remained in custody from 15th May 2024 to the conclusion of the trial and thereafter.
4. The Prosecution called seven witnesses. At the close of its case the trial Court, by a ruling delivered on 14th January 2025, found that a case had been established and placed the Appellant on his defence. The Appellant elected to give sworn testimony and called no witness.
5. By a judgment delivered on 24th February 2025 the trial Court convicted the Appellant of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, having found, on the strength of an age assessment report, that the Complainant was aged 17 and not 14 years. On 11th March 2025 the Appellant was sentenced to fifteen (15) years’ imprisonment, the trial Court directing that account be taken of the time spent in remand from 15th May 2024.
6. The Appellant was granted leave to appeal out of time by Kamau J. on 10th March 2026 in Vihiga High Court Miscellaneous Application No. E079 of 2025. He filed his Petition of Appeal on 11th March 2026 and, on 21st May 2026, Supplementary Grounds of Appeal together with written submissions. The Respondent filed written submissions through Ms. Leina Davies, Prosecution Counsel, for the Director of Public Prosecutions.
7. Both parties elected to canvass the appeal by way of written submissions. I have considered the record of the Trial Court in its entirety, the exhibits, and the submissions of both sides.
THE GROUNDS OF APPEAL
8. In his Petition of Appeal dated 11th March 2026 the Appellant advanced four principal grounds, namely: that the trial Court erred in law in convicting him when the ingredients of the offence had not been proved beyond reasonable doubt; that it erred in law and fact in relying upon fanciful and remote possibilities; that it erred in law and fact in failing to weigh the conflicting evidence in the Prosecution case; and that it erred in law and fact in failing to appreciate his defence.
9. By his Supplementary Grounds of Appeal dated 19th May 2026 he added three grounds which, in truth, are the substance of his appeal:
a) That the trial Court erred in law and in fact in misconstruing the role and purpose of an intermediary under Section 31 of the Sexual Offences Act, with the consequence that the evidence recorded as that of PW1 ought to be rejected pursuant to Article
50(4) of the Constitution of Kenya, 2010;
b) That the trial Court erred in law and in fact in failing to find that penetration by the Appellant had not been proved to the requisite standard; and
c) That the trial Court erred in law and in fact in its treatment of the age of the Complainant, the dental findings being consistent with a person of 18 years and above.
10. The Appellant prays that the conviction be quashed, the sentence set aside and that he be set at liberty.
THE PROSECUTION CASE
11. The Prosecution case is basically based on the evidence of PW2 who loosely was declared to be an intermediary but that is not the position in law. She stands in as an independent witness for the prosecution within the facets of the Evidence Act. It is on record that the Complainant gave evidence partially but was later turned down due to the observations made by the trial Court that she had challenges in the flow of communication towards the questions being preferred by the Prosecutor as to the chain of events of the crime. There was a request for the medical report on a mental capacity as a competent witness and on being shared with the Court she had been declared unfit to be a State-Prosecution witness.
12. On 15th August 2024 the trial Court conducted a voire dire examination of the Complainant, L. A. She stated that she was 14 years old, lived at Ilungu with her uncle, aunt, grandmother and grandfather, was in Class Five at Ilungu Primary School, knew that lying was bad and wished to tell the truth. She stated that she did not understand what sworn testimony was, but wished to give sworn testimony. The trial Court admitted her to give sworn evidence.
13. She then testified, in Kiswahili, as PW1. Her evidence in chief, recorded in full, was to the effect that on 13th May 2024 at about 1.00 p.m. she was lying in an open field when her father followed her to the cattle pen; that he had asked her to give him a jembe and followed her there; that he closed her mouth with the back of his hand and, in her words as recorded, “akaingiza kitu yake ndani yangu”; that he had undressed her and she felt pain; that the two of them were alone; that she thereafter left and went back to the field and lay there; that a lady came and asked her what had happened and she told her; “wamenirape”; that the lady was shocked and left her laying in the field; that no one else came; that she did not tell anyone else what had transpired; and that she did not go anywhere else. She added that she went home and her neighbour, who was the lady in the field, told her mother, who was shocked. The record indicates that at one point in her evidence he touched her private parts over her clothes.
14. Immediately upon the conclusion of that evidence in chief, and before any cross-examination, State Counsel applied to stand PW1 down in order to take her for mental assessment. The Appellant did not object. The trial Court allowed the application, recording that PW1 seemed not to be altogether well mentally and ordering that she be taken to Vihiga County Referral Hospital for assessment.
15. On 29th August 2024 the Prosecution informed the Court that a mental assessment dated 26th August 2024 had been done, and applied for leave to have the minor testify through an intermediary, one Keziah, a sister of the minor. The Appellant did not object. The application was allowed.
16. On 16th September 2024 the Appellant sought to resile from his non-objection, stating that he had been unwell on 28th August 2024 and had not been in a fit state when he consented. The trial Court declined, observing that Section 3 of the Sexual Offences Act permitted the Court, on its own motion or on application, to declare a witness vulnerable, and that on the strength of the mental status report PW1 was declared a vulnerable witness whose testimony would be received through an intermediary
17. The trial Court then conducted a voire dire examination of Keziah Inziani, who stated that she was aged 14 years old, in Grade 5 at Ilungu Primary School, that she knew one should tell the truth and that liars would be burnt, and that she understood what taking an oath meant. She was admitted to give sworn testimony, the trial Court recording that the minor was admitted to give sworn testimony as an intermediary of the alleged victim.
18. Her evidence was thereafter recorded under the heading PW1: Sworn Testimony in Kiswahili Through an Intermediary. She testified that she knew the alleged victim, who was her sister; that on 13th May 2024 at around 9.30 p.m. she was asleep in the house at Machesi when she heard the Appellant come home and ask after her mother; that the Appellant, whom she identified in Court, is their uncle, being her father’s brother; that her sister was outside the house while she was inside; that the Appellant asked Lydia to bring him a jembe; that when Lydia went to get the jembe the Appellant followed her; that she heard the noise of something falling and went to check; that she found the Appellant on top of her naked sister; that he was dressed in white shorts and a yellow shirt; that he ran off dressing when he saw her; that she went and called a neighbour and was advised to inform a village elder, which she did; that her sister told her the Appellant had taken off her clothes and laid on her, and in the words recorded; “alichukua kitu yake ya siri akaiweka ndani ya kitu yangu ya siri”; that her sister was shocked when she found her; that her sister is not of sound mind, which is why she was testifying; that the incident occurred in their compound in the cow pen; that she reported at Ilungu Police Station; and that she was not present when her sister was taken to hospital by their mother.
19. In cross-examination she stated that she was older than her sister; that she was asleep in the house and not in the farm; that the Appellant came asking for his jembe and did not find it; that she did not know the exact distance from the house to the road; that there is a path near their home to the river; that it was around 1.00 p.m.; that neighbours saw the Appellant running off; that she did not speak to the Appellant about the jembe; and that she heard his voice while inside her mother’s bedroom sleeping. On re-examination she stated that the incident occurred at 1.00 p.m.; that she recognized the Appellant’s voice; that they were not on bad terms with him; that she woke up on hearing him speaking to her sister; that the incident took place in the house and not on the road; and that there were no people crossing on the path to the river at the time.
20. PW2, Emily Khanali, the mother of the Complainant, testified that on 13th May 2024 at 2.00 p.m. she was on her way home, in the company of another relative, when she ran into the Appellant; that he told her he had been at her house looking for his jembe which he suspected her daughters had taken, and that some incident had happened at home for which her daughters were accusing him; that she went home and her daughters told her the Appellant had raped Lydia, had undressed her and inserted his private organs into her private parts; that Keziah was the one who informed her; that Lydia also told her so; that village elders came to her home and were told what had happened and advised that the matter be reported; that her daughter Lydia is not of very sound mind; that she found Lydia had been taken to Kima Hospital; that she had no bad relations with the Appellant; that their houses are in the same compound on different sides; that there is a path leading to the river which the Appellant does not use; and that her daughter is 14 years old and still in school. In cross-examination she said the doctor had confirmed her daughter had been defiled and that her daughters had told her what had happened
21. PW3, Philip Afune, a village elder of Amachese village, testified that on 13th May 2024 a County baraza had been held during the day; that he went home at about 6.00 p.m. and found that a woman had come to file a report; that he went to the woman’s home and she informed him that her in-law had defiled her daughter and that she had already taken the daughter to hospital; that he was in the company of three other village elders; that they went to the Appellant’s home and asked him to follow them to the Assistant Chief’s home; that the Appellant complied; that finding that the Assistant Chief had gone to Ilungu Police Post they proceeded to the
Police Station and reported; that the Appellant’s home is far from the Complainant’s home; and that he interviewed the alleged victim, who told him the Appellant had defiled her and who called him Baba. In cross-examination he said he had been a village elder since 1995; that his home is 20 metres from the Appellant’s; that he was not present during the alleged incident; that he had told the Appellant that the Assistant Chief was calling him about a phone he had recovered, as a ruse to get him to the Police Station; that he found the Appellant with his wife; and that they came at around 11.00 p.m.
22. PW4, Jairus Ombima, testified that on 13th May 2024 at around 9.00 p.m. he was having supper when PW3 came and informed him of a report and asked him to accompany him; that they went to the Complainant’s home and interviewed her; that she said the Appellant had come borrowing a jembe, and that when she went to get it he accosted her near the cow pen and defiled her; that her sister came and saw him whereupon the Appellant dressed quickly and left; that they proceeded to the Appellant’s home at about 10.00 p.m.; that the Appellant is a neighbour and a Pastor; that they knocked and he opened; that the village elder used a ruse about a recovered phone and the Assistant Chief to get him out of his house; and that they took him to Ilungu Police Station where he was taken into custody. In cross-examination he stated, among other things, that it is three metres from the Appellant’s house to the Police Station. On re-examination he said they went to the Complainant’s house at about 9.30 p.m. and to the Appellant’s home at about 10.00 p.m.
23. PW5, Calvin Amayi Esilaba, a Clinical Officer at Emuhaya SubCounty Hospital, Luanda, holding a Diploma in Clinical Medicine and Surgery obtained in 2014 and a Degree obtained in 2022, testified that he examined the minor and filled the Post Rape Care Form, the P3 form and the treatment notes. He said the survivor had been treated on 13th May 2024 for complaints of alleged defilement; that she was tested for pregnancy, HIV, urinalysis and high vaginal swab; that she tested negative for pregnancy and HIV; that there was presence of leucocytes and epithelial cells in the urine; that in the high vaginal swab test there was presence of pus and epithelial cells; that she appeared normal; that she had a broken hymen, whitish discharge and normal genitalia; that he classified the injuries as harm and concluded that the survivor had been defiled as she was a minor. He produced the Post Rape Care Form, the laboratory results and the P3 form as exhibits. In cross-examination he said he did not recall exactly who came with the survivor; that she walked in normally; that from the laboratory test he opined and concluded that there had been defilement; and that he was told the survivor was 14 years old and indicated the same.
24. PW6, Solomon Akoyo Atola, a brick maker of Wamachese, testified that on 13th May 2024 at around 1300 hours there was a Public Baraza which he attended; that he went home at 6.00 p.m., had supper and slept; that in the night PW3 came with PW4 and informed him that the Appellant, a Pastor in the area, had committed an offence; that he accompanied them to the Complainant’s house where the village elder questioned the survivor’s mother; that they thereafter went to the Appellant’s home and used a ruse to lure him out, PW3 falsely telling him that the owner of a phone he had earlier recovered wished to reward him; that the Appellant went with them voluntarily to the Police Station where he was informed of the complaint; and that at the Station the Complainant, when asked her relation to the Appellant, said he was her father. In crossexamination he said they came to the Appellant’s house at 9.00 p.m., that it was dark and rainy, and that the ruse was used so that the Appellant would be arrested before he fled.
25. PW7, No. 244113 PC Everline Olunga (recorded in the judgment as Omunga) of Ilungu Police Post, the Investigating Officer, testified that on 14th May 2024 at about 2.30 a.m. she was at the Station when PW3, PW4 and PW6, members of the Community Policing Committee, brought the Appellant on an allegation of defilement; that she re-arrested and booked him; that the following day the Complainant came with her mother; that she recorded their statements and sent them to Emuhaya Sub-County Hospital for the P3 form to be filled and for examination; that on receipt of the completed P3 and Post Rape Care Forms she found the Appellant eligible to be charged; that she took him to Embali Police Station for charging and arraignment; and that she took the minor for age assessment at Vihiga County Referral Hospital, the report indicating the minor to be 17 years old. She produced the age assessment report as an exhibit. In cross-examination she stated that the Complainant’s mother did not have any birth certificate with her.
26. The exhibits produced were: the age assessment report dated 1st August 2024 (PEXB 1); the Post Rape Care Form (PEXB 2); the laboratory request and report form together with the laboratory results (PEXB 3); and the P3 form, being the Police Medical Examination Report (PEXB 4).
THE DEFENCE CASE
27. The Appellant gave sworn evidence as DW1 on 3rd February 2025. He testified that he is a casual labourer and a Pastor resident at Wamachesa village; that on 13th May 2024 he left home for Ilungu Primary School as it was the opening day and was there until 10.00
a.m.; that he went home and escorted his wife to the stage as she was leaving for her sister’s; that he had left a jembe near the fence for use in his shamba and found it missing when he came back; that he asked the girl whether she had taken his jembe, that she heard him and gave it back to him, and that he went into the farm; that he went home after farming and in the evening went to check on his hard stones; that his wife returned and he informed her of the jembe incident; that they had supper and slept; that at about 10.00 p.m. he heard people talking outside his home and his name being called; that he opened his door and found the village elder Philip, Silas and Solomon; that the village elder told him the owner of the phone he had recovered and handed over was by the road and wanted to see him; that he called the Assistant Chief on his phone but could not get through; that he tried to reschedule the meeting to the following morning but the village elder was persistent; that they went on foot and got to the Assistant Chief’s compound at around midnight; that they diverted into the Police Station where he was shocked to be accused of raping a child; that the police refused to arrest him at night without the Complainant; that the village elder called the Complainant to the station; that he was arrested and held in custody at around 2.00 a.m.; and that he was later taken to another Police Post without being informed of the charges.
28. In cross-examination he stated that his jembe was taken at around 11.00 a.m. on 13th May 2024 and that the minor brought it to him after he asked for it, whereupon he went to farm; that he asked after his jembe loudly and the girl brought it to him; that no other neighbour responded to his loud call; that his home is near the girl’s home and that she is his niece; that there is a path between their compounds; that he called the girl from the farm where she was tilling while he was on the road, and that she brought the implement to him on the road; and that he never went into the girl’s compound.
THE JUDGMENT AND SENTENCE OF THE TRIAL COURT
29. The trial Court identified four issues: whether the alleged victim was a child; whether the Appellant committed an act which would cause penetration with the child; whether the Appellant was positively identified; and whether the Appellant committed an indecent act with a child.
30. On age, the trial Court noted the charge sheet, the evidence of the Complainant, the intermediary and the mother, all putting the Complainant at 14 years, and the age assessment report putting her at approximately 17 years. It preferred the age assessment report, held the Complainant to be a child of 17, and concluded that the proper charge ought to have been defilement contrary to Section 8(1) as read with Section 8(4).
31. On penetration, the trial Court relied on the evidence given through the intermediary, the laboratory results, the P3 form and the Post Rape Care Form. It reasoned that the presence of epithelial cells in the urine and the high vaginal swab is indicative of possible penile penetration and or infection, and that the hymen was broken.
32. On identification, the trial Court observed that the parties are kin and know each other. It then posed a series of questions of its own motion: whether the Appellant merely picked his jembe from the alleged victim by the road and spent the rest of the day in his shamba; who could confirm that he was in the shamba after the brief interaction; who the neighbours were that are said to have seen him running off and why they did not testify; and why the relative who was with PW2 did not testify to corroborate her. Having posed those questions, the trial Court did not answer any of them. It proceeded to observe that the case was essentially that of the complainant as stated briefly and the said intermediary was the only witness who allegedly caught the Appellant in the act, and that the Appellant admits having seen the alleged victim on the said date by the road as she brought back the jembe to him. It then found that the interaction placed the Appellant in close proximity to the alleged victim to have been the one who committed the offence, having been caught in the act by PW1.
33. The trial Court invoked the proviso to Section 124 of the Evidence Act, noted the demeanour of the alleged victim’s intermediary, who seemed to be very familiar with the Appellant, and stated that it was inclined to believe the intermediary because the medical officer’s testimony and exhibits corroborated the notion that penetration had occurred. It cited DS v Republic [2022] eKLR.
34. On the defence, the trial Court stated that it had considered the Appellant’s testimony, which was merely a denial of having been in the alleged victim’s home and defiling her, and held that without a concrete alibi for his defence, the corroborated version of events by the Prosecution was more believable.
35. The Appellant was convicted on the main count. The alternative count was not analyzed. On 11th March 2025, having considered the mitigation and a pre-sentence report dated 6th March 2025 which was negative and disclosed community hostility towards the Appellant, the trial Court observed that Section 8(4) prescribes a mandatory minimum of not less than fifteen years by which it was bound, and sentenced the Appellant to fifteen years’ imprisonment.
SUBMISSIONS
36. For the Appellant, it was submitted that Section 31 of the Sexual Offences Act strikes a balance between protecting a vulnerable witness from the trauma of direct confrontation in Court and preserving the accused’s right to a fair trial; that Section 31(7), reinforced by Article 50(7) of the Constitution, conceives of the intermediary as a facilitator of communication between the Court and the witness and not as a substitute witness; and that the trial Court oscillated impermissibly between treating the intermediary’s evidence as her own, when establishing and corroborating penetration and identification, and as the victim’s direct evidence, when addressing age and when conducting the voir dire, thereby violating Article 50(2)(k) of the Constitution. He relied on Maina wa Kinyatti v Republic [1984] eKLR for the proposition that a statement made to a witness by a person not called as a witness is hearsay and inadmissible where the object is to establish the truth of its contents.
37. On penetration, the Appellant submitted that a broken hymen is not conclusive proof of penetration and that the presence of epithelial cells is not concrete evidence of penetration, relying on P.K.W. v Republic [2012] eKLR and on Benard Opiyo alias Jemaa v Republic, Kakamega High Court Criminal Appeal No. 13 of 2019, in which Njagi J. held that the presence of epithelial cells in urine can prove no more than friction in the vagina and is not concrete proof of penetration. He further submitted that PW1, the Complainant, asserted that only the two of them were present, whereas the intermediary asserted that she came upon them, and posed the question as to which of the two accounts is truthful.
38. On age, the Appellant relied on Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, and Hillary Nyongesa v Republic, Eldoret Criminal Appeal No. 123 of 2009, and submitted that the dental finding of a clinically present third molar with completely formed roots is consistent with a person of 18 years and above; that the age of the Complainant was therefore in doubt; and that any sentence meted out was a matter of conjecture.
39. For the Respondent, Mr. Davies submitted that the Prosecution marshalled seven witnesses and proved each ingredient of defilement. On age, she relied on Musyoki Mwakavi v Republic [2014] eKLR for the proposition that age may be proved by medical evidence, a birth certificate, a baptism card, school leaving certificates, the evidence of parents or guardians, or by observation and common sense, and submitted that the age assessment report established the Complainant to be 17 years. On penetration she relied on Section 2 of the Act and on Mohammed Omar Mohammed v Republic [2020] eKLR for the proposition that the Complainant’s own testimony, corroborated by the medical report, is the key evidence in rape and defilement, and submitted that PW5 corroborated the evidence of the victim. On identification she relied on Anjononi & Others v Republic [1976-80] 1 KLR 1566 for the proposition that recognition of an assailant is more satisfactory, more assuring and more reliable than the identification of a stranger, and submitted that there was proper identification as there was prior knowledge of the Appellant.
40. The Respondent further relied on Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, for the ingredients of defilement, and submitted that the Appellant merely denied the allegations without controverting the events of the material day; that the trial Court considered his defence; and, on contradictions, relied on S.O.O. v Republic [2018] eKLR and Dickson Elia Nsamba Shapwata & Another v Republic, Criminal Appeal No. 92 of 2007 (Tanzania), for the proposition that in evaluating discrepancies, contradictions and omissions a Court should not pick out sentences and consider them in isolation but must decide whether the inconsistencies are minor or go to the root of the matter. She urged that the appeal be dismissed and the conviction and sentence upheld.
THE DUTY OF THIS COURT
41. This being a first appeal, my duty is settled. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa held that a first appellate Court must reconsider and re-evaluate the evidence adduced before the trial Court and draw its own conclusions, bearing always in mind that it did not see or hear the witnesses. It must not merely scrutinize the evidence to see whether there was some evidence to support the Lower Court’s findings; it must weigh conflicting evidence and draw its own inferences and conclusions. The same principle was restated in Kiilu & Another v Republic [2005] 1 KLR 174.
42. Two related principles govern the substance of the exercise. First, the burden of proving the guilt of an accused person rests upon the Prosecution throughout and never shifts, save in the limited statutory exceptions which do not arise here: Woolmington v DPP [1935] AC 462; Republic v Oyier [1985] KLR 353. Second, the standard is proof beyond reasonable doubt; where a reasonable doubt remains, the accused is entitled to the benefit of it.
43. Where the trial Court has erred in principle, or has taken into account matters it ought not to have taken into account, or has failed to consider matters it was bound to consider, this Court is not merely entitled but obliged to intervene.
ISSUES FOR DETERMINATION
44. Having considered the record and the rival submissions, the issues that fall for determination are:
b. Whether the manner in which the evidence of the Complainant was received was lawful, and with what consequences for the record;
c. Whether the age of the Complainant was proved to the requisite standard, and whether a conviction under Section
8(4) upon a charge laid under Section 8(3) is sustainable;
d. Whether penetration was proved beyond reasonable doubt;
e. Whether the Appellant was proved beyond reasonable doubt to be the perpetrator;
f. Whether the trial Court properly evaluated the contradictions in the Prosecution case and properly considered the defence; and
g. What orders ought to issue.
ANALYSIS AND DETERMINATION
Issue (i): The reception of the Complainant’s evidence and the role of an intermediary
45. This is the central question in the appeal, and in my respectful view the trial Court fell into a fundamental error upon it.
46. Article 50(7) of the Constitution of Kenya, 2010 provides that in the interest of justice, a Court may allow an intermediary to assist a Complainant or an accused person to communicate with the Court. The language is deliberate. The intermediary assists the witness to communicate. The intermediary does not communicate in the place of the witness.
47. Section 31 of the Sexual Offences Act gives statutory effect to that idea. It empowers the Court, on its own motion or on the application of a party, to declare a witness other than the accused a vulnerable witness. A child, and a person with mental disabilities, fall within the class. Upon such a declaration the Court may direct that the witness be assisted by an intermediary, that the proceedings be held in camera, or that evid
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1. The Appellant, Joseph Olumula, was arraigned before the Senior Principal Magistrate’s Court at Vihiga in Sexual Offence Case No. E031 of 2024 on a main count of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 13th day of May 2024 at about 1300 hours at Wamacheze village, Ebukuhunza location in Emuhaya Sub-County within Vihiga County, he intentionally and unlawfully caused his penis to penetrate the vagina of L. A., a child then alleged to be aged 14 years.
2. In the alternative he faced a count of committing an indecent act with a child contrary to Section 11(1) of the same Act, the particulars being that on the same date, at the same time and place, he intentionally and unlawfully touched the vagina of the said L. A. with his penis.
3. He took plea on 15th May 2024 before Hon. P. Karimi (RM) and denied both counts. He was admitted to bond of Kshs. 200,000/= with a surety of a like amount, which he did not take up. He remained in custody from 15th May 2024 to the conclusion of the trial and thereafter.
4. The Prosecution called seven witnesses. At the close of its case the trial Court, by a ruling delivered on 14th January 2025, found that a case had been established and placed the Appellant on his defence. The Appellant elected to give sworn testimony and called no witness.
5. By a judgment delivered on 24th February 2025 the trial Court convicted the Appellant of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, having found, on the strength of an age assessment report, that the Complainant was aged 17 and not 14 years. On 11th March 2025 the Appellant was sentenced to fifteen (15) years’ imprisonment, the trial Court directing that account be taken of the time spent in remand from 15th May 2024.
6. The Appellant was granted leave to appeal out of time by Kamau J. on 10th March 2026 in Vihiga High Court Miscellaneous Application No. E079 of 2025. He filed his Petition of Appeal on 11th March 2026 and, on 21st May 2026, Supplementary Grounds of Appeal together with written submissions. The Respondent filed written submissions through Ms. Leina Davies, Prosecution Counsel, for the Director of Public Prosecutions.
7. Both parties elected to canvass the appeal by way of written submissions. I have considered the record of the Trial Court in its entirety, the exhibits, and the submissions of both sides.
THE GROUNDS OF APPEAL
8. In his Petition of Appeal dated 11th March 2026 the Appellant advanced four principal grounds, namely: that the trial Court erred in law in convicting him when the ingredients of the offence had not been proved beyond reasonable doubt; that it erred in law and fact in relying upon fanciful and remote possibilities; that it erred in law and fact in failing to weigh the conflicting evidence in the Prosecution case; and that it erred in law and fact in failing to appreciate his defence.
9. By his Supplementary Grounds of Appeal dated 19th May 2026 he added three grounds which, in truth, are the substance of his appeal:
a) That the trial Court erred in law and in fact in misconstruing the role and purpose of an intermediary under Section 31 of the Sexual Offences Act, with the consequence that the evidence recorded as that of PW1 ought to be rejected pursuant to Article
50(4) of the Constitution of Kenya, 2010;
b) That the trial Court erred in law and in fact in failing to find that penetration by the Appellant had not been proved to the requisite standard; and
c) That the trial Court erred in law and in fact in its treatment of the age of the Complainant, the dental findings being consistent with a person of 18 years and above.
10. The Appellant prays that the conviction be quashed, the sentence set aside and that he be set at liberty.
THE PROSECUTION CASE
11. The Prosecution case is basically based on the evidence of PW2 who loosely was declared to be an intermediary but that is not the position in law. She stands in as an independent witness for the prosecution within the facets of the Evidence Act. It is on record that the Complainant gave evidence partially but was later turned down due to the observations made by the trial Court that she had challenges in the flow of communication towards the questions being preferred by the Prosecutor as to the chain of events of the crime. There was a request for the medical report on a mental capacity as a competent witness and on being shared with the Court she had been declared unfit to be a State-Prosecution witness.
12. On 15th August 2024 the trial Court conducted a voire dire examination of the Complainant, L. A. She stated that she was 14 years old, lived at Ilungu with her uncle, aunt, grandmother and grandfather, was in Class Five at Ilungu Primary School, knew that lying was bad and wished to tell the truth. She stated that she did not understand what sworn testimony was, but wished to give sworn testimony. The trial Court admitted her to give sworn evidence.
13. She then testified, in Kiswahili, as PW1. Her evidence in chief, recorded in full, was to the effect that on 13th May 2024 at about 1.00 p.m. she was lying in an open field when her father followed her to the cattle pen; that he had asked her to give him a jembe and followed her there; that he closed her mouth with the back of his hand and, in her words as recorded, “akaingiza kitu yake ndani yangu”; that he had undressed her and she felt pain; that the two of them were alone; that she thereafter left and went back to the field and lay there; that a lady came and asked her what had happened and she told her; “wamenirape”; that the lady was shocked and left her laying in the field; that no one else came; that she did not tell anyone else what had transpired; and that she did not go anywhere else. She added that she went home and her neighbour, who was the lady in the field, told her mother, who was shocked. The record indicates that at one point in her evidence he touched her private parts over her clothes.
14. Immediately upon the conclusion of that evidence in chief, and before any cross-examination, State Counsel applied to stand PW1 down in order to take her for mental assessment. The Appellant did not object. The trial Court allowed the application, recording that PW1 seemed not to be altogether well mentally and ordering that she be taken to Vihiga County Referral Hospital for assessment.
15. On 29th August 2024 the Prosecution informed the Court that a mental assessment dated 26th August 2024 had been done, and applied for leave to have the minor testify through an intermediary, one Keziah, a sister of the minor. The Appellant did not object. The application was allowed.
16. On 16th September 2024 the Appellant sought to resile from his non-objection, stating that he had been unwell on 28th August 2024 and had not been in a fit state when he consented. The trial Court declined, observing that Section 3 of the Sexual Offences Act permitted the Court, on its own motion or on application, to declare a witness vulnerable, and that on the strength of the mental status report PW1 was declared a vulnerable witness whose testimony would be received through an intermediary
17. The trial Court then conducted a voire dire examination of Keziah Inziani, who stated that she was aged 14 years old, in Grade 5 at Ilungu Primary School, that she knew one should tell the truth and that liars would be burnt, and that she understood what taking an oath meant. She was admitted to give sworn testimony, the trial Court recording that the minor was admitted to give sworn testimony as an intermediary of the alleged victim.
18. Her evidence was thereafter recorded under the heading PW1: Sworn Testimony in Kiswahili Through an Intermediary. She testified that she knew the alleged victim, who was her sister; that on 13th May 2024 at around 9.30 p.m. she was asleep in the house at Machesi when she heard the Appellant come home and ask after her mother; that the Appellant, whom she identified in Court, is their uncle, being her father’s brother; that her sister was outside the house while she was inside; that the Appellant asked Lydia to bring him a jembe; that when Lydia went to get the jembe the Appellant followed her; that she heard the noise of something falling and went to check; that she found the Appellant on top of her naked sister; that he was dressed in white shorts and a yellow shirt; that he ran off dressing when he saw her; that she went and called a neighbour and was advised to inform a village elder, which she did; that her sister told her the Appellant had taken off her clothes and laid on her, and in the words recorded; “alichukua kitu yake ya siri akaiweka ndani ya kitu yangu ya siri”; that her sister was shocked when she found her; that her sister is not of sound mind, which is why she was testifying; that the incident occurred in their compound in the cow pen; that she reported at Ilungu Police Station; and that she was not present when her sister was taken to hospital by their mother.
19. In cross-examination she stated that she was older than her sister; that she was asleep in the house and not in the farm; that the Appellant came asking for his jembe and did not find it; that she did not know the exact distance from the house to the road; that there is a path near their home to the river; that it was around 1.00 p.m.; that neighbours saw the Appellant running off; that she did not speak to the Appellant about the jembe; and that she heard his voice while inside her mother’s bedroom sleeping. On re-examination she stated that the incident occurred at 1.00 p.m.; that she recognized the Appellant’s voice; that they were not on bad terms with him; that she woke up on hearing him speaking to her sister; that the incident took place in the house and not on the road; and that there were no people crossing on the path to the river at the time.
20. PW2, Emily Khanali, the mother of the Complainant, testified that on 13th May 2024 at 2.00 p.m. she was on her way home, in the company of another relative, when she ran into the Appellant; that he told her he had been at her house looking for his jembe which he suspected her daughters had taken, and that some incident had happened at home for which her daughters were accusing him; that she went home and her daughters told her the Appellant had raped Lydia, had undressed her and inserted his private organs into her private parts; that Keziah was the one who informed her; that Lydia also told her so; that village elders came to her home and were told what had happened and advised that the matter be reported; that her daughter Lydia is not of very sound mind; that she found Lydia had been taken to Kima Hospital; that she had no bad relations with the Appellant; that their houses are in the same compound on different sides; that there is a path leading to the river which the Appellant does not use; and that her daughter is 14 years old and still in school. In cross-examination she said the doctor had confirmed her daughter had been defiled and that her daughters had told her what had happened
21. PW3, Philip Afune, a village elder of Amachese village, testified that on 13th May 2024 a County baraza had been held during the day; that he went home at about 6.00 p.m. and found that a woman had come to file a report; that he went to the woman’s home and she informed him that her in-law had defiled her daughter and that she had already taken the daughter to hospital; that he was in the company of three other village elders; that they went to the Appellant’s home and asked him to follow them to the Assistant Chief’s home; that the Appellant complied; that finding that the Assistant Chief had gone to Ilungu Police Post they proceeded to the
Police Station and reported; that the Appellant’s home is far from the Complainant’s home; and that he interviewed the alleged victim, who told him the Appellant had defiled her and who called him Baba. In cross-examination he said he had been a village elder since 1995; that his home is 20 metres from the Appellant’s; that he was not present during the alleged incident; that he had told the Appellant that the Assistant Chief was calling him about a phone he had recovered, as a ruse to get him to the Police Station; that he found the Appellant with his wife; and that they came at around 11.00 p.m.
22. PW4, Jairus Ombima, testified that on 13th May 2024 at around 9.00 p.m. he was having supper when PW3 came and informed him of a report and asked him to accompany him; that they went to the Complainant’s home and interviewed her; that she said the Appellant had come borrowing a jembe, and that when she went to get it he accosted her near the cow pen and defiled her; that her sister came and saw him whereupon the Appellant dressed quickly and left; that they proceeded to the Appellant’s home at about 10.00 p.m.; that the Appellant is a neighbour and a Pastor; that they knocked and he opened; that the village elder used a ruse about a recovered phone and the Assistant Chief to get him out of his house; and that they took him to Ilungu Police Station where he was taken into custody. In cross-examination he stated, among other things, that it is three metres from the Appellant’s house to the Police Station. On re-examination he said they went to the Complainant’s house at about 9.30 p.m. and to the Appellant’s home at about 10.00 p.m.
23. PW5, Calvin Amayi Esilaba, a Clinical Officer at Emuhaya SubCounty Hospital, Luanda, holding a Diploma in Clinical Medicine and Surgery obtained in 2014 and a Degree obtained in 2022, testified that he examined the minor and filled the Post Rape Care Form, the P3 form and the treatment notes. He said the survivor had been treated on 13th May 2024 for complaints of alleged defilement; that she was tested for pregnancy, HIV, urinalysis and high vaginal swab; that she tested negative for pregnancy and HIV; that there was presence of leucocytes and epithelial cells in the urine; that in the high vaginal swab test there was presence of pus and epithelial cells; that she appeared normal; that she had a broken hymen, whitish discharge and normal genitalia; that he classified the injuries as harm and concluded that the survivor had been defiled as she was a minor. He produced the Post Rape Care Form, the laboratory results and the P3 form as exhibits. In cross-examination he said he did not recall exactly who came with the survivor; that she walked in normally; that from the laboratory test he opined and concluded that there had been defilement; and that he was told the survivor was 14 years old and indicated the same.
24. PW6, Solomon Akoyo Atola, a brick maker of Wamachese, testified that on 13th May 2024 at around 1300 hours there was a Public Baraza which he attended; that he went home at 6.00 p.m., had supper and slept; that in the night PW3 came with PW4 and informed him that the Appellant, a Pastor in the area, had committed an offence; that he accompanied them to the Complainant’s house where the village elder questioned the survivor’s mother; that they thereafter went to the Appellant’s home and used a ruse to lure him out, PW3 falsely telling him that the owner of a phone he had earlier recovered wished to reward him; that the Appellant went with them voluntarily to the Police Station where he was informed of the complaint; and that at the Station the Complainant, when asked her relation to the Appellant, said he was her father. In crossexamination he said they came to the Appellant’s house at 9.00 p.m., that it was dark and rainy, and that the ruse was used so that the Appellant would be arrested before he fled.
25. PW7, No. 244113 PC Everline Olunga (recorded in the judgment as Omunga) of Ilungu Police Post, the Investigating Officer, testified that on 14th May 2024 at about 2.30 a.m. she was at the Station when PW3, PW4 and PW6, members of the Community Policing Committee, brought the Appellant on an allegation of defilement; that she re-arrested and booked him; that the following day the Complainant came with her mother; that she recorded their statements and sent them to Emuhaya Sub-County Hospital for the P3 form to be filled and for examination; that on receipt of the completed P3 and Post Rape Care Forms she found the Appellant eligible to be charged; that she took him to Embali Police Station for charging and arraignment; and that she took the minor for age assessment at Vihiga County Referral Hospital, the report indicating the minor to be 17 years old. She produced the age assessment report as an exhibit. In cross-examination she stated that the Complainant’s mother did not have any birth certificate with her.
26. The exhibits produced were: the age assessment report dated 1st August 2024 (PEXB 1); the Post Rape Care Form (PEXB 2); the laboratory request and report form together with the laboratory results (PEXB 3); and the P3 form, being the Police Medical Examination Report (PEXB 4).
THE DEFENCE CASE
27. The Appellant gave sworn evidence as DW1 on 3rd February 2025. He testified that he is a casual labourer and a Pastor resident at Wamachesa village; that on 13th May 2024 he left home for Ilungu Primary School as it was the opening day and was there until 10.00
a.m.; that he went home and escorted his wife to the stage as she was leaving for her sister’s; that he had left a jembe near the fence for use in his shamba and found it missing when he came back; that he asked the girl whether she had taken his jembe, that she heard him and gave it back to him, and that he went into the farm; that he went home after farming and in the evening went to check on his hard stones; that his wife returned and he informed her of the jembe incident; that they had supper and slept; that at about 10.00 p.m. he heard people talking outside his home and his name being called; that he opened his door and found the village elder Philip, Silas and Solomon; that the village elder told him the owner of the phone he had recovered and handed over was by the road and wanted to see him; that he called the Assistant Chief on his phone but could not get through; that he tried to reschedule the meeting to the following morning but the village elder was persistent; that they went on foot and got to the Assistant Chief’s compound at around midnight; that they diverted into the Police Station where he was shocked to be accused of raping a child; that the police refused to arrest him at night without the Complainant; that the village elder called the Complainant to the station; that he was arrested and held in custody at around 2.00 a.m.; and that he was later taken to another Police Post without being informed of the charges.
28. In cross-examination he stated that his jembe was taken at around 11.00 a.m. on 13th May 2024 and that the minor brought it to him after he asked for it, whereupon he went to farm; that he asked after his jembe loudly and the girl brought it to him; that no other neighbour responded to his loud call; that his home is near the girl’s home and that she is his niece; that there is a path between their compounds; that he called the girl from the farm where she was tilling while he was on the road, and that she brought the implement to him on the road; and that he never went into the girl’s compound.
THE JUDGMENT AND SENTENCE OF THE TRIAL COURT
29. The trial Court identified four issues: whether the alleged victim was a child; whether the Appellant committed an act which would cause penetration with the child; whether the Appellant was positively identified; and whether the Appellant committed an indecent act with a child.
30. On age, the trial Court noted the charge sheet, the evidence of the Complainant, the intermediary and the mother, all putting the Complainant at 14 years, and the age assessment report putting her at approximately 17 years. It preferred the age assessment report, held the Complainant to be a child of 17, and concluded that the proper charge ought to have been defilement contrary to Section 8(1) as read with Section 8(4).
31. On penetration, the trial Court relied on the evidence given through the intermediary, the laboratory results, the P3 form and the Post Rape Care Form. It reasoned that the presence of epithelial cells in the urine and the high vaginal swab is indicative of possible penile penetration and or infection, and that the hymen was broken.
32. On identification, the trial Court observed that the parties are kin and know each other. It then posed a series of questions of its own motion: whether the Appellant merely picked his jembe from the alleged victim by the road and spent the rest of the day in his shamba; who could confirm that he was in the shamba after the brief interaction; who the neighbours were that are said to have seen him running off and why they did not testify; and why the relative who was with PW2 did not testify to corroborate her. Having posed those questions, the trial Court did not answer any of them. It proceeded to observe that the case was essentially that of the complainant as stated briefly and the said intermediary was the only witness who allegedly caught the Appellant in the act, and that the Appellant admits having seen the alleged victim on the said date by the road as she brought back the jembe to him. It then found that the interaction placed the Appellant in close proximity to the alleged victim to have been the one who committed the offence, having been caught in the act by PW1.
33. The trial Court invoked the proviso to Section 124 of the Evidence Act, noted the demeanour of the alleged victim’s intermediary, who seemed to be very familiar with the Appellant, and stated that it was inclined to believe the intermediary because the medical officer’s testimony and exhibits corroborated the notion that penetration had occurred. It cited DS v Republic [2022] eKLR.
34. On the defence, the trial Court stated that it had considered the Appellant’s testimony, which was merely a denial of having been in the alleged victim’s home and defiling her, and held that without a concrete alibi for his defence, the corroborated version of events by the Prosecution was more believable.
35. The Appellant was convicted on the main count. The alternative count was not analyzed. On 11th March 2025, having considered the mitigation and a pre-sentence report dated 6th March 2025 which was negative and disclosed community hostility towards the Appellant, the trial Court observed that Section 8(4) prescribes a mandatory minimum of not less than fifteen years by which it was bound, and sentenced the Appellant to fifteen years’ imprisonment.
SUBMISSIONS
36. For the Appellant, it was submitted that Section 31 of the Sexual Offences Act strikes a balance between protecting a vulnerable witness from the trauma of direct confrontation in Court and preserving the accused’s right to a fair trial; that Section 31(7), reinforced by Article 50(7) of the Constitution, conceives of the intermediary as a facilitator of communication between the Court and the witness and not as a substitute witness; and that the trial Court oscillated impermissibly between treating the intermediary’s evidence as her own, when establishing and corroborating penetration and identification, and as the victim’s direct evidence, when addressing age and when conducting the voir dire, thereby violating Article 50(2)(k) of the Constitution. He relied on Maina wa Kinyatti v Republic [1984] eKLR for the proposition that a statement made to a witness by a person not called as a witness is hearsay and inadmissible where the object is to establish the truth of its contents.
37. On penetration, the Appellant submitted that a broken hymen is not conclusive proof of penetration and that the presence of epithelial cells is not concrete evidence of penetration, relying on P.K.W. v Republic [2012] eKLR and on Benard Opiyo alias Jemaa v Republic, Kakamega High Court Criminal Appeal No. 13 of 2019, in which Njagi J. held that the presence of epithelial cells in urine can prove no more than friction in the vagina and is not concrete proof of penetration. He further submitted that PW1, the Complainant, asserted that only the two of them were present, whereas the intermediary asserted that she came upon them, and posed the question as to which of the two accounts is truthful.
38. On age, the Appellant relied on Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, and Hillary Nyongesa v Republic, Eldoret Criminal Appeal No. 123 of 2009, and submitted that the dental finding of a clinically present third molar with completely formed roots is consistent with a person of 18 years and above; that the age of the Complainant was therefore in doubt; and that any sentence meted out was a matter of conjecture.
39. For the Respondent, Mr. Davies submitted that the Prosecution marshalled seven witnesses and proved each ingredient of defilement. On age, she relied on Musyoki Mwakavi v Republic [2014] eKLR for the proposition that age may be proved by medical evidence, a birth certificate, a baptism card, school leaving certificates, the evidence of parents or guardians, or by observation and common sense, and submitted that the age assessment report established the Complainant to be 17 years. On penetration she relied on Section 2 of the Act and on Mohammed Omar Mohammed v Republic [2020] eKLR for the proposition that the Complainant’s own testimony, corroborated by the medical report, is the key evidence in rape and defilement, and submitted that PW5 corroborated the evidence of the victim. On identification she relied on Anjononi & Others v Republic [1976-80] 1 KLR 1566 for the proposition that recognition of an assailant is more satisfactory, more assuring and more reliable than the identification of a stranger, and submitted that there was proper identification as there was prior knowledge of the Appellant.
40. The Respondent further relied on Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, for the ingredients of defilement, and submitted that the Appellant merely denied the allegations without controverting the events of the material day; that the trial Court considered his defence; and, on contradictions, relied on S.O.O. v Republic [2018] eKLR and Dickson Elia Nsamba Shapwata & Another v Republic, Criminal Appeal No. 92 of 2007 (Tanzania), for the proposition that in evaluating discrepancies, contradictions and omissions a Court should not pick out sentences and consider them in isolation but must decide whether the inconsistencies are minor or go to the root of the matter. She urged that the appeal be dismissed and the conviction and sentence upheld.
THE DUTY OF THIS COURT
41. This being a first appeal, my duty is settled. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa held that a first appellate Court must reconsider and re-evaluate the evidence adduced before the trial Court and draw its own conclusions, bearing always in mind that it did not see or hear the witnesses. It must not merely scrutinize the evidence to see whether there was some evidence to support the Lower Court’s findings; it must weigh conflicting evidence and draw its own inferences and conclusions. The same principle was restated in Kiilu & Another v Republic [2005] 1 KLR 174.
42. Two related principles govern the substance of the exercise. First, the burden of proving the guilt of an accused person rests upon the Prosecution throughout and never shifts, save in the limited statutory exceptions which do not arise here: Woolmington v DPP [1935] AC 462; Republic v Oyier [1985] KLR 353. Second, the standard is proof beyond reasonable doubt; where a reasonable doubt remains, the accused is entitled to the benefit of it.
43. Where the trial Court has erred in principle, or has taken into account matters it ought not to have taken into account, or has failed to consider matters it was bound to consider, this Court is not merely entitled but obliged to intervene.
ISSUES FOR DETERMINATION
44. Having considered the record and the rival submissions, the issues that fall for determination are:
b. Whether the manner in which the evidence of the Complainant was received was lawful, and with what consequences for the record;
c. Whether the age of the Complainant was proved to the requisite standard, and whether a conviction under Section
8(4) upon a charge laid under Section 8(3) is sustainable;
d. Whether penetration was proved beyond reasonable doubt;
e. Whether the Appellant was proved beyond reasonable doubt to be the perpetrator;
f. Whether the trial Court properly evaluated the contradictions in the Prosecution case and properly considered the defence; and
g. What orders ought to issue.
ANALYSIS AND DETERMINATION
Issue (i): The reception of the Complainant’s evidence and the role of an intermediary
45. This is the central question in the appeal, and in my respectful view the trial Court fell into a fundamental error upon it.
46. Article 50(7) of the Constitution of Kenya, 2010 provides that in the interest of justice, a Court may allow an intermediary to assist a Complainant or an accused person to communicate with the Court. The language is deliberate. The intermediary assists the witness to communicate. The intermediary does not communicate in the place of the witness.
47. Section 31 of the Sexual Offences Act gives statutory effect to that idea. It empowers the Court, on its own motion or on the application of a party, to declare a witness other than the accused a vulnerable witness. A child, and a person with mental disabilities, fall within the class. Upon such a declaration the Court may direct that the witness be assisted by an intermediary, that the proceedings be held in camera, or that evid
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