REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
HCCRA NO. E078 OF 2025
JUMA SAMBU PTEEK .......................................................................... APPELLANT
VERSUS
REPUBLIC ............................................................................................ RESPONDENT
(Being an appeal against the conviction and sentence in the judgment at the Chief Magistrate's Court at Kisumu (Hon. G. C. Serem (RM)) in Criminal Case No. SO E002 of 2025, delivered on 28th July 2025 and sentenced on 4th August 2025)
J U D G M E N T
The Charge
1. The Appellant herein, Juma Sambu Pteek, was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 6th day of January 2025, at Sega Sega area in Kisumu Central Sub-County within Kisumu County, the Appellant intentionally caused his penis to penetrate the anus of J.A, a girl child aged 4 years old.
2. An alternative charge of Committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 was also preferred against the Appellant.
3. The Appellant pleaded not guilty to both charges. The matter proceeded to full hearing. On 16th June 2025 the trial court found that the Appellant had a case to answer. The Appellant elected to give a sworn statement in his own defence without calling any witnesses. On 28th July 2025 the Appellant was convicted of the offence of defilement, and on 4th August 2025 was sentenced to life imprisonment pursuant to Section 8(2) of the Sexual Offences Act No. 3 of 2006.
4. Aggrieved by both the conviction and the sentence, the Appellant filed the present appeal.
The Grounds of Appeal
5. The Appellant's grounds of appeal, as set out in his Petition of Appeal dated 11th August 2025, are as follows:
(i) That the learned trial magistrate erred in law and fact in not making a finding that the ingredients of the offence were not proved beyond a reasonable doubt;
(ii) That the learned trial magistrate erred in law and fact in not making a finding that the Appellant's right to a fair trial was breached;
(iii) That the learned trial magistrate erred in law and fact in not considering the procedural errors that were inconsequential to conviction;
(iv) That the learned trial magistrate erred in law and fact in admitting evidence that was inadmissible;
(v) That the learned trial magistrate erred in both law and fact in not weighing the conflicting evidence that was inconsequential to conviction; and
(vi) That the learned trial magistrate erred in both law and fact in not making a finding that an indeterminate and indefinite life sentence is untenable and unconstitutional.
Summary of the Evidence
6. The prosecution called five witnesses. Their evidence may be summarised as follows:
PW1 – Laura Akinyi Odhiambo (the mother of the complainant) testified that on 6th January 2025 at approximately 1.00 pm, her daughter J.A (aged 4 years) and her elder daughter were playing outside the house. The Appellant, who was their neighbour, was playing a game of draft with the children. Sometime later, J.A came running towards the house, crying. The child told her mother that the Appellant had asked her to remove her panty, inserted his penis into her vagina and anus, and thereafter given her a lollipop. PW1 went to the Appellant's door and knocked but he did not open. With the assistance of neighbours his door was broken open. Upon entry, the Appellant sought forgiveness. PW1 observed that the child had blood on her buttocks and a white fluid on the panty. The parties proceeded to the police station and subsequently to Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH). The birth certificate of the complainant (P Exhibit 1) was produced, confirming the child was born on 29th September 2020. A lollipop was produced as P Exhibit 2.
PW2 – Jared Odhiambo (the father of the complainant) testified that on 6th January 2025 he received an urgent telephone call from his wife and rushed home. He arrived to find a crowd in the compound. He identified the Appellant as his neighbour who had moved into the compound in December 2024. The child's buttocks were so injured that she could not go for a long call. He took the Appellant to the police station and thereafter to JOOTRH. He testified that the doctor removed liquid from the child's vagina and buttocks and identified that liquid as semen.
CW3 – J.A (the complainant) appeared before the court and underwent a voir dire examination. The trial court found that she did not understand the sanctity of an oath and accordingly she gave unsworn testimony. The complainant stated that the person she knew as Juma called her while they were playing draft, and asked her to remove her panty. He inserted his "dudu" (demonstrating to mean his penis) into her vagina and her anus. She stated that her mother was in the bedroom washing the baby at the time, and that her father had told her not to go to the Appellant's house, but the Appellant himself told her to enter. The complainant identified the Appellant in court, pointing him out and confirming his name as Juma. The trial court formally noted in the proceedings that the witness identified the accused person in court.
PW4 – Jared Obimba (Clinical Officer at JOOTRH with 13 years of experience) testified that the complainant was received at the hospital on 6th January 2025 at 5.00 pm. He examined the minor and found her to be sad. She reported that a male neighbour had taken her to his house, removed her panty and inserted his penis, which she described as "dudu", into both her vagina and anus. On physical examination, PW4 found the hymen to be intact but noted inflammation at the vagina and fresh superficial lacerations all round the anal orifice. On laboratory examination, red blood cells and epithelial cells were found in the anal area; vaginal examination revealed epithelial cells at plus two. PW4 produced the PRC form as P Exhibit 3 and the P3 form as P Exhibit 4. The panty and a high vaginal swab were taken to the Government Chemist.
PW5 – No. 118022 PC Dina Musyoka (Investigating Officer attached to Nyamasaria Patrol Base) testified that on 6th January 2025 the complainant's parents reported to the station that their four-year-old daughter had been defiled by a neighbour. The parents stated that J.A and her sister Natalia had been playing draft with the neighbour; Natalia left to shower and upon returning found that J.A was missing. J.A returned after approximately thirty minutes and reported she had been defiled. PW5 took the P3 and PRC forms to the hospital for completion, confirmed from the birth certificate that the victim was a child, and thereafter arrested and charged the Appellant.
7. The Appellant, DW1, gave a sworn statement in his defence. He stated that he worked with Lindum Security and had returned from work on 6th January 2025 and was asleep at home when his door was knocked. He opened the door and a crowd entered and started beating him. He denied committing the offence and maintained that he had been framed. He alleged that the complainant's parents had attempted to extort Kshs. 10,000/= from him. He asserted that the complainant was being coached on what to say, which he claimed was visible during the virtual hearing. He contended that the doctor's evidence showed no penetration, that the panty allegedly stained with blood was never produced in court, and that the semen purportedly removed from the child was never presented before the court.
The Duty of this Court
8. This is a first appeal. The duty of this court, sitting as a first appellate court, is well settled. In Okeno v Republic [1972] EA 32, the Court of Appeal for Eastern Africa set out the duty of a first appellate court. That duty was restated authoritatively in Kiilu & Another v Republic [2005] 1 KLR 174 where the Court of Appeal held as follows:
"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court's own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court's findings and conclusions; it must itself weigh the conflicting evidence and only then can it decide whether the Magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses."
9. In compliance with that duty, this court has subjected the entire evidence on record to a fresh and exhaustive examination, drawn its own conclusions, and in doing so has made due allowance for the fact that the trial court had the advantage of observing the demeanour of the witnesses.
Issues for Determination
10. The court identifies the following issues for determination:
(i) Whether the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt;
(ii) Whether the Appellant's right to a fair trial was violated; and
(iii) Whether the sentence of life imprisonment is lawful, constitutional and appropriate.
Issue 1: Whether the prosecution proved the ingredients of defilement beyond reasonable doubt
11. The offence of defilement is created by Section 8(1) of the Sexual Offences Act No. 3 of 2006 which provides: "A person who commits an act which causes penetration with a child is guilty of an offence termed defilement." The critical ingredients of the offence are well settled in our jurisprudence. In Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, the Court of Appeal stated as follows:
"The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant."
This position was affirmed in George Opondo Olunga v Republic [2016] eKLR where the court restated that the ingredients of the offence of defilement are identification or recognition of the offender, penetration, and the age of the victim. Each ingredient must be proved beyond reasonable doubt.
(a) Age of the Victim
12. The complainant was born on 29th September 2020, as confirmed by the birth certificate (P Exhibit 1) produced by PW1. This evidence was independently corroborated by PW2, who confirmed the child's date of birth, and by PW4 the Clinical Officer who confirmed he was testifying in respect of a minor born on 29th September 2020. The Court of Appeal in Edwin Nyambogo Onsongo v Republic [2016] eKLR settled the position that age in defilement cases may be proved by, among other means, a birth certificate, baptism card, oral evidence of parents or guardians, or medical evidence, and that whatever mode of proof is preferred it must be credible and reliable. In this case the birth certificate placed the matter beyond doubt. The complainant was aged 4 years at the time of the offence on 6th January 2025, well below the age of eleven years prescribed under Section 8(2) of the Sexual Offences Act. The ingredient of age was proved beyond reasonable doubt.
(b) Penetration
13. "Penetration" is a term of art. It is defined under Section 2 of the Sexual Offences Act No. 3 of 2006 to mean "the partial or complete insertion of the genital organs of a person into the genital organs of another person." Significantly, the same provision defines "genital organs" to include "the whole or part of male or female genital organs and for purposes of this Act includes the anus." It follows therefore that penetration of the anal region of a child constitutes the offence of defilement within the meaning of the Act, and the trial court was correct to so hold.
14. The complainant, CW3, gave unsworn testimony in which she clearly stated that the Appellant inserted his penis into both her vagina and her anus. Her account was consistent with the complaint she spontaneously made to her mother immediately after the incident. The medical evidence of PW4 significantly corroborated the complainant's account. PW4 found the hymen intact, thereby ruling out vaginal penetration, but crucially found fresh superficial lacerations all round the anal orifice together with redness and hyperpigmentation of the vaginal area. These findings, he confirmed, were a clear indication that penetration had occurred in the anal region. Laboratory examination confirmed the presence of red blood cells and epithelial cells in the anal area, consistent with anal injury.
15. The Appellant contended in his defence that the doctor said there was no penetration. This is a mischaracterisation of PW4's evidence. PW4 was unequivocal that while the hymen was intact, indicating no vaginal penetration had occurred, there was fresh laceration at the anal orifice consistent with anal penetration. The trial court correctly appreciated this distinction.
16. This court is guided by the principle stated in Hussein Bassita v Uganda, Criminal Appeal No. 35 of 1995 (Supreme Court of Uganda), as applied in Kenyan courts, that the act of penetration may be proved by direct or circumstantial evidence, and that the victim's testimony corroborated by medical or other evidence is sufficient. In the present case there is both the unsworn testimony of the complainant and the uncontested medical finding of anal laceration by PW4. This court is satisfied that penetration was proved beyond reasonable doubt.
(c) Identification of the Assailant
17. The law on identification is well settled. In Francis Kariuki Njiru & 7 Others v Republic [2001] eKLR (NRB CA Criminal Appeal No. 6 of 2001), the Court of Appeal held as follows:
"The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinised carefully and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error."
18. In the present case, the identification issue does not arise in the same dimension as in cases of strangers committing offences in difficult conditions. The Appellant was not a stranger to the complainant or her family. He was their immediate neighbour who had moved into the compound in December 2024, barely one month before the offence. PW1 confirmed she had seen the Appellant playing draft with her children on the very day of the incident. PW2 also confirmed knowledge of the Appellant as the neighbour. The complainant, CW3, identified the Appellant by name as "Juma" and formally identified him in court, as recorded by the trial magistrate. The Appellant himself did not dispute that he was a neighbour and had been playing draft with the children. There is no possibility of error in identification. This ingredient was proved beyond reasonable doubt.
(d) The Defence
19. This court has carefully considered the sworn defence of the Appellant. He denied the charge, claimed he was asleep at home and was subsequently attacked by a mob, and alleged that the complainant's parents attempted to extort money from him and that the child was coached. These are bare denials unsupported by any independent evidence. The Appellant called no witnesses and produced no documentary evidence to support either his alibi or the alleged extortion attempt. The trial court found the prosecution evidence credible and relied upon the demeanour of the minor complainant, noting that on several occasions when the Appellant entered the courtroom the child went quiet and was unable to speak in his presence, which was a clear indication of her fear of him. Against the coherent, consistent and independently corroborated evidence of the prosecution, the bare denials of the Appellant do not raise any reasonable doubt. This court is satisfied that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt, and the appeal against conviction must fail.
Issue 2: Whether the Appellant's Right to a Fair Trial was Violated
20. The Appellant contended that his right to a fair trial under the Constitution was violated and that procedural errors were not adequately considered. The right to a fair trial is guaranteed under Article 50 of the Constitution of Kenya 2010 and is elevated to a non-derogable right under Article 25(c) thereof. Having examined the record carefully, this court is not persuaded that the right was violated in any material respect.
21. The record shows that on the first day of hearing the Appellant confirmed he was aware of his right to an advocate and elected to represent himself. He was thereafter supplied with witness statements and the medical documents after several court directions compelling supply. The complainant, being a child of very tender years who was found on more than one occasion to be unable to speak in court, was accommodated by having her testimony taken virtually. This was an exercise of the court's duty to protect the interests of a vulnerable child victim and to avoid re-traumatisation. The Appellant was afforded the opportunity to cross-examine all prosecution witnesses including the complainant, and was given adequate time to file submissions. A fair trial does not demand perfection in proceedings; it demands that there be no miscarriage of justice. This court finds no such miscarriage. This ground of appeal fails.
Issue 3: Whether the Sentence of Life Imprisonment is Lawful, Constitutional and Appropriate
22. The Appellant contends that an indeterminate and indefinite life sentence is untenable and unconstitutional. This ground has been subject of heightened legal debate and has been an issue of extensive consideration by the superior courts of Kenya.
23. Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides as follows:
"A person who commits an offence of defilement with a child aged eleven years and below shall upon conviction be sentenced to imprisonment for life."
24. The Court of Appeal applied the reasoning of the Supreme court in Francis Karioko Muruatetu &Another v Republic[2017]eKLR(SC Petition No.15&16 of 2015) in Julius Kitsao Manyeso v Republic[2023]KECA827(KLR)and held the following;
"…the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation…an indeterminate life sentence is inhumane treatment that violates the right to dignity under Article 28 of the Constitution…it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved."
25. This Manyeso decision by the Court of Appeal went to the Supreme Court on the question of mandatory life sentence under the sexual offences Act. The Supreme Court after listing its recommendations to the Attorney General in Muruatetu decision said the following;
‘65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts.
66. We therefore find that the Court of Appeal violated the principle of stare decisis by misapplying the decision in Muruatetu and in finding the life sentences of imprisonment to be unconstitutional.’
26. The Supreme court went on to hold that the court of Appeal erred in law by substituting a life imprisonment with a 40-year sentence. That the court usurped legislative powers.
27. This is exactly what the appellant is asking me to do. The sentence under section 8(2) is couched in mandatory terms. There is no ambiguity in the statutory provision. More importantly the Apex court has spoken to this issue directly. Any contrary finding will offend the doctrine of stare decisis. In the result I find the sentence of life imprisonment to be lawful and constitutional. The appeal on sentence is without merit. It is hereby dismissed.
Orders
28. Having re-evaluated the evidence afresh, considered the law and the grounds of appeal, this court makes the following orders:
(i) The appeal against conviction is hereby DISMISSED. The conviction of the Appellant for defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 is hereby UPHELD.
(ii) The appeal against sentence is hereby DISMISSED. Life sentence is lawful.
(iii) The Appellant is informed of his right of appeal to the Court of Appeal within 14 days of today.
It is so ordered.
Dated, signed and delivered in Open Court/Online through MS TEAMS, this ……12th… day of ……June……………… 2026.
HON. A.K. ITHUKU
JUDGE
In the presence of:
……………………………………………………………………… for the Appellant
……………………………………………………………………… for the State
……………………………………………………………………… Court Assistant
IN THE HIGH COURT OF KENYA
AT KISUMU
HCCRA NO. E078 OF 2025
JUMA SAMBU PTEEK .......................................................................... APPELLANT
VERSUS
REPUBLIC ............................................................................................ RESPONDENT
(Being an appeal against the conviction and sentence in the judgment at the Chief Magistrate's Court at Kisumu (Hon. G. C. Serem (RM)) in Criminal Case No. SO E002 of 2025, delivered on 28th July 2025 and sentenced on 4th August 2025)
J U D G M E N T
The Charge
1. The Appellant herein, Juma Sambu Pteek, was charged with the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on the 6th day of January 2025, at Sega Sega area in Kisumu Central Sub-County within Kisumu County, the Appellant intentionally caused his penis to penetrate the anus of J.A, a girl child aged 4 years old.
2. An alternative charge of Committing an Indecent Act with a Child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 was also preferred against the Appellant.
3. The Appellant pleaded not guilty to both charges. The matter proceeded to full hearing. On 16th June 2025 the trial court found that the Appellant had a case to answer. The Appellant elected to give a sworn statement in his own defence without calling any witnesses. On 28th July 2025 the Appellant was convicted of the offence of defilement, and on 4th August 2025 was sentenced to life imprisonment pursuant to Section 8(2) of the Sexual Offences Act No. 3 of 2006.
4. Aggrieved by both the conviction and the sentence, the Appellant filed the present appeal.
The Grounds of Appeal
5. The Appellant's grounds of appeal, as set out in his Petition of Appeal dated 11th August 2025, are as follows:
(i) That the learned trial magistrate erred in law and fact in not making a finding that the ingredients of the offence were not proved beyond a reasonable doubt;
(ii) That the learned trial magistrate erred in law and fact in not making a finding that the Appellant's right to a fair trial was breached;
(iii) That the learned trial magistrate erred in law and fact in not considering the procedural errors that were inconsequential to conviction;
(iv) That the learned trial magistrate erred in law and fact in admitting evidence that was inadmissible;
(v) That the learned trial magistrate erred in both law and fact in not weighing the conflicting evidence that was inconsequential to conviction; and
(vi) That the learned trial magistrate erred in both law and fact in not making a finding that an indeterminate and indefinite life sentence is untenable and unconstitutional.
Summary of the Evidence
6. The prosecution called five witnesses. Their evidence may be summarised as follows:
PW1 – Laura Akinyi Odhiambo (the mother of the complainant) testified that on 6th January 2025 at approximately 1.00 pm, her daughter J.A (aged 4 years) and her elder daughter were playing outside the house. The Appellant, who was their neighbour, was playing a game of draft with the children. Sometime later, J.A came running towards the house, crying. The child told her mother that the Appellant had asked her to remove her panty, inserted his penis into her vagina and anus, and thereafter given her a lollipop. PW1 went to the Appellant's door and knocked but he did not open. With the assistance of neighbours his door was broken open. Upon entry, the Appellant sought forgiveness. PW1 observed that the child had blood on her buttocks and a white fluid on the panty. The parties proceeded to the police station and subsequently to Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH). The birth certificate of the complainant (P Exhibit 1) was produced, confirming the child was born on 29th September 2020. A lollipop was produced as P Exhibit 2.
PW2 – Jared Odhiambo (the father of the complainant) testified that on 6th January 2025 he received an urgent telephone call from his wife and rushed home. He arrived to find a crowd in the compound. He identified the Appellant as his neighbour who had moved into the compound in December 2024. The child's buttocks were so injured that she could not go for a long call. He took the Appellant to the police station and thereafter to JOOTRH. He testified that the doctor removed liquid from the child's vagina and buttocks and identified that liquid as semen.
CW3 – J.A (the complainant) appeared before the court and underwent a voir dire examination. The trial court found that she did not understand the sanctity of an oath and accordingly she gave unsworn testimony. The complainant stated that the person she knew as Juma called her while they were playing draft, and asked her to remove her panty. He inserted his "dudu" (demonstrating to mean his penis) into her vagina and her anus. She stated that her mother was in the bedroom washing the baby at the time, and that her father had told her not to go to the Appellant's house, but the Appellant himself told her to enter. The complainant identified the Appellant in court, pointing him out and confirming his name as Juma. The trial court formally noted in the proceedings that the witness identified the accused person in court.
PW4 – Jared Obimba (Clinical Officer at JOOTRH with 13 years of experience) testified that the complainant was received at the hospital on 6th January 2025 at 5.00 pm. He examined the minor and found her to be sad. She reported that a male neighbour had taken her to his house, removed her panty and inserted his penis, which she described as "dudu", into both her vagina and anus. On physical examination, PW4 found the hymen to be intact but noted inflammation at the vagina and fresh superficial lacerations all round the anal orifice. On laboratory examination, red blood cells and epithelial cells were found in the anal area; vaginal examination revealed epithelial cells at plus two. PW4 produced the PRC form as P Exhibit 3 and the P3 form as P Exhibit 4. The panty and a high vaginal swab were taken to the Government Chemist.
PW5 – No. 118022 PC Dina Musyoka (Investigating Officer attached to Nyamasaria Patrol Base) testified that on 6th January 2025 the complainant's parents reported to the station that their four-year-old daughter had been defiled by a neighbour. The parents stated that J.A and her sister Natalia had been playing draft with the neighbour; Natalia left to shower and upon returning found that J.A was missing. J.A returned after approximately thirty minutes and reported she had been defiled. PW5 took the P3 and PRC forms to the hospital for completion, confirmed from the birth certificate that the victim was a child, and thereafter arrested and charged the Appellant.
7. The Appellant, DW1, gave a sworn statement in his defence. He stated that he worked with Lindum Security and had returned from work on 6th January 2025 and was asleep at home when his door was knocked. He opened the door and a crowd entered and started beating him. He denied committing the offence and maintained that he had been framed. He alleged that the complainant's parents had attempted to extort Kshs. 10,000/= from him. He asserted that the complainant was being coached on what to say, which he claimed was visible during the virtual hearing. He contended that the doctor's evidence showed no penetration, that the panty allegedly stained with blood was never produced in court, and that the semen purportedly removed from the child was never presented before the court.
The Duty of this Court
8. This is a first appeal. The duty of this court, sitting as a first appellate court, is well settled. In Okeno v Republic [1972] EA 32, the Court of Appeal for Eastern Africa set out the duty of a first appellate court. That duty was restated authoritatively in Kiilu & Another v Republic [2005] 1 KLR 174 where the Court of Appeal held as follows:
"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court's own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court's findings and conclusions; it must itself weigh the conflicting evidence and only then can it decide whether the Magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses."
9. In compliance with that duty, this court has subjected the entire evidence on record to a fresh and exhaustive examination, drawn its own conclusions, and in doing so has made due allowance for the fact that the trial court had the advantage of observing the demeanour of the witnesses.
Issues for Determination
10. The court identifies the following issues for determination:
(i) Whether the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt;
(ii) Whether the Appellant's right to a fair trial was violated; and
(iii) Whether the sentence of life imprisonment is lawful, constitutional and appropriate.
Issue 1: Whether the prosecution proved the ingredients of defilement beyond reasonable doubt
11. The offence of defilement is created by Section 8(1) of the Sexual Offences Act No. 3 of 2006 which provides: "A person who commits an act which causes penetration with a child is guilty of an offence termed defilement." The critical ingredients of the offence are well settled in our jurisprudence. In Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, the Court of Appeal stated as follows:
"The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant."
This position was affirmed in George Opondo Olunga v Republic [2016] eKLR where the court restated that the ingredients of the offence of defilement are identification or recognition of the offender, penetration, and the age of the victim. Each ingredient must be proved beyond reasonable doubt.
(a) Age of the Victim
12. The complainant was born on 29th September 2020, as confirmed by the birth certificate (P Exhibit 1) produced by PW1. This evidence was independently corroborated by PW2, who confirmed the child's date of birth, and by PW4 the Clinical Officer who confirmed he was testifying in respect of a minor born on 29th September 2020. The Court of Appeal in Edwin Nyambogo Onsongo v Republic [2016] eKLR settled the position that age in defilement cases may be proved by, among other means, a birth certificate, baptism card, oral evidence of parents or guardians, or medical evidence, and that whatever mode of proof is preferred it must be credible and reliable. In this case the birth certificate placed the matter beyond doubt. The complainant was aged 4 years at the time of the offence on 6th January 2025, well below the age of eleven years prescribed under Section 8(2) of the Sexual Offences Act. The ingredient of age was proved beyond reasonable doubt.
(b) Penetration
13. "Penetration" is a term of art. It is defined under Section 2 of the Sexual Offences Act No. 3 of 2006 to mean "the partial or complete insertion of the genital organs of a person into the genital organs of another person." Significantly, the same provision defines "genital organs" to include "the whole or part of male or female genital organs and for purposes of this Act includes the anus." It follows therefore that penetration of the anal region of a child constitutes the offence of defilement within the meaning of the Act, and the trial court was correct to so hold.
14. The complainant, CW3, gave unsworn testimony in which she clearly stated that the Appellant inserted his penis into both her vagina and her anus. Her account was consistent with the complaint she spontaneously made to her mother immediately after the incident. The medical evidence of PW4 significantly corroborated the complainant's account. PW4 found the hymen intact, thereby ruling out vaginal penetration, but crucially found fresh superficial lacerations all round the anal orifice together with redness and hyperpigmentation of the vaginal area. These findings, he confirmed, were a clear indication that penetration had occurred in the anal region. Laboratory examination confirmed the presence of red blood cells and epithelial cells in the anal area, consistent with anal injury.
15. The Appellant contended in his defence that the doctor said there was no penetration. This is a mischaracterisation of PW4's evidence. PW4 was unequivocal that while the hymen was intact, indicating no vaginal penetration had occurred, there was fresh laceration at the anal orifice consistent with anal penetration. The trial court correctly appreciated this distinction.
16. This court is guided by the principle stated in Hussein Bassita v Uganda, Criminal Appeal No. 35 of 1995 (Supreme Court of Uganda), as applied in Kenyan courts, that the act of penetration may be proved by direct or circumstantial evidence, and that the victim's testimony corroborated by medical or other evidence is sufficient. In the present case there is both the unsworn testimony of the complainant and the uncontested medical finding of anal laceration by PW4. This court is satisfied that penetration was proved beyond reasonable doubt.
(c) Identification of the Assailant
17. The law on identification is well settled. In Francis Kariuki Njiru & 7 Others v Republic [2001] eKLR (NRB CA Criminal Appeal No. 6 of 2001), the Court of Appeal held as follows:
"The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinised carefully and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error."
18. In the present case, the identification issue does not arise in the same dimension as in cases of strangers committing offences in difficult conditions. The Appellant was not a stranger to the complainant or her family. He was their immediate neighbour who had moved into the compound in December 2024, barely one month before the offence. PW1 confirmed she had seen the Appellant playing draft with her children on the very day of the incident. PW2 also confirmed knowledge of the Appellant as the neighbour. The complainant, CW3, identified the Appellant by name as "Juma" and formally identified him in court, as recorded by the trial magistrate. The Appellant himself did not dispute that he was a neighbour and had been playing draft with the children. There is no possibility of error in identification. This ingredient was proved beyond reasonable doubt.
(d) The Defence
19. This court has carefully considered the sworn defence of the Appellant. He denied the charge, claimed he was asleep at home and was subsequently attacked by a mob, and alleged that the complainant's parents attempted to extort money from him and that the child was coached. These are bare denials unsupported by any independent evidence. The Appellant called no witnesses and produced no documentary evidence to support either his alibi or the alleged extortion attempt. The trial court found the prosecution evidence credible and relied upon the demeanour of the minor complainant, noting that on several occasions when the Appellant entered the courtroom the child went quiet and was unable to speak in his presence, which was a clear indication of her fear of him. Against the coherent, consistent and independently corroborated evidence of the prosecution, the bare denials of the Appellant do not raise any reasonable doubt. This court is satisfied that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt, and the appeal against conviction must fail.
Issue 2: Whether the Appellant's Right to a Fair Trial was Violated
20. The Appellant contended that his right to a fair trial under the Constitution was violated and that procedural errors were not adequately considered. The right to a fair trial is guaranteed under Article 50 of the Constitution of Kenya 2010 and is elevated to a non-derogable right under Article 25(c) thereof. Having examined the record carefully, this court is not persuaded that the right was violated in any material respect.
21. The record shows that on the first day of hearing the Appellant confirmed he was aware of his right to an advocate and elected to represent himself. He was thereafter supplied with witness statements and the medical documents after several court directions compelling supply. The complainant, being a child of very tender years who was found on more than one occasion to be unable to speak in court, was accommodated by having her testimony taken virtually. This was an exercise of the court's duty to protect the interests of a vulnerable child victim and to avoid re-traumatisation. The Appellant was afforded the opportunity to cross-examine all prosecution witnesses including the complainant, and was given adequate time to file submissions. A fair trial does not demand perfection in proceedings; it demands that there be no miscarriage of justice. This court finds no such miscarriage. This ground of appeal fails.
Issue 3: Whether the Sentence of Life Imprisonment is Lawful, Constitutional and Appropriate
22. The Appellant contends that an indeterminate and indefinite life sentence is untenable and unconstitutional. This ground has been subject of heightened legal debate and has been an issue of extensive consideration by the superior courts of Kenya.
23. Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides as follows:
"A person who commits an offence of defilement with a child aged eleven years and below shall upon conviction be sentenced to imprisonment for life."
24. The Court of Appeal applied the reasoning of the Supreme court in Francis Karioko Muruatetu &Another v Republic[2017]eKLR(SC Petition No.15&16 of 2015) in Julius Kitsao Manyeso v Republic[2023]KECA827(KLR)and held the following;
"…the reasoning in Francis Karioko Muruatetu & another v Republic [2017] eKLR equally applies to the imposition of a mandatory indeterminate life sentence, namely that such a sentence denies a convict facing life imprisonment the opportunity to be heard in mitigation when those facing lesser sentences are allowed to be heard in mitigation…an indeterminate life sentence is inhumane treatment that violates the right to dignity under Article 28 of the Constitution…it is now a principle in international law that all prisoners, including those serving life sentences, be offered the possibility of rehabilitation and the prospect of release if that rehabilitation is achieved."
25. This Manyeso decision by the Court of Appeal went to the Supreme Court on the question of mandatory life sentence under the sexual offences Act. The Supreme Court after listing its recommendations to the Attorney General in Muruatetu decision said the following;
‘65. From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts.
66. We therefore find that the Court of Appeal violated the principle of stare decisis by misapplying the decision in Muruatetu and in finding the life sentences of imprisonment to be unconstitutional.’
26. The Supreme court went on to hold that the court of Appeal erred in law by substituting a life imprisonment with a 40-year sentence. That the court usurped legislative powers.
27. This is exactly what the appellant is asking me to do. The sentence under section 8(2) is couched in mandatory terms. There is no ambiguity in the statutory provision. More importantly the Apex court has spoken to this issue directly. Any contrary finding will offend the doctrine of stare decisis. In the result I find the sentence of life imprisonment to be lawful and constitutional. The appeal on sentence is without merit. It is hereby dismissed.
Orders
28. Having re-evaluated the evidence afresh, considered the law and the grounds of appeal, this court makes the following orders:
(i) The appeal against conviction is hereby DISMISSED. The conviction of the Appellant for defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 is hereby UPHELD.
(ii) The appeal against sentence is hereby DISMISSED. Life sentence is lawful.
(iii) The Appellant is informed of his right of appeal to the Court of Appeal within 14 days of today.
It is so ordered.
Dated, signed and delivered in Open Court/Online through MS TEAMS, this ……12th… day of ……June……………… 2026.
HON. A.K. ITHUKU
JUDGE
In the presence of:
……………………………………………………………………… for the Appellant
……………………………………………………………………… for the State
……………………………………………………………………… Court Assistant