( Being an appeal from the conviction and sentence in Kilungu MCSO Case No. E012 of 2025 vide a judgement delivered by Hon. C.K Cheptoo, Senior Principal Magistrate, on 4 th day of December, 2025 )
JUDGMENT.
INTRODUCTION
1. The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act , No 3 of 2006. The particulars of the offence are that on diverse dates between December 2024 and February 2025 at Kiima Location in Mukaa Sub – County, the appellant personally and intentionally caused his penis to penetrate the vagina of S.M.M a child aged 12 years.
2. The appellant was charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act , No. 3 of 2006. The particulars of the offence were that the appellant on diverse dates between the year 2024 and 2025 at Mwanyani Kiima Kiu Location in Mukaa Sub – County within Makueni County, the Appellant intentionally touched the vagina of S.M.M a child aged 12 years with his penis.
3. The appellant was informed of his rights under Article 50 of the Constitution at the commencement of the suit which he informed Court that he understood but proceeded by way of self-representation
4. The Appellant was eventually convicted of the offence of defilement and was sentenced to 20 years' imprisonment. The appellant was aggrieved by the conviction and sentence and proceeded to file his Petition of Appeal citing 11 grounds as reproduced herein under:
1. That the trial magistrate grossly erred in law and facts in relying on suspicious and fictitious evidence of the complainant and without noting that she was subjected to duress thus incriminating the Appellant.
2. That the trial magistrate erred in law and fact in relying on hearsay evidence adduced by the prosecution witnesses and failed to note that the charges against the appellant were born out of malice and ill-will.
3. That the trial magistrate erred in law and in facts by misapplying an unsubstantiated claim that the appellant committed defilement to the complainant on the contrary the ingredients of the alleged offence were not properly established, the conviction was based on suspicion, fabrication and not on the evidence.
4. That the trial magistrate gravely erred in law and in fact in finding the appellant guilty as charged in absence of corresponding medical evidence of sexual activeness on the part of the Appellant.
5. That the learned trial magistrate failed to test the evidence of the prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistence and evidence that was not water tight enough and lacked probative values to justify a conviction.
6. That the trial court erred in law and fact without observing that there were no substantive investigations by the I.O thereby basing the conviction on mere allegations and fabrications. No eyewitness testimony that a person was seen fleeing from the scene of crime and no fingerprint nor anything found linking the Appellant with the commission of the alleged offence. He acted on malafides while handling the matter.
7. That the trial magistrate erred in law and in fact by not finding that the evidence of the complainant as adduced in court and also the delay in not reporting the incident in reasonable times raised sufficient doubt as to the occurrence of the incident and the doubt should have been resolved in appellant’s favour.
8. That the trial court erred in law and in fact by shifting the burden of proof to the appellant contrary to the provisions of section 107 of the Evidence Act when the prosecution failed to discharge its duty of proving the case; om that it is trite law that an accused person should only be convicted on the strength of his prosecution evidence and not on the weakness if his defence.
9. That the trial magistrate erred in law and in fact as he deliberately overlooked that the witness gave false evidence despite the fact that they were under oath to tell the truth and also overlooked the cross examination of the defence counsel, which was based and in favour of the prosecution.
10. That the sentence passed/meted against the Appellant was manifestly draconian, excessively punitive and unfairly oppressive considering the facts and circumstances of the alleged offence and contravened the provisions of Article 47 of the Constitution.
11. That the conviction and sentence cannot be supported by any scintilla of evidence tendered before the trial court .
5. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 22 nd May, 2026. The Respondent however did not file submissions in opposition of the Appeal or the same were not availed for the court’s perusal at the time I retired to write this decision.
6. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different ”.
7. This duty was also articulated by the former Court of Appeal for East Africa in Okeno v Republic [1972] EA 32 .
ISSUES FOR DETERMINATION
8. Having considered the Petition of Appeal, the record of the trial court, and the submissions by the Appellant, the following issues arise for determination;
a) Whether the age of the complainant was proved beyond reasonable doubt.
b) Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
c) Whether the Appellant was positively identified as the perpetrator of the Offence.
d) Whether the Appellant’s defence was considered.
e) Whether the sentence imposed was harsh, excessive, or unlawful .
ANALYSIS & DETERMINATION
9. On whether the Age of the Complainant was proved, the Court take note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position were stated in George Opondo Olunga vs. Republic (2016) e KLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice .”
10. The victim in this case is said to be a 12 years minor at the time of the incident. This is as indicated by the Charge Sheet. Further when she testified before Court she stated that she was Thirteen years (13) years at the time meaning the defilement occurred approximately a year before. Birth certificate was produced by PW3 which indicated the Complainant was born on the 24 th December, 2012.
11. The age stated in the charge sheet was therefore an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant well below the age of Twelve years. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed.
12. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
13. On whether Penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
14. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
15. In the present case, the Clinical officer testified as PW3 stated that on examination of the Complainant she noted that her hymen was broken and proceeded to use the PRC form and treatment notes to fill up the P3 Form. She further stated that the Complainant exhibited symptoms of loss of concentration and excessive fear with a pattern on sleep disturbance and it is for the reason that they concluded that the Complainant had been defiled and produced a copy of the P3 Form, PRC Forms and Treatment Notes. No evidence has been tendered by the Appellant to disregard the testimony of PW3 herein. The court has also had an opportunity to carefully examine the P3 Form, the PRC Form as well as the treatments notes and in light of the statutory definition and the binding authority of the Court of Appeal, the medical findings were consistent with partial penetration within the meaning of section 2 of the Act.
16. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
17. On the issue of identification of the Appellant, the Complainant narrated how she used to visit the Appellant’s hotel and referred to him as Baba Faith a name he confirmed was his during the Defence hearing. She testified that the Appellant testified that the Appellant defiled her on the floor of the Hotel and that it was not the first time that she has visited the Hotel a clear indication that the Complainant knew the Appellant very well. Further the Investigating officer further buttressed the evidence of the Complainant by producing before court a sketch map of the scene of the incident and that the place is easily deserted as it does not have a lot of individuals who frequent the hotel and the fact that the complainant used the behind door to the hotel where nobody was able to see her go in and go out
18. In his defence the Appellant did not dispute that the Complainant were known to him as well as her parents in as much as he denied the allegation put towards him. His own evidence therefore confirmed that this was a case of recognition rather than identification of a stranger, thereby eliminating the possibility of mistaken identity.
19. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other .”
20. The court is satisfied that the appellant was recognized by the Complainant who knew him therefore it was proved that the appellant was the perpetrator.
21. In the present case, the prosecution case was not founded solely on the complainant's testimony. Her account was materially supported by the medical evidence of the doctor, which confirmed findings consistent with sexual assault.
22. It is therefore my considered view that the trial court duly considered the Appellant's defence alongside the prosecution evidence and upon my own re-evaluation of the record, I find no basis to fault that finding and therefore see no reason to interfere with the trial court's determination on the issue.
23. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was draconian and excessive.
24. Section 8 (3) of The Act provides that: -
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
25. The offence of defiling a child aged twelve and fifteen years with which the Appellant was charged with, prescribes a minimum sentence of not less than twenty years. There has been judicial discourse on constitutionality of the minimum sentences under Section 8 of the Act.
26. However, in its most recent precedent, the Supreme Court settled the issue in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment ) where it upheld the constitutionality of the mandatory minimum sentence under the Sexual Offences Act. This Court is bound by such precedent.
27. It then follows that until a matter is duly file challenging the constitutionality of the minimum sentence under Section 8 (3) of The Act, courts must abide by the sentences provided for in statute. I thus find that the trial court correctly applied the minimum sentence under Section 8 (3) of the Sexual Offences Act.
28. I find that a sentence of 20 years’ imprisonment was lawfully imposed and the same is upheld.
29. The upshot is that the appeal is found to be without merit and is dismissed accordingly. The trial court’s conviction and sentence is upheld .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 9 th September 2026.
HCCRA NO. E087 OF 2025 JUSTUS KATUA KIMWELI VS REPUBLIC JUDGMENT Pg. 8
JUDGMENT.
INTRODUCTION
1. The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act , No 3 of 2006. The particulars of the offence are that on diverse dates between December 2024 and February 2025 at Kiima Location in Mukaa Sub – County, the appellant personally and intentionally caused his penis to penetrate the vagina of S.M.M a child aged 12 years.
2. The appellant was charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act , No. 3 of 2006. The particulars of the offence were that the appellant on diverse dates between the year 2024 and 2025 at Mwanyani Kiima Kiu Location in Mukaa Sub – County within Makueni County, the Appellant intentionally touched the vagina of S.M.M a child aged 12 years with his penis.
3. The appellant was informed of his rights under Article 50 of the Constitution at the commencement of the suit which he informed Court that he understood but proceeded by way of self-representation
4. The Appellant was eventually convicted of the offence of defilement and was sentenced to 20 years' imprisonment. The appellant was aggrieved by the conviction and sentence and proceeded to file his Petition of Appeal citing 11 grounds as reproduced herein under:
1. That the trial magistrate grossly erred in law and facts in relying on suspicious and fictitious evidence of the complainant and without noting that she was subjected to duress thus incriminating the Appellant.
2. That the trial magistrate erred in law and fact in relying on hearsay evidence adduced by the prosecution witnesses and failed to note that the charges against the appellant were born out of malice and ill-will.
3. That the trial magistrate erred in law and in facts by misapplying an unsubstantiated claim that the appellant committed defilement to the complainant on the contrary the ingredients of the alleged offence were not properly established, the conviction was based on suspicion, fabrication and not on the evidence.
4. That the trial magistrate gravely erred in law and in fact in finding the appellant guilty as charged in absence of corresponding medical evidence of sexual activeness on the part of the Appellant.
5. That the learned trial magistrate failed to test the evidence of the prosecution witnesses and caution the circumspection thereby convicting on flimsy, inconsistence and evidence that was not water tight enough and lacked probative values to justify a conviction.
6. That the trial court erred in law and fact without observing that there were no substantive investigations by the I.O thereby basing the conviction on mere allegations and fabrications. No eyewitness testimony that a person was seen fleeing from the scene of crime and no fingerprint nor anything found linking the Appellant with the commission of the alleged offence. He acted on malafides while handling the matter.
7. That the trial magistrate erred in law and in fact by not finding that the evidence of the complainant as adduced in court and also the delay in not reporting the incident in reasonable times raised sufficient doubt as to the occurrence of the incident and the doubt should have been resolved in appellant’s favour.
8. That the trial court erred in law and in fact by shifting the burden of proof to the appellant contrary to the provisions of section 107 of the Evidence Act when the prosecution failed to discharge its duty of proving the case; om that it is trite law that an accused person should only be convicted on the strength of his prosecution evidence and not on the weakness if his defence.
9. That the trial magistrate erred in law and in fact as he deliberately overlooked that the witness gave false evidence despite the fact that they were under oath to tell the truth and also overlooked the cross examination of the defence counsel, which was based and in favour of the prosecution.
10. That the sentence passed/meted against the Appellant was manifestly draconian, excessively punitive and unfairly oppressive considering the facts and circumstances of the alleged offence and contravened the provisions of Article 47 of the Constitution.
11. That the conviction and sentence cannot be supported by any scintilla of evidence tendered before the trial court .
5. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 22 nd May, 2026. The Respondent however did not file submissions in opposition of the Appeal or the same were not availed for the court’s perusal at the time I retired to write this decision.
6. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different ”.
7. This duty was also articulated by the former Court of Appeal for East Africa in Okeno v Republic [1972] EA 32 .
ISSUES FOR DETERMINATION
8. Having considered the Petition of Appeal, the record of the trial court, and the submissions by the Appellant, the following issues arise for determination;
a) Whether the age of the complainant was proved beyond reasonable doubt.
b) Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
c) Whether the Appellant was positively identified as the perpetrator of the Offence.
d) Whether the Appellant’s defence was considered.
e) Whether the sentence imposed was harsh, excessive, or unlawful .
ANALYSIS & DETERMINATION
9. On whether the Age of the Complainant was proved, the Court take note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position were stated in George Opondo Olunga vs. Republic (2016) e KLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice .”
10. The victim in this case is said to be a 12 years minor at the time of the incident. This is as indicated by the Charge Sheet. Further when she testified before Court she stated that she was Thirteen years (13) years at the time meaning the defilement occurred approximately a year before. Birth certificate was produced by PW3 which indicated the Complainant was born on the 24 th December, 2012.
11. The age stated in the charge sheet was therefore an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant well below the age of Twelve years. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed.
12. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
13. On whether Penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
14. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
15. In the present case, the Clinical officer testified as PW3 stated that on examination of the Complainant she noted that her hymen was broken and proceeded to use the PRC form and treatment notes to fill up the P3 Form. She further stated that the Complainant exhibited symptoms of loss of concentration and excessive fear with a pattern on sleep disturbance and it is for the reason that they concluded that the Complainant had been defiled and produced a copy of the P3 Form, PRC Forms and Treatment Notes. No evidence has been tendered by the Appellant to disregard the testimony of PW3 herein. The court has also had an opportunity to carefully examine the P3 Form, the PRC Form as well as the treatments notes and in light of the statutory definition and the binding authority of the Court of Appeal, the medical findings were consistent with partial penetration within the meaning of section 2 of the Act.
16. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
17. On the issue of identification of the Appellant, the Complainant narrated how she used to visit the Appellant’s hotel and referred to him as Baba Faith a name he confirmed was his during the Defence hearing. She testified that the Appellant testified that the Appellant defiled her on the floor of the Hotel and that it was not the first time that she has visited the Hotel a clear indication that the Complainant knew the Appellant very well. Further the Investigating officer further buttressed the evidence of the Complainant by producing before court a sketch map of the scene of the incident and that the place is easily deserted as it does not have a lot of individuals who frequent the hotel and the fact that the complainant used the behind door to the hotel where nobody was able to see her go in and go out
18. In his defence the Appellant did not dispute that the Complainant were known to him as well as her parents in as much as he denied the allegation put towards him. His own evidence therefore confirmed that this was a case of recognition rather than identification of a stranger, thereby eliminating the possibility of mistaken identity.
19. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other .”
20. The court is satisfied that the appellant was recognized by the Complainant who knew him therefore it was proved that the appellant was the perpetrator.
21. In the present case, the prosecution case was not founded solely on the complainant's testimony. Her account was materially supported by the medical evidence of the doctor, which confirmed findings consistent with sexual assault.
22. It is therefore my considered view that the trial court duly considered the Appellant's defence alongside the prosecution evidence and upon my own re-evaluation of the record, I find no basis to fault that finding and therefore see no reason to interfere with the trial court's determination on the issue.
23. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was draconian and excessive.
24. Section 8 (3) of The Act provides that: -
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
25. The offence of defiling a child aged twelve and fifteen years with which the Appellant was charged with, prescribes a minimum sentence of not less than twenty years. There has been judicial discourse on constitutionality of the minimum sentences under Section 8 of the Act.
26. However, in its most recent precedent, the Supreme Court settled the issue in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment ) where it upheld the constitutionality of the mandatory minimum sentence under the Sexual Offences Act. This Court is bound by such precedent.
27. It then follows that until a matter is duly file challenging the constitutionality of the minimum sentence under Section 8 (3) of The Act, courts must abide by the sentences provided for in statute. I thus find that the trial court correctly applied the minimum sentence under Section 8 (3) of the Sexual Offences Act.
28. I find that a sentence of 20 years’ imprisonment was lawfully imposed and the same is upheld.
29. The upshot is that the appeal is found to be without merit and is dismissed accordingly. The trial court’s conviction and sentence is upheld .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 9 th September 2026.
HCCRA NO. E087 OF 2025 JUSTUS KATUA KIMWELI VS REPUBLIC JUDGMENT Pg. 8