.
(Being an appeal against the Judgment of Hon. G.A. Ollimo, Senior Resident Magistrate, delivered on 5th March 2025 in Mombasa Chief Magistrate's Court Sexual Offence Case No. E003 of 2024, Republic v Kamanza Gundi Dzuwamwenga).
Introduction
1. The appellant, Kamanza Gundi Dzuwamwenga , was charged before the Chief Magistrate's Court at Mombasa 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.
2. The particulars of the charge were that on 22nd December 2023 at about 1600 hours at Tudor, Mvita Sub-County, within Mombasa County, he intentionally and unlawfully caused his penis to penetrate the vagina of L.J.M. , a child aged thirteen (13) years.
3. In the alternative, he was charged with Committing an Indecent Act with a Child contrary to section 11(1) of the Sexual Offences Act , the particulars being that on the same date and place, he intentionally and unlawfully caused his penis to touch the vagina of the said child.
4. Upon conclusion of the trial, the learned Senior Resident Magistrate found the appellant guilty of the principal charge, convicted him and sentenced him in accordance with the law. Being dissatisfied with both conviction and sentence, the appellant lodged the present appeal.
Grounds of Appeal
5. In his Petition of Appeal, the appellant raises the following grounds:
i. That the learned trial magistrate erred in law and in fact by convicting him despite the prosecution having failed to adduce sufficient evidence to prove the offence.
ii. That the learned trial magistrate erred in law and in fact by failing to appreciate that the prosecution had not established the identity of the perpetrator.
iii. That the learned trial magistrate erred in law and in fact by holding that the prosecution had proved its case beyond reasonable doubt.
iv. That the learned trial magistrate failed to properly evaluate and consider his defence.
v. That the learned trial magistrate failed to give due consideration to his mitigation before passing sentence.
Duty of the First Appellate Court
6. This being a first appeal, the duty of this Court is well settled. It is incumbent upon the Court to subject the entire evidence tendered before the trial court to a fresh and exhaustive examination, analyse and evaluate it independently, and arrive at its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage.
7. The principles governing a first appellate court were succinctly stated in Okeno v Republic [1972] EA 32 , where the predecessor of the Court of Appeal held that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though always bearing in mind that it has neither seen nor heard the witnesses. The same principles were reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174 and David Njuguna Wairimu v Republic [2010] eKLR .
Evidence in Brief
(a) The Prosecution Case
8. The prosecution called four (4) witnesses in support of its case.
9. PW1, Sarah Kadenge , the complainant's mother, testified that on 30th December 2023 she received information from PW2 that the complainant had disclosed an incident involving the appellant, who was the caretaker of the apartments where they resided. Upon questioning her daughter, the complainant informed her that the appellant had deceived her into assisting him with a garbage bin before leading her into a house on the ground floor where he sexually assaulted her. PW1 reported the matter at Makupa Police Station and took the complainant for medical examination. She produced the complainant's Birth Certificate which established that she was born on 30th November 2009 , making her thirteen (13) years old at the time of the alleged offence.
10. PW2, Gabriel Mwaura Mushiri , testified that he interacted with children within the apartment complex during entertainment activities. He stated that after gradually earning the complainant's confidence, she informed him that the appellant had initially been touching her inappropriately. PW2 advised the complainant of the dangers of pregnancy, following which he told the subjects mother and also recorded a statement with the police.
11. PW3, L.J.M., the complainant, testified that sometime in December 2023, while her aunt was away, the appellant falsely informed her that her aunt had instructed him to assist in collecting the garbage. After returning the garbage bin, he directed her to collect it from a room on the ground floor. Once inside, he pulled her into the room, removed her clothes, wore a condom and inserted his penis into her vagina. According to her testimony, after the incident the appellant told her that he wanted her to bear him a child before instructing her to dress and leave. She later confided in PW2, who encouraged her to disclose the incident to her mother.
12. PW4, Sadiq Nyawa , a Clinical Officer attached to Coast General Teaching and Referral Hospital, examined the complainant on 30th December 2023. He observed bruising at the six o'clock position of the vaginal wall and noted that the hymen was absent. Although laboratory tests did not reveal spermatozoa or sexually transmitted infections, his clinical findings were consistent with vaginal penetration. He completed the P3 Form and the Post Rape Care (PRC) Form, both of which were produced in evidence.
(b) The Defence Case
13. The appellant elected to make an unsworn statement and called no witnesses.
14. He denied committing the offence and maintained that he had been falsely implicated. He testified that he was employed as the caretaker of the apartments and was responsible for enforcing parking regulations within the premises. According to him, the complainant's mother became aggrieved after he reported her for occupying two parking spaces and directed her to utilise an alternative parking area. He alleged that she threatened to have him dismissed from his employment and, in furtherance of that threat, fabricated the allegations of defilement against him. He therefore urged the trial court to reject the prosecution's case and acquit him.
Issues for Determination
15. Having considered the Petition of Appeal, the record of the trial court, the evidence adduced, and the applicable law, the issues arising for determination are:
a. Whether the prosecution proved that the complainant was a child within the meaning of the Sexual Offences Act.
b. Whether the prosecution proved penetration.
c. Whether the prosecution proved beyond reasonable doubt that it was the appellant who perpetrated the offence.
d. Whether the conviction was safe.
The Applicable Law
16. The appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. Section 8(1) provides:
"A person who commits an act which causes penetration with a child is guilty of an offence termed defilement."
17. The offence therefore has three essential ingredients which the prosecution must prove beyond reasonable doubt, namely:
i. That the complainant was a child.
ii. That there was penetration as defined under section 2 of the Sexual Offences Act.
iii. That the penetration was caused by the accused person.
18. These ingredients have been consistently affirmed by the Court of Appeal in Kaingu Elias Kasomo v Republic [2014] eKLR, where the Court held that proof of age, proof of penetration and positive identification of the perpetrator are the indispensable elements of the offence of defilement. The same position was reiterated in George Owiti Raya v Republic [2013] eKLR and Fappyton Mutuku Ngui v Republic [2014] eKLR.
19. It is equally settled that the burden of proving every ingredient of a criminal offence rests upon the prosecution throughout the trial and never shifts to the accused person. The prosecution must establish the guilt of an accused beyond reasonable doubt. This cardinal principle was authoritatively stated in Woolmington v Director of Public Prosecutions [1935] AC 462 and has consistently been applied by Kenyan courts. In Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning explained that proof beyond reasonable doubt does not mean proof beyond all doubt, but proof that leaves the court with no reasonable doubt regarding the guilt of the accused.
20. Where the evidence leaves room for reasonable doubt, however slight, the benefit of that doubt must be resolved in favour of the accused person.
Analysis
(i) Whether the Complainant's Age was Proved
21. Age is a fundamental ingredient of the offence of defilement because the applicable sentence depends upon the age of the child. It must therefore be proved by credible evidence, although such proof need not necessarily be by a birth certificate alone.
22. In Kaingu Elias Kasomo v Republic [2014] eKLR, the Court of Appeal observed that age may be proved by documentary evidence, medical evidence or credible oral testimony, provided the court is satisfied as to the age of the complainant.
23. In the present appeal, PW1, the complainant's mother, testified that the complainant was born on 30th November 2009. She produced the complainant's Birth Certificate, which was admitted in evidence without objection. The authenticity of that document was not challenged at the trial, nor has its accuracy been questioned on appeal.
24. The Birth Certificate conclusively established that the complainant was thirteen (13) years old at the time of the alleged offence in December 2023.
25. I am therefore satisfied that the prosecution proved the complainant's age beyond reasonable doubt. Accordingly, the first ingredient of the offence of defilement was established.
(ii) Whether Penetration and the Identity of the Perpetrator Were Proved
26. The second and third ingredients of the offence, namely penetration and the identity of the perpetrator, are closely intertwined in the circumstances of this appeal and are therefore considered together.
27. Under section 2 of the Sexual Offences Act, "penetration" means the partial or complete insertion of the genital organs of one person into the genital organs of another person. Penetration may be proved by the evidence of the complainant, medical evidence, or a combination of both. It is not a legal requirement that medical evidence be produced in every case, provided the court is satisfied from the totality of the evidence that penetration occurred.
28. In the present case, the complainant (PW3) testified that the appellant lured her into a room on the ground floor, removed her clothes, wore a condom and inserted his penis into her vagina. PW4, the Clinical Officer who examined the complainant on 30th December 2023, observed bruising at the six o'clock position of the vaginal wall and noted that the hymen was absent. He formed the opinion that the clinical findings were consistent with vaginal penetration.
29. Ordinarily, the foregoing evidence would be capable of proving penetration. However, the evidence must be considered in its entirety and not in isolation. A conviction cannot rest merely upon proof that penetration occurred; the prosecution must also prove beyond reasonable doubt that it was the accused person who caused that penetration.
30. Upon independently re-evaluating the record, I find that the prosecution evidence contained material inconsistencies and unexplained omissions that cast doubt on whether the appellant was positively connected to the offence.
31. First, there is uncertainty regarding the date of the alleged offence. The charge sheet states that the offence occurred on 22nd December 2023. However, none of the principal witnesses consistently supported that date.
32. PW1 did not state the date of the alleged offence during her examination-in-chief. Instead, she testified that she learnt of the incident after receiving information on 30th December 2023, whereupon she questioned the complainant who disclosed what had allegedly transpired. During cross-examination, however, PW1 stated that the incident had occurred on 23rd December 2023, a date different from that contained in the charge sheet.
33. PW2 testified that the complainant informed him that something had happened to her at the beginning of December 2023. He further stated that he met the complainant on a subsequent Sunday and later approached her mother on the third Sunday of December. He did not identify any specific date on which the alleged offence occurred.
34. Equally, the complainant herself did not specify the date when the alleged offence took place, stating only that it occurred sometime in December 2023.
35. While a discrepancy in dates is not invariably fatal to the prosecution case, the inconsistencies in this matter assume significance because they demonstrate uncertainty surrounding the occurrence itself. There is no evidential basis upon which the date of 22nd December 2023, as stated in the charge sheet, can be reconciled with the testimony of the prosecution witnesses.
36. Secondly, the proceedings reveal an unusual and significant development at the commencement of the trial. When the appellant first appeared before the trial court on 4th January 2024, the prosecution informed the court that the complainant had recently delivered a baby and applied for DNA analysis to be conducted between the appellant and the child. The trial court allowed the application and directed that the appellant be availed for the collection of samples.
37. Thereafter, the proceedings are completely silent regarding the fate of the DNA examination. No DNA report was produced before the trial court. No witness testified that samples had been collected, analysed or that the exercise had become impossible. Neither did the prosecution offer any explanation for abandoning evidence which it had itself considered sufficiently important to seek orders from the court. The delivery in January 2024 was a curous submission, as the dedilement is siad to have occured in December 2023.
38. This pregnancy and the subsequent silence on it, assume considerable significance when viewed alongside the medical evidence. The PRC Form produced in evidence contains an entry indicating that the complainant reported having previously engaged in sexual intercourse with another man, a matter she had not disclosed to anyone. That history was never investigated or explained during the trial.
39. Consequently, although the medical evidence established previous penetration, it did not conclusively connect the appellant to that penetration. The DNA evidence, which could potentially have clarified that issue, was neither produced nor explained.
40. Thirdly, despite these unresolved issues, the prosecution elected not to call the Investigating Officer. On 4th September 2024, the prosecution informed the trial court that it would close its case without calling that witness.
41. It is true that section 143 of the Evidence Act provides that no particular number of witnesses is required to prove any fact. However, where the prosecution fails to call a witness who is central to the resolution of material issues, and no satisfactory explanation is offered, the court is entitled to draw an adverse inference that the evidence would not have supported the prosecution case. This principle was enunciated in Bukenya & Others v Uganda [1972] EA 549.
42. In the circumstances of this case, the Investigating Officer was the witness best placed to explain the chronology of the investigations, the outcome of the court-ordered DNA process, the discrepancies regarding the dates of the alleged offence, and the evidential basis upon which the appellant was identified as the perpetrator. His absence left critical gaps in the prosecution case.
43. Having carefully reconsidered the entire evidence, I find that while there was evidence suggestive of previous penetration, the prosecution failed to eliminate the reasonable doubts arising from the inconsistencies in the evidence, the unexplained abandonment of the DNA process, the failure to call the Investigating Officer, and the unresolved matters recorded in the PRC Form.
44. The cumulative effect of those deficiencies is that the identity of the perpetrator was not proved beyond reasonable doubt. As the Court of Appeal observed in Kaingu Elias Kasomo v Republic [2014] eKLR, proof of penetration alone is insufficient. The prosecution must also prove, to the required standard, that the accused person was the one who caused that penetration.
45. In the present case, that burden was not discharged.
(iii) Whether the Prosecution Proved its Case Beyond Reasonable Doubt
46. The final issue is whether, upon a consideration of the entire evidence on record, the prosecution proved the appellant's guilt beyond reasonable doubt.
47. The law is settled that in criminal proceedings the burden of proof rests entirely upon the prosecution and remains constant throughout the trial. An accused person bears no duty to prove his innocence. See Woolmington v Director of Public Prosecutions [1935] AC 462. Where the evidence raises a reasonable doubt as to the guilt of an accused person, that doubt must be resolved in his favour.
48. Having independently reconsidered the evidence, I am satisfied that the prosecution proved that the complainant was a child aged thirteen (13) years. There was also medical evidence suggestive of vaginal penetration. However, those two elements alone were insufficient to sustain a conviction for defilement.
49. The prosecution was further required to prove, beyond reasonable doubt, that it was the appellant who caused that penetration. It is on this crucial ingredient that the prosecution case faltered.
50. The evidence disclosed material inconsistencies regarding the date of the alleged offence. More importantly, despite successfully obtaining orders for DNA examination after informing the trial court that the complainant had delivered a child, the prosecution failed to produce the DNA report or offer any explanation for its absence. That omission assumed greater significance in light of the entry contained in the PRC Form indicating that the complainant had previously engaged in sexual intercourse with another person.
51. Equally significant was the prosecution's decision not to call the Investigating Officer, who was the witness best placed to explain the investigations undertaken, the outcome of the court-ordered DNA process, the discrepancies in the prosecution evidence, and the basis upon which the appellant was linked to the offence. Those evidential gaps remained unresolved.
52. While none of the foregoing deficiencies, considered individually, would necessarily have been fatal to the prosecution case, their cumulative effect created reasonable doubt as to whether the appellant was the person who committed the offence. Criminal liability cannot be founded upon suspicion, however strong, or upon incomplete investigations. The prosecution was required to present cogent and consistent evidence establishing every element of the offence beyond reasonable doubt. In my respectful view, it failed to do so.
53. As regards the appellant's defence, he denied committing the offence and alleged that he had been falsely accused following a disagreement with the complainant's mother. It is unnecessary for this Court to determine whether that explanation was true. The law does not require an accused person to prove his defence or establish his innocence. Once the prosecution failed to discharge its legal burden of proof, the appellant became entitled to an acquittal irrespective of the strength or weakness of his defence.
54. Having carefully re-evaluated the entire record, I find that the prosecution did not prove beyond reasonable doubt that it was the appellant who defiled the complainant. Consequently, the conviction entered by the learned trial magistrate was unsafe and cannot be allowed to stand.
Disposition
55. In the result, this appeal succeeds.
56. The appeal is hereby allowed.
57. The conviction of the appellant, Kamanza Gundi Dzuwamwenga, for the offence of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act is hereby quashed.
58. The sentence imposed by the trial court is hereby set aside.
59. The appellant shall be released forthwith unless otherwise lawfully held.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30TH DAY OF JULY, 2026.
HON. LADY JUSTICE WENDY KAGENDO MICHENI
JUDGE
In the Presence of:
Appellant – In Person
Mr. Sirima for the Respondent
Bebora – Court Assistant
(Being an appeal against the Judgment of Hon. G.A. Ollimo, Senior Resident Magistrate, delivered on 5th March 2025 in Mombasa Chief Magistrate's Court Sexual Offence Case No. E003 of 2024, Republic v Kamanza Gundi Dzuwamwenga).
Introduction
1. The appellant, Kamanza Gundi Dzuwamwenga , was charged before the Chief Magistrate's Court at Mombasa 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.
2. The particulars of the charge were that on 22nd December 2023 at about 1600 hours at Tudor, Mvita Sub-County, within Mombasa County, he intentionally and unlawfully caused his penis to penetrate the vagina of L.J.M. , a child aged thirteen (13) years.
3. In the alternative, he was charged with Committing an Indecent Act with a Child contrary to section 11(1) of the Sexual Offences Act , the particulars being that on the same date and place, he intentionally and unlawfully caused his penis to touch the vagina of the said child.
4. Upon conclusion of the trial, the learned Senior Resident Magistrate found the appellant guilty of the principal charge, convicted him and sentenced him in accordance with the law. Being dissatisfied with both conviction and sentence, the appellant lodged the present appeal.
Grounds of Appeal
5. In his Petition of Appeal, the appellant raises the following grounds:
i. That the learned trial magistrate erred in law and in fact by convicting him despite the prosecution having failed to adduce sufficient evidence to prove the offence.
ii. That the learned trial magistrate erred in law and in fact by failing to appreciate that the prosecution had not established the identity of the perpetrator.
iii. That the learned trial magistrate erred in law and in fact by holding that the prosecution had proved its case beyond reasonable doubt.
iv. That the learned trial magistrate failed to properly evaluate and consider his defence.
v. That the learned trial magistrate failed to give due consideration to his mitigation before passing sentence.
Duty of the First Appellate Court
6. This being a first appeal, the duty of this Court is well settled. It is incumbent upon the Court to subject the entire evidence tendered before the trial court to a fresh and exhaustive examination, analyse and evaluate it independently, and arrive at its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify and must therefore give due allowance for that disadvantage.
7. The principles governing a first appellate court were succinctly stated in Okeno v Republic [1972] EA 32 , where the predecessor of the Court of Appeal held that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, though always bearing in mind that it has neither seen nor heard the witnesses. The same principles were reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174 and David Njuguna Wairimu v Republic [2010] eKLR .
Evidence in Brief
(a) The Prosecution Case
8. The prosecution called four (4) witnesses in support of its case.
9. PW1, Sarah Kadenge , the complainant's mother, testified that on 30th December 2023 she received information from PW2 that the complainant had disclosed an incident involving the appellant, who was the caretaker of the apartments where they resided. Upon questioning her daughter, the complainant informed her that the appellant had deceived her into assisting him with a garbage bin before leading her into a house on the ground floor where he sexually assaulted her. PW1 reported the matter at Makupa Police Station and took the complainant for medical examination. She produced the complainant's Birth Certificate which established that she was born on 30th November 2009 , making her thirteen (13) years old at the time of the alleged offence.
10. PW2, Gabriel Mwaura Mushiri , testified that he interacted with children within the apartment complex during entertainment activities. He stated that after gradually earning the complainant's confidence, she informed him that the appellant had initially been touching her inappropriately. PW2 advised the complainant of the dangers of pregnancy, following which he told the subjects mother and also recorded a statement with the police.
11. PW3, L.J.M., the complainant, testified that sometime in December 2023, while her aunt was away, the appellant falsely informed her that her aunt had instructed him to assist in collecting the garbage. After returning the garbage bin, he directed her to collect it from a room on the ground floor. Once inside, he pulled her into the room, removed her clothes, wore a condom and inserted his penis into her vagina. According to her testimony, after the incident the appellant told her that he wanted her to bear him a child before instructing her to dress and leave. She later confided in PW2, who encouraged her to disclose the incident to her mother.
12. PW4, Sadiq Nyawa , a Clinical Officer attached to Coast General Teaching and Referral Hospital, examined the complainant on 30th December 2023. He observed bruising at the six o'clock position of the vaginal wall and noted that the hymen was absent. Although laboratory tests did not reveal spermatozoa or sexually transmitted infections, his clinical findings were consistent with vaginal penetration. He completed the P3 Form and the Post Rape Care (PRC) Form, both of which were produced in evidence.
(b) The Defence Case
13. The appellant elected to make an unsworn statement and called no witnesses.
14. He denied committing the offence and maintained that he had been falsely implicated. He testified that he was employed as the caretaker of the apartments and was responsible for enforcing parking regulations within the premises. According to him, the complainant's mother became aggrieved after he reported her for occupying two parking spaces and directed her to utilise an alternative parking area. He alleged that she threatened to have him dismissed from his employment and, in furtherance of that threat, fabricated the allegations of defilement against him. He therefore urged the trial court to reject the prosecution's case and acquit him.
Issues for Determination
15. Having considered the Petition of Appeal, the record of the trial court, the evidence adduced, and the applicable law, the issues arising for determination are:
a. Whether the prosecution proved that the complainant was a child within the meaning of the Sexual Offences Act.
b. Whether the prosecution proved penetration.
c. Whether the prosecution proved beyond reasonable doubt that it was the appellant who perpetrated the offence.
d. Whether the conviction was safe.
The Applicable Law
16. The appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. Section 8(1) provides:
"A person who commits an act which causes penetration with a child is guilty of an offence termed defilement."
17. The offence therefore has three essential ingredients which the prosecution must prove beyond reasonable doubt, namely:
i. That the complainant was a child.
ii. That there was penetration as defined under section 2 of the Sexual Offences Act.
iii. That the penetration was caused by the accused person.
18. These ingredients have been consistently affirmed by the Court of Appeal in Kaingu Elias Kasomo v Republic [2014] eKLR, where the Court held that proof of age, proof of penetration and positive identification of the perpetrator are the indispensable elements of the offence of defilement. The same position was reiterated in George Owiti Raya v Republic [2013] eKLR and Fappyton Mutuku Ngui v Republic [2014] eKLR.
19. It is equally settled that the burden of proving every ingredient of a criminal offence rests upon the prosecution throughout the trial and never shifts to the accused person. The prosecution must establish the guilt of an accused beyond reasonable doubt. This cardinal principle was authoritatively stated in Woolmington v Director of Public Prosecutions [1935] AC 462 and has consistently been applied by Kenyan courts. In Miller v Minister of Pensions [1947] 2 All ER 372, Lord Denning explained that proof beyond reasonable doubt does not mean proof beyond all doubt, but proof that leaves the court with no reasonable doubt regarding the guilt of the accused.
20. Where the evidence leaves room for reasonable doubt, however slight, the benefit of that doubt must be resolved in favour of the accused person.
Analysis
(i) Whether the Complainant's Age was Proved
21. Age is a fundamental ingredient of the offence of defilement because the applicable sentence depends upon the age of the child. It must therefore be proved by credible evidence, although such proof need not necessarily be by a birth certificate alone.
22. In Kaingu Elias Kasomo v Republic [2014] eKLR, the Court of Appeal observed that age may be proved by documentary evidence, medical evidence or credible oral testimony, provided the court is satisfied as to the age of the complainant.
23. In the present appeal, PW1, the complainant's mother, testified that the complainant was born on 30th November 2009. She produced the complainant's Birth Certificate, which was admitted in evidence without objection. The authenticity of that document was not challenged at the trial, nor has its accuracy been questioned on appeal.
24. The Birth Certificate conclusively established that the complainant was thirteen (13) years old at the time of the alleged offence in December 2023.
25. I am therefore satisfied that the prosecution proved the complainant's age beyond reasonable doubt. Accordingly, the first ingredient of the offence of defilement was established.
(ii) Whether Penetration and the Identity of the Perpetrator Were Proved
26. The second and third ingredients of the offence, namely penetration and the identity of the perpetrator, are closely intertwined in the circumstances of this appeal and are therefore considered together.
27. Under section 2 of the Sexual Offences Act, "penetration" means the partial or complete insertion of the genital organs of one person into the genital organs of another person. Penetration may be proved by the evidence of the complainant, medical evidence, or a combination of both. It is not a legal requirement that medical evidence be produced in every case, provided the court is satisfied from the totality of the evidence that penetration occurred.
28. In the present case, the complainant (PW3) testified that the appellant lured her into a room on the ground floor, removed her clothes, wore a condom and inserted his penis into her vagina. PW4, the Clinical Officer who examined the complainant on 30th December 2023, observed bruising at the six o'clock position of the vaginal wall and noted that the hymen was absent. He formed the opinion that the clinical findings were consistent with vaginal penetration.
29. Ordinarily, the foregoing evidence would be capable of proving penetration. However, the evidence must be considered in its entirety and not in isolation. A conviction cannot rest merely upon proof that penetration occurred; the prosecution must also prove beyond reasonable doubt that it was the accused person who caused that penetration.
30. Upon independently re-evaluating the record, I find that the prosecution evidence contained material inconsistencies and unexplained omissions that cast doubt on whether the appellant was positively connected to the offence.
31. First, there is uncertainty regarding the date of the alleged offence. The charge sheet states that the offence occurred on 22nd December 2023. However, none of the principal witnesses consistently supported that date.
32. PW1 did not state the date of the alleged offence during her examination-in-chief. Instead, she testified that she learnt of the incident after receiving information on 30th December 2023, whereupon she questioned the complainant who disclosed what had allegedly transpired. During cross-examination, however, PW1 stated that the incident had occurred on 23rd December 2023, a date different from that contained in the charge sheet.
33. PW2 testified that the complainant informed him that something had happened to her at the beginning of December 2023. He further stated that he met the complainant on a subsequent Sunday and later approached her mother on the third Sunday of December. He did not identify any specific date on which the alleged offence occurred.
34. Equally, the complainant herself did not specify the date when the alleged offence took place, stating only that it occurred sometime in December 2023.
35. While a discrepancy in dates is not invariably fatal to the prosecution case, the inconsistencies in this matter assume significance because they demonstrate uncertainty surrounding the occurrence itself. There is no evidential basis upon which the date of 22nd December 2023, as stated in the charge sheet, can be reconciled with the testimony of the prosecution witnesses.
36. Secondly, the proceedings reveal an unusual and significant development at the commencement of the trial. When the appellant first appeared before the trial court on 4th January 2024, the prosecution informed the court that the complainant had recently delivered a baby and applied for DNA analysis to be conducted between the appellant and the child. The trial court allowed the application and directed that the appellant be availed for the collection of samples.
37. Thereafter, the proceedings are completely silent regarding the fate of the DNA examination. No DNA report was produced before the trial court. No witness testified that samples had been collected, analysed or that the exercise had become impossible. Neither did the prosecution offer any explanation for abandoning evidence which it had itself considered sufficiently important to seek orders from the court. The delivery in January 2024 was a curous submission, as the dedilement is siad to have occured in December 2023.
38. This pregnancy and the subsequent silence on it, assume considerable significance when viewed alongside the medical evidence. The PRC Form produced in evidence contains an entry indicating that the complainant reported having previously engaged in sexual intercourse with another man, a matter she had not disclosed to anyone. That history was never investigated or explained during the trial.
39. Consequently, although the medical evidence established previous penetration, it did not conclusively connect the appellant to that penetration. The DNA evidence, which could potentially have clarified that issue, was neither produced nor explained.
40. Thirdly, despite these unresolved issues, the prosecution elected not to call the Investigating Officer. On 4th September 2024, the prosecution informed the trial court that it would close its case without calling that witness.
41. It is true that section 143 of the Evidence Act provides that no particular number of witnesses is required to prove any fact. However, where the prosecution fails to call a witness who is central to the resolution of material issues, and no satisfactory explanation is offered, the court is entitled to draw an adverse inference that the evidence would not have supported the prosecution case. This principle was enunciated in Bukenya & Others v Uganda [1972] EA 549.
42. In the circumstances of this case, the Investigating Officer was the witness best placed to explain the chronology of the investigations, the outcome of the court-ordered DNA process, the discrepancies regarding the dates of the alleged offence, and the evidential basis upon which the appellant was identified as the perpetrator. His absence left critical gaps in the prosecution case.
43. Having carefully reconsidered the entire evidence, I find that while there was evidence suggestive of previous penetration, the prosecution failed to eliminate the reasonable doubts arising from the inconsistencies in the evidence, the unexplained abandonment of the DNA process, the failure to call the Investigating Officer, and the unresolved matters recorded in the PRC Form.
44. The cumulative effect of those deficiencies is that the identity of the perpetrator was not proved beyond reasonable doubt. As the Court of Appeal observed in Kaingu Elias Kasomo v Republic [2014] eKLR, proof of penetration alone is insufficient. The prosecution must also prove, to the required standard, that the accused person was the one who caused that penetration.
45. In the present case, that burden was not discharged.
(iii) Whether the Prosecution Proved its Case Beyond Reasonable Doubt
46. The final issue is whether, upon a consideration of the entire evidence on record, the prosecution proved the appellant's guilt beyond reasonable doubt.
47. The law is settled that in criminal proceedings the burden of proof rests entirely upon the prosecution and remains constant throughout the trial. An accused person bears no duty to prove his innocence. See Woolmington v Director of Public Prosecutions [1935] AC 462. Where the evidence raises a reasonable doubt as to the guilt of an accused person, that doubt must be resolved in his favour.
48. Having independently reconsidered the evidence, I am satisfied that the prosecution proved that the complainant was a child aged thirteen (13) years. There was also medical evidence suggestive of vaginal penetration. However, those two elements alone were insufficient to sustain a conviction for defilement.
49. The prosecution was further required to prove, beyond reasonable doubt, that it was the appellant who caused that penetration. It is on this crucial ingredient that the prosecution case faltered.
50. The evidence disclosed material inconsistencies regarding the date of the alleged offence. More importantly, despite successfully obtaining orders for DNA examination after informing the trial court that the complainant had delivered a child, the prosecution failed to produce the DNA report or offer any explanation for its absence. That omission assumed greater significance in light of the entry contained in the PRC Form indicating that the complainant had previously engaged in sexual intercourse with another person.
51. Equally significant was the prosecution's decision not to call the Investigating Officer, who was the witness best placed to explain the investigations undertaken, the outcome of the court-ordered DNA process, the discrepancies in the prosecution evidence, and the basis upon which the appellant was linked to the offence. Those evidential gaps remained unresolved.
52. While none of the foregoing deficiencies, considered individually, would necessarily have been fatal to the prosecution case, their cumulative effect created reasonable doubt as to whether the appellant was the person who committed the offence. Criminal liability cannot be founded upon suspicion, however strong, or upon incomplete investigations. The prosecution was required to present cogent and consistent evidence establishing every element of the offence beyond reasonable doubt. In my respectful view, it failed to do so.
53. As regards the appellant's defence, he denied committing the offence and alleged that he had been falsely accused following a disagreement with the complainant's mother. It is unnecessary for this Court to determine whether that explanation was true. The law does not require an accused person to prove his defence or establish his innocence. Once the prosecution failed to discharge its legal burden of proof, the appellant became entitled to an acquittal irrespective of the strength or weakness of his defence.
54. Having carefully re-evaluated the entire record, I find that the prosecution did not prove beyond reasonable doubt that it was the appellant who defiled the complainant. Consequently, the conviction entered by the learned trial magistrate was unsafe and cannot be allowed to stand.
Disposition
55. In the result, this appeal succeeds.
56. The appeal is hereby allowed.
57. The conviction of the appellant, Kamanza Gundi Dzuwamwenga, for the offence of Defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act is hereby quashed.
58. The sentence imposed by the trial court is hereby set aside.
59. The appellant shall be released forthwith unless otherwise lawfully held.
It is so ordered.
DATED, SIGNED AND DELIVERED AT MOMBASA THIS 30TH DAY OF JULY, 2026.
HON. LADY JUSTICE WENDY KAGENDO MICHENI
JUDGE
In the Presence of:
Appellant – In Person
Mr. Sirima for the Respondent
Bebora – Court Assistant