REPUBLIC OF KENYA
IN THE HIGH COURT AT MARSABIT
CRIMINAL APPEAL NUMBER E002 of 2026
KANA BARAKO……..………………………………………………..APPELLANT
VERSUS
REPUBLIC………………………………………...………………..RESPONDENT
( Being an appeal arising from the conviction and sentence delivered on 07.01.2026, delivered by Hon C. Wekesa (SPM) in Marsabit MCSO No E002 of 2025)
BETWEEN
REPUBLIC…………………………….………..…………………..PROSECUTOR
VERSUS
KANA BARAKO.……..……………………………………….………..ACCUSED
JUDGEMENT
A. INTRODUCTION
1. The Appellant 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 offence were that on the 7 th day of March 2025, at about 1300 hours at Kubi Kalo area in Marsabit Central Sub-County within Marsabit County, he intentionally and unlawfully caused his penis to penetrate the anus of G.K., a child aged 4 years.
2. In the alternative, he was charged with the offence 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 on the 7 th day of March 2025, at about 1300 hours at Kubi Kalo area in Marsabit Central Sub-County within Marsabit County, he intentionally touched the anus of G.K., a child aged 4 years, with his penis.
3. The Appellant took plea and pleaded not guilty to the charges.
B. PROSECUTION CASE
4. PW1, Bokayo Duba, stated that she resides at Gubi Gallo and that PW2, was her son. She testified that on 7 th March 2025, she left home for casual work, leaving her children behind with the Appellant who offered to herd goats with PW2. Later that day, PW2 returned home crying and reported that the Appellant had done something bad to him. On the following day, while seated outside her house, PW2 saw the appellant and reminded her of what he had earlier reported to PW5, stating that the Appellant had defiled him on his buttocks. She called the Appellant, but he refused to come. She then examined PW2 and saw a wound on his anus. She confirmed that the appellant was her nephew and that they had stayed with him for almost 18 years.
5. She further emphasized that PW2 never mentioned anyone else as the perpetrator and personally she never had any issues with the Appellant prior to the said incident. She then reported the matter to the police and PW2 was referred to Marsabit General Hospital for checkup.
6. PW2, G.K., testified that he lived with his mother, PW1 and that the Appellant was his friend and that they would go to herd goats with him on different occasions. On the material day, they left home together and went to a place far from home to herd goats. While there, the Appellant asked him to follow him to the shrubs, where he told him to lie down, removed his shorts, and also removed his own. He then removed his penis and inserted it inside his anus. After the act, he put on his shorts and went home, where he informed his brother and mother of the incident. He identified the Appellant in court as the person who assaulted/defiled him.
7. PW3, Diba Dika Ano, a clinical officer based at Marsabit County and Referral Hospital, testified that on 12 th March 2025, he examined PW2 who at the time was aged four years. He observed a small abrasion at the anal region at the six o’clock position and noted slight peeling of the skin. He filled the Post Rape Care (PRC) form and the P3 form, both dated 12th March 2025, and completed them the following day. He confirmed that the examination was conducted in the presence of the victim’s mother, PW1 and that the clothes brought for analysis had stains, though they appeared to have been washed. He produced the P3 form and PRC form as Exhibit 1(a) and (b), respectively.
8. PW4, Sergeant Jane Refa Sembele, the investigating officer attached to Marsabit Police Station, testified that on 10 th March 2025, she received a report from the juvenile/complainant alleging defilement by the Appellant while herding goats. She booked the report in the Occurrence Book and escorted the victim to hospital for examination. She interrogated both the complainant and his mother, and the victim explained that the appellant had made him sit on his lap, removed his pants, and inserted his penis in between his buttocks. PW2 reported this incident to PW1 (his mother) and upon completion of her investigation charged the Appellant with the offence he faced before the court. She further took PW2 for age assessment and produced the said assessment report, which established that the minor was about 3 - 4 years old. She produced the said report as Exhibit 2. She identified the appellant in court as the person arrested in connection with the offence.
9. PW5, Salad Kadiro, testified that he was PW2’s elder brother and recalled that on 8 th March 2025 at around 1:00 p.m., while at home, PW2 returned crying and reported that the Appellant had inserted his penis inside his anus while they were herding goats. He observed that the PW2 was trembling and was distressed. He bathed him, changed his clothes, and took him to their grandmother, where he reported what PW2 had revealed to him, but pleaded with her not to tell anyone because the incident had occurred during Ramadhan and it was shameful.
10. Later, they did report the said incident to PW1 and the elders, and they both did confront the Appellant, but he denied any wrong doing. PW5 identified the appellant on the dock and confirmed that he was well known to him as they were cousins.
C. DEFENCE CASE
11. The appellant was placed on his defence and gave sworn evidence. He stated that he herded goats for a living and denied committing the offence, maintaining that the allegations were false. He confirmed that on the material day, he herded goats together with PW2 and his grandmother, but insisted that he did not defile PW2. He added that the village elders later came to discuss this issue, but they were unable to resolve the same and he was later arrested by KPR officers. He further urged the trial court to note that the doctor (PW3) had indicated in the P3 form that nothing had happened to PW2, and that PW2’s family had since forgiven him. On cross ‑ examination: He admitted that on 7 th March 2025, he was herding big goats but changed his evidence and denied seeing PW2 herded young goats and reiterated that he did not defile PW2.
12. DW2, Somo Wato, testified that he was a resident of Gubi Galo and was not in any gainful employment. He recalled that on the day, it was alleged that the Appellant had defiled PW2, they were herding animals together with the Appellant, and though he did not know the exact date, he was certain that it was during the month of Idd. He reiterated that he was with the appellant the whole day and during this period, they did not meet PW2, but if the incident occurred after 7.00p.m he would not know.
13. The following day when a lady came and accused the appellant of defiling her child. On crossexamination he stated that the Appellant was his neighbour and that on the day the offence was alleged to have been committed, he was with him from 7:00 a.m. to 6:00 p.m. He added that although they herded together that day, they did not herd together every day. He further maintained that he did not see PW2 with the Appellant on the material day.
14. DW3, Roba Baru, testified that he was a resident of Dadacha in Marsabit and worked as a casual labourer. He recalled that on the material day he was herding animals together with the appellant, while the victim remained at home. During Cross Examination, he confirmed that he was at home and not in the field at the time of the alleged incident. He explained that the Appellant usually herded goats daily and that on the material day, he left at around 8:00 a.m. and returned at 1:00 p.m. He did not see him in between but saw him at 1:00 p.m. He concluded by stating that he never went to the grazing field and that what he witnessed was what he had testified about.
15. The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of defilement and proceeded to convict him under Section 215 of the criminal procedure code . After mitigation, the trial court sentenced the Appellant to serve twenty years imprisonment.
D. THE APPEAL
16. Dissatisfied by the conviction and sentence passed, the Appellant filed his petition of appeal and raised the following Amended grounds of appeal that;
a) THAT the Appeal is against the conviction only.
b) THAT the learned trial court magistrate erred in law and fact by failing to note that the evidence of PW1 is contradictory and unreliable.
c) THAT the learned trial magistrate erred in law and fact by convicting the appellant without observing that the prosecution case was not proved beyond reasonable doubts.
d) THAT the learned trial magistrate erred in both matters of law and fact by failing to consider the appellant defense
17. The Appellant prayed that his Appeal be allowed, the conviction and sentence be set aside, and he be set free.
E. ANALYSIS AND DETERMINATION
18. This being the first appeal, this court is as a matter of law enjoined to analyze and re-evaluate a fresh all the evidence adduced before the lower court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno versus Republic (1072) EA 32, Pandya versus Republic (1957) EA 336) &Shantital M Ruwala versus Republic (1957) EA 570, where the court of appeal set out the duties of the first appellant court.
19. Additionally in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower court finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate's findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
20. I have considered the entire record of Appeal, the trial bundle record and the submissions on record filed by the parties and I find that the only issue for determination is whether the offence of defilement was sufficient proved by the prosecution.
a) Whether the offence of defilement was proven
21. The Appellant was found guilty of defilement contrary to section 8 (1) as read together with section 8 (2) of the Sexual Offences Act, No 3 of 2006 . The said sections provide that;
8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life
22. In order to ascertain the offence of defilement, three essential ingredients must be established: the age of the complainant (who must be a minor), proof of penetration, and the proper identification of the perpetrator. In such a case, the burden of proof rests upon the prosecution, who must satisfy the court beyond reasonable doubt that the material facts constituting its case are true, thereby establishing the offence and entitling it to judgment in its favour. See Miller v. Ministry of Pensions [1947] 2 All ER 372, Republic v. Edward Kirui [2014] eKLR, Murugan & Another v. State by Prosecutor, Tamil Nadu & Another [2008] INSC 16, and Rex v. Donovan [1934] 2 KB 498 (CCA).
i) Age
23. Proof of age is a critical element in establishing the offence of defilement. In Kaingu Kasomo v. Republic , Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal emphasized that:
“ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
24. The Court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR also stated that;
“...the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
25. In the present case, the victim’s mother testified that the complainant was five (5) years old at the time of the offence. She further explained that the child’s birth certificate had been lost during the war. An age assessment was later conducted, and the report produced before this court (Exhibit 2) affirmed that the complainant was indeed between 3 to 4 years old. Age was therefore sufficiently proved beyond reasonable doubt.
ii) Penetration
26. Section 2 of the Sexual Offences Act defines penetration as:
“ The partial or complete insertion of the genital organ of a person into the genital organs of another person.”
27. The same section defines “ genital organs ” to include;
“The whole or part of male or female genital organs and for purposes of this Act includes the anus.”
28. PW2, in his evidence in chief, testified and confirmed that the appellant was a person known to him. He stated that on the material day, they left home together and went far to herd goats. While there, the appellant asked him to follow him into the shrubs. Once inside, the appellant told him to lie down, removed his shorts and also removed his own, and then inserted his penis into his anus. The complainant explained that after the act, he dressed up and they went home together.
29. PW5, the brother of the complainant, testified that the complainant came home crying and said that the appellant had done something to him. Specifically, he stated that, “ Kala has done bad manners to me ”. On further inquiry, he specified that, “ Kala had inserted his penis inside his anus ” and the incident had occurred in the grazing field, where they were herding goats. He observed that the child was trembling and he picked him up, bathed him and took him to his grandmother.
30. On the following day, when PW2 saw the Appellant within their manyatta, he disclosed the same information to PW1, who examined him and saw a wound on his anus. She then took him to Marsabit General Hospital, where PW3 examined him and noted a small abrasion on the skin layer, specifically at the six o’clock position of the anal opening. He recorded these findings in the Post Rape Care (PRC) form and the P3 form, both of which were produced in evidence.
31. The evidence of PW2 was cogent, and he confirmed his sexual encounter with the appellant, a person well known to him and this was corroborated by the evidence of PW5, and PW1, whom he reported to. PW3 also produced the the medical reports which independently support the fact of penetration. As such, the trial magistrate cannot be faulted for arriving at the finding that indeed penetration had been proved.
iii) Identification
32. For a conviction to stand, identification of the perpetrator must be handled with care, especially where the case depends solely on visual identification by one witness. The Court of Appeal in Francis Kariuki Njiru & 7 others v. Republic [2001] eKLR held that
“ The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized 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.”
33. Similarly In James Murigu Karumba vs. Republic [2016] eKLR , it was held by the Court of Appeal based, on Suleiman Juma alias Tom – v- R (2003) eKLR; (2003) KLR 386 that:
“Lastly, the three identifying witnesses did admit that they knew the appellant prior to the incident. Consequently, this was a case of recognition as opposed to identification of a stranger. Therefore, there was no need for the identification parades and the identification evidence therein was of no probative value.”
34. Under Section 124 of the Evidence Act , a court may convict an accused person in a sexual offence on the sole testimony of the victim, provided the court is satisfied that the victim’s evidence is truthful. In PMG v. Republic [2022] eKLR , the court, while referring to the Court of Appeal decision in Stephen Nguli Mulili v. Republic [2014] eKLR , stated thus;
“ There is no dispute that under Section 124 of the evidence Act , a court can convict based on the evidence of the victim alone in sexual offences. In this regard am guided by the case of Stephen Nguli Mulili v Republic (supra) where the court held; “with regard to the issues of corroboration and the appellant being proved as the one who defiled the complainant, section 124 of the Act is clear that the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful. From the record it appears that the trial court was satisfied that the victim told the truth.”
35. On identification, PW2 recognized the appellant by his name and also stated that he was his friend. The incident occurred during the day while they were herding goats together, which gave the complainant sufficient opportunity to observe him closely. Moreover, the appellant himself, during crossexamination, admitted that on the material day he was herding bigger goats while PW2 herded smaller ones. This admission placed him at the scene and reinforced PW2’s recognition.In the circumstances, PW2 was not mistaken about the identity of the person who sodomized him. Considering the totality of the evidence adduced, I find that the prosecution ably proved the third ingredient of identification.
36. In defence, the appellant submitted that the prosecution evidence was riddled with contradictions and inconsistencies. He pointed out that PW2 testified, “I have never gone to herd goats with him (the accused),” while PW1 stated, “Usually, you take care of goats but on that day, there was a rotation and you were taking care of the kids to the goats.” The appellant argued that the evidence of a witness would be fatal if it contradicted the material facts and the real substance of the case.
37. The law as regards the issues of contradiction and discrepancies is very clear. It is trite law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. ( see Uganda Vrs Rutaro (1976) HCB ; Uganda Vs George w. Yiga (1979) HCB 217 ). In trying to shade light as to why there might be minor discrepancies between two witnesses testifying on the same case, the high court of Kenya in Philip Nzaka watu V Republic (2016) CR APP 29 OF 2015 , had this to say:
“The first question in this appeal is whether the prosecution case was riddled with contradiction and in consistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gain said that found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent version of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this court, some inconsistencies in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the mature and extent of the discrepancies and inconsistencies in question.
38. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) the Court of Appeal held that
“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code , viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.”
39. In this case, I have myself subjected the evidence adduced to fresh scrutiny. While I acknowledge that there were minor inconsistencies in the testimony of the witnesses which are not uncommon, I am not persuaded that such discrepancies were material enough to justify interference with the trial court’s decision. Moreover, the appellant himself admitted during crossexamination that on the material day he was herding bigger goats as PW2 herded the smaller ones. This admission placed him squarely at the scene of the incident and directly connected him to the complainant, thereby reinforcing the prosecution’s case and weakening his defence.
40. Considering the totality of the evidence adduced, I am satisfied that the prosecution discharged its burden of proof and firmly established that it was the appellant who defiled the complainant. The offence of defilement was thus proved to the requisite standard, and the appeal against conviction is devoid of merit and is accordingly dismissed.
41. The Appellant in his Amended grounds of appeal specified that his Appeal was only against conviction and abandoned his Appeal against sentence. This court will therefore not comment on the same.
F. DISPOSITION
42. The upshot, having considered the entire record of appeal and parties’ submissions, I do find that the Appeal as against conviction and is hereby dismissed.
43. Pursuant to provisions of Section 333(2) of the Criminal Procedure Code, the sentence passed shall run from 11.03.2025 when he was arrested.
44. Right of Appeal 14 days.
45. It is so ordered.
Judgement read, signed and delivered in Open Court at MARSABIT this ……31 st ………. day of AUGUST 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this ……31 st ….. Day of AUGUST, 2026.
In the presence of:-
………………………………………..Appellant
………………………………….For O.D.P.P
………………………………….Court Assistant
MARSABIT HCCRA E002 OF 20262
IN THE HIGH COURT AT MARSABIT
CRIMINAL APPEAL NUMBER E002 of 2026
KANA BARAKO……..………………………………………………..APPELLANT
VERSUS
REPUBLIC………………………………………...………………..RESPONDENT
( Being an appeal arising from the conviction and sentence delivered on 07.01.2026, delivered by Hon C. Wekesa (SPM) in Marsabit MCSO No E002 of 2025)
BETWEEN
REPUBLIC…………………………….………..…………………..PROSECUTOR
VERSUS
KANA BARAKO.……..……………………………………….………..ACCUSED
JUDGEMENT
A. INTRODUCTION
1. The Appellant 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 offence were that on the 7 th day of March 2025, at about 1300 hours at Kubi Kalo area in Marsabit Central Sub-County within Marsabit County, he intentionally and unlawfully caused his penis to penetrate the anus of G.K., a child aged 4 years.
2. In the alternative, he was charged with the offence 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 on the 7 th day of March 2025, at about 1300 hours at Kubi Kalo area in Marsabit Central Sub-County within Marsabit County, he intentionally touched the anus of G.K., a child aged 4 years, with his penis.
3. The Appellant took plea and pleaded not guilty to the charges.
B. PROSECUTION CASE
4. PW1, Bokayo Duba, stated that she resides at Gubi Gallo and that PW2, was her son. She testified that on 7 th March 2025, she left home for casual work, leaving her children behind with the Appellant who offered to herd goats with PW2. Later that day, PW2 returned home crying and reported that the Appellant had done something bad to him. On the following day, while seated outside her house, PW2 saw the appellant and reminded her of what he had earlier reported to PW5, stating that the Appellant had defiled him on his buttocks. She called the Appellant, but he refused to come. She then examined PW2 and saw a wound on his anus. She confirmed that the appellant was her nephew and that they had stayed with him for almost 18 years.
5. She further emphasized that PW2 never mentioned anyone else as the perpetrator and personally she never had any issues with the Appellant prior to the said incident. She then reported the matter to the police and PW2 was referred to Marsabit General Hospital for checkup.
6. PW2, G.K., testified that he lived with his mother, PW1 and that the Appellant was his friend and that they would go to herd goats with him on different occasions. On the material day, they left home together and went to a place far from home to herd goats. While there, the Appellant asked him to follow him to the shrubs, where he told him to lie down, removed his shorts, and also removed his own. He then removed his penis and inserted it inside his anus. After the act, he put on his shorts and went home, where he informed his brother and mother of the incident. He identified the Appellant in court as the person who assaulted/defiled him.
7. PW3, Diba Dika Ano, a clinical officer based at Marsabit County and Referral Hospital, testified that on 12 th March 2025, he examined PW2 who at the time was aged four years. He observed a small abrasion at the anal region at the six o’clock position and noted slight peeling of the skin. He filled the Post Rape Care (PRC) form and the P3 form, both dated 12th March 2025, and completed them the following day. He confirmed that the examination was conducted in the presence of the victim’s mother, PW1 and that the clothes brought for analysis had stains, though they appeared to have been washed. He produced the P3 form and PRC form as Exhibit 1(a) and (b), respectively.
8. PW4, Sergeant Jane Refa Sembele, the investigating officer attached to Marsabit Police Station, testified that on 10 th March 2025, she received a report from the juvenile/complainant alleging defilement by the Appellant while herding goats. She booked the report in the Occurrence Book and escorted the victim to hospital for examination. She interrogated both the complainant and his mother, and the victim explained that the appellant had made him sit on his lap, removed his pants, and inserted his penis in between his buttocks. PW2 reported this incident to PW1 (his mother) and upon completion of her investigation charged the Appellant with the offence he faced before the court. She further took PW2 for age assessment and produced the said assessment report, which established that the minor was about 3 - 4 years old. She produced the said report as Exhibit 2. She identified the appellant in court as the person arrested in connection with the offence.
9. PW5, Salad Kadiro, testified that he was PW2’s elder brother and recalled that on 8 th March 2025 at around 1:00 p.m., while at home, PW2 returned crying and reported that the Appellant had inserted his penis inside his anus while they were herding goats. He observed that the PW2 was trembling and was distressed. He bathed him, changed his clothes, and took him to their grandmother, where he reported what PW2 had revealed to him, but pleaded with her not to tell anyone because the incident had occurred during Ramadhan and it was shameful.
10. Later, they did report the said incident to PW1 and the elders, and they both did confront the Appellant, but he denied any wrong doing. PW5 identified the appellant on the dock and confirmed that he was well known to him as they were cousins.
C. DEFENCE CASE
11. The appellant was placed on his defence and gave sworn evidence. He stated that he herded goats for a living and denied committing the offence, maintaining that the allegations were false. He confirmed that on the material day, he herded goats together with PW2 and his grandmother, but insisted that he did not defile PW2. He added that the village elders later came to discuss this issue, but they were unable to resolve the same and he was later arrested by KPR officers. He further urged the trial court to note that the doctor (PW3) had indicated in the P3 form that nothing had happened to PW2, and that PW2’s family had since forgiven him. On cross ‑ examination: He admitted that on 7 th March 2025, he was herding big goats but changed his evidence and denied seeing PW2 herded young goats and reiterated that he did not defile PW2.
12. DW2, Somo Wato, testified that he was a resident of Gubi Galo and was not in any gainful employment. He recalled that on the day, it was alleged that the Appellant had defiled PW2, they were herding animals together with the Appellant, and though he did not know the exact date, he was certain that it was during the month of Idd. He reiterated that he was with the appellant the whole day and during this period, they did not meet PW2, but if the incident occurred after 7.00p.m he would not know.
13. The following day when a lady came and accused the appellant of defiling her child. On crossexamination he stated that the Appellant was his neighbour and that on the day the offence was alleged to have been committed, he was with him from 7:00 a.m. to 6:00 p.m. He added that although they herded together that day, they did not herd together every day. He further maintained that he did not see PW2 with the Appellant on the material day.
14. DW3, Roba Baru, testified that he was a resident of Dadacha in Marsabit and worked as a casual labourer. He recalled that on the material day he was herding animals together with the appellant, while the victim remained at home. During Cross Examination, he confirmed that he was at home and not in the field at the time of the alleged incident. He explained that the Appellant usually herded goats daily and that on the material day, he left at around 8:00 a.m. and returned at 1:00 p.m. He did not see him in between but saw him at 1:00 p.m. He concluded by stating that he never went to the grazing field and that what he witnessed was what he had testified about.
15. The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of defilement and proceeded to convict him under Section 215 of the criminal procedure code . After mitigation, the trial court sentenced the Appellant to serve twenty years imprisonment.
D. THE APPEAL
16. Dissatisfied by the conviction and sentence passed, the Appellant filed his petition of appeal and raised the following Amended grounds of appeal that;
a) THAT the Appeal is against the conviction only.
b) THAT the learned trial court magistrate erred in law and fact by failing to note that the evidence of PW1 is contradictory and unreliable.
c) THAT the learned trial magistrate erred in law and fact by convicting the appellant without observing that the prosecution case was not proved beyond reasonable doubts.
d) THAT the learned trial magistrate erred in both matters of law and fact by failing to consider the appellant defense
17. The Appellant prayed that his Appeal be allowed, the conviction and sentence be set aside, and he be set free.
E. ANALYSIS AND DETERMINATION
18. This being the first appeal, this court is as a matter of law enjoined to analyze and re-evaluate a fresh all the evidence adduced before the lower court and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses. See Okeno versus Republic (1072) EA 32, Pandya versus Republic (1957) EA 336) &Shantital M Ruwala versus Republic (1957) EA 570, where the court of appeal set out the duties of the first appellant court.
19. Additionally in Peter’s vs Sunday Post (1958) E.A. 424 it was said that it is not the function of the first appellant court merely to scrutinize the evidence to see if there was some evidence to support the lower court finding and conclusion: it must make its own findings and draw its own conclusions. Only then can it be decided whether the magistrate's findings should be supported. In doing so it should make allowance for the fact that the trial court had the advantage of hearing and seeing witnesses.
20. I have considered the entire record of Appeal, the trial bundle record and the submissions on record filed by the parties and I find that the only issue for determination is whether the offence of defilement was sufficient proved by the prosecution.
a) Whether the offence of defilement was proven
21. The Appellant was found guilty of defilement contrary to section 8 (1) as read together with section 8 (2) of the Sexual Offences Act, No 3 of 2006 . The said sections provide that;
8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life
22. In order to ascertain the offence of defilement, three essential ingredients must be established: the age of the complainant (who must be a minor), proof of penetration, and the proper identification of the perpetrator. In such a case, the burden of proof rests upon the prosecution, who must satisfy the court beyond reasonable doubt that the material facts constituting its case are true, thereby establishing the offence and entitling it to judgment in its favour. See Miller v. Ministry of Pensions [1947] 2 All ER 372, Republic v. Edward Kirui [2014] eKLR, Murugan & Another v. State by Prosecutor, Tamil Nadu & Another [2008] INSC 16, and Rex v. Donovan [1934] 2 KB 498 (CCA).
i) Age
23. Proof of age is a critical element in establishing the offence of defilement. In Kaingu Kasomo v. Republic , Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal emphasized that:
“ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
24. The Court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR also stated that;
“...the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
25. In the present case, the victim’s mother testified that the complainant was five (5) years old at the time of the offence. She further explained that the child’s birth certificate had been lost during the war. An age assessment was later conducted, and the report produced before this court (Exhibit 2) affirmed that the complainant was indeed between 3 to 4 years old. Age was therefore sufficiently proved beyond reasonable doubt.
ii) Penetration
26. Section 2 of the Sexual Offences Act defines penetration as:
“ The partial or complete insertion of the genital organ of a person into the genital organs of another person.”
27. The same section defines “ genital organs ” to include;
“The whole or part of male or female genital organs and for purposes of this Act includes the anus.”
28. PW2, in his evidence in chief, testified and confirmed that the appellant was a person known to him. He stated that on the material day, they left home together and went far to herd goats. While there, the appellant asked him to follow him into the shrubs. Once inside, the appellant told him to lie down, removed his shorts and also removed his own, and then inserted his penis into his anus. The complainant explained that after the act, he dressed up and they went home together.
29. PW5, the brother of the complainant, testified that the complainant came home crying and said that the appellant had done something to him. Specifically, he stated that, “ Kala has done bad manners to me ”. On further inquiry, he specified that, “ Kala had inserted his penis inside his anus ” and the incident had occurred in the grazing field, where they were herding goats. He observed that the child was trembling and he picked him up, bathed him and took him to his grandmother.
30. On the following day, when PW2 saw the Appellant within their manyatta, he disclosed the same information to PW1, who examined him and saw a wound on his anus. She then took him to Marsabit General Hospital, where PW3 examined him and noted a small abrasion on the skin layer, specifically at the six o’clock position of the anal opening. He recorded these findings in the Post Rape Care (PRC) form and the P3 form, both of which were produced in evidence.
31. The evidence of PW2 was cogent, and he confirmed his sexual encounter with the appellant, a person well known to him and this was corroborated by the evidence of PW5, and PW1, whom he reported to. PW3 also produced the the medical reports which independently support the fact of penetration. As such, the trial magistrate cannot be faulted for arriving at the finding that indeed penetration had been proved.
iii) Identification
32. For a conviction to stand, identification of the perpetrator must be handled with care, especially where the case depends solely on visual identification by one witness. The Court of Appeal in Francis Kariuki Njiru & 7 others v. Republic [2001] eKLR held that
“ The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized 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.”
33. Similarly In James Murigu Karumba vs. Republic [2016] eKLR , it was held by the Court of Appeal based, on Suleiman Juma alias Tom – v- R (2003) eKLR; (2003) KLR 386 that:
“Lastly, the three identifying witnesses did admit that they knew the appellant prior to the incident. Consequently, this was a case of recognition as opposed to identification of a stranger. Therefore, there was no need for the identification parades and the identification evidence therein was of no probative value.”
34. Under Section 124 of the Evidence Act , a court may convict an accused person in a sexual offence on the sole testimony of the victim, provided the court is satisfied that the victim’s evidence is truthful. In PMG v. Republic [2022] eKLR , the court, while referring to the Court of Appeal decision in Stephen Nguli Mulili v. Republic [2014] eKLR , stated thus;
“ There is no dispute that under Section 124 of the evidence Act , a court can convict based on the evidence of the victim alone in sexual offences. In this regard am guided by the case of Stephen Nguli Mulili v Republic (supra) where the court held; “with regard to the issues of corroboration and the appellant being proved as the one who defiled the complainant, section 124 of the Act is clear that the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful. From the record it appears that the trial court was satisfied that the victim told the truth.”
35. On identification, PW2 recognized the appellant by his name and also stated that he was his friend. The incident occurred during the day while they were herding goats together, which gave the complainant sufficient opportunity to observe him closely. Moreover, the appellant himself, during crossexamination, admitted that on the material day he was herding bigger goats while PW2 herded smaller ones. This admission placed him at the scene and reinforced PW2’s recognition.In the circumstances, PW2 was not mistaken about the identity of the person who sodomized him. Considering the totality of the evidence adduced, I find that the prosecution ably proved the third ingredient of identification.
36. In defence, the appellant submitted that the prosecution evidence was riddled with contradictions and inconsistencies. He pointed out that PW2 testified, “I have never gone to herd goats with him (the accused),” while PW1 stated, “Usually, you take care of goats but on that day, there was a rotation and you were taking care of the kids to the goats.” The appellant argued that the evidence of a witness would be fatal if it contradicted the material facts and the real substance of the case.
37. The law as regards the issues of contradiction and discrepancies is very clear. It is trite law that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. ( see Uganda Vrs Rutaro (1976) HCB ; Uganda Vs George w. Yiga (1979) HCB 217 ). In trying to shade light as to why there might be minor discrepancies between two witnesses testifying on the same case, the high court of Kenya in Philip Nzaka watu V Republic (2016) CR APP 29 OF 2015 , had this to say:
“The first question in this appeal is whether the prosecution case was riddled with contradiction and in consistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gain said that found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self-contradictory in material particulars or which is a mere amalgam of inconsistent version of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt.
However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this court, some inconsistencies in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the mature and extent of the discrepancies and inconsistencies in question.
38. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) the Court of Appeal held that
“In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code , viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.”
39. In this case, I have myself subjected the evidence adduced to fresh scrutiny. While I acknowledge that there were minor inconsistencies in the testimony of the witnesses which are not uncommon, I am not persuaded that such discrepancies were material enough to justify interference with the trial court’s decision. Moreover, the appellant himself admitted during crossexamination that on the material day he was herding bigger goats as PW2 herded the smaller ones. This admission placed him squarely at the scene of the incident and directly connected him to the complainant, thereby reinforcing the prosecution’s case and weakening his defence.
40. Considering the totality of the evidence adduced, I am satisfied that the prosecution discharged its burden of proof and firmly established that it was the appellant who defiled the complainant. The offence of defilement was thus proved to the requisite standard, and the appeal against conviction is devoid of merit and is accordingly dismissed.
41. The Appellant in his Amended grounds of appeal specified that his Appeal was only against conviction and abandoned his Appeal against sentence. This court will therefore not comment on the same.
F. DISPOSITION
42. The upshot, having considered the entire record of appeal and parties’ submissions, I do find that the Appeal as against conviction and is hereby dismissed.
43. Pursuant to provisions of Section 333(2) of the Criminal Procedure Code, the sentence passed shall run from 11.03.2025 when he was arrested.
44. Right of Appeal 14 days.
45. It is so ordered.
Judgement read, signed and delivered in Open Court at MARSABIT this ……31 st ………. day of AUGUST 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this ……31 st ….. Day of AUGUST, 2026.
In the presence of:-
………………………………………..Appellant
………………………………….For O.D.P.P
………………………………….Court Assistant
MARSABIT HCCRA E002 OF 20262