REPUBLIC OF KENYA
IN THE HIGH COURT AT MARSABIT
CRIMINAL APPEAL NUMBER E034 of 2025
KANCHORA WAKO DUBA…………………………………………APPELLANT
VERSUS
REPUBLIC………………………………………...………………..RESPONDENT
( Being an appeal arising from the conviction and sentence delivered on 29.01.2026, delivered by Hon W.K. CHERUIYOT (PM) in Marsabit MCSO No E001 of 2025)
BETWEEN
REPUBLIC…………………………….………..…………………..PROSECUTOR
VERSUS
KANCHORA WAKO DUBA ……………………………………….….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 diverse dates between 1st September 2024 and 8th January 2025, at Silent area, Butiye Location in Moyale SubCounty within Marsabit County, he intentionally and unlawfully caused his penis to penetrate the vagina of G.H.M, a child aged ten (10) years.
2. In the second count, he was charged with deliberate transmission of HIV contrary to Section 26(1)(a) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence were that on diverse dates between 1st September 2024 and 8th January 2025, at Silent area, Butiye Location in Moyale SubCounty within Marsabit County, having actual knowledge that he was infected with HIV, he intentionally and willfully had unprotected sexual intercourse with G.H.M, and infected the said child with HIV.
3. In the alternative count, the Appellant was charged with 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 diverse dates between 1st September 2024 and 8th January 2025, at Silent area, Butiye Location in Moyale SubCounty within Marsabit County, he intentionally and unlawfully touched the vagina of G.H.M, a child aged ten (10) years, with his penis.
4. The Appellant took plea and denied the charges faced. The prosecution called four witnesses, and on being placed on his defence, the Appellant gave unsworn evidence and called three witnesses to testify on his behalf.
B. PROSECUTION CASE
5. PW1 G.S. underwent voir dire examination and upon being established that she was knowledgeable and able to understand the duty of telling the truth, was allowed to testify under oath. She stated that she resided with her grandfather, the Appellant, and her grandmother, whom she referred to as her mother. She narrated that on several occasions, the Appellant engaged in “ tabia mbaya ” with her, the last incident being on 07.01.2025. She testified that the Appellant inserted his genital organ into hers and threatened to kill her if she disclosed the matter. On 10.01.2025, her grandmother noticed whitish stains on her trousers and upon inquiry, she revealed what the Appellant had done. She was thereafter taken to the police station and later to hospital where she was examined and treated. She identified the stained clothing in court as Prosecution Exhibit 1 and confirmed the issuance of the P3 and laboratory request forms from the hospital, where she was attended.
6. Under crossexamination, she maintained that it was the Appellant who defiled her and reiterated that she had not been found with any boy. She further confirmed that she was ten years old at the time of the incident.
7. PW2 Gule Galgalo stated that she resides in Silent area and engages in business at Hillo. She testified that she knew the Appellant as her husband and that PW1 was her grandchild, whom she had been taking care of since the age of four years. She narrated that in September 2024 she left PW1 in the care of the Appellant while she went to Hillo for business. She returned on 09.01.2025 and when she wanted to wash the PW1’s clothes, she noticed whitish stains on the trousers which resembled human sperm. She asked the Appellant about the stains, but he said he did not know anything about them. Later, when she inquired from PW1, she disclosed that the Appellant had been defiling her repeatedly during her absence. She reported the matter to the police, and PW 1 was taken to hospital where she was examined and found to be HIV positive. She confirmed that PW1 was then put on medication to date.
8. During crossexamination, she stated that her and the Appellant had stayed together in Hillo while engaging in gold mining and business, and that they had not disagreed during that period. She clarified that she herself was not on HIV medication and had seen the drugs for the first time on the day of arrest. She reiterated that they had been taking care of PW1 together, and that she did not know the Appellant would desire such a young child. She further confirmed that when she saw the stains on the trouser, she beat the child, who then disclosed that it was the Appellant who had repeatedly defiled her.
9. PW3 No. 105191 Sergeant Tume Huka, attached to Moyale Police Station at the general and children’s desk, testified that on 10.01.2025 PW 1 was brought to the station by PW2 who reported that PW1 had been left under the care of the Appellant while PW2 went to Hillo for business. On returning, she noticed unusual whitish stains on PW1’s trousers. When asked, the Appellant denied knowledge of the stains. Later, PW1 disclosed that since PW2 had left for Hillo, the Appellant had defiled her on several occasions.
10. She booked the report in the Occurrence Book, issued a P3 form, and escorted PW1 to Moyale SubCounty Hospital where she was examined and found to be infected with a lifethreatening disease. She was confirmed to be HIV positive and placed on ARV treatment.
11. She further testified that she organized standby officers and proceeded to arrest the Appellant later that night at around 2200 hours. The following day, she recorded statements from both PW1 and the Appellant, and escorted the Appellant to hospital for examination. The Appellant admitted he had been sick for long and using drugs, and requested his HIV medication be brought from home. PW3 confirmed that the Appellant was HIV positive.
12. She produced the age assessment report dated 13.01.2025 (Prosecution Exhibit 4) confirming PW1 was ten years old, the laboratory results dated 02.05.2025 (Prosecution Exhibit 5) confirming the Appellant’s HIV status, and the stained black skintight trouser with whitish stain (Prosecution Exhibit 1). Under crossexamination, PW3 stated that she did not personally witness the offence but relied on the statements of the PW1 and PW2 together with the medical findings. She confirmed that she took both PW1 and the Appellant to hospital for examination, and that the doctor filled the P3 form reflecting the findings. She reiterated that her role was investigative and that she relied on witness accounts and expert reports to arrive at her conclusion.
13. PW4 Dr. Rumana, a medical officer based at Moyale SubCounty Hospital testified that she examined PW1, G.H.M., on 10.01.2025 who was presented with a complaint of having been sexually defiled by a person known to her for a period of three months, whom she identified as her stepgrandfather. On general examination, all vitals were normal, clothes were intact and had been changed, and there were no stains. The child was well groomed and oriented in time and person. On systematic examination, all systems were normal, and there were no external injuries. On genital examination, the hymen was broken but there was no laceration or bleeding. The estimated age of injury was ongoing for three months, the nature of injury was penile penetration, and the degree of injury was mild. The victim was aged ten years, with breast budding but no pubic hair and breasts not enlarged.
14. PW4 further testified that HIV testing was done at the facility. The HIV test was reactive for Type 1, nonreactive for Type 2, and PW1 was confirmed to be infected with HIV. She was referred to the relevant clinic for further management and placed on ARV treatment. PW4 produced the P3 form (Prosecution Exhibit 2) and the laboratory request form (Prosecution Exhibit 3) in evidence. Under crossexamination by the accused, PW4 stated that she saw the patient while on duty, her role was to examine and record findings, and she did not investigate beyond the medical scope. She confirmed that the laboratory results established the child was infected with HIV.
C. DEFENCE CASE
15. The appellant was placed on his defence and gave unsworn evidence. He stated that he resided at Silent and was a mason. He denied committing the offence of defilement and maintained that the charges were fabricated against him.
16. It was his further evidence that PW2 drank alcohol and subsequently left PW1, a schoolgoing child, in his care. He stated that his neighbour informed him that PW1 was not coming home early after school, and he disciplined her by canning her. He added that PW2 later took PW1 to Hillo and, upon return, PW1 reported that she had been sleeping outside while her grandmother was inside the house with another man. PW2 threatened him over the phone, warning that if she returned, he would not stay well in Moyale. The Appellant concluded that one day he found PW1 crying, and she disclosed that PW2 had instructed her to frame him for defilement, even putting white ash on her pant to support the allegation. He said he informed an elder, but PW2 left with PW1 and switched off her phone. He was later arrested by police, and charged with the offence before court. He maintained that he had never been arrested before, that the charges were trumpedup, and that he was innocent.
17. DW2 Mohamed Godana confirmed that he was a retired chief residing in Butiye and a neighbour to the Appellant. He testified that he was not a witness to the incident before court but only knew that the Appellant and PW2 had disagreements prior, and he had severally tried to reconcile them about a year earlier. He added that the two later separated, though he had also brought them together at one point. Under crossexamination, he admitted that he did not know anything about the case before court.
18. DW3 Liban Guyo confirmed that he was a retired driver residing in Butiye. He testified that he knew the Appellant, and that whenever the Appellant disagreed with his wife, he would come to stay at his home. He stated that the Appellant and his wife had constant quarrels, and that was all he knew.
19. DW4 Halake Wario confirmed that he was a mason residing in Butiye and that he lived in the same manyatta as the Appellant. He testified that the Appellant had disagreed with his wife and that he had intervened severally as an elder. He stated that the Appellant and his wife had frequent quarrels, and that the Appellant told them as elders that his wife had threatened to do something bad.Under crossexamination, he reiterated that the Appellant and his wife had frequent disagreements.
20. The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of defilement and of deliberate transmission of HIV, and proceeded to convict him under Section 215 of the Criminal Procedure Code; after mitigation, the trial court sentenced the Appellant to serve life imprisonment for the offence of defilement and fifteen years imprisonment for the offence of deliberate transmission of HIV.
D. THE APPEAL
21. Dissatisfied by the conviction and sentence passed, the Appellant filed his petition of appeal and raised the following grounds of Appeal that;
a) THAT the Appellant pleaded not guilty at trial.
b) THAT the learned trial magistrate erred when he failed to appreciate that this incident arose as a result of existing grudge between the Appellant and his wife in spite of having been contested for.
c) THAT the learned trial magistrate erred in matters of law and fact in holding that the prosecution had proved its case beyond reasonable doubts when in fact it had not.
d) THAT the learned trial magistrate erred in law and fact in failing to independently analyze and/or evaluate the evidence on record hence an erroneous determination.
e) THAT the learned trial magistrate erred in failing to appreciate and find that all the charges preferred against the Appellant had not been established and proved as required by law.
22. The Appellant prayed that his appeal be allowed, sentence be set aside, his conviction be quashed and he be set free .
E. ANALYSIS AND DETERMINATION
23. Being a first appeal, this Court is under a duty to reevaluate and analyze afresh the evidence that was tendered before the trial court, and to draw its own logical conclusions, bearing in mind that it did not have the advantage of seeing and hearing the witnesses or observing their demeanor. 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.
24. This Court further relies on the decision of the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174 , where they stated thus:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
25. This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the Appellant and the respondent Counsel and find that the following issues arise for determination;
a) Whether the offences of defilement and deliberate transmission of HIV were proved.
b) Whether the sentence ought to be quashed and/or set aside .
26. In criminal proceedings, the burden of proof rests upon the prosecution, which must satisfy the Court beyond reasonable doubt that the material facts constituting its case are true, thereby establishing the case and entitling it to judgment in its favour. See Miller vs. Ministry of Pensions (1947) 2 All ER, 372, Republic Vs Edward Kirui (2014) eKLR, and Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 16 & Rex v Donovan [1934] 2 KB 498 (CCA).
27. The offence of defilement is provided for under Section 8 of the Sexual Offences Act, which states as follows:
8 Defilement
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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 .
(3) 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.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
28. Thus, in an offence of defilement, the prosecution must establish all the essential ingredients of the offence, namely: proof of the age of the complainant, positive identification of the assailant, and proof of penetration as defined under the Act. Once these elements are demonstrated beyond reasonable doubt, the offence of defilement is deemed to have been proved.
29. On the question of age, this court relies in the case of Edwin Nyambogo Onsongo vs. Republic (2016) eKLR where the Court of Appeal held as follows with regards to proving the age of a victim in cases of defilement:
“... 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.” (emphasis added)
30. The above position was affirmed in Fappyton Mutuku Ngui vs. Republic [2012] eKLR where it was held that;
conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean that there has to be a formal age assessment report or the production of a birth certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.
31. The jurisprudence is clear that age may be proved through a variety of credible means, including documentary evidence, medical assessment, testimony of parents or guardians, or even observation, provided the evidence is reliable.
32. In the present case, the Appellant challenges the credibility of the age assessment, pointing to inconsistencies between two reports and the absence of a birth certificate or testimony from the complainant’s mother. While these concerns are noted, the law does not demand a birth certificate in every case, nor does it require a formal age assessment report where other credible evidence is available.
33. Conclusive proof of age does not necessarily mean production of formal documents, except in borderline cases. What is required is credible and reliable evidence. In this matter, PW1 herself testified that she was ten years old at the time of the incident. PW3, the investigating officer, produced an age assessment report dated 09.05.2025 confirming PW1’s age as ten years. PW4 who examined PW1 also corroborated this position. Taken together, the testimony of PW1 together with PW3 and PW4 consistently placed the complainant within the statutory age bracket contemplated under Section 8 of the Sexual Offences Act.
34. Accordingly, this Court finds that the prosecution adduced sufficient and credible evidence to establish the age of PW1. The ingredient of age was therefore proved beyond reasonable doubt.
35. On penetration, Section 2(1) of the sexual offences Act defines penetration as;
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
36. On the question of whether penetration of the complainant’s genital organ occurred, it is now settled law that penetration may be proved either by direct or circumstantial evidence. The Supreme Court of Uganda in Bassita v Uganda, S.C. Criminal Appeal No. 35 of 1995 , succinctly stated, a position later approved in Sammy Charo Kirao v Republic [2020] KLR that:
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.’’
37. Unlike many other offences where eyewitness testimony is readily available, sexual offences are ordinarily committed in secrecy, away from public view. It is therefore uncommon to have direct eyewitness accounts. For this reason, the Court often relies primarily on the testimony of the victim, supported where possible by medical evidence, and in appropriate cases by circumstantial evidence.
38. Section 124 of the Evidence Act , also provides that,
“ in criminal cases involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
39. PW1 confirmed that she resided with the Appellant and her grandmother. She narrated that on several occasions the Appellant engaged in “ tabia mbaya ” with her, the last incident being on 07.01.2025 when he inserted his genital organ into hers and threatened to kill her if she disclosed the matter. On 10.01.2025, her grandmother noticed whitish stains on her trousers and upon inquiry, PW1 revealed what the Appellant had done. She was thereafter taken to the police station and later to hospital where she was examined and treated. She identified the stained clothing in court as Prosecution Exhibit 1 and confirmed the issuance of the P3 and laboratory request forms. Under crossexamination, she maintained that it was the Appellant who defiled her, reiterated that she had not been found with any boy.
40. PW4 testified that she examined PW1 on 10.01.2025. On genital examination, she observed that the hymen was broken, though there was no laceration or bleeding. She concluded that the nature of injury was penile penetration, estimated to have been ongoing for about three months, and classified the degree of injury as mild. I do find that PW4’s medical evidence corroborated PW1’s testimony and provided medical confirmation of penetration. The broken hymen, coupled with the laboratory findings, supported PW1’s account and reinforced the prosecution’s case on this essential ingredient of the offence.
41. As for identification, PW1 confirmed that she resided with the Appellant and her grandmother (PW2). The circumstances of this case eliminate the possibility of mistaken identity. The Appellant was not a stranger to PW1 and was actually her stepgrandfather, a person she lived with daily. Her familiarity with him, coupled with her consistent disclosure to PW2, makes her identification reliable. As a result, the identification was clear, consistent, and free from error.
42. On the Second Count of deliberate transmission of HIV, PW2 testified that after the Appellant was arrested, PW3 called her and asked that she break open his box and bring his HIV drugs to him. This was the first time she realized that the Appellant was on HIV medication. PW3 further confirmed this evidence, which indeed established both the Appellant’s HIV status and his knowledge of it. PW4 also testified that she examined PW1 on 10.01.2025 and confirmed that her hymen was broken, consistent with penile penetration, and that the HIV test was reactive. She produced the P3 form and laboratory request form, and placed the child on ARVs. Her evidence established that PW1 was HIV positive and had sustained injuries consistent with repeated sexual abuse over a period of three months.
43. In his defence, the Appellant submitted that the parents of PW1 were not tested, and therefore the source of infection was not proved. He also argued that no DNA analysis was conducted. While it is true that the parents were not examined, the offence under Section 26(1)(a) of the Sexual Offences Act does not require the prosecution to prove the precise chain of transmission through exclusion of all other possible sources. What is required is proof that the accused, knowing his HIV status, deliberately engaged in sexual intercourse with another person without disclosure.
44. As a result, PW1’s consistent testimony of repeated defilement, PW2’s evidence of the police phone call to her and discovery of the Appellant’s HIV drugs, PW3’s evidence of the Appellant’s admission, and PW4’s medical confirmation of PW1’s HIV status together satisfied this requirement. The absence of parental testing or DNA analysis did not weaken the prosecution’s case, since the direct evidence established that the Appellant, being aware of his HIV status, engaged in repeated sexual acts with PW1, resulting in her infection. I therefore find that the prosecution proved beyond reasonable doubt that the Appellant, knowing he was HIV positive, deliberately transmitted the infection to PW1 through repeated acts of defilement.
45. The Appellant gave an unsworn statement. He denied committing the offence and alleged that PW2, his wife, had fabricated the charges against him due to longstanding marital disagreements. He narrated disputes over money, business, and infidelity, and maintained that the case was motivated by malice rather than fact. He called three defence witnesses. DW1 testified that he knew of the disagreements between the Appellant and PW2 and had tried to reconcile them, but he had no knowledge of the alleged incident. DW2 stated that the Appellant had quarreled with his wife and at times stayed at his home, but similarly did not know anything about the offence. DW3 testified that he lived in the same manyatta and had intervened in frequent quarrels between the Appellant and his wife, and that she had threatened to do something bad, but he too had no knowledge of the alleged defilement or transmission of HIV.
46. The defence evidence, taken together, revolved around marital disputes and allegations of malice. It did not speak to the material facts of the charges, nor did it raise any issue that could dislodge the prosecution’s case. None of the witnesses addressed the acts of defilement or the transmission of HIV, and their testimonies did not exonerate the Appellant from the offences charged. His Appeal against conviction, thus fails.
b) Whether the sentence passed was harsh
47. Section 8(2) of the Sexual Offences Act, No. 3 of 2006 provides that 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. In the present case, the trial court found that PW1 was aged 10 years at the time of the incident, and accordingly sentenced the Appellant to life imprisonment on the count of defilement.
48. Section 26(1) of the Sexual Offences Act further provides that any person who, knowing that he or she is infected with HIV or any other lifethreatening sexually transmitted disease, intentionally has sexual intercourse or commits an indecent act with another person without disclosing that fact, is liable upon conviction to imprisonment for a term of not less than fifteen years but which may extend to life imprisonment. Having found that the Appellant knowingly engaged in repeated sexual acts with PW1 while aware of his HIV status, the trial court sentenced him to serve fifteen (15) years imprisonment on this count.
49. The principles guiding interference with sentencing by the appellate court were properly set out in S v Malgas (2001) SACR 469 (SCA) at para 12, where it was held that:
“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate ”.
50. Likewise, in Mokela v The State (135/11) [2011] ZASCA 166 , the Supreme Court of South Africa emphasized that:
“it is well established that sentencing remains pre-eminently within the discretion of the sentencing court. The salutary principle is that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by the sentencing court. In my view, this includes the terms and conditions imposed by the sentencing court on how or when the sentence is to be served.”
51. The Appellant has not demonstrated that the sentence imposed was either excessive or unduly harsh, nor has he shown that the trial court misdirected itself in the manner of its determination.
F. DISPOSITION
52. The upshot, having considered the entire record of appeal and parties’ submissions, I do find that the Appeal as against conviction and sentence fails and is hereby dismissed.
53. Right of Appeal 14 days.
54. It is so ordered.
Judgment 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 HCCR APPEAL NO E034 OF 20252
IN THE HIGH COURT AT MARSABIT
CRIMINAL APPEAL NUMBER E034 of 2025
KANCHORA WAKO DUBA…………………………………………APPELLANT
VERSUS
REPUBLIC………………………………………...………………..RESPONDENT
( Being an appeal arising from the conviction and sentence delivered on 29.01.2026, delivered by Hon W.K. CHERUIYOT (PM) in Marsabit MCSO No E001 of 2025)
BETWEEN
REPUBLIC…………………………….………..…………………..PROSECUTOR
VERSUS
KANCHORA WAKO DUBA ……………………………………….….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 diverse dates between 1st September 2024 and 8th January 2025, at Silent area, Butiye Location in Moyale SubCounty within Marsabit County, he intentionally and unlawfully caused his penis to penetrate the vagina of G.H.M, a child aged ten (10) years.
2. In the second count, he was charged with deliberate transmission of HIV contrary to Section 26(1)(a) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence were that on diverse dates between 1st September 2024 and 8th January 2025, at Silent area, Butiye Location in Moyale SubCounty within Marsabit County, having actual knowledge that he was infected with HIV, he intentionally and willfully had unprotected sexual intercourse with G.H.M, and infected the said child with HIV.
3. In the alternative count, the Appellant was charged with 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 diverse dates between 1st September 2024 and 8th January 2025, at Silent area, Butiye Location in Moyale SubCounty within Marsabit County, he intentionally and unlawfully touched the vagina of G.H.M, a child aged ten (10) years, with his penis.
4. The Appellant took plea and denied the charges faced. The prosecution called four witnesses, and on being placed on his defence, the Appellant gave unsworn evidence and called three witnesses to testify on his behalf.
B. PROSECUTION CASE
5. PW1 G.S. underwent voir dire examination and upon being established that she was knowledgeable and able to understand the duty of telling the truth, was allowed to testify under oath. She stated that she resided with her grandfather, the Appellant, and her grandmother, whom she referred to as her mother. She narrated that on several occasions, the Appellant engaged in “ tabia mbaya ” with her, the last incident being on 07.01.2025. She testified that the Appellant inserted his genital organ into hers and threatened to kill her if she disclosed the matter. On 10.01.2025, her grandmother noticed whitish stains on her trousers and upon inquiry, she revealed what the Appellant had done. She was thereafter taken to the police station and later to hospital where she was examined and treated. She identified the stained clothing in court as Prosecution Exhibit 1 and confirmed the issuance of the P3 and laboratory request forms from the hospital, where she was attended.
6. Under crossexamination, she maintained that it was the Appellant who defiled her and reiterated that she had not been found with any boy. She further confirmed that she was ten years old at the time of the incident.
7. PW2 Gule Galgalo stated that she resides in Silent area and engages in business at Hillo. She testified that she knew the Appellant as her husband and that PW1 was her grandchild, whom she had been taking care of since the age of four years. She narrated that in September 2024 she left PW1 in the care of the Appellant while she went to Hillo for business. She returned on 09.01.2025 and when she wanted to wash the PW1’s clothes, she noticed whitish stains on the trousers which resembled human sperm. She asked the Appellant about the stains, but he said he did not know anything about them. Later, when she inquired from PW1, she disclosed that the Appellant had been defiling her repeatedly during her absence. She reported the matter to the police, and PW 1 was taken to hospital where she was examined and found to be HIV positive. She confirmed that PW1 was then put on medication to date.
8. During crossexamination, she stated that her and the Appellant had stayed together in Hillo while engaging in gold mining and business, and that they had not disagreed during that period. She clarified that she herself was not on HIV medication and had seen the drugs for the first time on the day of arrest. She reiterated that they had been taking care of PW1 together, and that she did not know the Appellant would desire such a young child. She further confirmed that when she saw the stains on the trouser, she beat the child, who then disclosed that it was the Appellant who had repeatedly defiled her.
9. PW3 No. 105191 Sergeant Tume Huka, attached to Moyale Police Station at the general and children’s desk, testified that on 10.01.2025 PW 1 was brought to the station by PW2 who reported that PW1 had been left under the care of the Appellant while PW2 went to Hillo for business. On returning, she noticed unusual whitish stains on PW1’s trousers. When asked, the Appellant denied knowledge of the stains. Later, PW1 disclosed that since PW2 had left for Hillo, the Appellant had defiled her on several occasions.
10. She booked the report in the Occurrence Book, issued a P3 form, and escorted PW1 to Moyale SubCounty Hospital where she was examined and found to be infected with a lifethreatening disease. She was confirmed to be HIV positive and placed on ARV treatment.
11. She further testified that she organized standby officers and proceeded to arrest the Appellant later that night at around 2200 hours. The following day, she recorded statements from both PW1 and the Appellant, and escorted the Appellant to hospital for examination. The Appellant admitted he had been sick for long and using drugs, and requested his HIV medication be brought from home. PW3 confirmed that the Appellant was HIV positive.
12. She produced the age assessment report dated 13.01.2025 (Prosecution Exhibit 4) confirming PW1 was ten years old, the laboratory results dated 02.05.2025 (Prosecution Exhibit 5) confirming the Appellant’s HIV status, and the stained black skintight trouser with whitish stain (Prosecution Exhibit 1). Under crossexamination, PW3 stated that she did not personally witness the offence but relied on the statements of the PW1 and PW2 together with the medical findings. She confirmed that she took both PW1 and the Appellant to hospital for examination, and that the doctor filled the P3 form reflecting the findings. She reiterated that her role was investigative and that she relied on witness accounts and expert reports to arrive at her conclusion.
13. PW4 Dr. Rumana, a medical officer based at Moyale SubCounty Hospital testified that she examined PW1, G.H.M., on 10.01.2025 who was presented with a complaint of having been sexually defiled by a person known to her for a period of three months, whom she identified as her stepgrandfather. On general examination, all vitals were normal, clothes were intact and had been changed, and there were no stains. The child was well groomed and oriented in time and person. On systematic examination, all systems were normal, and there were no external injuries. On genital examination, the hymen was broken but there was no laceration or bleeding. The estimated age of injury was ongoing for three months, the nature of injury was penile penetration, and the degree of injury was mild. The victim was aged ten years, with breast budding but no pubic hair and breasts not enlarged.
14. PW4 further testified that HIV testing was done at the facility. The HIV test was reactive for Type 1, nonreactive for Type 2, and PW1 was confirmed to be infected with HIV. She was referred to the relevant clinic for further management and placed on ARV treatment. PW4 produced the P3 form (Prosecution Exhibit 2) and the laboratory request form (Prosecution Exhibit 3) in evidence. Under crossexamination by the accused, PW4 stated that she saw the patient while on duty, her role was to examine and record findings, and she did not investigate beyond the medical scope. She confirmed that the laboratory results established the child was infected with HIV.
C. DEFENCE CASE
15. The appellant was placed on his defence and gave unsworn evidence. He stated that he resided at Silent and was a mason. He denied committing the offence of defilement and maintained that the charges were fabricated against him.
16. It was his further evidence that PW2 drank alcohol and subsequently left PW1, a schoolgoing child, in his care. He stated that his neighbour informed him that PW1 was not coming home early after school, and he disciplined her by canning her. He added that PW2 later took PW1 to Hillo and, upon return, PW1 reported that she had been sleeping outside while her grandmother was inside the house with another man. PW2 threatened him over the phone, warning that if she returned, he would not stay well in Moyale. The Appellant concluded that one day he found PW1 crying, and she disclosed that PW2 had instructed her to frame him for defilement, even putting white ash on her pant to support the allegation. He said he informed an elder, but PW2 left with PW1 and switched off her phone. He was later arrested by police, and charged with the offence before court. He maintained that he had never been arrested before, that the charges were trumpedup, and that he was innocent.
17. DW2 Mohamed Godana confirmed that he was a retired chief residing in Butiye and a neighbour to the Appellant. He testified that he was not a witness to the incident before court but only knew that the Appellant and PW2 had disagreements prior, and he had severally tried to reconcile them about a year earlier. He added that the two later separated, though he had also brought them together at one point. Under crossexamination, he admitted that he did not know anything about the case before court.
18. DW3 Liban Guyo confirmed that he was a retired driver residing in Butiye. He testified that he knew the Appellant, and that whenever the Appellant disagreed with his wife, he would come to stay at his home. He stated that the Appellant and his wife had constant quarrels, and that was all he knew.
19. DW4 Halake Wario confirmed that he was a mason residing in Butiye and that he lived in the same manyatta as the Appellant. He testified that the Appellant had disagreed with his wife and that he had intervened severally as an elder. He stated that the Appellant and his wife had frequent quarrels, and that the Appellant told them as elders that his wife had threatened to do something bad.Under crossexamination, he reiterated that the Appellant and his wife had frequent disagreements.
20. The learned trial magistrate considered all the evidence adduced and found the Appellant guilty of the offence of defilement and of deliberate transmission of HIV, and proceeded to convict him under Section 215 of the Criminal Procedure Code; after mitigation, the trial court sentenced the Appellant to serve life imprisonment for the offence of defilement and fifteen years imprisonment for the offence of deliberate transmission of HIV.
D. THE APPEAL
21. Dissatisfied by the conviction and sentence passed, the Appellant filed his petition of appeal and raised the following grounds of Appeal that;
a) THAT the Appellant pleaded not guilty at trial.
b) THAT the learned trial magistrate erred when he failed to appreciate that this incident arose as a result of existing grudge between the Appellant and his wife in spite of having been contested for.
c) THAT the learned trial magistrate erred in matters of law and fact in holding that the prosecution had proved its case beyond reasonable doubts when in fact it had not.
d) THAT the learned trial magistrate erred in law and fact in failing to independently analyze and/or evaluate the evidence on record hence an erroneous determination.
e) THAT the learned trial magistrate erred in failing to appreciate and find that all the charges preferred against the Appellant had not been established and proved as required by law.
22. The Appellant prayed that his appeal be allowed, sentence be set aside, his conviction be quashed and he be set free .
E. ANALYSIS AND DETERMINATION
23. Being a first appeal, this Court is under a duty to reevaluate and analyze afresh the evidence that was tendered before the trial court, and to draw its own logical conclusions, bearing in mind that it did not have the advantage of seeing and hearing the witnesses or observing their demeanor. 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.
24. This Court further relies on the decision of the Court of Appeal in Kiilu & Another v Republic [2005] 1 KLR 174 , where they stated thus:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.
It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
25. This court has examined the Record of Appeal, the grounds of appeal and given due consideration to the submissions by the Appellant and the respondent Counsel and find that the following issues arise for determination;
a) Whether the offences of defilement and deliberate transmission of HIV were proved.
b) Whether the sentence ought to be quashed and/or set aside .
26. In criminal proceedings, the burden of proof rests upon the prosecution, which must satisfy the Court beyond reasonable doubt that the material facts constituting its case are true, thereby establishing the case and entitling it to judgment in its favour. See Miller vs. Ministry of Pensions (1947) 2 All ER, 372, Republic Vs Edward Kirui (2014) eKLR, and Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 16 & Rex v Donovan [1934] 2 KB 498 (CCA).
27. The offence of defilement is provided for under Section 8 of the Sexual Offences Act, which states as follows:
8 Defilement
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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 .
(3) 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.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
28. Thus, in an offence of defilement, the prosecution must establish all the essential ingredients of the offence, namely: proof of the age of the complainant, positive identification of the assailant, and proof of penetration as defined under the Act. Once these elements are demonstrated beyond reasonable doubt, the offence of defilement is deemed to have been proved.
29. On the question of age, this court relies in the case of Edwin Nyambogo Onsongo vs. Republic (2016) eKLR where the Court of Appeal held as follows with regards to proving the age of a victim in cases of defilement:
“... 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.” (emphasis added)
30. The above position was affirmed in Fappyton Mutuku Ngui vs. Republic [2012] eKLR where it was held that;
conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean that there has to be a formal age assessment report or the production of a birth certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.
31. The jurisprudence is clear that age may be proved through a variety of credible means, including documentary evidence, medical assessment, testimony of parents or guardians, or even observation, provided the evidence is reliable.
32. In the present case, the Appellant challenges the credibility of the age assessment, pointing to inconsistencies between two reports and the absence of a birth certificate or testimony from the complainant’s mother. While these concerns are noted, the law does not demand a birth certificate in every case, nor does it require a formal age assessment report where other credible evidence is available.
33. Conclusive proof of age does not necessarily mean production of formal documents, except in borderline cases. What is required is credible and reliable evidence. In this matter, PW1 herself testified that she was ten years old at the time of the incident. PW3, the investigating officer, produced an age assessment report dated 09.05.2025 confirming PW1’s age as ten years. PW4 who examined PW1 also corroborated this position. Taken together, the testimony of PW1 together with PW3 and PW4 consistently placed the complainant within the statutory age bracket contemplated under Section 8 of the Sexual Offences Act.
34. Accordingly, this Court finds that the prosecution adduced sufficient and credible evidence to establish the age of PW1. The ingredient of age was therefore proved beyond reasonable doubt.
35. On penetration, Section 2(1) of the sexual offences Act defines penetration as;
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
36. On the question of whether penetration of the complainant’s genital organ occurred, it is now settled law that penetration may be proved either by direct or circumstantial evidence. The Supreme Court of Uganda in Bassita v Uganda, S.C. Criminal Appeal No. 35 of 1995 , succinctly stated, a position later approved in Sammy Charo Kirao v Republic [2020] KLR that:
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.’’
37. Unlike many other offences where eyewitness testimony is readily available, sexual offences are ordinarily committed in secrecy, away from public view. It is therefore uncommon to have direct eyewitness accounts. For this reason, the Court often relies primarily on the testimony of the victim, supported where possible by medical evidence, and in appropriate cases by circumstantial evidence.
38. Section 124 of the Evidence Act , also provides that,
“ in criminal cases involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
39. PW1 confirmed that she resided with the Appellant and her grandmother. She narrated that on several occasions the Appellant engaged in “ tabia mbaya ” with her, the last incident being on 07.01.2025 when he inserted his genital organ into hers and threatened to kill her if she disclosed the matter. On 10.01.2025, her grandmother noticed whitish stains on her trousers and upon inquiry, PW1 revealed what the Appellant had done. She was thereafter taken to the police station and later to hospital where she was examined and treated. She identified the stained clothing in court as Prosecution Exhibit 1 and confirmed the issuance of the P3 and laboratory request forms. Under crossexamination, she maintained that it was the Appellant who defiled her, reiterated that she had not been found with any boy.
40. PW4 testified that she examined PW1 on 10.01.2025. On genital examination, she observed that the hymen was broken, though there was no laceration or bleeding. She concluded that the nature of injury was penile penetration, estimated to have been ongoing for about three months, and classified the degree of injury as mild. I do find that PW4’s medical evidence corroborated PW1’s testimony and provided medical confirmation of penetration. The broken hymen, coupled with the laboratory findings, supported PW1’s account and reinforced the prosecution’s case on this essential ingredient of the offence.
41. As for identification, PW1 confirmed that she resided with the Appellant and her grandmother (PW2). The circumstances of this case eliminate the possibility of mistaken identity. The Appellant was not a stranger to PW1 and was actually her stepgrandfather, a person she lived with daily. Her familiarity with him, coupled with her consistent disclosure to PW2, makes her identification reliable. As a result, the identification was clear, consistent, and free from error.
42. On the Second Count of deliberate transmission of HIV, PW2 testified that after the Appellant was arrested, PW3 called her and asked that she break open his box and bring his HIV drugs to him. This was the first time she realized that the Appellant was on HIV medication. PW3 further confirmed this evidence, which indeed established both the Appellant’s HIV status and his knowledge of it. PW4 also testified that she examined PW1 on 10.01.2025 and confirmed that her hymen was broken, consistent with penile penetration, and that the HIV test was reactive. She produced the P3 form and laboratory request form, and placed the child on ARVs. Her evidence established that PW1 was HIV positive and had sustained injuries consistent with repeated sexual abuse over a period of three months.
43. In his defence, the Appellant submitted that the parents of PW1 were not tested, and therefore the source of infection was not proved. He also argued that no DNA analysis was conducted. While it is true that the parents were not examined, the offence under Section 26(1)(a) of the Sexual Offences Act does not require the prosecution to prove the precise chain of transmission through exclusion of all other possible sources. What is required is proof that the accused, knowing his HIV status, deliberately engaged in sexual intercourse with another person without disclosure.
44. As a result, PW1’s consistent testimony of repeated defilement, PW2’s evidence of the police phone call to her and discovery of the Appellant’s HIV drugs, PW3’s evidence of the Appellant’s admission, and PW4’s medical confirmation of PW1’s HIV status together satisfied this requirement. The absence of parental testing or DNA analysis did not weaken the prosecution’s case, since the direct evidence established that the Appellant, being aware of his HIV status, engaged in repeated sexual acts with PW1, resulting in her infection. I therefore find that the prosecution proved beyond reasonable doubt that the Appellant, knowing he was HIV positive, deliberately transmitted the infection to PW1 through repeated acts of defilement.
45. The Appellant gave an unsworn statement. He denied committing the offence and alleged that PW2, his wife, had fabricated the charges against him due to longstanding marital disagreements. He narrated disputes over money, business, and infidelity, and maintained that the case was motivated by malice rather than fact. He called three defence witnesses. DW1 testified that he knew of the disagreements between the Appellant and PW2 and had tried to reconcile them, but he had no knowledge of the alleged incident. DW2 stated that the Appellant had quarreled with his wife and at times stayed at his home, but similarly did not know anything about the offence. DW3 testified that he lived in the same manyatta and had intervened in frequent quarrels between the Appellant and his wife, and that she had threatened to do something bad, but he too had no knowledge of the alleged defilement or transmission of HIV.
46. The defence evidence, taken together, revolved around marital disputes and allegations of malice. It did not speak to the material facts of the charges, nor did it raise any issue that could dislodge the prosecution’s case. None of the witnesses addressed the acts of defilement or the transmission of HIV, and their testimonies did not exonerate the Appellant from the offences charged. His Appeal against conviction, thus fails.
b) Whether the sentence passed was harsh
47. Section 8(2) of the Sexual Offences Act, No. 3 of 2006 provides that 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. In the present case, the trial court found that PW1 was aged 10 years at the time of the incident, and accordingly sentenced the Appellant to life imprisonment on the count of defilement.
48. Section 26(1) of the Sexual Offences Act further provides that any person who, knowing that he or she is infected with HIV or any other lifethreatening sexually transmitted disease, intentionally has sexual intercourse or commits an indecent act with another person without disclosing that fact, is liable upon conviction to imprisonment for a term of not less than fifteen years but which may extend to life imprisonment. Having found that the Appellant knowingly engaged in repeated sexual acts with PW1 while aware of his HIV status, the trial court sentenced him to serve fifteen (15) years imprisonment on this count.
49. The principles guiding interference with sentencing by the appellate court were properly set out in S v Malgas (2001) SACR 469 (SCA) at para 12, where it was held that:
“A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate ”.
50. Likewise, in Mokela v The State (135/11) [2011] ZASCA 166 , the Supreme Court of South Africa emphasized that:
“it is well established that sentencing remains pre-eminently within the discretion of the sentencing court. The salutary principle is that the appeal court does not enjoy carte blanche to interfere with sentences which have been properly imposed by the sentencing court. In my view, this includes the terms and conditions imposed by the sentencing court on how or when the sentence is to be served.”
51. The Appellant has not demonstrated that the sentence imposed was either excessive or unduly harsh, nor has he shown that the trial court misdirected itself in the manner of its determination.
F. DISPOSITION
52. The upshot, having considered the entire record of appeal and parties’ submissions, I do find that the Appeal as against conviction and sentence fails and is hereby dismissed.
53. Right of Appeal 14 days.
54. It is so ordered.
Judgment 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 HCCR APPEAL NO E034 OF 20252