(An appeal from the conviction and sentence in Chief Magistrates Court Makueni Sexual Offence Case No. E019 of 2023, Judgment delivered on 14 th March, 2024 by Hon. E. Kemei, SRM)
1. The Appellant was charged with the offence of Defilement contrary to Section 8 (1) as read with 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars were that, the Appellant, on the 25 th day of August 2023 at Ngangani village, Mumbuni location, Makueni sub-county, Makueni County, intentionally caused his penis to penetrate the vagina of R.M.M., a child aged 14 years.
2. He faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars are that, the Appellant, on the 25 th day of August 2023 at Ngangani village, Mumbuni location, Makueni sub-county, Makueni County, intentionally touched the vagina of R.M.M a child aged 14 years with his penis.
3. The lower court delivered the Judgment on 14 th March, 2024 in which it found the Appellant guilty and convicted him of the main charge. The court sentenced him to serve 10 years.
4. The Appellant was dissatisfied with the Judgment and appealed to this Court vide a Petition of Appeal dated 21 March, 2024. He listed the following grounds of appeal;
1) That the prosecution case is replete with monumental inconsistencies and contradictions which would have attracted acquittal verdict.
2) That the trial court erred both in law and fact by failing to conduct holistic scrutiny of the whole evidence on record to base its conviction and sentence.
5. He asked this court to allow the appeal, quash the conviction, set aside the sentence imposed, and set him at liberty.
6. The Appeal was canvassed by way of written submissions. The Appellant filed his submissions and the same has been considered at length. The Respondent also filed their submissions dated 19 th December, 2024, and the same has been considered at length.
Issues for Determination
7. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of defilement was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
8. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of defilement was proven to the required standard thereby warranting a conviction
9. The court in George Opondo Olunga vs. Republic [2016] eKLR established that the ingredients of the offence of defilement are: the age of the victim, penetration and proper identification of the perpetrator.
10. I shall start with the element of Penetration. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
11. I shall first outline the evidence that the prosecution tendered to prove the element of penetration.
12. PW2 was the Complainant. She told the Court that on 25 th August, 2023 she went to visit the Appellant so that he could pray for her before she went to school. She stated that after the prayers, she was unable to return home because it was dark, and she requested that the Appellant show her a place to sleep. She told the court that, on that night, they slept together on the same bed and they had sex. She also told the court that she removed her trousers and underpants. In cross-examination, she told the court that she did not scream, she was not forced, she was not undressed, and she was not harmed or injured.
13. PW1 was the clinical officer from Makueni County Referral Hospital who examined the Complainant. She produced the P3 Form, the Post Rape Case Form, and the Lab Request Form. She told the court that she examined the Complainant on 29 th August, 2023, and that, from her physical examination, nothing was unusual. She stated that the vaginal examination revealed that the hymen was not intact, and it was not freshly broken. On cross-examination, she stated that there was no vaginal bleeding or discharge.
14. I have seen the medical reports. The P3 form basically corroborates the testimony of the clinical. Indicates that the examination revealed a normal vagina, normal labia minora, normal labia majora, hymen is not intact-not freshly broken, no vaginal bleeding, no vaginal discharge, no spermatozoa, and no pus cells.
15. These are the only witnesses who gave direct evidence on the element of penetration. Having outlined the evidence, the question before this court is whether this evidence proves the element of penetration.
16. I shall first address the issue that the hymen is not intact and was not freshly broken. Courts have held that a broken hymen cannot be used as proof of penetration. The Court of Appeal held this view in the case of P. K.W v Republic [2012] eKLR , where the court observed as follows;
“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse.
16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse.”
17. In the instant case, it appears to this court that the alleged penetration was not forceful. This is because the Complainant told the court that she undressed herself by removing her trousers and underpants. She also told the court that she was not forced and that she did not scream. That being the case, it means that the vaginal medical examination of the Complainant was unlikely to reveal things like bruises, lacerations, and blood stains. Thus, the absence of bruises and lacerations in the medical examination is not a relief to the Appellant because such injuries were not expected in the circumstances herein.
18. That notwithstanding, I find that the Medical report and the evidence of the clinical officer did not help much on the question of establishing penetration. In my view, even though the medical report was consistent with the absence of force during the alleged penetration, the medical examination was not conclusive.
19. The court in DS v Republic [2022] KEHC 2502 (KLR) , held that, where the medical examination may not be conclusive, a court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. It held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration .
20. Similarly, under the law of Evidence, a Court can convict on uncorroborated evidence of a victim of a sexual offence, it court is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides;
Provided that where in a criminal case 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.
21. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
22. In my view, this is one of the cases where the court is required to weigh, with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. As this court does this, it is also required to satisfy itself that the child is telling the truth.
23. The Complainant told the court that she went to visit the Appellant so that he could pray for her. She also told the court that it was not her first time going to the prayers. Interestingly, the Complainant did not tell any member of her household that she was going for prayers at the Appellant’s church. She kept it away from them, and she told the court that no one at home knew where she had gone. I do not think there is anything wrong with her going for the prayers, but I find it suspicious that she concealed the prayer visit from her relatives, especially her grandmother, with whom she was staying.
24. Additionally, the Complainant told the court that the day she went for the alleged prayers was not a prayer day. She also stated that she used a phone to inform the Appellant that she would be coming. She also told the court that she had not made an appointment with the Appellant for the prayers. She was in communication with the Appellant before they met that day.
25. Lastly, the Appellant told the Court that she did not manage to go back home because it was dark. Yet the evidence on record shows that it was the Complainant who insisted on having the prayers late at night. The two first met at the market, and darkness fell while they were still there. Indeed, by the time they were leaving the market for the church, it was already dark, but she insisted on the prayers nonetheless. She told the court: “ It got dark, and I told him [Appellant] we go to church so that he could pray for me.”
26. I am not persuaded that the Complainant failed to go back home that day because it was dark. It was already dark when they left the market for the church, and she was the one who insisted on the night prayer session.
27. In my view, there is a real possibility that the Complainant lied to the Court about the agenda/motive of her visit to the Appellant. While she insisted that she went there for prayers, the totality of the evidence shows that she likely went there for a different agenda or motive.
28. The complainant was traced to the house in the church compound, and she had been there from Friday to Monday. The record shows that the appellant was escorted to the police station and subsequently charged in court. At some point during cross-examination, when asked about what had transpired and whether it was her first time having sex, she was unresponsive.
29. My conclusion is that I find the Complainant’s trustworthiness questionable. Accordingly, this court finds no reason to trust her about the alleged defilement or indecent act by the Appellant.
30. I find that the conviction was unsafe.
Disposition
31. The Appeal succeeds.
32. The Conviction for the offence of Defilement in the Sexual Offences Case No. E019 of 2023 is hereby quashed, and the sentence is set aside.
33. The Appellant is to be set at liberty forthwith unless otherwise lawfully held.
34. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
7 | Page
1. The Appellant was charged with the offence of Defilement contrary to Section 8 (1) as read with 8 (3) of the Sexual Offences Act No. 3 of 2006. The particulars were that, the Appellant, on the 25 th day of August 2023 at Ngangani village, Mumbuni location, Makueni sub-county, Makueni County, intentionally caused his penis to penetrate the vagina of R.M.M., a child aged 14 years.
2. He faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars are that, the Appellant, on the 25 th day of August 2023 at Ngangani village, Mumbuni location, Makueni sub-county, Makueni County, intentionally touched the vagina of R.M.M a child aged 14 years with his penis.
3. The lower court delivered the Judgment on 14 th March, 2024 in which it found the Appellant guilty and convicted him of the main charge. The court sentenced him to serve 10 years.
4. The Appellant was dissatisfied with the Judgment and appealed to this Court vide a Petition of Appeal dated 21 March, 2024. He listed the following grounds of appeal;
1) That the prosecution case is replete with monumental inconsistencies and contradictions which would have attracted acquittal verdict.
2) That the trial court erred both in law and fact by failing to conduct holistic scrutiny of the whole evidence on record to base its conviction and sentence.
5. He asked this court to allow the appeal, quash the conviction, set aside the sentence imposed, and set him at liberty.
6. The Appeal was canvassed by way of written submissions. The Appellant filed his submissions and the same has been considered at length. The Respondent also filed their submissions dated 19 th December, 2024, and the same has been considered at length.
Issues for Determination
7. Having considered the Grounds of Appeal and the submissions made by the parties, I find that there are two issues for determination:
a) Whether the offence of defilement was proven to the required standard thereby warranting a conviction.
b) Whether the sentence imposed was appropriate.
8. This being a first Appeal, this Court has a duty to revisit the evidence tendered before the trial court afresh, evaluate, analyze it, and come to its own independent conclusion, but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence, and give allowance for that. (See Okeno vs. Republic (1972) EA 32 and Mark Oiruri Mose vs. R (2013) eKLR.
Whether the offence of defilement was proven to the required standard thereby warranting a conviction
9. The court in George Opondo Olunga vs. Republic [2016] eKLR established that the ingredients of the offence of defilement are: the age of the victim, penetration and proper identification of the perpetrator.
10. I shall start with the element of Penetration. Courts have given guidance on how penetration should be proved. In DS v Republic [2022] KEHC 2502 (KLR) , the Court held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration.
11. I shall first outline the evidence that the prosecution tendered to prove the element of penetration.
12. PW2 was the Complainant. She told the Court that on 25 th August, 2023 she went to visit the Appellant so that he could pray for her before she went to school. She stated that after the prayers, she was unable to return home because it was dark, and she requested that the Appellant show her a place to sleep. She told the court that, on that night, they slept together on the same bed and they had sex. She also told the court that she removed her trousers and underpants. In cross-examination, she told the court that she did not scream, she was not forced, she was not undressed, and she was not harmed or injured.
13. PW1 was the clinical officer from Makueni County Referral Hospital who examined the Complainant. She produced the P3 Form, the Post Rape Case Form, and the Lab Request Form. She told the court that she examined the Complainant on 29 th August, 2023, and that, from her physical examination, nothing was unusual. She stated that the vaginal examination revealed that the hymen was not intact, and it was not freshly broken. On cross-examination, she stated that there was no vaginal bleeding or discharge.
14. I have seen the medical reports. The P3 form basically corroborates the testimony of the clinical. Indicates that the examination revealed a normal vagina, normal labia minora, normal labia majora, hymen is not intact-not freshly broken, no vaginal bleeding, no vaginal discharge, no spermatozoa, and no pus cells.
15. These are the only witnesses who gave direct evidence on the element of penetration. Having outlined the evidence, the question before this court is whether this evidence proves the element of penetration.
16. I shall first address the issue that the hymen is not intact and was not freshly broken. Courts have held that a broken hymen cannot be used as proof of penetration. The Court of Appeal held this view in the case of P. K.W v Republic [2012] eKLR , where the court observed as follows;
“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse.
16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse.”
17. In the instant case, it appears to this court that the alleged penetration was not forceful. This is because the Complainant told the court that she undressed herself by removing her trousers and underpants. She also told the court that she was not forced and that she did not scream. That being the case, it means that the vaginal medical examination of the Complainant was unlikely to reveal things like bruises, lacerations, and blood stains. Thus, the absence of bruises and lacerations in the medical examination is not a relief to the Appellant because such injuries were not expected in the circumstances herein.
18. That notwithstanding, I find that the Medical report and the evidence of the clinical officer did not help much on the question of establishing penetration. In my view, even though the medical report was consistent with the absence of force during the alleged penetration, the medical examination was not conclusive.
19. The court in DS v Republic [2022] KEHC 2502 (KLR) , held that, where the medical examination may not be conclusive, a court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. It held as follows;
19. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the victim in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. Where the medical examination may not be available or conclusive, the court ought to weigh with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration .
20. Similarly, under the law of Evidence, a Court can convict on uncorroborated evidence of a victim of a sexual offence, it court is satisfied that the victim is telling the truth. This principle is provided for under Section 124 of the Evidence Act which provides;
Provided that where in a criminal case 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.
21. The Court of Appeal in Ndungu Kimanyi vs Republic [1979] KLR 283 (Madan, Miller and Potter JJA) underscored the need for the Court to assure itself about the integrity of a witness and their trustworthiness. The Court held as follows;
The witness in a criminal case upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person, or raise a suspicion about his trustworthiness, or do (or say) something which indicates that he is a person of doubtful integrity, and therefore an unreliable witness which makes it unsafe to accept his evidence.”
22. In my view, this is one of the cases where the court is required to weigh, with thorough scrutiny and utmost caution, the evidence of the child, in order to determine whether there was penetration. As this court does this, it is also required to satisfy itself that the child is telling the truth.
23. The Complainant told the court that she went to visit the Appellant so that he could pray for her. She also told the court that it was not her first time going to the prayers. Interestingly, the Complainant did not tell any member of her household that she was going for prayers at the Appellant’s church. She kept it away from them, and she told the court that no one at home knew where she had gone. I do not think there is anything wrong with her going for the prayers, but I find it suspicious that she concealed the prayer visit from her relatives, especially her grandmother, with whom she was staying.
24. Additionally, the Complainant told the court that the day she went for the alleged prayers was not a prayer day. She also stated that she used a phone to inform the Appellant that she would be coming. She also told the court that she had not made an appointment with the Appellant for the prayers. She was in communication with the Appellant before they met that day.
25. Lastly, the Appellant told the Court that she did not manage to go back home because it was dark. Yet the evidence on record shows that it was the Complainant who insisted on having the prayers late at night. The two first met at the market, and darkness fell while they were still there. Indeed, by the time they were leaving the market for the church, it was already dark, but she insisted on the prayers nonetheless. She told the court: “ It got dark, and I told him [Appellant] we go to church so that he could pray for me.”
26. I am not persuaded that the Complainant failed to go back home that day because it was dark. It was already dark when they left the market for the church, and she was the one who insisted on the night prayer session.
27. In my view, there is a real possibility that the Complainant lied to the Court about the agenda/motive of her visit to the Appellant. While she insisted that she went there for prayers, the totality of the evidence shows that she likely went there for a different agenda or motive.
28. The complainant was traced to the house in the church compound, and she had been there from Friday to Monday. The record shows that the appellant was escorted to the police station and subsequently charged in court. At some point during cross-examination, when asked about what had transpired and whether it was her first time having sex, she was unresponsive.
29. My conclusion is that I find the Complainant’s trustworthiness questionable. Accordingly, this court finds no reason to trust her about the alleged defilement or indecent act by the Appellant.
30. I find that the conviction was unsafe.
Disposition
31. The Appeal succeeds.
32. The Conviction for the offence of Defilement in the Sexual Offences Case No. E019 of 2023 is hereby quashed, and the sentence is set aside.
33. The Appellant is to be set at liberty forthwith unless otherwise lawfully held.
34. Orders accordingly.
DATED, DELIVERED and SIGNED at NAIROBI through the Microsoft Teams Online Platform on this 26 th day of FEBRUARY, 2026
HON. C. KENDAGOR
JUDGE
In the presence of:
Court Assistant: Beryl
Appellant – present
Ms. Mutua, ODPP
7 | Page