' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E012 OF 2025
KENNEDY WAFULA OSORE………………………………..……..………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….…….……….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Tobias O. Omono (RM) in Kitale CMC SO Case No. E107 of 2023)
JUDGMENT
The appellant was arraigned before the Resident Magistrate at Kitale in Sexual Offences Case No. E107 of 2023, charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 28/6/2023 at Kipsongo area within Transnzoia County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of LC a child aged 13 years.
In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 28/6/2023 at Kipsongo area within Transnzoia County, the appellant unlawfully and intentionally caused contact between his genital organ namely penis and the genital organ namely vagina of LC a child aged 13 years.
The appellant pleaded not guilty to the charge, and the matter proceeded to a full trial where prosecution called a total of five (5) witnesses with a view of proving the case against the appellant beyond reasonable doubt.
Because the complainant was a minor, the trial court conducted a voire dire examination on her and, upon being satisfied that she understood the duty to tell the truth, allowed her to testify on oath.
Having been called as PW1, she stated that she was a Grade 5 pupil at Chetoto Primary School who was born on 20/1/2010. She recalled that on the night of 8/8/2023, while going to relieve herself near a maize plantation close to the toilet, someone suddenly grabbed her and carried her to a house across the road. Upon arrival, the person switched on the lights, and she was able to recognize him as their neighbor, one Kennedy Ozone. He threatened to kill her if she screamed, after which he carried her to the bed, removed her black dress and panty, then removed his trousers, and proceeded to have sex with her, forcefully. She recounted that the appellant inserted his penis into her vagina, causing her significant pain. She remained in the house with him until 11:00 PM, when he instructed her to return home and not to tell anyone about the incident. Upon returning, she found her parents searching for her. They attempted to locate the appellant without success, and she was subsequently taken to the hospital for medical attention.
On cross-examination, PW1 stated that the neighbors were asleep at the time the appellant defiled her. She further testified that upon returning home, her parents beat her, which prompted her to disclose the incident, noting that the appellant had threatened to kill her. She added that the day of the incident was her first day at the appellant’s house although she had previously seen him at their home. She denied any knowledge of a debt her parents were alleged to owe the appellant.
PW2, the victim’s mother, testified that on the night of 28/6/2023, PW1 requested to use the outside toilet and remained absent for over ten minutes, causing her concern. She went outside, called her daughter’s name repeatedly, but received no response. Her neighbor, Peter, woke up and assisted in the search, but to no avail. Later, she encountered two boys near her home who informed her that they had seen PW1, wearing a black dress, walking away. PW1 subsequently appeared and, after being caned, disclosed that someone had grabbed her and led her to a nearby house. She guided her parents and the neighbors to the appellant’s house, but he was not there at the time. The appellant later came to her home, inquiring about the incident. The witness then took PW1 to Kitale County Hospital for medical treatment and later reported the matter at the Kitale Police Station. She confirmed that prior to the incident, she had no disputes with the appellant and stated that PW1 was born on 20/11/2011.
On cross-examination, PW2 denied any dispute between herself and the appellant’s wife. She also refuted claims that the appellant had sold her television and furniture on credit, or that she owed him Kshs 50,000/=. She further testified that when PW1 led them to the appellant’s house that night, they observed a red-stained shirt.
PW3 was the father to PW1. He recalled that on 28/6/2023, at around 10:30 PM, PW1 went outside briefly to relieve herself but took longer than expected. PW2 stepped out to search for her but was unable to locate her. PW3 then woke and, with the assistance of neighbors, conducted a search and eventually found PW1 near the toilet. He questioned her, but she initially remained silent. After she was caned, PW1 led them to the house of the appellant’s second wife. They searched for the appellant but were unsuccessful, and the matter was reported to the police. PW1 was subsequently taken to Kitale County Hospital for medical attention. PW3 also stated that he had never had any dispute with the appellant.
On cross-examination, PW3 stated that he had known the appellant for a long time and confirmed that PW1 was his daughter. He also refuted claims that his wife had paid the chief any money in relation to a dispute between his wife and the appellant’s wife.
PW4, a clinical officer at Kitale County Hospital, testified that PW1 was examined at the hospital on 29/6/2023. Upon examination, it was observed that her hymen was freshly and partially torn, her labia minora exhibited cuts, bruises, and lacerations, and the area was tender to touch. Urinalysis revealed numerous epithelial cells, indicative of friction. Based on these findings, PW4 formed the opinion that the victim’s vagina had been penetrated recently.
On cross-examination, PW4 stated that the victim’s urine contained an abnormal number of epithelial cells, which he explained is consistent with recent vaginal penetration. He further noted that although blood stains are commonly present when the hymen is partially torn, no blood stains were detected on PW1’s genitalia.
PW5 was a police officer at Kitale Police Station and the investigating officer in this matter. He testified that on 29/6/2023 she received a complaint of defilement. She re-arrested the appellant at Kispongo’s Chief’s Office, recorded statements, and issued PW1 with a duly completed P3 form. Her investigations revealed that PW1 lived near the appellant’s first wife and that the appellant had grabbed her from a latrine near the first wife’s house and taken her to the second wife’s house, which was unoccupied at the time. PW1 further informed her that after the act, the appellant wiped his genitalia with a t-shirt. During the investigation at the second wife’s house, a grey t-shirt with blood stains was recovered. That clothing item was however never produced.
PW5 also produced PW1’s birth certificate as PExh1, which indicated that she was born on 20/1/2010, confirming that she was 13 years old at the time of the incident.
On cross-examination, PW5 stated that the recovered t-shirt bore blood stains as well as a white discharge. She further confirmed that the blood on the t-shirt was not subjected to any medical examination.
The testimony of PW5 marked the close of the prosecution case after which the court was satisfied that a prima facie case had been established and accordingly called upon the accused to present his defense.
The defense called one witness, the appellant himself. In his sworn testimony, he stated that on 27/6/2023, he was at his hotel in Kipsongo, where he fell asleep after preparing food. He recalled hearing noises, and upon stepping out to investigate, he found a crowd accusing him of having defiled a girl. They allegedly told him, “leo hii utatujua vile unaringa na hoteli yako na kutudai madeni.” (Today you will learn a lesson for showing off with your hotel and for demanding that we pay the debts.) He returned to the hotel, finished cooking, and later went to his second wife’s house, where he spent the night. Early the following morning, between 4:00 AM and 5:00 AM, he returned to the hotel and worked with his first wife until 8:00 AM before returning home. Later that day, he claimed, members of the public, accompanied by the area chief, ambushed and beat him, causing his shirt to become blood-stained. He used the shirt to wipe off the blood and was subsequently asked to change into another shirt before being escorted to the police station. The appellant denied the charge of defilement and questioned how the victim could identify him, alleging that she had been blindfolded when carried across the road. He also queried why the victim had not screamed to alert the neighbors.
The appellant further stated that he had differences with PW1’s parents over debts owed to him for electronics he had sold and alleged that they had fabricated the case to avoid repayment.
In challenging the prosecution evidence, the appellant interrogated PW5’s testimony, asserting that a hymen can be broken through normal activities such as walking, playing, or even during medical examination. He also questioned PW4’s evidence, noting that although blood stains were allegedly found in his house, the medic did not detect any blood stains on PW1’s clothing.
On cross-examination, the appellant stated that PW1 had previously been a customer at his hotel, prior to any disagreements between his parents and his younger wife. He testified that on 28/6/2023, the date of the alleged incident, he slept at his younger wife’s house, which was unoccupied at the time as she had gone to her parents’ home. He added that he had taken his younger child to the house for company, and it was at this location that he was arrested. The appellant admitted that the blood on the t-shirt was his. He also reiterated that PW1’s parents owed him Kshs 15,000/=, although he did not possess any documentary proof for the debt.
The appellant’s evidence marked the close of the defense case. Judgment was subsequently delivered on 10/12/2024, convicting the appellant and sentencing him to twenty years’ imprisonment, to run from the date of his arraignment in court.
Dissatisfied with the judgment of the trial court, the appellant has lodged this appeal seeking to have his conviction quashed and the sentence set aside. The appeal is premised on several grounds, among them; that the learned trial magistrate erred in holding that the medical evidence adduced by the clinical officer met the threshold of penetration; that crucial witnesses were never called to testify; that the prosecution failed to discharge its burden of proof; that the prosecution’s evidence was riddled with contradictions and discrepancies; that his evidence was rejected without persuasive reasons and that his mitigation was not considered during sentencing.
The appeal has been argued by way of written submissions, which the court has had the privilege of reading and deriving valuable benefits from. Just a summary will suffice.
Appellant’s Submissions
The appellant first contends that his rights under Article 50(2)(j) of the Constitution were violated, alleging that he was denied access to the evidence upon which the prosecution intended to rely, including statements and documents. He further asserts that he was not informed of the reasons for his arrest.
On the ground that the prosecution evidence was riddled with contradictions and irregularities, the appellant highlights discrepancies concerning the victim’s age. He notes that while PW1 testified that she was born on 20/1/2021, the birth certificate adduced in court indicated 20/1/2010, reflecting that she was 13 years old at the time of the incident. Furthermore, the medical examination report dated 29/6/2023 recorded her age as 12 years. He contends that, pursuant to Article 77(2) of the Constitution and Section 198(1) of the Criminal Procedure Code, such contradictions are material and fatal to the prosecution’s case, and therefore do not support his conviction.
On the ground that the element of penetration was not established, the appellant challenges the failure of the clinical officer to conduct DNA analysis. He argues that such analysis would have conclusively demonstrated whether the victim was defiled by him, as required under Section 17(1) of the Sexual Offences Act, which mandates collection of DNA samples and forensic examination. He further notes that the clinical officer testified that no stains were observed on the victim, who had not changed her clothes prior to examination.
The appellant also submits that the medical evidence adduced was insufficient to sustain a conviction. He emphasizes that the absence of blood stains in PW1’s clothing or on her genitals undermines the prosecution’s claim of penetration.
For these reasons, the appellant prays that the appeal be allowed.
Respondent’s Submissions
On the issue of the victim’s age, the respondent refers the Court to Joseph Kieti Seet v R [2014] eKLR , which in turn cited Francis Omuroni v Uganda Court of Appeal, Criminal Appeal No. 2 of 2000 , observing that age may be established not only through medical evidence, but also by reference to a birth certificate, the testimony of the victim’s parents or guardians, and by observation and common sense.
The respondent further cites Evans Wamalwa Simiyu v R [2019] eKLR , where the Court of Appeal accepted the doctor’s indication of a minor’s approximate age in the P3 form as reflecting the minor’s apparent age.
In the present case, the age recorded in the treatment notes and P3 form, tendered as PExh 2 and PExh 3 respectively, indicated 12 years. The victim’s mother testified that the child was born on 20/11/2011, while the prosecution produced the birth certificate showing 20/1/2010. Given that the incident occurred on 28/6/2023, the victim was therefore approximately 13 years and 6 months old. The respondent submits that the victim’s age has thus been satisfactorily established as falling within the 12-15 years bracket for purposes of sentencing.
On the issue of penetration, the respondent relied on the decision Alex Chemwotei Sakong v R [2018] eKLR , where the Court held that penetration, even if only superficial, satisfies the requirement for establishing the offence; it need not be deep within the vagina, mere partial is sufficient.
The respondent further refers to Kassim Ali v R [2006] eKLR where the Court of Appeal held that the fact of rape may be established through the oral evidence of the victim or by circumstantial evidence. In the present case it contends, PW1 narrated in detail how she was defiled. That she went outside to relieve herself when the appellant grabbed her, led her to his house, threatened her with death, removed her clothes, and forced her to have sexual intercourse. She subsequently led her parents to the appellant’s house but could not get the appellant there. It is then submitted that the evidence of the victim was support by that of the clinical officer who examined the victim and testified that her hymen was fresh and partially torn, the labia minora had cuts and bruises, was tender to touch, and that her urine contained numerous epithelial cells, all consistent with recent sexual penetration.
On the element of identification, the respondent submits that the minor knew her assailant prior to the incident. She testified that he was a neighbour and was able to identify him because he switched on the lights upon arriving at his house. The victim stayed with the appellant for a sufficient duration leaving no room for mistaken identity.
On the allegation that crucial witnesses were not called, the respondent contends that under Section 143 of the Evidence Act, there is no prescribed number of witnesses required to prove a fact. In any event, Section 124 of the Evidence Act allows a conviction to rest on the uncorroborated testimony of the victim. Therefore, no crucial witness was omitted to merit disturbing the conviction.
On the allegations and fault that the appellant’s defense and mitigation were disregarded, the respondent submits that the trial court considered the defense, which was limited to mere denials, was appropriately dismissed it.
On the sentence, the respondent contends that the sentence imposed on the appellant falls within the parameters of Section 8(3) of the Sexual Offences Act and is therefore not excessive.
In light of the foregoing, the respondent prays that the appeal be dismissed.
Issues, Analysis and Determination
The Court has carefully considered the grounds of appeal, the entire record of the lower court, and the submissions of both the appellant and the respondent. From those, and notwithstanding the proliferated grounds of appeal, only two issues are discerned to arise for determination by the court. The issues are:
Whether the prosecution proved, beyond reasonable doubt, the essential ingredients of the offence of defilement; and
Whether the appellant’s rights under Article 50(2)(j) of the Constitution were violated.
Whether the prosecution proved, beyond reasonable doubt, the essential ingredients of the offence of defilement?
Section 8(1) of the Sexual Offences Act stipulates that the offence of defilement is committed when a person commits an act which causes penetration with a child. A child is defined by the Act as any person yet to attain the age of eighteen.
In George Opondo Olunga v Republic [2016] eKLR , the Court held that to sustain a conviction for defilement, the prosecution must prove three key elements; the age of the victim, the fact of penetration; and lastly, the positive identification of the perpetrator.
The centrality of proving the victim’s age was underscored by the Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR, where the Court held that age is an essential ingredient of the offence and significantly influences the prescribed sentence.
The appellant contends that the victim’s age was not conclusively established owing to discrepancies in the documentary and oral evidence. It is stressed that while the treatment notes and P3 Form (PExh2 and PExh3) indicated the victim’s age as 12 years, her mother testified that she was born on 20/11/2011 yet PW5 produced a birth certificate (PExh1) showing that PW1 was born on 20/1/2010. To the appellant, the discrepancies are material and renders the conviction unsafe. The court appreciates that contention to be true only as far as it is factual that the oral testimony by both victim and the mother stand at variance with the certificate of birth. However, the court must give a certificate of birth the weight it deserves. Being an official public document, it cannot be displaced by the oral evidence or indeed the treatment notes based on oral history narrated to the medical officer at the time of treatment.
But in any event, all the versions of the evidence demonstrate the victim to have been a child. The only difference could be the sentence to be attracted had some of that evidence removed the victim from the 12 to 15 years band. Fortunately, all versions leave the child within the same band with the consequence that no prejudice can foreseeably visit the appellant. The court that finds that in so far as the discrepancy in the evidence does not affect the fact of being a child and retains the punishment age band, it is immaterial and thus affects not the conviction and the consequent sentence. Concomitantly, the court finds that the aggregate of evidence on record proved beyond every reasonable doubt that the victim was a child aged between 12 and 15 years old.
On the element of penetration, the court notes the fault on the court by the appellant to be that no medical analysis was done on any samples to connect the appellant with the offence and that no blood stains were seen on the victim. The answer to that complaint is that by definition under the Act penetration need not be complete insertion of the genital organ of the offender into that of the victim. A partial penetration suffices. Moreover, section 17 of the Act compels not DNA analysis. In coming to this holding, the court is guided by the Court of Appeal’s decision in Williamson Sowa Mbwanga v Republic [2016] KECA 147 that DNA evidence, though helpful, is not indispensable in proving defilement.
More crucial is Section 124 of the Evidence Act which qualifies the evidence of a complainant in a sexual offence may, if credible, suffice to sustain a conviction even without corroboration, provided the Court records reasons for believing that the complainant is truthful.
PW1 gave a clear, detailed, and consistent account of how she was accosted, carried to a house, threatened, undressed, and sexually violated by the appellant. She testified that he inserted his penis into her vagina, causing her considerable pain.
This testimony was corroborated by PW4, a clinical officer, who examined PW1 on 29/6/2023. He observed a freshly and partially torn hymen, lacerations and bruising on the labia minora, tenderness, and the presence of numerous epithelial cells indicative of friction. He concluded that these findings were consistent with recent vaginal penetration.
The absence of blood stains or semen on the victim’s genitalia does not negate penetration as alleged by the appellant if the trial court as the master of the facts finds the sole evidence cogent and authentic
On the whole, the medical and oral evidence formed a coherent, mutually reinforcing account that conclusively established penetration.
On the last element, penetration, it is trite that identification must be free from the possibility of error. In Mercy Chelagat v Republic [2022] eKLR , the Court, citing Kariuki Njiru & 7 Others v Republic , reaffirmed that evidence of identification must be carefully scrutinized and accepted only where the Court is satisfied that it is positive and reliable.
Here the appellant disputes PW1’s ability to identify him while arguing that she was blindfolded while being carried. That may not be accurate from the record. However, PW1’s identification of the appellant was by recognition, a category considered more reliable than identification of a stranger. She testified that upon reaching the house, the assailant switched on the lights, enabling her to recognize him as Kennedy Ozone, their neighbor. She further confirmed on cross-examination that she had known him prior to the incident. In any event, the appellant was a neighbour and well known to the victim. The Court is persuaded and fully satisfied that the appellant was positively and reliably identified as the perpetrator.
On Article 50(2)(j) of the Constitution guaranteeing the right of an accused person to be informed in advance of the evidence the prosecution intends to rely upon and to have reasonable access to that evidence, the record shows that on 25/7/2023, the appellant expressly confirmed that he had received the prosecution’s witness statements and a copy of the charge sheet. There cannot be any truth that he was never facilitated as the law demands.
The appellant equally alleges that crucial witnesses were not called but failed to identify such witnesses. The complainant and the medical officer, who were the most material witnesses, testified. The respondent was therefore under no obligation to call cumulative or superfluous witnesses for there is no obligation upon the prosecution on the number of witnesses to be called. The law is that the prosecution enjoys the independence in executing its mandate which entails the discretion on which witnesses to call.
The appellant further contends that his mitigating factors were not considered at the time of sentencing. A review of the record, however, indicates that he informed the court that he was the sole breadwinner, a “good ambassador,” and sought an opportunity for rehabilitation. The trial court, in its sentencing remarks, expressly noted the appellant’s favorable record as reflected in the pre-sentence report and reiterated during mitigation. It is therefore evident that the appellant’s mitigating circumstances were duly taken into account.
Regarding the appellant’s contention that his defense was improperly rejected, the judgment demonstrates that the court considered his account in detail but found it to have been displaced by the weight of the prosecution’s evidence. The court observed that the appellant’s defense amounted largely to a bare denial and was insufficient to undermine the prosecution’s case.
For all the foregoing reasons, the Court is satisfied that the prosecution proved its case beyond reasonable doubt and that the conviction was safe and sentence commensurate.
The appeal is therefore without merit and is hereby dismissed.
Dated, signed and delivered Virtually this 21 st day of November 2025
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IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E012 OF 2025
KENNEDY WAFULA OSORE………………………………..……..………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….…….……….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Tobias O. Omono (RM) in Kitale CMC SO Case No. E107 of 2023)
JUDGMENT
The appellant was arraigned before the Resident Magistrate at Kitale in Sexual Offences Case No. E107 of 2023, charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 28/6/2023 at Kipsongo area within Transnzoia County, the appellant unlawfully and intentionally caused his penis to penetrate the vagina of LC a child aged 13 years.
In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 28/6/2023 at Kipsongo area within Transnzoia County, the appellant unlawfully and intentionally caused contact between his genital organ namely penis and the genital organ namely vagina of LC a child aged 13 years.
The appellant pleaded not guilty to the charge, and the matter proceeded to a full trial where prosecution called a total of five (5) witnesses with a view of proving the case against the appellant beyond reasonable doubt.
Because the complainant was a minor, the trial court conducted a voire dire examination on her and, upon being satisfied that she understood the duty to tell the truth, allowed her to testify on oath.
Having been called as PW1, she stated that she was a Grade 5 pupil at Chetoto Primary School who was born on 20/1/2010. She recalled that on the night of 8/8/2023, while going to relieve herself near a maize plantation close to the toilet, someone suddenly grabbed her and carried her to a house across the road. Upon arrival, the person switched on the lights, and she was able to recognize him as their neighbor, one Kennedy Ozone. He threatened to kill her if she screamed, after which he carried her to the bed, removed her black dress and panty, then removed his trousers, and proceeded to have sex with her, forcefully. She recounted that the appellant inserted his penis into her vagina, causing her significant pain. She remained in the house with him until 11:00 PM, when he instructed her to return home and not to tell anyone about the incident. Upon returning, she found her parents searching for her. They attempted to locate the appellant without success, and she was subsequently taken to the hospital for medical attention.
On cross-examination, PW1 stated that the neighbors were asleep at the time the appellant defiled her. She further testified that upon returning home, her parents beat her, which prompted her to disclose the incident, noting that the appellant had threatened to kill her. She added that the day of the incident was her first day at the appellant’s house although she had previously seen him at their home. She denied any knowledge of a debt her parents were alleged to owe the appellant.
PW2, the victim’s mother, testified that on the night of 28/6/2023, PW1 requested to use the outside toilet and remained absent for over ten minutes, causing her concern. She went outside, called her daughter’s name repeatedly, but received no response. Her neighbor, Peter, woke up and assisted in the search, but to no avail. Later, she encountered two boys near her home who informed her that they had seen PW1, wearing a black dress, walking away. PW1 subsequently appeared and, after being caned, disclosed that someone had grabbed her and led her to a nearby house. She guided her parents and the neighbors to the appellant’s house, but he was not there at the time. The appellant later came to her home, inquiring about the incident. The witness then took PW1 to Kitale County Hospital for medical treatment and later reported the matter at the Kitale Police Station. She confirmed that prior to the incident, she had no disputes with the appellant and stated that PW1 was born on 20/11/2011.
On cross-examination, PW2 denied any dispute between herself and the appellant’s wife. She also refuted claims that the appellant had sold her television and furniture on credit, or that she owed him Kshs 50,000/=. She further testified that when PW1 led them to the appellant’s house that night, they observed a red-stained shirt.
PW3 was the father to PW1. He recalled that on 28/6/2023, at around 10:30 PM, PW1 went outside briefly to relieve herself but took longer than expected. PW2 stepped out to search for her but was unable to locate her. PW3 then woke and, with the assistance of neighbors, conducted a search and eventually found PW1 near the toilet. He questioned her, but she initially remained silent. After she was caned, PW1 led them to the house of the appellant’s second wife. They searched for the appellant but were unsuccessful, and the matter was reported to the police. PW1 was subsequently taken to Kitale County Hospital for medical attention. PW3 also stated that he had never had any dispute with the appellant.
On cross-examination, PW3 stated that he had known the appellant for a long time and confirmed that PW1 was his daughter. He also refuted claims that his wife had paid the chief any money in relation to a dispute between his wife and the appellant’s wife.
PW4, a clinical officer at Kitale County Hospital, testified that PW1 was examined at the hospital on 29/6/2023. Upon examination, it was observed that her hymen was freshly and partially torn, her labia minora exhibited cuts, bruises, and lacerations, and the area was tender to touch. Urinalysis revealed numerous epithelial cells, indicative of friction. Based on these findings, PW4 formed the opinion that the victim’s vagina had been penetrated recently.
On cross-examination, PW4 stated that the victim’s urine contained an abnormal number of epithelial cells, which he explained is consistent with recent vaginal penetration. He further noted that although blood stains are commonly present when the hymen is partially torn, no blood stains were detected on PW1’s genitalia.
PW5 was a police officer at Kitale Police Station and the investigating officer in this matter. He testified that on 29/6/2023 she received a complaint of defilement. She re-arrested the appellant at Kispongo’s Chief’s Office, recorded statements, and issued PW1 with a duly completed P3 form. Her investigations revealed that PW1 lived near the appellant’s first wife and that the appellant had grabbed her from a latrine near the first wife’s house and taken her to the second wife’s house, which was unoccupied at the time. PW1 further informed her that after the act, the appellant wiped his genitalia with a t-shirt. During the investigation at the second wife’s house, a grey t-shirt with blood stains was recovered. That clothing item was however never produced.
PW5 also produced PW1’s birth certificate as PExh1, which indicated that she was born on 20/1/2010, confirming that she was 13 years old at the time of the incident.
On cross-examination, PW5 stated that the recovered t-shirt bore blood stains as well as a white discharge. She further confirmed that the blood on the t-shirt was not subjected to any medical examination.
The testimony of PW5 marked the close of the prosecution case after which the court was satisfied that a prima facie case had been established and accordingly called upon the accused to present his defense.
The defense called one witness, the appellant himself. In his sworn testimony, he stated that on 27/6/2023, he was at his hotel in Kipsongo, where he fell asleep after preparing food. He recalled hearing noises, and upon stepping out to investigate, he found a crowd accusing him of having defiled a girl. They allegedly told him, “leo hii utatujua vile unaringa na hoteli yako na kutudai madeni.” (Today you will learn a lesson for showing off with your hotel and for demanding that we pay the debts.) He returned to the hotel, finished cooking, and later went to his second wife’s house, where he spent the night. Early the following morning, between 4:00 AM and 5:00 AM, he returned to the hotel and worked with his first wife until 8:00 AM before returning home. Later that day, he claimed, members of the public, accompanied by the area chief, ambushed and beat him, causing his shirt to become blood-stained. He used the shirt to wipe off the blood and was subsequently asked to change into another shirt before being escorted to the police station. The appellant denied the charge of defilement and questioned how the victim could identify him, alleging that she had been blindfolded when carried across the road. He also queried why the victim had not screamed to alert the neighbors.
The appellant further stated that he had differences with PW1’s parents over debts owed to him for electronics he had sold and alleged that they had fabricated the case to avoid repayment.
In challenging the prosecution evidence, the appellant interrogated PW5’s testimony, asserting that a hymen can be broken through normal activities such as walking, playing, or even during medical examination. He also questioned PW4’s evidence, noting that although blood stains were allegedly found in his house, the medic did not detect any blood stains on PW1’s clothing.
On cross-examination, the appellant stated that PW1 had previously been a customer at his hotel, prior to any disagreements between his parents and his younger wife. He testified that on 28/6/2023, the date of the alleged incident, he slept at his younger wife’s house, which was unoccupied at the time as she had gone to her parents’ home. He added that he had taken his younger child to the house for company, and it was at this location that he was arrested. The appellant admitted that the blood on the t-shirt was his. He also reiterated that PW1’s parents owed him Kshs 15,000/=, although he did not possess any documentary proof for the debt.
The appellant’s evidence marked the close of the defense case. Judgment was subsequently delivered on 10/12/2024, convicting the appellant and sentencing him to twenty years’ imprisonment, to run from the date of his arraignment in court.
Dissatisfied with the judgment of the trial court, the appellant has lodged this appeal seeking to have his conviction quashed and the sentence set aside. The appeal is premised on several grounds, among them; that the learned trial magistrate erred in holding that the medical evidence adduced by the clinical officer met the threshold of penetration; that crucial witnesses were never called to testify; that the prosecution failed to discharge its burden of proof; that the prosecution’s evidence was riddled with contradictions and discrepancies; that his evidence was rejected without persuasive reasons and that his mitigation was not considered during sentencing.
The appeal has been argued by way of written submissions, which the court has had the privilege of reading and deriving valuable benefits from. Just a summary will suffice.
Appellant’s Submissions
The appellant first contends that his rights under Article 50(2)(j) of the Constitution were violated, alleging that he was denied access to the evidence upon which the prosecution intended to rely, including statements and documents. He further asserts that he was not informed of the reasons for his arrest.
On the ground that the prosecution evidence was riddled with contradictions and irregularities, the appellant highlights discrepancies concerning the victim’s age. He notes that while PW1 testified that she was born on 20/1/2021, the birth certificate adduced in court indicated 20/1/2010, reflecting that she was 13 years old at the time of the incident. Furthermore, the medical examination report dated 29/6/2023 recorded her age as 12 years. He contends that, pursuant to Article 77(2) of the Constitution and Section 198(1) of the Criminal Procedure Code, such contradictions are material and fatal to the prosecution’s case, and therefore do not support his conviction.
On the ground that the element of penetration was not established, the appellant challenges the failure of the clinical officer to conduct DNA analysis. He argues that such analysis would have conclusively demonstrated whether the victim was defiled by him, as required under Section 17(1) of the Sexual Offences Act, which mandates collection of DNA samples and forensic examination. He further notes that the clinical officer testified that no stains were observed on the victim, who had not changed her clothes prior to examination.
The appellant also submits that the medical evidence adduced was insufficient to sustain a conviction. He emphasizes that the absence of blood stains in PW1’s clothing or on her genitals undermines the prosecution’s claim of penetration.
For these reasons, the appellant prays that the appeal be allowed.
Respondent’s Submissions
On the issue of the victim’s age, the respondent refers the Court to Joseph Kieti Seet v R [2014] eKLR , which in turn cited Francis Omuroni v Uganda Court of Appeal, Criminal Appeal No. 2 of 2000 , observing that age may be established not only through medical evidence, but also by reference to a birth certificate, the testimony of the victim’s parents or guardians, and by observation and common sense.
The respondent further cites Evans Wamalwa Simiyu v R [2019] eKLR , where the Court of Appeal accepted the doctor’s indication of a minor’s approximate age in the P3 form as reflecting the minor’s apparent age.
In the present case, the age recorded in the treatment notes and P3 form, tendered as PExh 2 and PExh 3 respectively, indicated 12 years. The victim’s mother testified that the child was born on 20/11/2011, while the prosecution produced the birth certificate showing 20/1/2010. Given that the incident occurred on 28/6/2023, the victim was therefore approximately 13 years and 6 months old. The respondent submits that the victim’s age has thus been satisfactorily established as falling within the 12-15 years bracket for purposes of sentencing.
On the issue of penetration, the respondent relied on the decision Alex Chemwotei Sakong v R [2018] eKLR , where the Court held that penetration, even if only superficial, satisfies the requirement for establishing the offence; it need not be deep within the vagina, mere partial is sufficient.
The respondent further refers to Kassim Ali v R [2006] eKLR where the Court of Appeal held that the fact of rape may be established through the oral evidence of the victim or by circumstantial evidence. In the present case it contends, PW1 narrated in detail how she was defiled. That she went outside to relieve herself when the appellant grabbed her, led her to his house, threatened her with death, removed her clothes, and forced her to have sexual intercourse. She subsequently led her parents to the appellant’s house but could not get the appellant there. It is then submitted that the evidence of the victim was support by that of the clinical officer who examined the victim and testified that her hymen was fresh and partially torn, the labia minora had cuts and bruises, was tender to touch, and that her urine contained numerous epithelial cells, all consistent with recent sexual penetration.
On the element of identification, the respondent submits that the minor knew her assailant prior to the incident. She testified that he was a neighbour and was able to identify him because he switched on the lights upon arriving at his house. The victim stayed with the appellant for a sufficient duration leaving no room for mistaken identity.
On the allegation that crucial witnesses were not called, the respondent contends that under Section 143 of the Evidence Act, there is no prescribed number of witnesses required to prove a fact. In any event, Section 124 of the Evidence Act allows a conviction to rest on the uncorroborated testimony of the victim. Therefore, no crucial witness was omitted to merit disturbing the conviction.
On the allegations and fault that the appellant’s defense and mitigation were disregarded, the respondent submits that the trial court considered the defense, which was limited to mere denials, was appropriately dismissed it.
On the sentence, the respondent contends that the sentence imposed on the appellant falls within the parameters of Section 8(3) of the Sexual Offences Act and is therefore not excessive.
In light of the foregoing, the respondent prays that the appeal be dismissed.
Issues, Analysis and Determination
The Court has carefully considered the grounds of appeal, the entire record of the lower court, and the submissions of both the appellant and the respondent. From those, and notwithstanding the proliferated grounds of appeal, only two issues are discerned to arise for determination by the court. The issues are:
Whether the prosecution proved, beyond reasonable doubt, the essential ingredients of the offence of defilement; and
Whether the appellant’s rights under Article 50(2)(j) of the Constitution were violated.
Whether the prosecution proved, beyond reasonable doubt, the essential ingredients of the offence of defilement?
Section 8(1) of the Sexual Offences Act stipulates that the offence of defilement is committed when a person commits an act which causes penetration with a child. A child is defined by the Act as any person yet to attain the age of eighteen.
In George Opondo Olunga v Republic [2016] eKLR , the Court held that to sustain a conviction for defilement, the prosecution must prove three key elements; the age of the victim, the fact of penetration; and lastly, the positive identification of the perpetrator.
The centrality of proving the victim’s age was underscored by the Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR, where the Court held that age is an essential ingredient of the offence and significantly influences the prescribed sentence.
The appellant contends that the victim’s age was not conclusively established owing to discrepancies in the documentary and oral evidence. It is stressed that while the treatment notes and P3 Form (PExh2 and PExh3) indicated the victim’s age as 12 years, her mother testified that she was born on 20/11/2011 yet PW5 produced a birth certificate (PExh1) showing that PW1 was born on 20/1/2010. To the appellant, the discrepancies are material and renders the conviction unsafe. The court appreciates that contention to be true only as far as it is factual that the oral testimony by both victim and the mother stand at variance with the certificate of birth. However, the court must give a certificate of birth the weight it deserves. Being an official public document, it cannot be displaced by the oral evidence or indeed the treatment notes based on oral history narrated to the medical officer at the time of treatment.
But in any event, all the versions of the evidence demonstrate the victim to have been a child. The only difference could be the sentence to be attracted had some of that evidence removed the victim from the 12 to 15 years band. Fortunately, all versions leave the child within the same band with the consequence that no prejudice can foreseeably visit the appellant. The court that finds that in so far as the discrepancy in the evidence does not affect the fact of being a child and retains the punishment age band, it is immaterial and thus affects not the conviction and the consequent sentence. Concomitantly, the court finds that the aggregate of evidence on record proved beyond every reasonable doubt that the victim was a child aged between 12 and 15 years old.
On the element of penetration, the court notes the fault on the court by the appellant to be that no medical analysis was done on any samples to connect the appellant with the offence and that no blood stains were seen on the victim. The answer to that complaint is that by definition under the Act penetration need not be complete insertion of the genital organ of the offender into that of the victim. A partial penetration suffices. Moreover, section 17 of the Act compels not DNA analysis. In coming to this holding, the court is guided by the Court of Appeal’s decision in Williamson Sowa Mbwanga v Republic [2016] KECA 147 that DNA evidence, though helpful, is not indispensable in proving defilement.
More crucial is Section 124 of the Evidence Act which qualifies the evidence of a complainant in a sexual offence may, if credible, suffice to sustain a conviction even without corroboration, provided the Court records reasons for believing that the complainant is truthful.
PW1 gave a clear, detailed, and consistent account of how she was accosted, carried to a house, threatened, undressed, and sexually violated by the appellant. She testified that he inserted his penis into her vagina, causing her considerable pain.
This testimony was corroborated by PW4, a clinical officer, who examined PW1 on 29/6/2023. He observed a freshly and partially torn hymen, lacerations and bruising on the labia minora, tenderness, and the presence of numerous epithelial cells indicative of friction. He concluded that these findings were consistent with recent vaginal penetration.
The absence of blood stains or semen on the victim’s genitalia does not negate penetration as alleged by the appellant if the trial court as the master of the facts finds the sole evidence cogent and authentic
On the whole, the medical and oral evidence formed a coherent, mutually reinforcing account that conclusively established penetration.
On the last element, penetration, it is trite that identification must be free from the possibility of error. In Mercy Chelagat v Republic [2022] eKLR , the Court, citing Kariuki Njiru & 7 Others v Republic , reaffirmed that evidence of identification must be carefully scrutinized and accepted only where the Court is satisfied that it is positive and reliable.
Here the appellant disputes PW1’s ability to identify him while arguing that she was blindfolded while being carried. That may not be accurate from the record. However, PW1’s identification of the appellant was by recognition, a category considered more reliable than identification of a stranger. She testified that upon reaching the house, the assailant switched on the lights, enabling her to recognize him as Kennedy Ozone, their neighbor. She further confirmed on cross-examination that she had known him prior to the incident. In any event, the appellant was a neighbour and well known to the victim. The Court is persuaded and fully satisfied that the appellant was positively and reliably identified as the perpetrator.
On Article 50(2)(j) of the Constitution guaranteeing the right of an accused person to be informed in advance of the evidence the prosecution intends to rely upon and to have reasonable access to that evidence, the record shows that on 25/7/2023, the appellant expressly confirmed that he had received the prosecution’s witness statements and a copy of the charge sheet. There cannot be any truth that he was never facilitated as the law demands.
The appellant equally alleges that crucial witnesses were not called but failed to identify such witnesses. The complainant and the medical officer, who were the most material witnesses, testified. The respondent was therefore under no obligation to call cumulative or superfluous witnesses for there is no obligation upon the prosecution on the number of witnesses to be called. The law is that the prosecution enjoys the independence in executing its mandate which entails the discretion on which witnesses to call.
The appellant further contends that his mitigating factors were not considered at the time of sentencing. A review of the record, however, indicates that he informed the court that he was the sole breadwinner, a “good ambassador,” and sought an opportunity for rehabilitation. The trial court, in its sentencing remarks, expressly noted the appellant’s favorable record as reflected in the pre-sentence report and reiterated during mitigation. It is therefore evident that the appellant’s mitigating circumstances were duly taken into account.
Regarding the appellant’s contention that his defense was improperly rejected, the judgment demonstrates that the court considered his account in detail but found it to have been displaced by the weight of the prosecution’s evidence. The court observed that the appellant’s defense amounted largely to a bare denial and was insufficient to undermine the prosecution’s case.
For all the foregoing reasons, the Court is satisfied that the prosecution proved its case beyond reasonable doubt and that the conviction was safe and sentence commensurate.
The appeal is therefore without merit and is hereby dismissed.
Dated, signed and delivered Virtually this 21 st day of November 2025
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