JUDGMENT
Being an Appeal against the Judgment of Chief Magistrate’s Court at Malindi Hon. I. Thamara Resident Magistrate delivered on 15 th July, 2025)
The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act. The particulars of the offence are that on diverse dates between 11 th and 12 th February, 2024 at Mijomboni Village, Gede Location in Malindi Sub-County within Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of J.K.J a child aged 16 years. In the alternative, the appellant was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars were that on diverse dates between 11 th and 12 th February, 2024 at Mijomboni Village, Gede Location in Malindi Sub-County within Kilifi County the he intentionally and unlawfully touched the vagina of J.K.J a child aged 16 years with his penis.
The appellant pleaded not guilty to the charges and the matter proceed for hearing with the prosecution calling four witnesses. The Appellant was placed on his defence. He gave a sworn statement and did not call any witness. In a judgement delivered on 15 th July, 2025, the trial magistrate found the Appellant guilty of the main charge of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve fifteen (15) years. The Appellant aggrieved by the conviction and sentence of the trial court has preferred this appeal.
The appellant has raised several grounds of appeal to wit:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove their case beyond reasonable doubt as required by the law in the breach of section 109 and 110 of the evidence act.
2. The learned trial magistrate erred in law and fact by failing to consider sharp contradiction by the prosecution in contravention of section 163 (1) (c) of the evidence act.
3. That the trial magistrate erred in law and facts by failing to consider that the element of penetration and identification were not proven according to the threshold required by the law.
4. That the learned trial magistrate erred in law and facts by failing to appreciate the negligence and ignorance of the police service unit.
5. That the learned trial magistrate erred in law and facts by adequate denying my alibi defence evidence.
Prosecution case
The prosecution case briefly is that PW1, J.K.J, testified that the appellant sent her Kshs. 400 as fare and told her to visit him at Gede. On a Sunday, she went to church and left church at 10.00 am and then boarded a motor vehicle and went to his house at Gede. They had a chat and also had sex. She testified that the did “tendo la ngono”. She left and got to her home at 8.00pm. Her father and brother asked her where she was coming from and she responded that she was coming from the Kenny’s place. Her brother called the appellant who confirmed that she was with him. She told her mother where she was and what she had done. Her mother, who according to her is harsh, stated that she would punish her. It is then that she planned to go back to Kenny’s house. He sent her money again. Though she slept at home, she left at 4.00am and went to Gede. She called the appellant when she got to Gede and asked him to pick her up. He picked her up and they went to his home. The appellant left and his mother took tea and mandazi to her. The appellant did not take long. He returned. The appellant told her that his parents would report the matter to the police and they would also ask her parents to pick her up. Later on, the appellant’s grandmother knocked and informed her that police officers, her mother, father and Aunty Mercy had arrived. The all went to the police station together with the appellant. They recorded statements and she was taken to the hospital. In cross examination, she testified that she knew the appellant as her boyfriend. They met for the first time in 2020 and the next time she saw him was on 10 th February, 2024. She testified that were it not for the appellant, she would not have gone to his home. It was her further testimony that the appellant should have thought before calling her, a student, to his home. In re-examination, she testified that the appellant bought her a phone and she had his number.
A clinician at Gede Sub-County Hospital Elijah Bidii Ambani testified as PW2. He examined PW1 and produced a P3 Form filled by him. His findings were that she had a minor cut, she had an infection and her hymen was not intact. He testified that the findings were not different from those in the Treatment Notes. The Treatment Notes state that vaginal examination showed that PW1 had a minor cut on the lower part of the external genitalia and her hymen was not intact. He further testified that PW1 was examined a day after the alleged act of defilement.
PW3 the mother of the complainant testified that on 11 th February, 2024 she at work when the complainant called her and asked for fare. She sent her the same. Later in the evening she was told by her son that the complainant had not returned home. She started searching for her. She also sent her son Lucky to look for her. Later Lucky spotted the complainant along the road around 7pm. The complainant claimed she was from prayers. When pressed on where she was she said she was in her boyfriend’s home by Ken whom they would talk on phone. The following day she went missing again. She reported the matter to the police and the complainant was later traced at the appellant’s home. The appellant was arrested and the complainant was taken to Malindi hospital for examination.
PW4 P.C Mercy Muigai attached at Gede Police post testified that she was assigned this case to investigate. She interrogated the complainant’s parents who told her that the complainant was staying at her boyfriend’s home. In the company of his colleagues and the complainant’s parents they went to the appellant’s where they found the complainant and the appellant in the house. They were both arrested and taken to the station for further interrogation. She recorded the complainant’s statement and that of her mother. She issued her with a P3 Form which was filled at Malindi General Hospital. She also obtained the original birth certificate of the complainant showing that she was aged 16 years old. In cross-examination she reiterated that the complainant was found in the appellant’s house.
Defence case
The accused in his sworn statement stated that on 12 th February, 2024 he was in his house listening to radio when he heard the door being knocked. He saw police officer with a girl. The officers asked him whether he knew the girl which he denied. He was then arrested and taken to the police station where he spent two nights. He was later told that he had defiled the girl which he denied. He said he saw the complainant for the first time when the police officer came with her at his home.
Appellants submissions
The appellant submitted that the prosecution failed to establish the ingredients of the offence. He attacked proof the age of the complainant and submitted that the trial court erred in finding that there was sufficient proof of age. He referred to the birth certificate which was marked exhibit 1 which indicates the name of the complainant as Joy Kasichana yet PW1 stated her name as Joyce Kasichana . He further submitted that PW3 the complainant’s mother in her testimony before the trial court stated the complainants name as Joyce Kasichana . He further argued that PW3 stated her name as Margaret Zulungi yet the birth certificate stated that the complainant’s mother is called Margaret Dama Kazungu . It is his submission that the trial court failed to note the names of the complainant and her mother were different from the names indicated in the birth certificate.
The appellant criticized the trial court finding on penetration arguing that according to PW1 she stated that she was lured by the appellant in July, 2023 but the particulars of the charge indicated that the offence was committed on diverse dates between 11 th and 12 th February, 2024. To the appellant the discrepancy between the evidence of the complainant and the particulars of the charge as to the date of the offence leaves the element of penetration unproved. He further submitted that the element of penetration was not corroborated by the medical evidence because PW2 did not examine the complainant but only filled the P3 Form. As such the medical evidence adduced by PW2 was of no evidential value.
On identification, the appellant argued that the only evidence produced in the trial court was that of the complainant only. He noted that the complainant stated that she knew him back in 2020 and the next time they met was when they allegedly had sex. Further, the complainant failed to show up in court to testify several times and showed up a year later in court and thus he believed she was actually pushed to testify against him and the trial court failed to take note of the same. The appellant stated that he took plea on 14 th February, 2024 and the complainant testified on 16 th October, 2024 when the matter was slated for a mention instead of a hearing. The Appellant further submitted that, during cross-examination, the Complainant candidly admitted that the reason for her attendance before the trial court to testify was that her parents had informed her that the matter was being followed up, thereby raising pertinent questions as to the voluntariness, independence, and probative nature of her testimony.
The Appellant further submitted that there were material contradiction in the prosecution case. He pointed out that the particulars of the charge were in contradiction with the evidence of the complainant in that the complainant talked of meeting the appellant in July, 2023 contrary to the allegations that the offence was committed between 11 th and 12 th of February, 2024. He also pointed out that there was contradiction as to the names in the birth certificate and the names the complainant and her mother introduced themselves to the court during their testimony. He further challenged the medical evidence produced in court on the basis that PW2 who produced the P3 Form is not the one who examined the complainant. The appellant further submitted that the prosecution failure to call one Lucky the complainant’s brother was fatal. He also challenged the finding of the trial court for failure to take note why the complainant took so long to come to court to testify.
The appellant urges this court to make a finding that the prosecution’s case was riddled with too many inconsistencies and contradictions and that it failed to discharge the burden placed on it. He relied on Section 107 (1) of the Evidence Act and the scope of principles in Woolmington V DPP (1935) and as stated by Lord Denning J in Miller V Minister of Pensions (1974).
Respondent’s submissions
The respondent on the other hand submitted that the prosecution proved all the essential ingredients of the offence of defilement. On identification of the appellant as the perpetrator the respondent submitted that the appellant was well known to the complainant having been in relationship since 2020. Further it is submitted that the complainant was found with the appellant in his house by the police and therefore there cannot be chances of mistaken identity.
Regarding the age of the complainant, the respondent submitted that the complainant testimony that she was aged 16 years was corroborated by the production of birth certificate confirming that the complainant was born on 11 th May, 2007 putting her age at 16 years as at the time of the offence.
On penetration the respondent submitted that the complainant oral evidence that she engaged in sexual intercourse with the appellant was not only not rebutted but the same was corroborated by the medical evidence adduced by PW2 in form of treatment notes and P3 Form which confirmed that there was a cut on her genitalia and that the hymen was broken.
On contradictions alleged by the appellant, the respondent submitted that there were no material contradiction so as to affect the case presented by the prosecution.
On failure by the trial court to interrogate the appellant’s defence of alibi, it is the submission of the respondent that the prosecution witnesses placed that appellant at the scene and the same was not disapproved by the appellant. It the respondent’s submission that the appellant’s defence of alibi is an afterthought and that the trial court correctly dismissed the same.
Analysis and determination.
This being a first appeal, the duty of the court is to re-evaluate and analyze the evidence adduced before the trial court to reach its own independent decision of course warning itself that it did not have the benefit of hearing and seeing the witnesses testify. This principle is laid down in the case of Okeno vs Republic (1972) E.A 32 where the court held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witness testify.”
Bearing the foregoing in mind, it is the duty of the court to determine whether the prosecution has proved its case against the appellant beyond reasonable doubt. What is prove beyond reasonable doubt was stated by Lord Denning in the case of Miller vs Minister of Pension (1947)2 All ER 372 as follows:
“That degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond shadow of a doubt. The law would fail to protect community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only remote possibility in his favour which can be dismissed by a sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short will suffice.”
In this case the appellant was charged with defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. Section 8(1) of the Act which creates the offence of defilement provides:
“8(1) Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
Section 8(4) of the Act provides:
“8(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.”
In considering the foregoing provisions the court in the case of Simon Oloo vs Republic (2022)e KLR set out the essential ingredients which the prosecution must establish to sustain a conviction in a defilement case. The court held:
“To sustain a conviction in a defilement charge, certain elements must be proved beyond reasonable doubt. The first element is whether there was penetration of the complainant’s genitalia; second is whether the complainant is a child and of what age; and finally whether the penetration was done by the Appellant.”
Regarding the age of the of the complainant, the trial court found that at the time the complainant testified she was aged 17 years. Her mother also told the court that she was 16 years old. A birth certificate was produced in court showing that the complainant was born on 11 th May, 2007. The offence is alleged to have been committed on 11 th and 12 th February, 2024. This puts the age of the complainant at about 16 years and 9 months. To that extent the trial cannot be faulted on its finding on the issue of the age of the complainant. The appellant argued that there was discrepancy on the names in the birth certificate as regards the complainant and PW3. According to him the name of the complainant in the birth certificate is indicated as Joy Kasichana contrary to the name she introduced herself when giving evidence as Joyce Kasichana. He also alleged that PW3 name in the birth certificate is indicated as Margaret Dama Kazungu contrary to the name she introduced herself when giving evidence to wit, Margaret Zulungi. Having noted the foregoing and having re-evaluated the evidence adduced before the trial court, I find that the mere discrepancy in the names in the birth certificate did not at all negate that the complainant was aged 16 years and 9 months at the time of the offence much as the trial court did not dwell on that discrepancy.
On penetration the trial court found that the same had been proved by the evidence of the complainant corroborated by the medical evidence. I have reviewed the evidence tendered before the trial court. The complainant in her testimony told the court that the appellant lured her to his house and they had sex. This evidence is corroborated by the medical evidence adduced by PW2 who produced the medical records showing that upon examination the complainant was found to have a minor cut on her genitalia and that the hymen was broken. Moreso, it is the evidence of the prosecution that at the time of the arrest of the appellant he was found in the house with the complainant. Much as the appellant argued that the complainant in her evidence talked of incident of July, 2023, there is overwhelming evidence that the complainant and the appellant were in a relationship which dated back to 2020 according to evidence by the complainant. I therefore find that the trial court cannot be faulted by holding that there was penetration into the complainant’s genital organs by the genital organ of the appellant.
On identification, there was overwhelming evidence before the trial court that the appellant and the complainant were known to each other. The complainant was found in the appellant’s house at the time of the arrest of the appellant. Chances of mistaken identity of the appellant as the perpetrator are very remote. The finding of the trial court on identification cannot be faulted.
The appellant argued that the prosecution case was riddled with contradiction which the trial court did not address. The Court of Appeal in the case of Jackson Mwanzia Musembi vs Republic (2017)e KLR cited with approval the Ugandan case of Twahangane Alfred vs Uganda Cr. Appeal No. 139 of 2002 (2003)UGCA 6 on how to treat contradictions in a case where it was stated:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessary lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
In the instant case the appellant argued that the particulars in the charge sheet were in variance with the evidence of the complainant as to when the offence was committed. He argued that the particulars talked of 11 th and 12 th February, 2024 whereas the complainant alluded to July, 2023 as the time when the appellant send her fare. The appellant further challenged the discrepancy of the names of the complainant and PW3 in the birth certificate. These contradictions looked in totality with the evidence adduced by the prosecution during the trial do not in any way affect the prosecution case that the appellant defiled the complainant. I say so because, there is overwhelming evidence that the appellant and complainant were in a relationship dating back to 2020. The complainant was found in the appellant’s house. All this was not rebutted by the appellant.
The appellant argued that the trial court did not consider his defence of alibi. I agree with the appellant that the trial court in its judgment did not say anything about the appellant’s defence. This court having the duty to re-evaluate the evidence and reach its own finding, I have considered the defence raised by the appellant and the same is a mere denial. His testimony that he had not met the complainant before he was arrested looked against the evidence adduced by the prosecution, is a red-herring and an afterthought.
On the sentence, the appellant was charged under Section 8(1) read with Section 8(4) of the Sexual Offences Act. Sub-section (4) of the Sexual Offences Act provides for sentence to be imposed where the victim is between the age of sixteen and eighteen years. The sentence provided is imprisonment of not less than fifteen years. The appellant was sentenced to serve fifteen years which is the minimum sentence provided. The sentence is therefore lawful.
The upshot of the foregoing is that I find the appeal by the appellant unmerited and the same is dismissed. The conviction and sentence are hereby upheld.
Dated, signed and delivered virtually this 26 th day of May, 2026
F.N Kyambia J
Read out virtually in presence of:
1. Appellant appearing virtually
2. Ms Mutua for respondent appearing virtually
3. Ms. Millicent Otwo court assistant appearing physically.
Being an Appeal against the Judgment of Chief Magistrate’s Court at Malindi Hon. I. Thamara Resident Magistrate delivered on 15 th July, 2025)
The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act. The particulars of the offence are that on diverse dates between 11 th and 12 th February, 2024 at Mijomboni Village, Gede Location in Malindi Sub-County within Kilifi County he intentionally and unlawfully caused his penis to penetrate the vagina of J.K.J a child aged 16 years. In the alternative, the appellant was charged with the offence of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars were that on diverse dates between 11 th and 12 th February, 2024 at Mijomboni Village, Gede Location in Malindi Sub-County within Kilifi County the he intentionally and unlawfully touched the vagina of J.K.J a child aged 16 years with his penis.
The appellant pleaded not guilty to the charges and the matter proceed for hearing with the prosecution calling four witnesses. The Appellant was placed on his defence. He gave a sworn statement and did not call any witness. In a judgement delivered on 15 th July, 2025, the trial magistrate found the Appellant guilty of the main charge of defilement contrary to Section 8 (1) as read with Section 8 (4) of the Sexual Offences Act and accordingly convicted him and subsequently sentenced him to serve fifteen (15) years. The Appellant aggrieved by the conviction and sentence of the trial court has preferred this appeal.
The appellant has raised several grounds of appeal to wit:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove their case beyond reasonable doubt as required by the law in the breach of section 109 and 110 of the evidence act.
2. The learned trial magistrate erred in law and fact by failing to consider sharp contradiction by the prosecution in contravention of section 163 (1) (c) of the evidence act.
3. That the trial magistrate erred in law and facts by failing to consider that the element of penetration and identification were not proven according to the threshold required by the law.
4. That the learned trial magistrate erred in law and facts by failing to appreciate the negligence and ignorance of the police service unit.
5. That the learned trial magistrate erred in law and facts by adequate denying my alibi defence evidence.
Prosecution case
The prosecution case briefly is that PW1, J.K.J, testified that the appellant sent her Kshs. 400 as fare and told her to visit him at Gede. On a Sunday, she went to church and left church at 10.00 am and then boarded a motor vehicle and went to his house at Gede. They had a chat and also had sex. She testified that the did “tendo la ngono”. She left and got to her home at 8.00pm. Her father and brother asked her where she was coming from and she responded that she was coming from the Kenny’s place. Her brother called the appellant who confirmed that she was with him. She told her mother where she was and what she had done. Her mother, who according to her is harsh, stated that she would punish her. It is then that she planned to go back to Kenny’s house. He sent her money again. Though she slept at home, she left at 4.00am and went to Gede. She called the appellant when she got to Gede and asked him to pick her up. He picked her up and they went to his home. The appellant left and his mother took tea and mandazi to her. The appellant did not take long. He returned. The appellant told her that his parents would report the matter to the police and they would also ask her parents to pick her up. Later on, the appellant’s grandmother knocked and informed her that police officers, her mother, father and Aunty Mercy had arrived. The all went to the police station together with the appellant. They recorded statements and she was taken to the hospital. In cross examination, she testified that she knew the appellant as her boyfriend. They met for the first time in 2020 and the next time she saw him was on 10 th February, 2024. She testified that were it not for the appellant, she would not have gone to his home. It was her further testimony that the appellant should have thought before calling her, a student, to his home. In re-examination, she testified that the appellant bought her a phone and she had his number.
A clinician at Gede Sub-County Hospital Elijah Bidii Ambani testified as PW2. He examined PW1 and produced a P3 Form filled by him. His findings were that she had a minor cut, she had an infection and her hymen was not intact. He testified that the findings were not different from those in the Treatment Notes. The Treatment Notes state that vaginal examination showed that PW1 had a minor cut on the lower part of the external genitalia and her hymen was not intact. He further testified that PW1 was examined a day after the alleged act of defilement.
PW3 the mother of the complainant testified that on 11 th February, 2024 she at work when the complainant called her and asked for fare. She sent her the same. Later in the evening she was told by her son that the complainant had not returned home. She started searching for her. She also sent her son Lucky to look for her. Later Lucky spotted the complainant along the road around 7pm. The complainant claimed she was from prayers. When pressed on where she was she said she was in her boyfriend’s home by Ken whom they would talk on phone. The following day she went missing again. She reported the matter to the police and the complainant was later traced at the appellant’s home. The appellant was arrested and the complainant was taken to Malindi hospital for examination.
PW4 P.C Mercy Muigai attached at Gede Police post testified that she was assigned this case to investigate. She interrogated the complainant’s parents who told her that the complainant was staying at her boyfriend’s home. In the company of his colleagues and the complainant’s parents they went to the appellant’s where they found the complainant and the appellant in the house. They were both arrested and taken to the station for further interrogation. She recorded the complainant’s statement and that of her mother. She issued her with a P3 Form which was filled at Malindi General Hospital. She also obtained the original birth certificate of the complainant showing that she was aged 16 years old. In cross-examination she reiterated that the complainant was found in the appellant’s house.
Defence case
The accused in his sworn statement stated that on 12 th February, 2024 he was in his house listening to radio when he heard the door being knocked. He saw police officer with a girl. The officers asked him whether he knew the girl which he denied. He was then arrested and taken to the police station where he spent two nights. He was later told that he had defiled the girl which he denied. He said he saw the complainant for the first time when the police officer came with her at his home.
Appellants submissions
The appellant submitted that the prosecution failed to establish the ingredients of the offence. He attacked proof the age of the complainant and submitted that the trial court erred in finding that there was sufficient proof of age. He referred to the birth certificate which was marked exhibit 1 which indicates the name of the complainant as Joy Kasichana yet PW1 stated her name as Joyce Kasichana . He further submitted that PW3 the complainant’s mother in her testimony before the trial court stated the complainants name as Joyce Kasichana . He further argued that PW3 stated her name as Margaret Zulungi yet the birth certificate stated that the complainant’s mother is called Margaret Dama Kazungu . It is his submission that the trial court failed to note the names of the complainant and her mother were different from the names indicated in the birth certificate.
The appellant criticized the trial court finding on penetration arguing that according to PW1 she stated that she was lured by the appellant in July, 2023 but the particulars of the charge indicated that the offence was committed on diverse dates between 11 th and 12 th February, 2024. To the appellant the discrepancy between the evidence of the complainant and the particulars of the charge as to the date of the offence leaves the element of penetration unproved. He further submitted that the element of penetration was not corroborated by the medical evidence because PW2 did not examine the complainant but only filled the P3 Form. As such the medical evidence adduced by PW2 was of no evidential value.
On identification, the appellant argued that the only evidence produced in the trial court was that of the complainant only. He noted that the complainant stated that she knew him back in 2020 and the next time they met was when they allegedly had sex. Further, the complainant failed to show up in court to testify several times and showed up a year later in court and thus he believed she was actually pushed to testify against him and the trial court failed to take note of the same. The appellant stated that he took plea on 14 th February, 2024 and the complainant testified on 16 th October, 2024 when the matter was slated for a mention instead of a hearing. The Appellant further submitted that, during cross-examination, the Complainant candidly admitted that the reason for her attendance before the trial court to testify was that her parents had informed her that the matter was being followed up, thereby raising pertinent questions as to the voluntariness, independence, and probative nature of her testimony.
The Appellant further submitted that there were material contradiction in the prosecution case. He pointed out that the particulars of the charge were in contradiction with the evidence of the complainant in that the complainant talked of meeting the appellant in July, 2023 contrary to the allegations that the offence was committed between 11 th and 12 th of February, 2024. He also pointed out that there was contradiction as to the names in the birth certificate and the names the complainant and her mother introduced themselves to the court during their testimony. He further challenged the medical evidence produced in court on the basis that PW2 who produced the P3 Form is not the one who examined the complainant. The appellant further submitted that the prosecution failure to call one Lucky the complainant’s brother was fatal. He also challenged the finding of the trial court for failure to take note why the complainant took so long to come to court to testify.
The appellant urges this court to make a finding that the prosecution’s case was riddled with too many inconsistencies and contradictions and that it failed to discharge the burden placed on it. He relied on Section 107 (1) of the Evidence Act and the scope of principles in Woolmington V DPP (1935) and as stated by Lord Denning J in Miller V Minister of Pensions (1974).
Respondent’s submissions
The respondent on the other hand submitted that the prosecution proved all the essential ingredients of the offence of defilement. On identification of the appellant as the perpetrator the respondent submitted that the appellant was well known to the complainant having been in relationship since 2020. Further it is submitted that the complainant was found with the appellant in his house by the police and therefore there cannot be chances of mistaken identity.
Regarding the age of the complainant, the respondent submitted that the complainant testimony that she was aged 16 years was corroborated by the production of birth certificate confirming that the complainant was born on 11 th May, 2007 putting her age at 16 years as at the time of the offence.
On penetration the respondent submitted that the complainant oral evidence that she engaged in sexual intercourse with the appellant was not only not rebutted but the same was corroborated by the medical evidence adduced by PW2 in form of treatment notes and P3 Form which confirmed that there was a cut on her genitalia and that the hymen was broken.
On contradictions alleged by the appellant, the respondent submitted that there were no material contradiction so as to affect the case presented by the prosecution.
On failure by the trial court to interrogate the appellant’s defence of alibi, it is the submission of the respondent that the prosecution witnesses placed that appellant at the scene and the same was not disapproved by the appellant. It the respondent’s submission that the appellant’s defence of alibi is an afterthought and that the trial court correctly dismissed the same.
Analysis and determination.
This being a first appeal, the duty of the court is to re-evaluate and analyze the evidence adduced before the trial court to reach its own independent decision of course warning itself that it did not have the benefit of hearing and seeing the witnesses testify. This principle is laid down in the case of Okeno vs Republic (1972) E.A 32 where the court held:
“All this has been explained time and again that the appellate court is mandated to analyze and re-evaluate the evidence before the trial court, independently, to draw its own conclusions of course without overlooking or disregarding the findings made by the trial court and bear in mind that unlike the trial court it does not have the advantage of hearing and seeing the witness testify.”
Bearing the foregoing in mind, it is the duty of the court to determine whether the prosecution has proved its case against the appellant beyond reasonable doubt. What is prove beyond reasonable doubt was stated by Lord Denning in the case of Miller vs Minister of Pension (1947)2 All ER 372 as follows:
“That degree is well settled. It need not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond shadow of a doubt. The law would fail to protect community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only remote possibility in his favour which can be dismissed by a sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt but nothing short will suffice.”
In this case the appellant was charged with defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act. Section 8(1) of the Act which creates the offence of defilement provides:
“8(1) Any person who commits an act causing penetration with a child is guilty of an offence called defilement.”
Section 8(4) of the Act provides:
“8(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.”
In considering the foregoing provisions the court in the case of Simon Oloo vs Republic (2022)e KLR set out the essential ingredients which the prosecution must establish to sustain a conviction in a defilement case. The court held:
“To sustain a conviction in a defilement charge, certain elements must be proved beyond reasonable doubt. The first element is whether there was penetration of the complainant’s genitalia; second is whether the complainant is a child and of what age; and finally whether the penetration was done by the Appellant.”
Regarding the age of the of the complainant, the trial court found that at the time the complainant testified she was aged 17 years. Her mother also told the court that she was 16 years old. A birth certificate was produced in court showing that the complainant was born on 11 th May, 2007. The offence is alleged to have been committed on 11 th and 12 th February, 2024. This puts the age of the complainant at about 16 years and 9 months. To that extent the trial cannot be faulted on its finding on the issue of the age of the complainant. The appellant argued that there was discrepancy on the names in the birth certificate as regards the complainant and PW3. According to him the name of the complainant in the birth certificate is indicated as Joy Kasichana contrary to the name she introduced herself when giving evidence as Joyce Kasichana. He also alleged that PW3 name in the birth certificate is indicated as Margaret Dama Kazungu contrary to the name she introduced herself when giving evidence to wit, Margaret Zulungi. Having noted the foregoing and having re-evaluated the evidence adduced before the trial court, I find that the mere discrepancy in the names in the birth certificate did not at all negate that the complainant was aged 16 years and 9 months at the time of the offence much as the trial court did not dwell on that discrepancy.
On penetration the trial court found that the same had been proved by the evidence of the complainant corroborated by the medical evidence. I have reviewed the evidence tendered before the trial court. The complainant in her testimony told the court that the appellant lured her to his house and they had sex. This evidence is corroborated by the medical evidence adduced by PW2 who produced the medical records showing that upon examination the complainant was found to have a minor cut on her genitalia and that the hymen was broken. Moreso, it is the evidence of the prosecution that at the time of the arrest of the appellant he was found in the house with the complainant. Much as the appellant argued that the complainant in her evidence talked of incident of July, 2023, there is overwhelming evidence that the complainant and the appellant were in a relationship which dated back to 2020 according to evidence by the complainant. I therefore find that the trial court cannot be faulted by holding that there was penetration into the complainant’s genital organs by the genital organ of the appellant.
On identification, there was overwhelming evidence before the trial court that the appellant and the complainant were known to each other. The complainant was found in the appellant’s house at the time of the arrest of the appellant. Chances of mistaken identity of the appellant as the perpetrator are very remote. The finding of the trial court on identification cannot be faulted.
The appellant argued that the prosecution case was riddled with contradiction which the trial court did not address. The Court of Appeal in the case of Jackson Mwanzia Musembi vs Republic (2017)e KLR cited with approval the Ugandan case of Twahangane Alfred vs Uganda Cr. Appeal No. 139 of 2002 (2003)UGCA 6 on how to treat contradictions in a case where it was stated:
“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessary lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”
In the instant case the appellant argued that the particulars in the charge sheet were in variance with the evidence of the complainant as to when the offence was committed. He argued that the particulars talked of 11 th and 12 th February, 2024 whereas the complainant alluded to July, 2023 as the time when the appellant send her fare. The appellant further challenged the discrepancy of the names of the complainant and PW3 in the birth certificate. These contradictions looked in totality with the evidence adduced by the prosecution during the trial do not in any way affect the prosecution case that the appellant defiled the complainant. I say so because, there is overwhelming evidence that the appellant and complainant were in a relationship dating back to 2020. The complainant was found in the appellant’s house. All this was not rebutted by the appellant.
The appellant argued that the trial court did not consider his defence of alibi. I agree with the appellant that the trial court in its judgment did not say anything about the appellant’s defence. This court having the duty to re-evaluate the evidence and reach its own finding, I have considered the defence raised by the appellant and the same is a mere denial. His testimony that he had not met the complainant before he was arrested looked against the evidence adduced by the prosecution, is a red-herring and an afterthought.
On the sentence, the appellant was charged under Section 8(1) read with Section 8(4) of the Sexual Offences Act. Sub-section (4) of the Sexual Offences Act provides for sentence to be imposed where the victim is between the age of sixteen and eighteen years. The sentence provided is imprisonment of not less than fifteen years. The appellant was sentenced to serve fifteen years which is the minimum sentence provided. The sentence is therefore lawful.
The upshot of the foregoing is that I find the appeal by the appellant unmerited and the same is dismissed. The conviction and sentence are hereby upheld.
Dated, signed and delivered virtually this 26 th day of May, 2026
F.N Kyambia J
Read out virtually in presence of:
1. Appellant appearing virtually
2. Ms Mutua for respondent appearing virtually
3. Ms. Millicent Otwo court assistant appearing physically.