1. The Appellant was charged before the trial court with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on 7th December 2018, at about 5.00 am at Kalungu village Ndetani sub location Endau location in Mutitu district within Kitui County the Appellant intentionally caused his penis to penetrate the vagina of KJ, a child aged about 9 years.
2. In the alternative, the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the alternative charge were that on 7th December 2018, at about 5.00 am at Kalungu village Ndetani sub location Endau location in Mutitu district within Kitui County the Appellant intentionally touched the vagina and thighs of KJ.
3. The prosecution called five witnesses in support of its case. PW1, the complainant, KJ, testified that on 7th December 2018 she had been staying at the house of the Appellant's mother together with other children. She stated that the Appellant was also at the house. At about 6.00 a.m., she woke up and found the Appellant on top of her. She stated that she felt pain and that the Appellant subsequently got up and left. She subsequently reported the matter to her parents and was escorted to hospital for examination and to the police station where the matter was reported.
4. PW2, Winfred Kanyiva John, testified that the complainant was her daughter born on 09th March 2008. She recalled that on 7th December 2018 at about 5.00 a.m., she had gone out for a short call when she saw the complainant at the gate and called out her name, asking where she had left the other children. She further reported that she had felt pain and that, upon waking up, she found the Appellant on top of her, after which he got up and she ran away. She complained of pain in her vagina. The witness said she examined the complainant and observed that she was bleeding from the vagina, was walking with difficulty and that her pants were blood-stained. She informed the complainant’s father, who took her to hospital and subsequently to the police station. She identified the Appellant as her cousin and stated that she had no grudge against him, nor did she know whether he had any disagreement with her husband. She showed the court the complainant’s green tight-fitting trousers which had blood stains and explained that the blouse she had been wearing was not taken to the police.
5. PW3, John Mulonzya, testified that the complainant was his daughter. He stated that on 7th December 2018 at about 6.00 a.m., he arrived home and found his wife making noise. Upon asking what had happened, he was referred to the complainant, who told him that she had woken up and found the Appellant on top of her and had felt pain. He observed that the complainant was bleeding and was walking with difficulty.
6. He stated that the complainant was taken to hospital and the matter was subsequently reported to the police. He accompanied her to Mwitike Dispensary where she was medically examined. The P3 form and PRC form were prepared following the examination. He stated that the incident affected the complainant’s performance at school and identified the Appellant as his neighbour, against whom he had no grudge.
7. PW4, the investigating officer, testified that on 7th December 2018 he received a report concerning the alleged defilement of the complainant. He commenced investigations, recorded statements from the witnesses and took the complainant for medical examination. He stated that the Appellant was subsequently arrested and charged with the offence. The witness tendered the complainant's birth certificate PEXH. 2 showing she was born on 09th March 2008.
8. PW5, Damaris Nzigoya, a registered clinical officer, stated that in 2018 she was stationed at Mwutia Health Centre, where she examined the complainant on 8th December 2018 after she had been referred from Endau Police Station. On examination, she noted minimal lacerations on the labia minora, a broken hymen and watery vaginal discharge with bloodstains. She produced the PRC form dated 8th December 2018 as PExh. 4 and the P3 form also dated 8th December 2018 as PExh. 5, and concluded that the findings were consistent with defilement.
9. The Appellant in his unsworn defence denied committing the offence and stated that the complaint had arisen from a dispute concerning money which he claimed was owed by complainant’s parents to him for work he had performed.
10. The Appellant’s mother, Elizabeth Nzioka Nzomo, testified confirmed that the complainant used to sleep at her house. She stated that on the material night, the complainant and other children slept in a different room from the Appellant. The following morning, the children’s parents came and raised the allegation against that the Appellant had defiled the complainant.
11. The trial court considered the evidence before it and found the prosecution case proved beyond reasonable doubt. The Appellant was convicted on the main count on 17th February 2022 and was sentenced to life imprisonment on 9th March 2022.
12. Aggrieved by the conviction and sentence, the Appellant lodged an appeal on 1st August 2023 against both the conviction and sentence on the following grounds:
1) That the learned trial magistrate erred in law and fact in finding that the prosecution had proved its case beyond reasonable doubt.
2) That the learned trial magistrate erred in law and fact in failing to properly evaluate and analyse the evidence adduced by the prosecution.
3) That the learned trial magistrate erred in law and fact in relying on evidence which was insufficient to sustain the conviction.
4) That the learned trial magistrate erred in law and fact in failing to give due consideration to the Appellant’s defence.
5) That the learned trial magistrate erred in law and fact in convicting the Appellant notwithstanding the contradictions and inconsistencies in the prosecution evidence.
6) That the learned trial magistrate erred in law and fact in imposing a sentence of life imprisonment.
13. The appeal was argued by way of written submissions. By written submissions dated 10th June 2026, the Appellant submitted that the prosecution failed to prove the charge beyond reasonable doubt and challenged the evidence on penetration, identification, failure to call material witnesses, failure to subject him to medical examination, the alleged contradictions and gaps in the prosecution case, and the manner in which his defence was treated by the trial court. He urged the Court to find that the cumulative effect of those matters rendered the conviction unsafe.
14. By written submissions dated 20th July 2026, the Respondent opposed the appeal and submitted that the prosecution had proved all the ingredients of defilement beyond reasonable doubt, namely the age of the complainant, penetration and identification of the Appellant. The Respondent further submitted that the absence of medical examination of the Appellant, the failure to call the alleged material witnesses and the alleged inconsistencies did not affect the prosecution case, while the complainant’s evidence was properly admitted and considered under section 124 of the Evidence Act. On sentence, the Respondent submitted that the life imprisonment imposed was the sentence prescribed under section 8(2) of the Sexual Offences Act, the complainant having been nine years old at the time of the offence, and urged the Court to dismiss the appeal.
15. As a first appellate court, this Court is required to subject the evidence on record to a fresh and exhaustive examination, reconsider and re-evaluate it and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The Court must nevertheless give due allowance to the trial court’s advantage of having observed the witnesses and assessed their demeanour. This duty was stated by the Court of Appeal in Okeno v Republic [1972] EA 32.
16. Having considered the grounds of appeal, the evidence adduced before the trial court, the respective submissions and the applicable law, this Court finds the following issues for determination:
1) Whether the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt
2) Whether the failure to call the other children who were present in the house affected the prosecution case.
3) Whether the failure to subject the Appellant to medical examination affected the prosecution case.
4) Whether there were contradictions and inconsistencies in the prosecution evidence
5) Whether the trial court properly considered and evaluated the Appellant’s defence.
6) Whether the sentence imposed by the trial court was lawful and proper
17. The first issue for determination is whether the prosecution proved the ingredients of defilement beyond reasonable doubt. This Court has considered the charge, the evidence on record, the grounds of appeal and the submissions made on this issue. The ingredients requiring proof were the age of the complainant, penetration and identification of the perpetrator.
18. The complainant’s birth certificate, PExh. 2, showed that she was born on 9th March 2008. The offence was committed on 7th December 2018, when she was therefore 10 years old. Her age was consequently proved beyond reasonable doubt and brought the offence within section 8(2) of the Sexual Offences Act.
19. On penetration, the complainant testified that on 7th December 2018 at about 5.00 a.m., while asleep, she felt pain in her vagina and, upon waking, saw the Appellant on top of her. She was examined on 8th December 2018. The PRC form dated 8th December 2018 was produced as PExh. 4 and the P3 form, also dated 8th December 2018, as PExh. 5. The medical findings included minimal lacerations of the labia minora, a broken hymen and watery discharge with bloodstains, which were consistent with defilement. Penetration was therefore established.
20. The issue of identification is more contested. In Roria v Republic [1967] EA 583, the Court of Appeal cautioned that evidence of a single identifying witness must be tested with the greatest care where the circumstances of identification are difficult. In the present case, the complainant was not identifying a stranger. She knew the Appellant before the incident and, importantly, the Appellant’s own mother confirmed in her evidence that the complainant used to sleep in their house. The complainant was therefore familiar with the Appellant and his home. Her evidence was that she woke at about 5.00 a.m. after feeling pain, saw the Appellant on top of her and recognised him with the aid of torchlight. This prior familiarity substantially reduced the possibility of a mistaken identification.
21. In Wamunga v Republic [1989] KECA 47 (KLR),the Court of Appeal emphasised that identification evidence must be examined in light of the circumstances in which the witness observed the person identified. Here, the complainant was in the Appellant’s house, a place with which she was familiar, and the person she identified was someone she already knew. The evidence of the Appellant’s mother that the complainant used to sleep in their house independently confirmed that familiarity. The identification was therefore by recognition of a person known to the complainant, rather than identification of a stranger encountered for the first time.
22. In Maitanyi v Republic [1986] KECA 39 (KLR),the Court of Appeal stressed the need to examine the conditions under which identification was made, including the available lighting. The complainant stated that she saw the Appellant with the aid of torchlight. Although the incident occurred at about 5.00 a.m. and she had been asleep, she stated that she saw the Appellant at close range while he was on top of her. The Court has taken those circumstances into account, together with her prior familiarity with him and the fact, confirmed by his mother, that she used to sleep in their house.
23. R v Turnbull [1976] 3 All ER 549 requires consideration of matters such as the duration of observation, distance, lighting, obstruction and whether the witness previously knew the person identified. Applying those considerations, the complainant was in close proximity to the Appellant, there was torchlight, no obstruction was suggested, and she had prior familiarity with him. Her presence in the Appellant’s house was itself not unusual, as his mother confirmed that she used to sleep there. The circumstances therefore provided a sound basis for recognition.
24. This Court is satisfied that the complainant’s evidence identifying the Appellant was reliable. The trial magistrate was therefore entitled to accept that evidence and find that the Appellant was the person who committed the act complained of.
25. The second issue is whether the failure to call the other children who were present in the house affected the prosecution case. The complainant stated that she had been sleeping in the house with other children. The evidence of the father, who arrived at the home shortly thereafter, also referred to the presence of the other children and to the fact that they had been left crying. The prosecution did not call those children as witnesses.
26. The Appellant relied on Bukenya & Others v Uganda [1972] EA 549, where the Court held that where the prosecution fails to call material witnesses without explanation, the court may, in appropriate circumstances, draw an adverse inference that their evidence would have been unfavourable to the prosecution. That principle does not, though, establish an automatic rule that failure to call every person who may have witnessed part of an occurrence renders a conviction unsafe. The question is whether the omitted witnesses were material to the determination of the case and whether their absence left a significant evidential gap.
27. In this case, the other children were said to have been sleeping in the same house. Their evidence could potentially have assisted the court on what occurred in the house, whether they heard any commotion and the circumstances immediately before and after the incident. The prosecution did not provide an explanation for their failure to testify. Nevertheless, the complainant herself gave direct evidence of the act and identified the Appellant as the person who was on top of her. Her evidence was supported by the medical findings made the following day. The absence of the other children did not therefore leave the prosecution case without evidence on the essential ingredients of the offence. While their evidence would have been useful, the Court does not consider their non-calling, in the circumstances of this case, sufficient to warrant an adverse inference that the prosecution case was false or that the conviction was thereby rendered unsafe.
28. The third issue concerns the failure to subject the Appellant to medical examination. It is common ground that the Appellant was not medically examined. The Respondent expressly conceded this position but submitted that such examination was not one of the essential ingredients of defilement. The Appellant, on the other hand, submitted that the omission was significant because medical examination could have produced evidence linking him to the alleged offence.
29. The Court of Appeal in Ngui v Republic [2014] KECA 570 (KLR) relied upon by the Appellant, considered the importance of linking medical evidence of penetration to the person alleged to have committed the act. The Appellant also relied on Ali v Republic [2006] KECA 156 (KLR) for the proposition that where scientific evidence is available and capable of assisting the court, it should, where practicable, be obtained and presented.
30. The failure to examine the Appellant was plainly an investigative omission. A medical examination could potentially have yielded evidence capable of either linking him to the offence or excluding him. That said, the law does not make examination of the accused a mandatory ingredient of proof of defilement. The prosecution is required to prove the ingredients of the offence through the evidence available to it, and not necessarily through medical examination of the accused. In the present case, the prosecution relied principally on the complainant's evidence of recognition and the medical evidence concerning her injuries. The absence of medical examination of the Appellant did not, without more, displace that evidence.
31. The fourth issue is whether there were contradictions and inconsistencies in the prosecution evidence of such a nature as to create a reasonable doubt. The Appellant challenged, among other matters, the evidence concerning how the complainant's clothes were removed without her noticing, the absence of forensic examination and the fact that the other children did not appear to have raised an alarm. These matters must be considered in the context of the entire evidence rather than in isolation.
32. The evidence shows that the complainant was asleep when the incident commenced and that she woke after experiencing pain. Her evidence was that she then found the Appellant on top of her. The fact that she did not describe every stage by which her clothing came to be removed does not necessarily contradict her evidence that she was asleep and only became conscious of what was happening after feeling pain. Similarly, the absence of forensic examination or biological evidence is not a contradiction in the testimony of any witness; it is an omission in the investigation.
33. The Court of Appeal authorities relied upon by the Appellant, including Sawe v Republic [2003] KECA 182 (KLR) emphasise that suspicion, however strong, cannot form the basis of a criminal conviction. That principle is not disputed. The conviction in this case, though, was not based merely on suspicion. It rested on the complainant's evidence, her identification of the Appellant, the evidence of the circumstances immediately after the incident and the contemporaneous medical findings. The matters raised by the Appellant do not amount to material contradictions going to the substance of the prosecution case. The fourth issue is therefore resolved against the Appellant.
34. The fifth issue is whether the trial court properly considered and evaluated the Appellant's defence. The Appellant's mother, Elizabeth Nzioka Nzomo, testified that the complainant used to sleep in her house and that, on the material occasion, the Appellant was in the house together with the children. The Appellant's case was that he had been framed and that there was a dispute arising from his previous work for the complainant's family. The defence therefore required consideration alongside the prosecution evidence rather than dismissal merely because it was inconsistent with the prosecution case.
35. The duty of a trial court to consider the defence was emphasised in Okethi Okale & Others v Republic [1965] EA 555, where the Court of Appeal held that a court must weigh the defence against the prosecution evidence and give reasons for rejecting it. The Respondent submitted that the trial magistrate considered the defence and found it to be a mere denial which did not displace the prosecution evidence. The Appellant, on the other hand, maintained that the defence was dismissed without proper analysis.
36. Having reconsidered the evidence, the defence did not provide a satisfactory explanation for the complainant's evidence that she woke up and found the Appellant on top of her, nor did it account for the medical findings made on 8th December 2018. The fact that the complainant was accustomed to sleeping in the house did not, by itself, establish that the Appellant committed no offence. The defence was therefore considered against the prosecution evidence and, when weighed against the direct account of the complainant and the medical evidence, it did not raise a reasonable doubt.
37. The sixth issue is whether the sentence imposed by the trial court was lawful and proper. The record shows that the Appellant was convicted of the main count on 17th February 2022 and was sentenced to life imprisonment on 9th March 2022. The particulars alleged that the complainant was aged nine years at the time of the offence. Section 8(2) of the Sexual Offences Act, as applicable to a child aged eleven years or less, prescribed life imprisonment upon conviction. The age proved by the birth certificate placed the complainant within that category. The sentence imposed was therefore within the statutory provision applicable to the offence proved. The sixth issue is resolved against the Appellant.
38. In the result, the appeal against conviction and sentence is dismissed. The conviction entered on 17th February 2022 and the sentence of life imprisonment imposed on 9th March 2022 are upheld.
2. In the alternative, the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of the alternative charge were that on 7th December 2018, at about 5.00 am at Kalungu village Ndetani sub location Endau location in Mutitu district within Kitui County the Appellant intentionally touched the vagina and thighs of KJ.
3. The prosecution called five witnesses in support of its case. PW1, the complainant, KJ, testified that on 7th December 2018 she had been staying at the house of the Appellant's mother together with other children. She stated that the Appellant was also at the house. At about 6.00 a.m., she woke up and found the Appellant on top of her. She stated that she felt pain and that the Appellant subsequently got up and left. She subsequently reported the matter to her parents and was escorted to hospital for examination and to the police station where the matter was reported.
4. PW2, Winfred Kanyiva John, testified that the complainant was her daughter born on 09th March 2008. She recalled that on 7th December 2018 at about 5.00 a.m., she had gone out for a short call when she saw the complainant at the gate and called out her name, asking where she had left the other children. She further reported that she had felt pain and that, upon waking up, she found the Appellant on top of her, after which he got up and she ran away. She complained of pain in her vagina. The witness said she examined the complainant and observed that she was bleeding from the vagina, was walking with difficulty and that her pants were blood-stained. She informed the complainant’s father, who took her to hospital and subsequently to the police station. She identified the Appellant as her cousin and stated that she had no grudge against him, nor did she know whether he had any disagreement with her husband. She showed the court the complainant’s green tight-fitting trousers which had blood stains and explained that the blouse she had been wearing was not taken to the police.
5. PW3, John Mulonzya, testified that the complainant was his daughter. He stated that on 7th December 2018 at about 6.00 a.m., he arrived home and found his wife making noise. Upon asking what had happened, he was referred to the complainant, who told him that she had woken up and found the Appellant on top of her and had felt pain. He observed that the complainant was bleeding and was walking with difficulty.
6. He stated that the complainant was taken to hospital and the matter was subsequently reported to the police. He accompanied her to Mwitike Dispensary where she was medically examined. The P3 form and PRC form were prepared following the examination. He stated that the incident affected the complainant’s performance at school and identified the Appellant as his neighbour, against whom he had no grudge.
7. PW4, the investigating officer, testified that on 7th December 2018 he received a report concerning the alleged defilement of the complainant. He commenced investigations, recorded statements from the witnesses and took the complainant for medical examination. He stated that the Appellant was subsequently arrested and charged with the offence. The witness tendered the complainant's birth certificate PEXH. 2 showing she was born on 09th March 2008.
8. PW5, Damaris Nzigoya, a registered clinical officer, stated that in 2018 she was stationed at Mwutia Health Centre, where she examined the complainant on 8th December 2018 after she had been referred from Endau Police Station. On examination, she noted minimal lacerations on the labia minora, a broken hymen and watery vaginal discharge with bloodstains. She produced the PRC form dated 8th December 2018 as PExh. 4 and the P3 form also dated 8th December 2018 as PExh. 5, and concluded that the findings were consistent with defilement.
9. The Appellant in his unsworn defence denied committing the offence and stated that the complaint had arisen from a dispute concerning money which he claimed was owed by complainant’s parents to him for work he had performed.
10. The Appellant’s mother, Elizabeth Nzioka Nzomo, testified confirmed that the complainant used to sleep at her house. She stated that on the material night, the complainant and other children slept in a different room from the Appellant. The following morning, the children’s parents came and raised the allegation against that the Appellant had defiled the complainant.
11. The trial court considered the evidence before it and found the prosecution case proved beyond reasonable doubt. The Appellant was convicted on the main count on 17th February 2022 and was sentenced to life imprisonment on 9th March 2022.
12. Aggrieved by the conviction and sentence, the Appellant lodged an appeal on 1st August 2023 against both the conviction and sentence on the following grounds:
1) That the learned trial magistrate erred in law and fact in finding that the prosecution had proved its case beyond reasonable doubt.
2) That the learned trial magistrate erred in law and fact in failing to properly evaluate and analyse the evidence adduced by the prosecution.
3) That the learned trial magistrate erred in law and fact in relying on evidence which was insufficient to sustain the conviction.
4) That the learned trial magistrate erred in law and fact in failing to give due consideration to the Appellant’s defence.
5) That the learned trial magistrate erred in law and fact in convicting the Appellant notwithstanding the contradictions and inconsistencies in the prosecution evidence.
6) That the learned trial magistrate erred in law and fact in imposing a sentence of life imprisonment.
13. The appeal was argued by way of written submissions. By written submissions dated 10th June 2026, the Appellant submitted that the prosecution failed to prove the charge beyond reasonable doubt and challenged the evidence on penetration, identification, failure to call material witnesses, failure to subject him to medical examination, the alleged contradictions and gaps in the prosecution case, and the manner in which his defence was treated by the trial court. He urged the Court to find that the cumulative effect of those matters rendered the conviction unsafe.
14. By written submissions dated 20th July 2026, the Respondent opposed the appeal and submitted that the prosecution had proved all the ingredients of defilement beyond reasonable doubt, namely the age of the complainant, penetration and identification of the Appellant. The Respondent further submitted that the absence of medical examination of the Appellant, the failure to call the alleged material witnesses and the alleged inconsistencies did not affect the prosecution case, while the complainant’s evidence was properly admitted and considered under section 124 of the Evidence Act. On sentence, the Respondent submitted that the life imprisonment imposed was the sentence prescribed under section 8(2) of the Sexual Offences Act, the complainant having been nine years old at the time of the offence, and urged the Court to dismiss the appeal.
15. As a first appellate court, this Court is required to subject the evidence on record to a fresh and exhaustive examination, reconsider and re-evaluate it and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. The Court must nevertheless give due allowance to the trial court’s advantage of having observed the witnesses and assessed their demeanour. This duty was stated by the Court of Appeal in Okeno v Republic [1972] EA 32.
16. Having considered the grounds of appeal, the evidence adduced before the trial court, the respective submissions and the applicable law, this Court finds the following issues for determination:
1) Whether the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt
2) Whether the failure to call the other children who were present in the house affected the prosecution case.
3) Whether the failure to subject the Appellant to medical examination affected the prosecution case.
4) Whether there were contradictions and inconsistencies in the prosecution evidence
5) Whether the trial court properly considered and evaluated the Appellant’s defence.
6) Whether the sentence imposed by the trial court was lawful and proper
17. The first issue for determination is whether the prosecution proved the ingredients of defilement beyond reasonable doubt. This Court has considered the charge, the evidence on record, the grounds of appeal and the submissions made on this issue. The ingredients requiring proof were the age of the complainant, penetration and identification of the perpetrator.
18. The complainant’s birth certificate, PExh. 2, showed that she was born on 9th March 2008. The offence was committed on 7th December 2018, when she was therefore 10 years old. Her age was consequently proved beyond reasonable doubt and brought the offence within section 8(2) of the Sexual Offences Act.
19. On penetration, the complainant testified that on 7th December 2018 at about 5.00 a.m., while asleep, she felt pain in her vagina and, upon waking, saw the Appellant on top of her. She was examined on 8th December 2018. The PRC form dated 8th December 2018 was produced as PExh. 4 and the P3 form, also dated 8th December 2018, as PExh. 5. The medical findings included minimal lacerations of the labia minora, a broken hymen and watery discharge with bloodstains, which were consistent with defilement. Penetration was therefore established.
20. The issue of identification is more contested. In Roria v Republic [1967] EA 583, the Court of Appeal cautioned that evidence of a single identifying witness must be tested with the greatest care where the circumstances of identification are difficult. In the present case, the complainant was not identifying a stranger. She knew the Appellant before the incident and, importantly, the Appellant’s own mother confirmed in her evidence that the complainant used to sleep in their house. The complainant was therefore familiar with the Appellant and his home. Her evidence was that she woke at about 5.00 a.m. after feeling pain, saw the Appellant on top of her and recognised him with the aid of torchlight. This prior familiarity substantially reduced the possibility of a mistaken identification.
21. In Wamunga v Republic [1989] KECA 47 (KLR),the Court of Appeal emphasised that identification evidence must be examined in light of the circumstances in which the witness observed the person identified. Here, the complainant was in the Appellant’s house, a place with which she was familiar, and the person she identified was someone she already knew. The evidence of the Appellant’s mother that the complainant used to sleep in their house independently confirmed that familiarity. The identification was therefore by recognition of a person known to the complainant, rather than identification of a stranger encountered for the first time.
22. In Maitanyi v Republic [1986] KECA 39 (KLR),the Court of Appeal stressed the need to examine the conditions under which identification was made, including the available lighting. The complainant stated that she saw the Appellant with the aid of torchlight. Although the incident occurred at about 5.00 a.m. and she had been asleep, she stated that she saw the Appellant at close range while he was on top of her. The Court has taken those circumstances into account, together with her prior familiarity with him and the fact, confirmed by his mother, that she used to sleep in their house.
23. R v Turnbull [1976] 3 All ER 549 requires consideration of matters such as the duration of observation, distance, lighting, obstruction and whether the witness previously knew the person identified. Applying those considerations, the complainant was in close proximity to the Appellant, there was torchlight, no obstruction was suggested, and she had prior familiarity with him. Her presence in the Appellant’s house was itself not unusual, as his mother confirmed that she used to sleep there. The circumstances therefore provided a sound basis for recognition.
24. This Court is satisfied that the complainant’s evidence identifying the Appellant was reliable. The trial magistrate was therefore entitled to accept that evidence and find that the Appellant was the person who committed the act complained of.
25. The second issue is whether the failure to call the other children who were present in the house affected the prosecution case. The complainant stated that she had been sleeping in the house with other children. The evidence of the father, who arrived at the home shortly thereafter, also referred to the presence of the other children and to the fact that they had been left crying. The prosecution did not call those children as witnesses.
26. The Appellant relied on Bukenya & Others v Uganda [1972] EA 549, where the Court held that where the prosecution fails to call material witnesses without explanation, the court may, in appropriate circumstances, draw an adverse inference that their evidence would have been unfavourable to the prosecution. That principle does not, though, establish an automatic rule that failure to call every person who may have witnessed part of an occurrence renders a conviction unsafe. The question is whether the omitted witnesses were material to the determination of the case and whether their absence left a significant evidential gap.
27. In this case, the other children were said to have been sleeping in the same house. Their evidence could potentially have assisted the court on what occurred in the house, whether they heard any commotion and the circumstances immediately before and after the incident. The prosecution did not provide an explanation for their failure to testify. Nevertheless, the complainant herself gave direct evidence of the act and identified the Appellant as the person who was on top of her. Her evidence was supported by the medical findings made the following day. The absence of the other children did not therefore leave the prosecution case without evidence on the essential ingredients of the offence. While their evidence would have been useful, the Court does not consider their non-calling, in the circumstances of this case, sufficient to warrant an adverse inference that the prosecution case was false or that the conviction was thereby rendered unsafe.
28. The third issue concerns the failure to subject the Appellant to medical examination. It is common ground that the Appellant was not medically examined. The Respondent expressly conceded this position but submitted that such examination was not one of the essential ingredients of defilement. The Appellant, on the other hand, submitted that the omission was significant because medical examination could have produced evidence linking him to the alleged offence.
29. The Court of Appeal in Ngui v Republic [2014] KECA 570 (KLR) relied upon by the Appellant, considered the importance of linking medical evidence of penetration to the person alleged to have committed the act. The Appellant also relied on Ali v Republic [2006] KECA 156 (KLR) for the proposition that where scientific evidence is available and capable of assisting the court, it should, where practicable, be obtained and presented.
30. The failure to examine the Appellant was plainly an investigative omission. A medical examination could potentially have yielded evidence capable of either linking him to the offence or excluding him. That said, the law does not make examination of the accused a mandatory ingredient of proof of defilement. The prosecution is required to prove the ingredients of the offence through the evidence available to it, and not necessarily through medical examination of the accused. In the present case, the prosecution relied principally on the complainant's evidence of recognition and the medical evidence concerning her injuries. The absence of medical examination of the Appellant did not, without more, displace that evidence.
31. The fourth issue is whether there were contradictions and inconsistencies in the prosecution evidence of such a nature as to create a reasonable doubt. The Appellant challenged, among other matters, the evidence concerning how the complainant's clothes were removed without her noticing, the absence of forensic examination and the fact that the other children did not appear to have raised an alarm. These matters must be considered in the context of the entire evidence rather than in isolation.
32. The evidence shows that the complainant was asleep when the incident commenced and that she woke after experiencing pain. Her evidence was that she then found the Appellant on top of her. The fact that she did not describe every stage by which her clothing came to be removed does not necessarily contradict her evidence that she was asleep and only became conscious of what was happening after feeling pain. Similarly, the absence of forensic examination or biological evidence is not a contradiction in the testimony of any witness; it is an omission in the investigation.
33. The Court of Appeal authorities relied upon by the Appellant, including Sawe v Republic [2003] KECA 182 (KLR) emphasise that suspicion, however strong, cannot form the basis of a criminal conviction. That principle is not disputed. The conviction in this case, though, was not based merely on suspicion. It rested on the complainant's evidence, her identification of the Appellant, the evidence of the circumstances immediately after the incident and the contemporaneous medical findings. The matters raised by the Appellant do not amount to material contradictions going to the substance of the prosecution case. The fourth issue is therefore resolved against the Appellant.
34. The fifth issue is whether the trial court properly considered and evaluated the Appellant's defence. The Appellant's mother, Elizabeth Nzioka Nzomo, testified that the complainant used to sleep in her house and that, on the material occasion, the Appellant was in the house together with the children. The Appellant's case was that he had been framed and that there was a dispute arising from his previous work for the complainant's family. The defence therefore required consideration alongside the prosecution evidence rather than dismissal merely because it was inconsistent with the prosecution case.
35. The duty of a trial court to consider the defence was emphasised in Okethi Okale & Others v Republic [1965] EA 555, where the Court of Appeal held that a court must weigh the defence against the prosecution evidence and give reasons for rejecting it. The Respondent submitted that the trial magistrate considered the defence and found it to be a mere denial which did not displace the prosecution evidence. The Appellant, on the other hand, maintained that the defence was dismissed without proper analysis.
36. Having reconsidered the evidence, the defence did not provide a satisfactory explanation for the complainant's evidence that she woke up and found the Appellant on top of her, nor did it account for the medical findings made on 8th December 2018. The fact that the complainant was accustomed to sleeping in the house did not, by itself, establish that the Appellant committed no offence. The defence was therefore considered against the prosecution evidence and, when weighed against the direct account of the complainant and the medical evidence, it did not raise a reasonable doubt.
37. The sixth issue is whether the sentence imposed by the trial court was lawful and proper. The record shows that the Appellant was convicted of the main count on 17th February 2022 and was sentenced to life imprisonment on 9th March 2022. The particulars alleged that the complainant was aged nine years at the time of the offence. Section 8(2) of the Sexual Offences Act, as applicable to a child aged eleven years or less, prescribed life imprisonment upon conviction. The age proved by the birth certificate placed the complainant within that category. The sentence imposed was therefore within the statutory provision applicable to the offence proved. The sixth issue is resolved against the Appellant.
38. In the result, the appeal against conviction and sentence is dismissed. The conviction entered on 17th February 2022 and the sentence of life imprisonment imposed on 9th March 2022 are upheld.