1. The appellant, Kuti Mulwa, was charged with the offence of defilement contrary to Section 8((1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 30th day of January 2021 at around 1300hrs, in Kyanzai Sub-location, Kenze Location, Nzambani Sub-County within Kitui County, the appellant intentionally caused his penis to penetrate the vagina of CM, a child aged 4 years.
2. In the alternative, the appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that on the same date, time and place, he intentionally touched the buttocks, breasts, anus and vagina of CM with his hands.
3. At the trial on 22nd March 2021, the trial magistrate conducted a voire dire examination and, on account of the complainant’s tender age, ruled that she was not possessed of sufficient intelligence to understand the nature of an oath and would accordingly give unsworn evidence. Upon being recalled on 24th July 2023, the complainant testified that she was a Class 1 pupil at Kinzani Primary School and that, in 2021, she lived with her grandmother and attended school throughout the year without missing any day. Regarding 30th January 2021, she denied going home for lunch but acknowledged that she was examined by a doctor at a later date, although he did not tell her that she was unwell. The complainant acknowledged that some bad things had been done to her but could not identify the person responsible. She denied being locked in a house, explaining that she had only heard about the matter and would not be able to recognise the person involved.
4. PW2, Ngule Katula, stated that he had been married to the mother of the complainant and that the appellant had taken her away. He stated that he was later called by a teacher from Kanzee Primary School, who informed him that the child was injured and needed to be taken to hospital. He stated that he instructed the child's sister to take her to hospital, and that he himself did not go to the hospital but instead took the child to the police station. He testified that the police informed him that the child had been defiled, and that the child had stated that it was Kuti who had defiled her.
5. PW3, Jackline Makau, a clinical officer at Inyuu Health Centre, testified in Kiswahili after being duly sworn. She recalled attending to the complainant, at the health facility on 26th February 2021 and stated that the child was aged four years. She produced the outpatient record as PExh. 1. She explained that the child had initially been seen at the facility on 5th February 2021 with complaints of pain on passing urine and had given a history of having been defiled approximately four months earlier. Upon examination, she found that the injury was not fresh and that there were no bruises or other injuries to the labia. A urinalysis revealed the presence of pus cells, which could have been caused by poor hygiene or a sexual act, and the results were produced as PExh. 2. She also produced the age assessment report as PExh. 3, which placed the complainant’s age at four years, and the P3 form dated 5th February 2021 as PExh. 4. The form recorded a broken hymen, with no discharge or bruising, and indicated that the injury was approximately four months old. She noted that the child’s clothes and inner wear had no blood stains. The Post-Rape Care Form was produced as PExh. 5, while an appointment card from Kitui Hospital together with the accompanying receipts was produced as PExh. 6. She further recalled that when the child returned to the facility on 18th March 2021, she continued to complain of pain on passing urine and in the lower abdomen. She tested negative for HIV and venereal syphilis.
6. PW4, PMK, stated that the complainant was her sister. She testified that the complainant had told her that she was suffering and wished to return to their grandmother’s home, where she had previously lived with their mother. At the time, the complainant was living with Mwikali and Samson. Mwikali had previously been married to Munyoki and later to the appellant. According to the witness, Mwikali informed her that the appellant had raped the complainant. She consequently took the complainant to their grandmother’s home, but their mother, who had been following them, arrived and took the child away.
7. The witness further testified that a teacher later telephoned her and informed her that the complainant was experiencing abdominal pain and had disclosed that the appellant had defiled her.
8. PW5, Samuel Musyimi, testified that he was the Assistant Chief of Kyamba Sub-location. Upon receiving information from the Headteacher of Kutheni Primary School that the complainant had been defiled by her father, he escorted her to the police station and later witnessed the arrest of the appellant.
9. PW6, Francisca Kitheka, a teacher at Kinzeni Primary School, testified that on 5th February 2021, the complainant was taken to the school by a lady who reported that she had been defiled by her stepfather.
10. PW7, a teacher at Kenze Nursery School, testified that on 22nd January 2021, she noticed that the complainant appeared sickly. She sent for the complainant’s mother, who went to the school and took the complainant away.
11. PW8, Kiprono Korir and PW9, PC Austin Mutembei testified that on 6th February 2021, the complainant’s grandmother reported that the appellant had defiled the complainant upon which they arrested the appellant on the same date.
12. The appellant, Kuti Mulwa, gave sworn evidence and testified that in January 2020 he was working at Royal Hotel, Kitui, where he met a middle-aged woman seeking employment who left her particulars as Kanini Mulwa. He did not disclose her to his employer but later contacted her and informed her that there was no vacancy, although he knew of another employment opportunity. Kanini told him that she lived at Majengo, Kitui, was unmarried and had three children. He visited her at her home and disclosed that his wife had left him because of his drinking and that he was looking for another mature woman like her. They subsequently began a relationship in June and married in February 2020. At the time, Kanini was living with her daughter, the complainant herein.
13. The appellant further testified that he and Kanini later went to her parents’ home with the complainant, where they met Mulwa Mwanza and Kangwele Mulwa. He informed them that he had married Kanini and sought permission to take her children with him, but was informed that the children were not available. In July 2020, he was summoned to the chief’s office, where he found Chief Kitonga Mulandi and Assistant Chief Samuel Musyimi in the company of Ngule Katula (PW2) and two of Kanini’s children, whom he did not know. Kanini explained that she had previously been married to PW2, who had no son, and confirmed that the two children accompanying PW2 were hers. He was informed that PW2 wanted Kanini and her children to return home, but this did not happen.
14. It was Appellant’s evidence that on 4th August 2020, he travelled to Nairobi and secured employment at Tumaini Hotel in Kayole, where he worked until September. During that period, he sent money home and remained in communication with his wife and the complainant. He did not question Kanini about the marriage because she was pregnant.
15. The Appellant further stated that in January 2021, he enrolled the complainant at Kinzeni Primary School, where her siblings attended. One evening, his wife informed him that the complainant had been taken by her sister, PW4, to PW2’s home. He recalled that on 5th February 2021, while at home, the chief arrived with a police officer and arrested him on an allegation of rape before taking him to the police station. His wife was subsequently brought to the station and placed in a cell, where Mwanza and other officers, together with a lady, were called. She explained that she had taken the complainant from school and left her there, and denied that the appellant had defiled the complainant in October and January. She also stated that she did not wish to return to Kaweto. She was subsequently released, while the appellant was taken to Nzambani Police Station on 6th February 2021 and thereafter to Kitui Police Station, where he was charged. He maintained that the allegations against him were false.
16. His witness, Katite Mulwa, testified that the appellant was away at work in Nairobi from August 2020 until February 2021.
17. Upon considering the evidence adduced by the prosecution and the defence, the learned trial magistrate found the Appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and convicted him on 24th July 2024. On 14th August 2024, he was sentenced to serve life imprisonment.
18. Aggrieved by the conviction and sentence, the appellant lodged the present appeal on 28th August 2024 on the following grounds:
1) The learned trial magistrate erred in law and fact by relying on prosecution evidence that did not prove the case beyond reasonable doubt.
2) The learned trial magistrate erred in law and fact by relying on the prosecution evidence despite the failure to call vital witnesses.
3) The learned trial magistrate erred in law and fact by failing to give due consideration to the appellant’s defence, which he contended exonerated him from the offence.
19. The appellant, in his written submissions dated 27th August 2026, submitted that the prosecution failed to prove the case beyond reasonable doubt. He challenged the sufficiency, consistency and reliability of the prosecution evidence, particularly the evidence relating to penetration and identification. He contended that the medical evidence was inconclusive and did not establish that the complainant had been defiled by a male person or connect him to the alleged offence. He also questioned the circumstances and timing of the medical examination and the preparation of the P3 form and Post Rape Care Form.
20. The appellant further challenged the reliability of the complainant’s evidence, submitting that it contained material inconsistencies concerning the identity of the person who allegedly defiled her and the circumstances surrounding the alleged incident. He pointed to the differences between her initial account and her subsequent responses and contended that the trial court failed to properly evaluate those inconsistencies before relying on her evidence. He maintained that the complainant’s inability to give a consistent account raised doubt as to whether she could reliably identify the perpetrator.
21. He also took issue with the manner in which the complainant’s evidence was received, given that she was four years old. He submitted that the trial court did not properly conduct a voire dire examination to establish whether she understood the nature of an oath and possessed sufficient intelligence to give sworn evidence. He contended that the questions put to her were inadequate and that the court failed to properly satisfy itself on her competence and understanding before admitting and relying upon her testimony.
22. The appellant further submitted that the prosecution failed to call material witnesses, particularly the complainant’s mother, Kanini Mulwa. He contended that she was a crucial witness in view of the circumstances surrounding the complaint and the evidence concerning the relationship between the parties. He argued that her absence deprived the court of material evidence and that the trial court ought to have considered the effect of the prosecution’s failure to call her in determining whether the case had been proved beyond reasonable doubt.
23. On the defence of alibi, the appellant submitted that he had maintained that he was in Nairobi during the material period and that his evidence was corroborated by his mother, DW2. He stated that he left for Nairobi in August 2020 and returned in February 2021, whereas the prosecution alleged that the offence occurred in October 2020. He contended that the trial court erred in dismissing the alibi as an afterthought merely because it was raised during the defence case, instead of evaluating it against the totality of the evidence. He maintained that the alibi, considered together with the other deficiencies in the prosecution case, raised reasonable doubt as to his presence at the scene of the alleged offence.
24. The appellant also submitted that the trial court failed to give proper consideration to his defence of false implication. He relied on the evidence concerning his relationship with the complainant’s mother and the alleged dispute arising from their relationship and the custody of the children. He contended that the evidence disclosed an acrimonious background which provided a possible motive for his being falsely implicated and that the trial court failed to sufficiently evaluate that evidence alongside the prosecution case.
25. The appellant further challenged the medical evidence and the reliance placed upon the P3 form and Post Rape Care Form. He submitted that the medical documentation contained material errors and inconsistencies, including the date attributed to the alleged incident, and that the clinical findings did not conclusively establish penetration or connect him to the offence. He therefore argued that the medical evidence ought to have been approached with greater caution and could not, in the circumstances, sustain the conviction.
26. On sentence, the appellant submitted that the life imprisonment imposed upon him was manifestly excessive and unconstitutional. He urged the Court to consider that he was a first offender with no previous criminal record, was the sole breadwinner for his family and had spent a substantial period in custody. He further submitted that the trial court did not give adequate consideration to his mitigation and the circumstances of the case when imposing the sentence. He therefore urged the Court to interfere with the sentence and impose a lesser term of imprisonment.
27. The appellant concluded that the cumulative effect of the inconsistencies in the prosecution evidence, the manner in which the complainant’s evidence was received and evaluated, the deficiencies in the medical evidence, the failure to call material witnesses, the rejection of his alibi and the inadequate consideration of his defence rendered the conviction unsafe. He consequently prayed that the appeal be allowed, the conviction quashed and the sentence of life imprisonment set aside, and that he be set at liberty. In the alternative, he sought a reduction of the sentence.
28. The respondent, in its written submissions dated 25th August 2026, submitted that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt. It was submitted that the age of the complainant was established by the age assessment report produced in evidence, which showed that she was four years old at the time of the offence. The respondent further submitted that the complainant properly identified the appellant as the person who defiled her and that the incident occurred during the day, thereby reducing the possibility of mistaken identification.
29. On penetration, the respondent submitted that the complainant’s evidence was clear and consistent and was corroborated by the medical evidence. Reliance was placed on the evidence of the clinical officer who examined the complainant and produced the P3 form, outpatient notes, urinalysis results and Post Rape Care Form. It was submitted that the medical findings, including the observation that the complainant’s hymen was broken, supported the allegation of penetration and that the appellant had not adduced evidence to rebut the prosecution case.
30. The respondent further addressed the appellant’s defence of alibi. It submitted that the appellant alleged that he was in Nairobi when the offence was committed and that his mother testified in support of that account. The respondent contended that the alibi had not been raised at the earliest opportunity and that no basis for it had been laid during the prosecution case. It was therefore submitted that the alibi amounted to an afterthought and did not displace the prosecution evidence. The respondent relied on authorities which, according to its submissions, addressed the manner in which an alibi should be raised and evaluated.
31. On sentence, the respondent submitted that the life imprisonment imposed upon the appellant was lawful and neither harsh nor excessive. It contended that Section 8(2) of the Sexual Offences Act provides for life imprisonment where the victim of defilement is aged eleven years or less. It was further submitted that the trial court had considered the appellant’s mitigation and the pre-sentence report before imposing sentence and had taken into account the prevailing jurisprudence. The respondent therefore urged the Court not to interfere with the sentence.
32. The respondent ultimately submitted that both the conviction and sentence were proper and urged the Court to dismiss the appeal and uphold the decision of the trial court.
33. As a first appellate court, this Court is required to reconsider and re-evaluate the evidence that was presented before the trial court and to draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. This duty was stated in Okeno v Republic [1972] EA 32, where the Court of Appeal emphasised that the first appellate court must subject the entire evidence to a fresh and exhaustive examination and make its own findings.
34. Having considered the charge, the evidence adduced by the prosecution and the defence, the grounds of appeal, and the respective written submissions, the following issues arise for determination:
1) Whether the prosecution proved the offence of defilement beyond reasonable doubt.
2) Whether the failure to call the complainant’s mother and other alleged material witnesses weakened the prosecution case.
3) Whether the trial court properly considered and evaluated the appellant’s defence of alibi and alleged false implication.
4) Whether the conviction was safe
5) Whether the sentence of life imprisonment was lawful and whether this Court should interfere with it.
35. The first issue for determination is whether the prosecution proved the offence of defilement beyond reasonable doubt. The prosecution was required to establish the age of the complainant, penetration and the identity of the person who committed the act.
36. The evidence on age was provided through PExh. 3, the age assessment report, which placed the complainant at four years. That evidence was not challenged and established the complainant’s age for purposes of the charge. The learned trial magistrate was therefore correct in finding that the complainant’s age had been proved.
37. On penetration, the prosecution relied on the evidence of PW3 together with the medical records produced as PExh. 1, the outpatient record; PExh. 4, the P3 form; PExh. 5, the Post Rape Care Form; and PExh. 6, the appointment card and treatment receipts. The outpatient record documented the complainant’s treatment, while the P3 form recorded a broken hymen and assessed the injury as approximately four months old, with no bruising or discharge and no blood stains on the clothes or innerwear. The Post Rape Care Form recorded the findings made during the medical assessment, while the appointment card and receipts confirmed the subsequent attendance at the health facility. PW3 also explained that the pus cells detected on urinalysis could have resulted from poor hygiene or a sexual act.
38. Upon a consideration of this evidence in its entirety, the finding of a broken hymen and the old genital injury, taken together with the history recorded in the medical documents, provided sufficient medical support for the occurrence of penetration. The absence of fresh injuries did not, in the circumstances, negate the medical finding. In this respect, the learned trial magistrate was right to find that the evidence established penetration.
39. This Court has considered the evidence linking the appellant to the alleged act, beginning with the testimony of the complainant herself. She first testified on 22nd March 2021 and was subsequently recalled on 24th July 2023. In her evidence upon recall, she stated that she did not know the person who had done the “bad things” to her and that she would not be able to recognise that person. She further stated that she had never seen her father. This evidence is of considerable significance because it came from the complainant, who was the person upon whose evidence the prosecution principally relied to establish the circumstances of the alleged defilement and the identity of the person responsible for it.
40. The evidence of PW2, PW4, PW5, PW6, PW8 and PW9 has been considered in the context of the complainant’s testimony. Although these witnesses attributed the allegation to the appellant, none of them witnessed the commission of the alleged offence, and their evidence concerning his involvement was based on information received from the complainant, her relatives, the school and other persons during the reporting and investigation of the complaint. When that evidence is evaluated alongside the complainant’s own testimony that she did not know the person who had done the “bad things” to her and could not recognise him, it does not independently establish that the appellant was the person who committed the alleged act.
41. The respondent submitted that the complainant had consistently identified the appellant as the perpetrator. This Court has considered that submission against the evidence recorded by the trial court and, in particular, the evidence given by the complainant when she was recalled. Her evidence that she did not know the person who had done the “bad things” to her and would not be able to recognise him is plainly inconsistent with the contention that she had consistently identified the appellant. In the absence of direct evidence from any other witness who witnessed the alleged act or otherwise identified the appellant as the perpetrator, that inconsistency assumes considerable significance.
42. In Okethi Okale and Others v Republic [1965] EA 555, the Court emphasised that the evidence must be considered as a whole and that a conviction must rest upon the evidence actually adduced before the court. Having evaluated the evidence in its entirety, including the complainant’s testimony, the medical evidence and documentary exhibits, together with the evidence of the other prosecution witnesses, this Court finds that the prosecution established the complainant’s age and proved that penetration had occurred. The evidence linking that act to the appellant, on the other hand, does not attain the requisite cogency, since the medical evidence establishes penetration but does not identify the perpetrator, while the remaining prosecution evidence does not provide the necessary link between the appellant and the act. In the circumstances, the learned trial magistrate erred in finding that the prosecution had proved the appellant’s identity as the perpetrator beyond reasonable doubt.
43. The second issue for determination is whether the learned trial magistrate properly considered and evaluated the appellant’s defence of alibi and his allegation that he had been falsely implicated.
44. The appellant gave sworn evidence that he had travelled to Nairobi on 4th August 2020 in search of employment and remained there until February 2021, when he returned to Kitui and was arrested. His evidence was supported by DW2, Katite Mulwa, who testified that the appellant had been away in Nairobi from August 2020 until February 2021. The appellant further attributed his prosecution to a dispute with the complainant’s mother, maintaining that he had been falsely implicated in the circumstances surrounding their relationship and the custody of the children.
45. The learned trial magistrate rejected the alibi principally on the basis that it had not been raised during the prosecution case and was only introduced at the close of the prosecution evidence. The respondent similarly urged that the alibi was an afterthought, pointing out that no notice had been given to the prosecution and that no foundation for it had been laid during the questioning of the prosecution witnesses.
46. In Simiyu v Republic [2026] KECA 284 (KLR) ,the Court of Appeal recognised that an alibi may be raised at any stage of the proceedings, although an accused person who raises it at a late stage runs the risk that its evidential value may be affected where the prosecution has been deprived of an opportunity to investigate it. The principle does not, nevertheless, place a burden upon an accused person to prove an alibi.
47. In Kimotho Kiarie v Republic [1984] KECA 65 (KLR), the Court of Appeal held that an accused who raises an alibi assumes no burden of proving it and that the issue remains whether the prosecution evidence, considered alongside the alibi, leaves a reasonable doubt as to the accused person’s presence at the scene.
48. The appellant’s alibi in the present case was not merely a bare assertion. He gave an account of his movements and employment in Nairobi and called DW2 in support of his whereabouts. Although the prosecution was entitled to point to the absence of prior notice and to the opportunity it thereby lost to investigate the account, the lateness of the defence did not by itself dispose of it. The learned trial magistrate was required to assess the evidence of the alibi against the prosecution case and determine whether, notwithstanding the alibi, the prosecution had placed the appellant at the scene of the alleged offence.
49. The record does not demonstrate that this was done to the extent required. The learned trial magistrate treated the fact that the alibi was raised during the defence as a substantial reason for rejecting it, but did not sufficiently engage with the evidence of DW2 or demonstrate how the prosecution evidence displaced the appellant’s account of being in Nairobi during the material period. This is particularly significant because there was no evidence from the prosecution specifically placing the appellant at the scene on 30th January 2021.
50. The allegation of false implication has also been considered in the context in which it was raised. The appellant attributed the complaint to the dispute between himself and the complainant’s mother, while PW2’s evidence confirmed that there had been a dispute concerning their relationship and the custody of the children. The defence version was therefore not advanced in a vacuum, although the existence of such a dispute could not, without more, establish that the appellant had been falsely accused. Its significance lies in the fact that it provided a possible context in which the allegation against the appellant could have arisen and therefore required consideration alongside the weakness in the evidence identifying him as the perpetrator.
51. In this case, the appellant’s account received some support from DW2, whose evidence was that he was away in Nairobi during the relevant period. The question was therefore not whether the appellant had conclusively established his alibi, but whether the prosecution evidence was sufficiently cogent to displace the reasonable doubt arising from that account.
52. Having evaluated the alibi, the evidence of DW2, the circumstances relied upon in support of the allegation of false implication and the prosecution evidence as a whole, this Court finds that the learned trial magistrate erred in rejecting the alibi principally because it was raised at the defence stage, without sufficiently evaluating its substance against the evidence adduced by the prosecution.
53. In the absence of cogent evidence placing the appellant at the scene, and having regard to the failure of the complainant to identify him as the perpetrator, the alibi was sufficient to reinforce the reasonable doubt already arising from the prosecution evidence. The prosecution did not displace that doubt.
54. The third issue for determination is whether the conviction of the appellant was safe. The safety of the conviction turns principally on whether the evidence established, beyond reasonable doubt, that the appellant was the person who committed the offence. Although the prosecution proved the complainant’s age and established penetration, the evidence linking the appellant to the act was insufficient. The complainant did not identify the appellant as the perpetrator, while the evidence of the other witnesses linking him to the offence was largely based on information received from others. Further, the appellant’s alibi, which was supported by DW2, was not adequately evaluated against the prosecution evidence.
55. The deficiencies in the evidence on identification, coupled with the inadequate evaluation of the appellant’s alibi and the circumstances surrounding the allegation of false implication, created a reasonable doubt as to the appellant’s participation in the offence. The prosecution therefore failed to establish beyond reasonable doubt that the appellant was the person who committed the act. This Court consequently finds that the conviction was unsafe and cannot stand.
56. The fourth issue for determination is whether the sentence of life imprisonment was lawful and whether this Court should interfere with it.
57. The appellant was convicted of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and was sentenced to life imprisonment. The respondent
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2. In the alternative, the appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that on the same date, time and place, he intentionally touched the buttocks, breasts, anus and vagina of CM with his hands.
3. At the trial on 22nd March 2021, the trial magistrate conducted a voire dire examination and, on account of the complainant’s tender age, ruled that she was not possessed of sufficient intelligence to understand the nature of an oath and would accordingly give unsworn evidence. Upon being recalled on 24th July 2023, the complainant testified that she was a Class 1 pupil at Kinzani Primary School and that, in 2021, she lived with her grandmother and attended school throughout the year without missing any day. Regarding 30th January 2021, she denied going home for lunch but acknowledged that she was examined by a doctor at a later date, although he did not tell her that she was unwell. The complainant acknowledged that some bad things had been done to her but could not identify the person responsible. She denied being locked in a house, explaining that she had only heard about the matter and would not be able to recognise the person involved.
4. PW2, Ngule Katula, stated that he had been married to the mother of the complainant and that the appellant had taken her away. He stated that he was later called by a teacher from Kanzee Primary School, who informed him that the child was injured and needed to be taken to hospital. He stated that he instructed the child's sister to take her to hospital, and that he himself did not go to the hospital but instead took the child to the police station. He testified that the police informed him that the child had been defiled, and that the child had stated that it was Kuti who had defiled her.
5. PW3, Jackline Makau, a clinical officer at Inyuu Health Centre, testified in Kiswahili after being duly sworn. She recalled attending to the complainant, at the health facility on 26th February 2021 and stated that the child was aged four years. She produced the outpatient record as PExh. 1. She explained that the child had initially been seen at the facility on 5th February 2021 with complaints of pain on passing urine and had given a history of having been defiled approximately four months earlier. Upon examination, she found that the injury was not fresh and that there were no bruises or other injuries to the labia. A urinalysis revealed the presence of pus cells, which could have been caused by poor hygiene or a sexual act, and the results were produced as PExh. 2. She also produced the age assessment report as PExh. 3, which placed the complainant’s age at four years, and the P3 form dated 5th February 2021 as PExh. 4. The form recorded a broken hymen, with no discharge or bruising, and indicated that the injury was approximately four months old. She noted that the child’s clothes and inner wear had no blood stains. The Post-Rape Care Form was produced as PExh. 5, while an appointment card from Kitui Hospital together with the accompanying receipts was produced as PExh. 6. She further recalled that when the child returned to the facility on 18th March 2021, she continued to complain of pain on passing urine and in the lower abdomen. She tested negative for HIV and venereal syphilis.
6. PW4, PMK, stated that the complainant was her sister. She testified that the complainant had told her that she was suffering and wished to return to their grandmother’s home, where she had previously lived with their mother. At the time, the complainant was living with Mwikali and Samson. Mwikali had previously been married to Munyoki and later to the appellant. According to the witness, Mwikali informed her that the appellant had raped the complainant. She consequently took the complainant to their grandmother’s home, but their mother, who had been following them, arrived and took the child away.
7. The witness further testified that a teacher later telephoned her and informed her that the complainant was experiencing abdominal pain and had disclosed that the appellant had defiled her.
8. PW5, Samuel Musyimi, testified that he was the Assistant Chief of Kyamba Sub-location. Upon receiving information from the Headteacher of Kutheni Primary School that the complainant had been defiled by her father, he escorted her to the police station and later witnessed the arrest of the appellant.
9. PW6, Francisca Kitheka, a teacher at Kinzeni Primary School, testified that on 5th February 2021, the complainant was taken to the school by a lady who reported that she had been defiled by her stepfather.
10. PW7, a teacher at Kenze Nursery School, testified that on 22nd January 2021, she noticed that the complainant appeared sickly. She sent for the complainant’s mother, who went to the school and took the complainant away.
11. PW8, Kiprono Korir and PW9, PC Austin Mutembei testified that on 6th February 2021, the complainant’s grandmother reported that the appellant had defiled the complainant upon which they arrested the appellant on the same date.
12. The appellant, Kuti Mulwa, gave sworn evidence and testified that in January 2020 he was working at Royal Hotel, Kitui, where he met a middle-aged woman seeking employment who left her particulars as Kanini Mulwa. He did not disclose her to his employer but later contacted her and informed her that there was no vacancy, although he knew of another employment opportunity. Kanini told him that she lived at Majengo, Kitui, was unmarried and had three children. He visited her at her home and disclosed that his wife had left him because of his drinking and that he was looking for another mature woman like her. They subsequently began a relationship in June and married in February 2020. At the time, Kanini was living with her daughter, the complainant herein.
13. The appellant further testified that he and Kanini later went to her parents’ home with the complainant, where they met Mulwa Mwanza and Kangwele Mulwa. He informed them that he had married Kanini and sought permission to take her children with him, but was informed that the children were not available. In July 2020, he was summoned to the chief’s office, where he found Chief Kitonga Mulandi and Assistant Chief Samuel Musyimi in the company of Ngule Katula (PW2) and two of Kanini’s children, whom he did not know. Kanini explained that she had previously been married to PW2, who had no son, and confirmed that the two children accompanying PW2 were hers. He was informed that PW2 wanted Kanini and her children to return home, but this did not happen.
14. It was Appellant’s evidence that on 4th August 2020, he travelled to Nairobi and secured employment at Tumaini Hotel in Kayole, where he worked until September. During that period, he sent money home and remained in communication with his wife and the complainant. He did not question Kanini about the marriage because she was pregnant.
15. The Appellant further stated that in January 2021, he enrolled the complainant at Kinzeni Primary School, where her siblings attended. One evening, his wife informed him that the complainant had been taken by her sister, PW4, to PW2’s home. He recalled that on 5th February 2021, while at home, the chief arrived with a police officer and arrested him on an allegation of rape before taking him to the police station. His wife was subsequently brought to the station and placed in a cell, where Mwanza and other officers, together with a lady, were called. She explained that she had taken the complainant from school and left her there, and denied that the appellant had defiled the complainant in October and January. She also stated that she did not wish to return to Kaweto. She was subsequently released, while the appellant was taken to Nzambani Police Station on 6th February 2021 and thereafter to Kitui Police Station, where he was charged. He maintained that the allegations against him were false.
16. His witness, Katite Mulwa, testified that the appellant was away at work in Nairobi from August 2020 until February 2021.
17. Upon considering the evidence adduced by the prosecution and the defence, the learned trial magistrate found the Appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 and convicted him on 24th July 2024. On 14th August 2024, he was sentenced to serve life imprisonment.
18. Aggrieved by the conviction and sentence, the appellant lodged the present appeal on 28th August 2024 on the following grounds:
1) The learned trial magistrate erred in law and fact by relying on prosecution evidence that did not prove the case beyond reasonable doubt.
2) The learned trial magistrate erred in law and fact by relying on the prosecution evidence despite the failure to call vital witnesses.
3) The learned trial magistrate erred in law and fact by failing to give due consideration to the appellant’s defence, which he contended exonerated him from the offence.
19. The appellant, in his written submissions dated 27th August 2026, submitted that the prosecution failed to prove the case beyond reasonable doubt. He challenged the sufficiency, consistency and reliability of the prosecution evidence, particularly the evidence relating to penetration and identification. He contended that the medical evidence was inconclusive and did not establish that the complainant had been defiled by a male person or connect him to the alleged offence. He also questioned the circumstances and timing of the medical examination and the preparation of the P3 form and Post Rape Care Form.
20. The appellant further challenged the reliability of the complainant’s evidence, submitting that it contained material inconsistencies concerning the identity of the person who allegedly defiled her and the circumstances surrounding the alleged incident. He pointed to the differences between her initial account and her subsequent responses and contended that the trial court failed to properly evaluate those inconsistencies before relying on her evidence. He maintained that the complainant’s inability to give a consistent account raised doubt as to whether she could reliably identify the perpetrator.
21. He also took issue with the manner in which the complainant’s evidence was received, given that she was four years old. He submitted that the trial court did not properly conduct a voire dire examination to establish whether she understood the nature of an oath and possessed sufficient intelligence to give sworn evidence. He contended that the questions put to her were inadequate and that the court failed to properly satisfy itself on her competence and understanding before admitting and relying upon her testimony.
22. The appellant further submitted that the prosecution failed to call material witnesses, particularly the complainant’s mother, Kanini Mulwa. He contended that she was a crucial witness in view of the circumstances surrounding the complaint and the evidence concerning the relationship between the parties. He argued that her absence deprived the court of material evidence and that the trial court ought to have considered the effect of the prosecution’s failure to call her in determining whether the case had been proved beyond reasonable doubt.
23. On the defence of alibi, the appellant submitted that he had maintained that he was in Nairobi during the material period and that his evidence was corroborated by his mother, DW2. He stated that he left for Nairobi in August 2020 and returned in February 2021, whereas the prosecution alleged that the offence occurred in October 2020. He contended that the trial court erred in dismissing the alibi as an afterthought merely because it was raised during the defence case, instead of evaluating it against the totality of the evidence. He maintained that the alibi, considered together with the other deficiencies in the prosecution case, raised reasonable doubt as to his presence at the scene of the alleged offence.
24. The appellant also submitted that the trial court failed to give proper consideration to his defence of false implication. He relied on the evidence concerning his relationship with the complainant’s mother and the alleged dispute arising from their relationship and the custody of the children. He contended that the evidence disclosed an acrimonious background which provided a possible motive for his being falsely implicated and that the trial court failed to sufficiently evaluate that evidence alongside the prosecution case.
25. The appellant further challenged the medical evidence and the reliance placed upon the P3 form and Post Rape Care Form. He submitted that the medical documentation contained material errors and inconsistencies, including the date attributed to the alleged incident, and that the clinical findings did not conclusively establish penetration or connect him to the offence. He therefore argued that the medical evidence ought to have been approached with greater caution and could not, in the circumstances, sustain the conviction.
26. On sentence, the appellant submitted that the life imprisonment imposed upon him was manifestly excessive and unconstitutional. He urged the Court to consider that he was a first offender with no previous criminal record, was the sole breadwinner for his family and had spent a substantial period in custody. He further submitted that the trial court did not give adequate consideration to his mitigation and the circumstances of the case when imposing the sentence. He therefore urged the Court to interfere with the sentence and impose a lesser term of imprisonment.
27. The appellant concluded that the cumulative effect of the inconsistencies in the prosecution evidence, the manner in which the complainant’s evidence was received and evaluated, the deficiencies in the medical evidence, the failure to call material witnesses, the rejection of his alibi and the inadequate consideration of his defence rendered the conviction unsafe. He consequently prayed that the appeal be allowed, the conviction quashed and the sentence of life imprisonment set aside, and that he be set at liberty. In the alternative, he sought a reduction of the sentence.
28. The respondent, in its written submissions dated 25th August 2026, submitted that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt. It was submitted that the age of the complainant was established by the age assessment report produced in evidence, which showed that she was four years old at the time of the offence. The respondent further submitted that the complainant properly identified the appellant as the person who defiled her and that the incident occurred during the day, thereby reducing the possibility of mistaken identification.
29. On penetration, the respondent submitted that the complainant’s evidence was clear and consistent and was corroborated by the medical evidence. Reliance was placed on the evidence of the clinical officer who examined the complainant and produced the P3 form, outpatient notes, urinalysis results and Post Rape Care Form. It was submitted that the medical findings, including the observation that the complainant’s hymen was broken, supported the allegation of penetration and that the appellant had not adduced evidence to rebut the prosecution case.
30. The respondent further addressed the appellant’s defence of alibi. It submitted that the appellant alleged that he was in Nairobi when the offence was committed and that his mother testified in support of that account. The respondent contended that the alibi had not been raised at the earliest opportunity and that no basis for it had been laid during the prosecution case. It was therefore submitted that the alibi amounted to an afterthought and did not displace the prosecution evidence. The respondent relied on authorities which, according to its submissions, addressed the manner in which an alibi should be raised and evaluated.
31. On sentence, the respondent submitted that the life imprisonment imposed upon the appellant was lawful and neither harsh nor excessive. It contended that Section 8(2) of the Sexual Offences Act provides for life imprisonment where the victim of defilement is aged eleven years or less. It was further submitted that the trial court had considered the appellant’s mitigation and the pre-sentence report before imposing sentence and had taken into account the prevailing jurisprudence. The respondent therefore urged the Court not to interfere with the sentence.
32. The respondent ultimately submitted that both the conviction and sentence were proper and urged the Court to dismiss the appeal and uphold the decision of the trial court.
33. As a first appellate court, this Court is required to reconsider and re-evaluate the evidence that was presented before the trial court and to draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. This duty was stated in Okeno v Republic [1972] EA 32, where the Court of Appeal emphasised that the first appellate court must subject the entire evidence to a fresh and exhaustive examination and make its own findings.
34. Having considered the charge, the evidence adduced by the prosecution and the defence, the grounds of appeal, and the respective written submissions, the following issues arise for determination:
1) Whether the prosecution proved the offence of defilement beyond reasonable doubt.
2) Whether the failure to call the complainant’s mother and other alleged material witnesses weakened the prosecution case.
3) Whether the trial court properly considered and evaluated the appellant’s defence of alibi and alleged false implication.
4) Whether the conviction was safe
5) Whether the sentence of life imprisonment was lawful and whether this Court should interfere with it.
35. The first issue for determination is whether the prosecution proved the offence of defilement beyond reasonable doubt. The prosecution was required to establish the age of the complainant, penetration and the identity of the person who committed the act.
36. The evidence on age was provided through PExh. 3, the age assessment report, which placed the complainant at four years. That evidence was not challenged and established the complainant’s age for purposes of the charge. The learned trial magistrate was therefore correct in finding that the complainant’s age had been proved.
37. On penetration, the prosecution relied on the evidence of PW3 together with the medical records produced as PExh. 1, the outpatient record; PExh. 4, the P3 form; PExh. 5, the Post Rape Care Form; and PExh. 6, the appointment card and treatment receipts. The outpatient record documented the complainant’s treatment, while the P3 form recorded a broken hymen and assessed the injury as approximately four months old, with no bruising or discharge and no blood stains on the clothes or innerwear. The Post Rape Care Form recorded the findings made during the medical assessment, while the appointment card and receipts confirmed the subsequent attendance at the health facility. PW3 also explained that the pus cells detected on urinalysis could have resulted from poor hygiene or a sexual act.
38. Upon a consideration of this evidence in its entirety, the finding of a broken hymen and the old genital injury, taken together with the history recorded in the medical documents, provided sufficient medical support for the occurrence of penetration. The absence of fresh injuries did not, in the circumstances, negate the medical finding. In this respect, the learned trial magistrate was right to find that the evidence established penetration.
39. This Court has considered the evidence linking the appellant to the alleged act, beginning with the testimony of the complainant herself. She first testified on 22nd March 2021 and was subsequently recalled on 24th July 2023. In her evidence upon recall, she stated that she did not know the person who had done the “bad things” to her and that she would not be able to recognise that person. She further stated that she had never seen her father. This evidence is of considerable significance because it came from the complainant, who was the person upon whose evidence the prosecution principally relied to establish the circumstances of the alleged defilement and the identity of the person responsible for it.
40. The evidence of PW2, PW4, PW5, PW6, PW8 and PW9 has been considered in the context of the complainant’s testimony. Although these witnesses attributed the allegation to the appellant, none of them witnessed the commission of the alleged offence, and their evidence concerning his involvement was based on information received from the complainant, her relatives, the school and other persons during the reporting and investigation of the complaint. When that evidence is evaluated alongside the complainant’s own testimony that she did not know the person who had done the “bad things” to her and could not recognise him, it does not independently establish that the appellant was the person who committed the alleged act.
41. The respondent submitted that the complainant had consistently identified the appellant as the perpetrator. This Court has considered that submission against the evidence recorded by the trial court and, in particular, the evidence given by the complainant when she was recalled. Her evidence that she did not know the person who had done the “bad things” to her and would not be able to recognise him is plainly inconsistent with the contention that she had consistently identified the appellant. In the absence of direct evidence from any other witness who witnessed the alleged act or otherwise identified the appellant as the perpetrator, that inconsistency assumes considerable significance.
42. In Okethi Okale and Others v Republic [1965] EA 555, the Court emphasised that the evidence must be considered as a whole and that a conviction must rest upon the evidence actually adduced before the court. Having evaluated the evidence in its entirety, including the complainant’s testimony, the medical evidence and documentary exhibits, together with the evidence of the other prosecution witnesses, this Court finds that the prosecution established the complainant’s age and proved that penetration had occurred. The evidence linking that act to the appellant, on the other hand, does not attain the requisite cogency, since the medical evidence establishes penetration but does not identify the perpetrator, while the remaining prosecution evidence does not provide the necessary link between the appellant and the act. In the circumstances, the learned trial magistrate erred in finding that the prosecution had proved the appellant’s identity as the perpetrator beyond reasonable doubt.
43. The second issue for determination is whether the learned trial magistrate properly considered and evaluated the appellant’s defence of alibi and his allegation that he had been falsely implicated.
44. The appellant gave sworn evidence that he had travelled to Nairobi on 4th August 2020 in search of employment and remained there until February 2021, when he returned to Kitui and was arrested. His evidence was supported by DW2, Katite Mulwa, who testified that the appellant had been away in Nairobi from August 2020 until February 2021. The appellant further attributed his prosecution to a dispute with the complainant’s mother, maintaining that he had been falsely implicated in the circumstances surrounding their relationship and the custody of the children.
45. The learned trial magistrate rejected the alibi principally on the basis that it had not been raised during the prosecution case and was only introduced at the close of the prosecution evidence. The respondent similarly urged that the alibi was an afterthought, pointing out that no notice had been given to the prosecution and that no foundation for it had been laid during the questioning of the prosecution witnesses.
46. In Simiyu v Republic [2026] KECA 284 (KLR) ,the Court of Appeal recognised that an alibi may be raised at any stage of the proceedings, although an accused person who raises it at a late stage runs the risk that its evidential value may be affected where the prosecution has been deprived of an opportunity to investigate it. The principle does not, nevertheless, place a burden upon an accused person to prove an alibi.
47. In Kimotho Kiarie v Republic [1984] KECA 65 (KLR), the Court of Appeal held that an accused who raises an alibi assumes no burden of proving it and that the issue remains whether the prosecution evidence, considered alongside the alibi, leaves a reasonable doubt as to the accused person’s presence at the scene.
48. The appellant’s alibi in the present case was not merely a bare assertion. He gave an account of his movements and employment in Nairobi and called DW2 in support of his whereabouts. Although the prosecution was entitled to point to the absence of prior notice and to the opportunity it thereby lost to investigate the account, the lateness of the defence did not by itself dispose of it. The learned trial magistrate was required to assess the evidence of the alibi against the prosecution case and determine whether, notwithstanding the alibi, the prosecution had placed the appellant at the scene of the alleged offence.
49. The record does not demonstrate that this was done to the extent required. The learned trial magistrate treated the fact that the alibi was raised during the defence as a substantial reason for rejecting it, but did not sufficiently engage with the evidence of DW2 or demonstrate how the prosecution evidence displaced the appellant’s account of being in Nairobi during the material period. This is particularly significant because there was no evidence from the prosecution specifically placing the appellant at the scene on 30th January 2021.
50. The allegation of false implication has also been considered in the context in which it was raised. The appellant attributed the complaint to the dispute between himself and the complainant’s mother, while PW2’s evidence confirmed that there had been a dispute concerning their relationship and the custody of the children. The defence version was therefore not advanced in a vacuum, although the existence of such a dispute could not, without more, establish that the appellant had been falsely accused. Its significance lies in the fact that it provided a possible context in which the allegation against the appellant could have arisen and therefore required consideration alongside the weakness in the evidence identifying him as the perpetrator.
51. In this case, the appellant’s account received some support from DW2, whose evidence was that he was away in Nairobi during the relevant period. The question was therefore not whether the appellant had conclusively established his alibi, but whether the prosecution evidence was sufficiently cogent to displace the reasonable doubt arising from that account.
52. Having evaluated the alibi, the evidence of DW2, the circumstances relied upon in support of the allegation of false implication and the prosecution evidence as a whole, this Court finds that the learned trial magistrate erred in rejecting the alibi principally because it was raised at the defence stage, without sufficiently evaluating its substance against the evidence adduced by the prosecution.
53. In the absence of cogent evidence placing the appellant at the scene, and having regard to the failure of the complainant to identify him as the perpetrator, the alibi was sufficient to reinforce the reasonable doubt already arising from the prosecution evidence. The prosecution did not displace that doubt.
54. The third issue for determination is whether the conviction of the appellant was safe. The safety of the conviction turns principally on whether the evidence established, beyond reasonable doubt, that the appellant was the person who committed the offence. Although the prosecution proved the complainant’s age and established penetration, the evidence linking the appellant to the act was insufficient. The complainant did not identify the appellant as the perpetrator, while the evidence of the other witnesses linking him to the offence was largely based on information received from others. Further, the appellant’s alibi, which was supported by DW2, was not adequately evaluated against the prosecution evidence.
55. The deficiencies in the evidence on identification, coupled with the inadequate evaluation of the appellant’s alibi and the circumstances surrounding the allegation of false implication, created a reasonable doubt as to the appellant’s participation in the offence. The prosecution therefore failed to establish beyond reasonable doubt that the appellant was the person who committed the act. This Court consequently finds that the conviction was unsafe and cannot stand.
56. The fourth issue for determination is whether the sentence of life imprisonment was lawful and whether this Court should interfere with it.
57. The appellant was convicted of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and was sentenced to life imprisonment. The respondent
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