REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E037 OF 2025
LEVIS KULOBA………………………………………………………………….APPELLANT
-VERSUS-
REPUBLIC……………………………………………………………………...RESPONDENT
JUDGEMENT
Background
1. The Appellant was charged and convicted with the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act (No. 3 of 2006). The particulars of the offence were that on 20 th November 2020 at Kwanza Sub-location, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of R.W., a child stated to be aged 12 years. In the alternative, he was charged with an offence of committing an indecent act with a Child contrary to Section 11(1) of the Sexual Offences Act.
2. The Appellant pleaded not guilty to both charges on 8 th December 2020. Following a full trial the trial court found that the prosecution to have proven their case to the required standards of beyond reasonable doubt. The trial court on the 28 th May 2025 delivered its judgment where it convicted the Appellant on the main count of defilement. The Appellant was consequently sentenced on 25 th June 2025 to eight (8) years imprisonment.
3. Being aggrieved by the conviction and the sentence, the Appellant lodged this appeal, citing five principal grounds contained in the Petition of Appeal dated 3 rd July 2025. The grounds of appeal challenge both the legal process and the assessment of evidence by the learned trial magistrate and are, THAT:
a. The learned magistrate conducted the trial in a most casual matter that she failed to note that both complainant and appellant were minors at the time of the alleged incident.
b. The learned trial magistrate failed to take into account the fact that there was no evidence of whether the hymen being torn was fresh or old.
c. The learned trial magistrate failed to take into account the evidence that the clothes were not torn as alleged by complainant.
d. The learned trial magistrate failed to take into account the evidence that the witness who allegedly found appellant on act released him and took complainant home yet it was serious case.
e. The learned trial magistrate failed to properly analyse the evidence of the complainant that her uncle assaulted her.
4. Briefly, the Complainant, PW1, recounted the events of 20/11/20, at approximately 4:00 pm, when she was hawking vegetables, a neighbour, Mama Kamwana, purchased vegetables but asked PW1 to return for the Kshs 40/= change in the evening. The witness then returned to Mama Kamwana’s residence at 6:00 pm, collected the money, wrapped it in a cloth, and secured it in her pocket. After spending about 10 minutes there and walking for about 5 minutes toward home, she decided to collect firewood.
5. On her return journey, around 7:00 pm, she encountered the appellant, whom she knew well due to his extended residence in the area, near her grandmother’s home. The appellant initially grabbed her hand, but he fled upon the appearance of a woman. That the appellant subsequently followed her again, grabbing her from behind and covering her mouth. He then took her behind the toilet, removed her clothes and defiled her. She testified that her clothes got torn in the process of the assault.
6. She stated to have attempted to scream but the appellant silenced her by threatening to kill her. Her uncle, PW2, passed by the vicinity and returned shortly thereafter, accompanied by her sister and aunt, finding the appellant on top of her. That the uncle threatened the appellant with a panga before allowing both the appellant and PW1 to leave the scene. Later that evening, she was taken to the hospital and then to the police station, where she spent the night, despite being unaware of any offence she had committed.
7. She positively identified the appellant in court, noting he was a resident living with his grandmother, Mama Tili. She also confirmed the veracity of the P3 form (P MFI 1) and the age assessment report (P MFI 2) in court. PW1 further confirmed that the clothes and the appellant’s phone were not presented as exhibits. She denied any pre-existing disagreements or disputes between her family and the appellant's family, including over grazing land.
8. PW2, the complainant’s maternal uncle, testified that he was a boda boda rider. That on 20/11/20, at around 7:30 pm, he was heading home, passing by his neighbor’s pit latrine, when he heard a man and a child speaking inside. He initially proceeded home but was prompted to return upon learning from his sister’s other daughters that PW1 had been sent out. He grabbed a torch and returned to the area with his sister and nieces. There, they found the appellant lying on top of PW1 near the latrine. PW2 grabbed the appellant, who then stood and zipped his trousers. PW2 observed the appellant wearing black trousers and a white shirt and that he possessed a phone. PW1’s panties were found lying beside her. The appellant then left for his home. PW2 took PW1 and escorted her home, and noted that PW1 offered no complaint during this time. He then informed her grandmother upon arrival, who then took PW1 to the hospital and subsequently to the Police Station. PW2 recorded his statement later and confirmed he knew the appellant, Levis, as a neighbour.
9. PW3, the clinical officer, testified being on 17 years of experience and on behalf of his colleague, Stella Mukite, whose signature and handwriting he was conversant with and recognized. He referred to treatment notes and the P3 form for PW1, regarding a girl aged 12 years, who was seen at the facility on 20/11/20, accompanied by her grandmother. The documents detailed a history of defilement by a known person. The general examination showed that PW1 was in a fair condition. Internal findings included bruises on her genitals, labia minora, however, the P3 form did not specify whether these injuries were fresh or old. Her hymen was broken, but again, the tear’s freshness or otherwise was not indicated. A visible whitish discharge was present in the vaginal opening. She noted that the patient’s clothes had no tears or stains. Treatment was provided following tests.
10. PW4, a dentist, testified regarding the age assessment procedure, which is based on dental maturity. He performed the assessment on 23/11/20, finding that PW1 had permanent teeth but lacked wisdom teeth. An X-ray report indicated widened permanent teeth and that the second molar roots were not fully fused or mature. Based on these findings, Dr. Osore estimated PW1's age to be 12 years old (P Exhibit 2). He clarified that the estimated age was not absolute proof but was accurate to plus or minus 1 year, and he could not determine the exact date of birth.
11. PW5 was the Investigating Officer in the matter who testified that she received the defilement report from PW1’s mother on 20/11/20. Her investigation included sending PW1 for medical examination, which confirmed defilement and generated the P3 form. Age assessment confirmed PW1 was 12 years old. The appellant was brought to the station by his parents on 08/12/20. PW5 observed that PW1 and the appellant were immediate neighbours and were not strangers. She gave an opinion that PW1 was not in a relationship with the appellant, but it seemed that they agreed to have sex. PW5 visited the scene but found nothing visible to indicate that an incident had occurred, thus taking no photographs.
12. The appellant offered a sworn testimony by which he denied the charges, asserting that the allegations were fabricated. He testified to have been in Form 4 student and a resident of Shimo la Tewa. He claimed to have been born in 2004, making him 16 years old at the time of the alleged incident, and produced his birth certificate. He provided an alternative account for the events of 20/11/20, stating that around 5:00 pm, he was returning from school and was preparing to shower when he went to the toilet.
13. There, he saw PW1 passing by their shamba carrying maize. He questioned her source of the maize, to which PW1 responded with insults, challenging his authority over the property. In response to the insult, DW1 admitted that he slapped her. He maintained that PW2 happened to pass by and only witnessed the slap. PW2 then questioned the actions, grabbed PW1’s hand, and left, issuing a threat that DW1 would see what would befall him. DW1 explicitly denied that PW2 found him on top of PW1.
14. It was his case to have been merely enforcing boundary regulations set by his deceased aunt, who had prohibited passage through the property. He denied engaging in defilement, holding PW1’s genitalia, or removing her clothes. He claimed that ten minutes later, PW1’s grandmother returned to the property, asked for his aunt’s number, and accused him of issuing threats. Around 7:00 pm, he recalled seeing the grandmother and PW2 heading toward Kwanza center. He claimed he then prepared supper and continued his normal routines. The following morning, a neighbour, Mama Brayo, warned him that he was about to be arrested, prompting him to call his father and flee to Shimo la Tewa. They returned to Kwanza on 22/11/20, and he reported to the police station due to the circulating rumours of defilement.
Summary of Appellant’s Submissions
15. Counsel for the Appellant submitted that the conviction was unsafe and the sentence illegal grounding their submissions on three key issues being; the age of the Appellant and the delay in trial; alleged discrepancies in the prosecution's evidence; and the inconclusiveness of the medical evidence.
16. Regarding the Appellant’s age, the Appellant submitted that he was 16 years old at the time of the offence, based on his birth certificate and the complainant was 12 years old. It was contended that the trial process took approximately five years before delivering its judgement and which delay is averred to have prejudiced the Appellant by stripping him of the protection offered by Section 191 of the Children Act. The Appellant prayed for the 8-year sentence to be set aside, citing JW Versus the Republic (2022) КЕНС 16281 (KLR) as precedent where a minor's sentence was set free due to similar circumstances.
17. Regarding evidence at trial, the Appellant argued that the trial court failed in its primary duty to analyse contradictions in the Respondent’s case. Specifically, the Appellant pointed to the conduct of PW2 who upon finding the Appellant in the act, released him, took the complainant home, and then assaulted her. This conduct, the Appellant submitted, was inconsistent with a serious case requiring immediate reporting and cast doubt on the integrity of the prosecution’s narrative.
18. Further, that the medical evidence was deemed inconclusive because PW3, the clinical officer, confirmed under cross-examination that the P3 form did not indicate whether the broken hymen or the bruises on the labia minora were fresh or old. This was compounded by PW3’s testimony that the complainant’s clothes had no tears or stains, contradicting PW1's claim that her clothes were torn.
Summary of Respondent's Submissions
19. The Respondent opposed the appeal, asserting that the prosecution adduced sufficient evidence to prove all elements of the offence and that the sentence imposed was legal. The Respondent maintained that the conviction was sound, having proven beyond reasonable doubt all the three elements of defilement beyond reasonable doubt.
20. On identification, it was argued that this was a case of recognition, as the Appellant was known well to both PW1 and PW2 as a neighbour. That the Appellant’s identification was reinforced by the fact that PW2 found the Appellant pants down, lying on top of the complainant and doing the dastardly deed. The Respondent relied on the case of Francis Muchiri Joseph v Republic [2014] eKLR Criminal Appeal 56 of 2014 , stating that identification by recognition is inherently more satisfactory than that of a stranger.
21. On penetration, it was submitted that the medical evidence showed a broken hymen and bruises on the labia minora and which was consistent with the complainant’s testimony. The Respondent cited the case of Erick Onyango Ondeng vs Republic [2012] KEHC 3600 (KLR) to emphasize that the slightest penetration is sufficient.
22. Regarding the sentence, the Respondent argued that the 8-year term was legal and not manifestly excessive, citing the sentencing principles established in B ernard Kimani Gacheru vs Republic (2002) eKLR . The Respondent defended the trial court’s decision to impose a custodial sentence by relying on Suleiman Kibet Kiti v Republic KECA [2023] KECA 1403 (KLR) , which affirms the principle in JKK v Republic (Criminal Appeal 118 of 2011) [2013] KECA 241 (KLR) . These authorities hold that a person who was a minor at the time of the offence but attains majority age at the time of conviction cannot escape liability and must serve a custodial sentence to bear the weight of their actions. The Respondent noted that the maximum statutory penalty under Section 8(3) of the SOA is 20 years, making the 8-year sentence an act of leniency and a golden opportunity for reform. The Respondent prayed for the dismissal of the appeal in its entirety.
Issues, Analysis and Determination
23. Having considered the Petition of Appeal, the trial record, and the submissions by both counsel, this Court identifies two main issues for determination being: whether the ingredients of the offence of defilement were proven to the required standards; and, whether the trial court erred in imposing an 8-year custodial sentence by failing to adequately consider the Appellant’s constitutional rights as a child offender.
24. The offence of defilement is rooted on three main ingredients being; the age of the victim, penetration and the proper identification of the perpetrator. [1] In the circumstances, the Appellant did not challenge the findings on age, and the Court finds no fault in the trial court’s determination on this element. PW4, a dentist, produced an age assessment report dated 23 rd November 2020 estimating the complainant’s age to be approximately 12 years, an age within the age bracket protected by Section 8(3) of the Sexual Offences Act. Rule 4 of the Sexual Offences Rules provides as follows in line with the above:-
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
25. Regarding identification, the evidence of PW1 and PW2 established beyond doubt that the Appellant was known to the family as a neighbour who lived near the grandmother’s place. This was, therefore, a case of recognition. Furthermore, PW2 testified that he found the Appellant literally on top of PW1 near the latrine. The court holds that this direct, visual confirmation of the act, or being caught in flagrante delicto , serves as the strongest possible evidence of identification and corroboration of penetration. The Appellant’s defence of having slapped her over maize does not shake the overwhelming weight of the prosecution’s direct evidence.
26. The court further notes that the element of penetration was proved by the concurrent testimony of PW1, PW2, and PW3. The victim, PW1 described the physical act. PW2 testified to finding them in a compromising position. PW3’s medical evidence confirmed the fact of penetration by noting bruises on the labia minora and a broken hymen. The law only requires the partial or complete insertion of the genital organs, and even the slightest penetration is sufficient to constitute the offence. [2] The medical findings, therefore, provided objective corroboration for the fact of penetration.
27. On the alleged contradictions, the Appellant raised two evidentiary inconsistencies concerning the medical evidence and the subsequent conduct of PW2. The Appellant argued that PW3 admitted the P3 form did not specify whether the broken hymen or labia minora bruises were fresh or old. The court acknowledges the fact that in many defilement cases lacking direct corroboration, the failure by medical professionals to date injuries can be detrimental, potentially disconnecting the physical evidence from the alleged offence.
28. However, the circumstances of this case are exceptional. The incident occurred on the evening of 20 th November 2020, and the complainant was taken to the hospital that very night, and subsequently, the P3 form was filled on 23 rd November 2020. PW2 found the Appellant on top of the complainant at the time of the offence, and the discovery was immediately followed by the initiation of medical and police procedures. The court takes the position that when there is overwhelming direct, contemporaneous evidence of the commission of the act, as provided by PW2 who was an eyewitness to the physical contact, the absence of specific dating of the injuries becomes less critical. The medical findings of penetration were entirely consistent with the act observed just hours prior to the initial medical examination. Therefore, this omission by the medical team, while noted, does not displace the solid body of corroborative evidence.
29. The Appellant further highlighted that PW1 claimed her clothes were torn, yet the clinical officer (PW3) noted no tears or stains. This conflict is a contradiction concerning the degree of force used during the assault. While relevant, it is settled law that such minor contradictions, if they do not touch upon the core elements of the offence being age, penetration, identification, are not fatal to a conviction, especially when direct evidence proves the central act. In Pius Nyamweya Momanyi vs Republic, Kisii HCRA No. 265 of 2009 (UR) the court stated as follows in line with the foregoing: -
“...It is trite law that minor discrepancies and contradictions should not affect a conviction.”
30. The second issue centres on the conflict between the Appellant’s status as a child offender at the time of the offence and his status as an adult at the time of sentencing, precipitated by a significant delay in the judicial process. The record confirms that the Appellant was 16 years old in November 2020 when the offence occurred. At the time of sentencing in June 2025, he was 20-21 years old. Article 53(1)(e) of the Constitution and Section 186(c) of the Children Act guarantee a child appellant of an offence the right to have the matter determined without delay and to be treated in a manner consistent with their development and best interests. If the case had been concluded swiftly, the Appellant would have been eligible for non-custodial and rehabilitative sentencing options under Section 191 of the Children Act.
31. However, the Court of Appeal has established clear, binding precedent on how courts must handle cases where a child offender attains the age of majority before conviction. In JKK v Republic KECA 241 (KLR) , the Court held that an offender who has passed the age of 18 is no longer suitable for the rehabilitative regime of the Children Act. This principle was affirmed in Suleiman Kibet Kiti v Republic KECA 1403 (KLR) , where the appellate court stressed that an offender who commits a serious crime but transitions to adulthood due to delay cannot walk home scot-free. Consequently, such an offender must face a custodial sentence to fully comprehend the weight of their actions. Accordingly, the court holds that the trial court by imposing the act of imposing imprisonment, rather than a rehabilitative order, was legally sound.
32. On the magnitude of sentence imposed by the trial court, the guiding principles on review of sentence post-conviction is well articulated by the Court of Appeal in Bernard Gacheru v Republic [2002] eKLR where the court held that:
“It is now settled law, following several authorities by this court and by the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, the sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
33. Further, in S vs. Malgas 2001 (1) SACR 469 (SCA) the court while expounding on the circumstances under which an appellate court would interfere trial sentence held as follows:
“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court...However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”
34. In light of the above, the court finds no misdirection by the trial court on the imposed sentence. The appeal thus fails in its entirety.
35. However, in compliance with Section 333(2) Criminal Procedure Code, the computation of the sentence shall include the period the Appellant spent in remand custody during hearing and determination of the case before sentence was meted out. The Appellant was placed in custody on 9 th December 2020 and sentenced on 25 th June 2025. The eight (8) years sentence starts running from 9th December 2020 when he was placed in remand custody.
Dated, signed and delivered virtually this 9 th day of December, 2025
Patrick J O Otieno
Judge
FOOTNOTES
[1] See Dominic Kibet Mwareng vs Republic (2013) eKLR.
[2] Erick Onyango Ondeng vs Republic (2014) eKLR
Page | 12
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E037 OF 2025
LEVIS KULOBA………………………………………………………………….APPELLANT
-VERSUS-
REPUBLIC……………………………………………………………………...RESPONDENT
JUDGEMENT
Background
1. The Appellant was charged and convicted with the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act (No. 3 of 2006). The particulars of the offence were that on 20 th November 2020 at Kwanza Sub-location, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of R.W., a child stated to be aged 12 years. In the alternative, he was charged with an offence of committing an indecent act with a Child contrary to Section 11(1) of the Sexual Offences Act.
2. The Appellant pleaded not guilty to both charges on 8 th December 2020. Following a full trial the trial court found that the prosecution to have proven their case to the required standards of beyond reasonable doubt. The trial court on the 28 th May 2025 delivered its judgment where it convicted the Appellant on the main count of defilement. The Appellant was consequently sentenced on 25 th June 2025 to eight (8) years imprisonment.
3. Being aggrieved by the conviction and the sentence, the Appellant lodged this appeal, citing five principal grounds contained in the Petition of Appeal dated 3 rd July 2025. The grounds of appeal challenge both the legal process and the assessment of evidence by the learned trial magistrate and are, THAT:
a. The learned magistrate conducted the trial in a most casual matter that she failed to note that both complainant and appellant were minors at the time of the alleged incident.
b. The learned trial magistrate failed to take into account the fact that there was no evidence of whether the hymen being torn was fresh or old.
c. The learned trial magistrate failed to take into account the evidence that the clothes were not torn as alleged by complainant.
d. The learned trial magistrate failed to take into account the evidence that the witness who allegedly found appellant on act released him and took complainant home yet it was serious case.
e. The learned trial magistrate failed to properly analyse the evidence of the complainant that her uncle assaulted her.
4. Briefly, the Complainant, PW1, recounted the events of 20/11/20, at approximately 4:00 pm, when she was hawking vegetables, a neighbour, Mama Kamwana, purchased vegetables but asked PW1 to return for the Kshs 40/= change in the evening. The witness then returned to Mama Kamwana’s residence at 6:00 pm, collected the money, wrapped it in a cloth, and secured it in her pocket. After spending about 10 minutes there and walking for about 5 minutes toward home, she decided to collect firewood.
5. On her return journey, around 7:00 pm, she encountered the appellant, whom she knew well due to his extended residence in the area, near her grandmother’s home. The appellant initially grabbed her hand, but he fled upon the appearance of a woman. That the appellant subsequently followed her again, grabbing her from behind and covering her mouth. He then took her behind the toilet, removed her clothes and defiled her. She testified that her clothes got torn in the process of the assault.
6. She stated to have attempted to scream but the appellant silenced her by threatening to kill her. Her uncle, PW2, passed by the vicinity and returned shortly thereafter, accompanied by her sister and aunt, finding the appellant on top of her. That the uncle threatened the appellant with a panga before allowing both the appellant and PW1 to leave the scene. Later that evening, she was taken to the hospital and then to the police station, where she spent the night, despite being unaware of any offence she had committed.
7. She positively identified the appellant in court, noting he was a resident living with his grandmother, Mama Tili. She also confirmed the veracity of the P3 form (P MFI 1) and the age assessment report (P MFI 2) in court. PW1 further confirmed that the clothes and the appellant’s phone were not presented as exhibits. She denied any pre-existing disagreements or disputes between her family and the appellant's family, including over grazing land.
8. PW2, the complainant’s maternal uncle, testified that he was a boda boda rider. That on 20/11/20, at around 7:30 pm, he was heading home, passing by his neighbor’s pit latrine, when he heard a man and a child speaking inside. He initially proceeded home but was prompted to return upon learning from his sister’s other daughters that PW1 had been sent out. He grabbed a torch and returned to the area with his sister and nieces. There, they found the appellant lying on top of PW1 near the latrine. PW2 grabbed the appellant, who then stood and zipped his trousers. PW2 observed the appellant wearing black trousers and a white shirt and that he possessed a phone. PW1’s panties were found lying beside her. The appellant then left for his home. PW2 took PW1 and escorted her home, and noted that PW1 offered no complaint during this time. He then informed her grandmother upon arrival, who then took PW1 to the hospital and subsequently to the Police Station. PW2 recorded his statement later and confirmed he knew the appellant, Levis, as a neighbour.
9. PW3, the clinical officer, testified being on 17 years of experience and on behalf of his colleague, Stella Mukite, whose signature and handwriting he was conversant with and recognized. He referred to treatment notes and the P3 form for PW1, regarding a girl aged 12 years, who was seen at the facility on 20/11/20, accompanied by her grandmother. The documents detailed a history of defilement by a known person. The general examination showed that PW1 was in a fair condition. Internal findings included bruises on her genitals, labia minora, however, the P3 form did not specify whether these injuries were fresh or old. Her hymen was broken, but again, the tear’s freshness or otherwise was not indicated. A visible whitish discharge was present in the vaginal opening. She noted that the patient’s clothes had no tears or stains. Treatment was provided following tests.
10. PW4, a dentist, testified regarding the age assessment procedure, which is based on dental maturity. He performed the assessment on 23/11/20, finding that PW1 had permanent teeth but lacked wisdom teeth. An X-ray report indicated widened permanent teeth and that the second molar roots were not fully fused or mature. Based on these findings, Dr. Osore estimated PW1's age to be 12 years old (P Exhibit 2). He clarified that the estimated age was not absolute proof but was accurate to plus or minus 1 year, and he could not determine the exact date of birth.
11. PW5 was the Investigating Officer in the matter who testified that she received the defilement report from PW1’s mother on 20/11/20. Her investigation included sending PW1 for medical examination, which confirmed defilement and generated the P3 form. Age assessment confirmed PW1 was 12 years old. The appellant was brought to the station by his parents on 08/12/20. PW5 observed that PW1 and the appellant were immediate neighbours and were not strangers. She gave an opinion that PW1 was not in a relationship with the appellant, but it seemed that they agreed to have sex. PW5 visited the scene but found nothing visible to indicate that an incident had occurred, thus taking no photographs.
12. The appellant offered a sworn testimony by which he denied the charges, asserting that the allegations were fabricated. He testified to have been in Form 4 student and a resident of Shimo la Tewa. He claimed to have been born in 2004, making him 16 years old at the time of the alleged incident, and produced his birth certificate. He provided an alternative account for the events of 20/11/20, stating that around 5:00 pm, he was returning from school and was preparing to shower when he went to the toilet.
13. There, he saw PW1 passing by their shamba carrying maize. He questioned her source of the maize, to which PW1 responded with insults, challenging his authority over the property. In response to the insult, DW1 admitted that he slapped her. He maintained that PW2 happened to pass by and only witnessed the slap. PW2 then questioned the actions, grabbed PW1’s hand, and left, issuing a threat that DW1 would see what would befall him. DW1 explicitly denied that PW2 found him on top of PW1.
14. It was his case to have been merely enforcing boundary regulations set by his deceased aunt, who had prohibited passage through the property. He denied engaging in defilement, holding PW1’s genitalia, or removing her clothes. He claimed that ten minutes later, PW1’s grandmother returned to the property, asked for his aunt’s number, and accused him of issuing threats. Around 7:00 pm, he recalled seeing the grandmother and PW2 heading toward Kwanza center. He claimed he then prepared supper and continued his normal routines. The following morning, a neighbour, Mama Brayo, warned him that he was about to be arrested, prompting him to call his father and flee to Shimo la Tewa. They returned to Kwanza on 22/11/20, and he reported to the police station due to the circulating rumours of defilement.
Summary of Appellant’s Submissions
15. Counsel for the Appellant submitted that the conviction was unsafe and the sentence illegal grounding their submissions on three key issues being; the age of the Appellant and the delay in trial; alleged discrepancies in the prosecution's evidence; and the inconclusiveness of the medical evidence.
16. Regarding the Appellant’s age, the Appellant submitted that he was 16 years old at the time of the offence, based on his birth certificate and the complainant was 12 years old. It was contended that the trial process took approximately five years before delivering its judgement and which delay is averred to have prejudiced the Appellant by stripping him of the protection offered by Section 191 of the Children Act. The Appellant prayed for the 8-year sentence to be set aside, citing JW Versus the Republic (2022) КЕНС 16281 (KLR) as precedent where a minor's sentence was set free due to similar circumstances.
17. Regarding evidence at trial, the Appellant argued that the trial court failed in its primary duty to analyse contradictions in the Respondent’s case. Specifically, the Appellant pointed to the conduct of PW2 who upon finding the Appellant in the act, released him, took the complainant home, and then assaulted her. This conduct, the Appellant submitted, was inconsistent with a serious case requiring immediate reporting and cast doubt on the integrity of the prosecution’s narrative.
18. Further, that the medical evidence was deemed inconclusive because PW3, the clinical officer, confirmed under cross-examination that the P3 form did not indicate whether the broken hymen or the bruises on the labia minora were fresh or old. This was compounded by PW3’s testimony that the complainant’s clothes had no tears or stains, contradicting PW1's claim that her clothes were torn.
Summary of Respondent's Submissions
19. The Respondent opposed the appeal, asserting that the prosecution adduced sufficient evidence to prove all elements of the offence and that the sentence imposed was legal. The Respondent maintained that the conviction was sound, having proven beyond reasonable doubt all the three elements of defilement beyond reasonable doubt.
20. On identification, it was argued that this was a case of recognition, as the Appellant was known well to both PW1 and PW2 as a neighbour. That the Appellant’s identification was reinforced by the fact that PW2 found the Appellant pants down, lying on top of the complainant and doing the dastardly deed. The Respondent relied on the case of Francis Muchiri Joseph v Republic [2014] eKLR Criminal Appeal 56 of 2014 , stating that identification by recognition is inherently more satisfactory than that of a stranger.
21. On penetration, it was submitted that the medical evidence showed a broken hymen and bruises on the labia minora and which was consistent with the complainant’s testimony. The Respondent cited the case of Erick Onyango Ondeng vs Republic [2012] KEHC 3600 (KLR) to emphasize that the slightest penetration is sufficient.
22. Regarding the sentence, the Respondent argued that the 8-year term was legal and not manifestly excessive, citing the sentencing principles established in B ernard Kimani Gacheru vs Republic (2002) eKLR . The Respondent defended the trial court’s decision to impose a custodial sentence by relying on Suleiman Kibet Kiti v Republic KECA [2023] KECA 1403 (KLR) , which affirms the principle in JKK v Republic (Criminal Appeal 118 of 2011) [2013] KECA 241 (KLR) . These authorities hold that a person who was a minor at the time of the offence but attains majority age at the time of conviction cannot escape liability and must serve a custodial sentence to bear the weight of their actions. The Respondent noted that the maximum statutory penalty under Section 8(3) of the SOA is 20 years, making the 8-year sentence an act of leniency and a golden opportunity for reform. The Respondent prayed for the dismissal of the appeal in its entirety.
Issues, Analysis and Determination
23. Having considered the Petition of Appeal, the trial record, and the submissions by both counsel, this Court identifies two main issues for determination being: whether the ingredients of the offence of defilement were proven to the required standards; and, whether the trial court erred in imposing an 8-year custodial sentence by failing to adequately consider the Appellant’s constitutional rights as a child offender.
24. The offence of defilement is rooted on three main ingredients being; the age of the victim, penetration and the proper identification of the perpetrator. [1] In the circumstances, the Appellant did not challenge the findings on age, and the Court finds no fault in the trial court’s determination on this element. PW4, a dentist, produced an age assessment report dated 23 rd November 2020 estimating the complainant’s age to be approximately 12 years, an age within the age bracket protected by Section 8(3) of the Sexual Offences Act. Rule 4 of the Sexual Offences Rules provides as follows in line with the above:-
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
25. Regarding identification, the evidence of PW1 and PW2 established beyond doubt that the Appellant was known to the family as a neighbour who lived near the grandmother’s place. This was, therefore, a case of recognition. Furthermore, PW2 testified that he found the Appellant literally on top of PW1 near the latrine. The court holds that this direct, visual confirmation of the act, or being caught in flagrante delicto , serves as the strongest possible evidence of identification and corroboration of penetration. The Appellant’s defence of having slapped her over maize does not shake the overwhelming weight of the prosecution’s direct evidence.
26. The court further notes that the element of penetration was proved by the concurrent testimony of PW1, PW2, and PW3. The victim, PW1 described the physical act. PW2 testified to finding them in a compromising position. PW3’s medical evidence confirmed the fact of penetration by noting bruises on the labia minora and a broken hymen. The law only requires the partial or complete insertion of the genital organs, and even the slightest penetration is sufficient to constitute the offence. [2] The medical findings, therefore, provided objective corroboration for the fact of penetration.
27. On the alleged contradictions, the Appellant raised two evidentiary inconsistencies concerning the medical evidence and the subsequent conduct of PW2. The Appellant argued that PW3 admitted the P3 form did not specify whether the broken hymen or labia minora bruises were fresh or old. The court acknowledges the fact that in many defilement cases lacking direct corroboration, the failure by medical professionals to date injuries can be detrimental, potentially disconnecting the physical evidence from the alleged offence.
28. However, the circumstances of this case are exceptional. The incident occurred on the evening of 20 th November 2020, and the complainant was taken to the hospital that very night, and subsequently, the P3 form was filled on 23 rd November 2020. PW2 found the Appellant on top of the complainant at the time of the offence, and the discovery was immediately followed by the initiation of medical and police procedures. The court takes the position that when there is overwhelming direct, contemporaneous evidence of the commission of the act, as provided by PW2 who was an eyewitness to the physical contact, the absence of specific dating of the injuries becomes less critical. The medical findings of penetration were entirely consistent with the act observed just hours prior to the initial medical examination. Therefore, this omission by the medical team, while noted, does not displace the solid body of corroborative evidence.
29. The Appellant further highlighted that PW1 claimed her clothes were torn, yet the clinical officer (PW3) noted no tears or stains. This conflict is a contradiction concerning the degree of force used during the assault. While relevant, it is settled law that such minor contradictions, if they do not touch upon the core elements of the offence being age, penetration, identification, are not fatal to a conviction, especially when direct evidence proves the central act. In Pius Nyamweya Momanyi vs Republic, Kisii HCRA No. 265 of 2009 (UR) the court stated as follows in line with the foregoing: -
“...It is trite law that minor discrepancies and contradictions should not affect a conviction.”
30. The second issue centres on the conflict between the Appellant’s status as a child offender at the time of the offence and his status as an adult at the time of sentencing, precipitated by a significant delay in the judicial process. The record confirms that the Appellant was 16 years old in November 2020 when the offence occurred. At the time of sentencing in June 2025, he was 20-21 years old. Article 53(1)(e) of the Constitution and Section 186(c) of the Children Act guarantee a child appellant of an offence the right to have the matter determined without delay and to be treated in a manner consistent with their development and best interests. If the case had been concluded swiftly, the Appellant would have been eligible for non-custodial and rehabilitative sentencing options under Section 191 of the Children Act.
31. However, the Court of Appeal has established clear, binding precedent on how courts must handle cases where a child offender attains the age of majority before conviction. In JKK v Republic KECA 241 (KLR) , the Court held that an offender who has passed the age of 18 is no longer suitable for the rehabilitative regime of the Children Act. This principle was affirmed in Suleiman Kibet Kiti v Republic KECA 1403 (KLR) , where the appellate court stressed that an offender who commits a serious crime but transitions to adulthood due to delay cannot walk home scot-free. Consequently, such an offender must face a custodial sentence to fully comprehend the weight of their actions. Accordingly, the court holds that the trial court by imposing the act of imposing imprisonment, rather than a rehabilitative order, was legally sound.
32. On the magnitude of sentence imposed by the trial court, the guiding principles on review of sentence post-conviction is well articulated by the Court of Appeal in Bernard Gacheru v Republic [2002] eKLR where the court held that:
“It is now settled law, following several authorities by this court and by the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, the sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.”
33. Further, in S vs. Malgas 2001 (1) SACR 469 (SCA) the court while expounding on the circumstances under which an appellate court would interfere trial sentence held as follows:
“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court...However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”
34. In light of the above, the court finds no misdirection by the trial court on the imposed sentence. The appeal thus fails in its entirety.
35. However, in compliance with Section 333(2) Criminal Procedure Code, the computation of the sentence shall include the period the Appellant spent in remand custody during hearing and determination of the case before sentence was meted out. The Appellant was placed in custody on 9 th December 2020 and sentenced on 25 th June 2025. The eight (8) years sentence starts running from 9th December 2020 when he was placed in remand custody.
Dated, signed and delivered virtually this 9 th day of December, 2025
Patrick J O Otieno
Judge
FOOTNOTES
[1] See Dominic Kibet Mwareng vs Republic (2013) eKLR.
[2] Erick Onyango Ondeng vs Republic (2014) eKLR
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