1. The Appellant appealed against both conviction and the sentence on the following grounds: -
1) THAT, the learned Magistrate erred in law and fact by failing to re-evaluate the whole evidence of the prosecution case as incumbent of him to find that the ingredients forming the case in question was not established.
2) THAT, the learned Magistrate erred in law and fact by failing to observe that the prosecution's case was open to ambivalence since the trial was unfair in contravention of article 25 (c) of the constitution.
3) THAT, the Magistrate erred in law by failing to give the appellant's defense and submission adequate consideration, consequently acting inconsistently with article 50 of the Kenyan Constitution.
4) THAT, the learned trial Magistrate erred in matters of law and facts by failing to find that the essential prosecution witnesses and exhibits, necessary to prove basis facts were not produced.
5) THAT, further grounds will be adduced at the hearing of this appeal upon receipt of a copy of trial records.
Appellant’s submissions;
2. It is his case that the trial court erred in law for convicting the him without observing that there was no clear identification at the scene of crime by the minor.
3. The trial court erred in law by convicting him without observing that the minor's evidence was not reliable for conviction.
4. He argues that the minor was not able to identify the alleged individuals who defiled her as the said individuals were said to have masked themselves with lessos and only the eyes could be seen.
5. The trial court did not pay attention to the fact that it was not possible for the minor to recognize the perpetrators.
6. The trial court ought to have gathered more evidence to credit the prosecution's case.
7. He further argued that the trial court failed to find that the minor ought to have given description of her perpetrators for her evidence to be admissible in terms of complexion and height features.
8. He maintains that the failure of the minor to give description of her assailants to the police was a grave error of the law in respect to the laws guiding how an identification parade should be conducted under the forces standing order.
9. On another front he argues that the trial court contravened the forces standing orders because the complainant did not give the description to the police to reflect the persons to be arrested and identified given that the assailants had hidden their faces. This proved there were difficulties in identifying the assailants at the scene of crime.
10. The trial court erred in law for failing to observe the conditions for identification were unfavorable for the minor to identify her assailants.
11. The complainant told the court that the appellants approached her at school and made some threats to her.
12. The trial court failed to observe the appellant herein was not arrested on the allegations of defilement and upon subjecting them to parade was contrary to the charges of defilement according to him.
13. It is his submission that the trial court erred in law for playing blind eyes on this matter for the minor did not report on the day she alleges to have been approached by the appellant and to make matter worse the appellant herein was in fact arrested over different allegations of bhang which ought to have raised eye brows.
14. He submitted that it might be true that the minor was defiled but the trial court failed to observe there might be a possibility of error that it was the appellant herein.This is because PW2 the mother of the child told the court that her daughter was not able to know the rapist.
15. This statement contradicted with that of PW4 the investigation officer who told the court that the child said that it was Lewis and Ngariya who did that.
16. He further submits that the trial court failed to observe PW4 did not call any extra witness at the said school to corroborate and justify the appellant herein went to her school.
17. The trial court failed to observe the evidence of the minor was weak to sustain a conviction against the appellant because in the first instance there was no description given to the police, second after the incident she was not able to identify the assailant as they had covered their faces with lesso and thirdly after the said individuals approached her in school she did not report to her teachers or the police to confirm in material fact that the appellant herein was in company of another to her school to offer the alleged threats.
18. The trial court failed to observe there was doubt between the alleged perpetrators and said individuals who are said they went to her school which ought to have been resolved in favor of the appellant herein.
19. The convicting on the evidence of a single witness that was marred with doubts to warrant appellant's conviction was illegal according to him.
The Respondent's Submissions;
20. The Appellant was charged with gang defilement contrary to Section 10 of the Sexual offences Act No. 3 of 2006.
21. The appellant was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
22. The accused denied the charge and the prosecution called 5 witnesses who proved the case beyond reasonable doubt and the appellant was found guilty.
23. The appellant lodged this appeal alleging that the charge of defilement was not proved beyond reasonable doubt.
24. The ingredients of sexual offences that need to be proved to prove beyond reasonable doubt are: - age of complainant, proof of penetration and positive identification of the accused by the complainant.
25. In respect to the issue of the complainant's age, PWI stated in court that she was 7 years old.
26. Her evidence was corroborated by PW2, her mother who stated that the complainant is her daughter and was born in 4th May, 2011 and presented her birth certificate in court which was produced as Prosecution Exhibit No. 4.
27. This shows at the time of the offence, the complainant was a minor aged 10 years hence the accused was charged within the parameters of the law in consideration to the offence he had committed.
28. In the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that: -
The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof." " We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable."
29. In respect of penetration, Section 2 of the Sexual Offences Act defines 'penetration' as:
The partial or complete insertion of the genital organs o fa person into the genital organ of another person.
30. PWI testified that the perpetrators took her to the bush and removed her clothes. One sat as the other removed his clothes and put his penis into her private part of urinating/vagina. The other one stood and removed his clothes, trouser and inner wear and put his penis into her private part- anus.
31. The evidence of PWI was corroborated by PW5, the clinical officer who testified that the complainant was taken to hospital on the 21/6/2021.He stated that lab results showed there was blood in the urine hence defilement. The clinical officer who filled the P3 form concluded that there was defilement.
32. Being a minor,it is the prosecution’s submission that at the time of the offence the victim could not be capable of appreciating the nature of what was happening hence she could not have consented to the sex.
33. In respect of identity of the perpetrator, PWI is the only witness who was present at the time of the attack. She was grabbed from behind and that her assailants had obscured their faces. Later, two men went to her school and called her as she went for short call and threatened to kill her for telling and reporting to the police.
34. This time she saw both their faces and these are the men she identified at the identification parade as the perpetrators. By following her to school to threaten her for reporting to the police confirms that these are very people who defiled her.
35. PWI narrated how her two assailant took turns at defiling her, one penetrating her vagina and the other one using his penis to penetrate her anus. This clearly indicates that the defilement was committed in association with two persons to wit both accused persons which qualifies the element of gang defilement.
36. The Appellant alleges that the trial court failed to consider his defence and submissions.it is submitted that this ground is unsupported by the record and does not meet the threshold for appellate interference.
37. The judgment of the trial court expressly summarized the appellant's defence and evaluated it against the prosecution evidence.
38. The appellant's claim that the trial magistrate errored by failing to find that essential prosecution witnesses to prove the case were no summoned.
39. It submits that this ground is misconceived, unsupported by law and lacks merit. It is settled law in Kenya that the prosecution is not obliged to call a superfluity of witnesses to prove its case.
40. What is required is the calling of sufficient witnesses to establish the charge beyond reasonable doubt.
41. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides that:
"No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. "
42. The Court of Appeal in Bukenya & Others v Uganda [19721 EA 549 held that while the prosecution should make available all witnesses necessary to establish the truth, it retains the discretion to decide which witnesses to call, unless it is shown that the witnesses not called were crucial and that their evidence would have been adverse to the prosecution.
43. This position was reaffirmed in Keter v Republic [20071 1 EA 135, where the Court held that an adverse inference can only be drawn where the prosecution deliberately withholds witnesses whose evidence would have been vital and adverse to its case.
44. The appeal should be dismissed.
Analysis and determination
Issues for determination:
Whether the appeal has merit.
45. This being a first appeal, the duty of the court was well stated in Okeno v Republic [19721 EA 32 thus:
"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to afresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post 19581 E.A 424. "
46. The offence of defilement must have the following ingredients: identification of the perpetrator, age of the victim and proof of partial or full penetration. (see section 81(1) of the Act.).All must be proved in order to sustain a conviction. (see the case of George Opondo Olunga v Republic (2016) eKLR. In the present case, the age of the complainant is not in issue.
47. Section 2 of the Act defines penetration as “The partial or complete insertion of the genital organ of one person into the genital organ of another person”.
48. The crucial question in this case is, whether penetration was proved.Proof of penetration is based on the testimony of the complainant.
49. Under Section 124 of the Evidence Act, corroboration is not necessary in sexual offences. The section provides as follows:
“Notwithstanding the provisions of section 19 of the oaths and statutory declaration Act, where the evidence of an alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence; the accused shall not be liable to be convicted on such evidence unless it is corroborated by other Material Evidence in support thereof implicating him provided that wherein a criminal case involving a Sexual Offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reasons to be recorded, in the proceedings, the court is satisfied that the alleged victim is telling the truth”.
50. I have no doubt that notwithstanding the Appellant’s argument on this issue, the court was convinced and satisfied from the doctor’s evidence that there was penetration and from the medical report it is clear that the child was defiled.
51. As at the time the offence was committed, the child was 10 years old. This was proven by the child’s mother through the birth certificate. She testified that the complainant is was born on 4th May, 2011. Her birth certificate was produced as Prosecution Exhibit No. 4.This placed the complaint within the Sexual Offences Act.
52. This appeal turned heavily around the issue of the identification of the appellant. According to PW 1 they assailants including the Appellant, had covered their faces with lessos on their faces, and only their eyes could be seen.
53. She testified that later on the appellant visited her school and threatened to kill her for reporting the crime to the police.
54. During cross examination, she testified that she knew the appellant after the day he confronted her and issued her with threats since that day he was wearing the same clothes that he wore on the day he defiled her.
55. PW3 inspector Chege conducted the identification parade and the victim identified the Appellant by touching him.The report was produced as prosecution exhibit number 5.
56. PW4 the investigating officer testified with a child was traumatized that she saw the two youths that included the Appellant who she came to know on 22nd October 2021 after they visited her school. The identification, was based on recognition.
57. This court is satisfied that the victim identified the assailants. Although at the time the offense was committed, the appellant had his face covered with a lesso he visited this school and threatened the victim soon after the offense was committed.
58. This points at a possibility and an inference that the appellant was the person who committed the offense.
59. It is not normal that people minding their own business would just go and threaten children in school for no reason whatsoever. The school visit was motivated by an urge to create fear in the mind of the child so as to make her not to pursue justice.
60. The appellant was subsequently identified at the identification parade and in the dock by the victim who could by now recognise him.
61. The child could remember the clothes that the appellant was wearing when the offence was committed since he wore the same clothes during the visit to the school.No cross examination was conducted by the appellant to challenge the dress code and the identification.
62. The fact that the identification parade consisted of nine people does not vitiate the identification parade or the report. This ground must fail.
Determination;
63. The trial court did not fall into error in law or fact in convicting and sentencing the appellant.
Order:
The appeal has no merit and the same is dismissed.
Dated, signed and delivered virtually at Eldoret this 18th day of June 2026.
1) THAT, the learned Magistrate erred in law and fact by failing to re-evaluate the whole evidence of the prosecution case as incumbent of him to find that the ingredients forming the case in question was not established.
2) THAT, the learned Magistrate erred in law and fact by failing to observe that the prosecution's case was open to ambivalence since the trial was unfair in contravention of article 25 (c) of the constitution.
3) THAT, the Magistrate erred in law by failing to give the appellant's defense and submission adequate consideration, consequently acting inconsistently with article 50 of the Kenyan Constitution.
4) THAT, the learned trial Magistrate erred in matters of law and facts by failing to find that the essential prosecution witnesses and exhibits, necessary to prove basis facts were not produced.
5) THAT, further grounds will be adduced at the hearing of this appeal upon receipt of a copy of trial records.
Appellant’s submissions;
2. It is his case that the trial court erred in law for convicting the him without observing that there was no clear identification at the scene of crime by the minor.
3. The trial court erred in law by convicting him without observing that the minor's evidence was not reliable for conviction.
4. He argues that the minor was not able to identify the alleged individuals who defiled her as the said individuals were said to have masked themselves with lessos and only the eyes could be seen.
5. The trial court did not pay attention to the fact that it was not possible for the minor to recognize the perpetrators.
6. The trial court ought to have gathered more evidence to credit the prosecution's case.
7. He further argued that the trial court failed to find that the minor ought to have given description of her perpetrators for her evidence to be admissible in terms of complexion and height features.
8. He maintains that the failure of the minor to give description of her assailants to the police was a grave error of the law in respect to the laws guiding how an identification parade should be conducted under the forces standing order.
9. On another front he argues that the trial court contravened the forces standing orders because the complainant did not give the description to the police to reflect the persons to be arrested and identified given that the assailants had hidden their faces. This proved there were difficulties in identifying the assailants at the scene of crime.
10. The trial court erred in law for failing to observe the conditions for identification were unfavorable for the minor to identify her assailants.
11. The complainant told the court that the appellants approached her at school and made some threats to her.
12. The trial court failed to observe the appellant herein was not arrested on the allegations of defilement and upon subjecting them to parade was contrary to the charges of defilement according to him.
13. It is his submission that the trial court erred in law for playing blind eyes on this matter for the minor did not report on the day she alleges to have been approached by the appellant and to make matter worse the appellant herein was in fact arrested over different allegations of bhang which ought to have raised eye brows.
14. He submitted that it might be true that the minor was defiled but the trial court failed to observe there might be a possibility of error that it was the appellant herein.This is because PW2 the mother of the child told the court that her daughter was not able to know the rapist.
15. This statement contradicted with that of PW4 the investigation officer who told the court that the child said that it was Lewis and Ngariya who did that.
16. He further submits that the trial court failed to observe PW4 did not call any extra witness at the said school to corroborate and justify the appellant herein went to her school.
17. The trial court failed to observe the evidence of the minor was weak to sustain a conviction against the appellant because in the first instance there was no description given to the police, second after the incident she was not able to identify the assailant as they had covered their faces with lesso and thirdly after the said individuals approached her in school she did not report to her teachers or the police to confirm in material fact that the appellant herein was in company of another to her school to offer the alleged threats.
18. The trial court failed to observe there was doubt between the alleged perpetrators and said individuals who are said they went to her school which ought to have been resolved in favor of the appellant herein.
19. The convicting on the evidence of a single witness that was marred with doubts to warrant appellant's conviction was illegal according to him.
The Respondent's Submissions;
20. The Appellant was charged with gang defilement contrary to Section 10 of the Sexual offences Act No. 3 of 2006.
21. The appellant was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
22. The accused denied the charge and the prosecution called 5 witnesses who proved the case beyond reasonable doubt and the appellant was found guilty.
23. The appellant lodged this appeal alleging that the charge of defilement was not proved beyond reasonable doubt.
24. The ingredients of sexual offences that need to be proved to prove beyond reasonable doubt are: - age of complainant, proof of penetration and positive identification of the accused by the complainant.
25. In respect to the issue of the complainant's age, PWI stated in court that she was 7 years old.
26. Her evidence was corroborated by PW2, her mother who stated that the complainant is her daughter and was born in 4th May, 2011 and presented her birth certificate in court which was produced as Prosecution Exhibit No. 4.
27. This shows at the time of the offence, the complainant was a minor aged 10 years hence the accused was charged within the parameters of the law in consideration to the offence he had committed.
28. In the case of Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that: -
The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof." " We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable."
29. In respect of penetration, Section 2 of the Sexual Offences Act defines 'penetration' as:
The partial or complete insertion of the genital organs o fa person into the genital organ of another person.
30. PWI testified that the perpetrators took her to the bush and removed her clothes. One sat as the other removed his clothes and put his penis into her private part of urinating/vagina. The other one stood and removed his clothes, trouser and inner wear and put his penis into her private part- anus.
31. The evidence of PWI was corroborated by PW5, the clinical officer who testified that the complainant was taken to hospital on the 21/6/2021.He stated that lab results showed there was blood in the urine hence defilement. The clinical officer who filled the P3 form concluded that there was defilement.
32. Being a minor,it is the prosecution’s submission that at the time of the offence the victim could not be capable of appreciating the nature of what was happening hence she could not have consented to the sex.
33. In respect of identity of the perpetrator, PWI is the only witness who was present at the time of the attack. She was grabbed from behind and that her assailants had obscured their faces. Later, two men went to her school and called her as she went for short call and threatened to kill her for telling and reporting to the police.
34. This time she saw both their faces and these are the men she identified at the identification parade as the perpetrators. By following her to school to threaten her for reporting to the police confirms that these are very people who defiled her.
35. PWI narrated how her two assailant took turns at defiling her, one penetrating her vagina and the other one using his penis to penetrate her anus. This clearly indicates that the defilement was committed in association with two persons to wit both accused persons which qualifies the element of gang defilement.
36. The Appellant alleges that the trial court failed to consider his defence and submissions.it is submitted that this ground is unsupported by the record and does not meet the threshold for appellate interference.
37. The judgment of the trial court expressly summarized the appellant's defence and evaluated it against the prosecution evidence.
38. The appellant's claim that the trial magistrate errored by failing to find that essential prosecution witnesses to prove the case were no summoned.
39. It submits that this ground is misconceived, unsupported by law and lacks merit. It is settled law in Kenya that the prosecution is not obliged to call a superfluity of witnesses to prove its case.
40. What is required is the calling of sufficient witnesses to establish the charge beyond reasonable doubt.
41. Section 143 of the Evidence Act (Cap 80 Laws of Kenya) provides that:
"No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. "
42. The Court of Appeal in Bukenya & Others v Uganda [19721 EA 549 held that while the prosecution should make available all witnesses necessary to establish the truth, it retains the discretion to decide which witnesses to call, unless it is shown that the witnesses not called were crucial and that their evidence would have been adverse to the prosecution.
43. This position was reaffirmed in Keter v Republic [20071 1 EA 135, where the Court held that an adverse inference can only be drawn where the prosecution deliberately withholds witnesses whose evidence would have been vital and adverse to its case.
44. The appeal should be dismissed.
Analysis and determination
Issues for determination:
Whether the appeal has merit.
45. This being a first appeal, the duty of the court was well stated in Okeno v Republic [19721 EA 32 thus:
"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to afresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post 19581 E.A 424. "
46. The offence of defilement must have the following ingredients: identification of the perpetrator, age of the victim and proof of partial or full penetration. (see section 81(1) of the Act.).All must be proved in order to sustain a conviction. (see the case of George Opondo Olunga v Republic (2016) eKLR. In the present case, the age of the complainant is not in issue.
47. Section 2 of the Act defines penetration as “The partial or complete insertion of the genital organ of one person into the genital organ of another person”.
48. The crucial question in this case is, whether penetration was proved.Proof of penetration is based on the testimony of the complainant.
49. Under Section 124 of the Evidence Act, corroboration is not necessary in sexual offences. The section provides as follows:
“Notwithstanding the provisions of section 19 of the oaths and statutory declaration Act, where the evidence of an alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence; the accused shall not be liable to be convicted on such evidence unless it is corroborated by other Material Evidence in support thereof implicating him provided that wherein a criminal case involving a Sexual Offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reasons to be recorded, in the proceedings, the court is satisfied that the alleged victim is telling the truth”.
50. I have no doubt that notwithstanding the Appellant’s argument on this issue, the court was convinced and satisfied from the doctor’s evidence that there was penetration and from the medical report it is clear that the child was defiled.
51. As at the time the offence was committed, the child was 10 years old. This was proven by the child’s mother through the birth certificate. She testified that the complainant is was born on 4th May, 2011. Her birth certificate was produced as Prosecution Exhibit No. 4.This placed the complaint within the Sexual Offences Act.
52. This appeal turned heavily around the issue of the identification of the appellant. According to PW 1 they assailants including the Appellant, had covered their faces with lessos on their faces, and only their eyes could be seen.
53. She testified that later on the appellant visited her school and threatened to kill her for reporting the crime to the police.
54. During cross examination, she testified that she knew the appellant after the day he confronted her and issued her with threats since that day he was wearing the same clothes that he wore on the day he defiled her.
55. PW3 inspector Chege conducted the identification parade and the victim identified the Appellant by touching him.The report was produced as prosecution exhibit number 5.
56. PW4 the investigating officer testified with a child was traumatized that she saw the two youths that included the Appellant who she came to know on 22nd October 2021 after they visited her school. The identification, was based on recognition.
57. This court is satisfied that the victim identified the assailants. Although at the time the offense was committed, the appellant had his face covered with a lesso he visited this school and threatened the victim soon after the offense was committed.
58. This points at a possibility and an inference that the appellant was the person who committed the offense.
59. It is not normal that people minding their own business would just go and threaten children in school for no reason whatsoever. The school visit was motivated by an urge to create fear in the mind of the child so as to make her not to pursue justice.
60. The appellant was subsequently identified at the identification parade and in the dock by the victim who could by now recognise him.
61. The child could remember the clothes that the appellant was wearing when the offence was committed since he wore the same clothes during the visit to the school.No cross examination was conducted by the appellant to challenge the dress code and the identification.
62. The fact that the identification parade consisted of nine people does not vitiate the identification parade or the report. This ground must fail.
Determination;
63. The trial court did not fall into error in law or fact in convicting and sentencing the appellant.
Order:
The appeal has no merit and the same is dismissed.
Dated, signed and delivered virtually at Eldoret this 18th day of June 2026.