1. This appeal arises from the judgment of the trial court, Hon. Mary Makena, SRM, in Nyeri MCSO No. E001 of 2023 delivered on 26.09.2024 and sentence meted on 26.09.2024.
2. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on 05.07.2022, at around 0730 hours at Mungaria village, Tetu, Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of BWM, a girl aged thirteen (13) years. The appellant was convicted and sentenced to 20 years' imprisonment commencing the date of remand.
3. There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars of the offence were that the Appellant, on 05.07.2022, at around 0730 hours at Mungaria village, Tetu, Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to come touch the vagina of BWM, a girl aged thirteen (13) years
4. The Appellant, aggrieved, lodged this appeal vide a memorandum of appeal on 5.10.2024. The Court issued directions to substitute by way of amendment a petition. He filed the same on 20.1.2026, with the following grounds:
a. The learned Magistrate erred in law and in fact in failing to appreciate that the evidence of the complainant was inconsistent, doubtful, lacking in credibility, thereby occasioning a miscarriage of justice.
b. The learned Magistrate erred in law and in fact by convicting the appellant despite the prosecution’s failure to prove the essential elements of the offence of defilement to the required standard beyond reasonable doubt.
c. The learned Magistrate erred in law and in fact in failing to consider material contradictions and discrepancies in the prosecution evidence, which were substantial and capable of unsettling the conviction.
d. The learned Magistrate erred in law and in fact by failing to adequately consider and evaluate the appellant’s sworn evidence, which was not controverted by the prosecution and raised reasonable doubt.
e. The overall evidence tendered by the prosecution fell far below the required threshold of proof, rendering the conviction unsafe and untenable in law.
f. The proceedings, judgment and sentence violated the appellant's constitutional right to a fair trial under Article 50(2) of the Constitution
g. The sentence of twenty years' imprisonment was harsh, excessive, and disproportionate in the circumstances, and the trial court failed to properly consider mitigation and prevailing sentencing jurisprudence
5. The Appellant was Arrested on 6.1.2023 and arraigned in court on 09.01.2023. The appellant pleaded not guilty. he was granted Ksh. 300,000/= bond. He was supplied with witness statements and supporting documents. The matter was listed for hearing on 26.09.2022 after compliance with preliminaries.
6. PW1 was the complainant. She was taken through voir dire and found fit to give sworn evidence. She testified that on 5.07.222 she was sent not them other to buy milk. She got to the shop, which is near a coffee farm. Lewis grabbed her and took her to the coffee farm. Held her hands and mouth, removed her clothes and then inserted his penis into her vagina. She wore her clothes after the events, but somewhere else.
7. She stated that on reaching the road, her cousin TNN asked her why she was the way she was. She promised to tell her at home. She went home and told her mother, and they started looking for Lewis. They found him, and he denied defiling her. They took him to the police station with the mother, uncles, Joseph and Wachira, her mother's father, and the appellant and herself. She was examined and given a document to take to the police station. She identified the appellant in the dock. She pointed out that she tried to scream, but Lewis held his hand over her mouth.
8. On cross-examination by Mr Gichuki, she indicated that the P3 was filled at 7.30 am. She went to collect milk 300m away; she knew Lewis, who is her cousin. The appellant removed clothes with one hand, and afterwards they were dirty with dust and dew. She did not go to the shop since after the incident she found a cousin who was looking for her. They had no quarrel with Lewis’s family.
9. PW1 was later recalled and produced the clothes that she stated she had been wearing on 05.07.2022. During cross-examination, she testified that she had handed the mud-stained clothes to the police. However, she stated that she could not identify or see the mud stains on the clothes at the time they were produced in court. On re-examination, she explained that the mud had dried by the time the clothes were produced as exhibits.
10. PW2, the complainant's mother, testified that the complainant was born on 29.10.2008 and produced the complainant's birth certificate. She stated that on 05.07.2022 at about 7.30 a.m., she sent the complainant to collect milk. When the complainant took longer than expected to return, she became concerned and sent a cousin to look for her. She returned with a cousin; PW2 observed that the complainant was dirty and crying. When she inquired what had happened, the complainant informed her that the appellant, Levi, had chased her, taken her to a coffee farm, and defiled her.
11. PW2 testified that they immediately commenced a search for the appellant and later found him. The matter was then reported to the police. She further stated that the complainant was taken to hospital for examination and treatment. She identified the complainant's birth certificate, the P3 form, and the PRC form.
12. Following the incident, they went to the grandmother's house with the appellant and the complainant. The appellant’s father and a brother-in-law. The appellant denied having defiled the complainant. She further stated that after the incident, the appellant disappeared and was not seen again until December 2022, when he resurfaced. PW2 identified the appellant before the court as the person alleged to have defiled the complainant.
13. On cross-examination, she stated that they did not take the complainant to PGH. She further stated that the complainant sought treatment at Gichira Health Centre. She also stated that the appellant was found at about 8.00 a.m. on the same day. When confronted, he denied committing the offence and maintained that he had not seen the complainant that day.
14. According to her, the complainant had returned home at about 8.00 a.m. She further testified that it was Joseph and Paul Wachira who went in search of the appellant and found him on the road. She maintained that the complainant did not change her clothes before they proceeded to the police station and later to the hospital. She testified that she was not related to the appellant. There was a family relationship between the parties in that the appellant’s father and her husband were brothers. However, she maintained that they did not have any dispute or grudge with the appellant or his family.
15. PW3 was Collins Muyaka, a Clinical Officer attached to Gichira Health Centre. He testified that he holds a Diploma in Clinical Medicine from the Kenya Medical Training College. He examined the complainant and completed a Post Rape Care Form in July 2022. He found no external injuries or lacerations on the complainant's general body. On genital examination, he noted that the hymen was broken and inflamed and the labia minora were also inflamed. The anal examination revealed no abnormalities. He further observed that the complainant's clothes were dusty. On the basis of the findings, he concluded that it was possible defilement. He testified that the broken hymen and inflammation of the labia minora were consistent with penetration.
16. On cross-examination, he stated that he observed blood stains on the underpants. The post-rape care form indicated seminal stains, meaning whitish discharge. He performed a high vaginal swab, but this is not indicated in the PRC. The hymen was broken and inflamed. He stated that he did not indicate whether it was freshly broken.
17. PW4 was PC Victor Okumu of Gichira Police Station; he was the arresting officer. On 5.7.2023, he arrested the appellant. He was accompanied by PC Salam Gogo. He arrested the appellant following identification by the complainant. On cross-examination, he stated that he was accompanied by the complainant and her mother, though she did not mention the people accompanying him in his statement.
18. PW5 was PC(W) Christine Musau of Gichira Police Station. On 5.07.2022, the complainant and her mother went to the police and reported that the complainant had been defiled by the appellant. She took the minor to Gichira Medical Centre. The doctor confirmed that the minor had been defiled. She accompanied the minor and two of her colleagues. They found that the appellant had run away. On 5.1.2023, she reported that the appellant had been sighted. She preferred charges. The minor was 13 years old at the time she went to the scene. She noted that when the complainant reported, her clothes were dirty. She produced the minor’s trousers, pink T-shirt, and pink knickers as exhibits.
19. On cross-examination, PW5 testified that she was the investigating officer in the case. She stated that she did not visit the appellant's homestead, explaining that it was not the scene of the alleged offence. She confirmed that she prepared the investigation diary. She further stated that the complainant's father had apprehended the appellant, but that the appellant managed to escape. She also testified that the clothes produced as exhibits were not clean. She confirmed that she did not record a statement from the appellant. According to her investigations, the complainant's family had indicated that there was no existing dispute between the two families. She further stated that she accompanied the appellant to Nyeri Provincial General Hospital (PGH), but he was not medically examined.
20. On re-examination, PW5 clarified that the appellant's homestead was not the scene of the crime.
21. PW6, Marvin Nderitu, holds a Bachelor of Medicine and Bachelor of Surgery (MBChB). A P3 was completed by Dr Muriuki, who was out of the country for two years. The P3 concerned the complainant, aged 13 years. The minor's underpants were stained, and it was reported that she had been sexually assaulted. The injuries were hours old. It was established that there had been penile penetration. The degree of injury was harm. The external genitalia were normal. The right tibial minora was inflamed, and the hymen was broken; the conclusion was that the minor was defiled.
22. On cross-examination, he stated that P3 was filled on 20.07.2022, but the incident was reported on 05.07.2022. He stated that P3 should ideally be completed in the presence of the complainant unless an examination had previously been conducted. However, the PRC is the repository of the age of the injuries. He stated that penetration of the vaginal canal would cause inflamed and bruised labia minora. He stated that a broken hymen does not necessarily indicate defilement. He stated that stains on clothes would have dried.
23. On re-examination, he stated that the P3 is not filled on the date of examination. The PRC form is filled first and then a patient allowed to recover. The anterior of the vagina was bruised hence confirmation that there was penetration. A stain is any fluid that has dried.
24. The court found that the appellant had a case to answer and complied with Section 211 of the Criminal Procedure Code. The appellant opted for sworn evidence.
25. The appellant testified on oath as DW1. He stated that he was aware of the allegations against him but denied committing the offence. He testified that on 05.07.2022 he was in Nanyuki, having been called there by his cousin to work at a construction site. According to him, he had left his home on 04.07.2022 and was therefore not in Mungania on the material date. He knew the complainant, whom he described as his cousin. He further denied that he had gone into hiding or run away, maintaining that no one was looking for him and that the police never searched for or pursued him. He also stated that there was a strained relationship between his mother and the complainant's mother.
26. On cross-examination, the appellant stated that he worked at the construction site in Nanyuki until October 2022, although the construction project had not been completed by then. He testified that after leaving the construction site in October 2022, he stayed at his aunt's home until later that month, before eventually returning to his home in December 2022.
Impugned Judgment
27. The court analysed the evidence. The court equally analysed the defence evidence and found it difficult to believe. The court identified the three ingredients that must be proved under section 8 of the Sexual Offences Act. The court relied on the case of Raphael Mutunga Mutinda v Republic [2019] KEHC 11054 (KLR) , where Odunga J, as he then was, stated as follows:
26. It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. See the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, where it was stated that:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
28. On the question of proof, the court relied on the case of Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR) , where the court of appeal posited as follows:
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 documentary 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. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R,Cr.Appeal No.19 of 2014 and Omar Uche v R,Cr.App.No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda, Crim.Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable
29. The court found that penetration was proved. This was based on the case of Mohamud Omar Mohamed v Republic [2020] KEHC 2085 (KLR) , where C. KARIUKI J, posted as follows:
31. The test to be applied inter alia to the principles in the cited cases elsewhere in this analysis is to be found in the case of Bassita v Uganda S. C. Criminal Appeal No. 35 of 1995 where the Supreme Court held:
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim's own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim's evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
“For evidence to be capable of being corroborated it must:
(a). Be relevant and admissible Scafriot {1978} QB 1016.
(b). Be credible DPP v Kilbourne {1973} AC 729
(c). Be independent, that is emanating from a source other than the witness requiring to be corroborated Whitehead J IKB 99
(d). Implicate the accused
30. In respect of identity, the court found that the appellant was properly identified. The court relied on the case of Maitanyi v Republic [1986] KECA 39 (KLR) , where the court of appeal [Nyarangi, Platt & Gachuhi JJA)] posits as follows:
Although the lower courts did not refer to the well known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition:
“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.
Submissions
31. The Appellant filed submissions dated 11.02.2026. Reliance was placed on the case of Okeno v Republic [1972] EA 32 at 36 , on the duty of this court. Further reliance was placed on the case of Kiilu & Another vs. Republic [2005]1 KLR 174 , the Court of Appeal stated as follows:
1.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
2.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 findings and 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.
32. The appellant further relied on the case of David Njuguna Wairimu v Republic [2010] KECA 495 (KLR) , where the Court of Appeal [SEO Bosire, PN Waki & DKS Aganyanya, JJA] provides as follows:
In Okeno v R [1972] EA 32, the Court of Appeal for East Africa, laid down what the duty of the first appellate court is. Its duty is to analyse and reevaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so , provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision. In Okeno v R (supra) the Court said:
“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 findings and conclusions; it must make its own findings and draw its own conclusions.”
33. He submitted that the state is duty-bound to prove its case. It was argued that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. Reliance was placed on the case of Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 , who had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
34. Reliance was also placed on the case of Bakare v State (1987) 1 NWLR (PT 52) 579 , where the Supreme Court of Nigeria emphasised what it means for proof beyond reasonable doubt, stating:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability
35. He posited that this duty was also discussed in the case of Pius Arap Maina v Republic [2013] KEHC 1762 (KLR) , where G. Kimondo J, stated as follows:
It is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising material doubts must be interpreted in favour of the accused.
36. He submitted that the court failed to interrogate the circumstances of the occurrence of the offence. He relied on the case of Nthenya v Republic [2024] KEHC 12854 (KLR) , where DKN Magare, J, held as follows:
It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as follows:
“ What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
37. Further reliance was placed on the case of the Supreme Court of Canada in R vs. Lifchus[infra]. On penetration, they posited that the court must be satisfied that the same was proved beyond reasonable doubt. Further reliance was placed on the cases of JND v Republic [2025] KEHC 9446 (KLR) and Wanyama v Republic [2025] KEHC 11170 (KLR) .
38. He submitted that section 124 of the Evidence Act can only be used where there is evidence for believing the complainant. They supported this assertion with the decision of Lumbasi v Republic [2016] KEHC 2942 (KLR) , where E C Mwita J, as he then was, stated as follows:
5. A proper reading of the whole of section 124 of the Evidence Act showed that corroboration was still required on evidence by minors, but not mandatory in sexual offences as long as the witness was truthful and reasons were recorded. And as the long line of decisions had shown, proof in sexual offences could still be achieved through the victim’s evidence, medical evidence, circumstantial evidence or a combination of any or all of them. In sexual cases, corroboration was necessary as a matter of practice to support the testimony of the complainant. Therefore, the proviso to section 124 was not discriminatory, unconstitutional, or a violation of articles 25 and 27 of the Constitution of Kenya, 2010.
39. It is noted that an appeal from the decision was dismissed vide a decision of the Court of Appeal reported as Lumbasi v Republic [2022] KECA 1097 (KLR) .
40. The appellant submitted that the court summarily dismissed his defence. It was his submission that there was no independent verification of the evidence. He wondered how the appellant did not have any other external injuries if this happened in a coffee farm. The appellant was dusty when it was said that she was muddy. On failure to consider defence, reliance was placed on the case of Ogolla s/o Owuor v Republic, [1954] EACA 270.
41. The Respondent filed submissions dated 3.03.2026. They submitted that the facts prove that the appellant defiled the complainant. Reliance was placed on the case of George Kioji v Republic Cr. App No. 270 of 2012 , the Court of Appeal had this to say on proof in sexual offences;
“ Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed under the proviso of Section 124 of the Evidence Act, Cap 80 Laws of Kenya, a Court can convict an accused person in a prosecution involving a sexual offence on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”
42. The respondent submitted that the medical evidence established penetration, noting that the complainant had a broken hymen and bruises on the labia minora. It was further submitted that the complainant positively identified the appellant as the perpetrator. It was argued that the complainant knew the appellant well, as they were cousins, thereby eliminating the possibility of mistaken identity. On the appellant's alibi defence, it was submitted that no evidence was tendered to support his claim that he was in Nanyuki on the material date. They submitted that the alibi remained unsubstantiated and did not displace the prosecution's case. The court finds the last submissions on alibi erroneous.
Analysis
43. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
44. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36, where the East Africa Court of Appeal stated the following on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 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 findings and conclusions; 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 v. Sunday Post, [1958] E. A. 424.
45. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed
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2. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on 05.07.2022, at around 0730 hours at Mungaria village, Tetu, Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of BWM, a girl aged thirteen (13) years. The appellant was convicted and sentenced to 20 years' imprisonment commencing the date of remand.
3. There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars of the offence were that the Appellant, on 05.07.2022, at around 0730 hours at Mungaria village, Tetu, Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to come touch the vagina of BWM, a girl aged thirteen (13) years
4. The Appellant, aggrieved, lodged this appeal vide a memorandum of appeal on 5.10.2024. The Court issued directions to substitute by way of amendment a petition. He filed the same on 20.1.2026, with the following grounds:
a. The learned Magistrate erred in law and in fact in failing to appreciate that the evidence of the complainant was inconsistent, doubtful, lacking in credibility, thereby occasioning a miscarriage of justice.
b. The learned Magistrate erred in law and in fact by convicting the appellant despite the prosecution’s failure to prove the essential elements of the offence of defilement to the required standard beyond reasonable doubt.
c. The learned Magistrate erred in law and in fact in failing to consider material contradictions and discrepancies in the prosecution evidence, which were substantial and capable of unsettling the conviction.
d. The learned Magistrate erred in law and in fact by failing to adequately consider and evaluate the appellant’s sworn evidence, which was not controverted by the prosecution and raised reasonable doubt.
e. The overall evidence tendered by the prosecution fell far below the required threshold of proof, rendering the conviction unsafe and untenable in law.
f. The proceedings, judgment and sentence violated the appellant's constitutional right to a fair trial under Article 50(2) of the Constitution
g. The sentence of twenty years' imprisonment was harsh, excessive, and disproportionate in the circumstances, and the trial court failed to properly consider mitigation and prevailing sentencing jurisprudence
5. The Appellant was Arrested on 6.1.2023 and arraigned in court on 09.01.2023. The appellant pleaded not guilty. he was granted Ksh. 300,000/= bond. He was supplied with witness statements and supporting documents. The matter was listed for hearing on 26.09.2022 after compliance with preliminaries.
6. PW1 was the complainant. She was taken through voir dire and found fit to give sworn evidence. She testified that on 5.07.222 she was sent not them other to buy milk. She got to the shop, which is near a coffee farm. Lewis grabbed her and took her to the coffee farm. Held her hands and mouth, removed her clothes and then inserted his penis into her vagina. She wore her clothes after the events, but somewhere else.
7. She stated that on reaching the road, her cousin TNN asked her why she was the way she was. She promised to tell her at home. She went home and told her mother, and they started looking for Lewis. They found him, and he denied defiling her. They took him to the police station with the mother, uncles, Joseph and Wachira, her mother's father, and the appellant and herself. She was examined and given a document to take to the police station. She identified the appellant in the dock. She pointed out that she tried to scream, but Lewis held his hand over her mouth.
8. On cross-examination by Mr Gichuki, she indicated that the P3 was filled at 7.30 am. She went to collect milk 300m away; she knew Lewis, who is her cousin. The appellant removed clothes with one hand, and afterwards they were dirty with dust and dew. She did not go to the shop since after the incident she found a cousin who was looking for her. They had no quarrel with Lewis’s family.
9. PW1 was later recalled and produced the clothes that she stated she had been wearing on 05.07.2022. During cross-examination, she testified that she had handed the mud-stained clothes to the police. However, she stated that she could not identify or see the mud stains on the clothes at the time they were produced in court. On re-examination, she explained that the mud had dried by the time the clothes were produced as exhibits.
10. PW2, the complainant's mother, testified that the complainant was born on 29.10.2008 and produced the complainant's birth certificate. She stated that on 05.07.2022 at about 7.30 a.m., she sent the complainant to collect milk. When the complainant took longer than expected to return, she became concerned and sent a cousin to look for her. She returned with a cousin; PW2 observed that the complainant was dirty and crying. When she inquired what had happened, the complainant informed her that the appellant, Levi, had chased her, taken her to a coffee farm, and defiled her.
11. PW2 testified that they immediately commenced a search for the appellant and later found him. The matter was then reported to the police. She further stated that the complainant was taken to hospital for examination and treatment. She identified the complainant's birth certificate, the P3 form, and the PRC form.
12. Following the incident, they went to the grandmother's house with the appellant and the complainant. The appellant’s father and a brother-in-law. The appellant denied having defiled the complainant. She further stated that after the incident, the appellant disappeared and was not seen again until December 2022, when he resurfaced. PW2 identified the appellant before the court as the person alleged to have defiled the complainant.
13. On cross-examination, she stated that they did not take the complainant to PGH. She further stated that the complainant sought treatment at Gichira Health Centre. She also stated that the appellant was found at about 8.00 a.m. on the same day. When confronted, he denied committing the offence and maintained that he had not seen the complainant that day.
14. According to her, the complainant had returned home at about 8.00 a.m. She further testified that it was Joseph and Paul Wachira who went in search of the appellant and found him on the road. She maintained that the complainant did not change her clothes before they proceeded to the police station and later to the hospital. She testified that she was not related to the appellant. There was a family relationship between the parties in that the appellant’s father and her husband were brothers. However, she maintained that they did not have any dispute or grudge with the appellant or his family.
15. PW3 was Collins Muyaka, a Clinical Officer attached to Gichira Health Centre. He testified that he holds a Diploma in Clinical Medicine from the Kenya Medical Training College. He examined the complainant and completed a Post Rape Care Form in July 2022. He found no external injuries or lacerations on the complainant's general body. On genital examination, he noted that the hymen was broken and inflamed and the labia minora were also inflamed. The anal examination revealed no abnormalities. He further observed that the complainant's clothes were dusty. On the basis of the findings, he concluded that it was possible defilement. He testified that the broken hymen and inflammation of the labia minora were consistent with penetration.
16. On cross-examination, he stated that he observed blood stains on the underpants. The post-rape care form indicated seminal stains, meaning whitish discharge. He performed a high vaginal swab, but this is not indicated in the PRC. The hymen was broken and inflamed. He stated that he did not indicate whether it was freshly broken.
17. PW4 was PC Victor Okumu of Gichira Police Station; he was the arresting officer. On 5.7.2023, he arrested the appellant. He was accompanied by PC Salam Gogo. He arrested the appellant following identification by the complainant. On cross-examination, he stated that he was accompanied by the complainant and her mother, though she did not mention the people accompanying him in his statement.
18. PW5 was PC(W) Christine Musau of Gichira Police Station. On 5.07.2022, the complainant and her mother went to the police and reported that the complainant had been defiled by the appellant. She took the minor to Gichira Medical Centre. The doctor confirmed that the minor had been defiled. She accompanied the minor and two of her colleagues. They found that the appellant had run away. On 5.1.2023, she reported that the appellant had been sighted. She preferred charges. The minor was 13 years old at the time she went to the scene. She noted that when the complainant reported, her clothes were dirty. She produced the minor’s trousers, pink T-shirt, and pink knickers as exhibits.
19. On cross-examination, PW5 testified that she was the investigating officer in the case. She stated that she did not visit the appellant's homestead, explaining that it was not the scene of the alleged offence. She confirmed that she prepared the investigation diary. She further stated that the complainant's father had apprehended the appellant, but that the appellant managed to escape. She also testified that the clothes produced as exhibits were not clean. She confirmed that she did not record a statement from the appellant. According to her investigations, the complainant's family had indicated that there was no existing dispute between the two families. She further stated that she accompanied the appellant to Nyeri Provincial General Hospital (PGH), but he was not medically examined.
20. On re-examination, PW5 clarified that the appellant's homestead was not the scene of the crime.
21. PW6, Marvin Nderitu, holds a Bachelor of Medicine and Bachelor of Surgery (MBChB). A P3 was completed by Dr Muriuki, who was out of the country for two years. The P3 concerned the complainant, aged 13 years. The minor's underpants were stained, and it was reported that she had been sexually assaulted. The injuries were hours old. It was established that there had been penile penetration. The degree of injury was harm. The external genitalia were normal. The right tibial minora was inflamed, and the hymen was broken; the conclusion was that the minor was defiled.
22. On cross-examination, he stated that P3 was filled on 20.07.2022, but the incident was reported on 05.07.2022. He stated that P3 should ideally be completed in the presence of the complainant unless an examination had previously been conducted. However, the PRC is the repository of the age of the injuries. He stated that penetration of the vaginal canal would cause inflamed and bruised labia minora. He stated that a broken hymen does not necessarily indicate defilement. He stated that stains on clothes would have dried.
23. On re-examination, he stated that the P3 is not filled on the date of examination. The PRC form is filled first and then a patient allowed to recover. The anterior of the vagina was bruised hence confirmation that there was penetration. A stain is any fluid that has dried.
24. The court found that the appellant had a case to answer and complied with Section 211 of the Criminal Procedure Code. The appellant opted for sworn evidence.
25. The appellant testified on oath as DW1. He stated that he was aware of the allegations against him but denied committing the offence. He testified that on 05.07.2022 he was in Nanyuki, having been called there by his cousin to work at a construction site. According to him, he had left his home on 04.07.2022 and was therefore not in Mungania on the material date. He knew the complainant, whom he described as his cousin. He further denied that he had gone into hiding or run away, maintaining that no one was looking for him and that the police never searched for or pursued him. He also stated that there was a strained relationship between his mother and the complainant's mother.
26. On cross-examination, the appellant stated that he worked at the construction site in Nanyuki until October 2022, although the construction project had not been completed by then. He testified that after leaving the construction site in October 2022, he stayed at his aunt's home until later that month, before eventually returning to his home in December 2022.
Impugned Judgment
27. The court analysed the evidence. The court equally analysed the defence evidence and found it difficult to believe. The court identified the three ingredients that must be proved under section 8 of the Sexual Offences Act. The court relied on the case of Raphael Mutunga Mutinda v Republic [2019] KEHC 11054 (KLR) , where Odunga J, as he then was, stated as follows:
26. It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. See the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, where it was stated that:
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
28. On the question of proof, the court relied on the case of Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR) , where the court of appeal posited as follows:
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 documentary 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. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R,Cr.Appeal No.19 of 2014 and Omar Uche v R,Cr.App.No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda, Crim.Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable
29. The court found that penetration was proved. This was based on the case of Mohamud Omar Mohamed v Republic [2020] KEHC 2085 (KLR) , where C. KARIUKI J, posted as follows:
31. The test to be applied inter alia to the principles in the cited cases elsewhere in this analysis is to be found in the case of Bassita v Uganda S. C. Criminal Appeal No. 35 of 1995 where the Supreme Court held:
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim's own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim's evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
“For evidence to be capable of being corroborated it must:
(a). Be relevant and admissible Scafriot {1978} QB 1016.
(b). Be credible DPP v Kilbourne {1973} AC 729
(c). Be independent, that is emanating from a source other than the witness requiring to be corroborated Whitehead J IKB 99
(d). Implicate the accused
30. In respect of identity, the court found that the appellant was properly identified. The court relied on the case of Maitanyi v Republic [1986] KECA 39 (KLR) , where the court of appeal [Nyarangi, Platt & Gachuhi JJA)] posits as follows:
Although the lower courts did not refer to the well known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition:
“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.
Submissions
31. The Appellant filed submissions dated 11.02.2026. Reliance was placed on the case of Okeno v Republic [1972] EA 32 at 36 , on the duty of this court. Further reliance was placed on the case of Kiilu & Another vs. Republic [2005]1 KLR 174 , the Court of Appeal stated as follows:
1.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
2.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 findings and 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.
32. The appellant further relied on the case of David Njuguna Wairimu v Republic [2010] KECA 495 (KLR) , where the Court of Appeal [SEO Bosire, PN Waki & DKS Aganyanya, JJA] provides as follows:
In Okeno v R [1972] EA 32, the Court of Appeal for East Africa, laid down what the duty of the first appellate court is. Its duty is to analyse and reevaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so , provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision. In Okeno v R (supra) the Court said:
“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 findings and conclusions; it must make its own findings and draw its own conclusions.”
33. He submitted that the state is duty-bound to prove its case. It was argued that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. Reliance was placed on the case of Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 , who had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
34. Reliance was also placed on the case of Bakare v State (1987) 1 NWLR (PT 52) 579 , where the Supreme Court of Nigeria emphasised what it means for proof beyond reasonable doubt, stating:
“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability
35. He posited that this duty was also discussed in the case of Pius Arap Maina v Republic [2013] KEHC 1762 (KLR) , where G. Kimondo J, stated as follows:
It is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising material doubts must be interpreted in favour of the accused.
36. He submitted that the court failed to interrogate the circumstances of the occurrence of the offence. He relied on the case of Nthenya v Republic [2024] KEHC 12854 (KLR) , where DKN Magare, J, held as follows:
It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as follows:
“ What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’”
37. Further reliance was placed on the case of the Supreme Court of Canada in R vs. Lifchus[infra]. On penetration, they posited that the court must be satisfied that the same was proved beyond reasonable doubt. Further reliance was placed on the cases of JND v Republic [2025] KEHC 9446 (KLR) and Wanyama v Republic [2025] KEHC 11170 (KLR) .
38. He submitted that section 124 of the Evidence Act can only be used where there is evidence for believing the complainant. They supported this assertion with the decision of Lumbasi v Republic [2016] KEHC 2942 (KLR) , where E C Mwita J, as he then was, stated as follows:
5. A proper reading of the whole of section 124 of the Evidence Act showed that corroboration was still required on evidence by minors, but not mandatory in sexual offences as long as the witness was truthful and reasons were recorded. And as the long line of decisions had shown, proof in sexual offences could still be achieved through the victim’s evidence, medical evidence, circumstantial evidence or a combination of any or all of them. In sexual cases, corroboration was necessary as a matter of practice to support the testimony of the complainant. Therefore, the proviso to section 124 was not discriminatory, unconstitutional, or a violation of articles 25 and 27 of the Constitution of Kenya, 2010.
39. It is noted that an appeal from the decision was dismissed vide a decision of the Court of Appeal reported as Lumbasi v Republic [2022] KECA 1097 (KLR) .
40. The appellant submitted that the court summarily dismissed his defence. It was his submission that there was no independent verification of the evidence. He wondered how the appellant did not have any other external injuries if this happened in a coffee farm. The appellant was dusty when it was said that she was muddy. On failure to consider defence, reliance was placed on the case of Ogolla s/o Owuor v Republic, [1954] EACA 270.
41. The Respondent filed submissions dated 3.03.2026. They submitted that the facts prove that the appellant defiled the complainant. Reliance was placed on the case of George Kioji v Republic Cr. App No. 270 of 2012 , the Court of Appeal had this to say on proof in sexual offences;
“ Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed under the proviso of Section 124 of the Evidence Act, Cap 80 Laws of Kenya, a Court can convict an accused person in a prosecution involving a sexual offence on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.”
42. The respondent submitted that the medical evidence established penetration, noting that the complainant had a broken hymen and bruises on the labia minora. It was further submitted that the complainant positively identified the appellant as the perpetrator. It was argued that the complainant knew the appellant well, as they were cousins, thereby eliminating the possibility of mistaken identity. On the appellant's alibi defence, it was submitted that no evidence was tendered to support his claim that he was in Nanyuki on the material date. They submitted that the alibi remained unsubstantiated and did not displace the prosecution's case. The court finds the last submissions on alibi erroneous.
Analysis
43. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
44. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [1972] EA 32 at 36, where the East Africa Court of Appeal stated the following on the duty of the court on a first appeal:
An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 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 findings and conclusions; 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 v. Sunday Post, [1958] E. A. 424.
45. The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed
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