(Being an appeal arising from the conviction and sentence by Hon. L. W. Gitaru, Senior Resident Magistrate in Makindu Senior Principal Magistrate’s Case No. E072 OF 2O23 delivered on the 11 th day of November, 2025.)
JUDGMENT.
Brief Introduction
1. This is a rare appeal in that it is by an adult woman who was convicted and sentenced for defiling a young boy. It is alleged that on the 2 nd of September, at Kalamba village and location, she unlawfully caused her genital organs namely vagina to be penetrated by a male organ, namely penis of K.K.K. a boy aged 12 years contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006.
2. She also faced 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. It is alleged that on the 2/9/2023 at Kalamba village and location in Makindu sub county within Makueni County, the Appellant intentionally and unlawfully caused her female genital organs namely vagina to be touched by a male organ namely Penis of K.K.K a boy aged 12 years. She denied both counts.
3. The matter proceeded for hearing and the prosecution called 5 witnesses in support of their case while the defence called the accused person only. On 11 th November, 2025, the trial court found the Appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(3) and the accused was sentenced to ten years’ imprisonment on the Main charge.
4. Aggrieved with the said judgement, the appellant filed the instant appeal based on the following 8 grounds quoted verbatim: -
1) That the learned trial magistrate erred in law and in fact by failing to give regard to the material contradictions and inconsistencies in the prosecution’s case.
2) That the learned trial magistrate erred in law and in fact by finding that the main charge of defilement was proved conclusively.
3) That the learned trial magistrate erred in law and in fact by failing to find that the victim evidence of PW1 was obtained through coercion.
4) That the learned trial magistrate erred in law and in fact in relying on medical evidence that was inconclusive and not incriminatory.
5) That the learned trial magistrate erred in law and in fact in by omni-bus application of Section 124 of the Evidence Act.
6) That the learned trial magistrate erred in law and in fact by disregarding the element of coaching in the prosecution case.
7) That the learned trial magistrate erred in law and in fact by failing to consider the defence as tendered by the Appellant.
8) That the learned trial magistrate erred in law and in fact by shifting the burden of proof to the Appellant .
5. She proposes to seek from the Honourable Court that the appeal be allowed, that the final judgement of the trial magistrate dated the 11/11/2025 be set aside, that the conviction order by the trial court be quashed and lastly that the sentence by the trial court be set aside.
Prosecution’s case
6. PW1, the minor testified ( hereinunder referred to as the complainant ) whereby he informed the trial court that on the day of the incident, he was home with the house help ( hereinunder referred to as the Appellant ) with his young sibling aged 6 years. They sleep in the same bedroom all of them and on the particular date they went to sleep at 8.00 p.m. In his evidence he narrated that there are two beds in the bedroom, one belonging to him and the other belonging to the House help, which he clarified in cross examination that it is double decker. That the Appellant took the bible and started reading on her bed while putting her legs on him after telling him to get to her bed they read the bible. The complainant testified that the Appellant removed his trouser and boxer and then took his Penis and inserted in her private parts which he pointed to at the time of giving his evidence. He testified that his mother ( Hereinunder referred as PW2 ) eventually knocked the door and it is when the Appellant told the Complainant to put back on back his clothes and to give his mother the keys.
7. The Complainant further stated that PW2 opened the door and talked to the Appellant and left for the living room. That I was on Friday that the Complainant informed PW2 and his father ( herein referred to as PW3 ) on Saturday that the Appellant had told them what had transpired, after which they went to the Police station. On cross examination he reiterated the events as were stated during the examination on chief, save for the fact that the Complainant added that it was not the first time the Appellant is doing the alleged incident. On re-examination he stated that the bedroom has no curtains and as such one can see inside the room from outside and that is why he was told to switch off the lights when PW2 arrived.
8. PW2 informed the trial court that she arrived home around 8:50 with her husband and in the house there was the Appellant, Complainant and their 5-year-old daughter who had all slept in the house outside the main house. She testified that she went to ask them for the keys to the main house and she knocked. That the door has a window which did not have curtains and when she peeped she saw the Complainant coming from the Appellant’s bed side and switched off the light and through the door opening handed PW2 the keys. PW2 testified that she asked the Complainant to open the door and that is when she asked the Appellant why the Complainant was sleeping on her bed side and the Appellant apparently informed her that the Complainant was not sleeping however the said Complainant had clothes on at the time.
9. Upon further investigation PW2 testified that the Complainant demonstrated that the Appellant touched his chest to his waist and removed his clothes and took his penis to her vagina and it is not the first time the said incident had happened. They further recorded a statement to the authorities and the complainant was taken to Matiliku Sub – County Hospital for examination.
10. On cross examination the complainant informed PW2 that he was doing bad manners with the Complainant and it was not the first time the same was happening. On whether PW3 had tried to get into a relationship she disagreed. On re-examination it was PW2’s evidence that the Complainant was told by the Appellant to put on trousers, switch off the lights then handed him the keys. He further stated that it was not PW3 who told the Complainant to say that the Appellant had done bad manners to him but it was the Complainant who volunteered the said information to them. She further produced a copy of the birth certificate showing that the Complainant was 12 years old.
11. PW3 testified that on the same date when they entered the main house, that PW2 informed him that he found the Complainant sleeping on the Appellant’s bed and felt that there was something fishy. PW3 testified that they agreed to investigate further the following day. He later testified that the Complainant informed him that he was sleeping in the Appellant’s bed when PW2 knocked that evening and that the baby was yet to sleep so they started reading the bible but once the child slept, the Appellant started caressing him from the chest to his private parts and that she removed his clothes and inserted his penis into her vagina and that they had sex. PW3 further testified upon asking the Complainant if the same has happened before and the Complainant stated that it had happened before. He further testified that later PW3 called the Appellant to explain but she refused and that is when they lodged the complaint at the police station.
12. PW4, the clinical officer testified and stated that she has a patient card for the Complainant which she produced. The Complainant went to their facility with a history of defilement and was accompanied by both his parents. She also had a copy of the P3 Form and it was her evidence that there was no injury on the genitalia, anus, no presence of discharge on the anus or thighs. She further testified that they did lab investigation on both the Complainant and the Appellant and the same was produced as an exhibit as well. The witness further testified that no injuries were noted on physical examination. That her results do not support the allegation but just the history. It is not easy to establish for a boy unlike a girl whose hymens are normally tested.
13. On cross examination PW4 testified that on urinalysis testing, nothing was found on the Complainant. She further testified that there is different anatomy for females and males and it can be possible for the Complainant to not get an infection after the act. Further, she testified that she did not note anything on the P3 Form which was according to history and similarly on the PRC form nothing was detected being that for a male person it is difficult to examine defilement. She also confirmed that it is very likely for a 12 years old to penetrate a 23 years old female vagina but they did not investigate the Appellants genital organs and only an urinalysis was conducted.
14. PW5, the Investigating Officer testified to having recorded the statement of the PW2, PW3 and interrogated the minor who informed him that on diverse dates and specifically on the date of the incident the Appellant took his genital organs and inserted them into her genital organs and that it was for the second time. That the complainant further informed him that they slept earlier than before and that his parents found them sleeping on the same bed. It is at that point that PW5 decided to charge the Appellant with the offence stipulated herein. On cross examination PW5 he reiterated the above and further testified that he did his investigation and that he does not believe that the charges were pressed against the Appellant due to bad blood between his parents and the Appellant.
Defence case
15. In her defense she testified that she was a nanny at PW2 & PW3’s house and that she used to sleep in the outside room with one double decker bed. She testified that she would sleep on the lower bed with the small child whereas the Complainant would sleep on the upper bed and that on the date of the incident she left the complainant in the main house at around 7 P.M to go to sleep. That she left the door open and the solar lights were on to allow the Complainant to come in only for her to suddenly see PW2 in the room while she continued to sleep. That she did not know where the Complainant was at the time and PW2 did not tell her anything that day. That the following day PW2 and PW3 summoned her and the Complainant to the main house and that is when they asked her and the Complainant what had happened the previous day. She further stated that PW2 later told her that the Complainant had stated that he had been shown bad manners by the Appellant. She testified that she did not know what was happening even when she was taken to the hospital. She did not know why she was being tested. She further denied inserting the Complainant genital organs into hers. She denied all the testimony availed before the trial court and stated that she was being accused falsely as PW3 had made advances to her to which she had completely refused and that PW2 had added more work to her with no advance payment in salary.
16. On cross examination she testified that she has never sat with the Complainant on his bed and that it was not an offence to sit in someone’s bed. She further reiterated the testimony she gave on examination on chief.
17. The trial court found that the prosecution had established the essential elements of defilement, namely penetration, the age of the victim, and recognition of the perpetrator. The court concluded that the appellant was guilty of defilement and convicted her, accordingly, imposing a custodial sentence of Ten (10) years.
18. The appeal was to be canvassed by way of written submissions. Both parties filed their submissions save that due to a mix up in the appeal numbers, the Appellants submissions were filed in HCCRA No. E089 of 2025.
Analysis and Determination
19. As this is the Appellant's first appeal, the role of this appellate Court of first instance is well settled. It was held in the case of Okemo vs Republic (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs Republic (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.
20. In line with the foregoing, this Court in determining this appeal has found that the following are the main issues for determination before this court;
a) Whether the prosecution’s evidence sufficiently proved the charge of defilement beyond reasonable doubt.
b) Whether the trial magistrate properly evaluated and relied upon the evidence of PW1, including the allegations of coercion, coaching and the application of Section 124 of the Evidence Act.
c) Whether the trial magistrate properly considered the Appellant’s defence and whether, in doing so, the burden of proof was improperly shifted to the Appellant .
21. On the first issue, the key ingredients of the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of the offence. On looking at those aspects in this judgment, this Court shall consider each of them singly.
(a) On the age of the complainant:
22. The age of the complainant was settled by the prosecution when they established that the complainant was 12 years old at the time of the incident. PW2 also produced the complainant’s birth certificate, which confirmed his age. The complainant’s age therefore satisfied the statutory requirement for a child under the Sexual Offences Act.
(b) On the issue of penetration:
23. Section 2 of the Sexual Offences Act defines penetration as:
‘the partial or complete insertion of the genital organs of a person into the genital organ of another person.’
This position was fortified in the case of Mark Oiruri Mose vs R (2013) eKLR when the Court of Appeal stated thus:
‘…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ ….’ (emphasis added).
24. Later the Court of Appeal, then differently constituted, in the case of Erick Onyango Ondeng vs Republic (2014) eKLR held as such on the aspect of penetration:
"In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."
25. In dealing with this issue I will revert to the record. When the complainant testified he gave direct evidence that on the date of the alleged incident, the Appellant removed his trouser and boxer and inserted her genital organ into his private parts. He maintained this account in cross-examination and stated that the incident had occurred previously. PW2 and PW3 testified that the complainant made similar disclosures to them shortly after the alleged incident.
26. The Appellant, the Complainant and PW2 all stated that the room where the Complainant and the Appellant were sleeping had the lights on. The door to room had a glass window. As per the evidence of PW2, the window had no curtain. Neither the Complainant nor the Appellant heard PW2 and PW3 drive in. They were only startled when PW2 knocked on the door to ask for the keys to the main house. They all testify that the lights were on. PW2 did not see the Complainant being defiled by the Appellant when she got to the room. As per the evidence of the Complainant, he had removed his trousers and boxer when PW2 knocked on the door. PW2 did not see him putting on his boxer and trouser despite there being light in the room. I find all these anomalies disturbing.
27. I note that although PW4 who was the clinical officer, found no injuries on the complainant and the medical examination did not reveal evidence of penetration, the witness acknowledged that the absence of injury or infection did not necessarily exclude the possibility of sexual penetration. The medical evidence therefore did not conclusively disprove the complainant’s account.
28. The above account notwithstanding, I am perturbed by two facts herein, both not analyzed by the trial court in the judgement. First, PW3 testified that he runs a clinic. Indeed, on the Sunday after the alleged incident, he undertook the HIV test on both the Complainant and the Appellant. He was informed by PW2 of her suspicions on allegedly finding the Appellant with the Complainant on the night of the alleged defilement. As to why he did not immediately have the Complainant and the Appellant examined is baffling. This was only done two days later when the evidence would have been washed away by the parties bathing and changing clothes.
29. Secondly, the Complainant stated that the offence occurred on the 2 nd September 2023. It was allegedly not the first time it had occurred. The Appellant had worked for the parties for about 2 months. If it was not the first time, then the first incident must have occurred between July and August 2023. The medical documents produced before the court, including the P3 Form, the treatment notes and the PRC Form all refer to an incident that occurred in November 2023. The critical question therefore is whether there was a defilement on the 2 nd of September 2023 as stated in the charge sheet or 2 nd November 2023 as alluded to in the treatment notes, P3 Form and the PRC Form.
30. I have carefully perused through the proceedings and the documents produced during the trial. I have not come across an amendment to the charge sheet to correct this anomaly on the dates. The consistency in the errors on the date as indicated in all the supporting documents and the evidence of PW2, PW3, PW4 and PW5 as differing from that of the Complainant, raise serious doubts that is not a mere error on the part of the prosecution. The court would have probably overlooked the same if the anomaly in the dates was on one document and not all the documents.
31. Is this an anomaly the court should overlook? I deem not. For a criminal offence such as this, and one carrying a long minimum sentence, and further considering the requirement for proof beyond any reasonable doubt, I find the anomaly material to the charge and the attendant conviction of the Appellant.
(c) On whether the appellant was the perpetrator:
32. In the case of Francis Kariuki Njiru & 7 Others vs Republic [2001] eKLR , the Court of Appeal held thus:
“ The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error .”
33. In my view, visual identification by way of recognition is the best form of identification. Once a victim establishes that they were familiar with their assailant, the issue of identification should be settled. In the case of Peter Musau Mwanzia vs Republic [2008] eKLR , the Court of Appeal held as follows:
“ We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident .”
34. I am of the considered view that identification herein was not one of identification of a stranger but of recognition. The complainant knew the Appellant as the house help who lived in the same house and shared the bedroom with him. PW1 therefore had an opportunity to see and interact with the Appellant before, during and after the alleged incident.
35. I do not deem that there is any doubt that the Complainant and the Appellant were known to each other. The Appellant had been in the home for about two months and the Complainant is a normal 12-year-old. There is no reason to doubt that the Complainant and Appellant were known to each other.
36. The evidence of the Complainant also contradicted that of PW2 and PW3. The Complainant stated that he was beaten by PW3 and ordered to state the truth. PW2 and PW3 both denied that the Complainant was not beaten. It is thus clear that either the Complainant or the parents are not being truthful.
37. Further, under Section 124 of the Evidence Act , the court can convict an accused in a sexual offence based on the sole evidence of the victim provided it is satisfied that the victim is telling the truth. In the case of PMG vs Republic [2022] eKLR , the court made reference to the Court of Appeal case of Stephen Nguli Mulili vs Republic [2014] eKLR and stated thus:
“40. There is no dispute that under Section 124 of the evidence Act, a court can convict based on the evidence of the victim alone in sexual offences. In this regard am guided by the case of Stephen Nguli Mulili vs Republic (supra) where the court held;
“with regard to the issues of corroboration and the appellant being proved as the one who defiled the complainant, section 124 of the Act is clear that the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful. From the record it appears that the trial court was satisfied that the victim told the truth.”
38. In the present case, while it is possible the Complainant was defiled, or at least indecently assaulted by the Appellant, there are material contradictions in the evidence on record to create sufficient doubt as to what exactly occurred and when. As already settled, any doubt in a criminal process is applied in favour of the accused person.
39. On the last issue, the Appellant gave sworn defence in which she categorically denied the allegations and explained the circumstances surrounding the material night stating that she was asleep and was only woken up by the Complainant mother but she did not know why she had been woken up. The trial court was therefore under a duty to consider this defence alongside the prosecution evidence and determine whether it raised a reasonable doubt as to the Appellant’s guilt.
40. Upon consideration of the evidence given in the Appellant’s defence, and in light of the discrepancies stated herein above in the prosecution’s case, I do not find the conviction of the Appellant safe and sustainable.
41. I have also considered the submissions of both parties herein. The submissions on the voire dire are not well founded. The record the clearly shows that the Complainant was properly taken through the voire dire process and there is no anomaly shown in the process.
42. I have also addressed the issue of penetration above and I will thus not restate he submissions on the Appellant herein in the issue. I have equally addressed the issue of the contradictions on the prosecution’s case and I submit that the burden of proof was not shifted from the prosecution to the accused person.
43. The authority cited by the Respondents being Mbogo - Vs - Shah & Another (1968) EA 93 , is apt. The court stated therein that:
" I think it is well settled that this court will not interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account and consideration and in doing so arrived at a wrong conclusion ."
44. In the circumstances of this case, I am of the considered view that the prosecution evidence was not sufficient to establish all the elements of the offence.
Disposition .
45. I thus make the following orders in determination of this appeal.
a. The conviction and sentence by the trial court rendered against the Appellant on the 11 th November 2025 and 4 th December 2025 respectively is hereby set aside.
b. The Appellant is hereby acquitted on both charges and unless lawfully held, is released from custody forthwith .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 9 th September 2026.
HCCRA NO. E090 OF 2025 LILIAN NZISA PIUS VS REPUBLIC JUDGMENT Pg. 14
JUDGMENT.
Brief Introduction
1. This is a rare appeal in that it is by an adult woman who was convicted and sentenced for defiling a young boy. It is alleged that on the 2 nd of September, at Kalamba village and location, she unlawfully caused her genital organs namely vagina to be penetrated by a male organ, namely penis of K.K.K. a boy aged 12 years contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006.
2. She also faced 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. It is alleged that on the 2/9/2023 at Kalamba village and location in Makindu sub county within Makueni County, the Appellant intentionally and unlawfully caused her female genital organs namely vagina to be touched by a male organ namely Penis of K.K.K a boy aged 12 years. She denied both counts.
3. The matter proceeded for hearing and the prosecution called 5 witnesses in support of their case while the defence called the accused person only. On 11 th November, 2025, the trial court found the Appellant guilty of the offence of defilement contrary to Section 8(1) as read with Section 8(3) and the accused was sentenced to ten years’ imprisonment on the Main charge.
4. Aggrieved with the said judgement, the appellant filed the instant appeal based on the following 8 grounds quoted verbatim: -
1) That the learned trial magistrate erred in law and in fact by failing to give regard to the material contradictions and inconsistencies in the prosecution’s case.
2) That the learned trial magistrate erred in law and in fact by finding that the main charge of defilement was proved conclusively.
3) That the learned trial magistrate erred in law and in fact by failing to find that the victim evidence of PW1 was obtained through coercion.
4) That the learned trial magistrate erred in law and in fact in relying on medical evidence that was inconclusive and not incriminatory.
5) That the learned trial magistrate erred in law and in fact in by omni-bus application of Section 124 of the Evidence Act.
6) That the learned trial magistrate erred in law and in fact by disregarding the element of coaching in the prosecution case.
7) That the learned trial magistrate erred in law and in fact by failing to consider the defence as tendered by the Appellant.
8) That the learned trial magistrate erred in law and in fact by shifting the burden of proof to the Appellant .
5. She proposes to seek from the Honourable Court that the appeal be allowed, that the final judgement of the trial magistrate dated the 11/11/2025 be set aside, that the conviction order by the trial court be quashed and lastly that the sentence by the trial court be set aside.
Prosecution’s case
6. PW1, the minor testified ( hereinunder referred to as the complainant ) whereby he informed the trial court that on the day of the incident, he was home with the house help ( hereinunder referred to as the Appellant ) with his young sibling aged 6 years. They sleep in the same bedroom all of them and on the particular date they went to sleep at 8.00 p.m. In his evidence he narrated that there are two beds in the bedroom, one belonging to him and the other belonging to the House help, which he clarified in cross examination that it is double decker. That the Appellant took the bible and started reading on her bed while putting her legs on him after telling him to get to her bed they read the bible. The complainant testified that the Appellant removed his trouser and boxer and then took his Penis and inserted in her private parts which he pointed to at the time of giving his evidence. He testified that his mother ( Hereinunder referred as PW2 ) eventually knocked the door and it is when the Appellant told the Complainant to put back on back his clothes and to give his mother the keys.
7. The Complainant further stated that PW2 opened the door and talked to the Appellant and left for the living room. That I was on Friday that the Complainant informed PW2 and his father ( herein referred to as PW3 ) on Saturday that the Appellant had told them what had transpired, after which they went to the Police station. On cross examination he reiterated the events as were stated during the examination on chief, save for the fact that the Complainant added that it was not the first time the Appellant is doing the alleged incident. On re-examination he stated that the bedroom has no curtains and as such one can see inside the room from outside and that is why he was told to switch off the lights when PW2 arrived.
8. PW2 informed the trial court that she arrived home around 8:50 with her husband and in the house there was the Appellant, Complainant and their 5-year-old daughter who had all slept in the house outside the main house. She testified that she went to ask them for the keys to the main house and she knocked. That the door has a window which did not have curtains and when she peeped she saw the Complainant coming from the Appellant’s bed side and switched off the light and through the door opening handed PW2 the keys. PW2 testified that she asked the Complainant to open the door and that is when she asked the Appellant why the Complainant was sleeping on her bed side and the Appellant apparently informed her that the Complainant was not sleeping however the said Complainant had clothes on at the time.
9. Upon further investigation PW2 testified that the Complainant demonstrated that the Appellant touched his chest to his waist and removed his clothes and took his penis to her vagina and it is not the first time the said incident had happened. They further recorded a statement to the authorities and the complainant was taken to Matiliku Sub – County Hospital for examination.
10. On cross examination the complainant informed PW2 that he was doing bad manners with the Complainant and it was not the first time the same was happening. On whether PW3 had tried to get into a relationship she disagreed. On re-examination it was PW2’s evidence that the Complainant was told by the Appellant to put on trousers, switch off the lights then handed him the keys. He further stated that it was not PW3 who told the Complainant to say that the Appellant had done bad manners to him but it was the Complainant who volunteered the said information to them. She further produced a copy of the birth certificate showing that the Complainant was 12 years old.
11. PW3 testified that on the same date when they entered the main house, that PW2 informed him that he found the Complainant sleeping on the Appellant’s bed and felt that there was something fishy. PW3 testified that they agreed to investigate further the following day. He later testified that the Complainant informed him that he was sleeping in the Appellant’s bed when PW2 knocked that evening and that the baby was yet to sleep so they started reading the bible but once the child slept, the Appellant started caressing him from the chest to his private parts and that she removed his clothes and inserted his penis into her vagina and that they had sex. PW3 further testified upon asking the Complainant if the same has happened before and the Complainant stated that it had happened before. He further testified that later PW3 called the Appellant to explain but she refused and that is when they lodged the complaint at the police station.
12. PW4, the clinical officer testified and stated that she has a patient card for the Complainant which she produced. The Complainant went to their facility with a history of defilement and was accompanied by both his parents. She also had a copy of the P3 Form and it was her evidence that there was no injury on the genitalia, anus, no presence of discharge on the anus or thighs. She further testified that they did lab investigation on both the Complainant and the Appellant and the same was produced as an exhibit as well. The witness further testified that no injuries were noted on physical examination. That her results do not support the allegation but just the history. It is not easy to establish for a boy unlike a girl whose hymens are normally tested.
13. On cross examination PW4 testified that on urinalysis testing, nothing was found on the Complainant. She further testified that there is different anatomy for females and males and it can be possible for the Complainant to not get an infection after the act. Further, she testified that she did not note anything on the P3 Form which was according to history and similarly on the PRC form nothing was detected being that for a male person it is difficult to examine defilement. She also confirmed that it is very likely for a 12 years old to penetrate a 23 years old female vagina but they did not investigate the Appellants genital organs and only an urinalysis was conducted.
14. PW5, the Investigating Officer testified to having recorded the statement of the PW2, PW3 and interrogated the minor who informed him that on diverse dates and specifically on the date of the incident the Appellant took his genital organs and inserted them into her genital organs and that it was for the second time. That the complainant further informed him that they slept earlier than before and that his parents found them sleeping on the same bed. It is at that point that PW5 decided to charge the Appellant with the offence stipulated herein. On cross examination PW5 he reiterated the above and further testified that he did his investigation and that he does not believe that the charges were pressed against the Appellant due to bad blood between his parents and the Appellant.
Defence case
15. In her defense she testified that she was a nanny at PW2 & PW3’s house and that she used to sleep in the outside room with one double decker bed. She testified that she would sleep on the lower bed with the small child whereas the Complainant would sleep on the upper bed and that on the date of the incident she left the complainant in the main house at around 7 P.M to go to sleep. That she left the door open and the solar lights were on to allow the Complainant to come in only for her to suddenly see PW2 in the room while she continued to sleep. That she did not know where the Complainant was at the time and PW2 did not tell her anything that day. That the following day PW2 and PW3 summoned her and the Complainant to the main house and that is when they asked her and the Complainant what had happened the previous day. She further stated that PW2 later told her that the Complainant had stated that he had been shown bad manners by the Appellant. She testified that she did not know what was happening even when she was taken to the hospital. She did not know why she was being tested. She further denied inserting the Complainant genital organs into hers. She denied all the testimony availed before the trial court and stated that she was being accused falsely as PW3 had made advances to her to which she had completely refused and that PW2 had added more work to her with no advance payment in salary.
16. On cross examination she testified that she has never sat with the Complainant on his bed and that it was not an offence to sit in someone’s bed. She further reiterated the testimony she gave on examination on chief.
17. The trial court found that the prosecution had established the essential elements of defilement, namely penetration, the age of the victim, and recognition of the perpetrator. The court concluded that the appellant was guilty of defilement and convicted her, accordingly, imposing a custodial sentence of Ten (10) years.
18. The appeal was to be canvassed by way of written submissions. Both parties filed their submissions save that due to a mix up in the appeal numbers, the Appellants submissions were filed in HCCRA No. E089 of 2025.
Analysis and Determination
19. As this is the Appellant's first appeal, the role of this appellate Court of first instance is well settled. It was held in the case of Okemo vs Republic (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs Republic (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.
20. In line with the foregoing, this Court in determining this appeal has found that the following are the main issues for determination before this court;
a) Whether the prosecution’s evidence sufficiently proved the charge of defilement beyond reasonable doubt.
b) Whether the trial magistrate properly evaluated and relied upon the evidence of PW1, including the allegations of coercion, coaching and the application of Section 124 of the Evidence Act.
c) Whether the trial magistrate properly considered the Appellant’s defence and whether, in doing so, the burden of proof was improperly shifted to the Appellant .
21. On the first issue, the key ingredients of the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator of the offence. On looking at those aspects in this judgment, this Court shall consider each of them singly.
(a) On the age of the complainant:
22. The age of the complainant was settled by the prosecution when they established that the complainant was 12 years old at the time of the incident. PW2 also produced the complainant’s birth certificate, which confirmed his age. The complainant’s age therefore satisfied the statutory requirement for a child under the Sexual Offences Act.
(b) On the issue of penetration:
23. Section 2 of the Sexual Offences Act defines penetration as:
‘the partial or complete insertion of the genital organs of a person into the genital organ of another person.’
This position was fortified in the case of Mark Oiruri Mose vs R (2013) eKLR when the Court of Appeal stated thus:
‘…Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ ….’ (emphasis added).
24. Later the Court of Appeal, then differently constituted, in the case of Erick Onyango Ondeng vs Republic (2014) eKLR held as such on the aspect of penetration:
"In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured."
25. In dealing with this issue I will revert to the record. When the complainant testified he gave direct evidence that on the date of the alleged incident, the Appellant removed his trouser and boxer and inserted her genital organ into his private parts. He maintained this account in cross-examination and stated that the incident had occurred previously. PW2 and PW3 testified that the complainant made similar disclosures to them shortly after the alleged incident.
26. The Appellant, the Complainant and PW2 all stated that the room where the Complainant and the Appellant were sleeping had the lights on. The door to room had a glass window. As per the evidence of PW2, the window had no curtain. Neither the Complainant nor the Appellant heard PW2 and PW3 drive in. They were only startled when PW2 knocked on the door to ask for the keys to the main house. They all testify that the lights were on. PW2 did not see the Complainant being defiled by the Appellant when she got to the room. As per the evidence of the Complainant, he had removed his trousers and boxer when PW2 knocked on the door. PW2 did not see him putting on his boxer and trouser despite there being light in the room. I find all these anomalies disturbing.
27. I note that although PW4 who was the clinical officer, found no injuries on the complainant and the medical examination did not reveal evidence of penetration, the witness acknowledged that the absence of injury or infection did not necessarily exclude the possibility of sexual penetration. The medical evidence therefore did not conclusively disprove the complainant’s account.
28. The above account notwithstanding, I am perturbed by two facts herein, both not analyzed by the trial court in the judgement. First, PW3 testified that he runs a clinic. Indeed, on the Sunday after the alleged incident, he undertook the HIV test on both the Complainant and the Appellant. He was informed by PW2 of her suspicions on allegedly finding the Appellant with the Complainant on the night of the alleged defilement. As to why he did not immediately have the Complainant and the Appellant examined is baffling. This was only done two days later when the evidence would have been washed away by the parties bathing and changing clothes.
29. Secondly, the Complainant stated that the offence occurred on the 2 nd September 2023. It was allegedly not the first time it had occurred. The Appellant had worked for the parties for about 2 months. If it was not the first time, then the first incident must have occurred between July and August 2023. The medical documents produced before the court, including the P3 Form, the treatment notes and the PRC Form all refer to an incident that occurred in November 2023. The critical question therefore is whether there was a defilement on the 2 nd of September 2023 as stated in the charge sheet or 2 nd November 2023 as alluded to in the treatment notes, P3 Form and the PRC Form.
30. I have carefully perused through the proceedings and the documents produced during the trial. I have not come across an amendment to the charge sheet to correct this anomaly on the dates. The consistency in the errors on the date as indicated in all the supporting documents and the evidence of PW2, PW3, PW4 and PW5 as differing from that of the Complainant, raise serious doubts that is not a mere error on the part of the prosecution. The court would have probably overlooked the same if the anomaly in the dates was on one document and not all the documents.
31. Is this an anomaly the court should overlook? I deem not. For a criminal offence such as this, and one carrying a long minimum sentence, and further considering the requirement for proof beyond any reasonable doubt, I find the anomaly material to the charge and the attendant conviction of the Appellant.
(c) On whether the appellant was the perpetrator:
32. In the case of Francis Kariuki Njiru & 7 Others vs Republic [2001] eKLR , the Court of Appeal held thus:
“ The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error .”
33. In my view, visual identification by way of recognition is the best form of identification. Once a victim establishes that they were familiar with their assailant, the issue of identification should be settled. In the case of Peter Musau Mwanzia vs Republic [2008] eKLR , the Court of Appeal held as follows:
“ We do agree that for evidence of recognition to be relied upon, the witness claiming to recognize a suspect must establish circumstances that would prove that the suspect is not a stranger to him and thus to put a difference between recognition and identification of a stranger. He must show, for example, that the suspect has been known to him for some time, is a relative, a friend or somebody within the same vicinity as himself and so he had been in contact with the suspect before the incident in question. Such knowledge need not be for a long time but must be for such time that the witness, in seeing the suspect at the time of the offence, can recall very well having seen him earlier on before the incident .”
34. I am of the considered view that identification herein was not one of identification of a stranger but of recognition. The complainant knew the Appellant as the house help who lived in the same house and shared the bedroom with him. PW1 therefore had an opportunity to see and interact with the Appellant before, during and after the alleged incident.
35. I do not deem that there is any doubt that the Complainant and the Appellant were known to each other. The Appellant had been in the home for about two months and the Complainant is a normal 12-year-old. There is no reason to doubt that the Complainant and Appellant were known to each other.
36. The evidence of the Complainant also contradicted that of PW2 and PW3. The Complainant stated that he was beaten by PW3 and ordered to state the truth. PW2 and PW3 both denied that the Complainant was not beaten. It is thus clear that either the Complainant or the parents are not being truthful.
37. Further, under Section 124 of the Evidence Act , the court can convict an accused in a sexual offence based on the sole evidence of the victim provided it is satisfied that the victim is telling the truth. In the case of PMG vs Republic [2022] eKLR , the court made reference to the Court of Appeal case of Stephen Nguli Mulili vs Republic [2014] eKLR and stated thus:
“40. There is no dispute that under Section 124 of the evidence Act, a court can convict based on the evidence of the victim alone in sexual offences. In this regard am guided by the case of Stephen Nguli Mulili vs Republic (supra) where the court held;
“with regard to the issues of corroboration and the appellant being proved as the one who defiled the complainant, section 124 of the Act is clear that the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful. From the record it appears that the trial court was satisfied that the victim told the truth.”
38. In the present case, while it is possible the Complainant was defiled, or at least indecently assaulted by the Appellant, there are material contradictions in the evidence on record to create sufficient doubt as to what exactly occurred and when. As already settled, any doubt in a criminal process is applied in favour of the accused person.
39. On the last issue, the Appellant gave sworn defence in which she categorically denied the allegations and explained the circumstances surrounding the material night stating that she was asleep and was only woken up by the Complainant mother but she did not know why she had been woken up. The trial court was therefore under a duty to consider this defence alongside the prosecution evidence and determine whether it raised a reasonable doubt as to the Appellant’s guilt.
40. Upon consideration of the evidence given in the Appellant’s defence, and in light of the discrepancies stated herein above in the prosecution’s case, I do not find the conviction of the Appellant safe and sustainable.
41. I have also considered the submissions of both parties herein. The submissions on the voire dire are not well founded. The record the clearly shows that the Complainant was properly taken through the voire dire process and there is no anomaly shown in the process.
42. I have also addressed the issue of penetration above and I will thus not restate he submissions on the Appellant herein in the issue. I have equally addressed the issue of the contradictions on the prosecution’s case and I submit that the burden of proof was not shifted from the prosecution to the accused person.
43. The authority cited by the Respondents being Mbogo - Vs - Shah & Another (1968) EA 93 , is apt. The court stated therein that:
" I think it is well settled that this court will not interfere with the exercise of discretion by the inferior court unless it is satisfied that the decision is clearly wrong because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account and consideration and in doing so arrived at a wrong conclusion ."
44. In the circumstances of this case, I am of the considered view that the prosecution evidence was not sufficient to establish all the elements of the offence.
Disposition .
45. I thus make the following orders in determination of this appeal.
a. The conviction and sentence by the trial court rendered against the Appellant on the 11 th November 2025 and 4 th December 2025 respectively is hereby set aside.
b. The Appellant is hereby acquitted on both charges and unless lawfully held, is released from custody forthwith .
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 9 th September 2026.
HCCRA NO. E090 OF 2025 LILIAN NZISA PIUS VS REPUBLIC JUDGMENT Pg. 14