(Being an Appeal from the Original Sentence delivered by Hon. V. Karanja in Iten Senior Principal Magistrates Case (SO) No. E064 of 2023 on 17/04/2024)
JUDGEMENT
1. This Appeal arises from the Judgement delivered on 17/04/2024 in Iten Senior Principal Magistrates’ Sexual Offence Case No. E064 of 2023. The Appellant was charged with the offence of Defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act.
2. The particulars of the offence were that on the 25th day of December, 2023 at around 1900 hours at [particulars withheld] within Elgeyo Marakwet County, he intentionally and unlawfully caused his penis to penetrate the vagina of AJC, a girl aged 15 years. He was also charged with the alternative offence of committing an indecent act with the same child, contrary to Section 11(1) of the same Act.
3. The Appellant pleaded not guilty and the case then proceeded to full trial in which the prosecution called 5 witnesses. At the close of the prosecution’s case, the Court found that the Appellant had a case to answer and placed him on his defence. In his defence, he gave an unsworn statement and called no other witness. By the judgement delivered on 16/02/2022, he was convicted of the main charge and sentenced to 20 years’ imprisonment.
4. Dissatisfied with the decision, the Appellant instituted the present Appeal, in person, vide a Petition of Appeal on 07/05/2024. The Appeal is premised on the following grounds, reproduced verbatim;
1) That, the learned trial magistrate erred in both law and facts in failing to note that the evidence of identification was not proven to the required standard.
2) That the learned trial magistrate erred in law and fact as it failed to hold that the medical report was not conclusive and unreliable.
3) That the learned trial magistrate erred in law and fact by as it failed to observe that the evidence tendered was inconsistent and uncorroborated.
4) That the learned trial magistrate erred in both law and fact by failing to accord the appellant a fair trial.
5) That, the learned trial magistrate erred in both law and facts by holding that there was defilement act with an adult by the appellant while in fact there was no offence established as committed by the appellant.
6) That the learned trial magistrate erred in both law and facts by failing to record reasons for believing the appellant c/sec 80 and 124 of the evidence act.
Prosecution evidence at the Trial Court
5. The minor Complainant testified as PW1. She stated that she was 15 years old and further, that on 25/12/2023, she went to walk with her friends at the ‘wazungus’ home with Chebet, Chepkirui and Sheilah and at 4pm they headed home. On the way home, she saw someone who blocked her way, grabbed her mouth and threw her on the ground. He told her to give in or he would stab her.
6. She stated that she normally saw him on the road whenever she would be sent for errands and that his name was Meshack. It was her testimony that he pulled down her clothes and raped her. She went into further detail, stating that he put her penis into her vagina and after he was through, he left. She went home and informed her father who then informed the chief and he reported the incident at Kapsowar Police Station. She later on went for treatment.
7. The witness stated that she was born on 3rd October 2008 as per her birth certificate which was produced and marked as PMFI-1. She also produced the Post Rape Care form as PMFI-2 and the P3 Form as PMFI-3. During cross examination she stated that she was walking when she saw him walking towards his home, ahead of her. That ‘Kipla’ was going to his home and that she was walking alone. Further, that she did not confuse him for another person and that she saw him on the material day.
8. PW2 was CC, the mother to the complainant. She stated that on 25/12/2023, she was with her children when PW1 went to play with ‘wazungus’ children. She came back at 7 pm, crying that Meshack had attacked her while threatening to stab her. She then took her to the scene and then they proceeded to the chief. She stated that she later took her to the police in the morning and she was issued with a P3 form and then took her for treatment. During cross examination, she stated that she went to the scene at 7 pm. That she was not at the scene when the incident occurred and further that she went straight to the chief. She reiterated that the incident occurred at around 7 pm.
9. PW3 was Peris Cherotich, Assistant Chief Sisiya Location. She stated that on 25/12/2023, at 9:30, PW2 came to her home with PW1 to inform her that her daughter had been defiled by Meshack. She advised them to file a report with the police in the morning. Further, that PW1 slept at her house and they went with the father to the police station. She handed her to her father and aunt in the morning and she was taken to the hospital. During cross examination, she stated that she did not visit the scene or accompany them to the hospital. Further, that they came to her home at 9.30 pm.
10. PW4 was SR the minor’s aunt. She stated that the assistant chief called her on 26/12/2023 and told her that her niece had been defiled. She then went to the station at Kapsowar and escorted her to hospital. She was treated and PRC and P3 form were filed.
11. PW5 was Dr. Wilfred Kimosop, attached to AIC Kapsowar Mission Hospital. He testified that on examination he observed normal genitalia with hymen absent, no evidence of recent laceration and, that she had a whitish discharge with no physical evidence of infection. He stated that the high vaginal swab showed numerous epithelial cells and no presence of spermatozoa. He further stated that based on the evidence of numeral epithelial cells, it showed penetration. He produced as P-Exh3 the P3 form and as P-Exh 2 the Post Rape Care.
12. PW6 was Corporal Jackson Mutinda stationed at Kapsowar Police Station. He stated that on 26/12/2023 the complainant was brought to the station by the Assistant Chief Sisiya Sub Location accompanied by her father to report an allegation of defilement. He issued them with a P3 form and her aunt accompanied her to the hospital. She recorded witness statements and arrested and charged the accused. He produced her birth certificate as P-Exh-1.
13. Upon considering the evidence and testimonies, the trial magistrate found that a prima facie case had been established. Consequently, the Appellant was placed on his defence.
14. The Appellant testified as DW1. He gave unsworn testimony and stated that on Christmas day he was going home when he met Anita and they walked together, parting ways at his gate as she proceeded to her home. It was his testimony that they framed him for the offence and he denied committing the same.
15. Upon considering the testimonies of the witnesses, the evidence tendered in court, and the submissions of the parties, as aforementioned, the trial court convicted the appellant of the main charge and sentenced him to 20 years’ imprisonment on 17/04/2024.
Hearing of the Appeal
16. The Appeal was canvassed by way of written submissions with the Appellant filing submissions on 07/05/2025 whereas the state filed submissions dated 31/10/2024 through Prosecution Counsel Calvin Kirui.
Appellants’ Submissions
17. The Appellant began his submissions by setting out supplementary grounds and then proceeded to submit that the trial magistrate failed to provide a fair playground for the appellant’s preparation for his defence as she placed too much weight on the need for an expeditious trial for the victim/complainant, after turning them away due to other court matters that had interrupted the court's normal program as indicated in the cause list. He urged that an instance of this was on 22nd January 2024 where three (3) prosecution witnesses were in attendance but the case was removed from the cause list to create room for other civil matters which took priority over his pending case.
18. Further, that on 28th February 2024, the trial court overlooked his need to prepare for a defence by indicating the case will proceed on that day without ample time to enable appellant be ready for his defence. He urged that he was not adequately informed prior to commencement of the case that all the five (5) prosecution witnesses would be presenting their testimony on the same day and he objected to this, which objection the court overruled.
19. It is the Appellants’ case that his constitutional rights under Article 50 (2) (b) (c)and (d) of the Constitution of Kenya were therefore violated. Following this conduct, he urged the court to make a declaration that his rights were violated and offer appropriate relief under Article 23(3) of Constitution. which should include allowing this appeal on this ground.
20. On whether the case was proved beyond reasonable doubt, the Appellant submitted that the prosecution did not prove their case beyond reasonable doubt as provided under Section 107 of the Evidence Act. That the prosecution failed in its duty to prove its case as the ingredients of the offence he was alleged to have committed were not properly established. On Penetration, he submitted that the prosecution heavily relied on the inconclusive medical evidence to secure a conviction. Further, that the physical examination of complainant made a finding that the complainant had been sexually active prior to the alleged incident which is not attributed to him. He stated that the examination did not yield any positive proof of penetration making her claim uncorroborated.
21. On identification, the Appellant submitted that ‘Kipla’ was mentioned as a possible perpetrator in this case and she picked on him mistakenly as she mentions that someone without referring to a particular name attacked her. This raised doubt as to the identity of the perpetrator. Further, that the trial magistrate did not warn herself on the danger of relying on the testimony of a single identifying witness in difficult circumstances in this case.
22. He urged that all this points to a situation in the case that the conviction was based on evidence that was below the standard of proof of evidence. That the prosecution made their case worse by charging him under an inappropriate charge, and made an error by not making a timely amendment on the charge sheet. He stated that the trial court made an error in finding him guilty on a wrong charge whose ingredients were below the standard of proof of evidence.
23. The Appellant submitted that the trial court found him guilty based on a defective charge sheet occasioning a miscarriage of justice. That the statement of offence and the particularization of the charge were at variance indicating that the charge was defective. He urged that it emerged during the proceedings that both his father and the complainant's father are brothers which makes them cousins. Although the complainant did not exactly identify him as a relative (neighbour) but her father did.
24. He stated that sexual relationship between blood relatives is known or defined as incest yet he was charged with the offence of defilement instead of incest. This omission made the charge defective contrary to Section 214 of the Criminal Procedure Code. It is the Appellants’ case that whenever a charge is defective the appellate court should order for a retrial probably under a charge of incest by male under Section 20 (1) of Sexual Offences Act. that a sexual relationship of cousins is not listed among the prohibited sexual relationship and thus leaves the court with the only option of discharging appellant from this case as a way of addressing this defect and in compliance with my right to a fair trial.
25. The Appellant urged that the appeal is also premised on the failure to consider his mitigation factors before his sentencing which was an irregularity and an error in principle. He maintained that his trial was irregular for not considering or conforming with the sentencing principles during his sentence hearing. He urged the court to interfere with the sentence on this ground.
26. The Appellant submitted that Section 333(2) of the Criminal Procedure Code was not complied with as the trial court did not factor the period of about 5 months he spent in pre-trial custody before his sentencing. He urged the court to correct the omission by reducing his sentence of 20 years by the 5 months or in the alternative order his sentence to commence from the date of his arrest on 26th December 2023.
27. The Appellant urged that the trial court erred by not imposing a less severe sentence as expected under Article 50 (2)(p) of Constitution. Further, that the sentence was wrong in principle as it lacked the application of sentencing principles such as mitigation which on application may result to a reduction of his 20 years sentence by one third (7 years).
28. The Appellant submitted that the trial court failed to make a finding that the witnesses were not credible as they were not speaking the truth despite being affirmed to speak the truth. That the complainant did not disclose the family ties they shared and further, that the complainant was not truthful by stating that she was not with boys during her celebration with ‘wazungus’. Additionally, that the time of the offence was doubtful as there was a mention of 4 pm, 7 pm among others.
29. That the court adopted 4 pm in its judgement while most of the witnesses indicated it was 7pm. The inconsistency amounts to convicting and sentencing the appellant on extraneous issues. The court also held the proceedings in camera violating his right to a public trial as the complainant was never a vulnerable witness of tender years. She was 15 years and two months old. He further argued that the trial court did not strictly adhere to requirements of Section 124 of the Evidence Act as the complainant lacked credibility but still went ahead to convict and sentence him. He urged the court to allow the appeal and set aside the sentence.
Respondents’ submissions
30. Counsel for the state urged that the prosecution proved its case to the required standard. He set out the charge as per the provisions of Section 8(1) and (3) of the Sexual Offences Act and the critical ingredients of the offence of defilement as set out in the case of Charles Wamukoya Karani vs. Republic. Criminal Appeal No.72 of 2013. He additionally set out the duty of the prosecution to establish all the elements of the offence beyond reasonable doubt.
31. On identification, counsel placed reliance on the case of Watuku v Republic (Criminal Appeal 08 of 2020) [2022] KEHC 4 (KLR), urging that the issue of identification of the Appellant was by recognition. That PW1 testified that she met the Appellant on her way home and that the Appellant was not a stranger to her as she would normally see him on the road while she ran her errands. She knew the Appellants’ name as Meshack.
32. Counsel recollected the evidence of the complainant as to the incident and urged that it was clear that the Appellant was not a stranger to PW1 hence was recognized. He additionally cited the case of Anjononi & Others vs The Republic (1980) KLR on the difference in approach between identification and recognition. He reiterated that PW1 knew the Appellant prior to the incident and therefore, the issue on identification is free from any error and was proved by the prosecution beyond any reasonable doubt.
33. On proof of penetration counsel submitted that “Penetration” is defined under Section 2 of the Act to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. Counsel recollected the testimony of the complainant and urged that the question that arose was whether that evidence requires corroboration. Citing the provisions of Section 124 of the Evidence Act, counsel submitted that the evidence of the complainant of her being penetrated was corroborated by that of the clinical officer (PW5) who examined the complainant and the findings were recorded in the P3 form. He urged that the evidence proved beyond reasonable doubt that there was penetration as contemplated by the act.
34. On the issue of age, counsel submitted that the investigation officer produced the complainants’ birth certificate as exhibit 1 and the same indicated that she was born on 13th October 2008. As the incident happened on 25th December 2023, the complainant was 15 years old as at the time of the incident. He placed reliance on the case of Moses Mutahi Mugo v Republic [2022] eKLR.
35. Counsel submitted that the Appellants defence was untrustworthy and that the trial court rightfully held that the prosecution had discharged its burden of proof. He urged the court to dismiss the Appeal.
Analysis & Determination
36. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32). The appellant introduced amended grounds of appeal in his submissions without the leave of the Court as is required under Section 350 (2) vi) of the Criminal Procedure Code. For this reasons, and also for reasons that submissions are not pleadings, these amended grounds shall not be considered and the court shall proceed on the basis of the Petition of Appeal as filed.
37. From my consideration of the Petition and the Submissions, it is my opinion that the issues that arise for determination are;
i) Whether the defilement charge against the Appellant was proved beyond reasonable doubt.
ii) Whether the sentence of 20 years’ imprisonment was merited.
38. Before delving into the issue of the proof of the charge, I note that the accused has alleged that his rights were violated in that the trial Court proceeded with the hearing and had a total of five witnesses testify in a single hearing ignoring his protestations that he was not ready to proceed with the hearing and with the five witnesses. I have perused the proceedings of the Trial Court.
39. I note that on the relevant date, the record shows that the Prosecutor indicated that it had five witnesses and was ready. The response of the Appellant (then accused) as indicated therein is “I am ready”. The record further shows that the Appellant proceeded to cross examine all the witnesses and there is no indication that he sought an adjournment in the cause of proceedings for any reason. This being the case, I find that this ground is totally without basis.
40. On whether the defilement charge against the Appellant was proved beyond reasonable doubt, Section 8(1) of the Sexual Offences Act under which the Appellant was charged, provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
41. In the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, 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.”
42. On the element of the age of the victim, the importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows:
“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -
“In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.
43. In the instant case, the complainant produced her birth certificate as an exhibit and it indicated that she was born on 3rd October 2008. This therefore places her age at the time of the incident at 15 years old. This then classifies her as a minor and hence the offence of defilement to which the applicable provision is sentencing is Section 8(3) of the Sexual Offences Act.
44. On the issue of penetration, the same is defined in Section 2(1) of the Sexual Offences Act defines the phrase as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
45. As was held in the Supreme Court of Uganda case of Bassita Hussein v Uganda, Criminal Appeal No 35 of 1995, which was cited with approval in the subsequent case of E.E v Republic [2015] eKLR;
the act of sexual intercourse or “penetration” may be proved by direct or circumstantial evidence, and usually, the sexual intercourse is proved by the victims through testimony, and corroborated by medical or other evidence.
46. In the instant case, the medical evidence adduced stated that there was penetration of the complainant’s genitalia. But even this as aside, the court notes that in the Appellant approbating and reprobating on whether or not he sexually assaulted the complainant, in his own submission, he states that because he is related to the complainant, sex between them should be treated as sexual intercourse with a relative and so he ought to have been charged with incest and not defilement. This admission on his part only goes to settle the issue of penetration even further and the court therefore need not belabour the point.
47. On the issue of identification, from the evidence on record, the court is satisfied that the identification of the Appellant was by way of recognition. This is buttressed by the Appellant’s own submission that they are in fact related and as a result he did not understand why the complainant’s father referred to him as a neighbour. The Court of Appeal stated thus on identification by recognition in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR:
“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).
48. On whether the court can rely on the evidence of single witness to found a conviction, Section 124 of the Evidence Act provides as follows;
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
49. All the above considered, I am satisfied after my re-evaluation of the evidence on record that the prosecution did establish its case against the Appellant beyond reasonable doubt and that the Trial’s Court finding of guilt and subsequent conviction of the Appellant founded upon the said evidence is safe and I accordingly uphold the conviction.
50. On whether the sentence of twenty years’ imprisonment was merited, the applicable principles in considering sentence on Appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this Court and the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, the sentence must depend on the facts of each case. On Appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already stated is shown to exist”.
51. In respect to sentence, Section 8(3) of the Sexual Offences Act under which the Appellant was charged provides as follows:
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
52. As already herein stated, the age of the complainant is not disputed as being 15 years and that age as I have already herein stated places her in terms of sentencing at Section 8(3) of the Act which provides for a minimum mandatory sentence of 20 years’ imprisonment. The sentence meted out upon the Appellant is therefore lawful, legal and valid and the court shall not interfere with but upholds the same. As provided under Section 333(2) of the Criminal Procedure Code, the sentence is to run from the date of his arrest.
53. The upshot of my conclusions herein is that save for the ground under Section 333(2) of the Criminal Procedure Code which is allowed as appropriate, the rest of the Appellant’s Appeal against conviction and sentence lacks merit and is dismissed in entirety. Right of Appeal 14 days.
Read Dated and Signed at ELDORET on 9th July 2025
JUDGEMENT
1. This Appeal arises from the Judgement delivered on 17/04/2024 in Iten Senior Principal Magistrates’ Sexual Offence Case No. E064 of 2023. The Appellant was charged with the offence of Defilement contrary to Section 8(1) as read with 8(3) of the Sexual Offences Act.
2. The particulars of the offence were that on the 25th day of December, 2023 at around 1900 hours at [particulars withheld] within Elgeyo Marakwet County, he intentionally and unlawfully caused his penis to penetrate the vagina of AJC, a girl aged 15 years. He was also charged with the alternative offence of committing an indecent act with the same child, contrary to Section 11(1) of the same Act.
3. The Appellant pleaded not guilty and the case then proceeded to full trial in which the prosecution called 5 witnesses. At the close of the prosecution’s case, the Court found that the Appellant had a case to answer and placed him on his defence. In his defence, he gave an unsworn statement and called no other witness. By the judgement delivered on 16/02/2022, he was convicted of the main charge and sentenced to 20 years’ imprisonment.
4. Dissatisfied with the decision, the Appellant instituted the present Appeal, in person, vide a Petition of Appeal on 07/05/2024. The Appeal is premised on the following grounds, reproduced verbatim;
1) That, the learned trial magistrate erred in both law and facts in failing to note that the evidence of identification was not proven to the required standard.
2) That the learned trial magistrate erred in law and fact as it failed to hold that the medical report was not conclusive and unreliable.
3) That the learned trial magistrate erred in law and fact by as it failed to observe that the evidence tendered was inconsistent and uncorroborated.
4) That the learned trial magistrate erred in both law and fact by failing to accord the appellant a fair trial.
5) That, the learned trial magistrate erred in both law and facts by holding that there was defilement act with an adult by the appellant while in fact there was no offence established as committed by the appellant.
6) That the learned trial magistrate erred in both law and facts by failing to record reasons for believing the appellant c/sec 80 and 124 of the evidence act.
Prosecution evidence at the Trial Court
5. The minor Complainant testified as PW1. She stated that she was 15 years old and further, that on 25/12/2023, she went to walk with her friends at the ‘wazungus’ home with Chebet, Chepkirui and Sheilah and at 4pm they headed home. On the way home, she saw someone who blocked her way, grabbed her mouth and threw her on the ground. He told her to give in or he would stab her.
6. She stated that she normally saw him on the road whenever she would be sent for errands and that his name was Meshack. It was her testimony that he pulled down her clothes and raped her. She went into further detail, stating that he put her penis into her vagina and after he was through, he left. She went home and informed her father who then informed the chief and he reported the incident at Kapsowar Police Station. She later on went for treatment.
7. The witness stated that she was born on 3rd October 2008 as per her birth certificate which was produced and marked as PMFI-1. She also produced the Post Rape Care form as PMFI-2 and the P3 Form as PMFI-3. During cross examination she stated that she was walking when she saw him walking towards his home, ahead of her. That ‘Kipla’ was going to his home and that she was walking alone. Further, that she did not confuse him for another person and that she saw him on the material day.
8. PW2 was CC, the mother to the complainant. She stated that on 25/12/2023, she was with her children when PW1 went to play with ‘wazungus’ children. She came back at 7 pm, crying that Meshack had attacked her while threatening to stab her. She then took her to the scene and then they proceeded to the chief. She stated that she later took her to the police in the morning and she was issued with a P3 form and then took her for treatment. During cross examination, she stated that she went to the scene at 7 pm. That she was not at the scene when the incident occurred and further that she went straight to the chief. She reiterated that the incident occurred at around 7 pm.
9. PW3 was Peris Cherotich, Assistant Chief Sisiya Location. She stated that on 25/12/2023, at 9:30, PW2 came to her home with PW1 to inform her that her daughter had been defiled by Meshack. She advised them to file a report with the police in the morning. Further, that PW1 slept at her house and they went with the father to the police station. She handed her to her father and aunt in the morning and she was taken to the hospital. During cross examination, she stated that she did not visit the scene or accompany them to the hospital. Further, that they came to her home at 9.30 pm.
10. PW4 was SR the minor’s aunt. She stated that the assistant chief called her on 26/12/2023 and told her that her niece had been defiled. She then went to the station at Kapsowar and escorted her to hospital. She was treated and PRC and P3 form were filed.
11. PW5 was Dr. Wilfred Kimosop, attached to AIC Kapsowar Mission Hospital. He testified that on examination he observed normal genitalia with hymen absent, no evidence of recent laceration and, that she had a whitish discharge with no physical evidence of infection. He stated that the high vaginal swab showed numerous epithelial cells and no presence of spermatozoa. He further stated that based on the evidence of numeral epithelial cells, it showed penetration. He produced as P-Exh3 the P3 form and as P-Exh 2 the Post Rape Care.
12. PW6 was Corporal Jackson Mutinda stationed at Kapsowar Police Station. He stated that on 26/12/2023 the complainant was brought to the station by the Assistant Chief Sisiya Sub Location accompanied by her father to report an allegation of defilement. He issued them with a P3 form and her aunt accompanied her to the hospital. She recorded witness statements and arrested and charged the accused. He produced her birth certificate as P-Exh-1.
13. Upon considering the evidence and testimonies, the trial magistrate found that a prima facie case had been established. Consequently, the Appellant was placed on his defence.
14. The Appellant testified as DW1. He gave unsworn testimony and stated that on Christmas day he was going home when he met Anita and they walked together, parting ways at his gate as she proceeded to her home. It was his testimony that they framed him for the offence and he denied committing the same.
15. Upon considering the testimonies of the witnesses, the evidence tendered in court, and the submissions of the parties, as aforementioned, the trial court convicted the appellant of the main charge and sentenced him to 20 years’ imprisonment on 17/04/2024.
Hearing of the Appeal
16. The Appeal was canvassed by way of written submissions with the Appellant filing submissions on 07/05/2025 whereas the state filed submissions dated 31/10/2024 through Prosecution Counsel Calvin Kirui.
Appellants’ Submissions
17. The Appellant began his submissions by setting out supplementary grounds and then proceeded to submit that the trial magistrate failed to provide a fair playground for the appellant’s preparation for his defence as she placed too much weight on the need for an expeditious trial for the victim/complainant, after turning them away due to other court matters that had interrupted the court's normal program as indicated in the cause list. He urged that an instance of this was on 22nd January 2024 where three (3) prosecution witnesses were in attendance but the case was removed from the cause list to create room for other civil matters which took priority over his pending case.
18. Further, that on 28th February 2024, the trial court overlooked his need to prepare for a defence by indicating the case will proceed on that day without ample time to enable appellant be ready for his defence. He urged that he was not adequately informed prior to commencement of the case that all the five (5) prosecution witnesses would be presenting their testimony on the same day and he objected to this, which objection the court overruled.
19. It is the Appellants’ case that his constitutional rights under Article 50 (2) (b) (c)and (d) of the Constitution of Kenya were therefore violated. Following this conduct, he urged the court to make a declaration that his rights were violated and offer appropriate relief under Article 23(3) of Constitution. which should include allowing this appeal on this ground.
20. On whether the case was proved beyond reasonable doubt, the Appellant submitted that the prosecution did not prove their case beyond reasonable doubt as provided under Section 107 of the Evidence Act. That the prosecution failed in its duty to prove its case as the ingredients of the offence he was alleged to have committed were not properly established. On Penetration, he submitted that the prosecution heavily relied on the inconclusive medical evidence to secure a conviction. Further, that the physical examination of complainant made a finding that the complainant had been sexually active prior to the alleged incident which is not attributed to him. He stated that the examination did not yield any positive proof of penetration making her claim uncorroborated.
21. On identification, the Appellant submitted that ‘Kipla’ was mentioned as a possible perpetrator in this case and she picked on him mistakenly as she mentions that someone without referring to a particular name attacked her. This raised doubt as to the identity of the perpetrator. Further, that the trial magistrate did not warn herself on the danger of relying on the testimony of a single identifying witness in difficult circumstances in this case.
22. He urged that all this points to a situation in the case that the conviction was based on evidence that was below the standard of proof of evidence. That the prosecution made their case worse by charging him under an inappropriate charge, and made an error by not making a timely amendment on the charge sheet. He stated that the trial court made an error in finding him guilty on a wrong charge whose ingredients were below the standard of proof of evidence.
23. The Appellant submitted that the trial court found him guilty based on a defective charge sheet occasioning a miscarriage of justice. That the statement of offence and the particularization of the charge were at variance indicating that the charge was defective. He urged that it emerged during the proceedings that both his father and the complainant's father are brothers which makes them cousins. Although the complainant did not exactly identify him as a relative (neighbour) but her father did.
24. He stated that sexual relationship between blood relatives is known or defined as incest yet he was charged with the offence of defilement instead of incest. This omission made the charge defective contrary to Section 214 of the Criminal Procedure Code. It is the Appellants’ case that whenever a charge is defective the appellate court should order for a retrial probably under a charge of incest by male under Section 20 (1) of Sexual Offences Act. that a sexual relationship of cousins is not listed among the prohibited sexual relationship and thus leaves the court with the only option of discharging appellant from this case as a way of addressing this defect and in compliance with my right to a fair trial.
25. The Appellant urged that the appeal is also premised on the failure to consider his mitigation factors before his sentencing which was an irregularity and an error in principle. He maintained that his trial was irregular for not considering or conforming with the sentencing principles during his sentence hearing. He urged the court to interfere with the sentence on this ground.
26. The Appellant submitted that Section 333(2) of the Criminal Procedure Code was not complied with as the trial court did not factor the period of about 5 months he spent in pre-trial custody before his sentencing. He urged the court to correct the omission by reducing his sentence of 20 years by the 5 months or in the alternative order his sentence to commence from the date of his arrest on 26th December 2023.
27. The Appellant urged that the trial court erred by not imposing a less severe sentence as expected under Article 50 (2)(p) of Constitution. Further, that the sentence was wrong in principle as it lacked the application of sentencing principles such as mitigation which on application may result to a reduction of his 20 years sentence by one third (7 years).
28. The Appellant submitted that the trial court failed to make a finding that the witnesses were not credible as they were not speaking the truth despite being affirmed to speak the truth. That the complainant did not disclose the family ties they shared and further, that the complainant was not truthful by stating that she was not with boys during her celebration with ‘wazungus’. Additionally, that the time of the offence was doubtful as there was a mention of 4 pm, 7 pm among others.
29. That the court adopted 4 pm in its judgement while most of the witnesses indicated it was 7pm. The inconsistency amounts to convicting and sentencing the appellant on extraneous issues. The court also held the proceedings in camera violating his right to a public trial as the complainant was never a vulnerable witness of tender years. She was 15 years and two months old. He further argued that the trial court did not strictly adhere to requirements of Section 124 of the Evidence Act as the complainant lacked credibility but still went ahead to convict and sentence him. He urged the court to allow the appeal and set aside the sentence.
Respondents’ submissions
30. Counsel for the state urged that the prosecution proved its case to the required standard. He set out the charge as per the provisions of Section 8(1) and (3) of the Sexual Offences Act and the critical ingredients of the offence of defilement as set out in the case of Charles Wamukoya Karani vs. Republic. Criminal Appeal No.72 of 2013. He additionally set out the duty of the prosecution to establish all the elements of the offence beyond reasonable doubt.
31. On identification, counsel placed reliance on the case of Watuku v Republic (Criminal Appeal 08 of 2020) [2022] KEHC 4 (KLR), urging that the issue of identification of the Appellant was by recognition. That PW1 testified that she met the Appellant on her way home and that the Appellant was not a stranger to her as she would normally see him on the road while she ran her errands. She knew the Appellants’ name as Meshack.
32. Counsel recollected the evidence of the complainant as to the incident and urged that it was clear that the Appellant was not a stranger to PW1 hence was recognized. He additionally cited the case of Anjononi & Others vs The Republic (1980) KLR on the difference in approach between identification and recognition. He reiterated that PW1 knew the Appellant prior to the incident and therefore, the issue on identification is free from any error and was proved by the prosecution beyond any reasonable doubt.
33. On proof of penetration counsel submitted that “Penetration” is defined under Section 2 of the Act to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person”. Counsel recollected the testimony of the complainant and urged that the question that arose was whether that evidence requires corroboration. Citing the provisions of Section 124 of the Evidence Act, counsel submitted that the evidence of the complainant of her being penetrated was corroborated by that of the clinical officer (PW5) who examined the complainant and the findings were recorded in the P3 form. He urged that the evidence proved beyond reasonable doubt that there was penetration as contemplated by the act.
34. On the issue of age, counsel submitted that the investigation officer produced the complainants’ birth certificate as exhibit 1 and the same indicated that she was born on 13th October 2008. As the incident happened on 25th December 2023, the complainant was 15 years old as at the time of the incident. He placed reliance on the case of Moses Mutahi Mugo v Republic [2022] eKLR.
35. Counsel submitted that the Appellants defence was untrustworthy and that the trial court rightfully held that the prosecution had discharged its burden of proof. He urged the court to dismiss the Appeal.
Analysis & Determination
36. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32). The appellant introduced amended grounds of appeal in his submissions without the leave of the Court as is required under Section 350 (2) vi) of the Criminal Procedure Code. For this reasons, and also for reasons that submissions are not pleadings, these amended grounds shall not be considered and the court shall proceed on the basis of the Petition of Appeal as filed.
37. From my consideration of the Petition and the Submissions, it is my opinion that the issues that arise for determination are;
i) Whether the defilement charge against the Appellant was proved beyond reasonable doubt.
ii) Whether the sentence of 20 years’ imprisonment was merited.
38. Before delving into the issue of the proof of the charge, I note that the accused has alleged that his rights were violated in that the trial Court proceeded with the hearing and had a total of five witnesses testify in a single hearing ignoring his protestations that he was not ready to proceed with the hearing and with the five witnesses. I have perused the proceedings of the Trial Court.
39. I note that on the relevant date, the record shows that the Prosecutor indicated that it had five witnesses and was ready. The response of the Appellant (then accused) as indicated therein is “I am ready”. The record further shows that the Appellant proceeded to cross examine all the witnesses and there is no indication that he sought an adjournment in the cause of proceedings for any reason. This being the case, I find that this ground is totally without basis.
40. On whether the defilement charge against the Appellant was proved beyond reasonable doubt, Section 8(1) of the Sexual Offences Act under which the Appellant was charged, provides as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
41. In the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, 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.”
42. On the element of the age of the victim, the importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows:
“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -
“In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.
43. In the instant case, the complainant produced her birth certificate as an exhibit and it indicated that she was born on 3rd October 2008. This therefore places her age at the time of the incident at 15 years old. This then classifies her as a minor and hence the offence of defilement to which the applicable provision is sentencing is Section 8(3) of the Sexual Offences Act.
44. On the issue of penetration, the same is defined in Section 2(1) of the Sexual Offences Act defines the phrase as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
45. As was held in the Supreme Court of Uganda case of Bassita Hussein v Uganda, Criminal Appeal No 35 of 1995, which was cited with approval in the subsequent case of E.E v Republic [2015] eKLR;
the act of sexual intercourse or “penetration” may be proved by direct or circumstantial evidence, and usually, the sexual intercourse is proved by the victims through testimony, and corroborated by medical or other evidence.
46. In the instant case, the medical evidence adduced stated that there was penetration of the complainant’s genitalia. But even this as aside, the court notes that in the Appellant approbating and reprobating on whether or not he sexually assaulted the complainant, in his own submission, he states that because he is related to the complainant, sex between them should be treated as sexual intercourse with a relative and so he ought to have been charged with incest and not defilement. This admission on his part only goes to settle the issue of penetration even further and the court therefore need not belabour the point.
47. On the issue of identification, from the evidence on record, the court is satisfied that the identification of the Appellant was by way of recognition. This is buttressed by the Appellant’s own submission that they are in fact related and as a result he did not understand why the complainant’s father referred to him as a neighbour. The Court of Appeal stated thus on identification by recognition in the case of Reuben Tabu Anjononi & 2 Others v Republic [1980] eKLR:
“……. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported).
48. On whether the court can rely on the evidence of single witness to found a conviction, Section 124 of the Evidence Act provides as follows;
Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.
49. All the above considered, I am satisfied after my re-evaluation of the evidence on record that the prosecution did establish its case against the Appellant beyond reasonable doubt and that the Trial’s Court finding of guilt and subsequent conviction of the Appellant founded upon the said evidence is safe and I accordingly uphold the conviction.
50. On whether the sentence of twenty years’ imprisonment was merited, the applicable principles in considering sentence on Appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this Court and the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, the sentence must depend on the facts of each case. On Appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already stated is shown to exist”.
51. In respect to sentence, Section 8(3) of the Sexual Offences Act under which the Appellant was charged provides as follows:
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
52. As already herein stated, the age of the complainant is not disputed as being 15 years and that age as I have already herein stated places her in terms of sentencing at Section 8(3) of the Act which provides for a minimum mandatory sentence of 20 years’ imprisonment. The sentence meted out upon the Appellant is therefore lawful, legal and valid and the court shall not interfere with but upholds the same. As provided under Section 333(2) of the Criminal Procedure Code, the sentence is to run from the date of his arrest.
53. The upshot of my conclusions herein is that save for the ground under Section 333(2) of the Criminal Procedure Code which is allowed as appropriate, the rest of the Appellant’s Appeal against conviction and sentence lacks merit and is dismissed in entirety. Right of Appeal 14 days.
Read Dated and Signed at ELDORET on 9th July 2025