(Being an appeal from the conviction and sentence of Hon. Faith Mutuku (PM) in Wang’uru Magistrates Court S.O. Case No. E003 of 2020 delivered on 18/5/2023)
Background
1. The appellant, Michael Mulinge Sila was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on 5/10/2020 at Dindiruku village, in Mwea East Sub-County of Kirinyaga County intentionally caused his penis to penetrate the vagina of M.N. a child aged 13 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place and time as in the principal charge, he intentionally touched the vagina of M.N. a child aged 13 years with his penis.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per an undated memorandum filed in court on 3/8/2023.
Grounds of appeal
5. The grounds are in a summarized version that:
a. The learned trial magistrate erred in law and fact relying upon the evidence of the complainant who demonstrated doubtful integrity and therefore whose evidence was doubtful.
b. The learned trial magistrate erred in law and fact by not finding that critical elements of the offence of defilement were not proved.
c. The learned trial magistrate erred in law and fact for not finding that the prosecution’s case was riddled with material discrepancies capable of unsettling the verdict.
d. The learned trial magistrate erred in law and fact for not properly considering the appellant’s plausible defence which was not contested or challenged by the prosecution demonstrating that the matter was a frame-up arising from envy of the appellant’s success.
e. The learned trial magistrate erred in law and fact for not finding that the charge sheet was defective.
f. The prosecution case was below the standard of proof required for conviction in a criminal case.
6. The appellant therefore prays that the appeal be allowed.
Submissions
7. The appeal was canvassed through written submissions filed by the appellant in person and respondent’s counsel. The same are considered in detail in the analysis following.
Duty of this court
8. This being a first appeal, this court has a duty to examine, re-evaluate and reconsider the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as held in the case of Okeno v Republic (1972) EA 32.
Case before the trial court
9. At the trial, the prosecution called 5 witnesses. The appellant in defence tendered sworn evidence and did not have a witness to call.
10. The prosecution’s case was that the complainant as follows.
11. PW 1, M.N. was the complainant. She was 14 years old on the date that she testified in court on 1/12/2021 having been born on 19/2/2007. She said she had dropped out of school while in class 7 in July of 2021 when this case was pending in court. It was unnecessary for the court to conduct a voire dire examination of her as it did since the complainant was not below the age of 14 years. I have to make this observation because the court eventually found that the complainant did not understand the nature of an oath and allowed her to make an unsworn statement even when she would have given sworn evidence. However, there is not prejudice occasioned to the appellant by the course taken by the learned trial magistrate.
12. The complainant was therefore aged 13 years at the time of the alleged incident on the night of 5/10/2020 at about 1.00 a.m. when she was found with the appellant in his room. The complainant said the appellant enticed her to accompany him first to his place of work at Gathigiri on the evening of Sunday 4/10/2020. On 5/10/2020, they went to his house where they engaged in sexual intercourse.
13. PW 3, W.N.N, the complainant’s father was called on phone and informed of her being with the appellant in that house that very night from a neighbor of the appellant who had seen the two enter the house and subsequently heard the complainant screaming.
14. PW 3 sought assistance from the village elder in-charge PW 4, James Mugira Magondu and they proceeded to the house. They found the complainant and the appellant in the house. The two were taken to the police station. PW 3 took the complainant to Kimbimbi hospital the following morning.
15. PW 2, George Kariuki, a clinical officer from Kimbimbi Sub-County hospital gave evidence on behalf of his colleague Francis Owino Omondi who was away on further studies, on the medical examination results of the complainant as per the P3 form produced in court as exhibit. In the P3 form, the detailed description concerning physical state of and any injuries to genitalia with special reference to labia majora, labia minora, vagina, cervix and conclusion there was first degree perineal tear, lacerated vaginal walls, freshly torn hymen with whitish vaginal discharge. On presence of discharge, blood or venereal infections from genital or on body externally, it was noted that inner garments blood stain, tear seen perennially with presence of venereal infection. All other systems were found to be normal. The approximate age of injuries was one day and probable weapon causing them was defilement.
16. PW 5, PC Faith Maloba was the investigating officer in the case. She rehashed the evidence as narrated to her by the other prosecution witnesses.
17. DW 1, Michael Mulinge Sila the appellant and the accused person at the trial gave sworn evidence in defence and denied that he committed the offence. He said that he was arrested from his house at his home. He was woken up at around 12.00 midnight with a knock at his door. When he opened, he was immediately attacked and lost consciousness. He later found himself at Wang’uru police station.
18. He said that he had been framed up for this offence and blamed PW 4, Mugera, the village elder. The appellant said that he had sent someone to give PW 4 some KShs 10,000/= to purchase some chemicals to spray crops which PW 4 did not do but told him that he had used it on some emergency. When the appellant asked for his money back, PW 4 framed him up for this offence.
Analysis
19. I have examined and re-evaluated the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the parties. The point for determination is whether or not the trial court reached a correct conclusion in its finding that the prosecution had proved its case against the appellant beyond a reasonable doubt.
20. Section 8 of the Sexual Offences Act under which the appellant was charged and convicted provides as follows:
1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
3) 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.
4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
21. Ground 4 of the memorandum of appeal was that the charge sheet was defective. However, the appellant did not make any submission on this ground. He appears to have abandoned it.
22. Learned counsel for the respondent, however, responding to that ground submitted that there was an error as the appellant was charged under section 8(1) and (2) instead of 8(1) and (3) but that this did not render the charge sheet defective. He relied on the case of JAG v Republic [2021] KEHC 5469 (KLR) where the High Court considering a similar issue observed thus:
“In regard to the charge sheet, the appellant was charged with defilement as the main charge. The record shows that the complainant was aged around 15 years. The appellant herein was charged under Section 8(1)(2) instead of Section 8(4) of the Sexual Offences Act No. 3 of 2006. The learned magistrate raised the issue on her own motion but the appellant has raised it as one of the grounds of appeal. I concur with the appellant that there was error since Section 8(2) deals with defilement of a child aged eleven years or less while Section 8(4) deals with a child aged between sixteen and eighteen years.
The two sub-sections bear different sentence terms on conviction of the accused person. Under Section 8(2) the mandatory minimum sentence is imprisonment for live whereas under Section 8(4) a term of not less than fifteen (15) years is provided for. …
In my considered view, citing the wrong penalty section does not go to the root of the charge. I am of the view that the error in the charge sheet did not occasion a failure of justice as the same is curable under Section 382 of the Criminal Procedure Code.”
23. I agree with the learned Judge in her findings above and adopt them herein.
24. From the above provisions, section 8(1) creates the offence of defilement while subsection (2), (3) and (4) are the penalty sections, each penalty depending on the age of the victim. In this case, the appellant was charged under sub-section (1). Subsection (2) provides the punishment where the victim is aged eleven years or less. In this case the age of the victim was given in the charge sheet as 13 years. The correct penalty subsection ought to have been (3). The learned trial magistrate considered this issue in her judgment and found that no prejudice had been occasioned to the appellant as a result of the wrong penalty section having been charged. I agree. The ingredients of the offence of defilement are found in sub-section (1) which was properly cited in this case. There is no prejudice occasioned to the appellant. All the same, the point is moot as the appellant did not argue it in his submissions.
25. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
26. The learned trial magistrate set out these essential ingredients to be established by the prosecution in order to prove the offence of defilement and then evaluated the evidence tendered in proof of each of them. She found that each of them had been proved beyond a reasonable doubt.
27. It is the appellant’s contention that all the ingredients were not proved beyond a reasonable doubt. Learned counsel for the respondent submits that all the ingredients of the offence were proved to the required standard of beyond a reasonable doubt.
28. The appellant submits that he was framed up for this offence by Mugera, PW 4 whom he claims failed to refund KShs 10,000/= that he had given him to purchase some farm chemicals. That allegation is completely baseless as was found by the learned trial magistrate. PW 4 was only informed of the incident leading to the arrest of the appellant by the complainant’s father, PW 3. PW 4 took it up as a leader to assist the father get his daughter from where he had been informed he was.
29. They went to the appellant’s residence and indeed found the complainant in the house with the appellant. The appellant said as his defence that immediately he opened his door, he was set upon being beaten until he became senseless. Does he mean that he was being beaten in the middle of the night because he had rightfully asked PW 4 to refund his money? PW 4 in cross-examination denied owing him KShs 10,000/= and I have no reason to doubt him. Even if it were true, it could not displace the strong prosecution evidence by PW 1, PW 3 and PW 4 that the appellant was arrested at around 1.00 a.m. from his residence together with the complainant, a minor aged 13 years.
30. The appellant also submitted that the Sexual Offences Act is being used to settle imaginary grudges, personal vendetta and for extortion purposes. Indeed, in certain cases, courts have found that to be the position. But it is not a general position to be alleged in every case. It is an issue that comes out from the evidence tendered at trial. The court will then examine the evidence and make its decision thereon. In that regard, the truthfulness or otherwise of a complainant is one other very key ingredient in proof of a sexual offence case.
31. In this case, evidence shows that the complainant was a truant child. She refused to proceed with her schooling on her own volition. She left home not once but severally without her parents’ permission to go and stay away from them. Regarding this incident, she had initially left home to stay with her aunt. She was found at her aunt’s residence on 4/10/2020 and taken away together with her aunt who was detained at Makima police post while the complainant was released to go home with her parents. She sneaked away from home the very evening and went back to her aunt’s place where due to her aunt’s absence she joined the appellant who was her aunt’s neighbour. After this incident, she again took off from home and went to “get married” to one Irungu in Murang’a. That is evidence of being truant.
32. However, in spite of her conduct, when it came to her testimony herein, I find her to have been open and honest. She described every of the above incidents without appearing to conceal anything. I find her to be a truthful and honest witness.
33. The complainant said that the appellant had taken her in because her aunt with whom she had been staying had been arrested earlier in the day. She had also been taken with the aunt to the police station but she was released to her parents only to go back to her aunt’s place the same evening. Her aunt was not in. The appellant took advantage of the situation by cheating her that her father had threatened to kill her and so he would offer her refuge.
34. The appellant’s other ground of appeal and submissions is that the elements of the offence of defilement were not proved beyond a reasonable doubt.
35. I have examined and reevaluated the evidence tendered on each of the elements. I am satisfied that the age of the complainant was proved by her own evidence and corroborated by that of PW 3, her father and then with the certificate of birth produced as exhibit 6 before the trial court which showed her date of birth as 19/2/2007 making her about 13 years and 8 months as at 5/10/2020 when the incident happened.
36. Evidence of penetration was given by the complainant. She said the appellant had sexual intercourse with her and this was the first time she had sexual intercourse and when the appellant was penetrating her, she felt pain and screamed.
37. It is true as submitted by the appellant that the penetration should be proved to have been with a genital organ and into the genital organ of the complainant as provided for under section 8(1) of the SOA. The medical evidence indeed did not specify the object of penetration. However, the complainant’s evidence that the appellant had penetrative sexual intercourse with her is supported by the evidence of PW 3 and PW 4 that the two were found together, with the complainant seated on the bed crying.
38. Moreover, her screams due to the pain she was feeling attracted a neighbour who called the father PW 3. Her evidence that her father was called on phone and informed that she was in the appellant’s house was corroborated by her father. The father took immediate steps that late hour of the night went to the house where he found her with the appellant. Her father’s evidence was that he spotted blood stains from her genitalia. Granted that PW 4, who was with the father said that he did not see the blood stains, that does not mean that the blood stains were not there. It only means that he did not see them. It is not obvious, from the position of the female genital organ that it was something obvious that he would have readily seen. The father had particular interest in his daughter and so his perception of what was unfolding was keener than that of PW 4. The father’s evidence that he found the complainant bleeding from her genital organ is corroboration of her evidence that there was recent penetration of her genital organ.
39. The medical evidence also showed that the complainant’s hymen was freshly torn with the tear still visible. The complainant said that was her first time to engage in sexual intercourse. That evidence is corroborated by her father’s evidence that she was bleeding from her genital organ at the time and the medical evidence that her hymen was freshly torn. The appellant submitted that expert evidence such as the medical evidence herein is often times biased and therefore unreliable as such witnesses have pre-formed notions to support the cause which they have embarked upon. He has cited the English case of The Tracy Peerage (1939) 10 CI. & F. 154 at 191 where Lord Campbell held that “Hardly any weight is to be given to the evidence of what are called scientific witnesses they come with a bias on their minds to support the cause in which they embarked…” That could be so but the evidence has to be evaluated in each case. In this case, it is not just the medical evidence that supports the complainant’s evidence of penetrative sexual intercourse. There is no indication that the tear and bleeding could have been caused by any other object or through any other means other than penile penetration, as testified by the complainant, given the obtaining circumstances at the time. I am satisfied as the learned trial magistrate did that there was evidence of penetration of the complainant’s genital organ by a male genital organ.
40. The final issue was identification of the appellant as the perpetrator. The appellant was found and arrested with the complainant from the same room at 1.00 a.m. I have dismissed his denial that he was not so arrested as without merit. The complainant’s evidence that indeed she was with the appellant at the time and they were found together is corroborated by PW 3 her father and the village elder PW 4. The appellant tried resisting to open the door but knowing that the resistance would not last much, he gave in and opened.
41. The appellant argues that the complainant had been married to one Irungu in Murang’a before. That was a convolution of the complainant’s evidence. The complainant’s evidence was that after she was returned home upon being found with the appellant, she took off again and went to Murang’a where she stayed with the said Irungu as husband and wife but she was removed from there again and Irungu was arrested and charged. The evidence was not that he was with Irungu before but after the incident with the appellant.
42. I am satisfied that from the evidence on record the prosecution made a strong and watertight case against the appellant. The evidence of the prosecution witnesses corroborated each other and formed a clear and logical sequence of events establishing the appellant’s guilt.
43. I am satisfied that the finding of the trial court that the appellant was committed the offence of defilement against the complainant, a girl aged 13 years was based on overwhelming evidence and cannot be faulted. Consequently, the decision of the trial court is affirmed and the appeal is dismissed in its entirety.
44. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 8th day of July 2025 in the presence of:
The appellant in person from Nyeri Maximum prison.
Vallerie (Ms) holding brief for Jamleck for the respondent.
Job: Court assistant.
Background
1. The appellant, Michael Mulinge Sila was convicted on the principal charge for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya (SOA). The particulars were that on 5/10/2020 at Dindiruku village, in Mwea East Sub-County of Kirinyaga County intentionally caused his penis to penetrate the vagina of M.N. a child aged 13 years.
2. He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and at the same place and time as in the principal charge, he intentionally touched the vagina of M.N. a child aged 13 years with his penis.
3. The appellant denied both charges. After a full trial, he was convicted of the principal charge of defilement and sentenced to serve 20 years imprisonment.
4. Dissatisfied with the conviction and sentence, the appellant has appealed to this court on the following grounds as per an undated memorandum filed in court on 3/8/2023.
Grounds of appeal
5. The grounds are in a summarized version that:
a. The learned trial magistrate erred in law and fact relying upon the evidence of the complainant who demonstrated doubtful integrity and therefore whose evidence was doubtful.
b. The learned trial magistrate erred in law and fact by not finding that critical elements of the offence of defilement were not proved.
c. The learned trial magistrate erred in law and fact for not finding that the prosecution’s case was riddled with material discrepancies capable of unsettling the verdict.
d. The learned trial magistrate erred in law and fact for not properly considering the appellant’s plausible defence which was not contested or challenged by the prosecution demonstrating that the matter was a frame-up arising from envy of the appellant’s success.
e. The learned trial magistrate erred in law and fact for not finding that the charge sheet was defective.
f. The prosecution case was below the standard of proof required for conviction in a criminal case.
6. The appellant therefore prays that the appeal be allowed.
Submissions
7. The appeal was canvassed through written submissions filed by the appellant in person and respondent’s counsel. The same are considered in detail in the analysis following.
Duty of this court
8. This being a first appeal, this court has a duty to examine, re-evaluate and reconsider the evidence on record afresh and come to its own independent conclusions and inferences bearing in mind that it did not see or hear the witnesses testify first-hand as held in the case of Okeno v Republic (1972) EA 32.
Case before the trial court
9. At the trial, the prosecution called 5 witnesses. The appellant in defence tendered sworn evidence and did not have a witness to call.
10. The prosecution’s case was that the complainant as follows.
11. PW 1, M.N. was the complainant. She was 14 years old on the date that she testified in court on 1/12/2021 having been born on 19/2/2007. She said she had dropped out of school while in class 7 in July of 2021 when this case was pending in court. It was unnecessary for the court to conduct a voire dire examination of her as it did since the complainant was not below the age of 14 years. I have to make this observation because the court eventually found that the complainant did not understand the nature of an oath and allowed her to make an unsworn statement even when she would have given sworn evidence. However, there is not prejudice occasioned to the appellant by the course taken by the learned trial magistrate.
12. The complainant was therefore aged 13 years at the time of the alleged incident on the night of 5/10/2020 at about 1.00 a.m. when she was found with the appellant in his room. The complainant said the appellant enticed her to accompany him first to his place of work at Gathigiri on the evening of Sunday 4/10/2020. On 5/10/2020, they went to his house where they engaged in sexual intercourse.
13. PW 3, W.N.N, the complainant’s father was called on phone and informed of her being with the appellant in that house that very night from a neighbor of the appellant who had seen the two enter the house and subsequently heard the complainant screaming.
14. PW 3 sought assistance from the village elder in-charge PW 4, James Mugira Magondu and they proceeded to the house. They found the complainant and the appellant in the house. The two were taken to the police station. PW 3 took the complainant to Kimbimbi hospital the following morning.
15. PW 2, George Kariuki, a clinical officer from Kimbimbi Sub-County hospital gave evidence on behalf of his colleague Francis Owino Omondi who was away on further studies, on the medical examination results of the complainant as per the P3 form produced in court as exhibit. In the P3 form, the detailed description concerning physical state of and any injuries to genitalia with special reference to labia majora, labia minora, vagina, cervix and conclusion there was first degree perineal tear, lacerated vaginal walls, freshly torn hymen with whitish vaginal discharge. On presence of discharge, blood or venereal infections from genital or on body externally, it was noted that inner garments blood stain, tear seen perennially with presence of venereal infection. All other systems were found to be normal. The approximate age of injuries was one day and probable weapon causing them was defilement.
16. PW 5, PC Faith Maloba was the investigating officer in the case. She rehashed the evidence as narrated to her by the other prosecution witnesses.
17. DW 1, Michael Mulinge Sila the appellant and the accused person at the trial gave sworn evidence in defence and denied that he committed the offence. He said that he was arrested from his house at his home. He was woken up at around 12.00 midnight with a knock at his door. When he opened, he was immediately attacked and lost consciousness. He later found himself at Wang’uru police station.
18. He said that he had been framed up for this offence and blamed PW 4, Mugera, the village elder. The appellant said that he had sent someone to give PW 4 some KShs 10,000/= to purchase some chemicals to spray crops which PW 4 did not do but told him that he had used it on some emergency. When the appellant asked for his money back, PW 4 framed him up for this offence.
Analysis
19. I have examined and re-evaluated the evidence tendered before the trial court, the judgment of the trial court, the grounds of appeal and the submissions by the parties. The point for determination is whether or not the trial court reached a correct conclusion in its finding that the prosecution had proved its case against the appellant beyond a reasonable doubt.
20. Section 8 of the Sexual Offences Act under which the appellant was charged and convicted provides as follows:
1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
3) 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.
4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
21. Ground 4 of the memorandum of appeal was that the charge sheet was defective. However, the appellant did not make any submission on this ground. He appears to have abandoned it.
22. Learned counsel for the respondent, however, responding to that ground submitted that there was an error as the appellant was charged under section 8(1) and (2) instead of 8(1) and (3) but that this did not render the charge sheet defective. He relied on the case of JAG v Republic [2021] KEHC 5469 (KLR) where the High Court considering a similar issue observed thus:
“In regard to the charge sheet, the appellant was charged with defilement as the main charge. The record shows that the complainant was aged around 15 years. The appellant herein was charged under Section 8(1)(2) instead of Section 8(4) of the Sexual Offences Act No. 3 of 2006. The learned magistrate raised the issue on her own motion but the appellant has raised it as one of the grounds of appeal. I concur with the appellant that there was error since Section 8(2) deals with defilement of a child aged eleven years or less while Section 8(4) deals with a child aged between sixteen and eighteen years.
The two sub-sections bear different sentence terms on conviction of the accused person. Under Section 8(2) the mandatory minimum sentence is imprisonment for live whereas under Section 8(4) a term of not less than fifteen (15) years is provided for. …
In my considered view, citing the wrong penalty section does not go to the root of the charge. I am of the view that the error in the charge sheet did not occasion a failure of justice as the same is curable under Section 382 of the Criminal Procedure Code.”
23. I agree with the learned Judge in her findings above and adopt them herein.
24. From the above provisions, section 8(1) creates the offence of defilement while subsection (2), (3) and (4) are the penalty sections, each penalty depending on the age of the victim. In this case, the appellant was charged under sub-section (1). Subsection (2) provides the punishment where the victim is aged eleven years or less. In this case the age of the victim was given in the charge sheet as 13 years. The correct penalty subsection ought to have been (3). The learned trial magistrate considered this issue in her judgment and found that no prejudice had been occasioned to the appellant as a result of the wrong penalty section having been charged. I agree. The ingredients of the offence of defilement are found in sub-section (1) which was properly cited in this case. There is no prejudice occasioned to the appellant. All the same, the point is moot as the appellant did not argue it in his submissions.
25. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
26. The learned trial magistrate set out these essential ingredients to be established by the prosecution in order to prove the offence of defilement and then evaluated the evidence tendered in proof of each of them. She found that each of them had been proved beyond a reasonable doubt.
27. It is the appellant’s contention that all the ingredients were not proved beyond a reasonable doubt. Learned counsel for the respondent submits that all the ingredients of the offence were proved to the required standard of beyond a reasonable doubt.
28. The appellant submits that he was framed up for this offence by Mugera, PW 4 whom he claims failed to refund KShs 10,000/= that he had given him to purchase some farm chemicals. That allegation is completely baseless as was found by the learned trial magistrate. PW 4 was only informed of the incident leading to the arrest of the appellant by the complainant’s father, PW 3. PW 4 took it up as a leader to assist the father get his daughter from where he had been informed he was.
29. They went to the appellant’s residence and indeed found the complainant in the house with the appellant. The appellant said as his defence that immediately he opened his door, he was set upon being beaten until he became senseless. Does he mean that he was being beaten in the middle of the night because he had rightfully asked PW 4 to refund his money? PW 4 in cross-examination denied owing him KShs 10,000/= and I have no reason to doubt him. Even if it were true, it could not displace the strong prosecution evidence by PW 1, PW 3 and PW 4 that the appellant was arrested at around 1.00 a.m. from his residence together with the complainant, a minor aged 13 years.
30. The appellant also submitted that the Sexual Offences Act is being used to settle imaginary grudges, personal vendetta and for extortion purposes. Indeed, in certain cases, courts have found that to be the position. But it is not a general position to be alleged in every case. It is an issue that comes out from the evidence tendered at trial. The court will then examine the evidence and make its decision thereon. In that regard, the truthfulness or otherwise of a complainant is one other very key ingredient in proof of a sexual offence case.
31. In this case, evidence shows that the complainant was a truant child. She refused to proceed with her schooling on her own volition. She left home not once but severally without her parents’ permission to go and stay away from them. Regarding this incident, she had initially left home to stay with her aunt. She was found at her aunt’s residence on 4/10/2020 and taken away together with her aunt who was detained at Makima police post while the complainant was released to go home with her parents. She sneaked away from home the very evening and went back to her aunt’s place where due to her aunt’s absence she joined the appellant who was her aunt’s neighbour. After this incident, she again took off from home and went to “get married” to one Irungu in Murang’a. That is evidence of being truant.
32. However, in spite of her conduct, when it came to her testimony herein, I find her to have been open and honest. She described every of the above incidents without appearing to conceal anything. I find her to be a truthful and honest witness.
33. The complainant said that the appellant had taken her in because her aunt with whom she had been staying had been arrested earlier in the day. She had also been taken with the aunt to the police station but she was released to her parents only to go back to her aunt’s place the same evening. Her aunt was not in. The appellant took advantage of the situation by cheating her that her father had threatened to kill her and so he would offer her refuge.
34. The appellant’s other ground of appeal and submissions is that the elements of the offence of defilement were not proved beyond a reasonable doubt.
35. I have examined and reevaluated the evidence tendered on each of the elements. I am satisfied that the age of the complainant was proved by her own evidence and corroborated by that of PW 3, her father and then with the certificate of birth produced as exhibit 6 before the trial court which showed her date of birth as 19/2/2007 making her about 13 years and 8 months as at 5/10/2020 when the incident happened.
36. Evidence of penetration was given by the complainant. She said the appellant had sexual intercourse with her and this was the first time she had sexual intercourse and when the appellant was penetrating her, she felt pain and screamed.
37. It is true as submitted by the appellant that the penetration should be proved to have been with a genital organ and into the genital organ of the complainant as provided for under section 8(1) of the SOA. The medical evidence indeed did not specify the object of penetration. However, the complainant’s evidence that the appellant had penetrative sexual intercourse with her is supported by the evidence of PW 3 and PW 4 that the two were found together, with the complainant seated on the bed crying.
38. Moreover, her screams due to the pain she was feeling attracted a neighbour who called the father PW 3. Her evidence that her father was called on phone and informed that she was in the appellant’s house was corroborated by her father. The father took immediate steps that late hour of the night went to the house where he found her with the appellant. Her father’s evidence was that he spotted blood stains from her genitalia. Granted that PW 4, who was with the father said that he did not see the blood stains, that does not mean that the blood stains were not there. It only means that he did not see them. It is not obvious, from the position of the female genital organ that it was something obvious that he would have readily seen. The father had particular interest in his daughter and so his perception of what was unfolding was keener than that of PW 4. The father’s evidence that he found the complainant bleeding from her genital organ is corroboration of her evidence that there was recent penetration of her genital organ.
39. The medical evidence also showed that the complainant’s hymen was freshly torn with the tear still visible. The complainant said that was her first time to engage in sexual intercourse. That evidence is corroborated by her father’s evidence that she was bleeding from her genital organ at the time and the medical evidence that her hymen was freshly torn. The appellant submitted that expert evidence such as the medical evidence herein is often times biased and therefore unreliable as such witnesses have pre-formed notions to support the cause which they have embarked upon. He has cited the English case of The Tracy Peerage (1939) 10 CI. & F. 154 at 191 where Lord Campbell held that “Hardly any weight is to be given to the evidence of what are called scientific witnesses they come with a bias on their minds to support the cause in which they embarked…” That could be so but the evidence has to be evaluated in each case. In this case, it is not just the medical evidence that supports the complainant’s evidence of penetrative sexual intercourse. There is no indication that the tear and bleeding could have been caused by any other object or through any other means other than penile penetration, as testified by the complainant, given the obtaining circumstances at the time. I am satisfied as the learned trial magistrate did that there was evidence of penetration of the complainant’s genital organ by a male genital organ.
40. The final issue was identification of the appellant as the perpetrator. The appellant was found and arrested with the complainant from the same room at 1.00 a.m. I have dismissed his denial that he was not so arrested as without merit. The complainant’s evidence that indeed she was with the appellant at the time and they were found together is corroborated by PW 3 her father and the village elder PW 4. The appellant tried resisting to open the door but knowing that the resistance would not last much, he gave in and opened.
41. The appellant argues that the complainant had been married to one Irungu in Murang’a before. That was a convolution of the complainant’s evidence. The complainant’s evidence was that after she was returned home upon being found with the appellant, she took off again and went to Murang’a where she stayed with the said Irungu as husband and wife but she was removed from there again and Irungu was arrested and charged. The evidence was not that he was with Irungu before but after the incident with the appellant.
42. I am satisfied that from the evidence on record the prosecution made a strong and watertight case against the appellant. The evidence of the prosecution witnesses corroborated each other and formed a clear and logical sequence of events establishing the appellant’s guilt.
43. I am satisfied that the finding of the trial court that the appellant was committed the offence of defilement against the complainant, a girl aged 13 years was based on overwhelming evidence and cannot be faulted. Consequently, the decision of the trial court is affirmed and the appeal is dismissed in its entirety.
44. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 8th day of July 2025 in the presence of:
The appellant in person from Nyeri Maximum prison.
Vallerie (Ms) holding brief for Jamleck for the respondent.
Job: Court assistant.