(Being an Appeal from the judgment of Hon. R.M Amwayi Principal Magistrate at Kaloleni Principal Magistrate’s Court dated 13 th October, 2025 in S.O E012 of 2025)
Introduction.
1. The appellant was charged with defilement of a child contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006.
2. The appellant was adjudged guilty on the main charge of defilement and subsequently sentenced to serve 20 years imprisonment. The particulars of the main charge are that on diverse dates between January, 2025 and April, 2025 at (particulars withheld) within Kilifi County intentionally and unlawfully causes his male genital organ namely penis to penetrate the female genital organ namely vagina of S.K.M a child aged 14 years.
3. The appellant aggrieved by the conviction and sentence preferred this appeal to the High Court raising the following grounds:
1. That the learned trial magistrate erred and in fact in convicting him with no evidence which did not meet the required evidentiary standards.
2. That the learned trial magistrate erred in law and in fact by finding that the elements constituting the offence has been proved beyond reasonable doubt.
3. That the learned trial magistrate erred in law and in fact by finding the complainant a credible witness to prove identification despite the patent lies and inconsistencies.
4. That the learned trial magistrate erred in law and in fact by depending on evidence which was based on theory, inconsistencies and lies that shrouded the prosecution.
5. That the learned trial magistrate erred in law and in fact in finding that the elements of the offence were proven beyond reasonable doubt thereby convicting the appellant.
6. That the learned trial magistrate erred in law and in fact by dismissing the appellant defence and submissions.
7. That the learned trial magistrate erred in law and in fact by issuing a sentence that is harsh and excessive under the circumstances and not in accordance with the principles set out in law.
4. The appellant urged the court to allow the appeal and quash the conviction and sentence.
Prosecution Case.
5. Briefly, the prosecution case is that the complainant a pupil at (particulars withheld) told the court that the appellant was her boyfriend having met in December, 2024 when she went to the complainant home to look his sister Dorcas who was her friend. She told the court while there the appellant called her and seduced her to have sexual intercourse. She eventually agreed to have sex with him and the appellant escorted her home.
6. The complainant did not tell anyone that she had sexual intercourse with the appellant whom they were fellowshipping in the same church until pastor Josephine called her and asked her about her relationship with the appellant. She told her that the appellant was her boyfriend. Pastor Josephine informed her grandmother and she was taken to Gotani police station where she recorded statement.
7. She was later taken to Mariakani Sub County hospital where she was examined by PW1 and it was found that her hymen was broken confirming proof of penetration.
8. PW3 the complainant mother was called by the area Assistant Chief and was told that she was required at Gotani. She went with the complainant who upon interrogation admitted to having sex with the appellant. The matter was reported at Gotani police station where it was investigated by PW4.
9. PW4 in the course of his investigations interrogated the complainant who narrated to him that she was a pupil and that the appellant had seduced her and had sexual intercourse with her. He also established that the complainant was aged 14 years at the time of the commission of the offence. PW4 detained the appellant who had been brought to the station and later charged him with the offence of defilement.
Defence Case.
10. The appellant when placed on his defence by the trial court he opted to give a sworn statement. He narrated how on 24 th April, 2025 he met the village elder who gave him a letter requiring him to appear before the Chief’s office. When he went to the Chief’s office he was arrested and later charged. He denied committing the offence. He also admitted that there was no dispute or any disagreement between him and the complainant. He also confirmed that the complainant was a neighbour.
The Trial Court’s Finding.
11. The trial court after considering the evidence adduced by the prosecution and defence case, appreciated that the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt.
12. The trial court properly identified the essential elements of the offence of defilement to wit, age of the victim, proof of penetration and positive identification of the perpetrator as laid down under Section 8(1) and (3) of the Sexual Offences Act and restated in numerous authorities which she cited.
13. The trial court found that age was proved by production of the birth certificate which corroborated the evidence adduced by the complainant and the other witnesses that the complainant was aged 14 years at the time of the commission of the offence.
14. The trial court further found that penetration was proved by the evidence of the complainant whom she believed to be a credible and truthful witness that she had sexual intercourse with the appellant. The trial court found that the evidence of the complainant was corroborated by the medical evidence adduced by PW1.
15. Regarding identification of the appellant as the perpetrator, the trial court found that the appellant was well known to the complainant as they were congregating in the same church and they were also neighbours. The trial court found that there was no possibility of frame up.
Appellant’s Submissions.
16. The appellant submitted that there was no sufficient evidence to prove the elements of the offence of defilement. It was submitted that the trial court relied on the P3 Form which showed that although the hymen was broken, there were no injuries on the genitalia which was inconsistent with the evidence of the complainant. It is the appellant’s submission that the complainant having been examined the same day the incidence is alleged to have taken place, lack of injuries on her genitalia casts doubt as to the credibility of her evidence. It is argued that missing hymen is not conclusive evidence of penetration.
17. The appellant further submitted that the evidence of the complainant on identification of the appellant was not credible and consistent for the trial court to conclude that the appellant was the perpetrator. It is the appellant submission that the evidence of the complainant was that she had gone to visit the appellant’s sister hence it is not clear whom the complainant had gone to visit.
18. The appellant further submitted that the complainant disclosed the alleged relationship with the appellant to the pastor who was never called as a witness to testify and confirm and or corroborate the complainant’s evidence. It is further argued that PW3 informed the court that she received a call from the area Assistant Chief who was also never called as a witness to confirm that indeed the complainant after interrogation admitted to having sex with the appellant.
19. Further the appellant submitted that the investigating officer alleged that the relationship between the complainant and appellant was going on since 2024 and the same was well known by the church committee members who were never called to support the allegations.
20. The appellant questioned the credibility of the complainant as to why she remained silence about the relationship since 2024 until January, 2025. It is the appellant submission that the complainant was not truthful and thus her evidence fell short of the provision of Section 124 of Evidence Act and therefore the trial court erred in believing her evidence.
21. In short, the appellant submitted the prosecution failed to discharge the burden of proof as required and urged the court to find that the appeal is merited and proposed that the same be allowed and the conviction and sentence be set aside.
Respondent’s Submissions.
22. The respondent contested the appeal. It was submitted that the prosecution proved the case as required. The respondent submitted that the prosecution bears the burden of proving the charge against an accused person beyond reasonable doubt and in the instant case all the ingredients of the offence were proved as required.
23. Regarding the age of the complainant, the respondent relied on the case of Francis Omuroni vs Uganda Court of Appeal Criminal Appeal No. 2 of 2000 and submitted that the age of the complainant was proved by the certificate of birth produced as exhibit 5.
24. As to penetration the respondent submitted that the complainant clearly stated that the appellant took her to his house and they had sexual intercourse which evidence was corroborated by medical evidence adduced by PW1.
25. Regarding identification, the respondent submitted that the evidence of the complainant was clear that the appellant was well known to the complainant as they used to fellowship in the same church and that he was her boyfriend. Thus, the evidence of identification of the appellant by the complainant was by recognition.
26. As to whether the evidence by the prosecution was lies and inconsistent, it was submitted that the evidence adduced by the prosecution was cogent, consistent and corroborative. It was urged that if even there are contradictions and inconsistencies, the same should be evaluated with regard to the principles laid down in the case of Erick Onyango Odeng’ vs Republic (2014) e KLR where the Court of Appeal cited with approval the case of Twahangane Alfred vs Uganda Criminal Appeal No. 139 of 2001 (2003) UGCA, 6 that not every contradiction warrants rejection of evidence of a witness.
27. On failure to consider the appellant’s defence, the respondent submitted that the same was duly considered and rightfully rejected by the trial court.
28. Finally, the respondent submitted that the sentence imposed by the trial court was lawful and thus it was not harsh and excessive as argued by the appellant.
Analysis and Determination.
29. This being a first appeal, this court is guided by the principles laid down in the case of Okeno vs Republic (1972) E.A 32 where the Court of Appeal set out the duty of the first appellate court as follows:
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.”
30. It must also be remembered that the burden of proving the guilt of an accused person lies with the prosecution and the same must be discharged beyond reasonable doubt.
31. As an appellate court, I must reconsider and re-evaluate the evidence adduced before the trial court and arrive at independent conclusions as to whether the prosecution proved the charges as required. I must do so not overlooking the fact that I did not have the advantage of seeing and hearing the witnesses testify.
32. Having considered the evidence adduced by both the prosecution and the appellant before the trial court, the grounds of appeal and written submissions by both sides, the issues for determination are:
1. Whether the prosecution proved the case against the appellant as required; and
2. Whether the sentence imposed was lawful.
33. The appellant was convicted on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act which provides:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(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.”
34. From the foregoing and from numerous court decisions, it is trite that for the offence of defilement to be proved, the prosecution must prove the age of the victim in the sense that the victim must be a minor, penetration and clear identification of the perpetrator.
35. Regarding the age, it has been numerously been held that the same can be proved through credible evidence. In the case of Edwin Nyambogo Onsongo vs Republic (2016) e KLR the court stated as follows regarding prove of age:
“…The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
36. In the instant case PW3 the complainant’s mother stated that the complainant was aged 14 years. A birth certificate was produced in court as exhibit to show that the complainant was born on 9 th February, 2011. The offence is alleged to have been committed on diverse dates between January, 2025 and April, 2025. A simple arithmetic puts the age of the complainant at 14 years. The appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(3) of the Act put the bracket of the age between twelve and fifteen years.
37. In the premises, the prosecution was able to prove the element of age as required and the finding of the trial court on age cannot be faulted.
38. The appellant in his submissions seemed to challenge the credibility of the evidence adduced by the prosecution. Firstly, he challenged the medical evidence which showed that although the hymen was broken, there were no visible injuries. Secondly, he challenged the credibility of the complainant’s evidence alleging that the same was not credible and consistent. Finally, the appellant complained that there are crucial witnesses who were never called especially the pastor who questioned the complainant about her relationship with the appellant, the assistant chief who interrogated the complainant about her relationship with the appellant and the church committee members who were informed of the relationship.
39. On the basis of the foregoing the appellant argued that the element of penetration and identification was never proved as required.
40. As regards penetration, Section 2(1) of the Sexual Offences Act, penetration is defined to mean; the partial or complete insertion of the genital organ of a person into the genital organs of another person. So, proof of penetration requires showing the partial or complete insertion of a genital organ into another person’s genital organ. The same can be proved through credible oral testimony of the victim or medical evidence.
41. In the case of Bassita vs Uganda S.C Criminal Appeal No. 35 of 1995 the Ugandan Supreme Court stated as follows regarding penetration:
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
42. In the instant case the complainant testified that the appellant had seduced her and he was her boyfriend. She testified that the appellant called her to his house and instructed her to undress which she did. The appellant too undressed and they engaged in sexual intercourse. It is also in evidence that the act of sexual intercourse happened on diverse dates.
43. Further the medical evidence adduced by PW1 showed that the complainant’s hymen was missing and indication of penetration.
44. From the foregoing, it is my finding that the element of penetration was proved as required.
45. The appellant also challenged the element of identification. His argument was that the complainant in her testimony alluded to have gone to visit his sister and did not at all state that she had gone to visit the appellant. It is however clear from the evidence that the appellant was well known to the complainant. The evidence was by recognition which is generally considered more reliable than identifying a total stranger.
46. In the premises it is my finding that there could not have any possibility of mistaken identification of the appellant in this case.
47. The appellant alluded to failure by the prosecution to call some witnesses like the pastor who questioned the complainant about the relationship with the appellant, the assistant chief who interrogated the complainant and admitted that she had sexual relationship with the appellant and the members of the church committee who happened to know about the relationship.
48. Section 143 of the Evidence Act provides:
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”
49. In the case of Bukenya & Others vs Uganda (1972) E.A 549 the court held that the prosecution should avail all witnesses whose evidence is essential to the just decision of the case. It was observed that it is unnecessary to call superfluity of witnesses. However, where the evidence of witness left out for an oblique motive, the court would hold that evidence may be adverse to the prosecution case.
50. From the foregoing it is not necessary as to the number of witnesses which the prosecution must call to prove their case. The only caution is that if the prosecution fails to call a witness who would have been necessary to prove a fact, then the court may make adverse inference.
51. So, the question was is it necessary for the prosecution to call the alleged witnesses by the appellant? in answering this questions, I resort to the provisions of Section 124 of the Evidence Act which provides:
“Notwithstanding the provision of section 19 of the Oaths and Statutory Declaration 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.”
52. From the foregoing it is clear that the court can convict based on the evidence of the victim alone in sexual offences. As such the evidence of the alleged witnesses which the appellant alleges were never called would only offer corroboration to the story by the complainant. However, it is evident from the evidence on record that all the said witnesses would only have been called to confirm what the complainant told them about the relationship with the appellant.
53. In my review of the evidence tendered by the prosecution, the complainant testified that she was in a relationship with the appellant. In the course of the relationship, they engaged in sexual intercourse. This happened on diverse dates. Upon examination the hymen was found to be missing signifying penetration thus corroborating the complainant evidence. The mere absence of injuries to the genitalia does not negate the element of penetration.
54. In any case, I have reviewed the trial court judgment, even though she did not expressly cite Section 124 of the Evidence Act, she clearly appreciated that the complainant’s evidence was credible and truthful that there was a relationship between her and the appellant and they engaged in sexual intercourse.
55. In the premises I have no reason to fault the trial court in believing in the evidence of the complainant which she found was corroborated by the medical evidence and the investigating officer.
56. Regarding the sentence imposed, the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(3) of the Act is the penal provision and the sentence prescribed therein is imprisonment for not less than 20 years. The appellant was sentenced to 20 years which is the minimum sentence under the Act.
57. In the end, I am satisfied that the prosecution proved the charge of defilement against the appellant as required. Accordingly, I find no basis for interfering with either the conviction or sentence imposed by the trial court.
58. The appeal is dismissed on both the conviction and sentence.
Dated, signed and delivered virtually this 14 th day of September, 2026.
F.N Kyambia
Judge
2
Introduction.
1. The appellant was charged with defilement of a child contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006.
2. The appellant was adjudged guilty on the main charge of defilement and subsequently sentenced to serve 20 years imprisonment. The particulars of the main charge are that on diverse dates between January, 2025 and April, 2025 at (particulars withheld) within Kilifi County intentionally and unlawfully causes his male genital organ namely penis to penetrate the female genital organ namely vagina of S.K.M a child aged 14 years.
3. The appellant aggrieved by the conviction and sentence preferred this appeal to the High Court raising the following grounds:
1. That the learned trial magistrate erred and in fact in convicting him with no evidence which did not meet the required evidentiary standards.
2. That the learned trial magistrate erred in law and in fact by finding that the elements constituting the offence has been proved beyond reasonable doubt.
3. That the learned trial magistrate erred in law and in fact by finding the complainant a credible witness to prove identification despite the patent lies and inconsistencies.
4. That the learned trial magistrate erred in law and in fact by depending on evidence which was based on theory, inconsistencies and lies that shrouded the prosecution.
5. That the learned trial magistrate erred in law and in fact in finding that the elements of the offence were proven beyond reasonable doubt thereby convicting the appellant.
6. That the learned trial magistrate erred in law and in fact by dismissing the appellant defence and submissions.
7. That the learned trial magistrate erred in law and in fact by issuing a sentence that is harsh and excessive under the circumstances and not in accordance with the principles set out in law.
4. The appellant urged the court to allow the appeal and quash the conviction and sentence.
Prosecution Case.
5. Briefly, the prosecution case is that the complainant a pupil at (particulars withheld) told the court that the appellant was her boyfriend having met in December, 2024 when she went to the complainant home to look his sister Dorcas who was her friend. She told the court while there the appellant called her and seduced her to have sexual intercourse. She eventually agreed to have sex with him and the appellant escorted her home.
6. The complainant did not tell anyone that she had sexual intercourse with the appellant whom they were fellowshipping in the same church until pastor Josephine called her and asked her about her relationship with the appellant. She told her that the appellant was her boyfriend. Pastor Josephine informed her grandmother and she was taken to Gotani police station where she recorded statement.
7. She was later taken to Mariakani Sub County hospital where she was examined by PW1 and it was found that her hymen was broken confirming proof of penetration.
8. PW3 the complainant mother was called by the area Assistant Chief and was told that she was required at Gotani. She went with the complainant who upon interrogation admitted to having sex with the appellant. The matter was reported at Gotani police station where it was investigated by PW4.
9. PW4 in the course of his investigations interrogated the complainant who narrated to him that she was a pupil and that the appellant had seduced her and had sexual intercourse with her. He also established that the complainant was aged 14 years at the time of the commission of the offence. PW4 detained the appellant who had been brought to the station and later charged him with the offence of defilement.
Defence Case.
10. The appellant when placed on his defence by the trial court he opted to give a sworn statement. He narrated how on 24 th April, 2025 he met the village elder who gave him a letter requiring him to appear before the Chief’s office. When he went to the Chief’s office he was arrested and later charged. He denied committing the offence. He also admitted that there was no dispute or any disagreement between him and the complainant. He also confirmed that the complainant was a neighbour.
The Trial Court’s Finding.
11. The trial court after considering the evidence adduced by the prosecution and defence case, appreciated that the burden of proof lies with the prosecution and the standard of such proof is beyond reasonable doubt.
12. The trial court properly identified the essential elements of the offence of defilement to wit, age of the victim, proof of penetration and positive identification of the perpetrator as laid down under Section 8(1) and (3) of the Sexual Offences Act and restated in numerous authorities which she cited.
13. The trial court found that age was proved by production of the birth certificate which corroborated the evidence adduced by the complainant and the other witnesses that the complainant was aged 14 years at the time of the commission of the offence.
14. The trial court further found that penetration was proved by the evidence of the complainant whom she believed to be a credible and truthful witness that she had sexual intercourse with the appellant. The trial court found that the evidence of the complainant was corroborated by the medical evidence adduced by PW1.
15. Regarding identification of the appellant as the perpetrator, the trial court found that the appellant was well known to the complainant as they were congregating in the same church and they were also neighbours. The trial court found that there was no possibility of frame up.
Appellant’s Submissions.
16. The appellant submitted that there was no sufficient evidence to prove the elements of the offence of defilement. It was submitted that the trial court relied on the P3 Form which showed that although the hymen was broken, there were no injuries on the genitalia which was inconsistent with the evidence of the complainant. It is the appellant’s submission that the complainant having been examined the same day the incidence is alleged to have taken place, lack of injuries on her genitalia casts doubt as to the credibility of her evidence. It is argued that missing hymen is not conclusive evidence of penetration.
17. The appellant further submitted that the evidence of the complainant on identification of the appellant was not credible and consistent for the trial court to conclude that the appellant was the perpetrator. It is the appellant submission that the evidence of the complainant was that she had gone to visit the appellant’s sister hence it is not clear whom the complainant had gone to visit.
18. The appellant further submitted that the complainant disclosed the alleged relationship with the appellant to the pastor who was never called as a witness to testify and confirm and or corroborate the complainant’s evidence. It is further argued that PW3 informed the court that she received a call from the area Assistant Chief who was also never called as a witness to confirm that indeed the complainant after interrogation admitted to having sex with the appellant.
19. Further the appellant submitted that the investigating officer alleged that the relationship between the complainant and appellant was going on since 2024 and the same was well known by the church committee members who were never called to support the allegations.
20. The appellant questioned the credibility of the complainant as to why she remained silence about the relationship since 2024 until January, 2025. It is the appellant submission that the complainant was not truthful and thus her evidence fell short of the provision of Section 124 of Evidence Act and therefore the trial court erred in believing her evidence.
21. In short, the appellant submitted the prosecution failed to discharge the burden of proof as required and urged the court to find that the appeal is merited and proposed that the same be allowed and the conviction and sentence be set aside.
Respondent’s Submissions.
22. The respondent contested the appeal. It was submitted that the prosecution proved the case as required. The respondent submitted that the prosecution bears the burden of proving the charge against an accused person beyond reasonable doubt and in the instant case all the ingredients of the offence were proved as required.
23. Regarding the age of the complainant, the respondent relied on the case of Francis Omuroni vs Uganda Court of Appeal Criminal Appeal No. 2 of 2000 and submitted that the age of the complainant was proved by the certificate of birth produced as exhibit 5.
24. As to penetration the respondent submitted that the complainant clearly stated that the appellant took her to his house and they had sexual intercourse which evidence was corroborated by medical evidence adduced by PW1.
25. Regarding identification, the respondent submitted that the evidence of the complainant was clear that the appellant was well known to the complainant as they used to fellowship in the same church and that he was her boyfriend. Thus, the evidence of identification of the appellant by the complainant was by recognition.
26. As to whether the evidence by the prosecution was lies and inconsistent, it was submitted that the evidence adduced by the prosecution was cogent, consistent and corroborative. It was urged that if even there are contradictions and inconsistencies, the same should be evaluated with regard to the principles laid down in the case of Erick Onyango Odeng’ vs Republic (2014) e KLR where the Court of Appeal cited with approval the case of Twahangane Alfred vs Uganda Criminal Appeal No. 139 of 2001 (2003) UGCA, 6 that not every contradiction warrants rejection of evidence of a witness.
27. On failure to consider the appellant’s defence, the respondent submitted that the same was duly considered and rightfully rejected by the trial court.
28. Finally, the respondent submitted that the sentence imposed by the trial court was lawful and thus it was not harsh and excessive as argued by the appellant.
Analysis and Determination.
29. This being a first appeal, this court is guided by the principles laid down in the case of Okeno vs Republic (1972) E.A 32 where the Court of Appeal set out the duty of the first appellate court as follows:
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions.”
30. It must also be remembered that the burden of proving the guilt of an accused person lies with the prosecution and the same must be discharged beyond reasonable doubt.
31. As an appellate court, I must reconsider and re-evaluate the evidence adduced before the trial court and arrive at independent conclusions as to whether the prosecution proved the charges as required. I must do so not overlooking the fact that I did not have the advantage of seeing and hearing the witnesses testify.
32. Having considered the evidence adduced by both the prosecution and the appellant before the trial court, the grounds of appeal and written submissions by both sides, the issues for determination are:
1. Whether the prosecution proved the case against the appellant as required; and
2. Whether the sentence imposed was lawful.
33. The appellant was convicted on the main charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act which provides:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(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.”
34. From the foregoing and from numerous court decisions, it is trite that for the offence of defilement to be proved, the prosecution must prove the age of the victim in the sense that the victim must be a minor, penetration and clear identification of the perpetrator.
35. Regarding the age, it has been numerously been held that the same can be proved through credible evidence. In the case of Edwin Nyambogo Onsongo vs Republic (2016) e KLR the court stated as follows regarding prove of age:
“…The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
36. In the instant case PW3 the complainant’s mother stated that the complainant was aged 14 years. A birth certificate was produced in court as exhibit to show that the complainant was born on 9 th February, 2011. The offence is alleged to have been committed on diverse dates between January, 2025 and April, 2025. A simple arithmetic puts the age of the complainant at 14 years. The appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(3) of the Act put the bracket of the age between twelve and fifteen years.
37. In the premises, the prosecution was able to prove the element of age as required and the finding of the trial court on age cannot be faulted.
38. The appellant in his submissions seemed to challenge the credibility of the evidence adduced by the prosecution. Firstly, he challenged the medical evidence which showed that although the hymen was broken, there were no visible injuries. Secondly, he challenged the credibility of the complainant’s evidence alleging that the same was not credible and consistent. Finally, the appellant complained that there are crucial witnesses who were never called especially the pastor who questioned the complainant about her relationship with the appellant, the assistant chief who interrogated the complainant about her relationship with the appellant and the church committee members who were informed of the relationship.
39. On the basis of the foregoing the appellant argued that the element of penetration and identification was never proved as required.
40. As regards penetration, Section 2(1) of the Sexual Offences Act, penetration is defined to mean; the partial or complete insertion of the genital organ of a person into the genital organs of another person. So, proof of penetration requires showing the partial or complete insertion of a genital organ into another person’s genital organ. The same can be proved through credible oral testimony of the victim or medical evidence.
41. In the case of Bassita vs Uganda S.C Criminal Appeal No. 35 of 1995 the Ugandan Supreme Court stated as follows regarding penetration:
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
42. In the instant case the complainant testified that the appellant had seduced her and he was her boyfriend. She testified that the appellant called her to his house and instructed her to undress which she did. The appellant too undressed and they engaged in sexual intercourse. It is also in evidence that the act of sexual intercourse happened on diverse dates.
43. Further the medical evidence adduced by PW1 showed that the complainant’s hymen was missing and indication of penetration.
44. From the foregoing, it is my finding that the element of penetration was proved as required.
45. The appellant also challenged the element of identification. His argument was that the complainant in her testimony alluded to have gone to visit his sister and did not at all state that she had gone to visit the appellant. It is however clear from the evidence that the appellant was well known to the complainant. The evidence was by recognition which is generally considered more reliable than identifying a total stranger.
46. In the premises it is my finding that there could not have any possibility of mistaken identification of the appellant in this case.
47. The appellant alluded to failure by the prosecution to call some witnesses like the pastor who questioned the complainant about the relationship with the appellant, the assistant chief who interrogated the complainant and admitted that she had sexual relationship with the appellant and the members of the church committee who happened to know about the relationship.
48. Section 143 of the Evidence Act provides:
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”
49. In the case of Bukenya & Others vs Uganda (1972) E.A 549 the court held that the prosecution should avail all witnesses whose evidence is essential to the just decision of the case. It was observed that it is unnecessary to call superfluity of witnesses. However, where the evidence of witness left out for an oblique motive, the court would hold that evidence may be adverse to the prosecution case.
50. From the foregoing it is not necessary as to the number of witnesses which the prosecution must call to prove their case. The only caution is that if the prosecution fails to call a witness who would have been necessary to prove a fact, then the court may make adverse inference.
51. So, the question was is it necessary for the prosecution to call the alleged witnesses by the appellant? in answering this questions, I resort to the provisions of Section 124 of the Evidence Act which provides:
“Notwithstanding the provision of section 19 of the Oaths and Statutory Declaration 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.”
52. From the foregoing it is clear that the court can convict based on the evidence of the victim alone in sexual offences. As such the evidence of the alleged witnesses which the appellant alleges were never called would only offer corroboration to the story by the complainant. However, it is evident from the evidence on record that all the said witnesses would only have been called to confirm what the complainant told them about the relationship with the appellant.
53. In my review of the evidence tendered by the prosecution, the complainant testified that she was in a relationship with the appellant. In the course of the relationship, they engaged in sexual intercourse. This happened on diverse dates. Upon examination the hymen was found to be missing signifying penetration thus corroborating the complainant evidence. The mere absence of injuries to the genitalia does not negate the element of penetration.
54. In any case, I have reviewed the trial court judgment, even though she did not expressly cite Section 124 of the Evidence Act, she clearly appreciated that the complainant’s evidence was credible and truthful that there was a relationship between her and the appellant and they engaged in sexual intercourse.
55. In the premises I have no reason to fault the trial court in believing in the evidence of the complainant which she found was corroborated by the medical evidence and the investigating officer.
56. Regarding the sentence imposed, the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act. Section 8(3) of the Act is the penal provision and the sentence prescribed therein is imprisonment for not less than 20 years. The appellant was sentenced to 20 years which is the minimum sentence under the Act.
57. In the end, I am satisfied that the prosecution proved the charge of defilement against the appellant as required. Accordingly, I find no basis for interfering with either the conviction or sentence imposed by the trial court.
58. The appeal is dismissed on both the conviction and sentence.
Dated, signed and delivered virtually this 14 th day of September, 2026.
F.N Kyambia
Judge
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