(Being an appeal against the conviction and sentence by Hon. S Jalang’o (SPM) in Tawa Senior Principal Magistrate’s Court (SO) Case No. E017 of 2022)
1. The appellant herein Mutuku Musyoka, was convicted on 12 August 2025 and sentenced to 20 years imprisonment by the Senior Principal Magistrate’s Court at Tawa for the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence are that on 26 May 2022 at Kwa Kingee Forest in Kilisa Village Kakuswi Sub-location Mbooni East Sub -County within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of E.M.M a girl aged 9 years. Having been convicted on the principal charge, the court did not make any finding on the alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act.
2. A background of the case is that on 30 May 2022, the Appellant was arraigned and charged with the offence of defilement contrary to Section 8 (1) and (3) of the Sexual Offences Act . He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the said Act. He denied the charges prompting the trial in which the prosecution to called five (5) witnesses.
3. PW1 the complainant, who was 12 years old at the time of testifying in March 2024 stated that she was born in 2013 and recalled that in May 2022 during the evening, she went to fetch firewood in a forest where she found the appellant whom she knew and identified as her cousin seated. The appellant then stood up, grabbed her hands, removed her clothes including her underwear, removed his clothes, made her lie on the ground and inserted his penis into her vagina. It was her evidence that there were no other people and that after finishing, the appellant released her to go home but warned her that he would beat her up if she disclosed what had transpired. She stated that she was in pain and had difficulties in walking due to the pain.
4. Upon reaching home, neighbours noticed that she was walking with difficulties and informed her mother, PW2. The complainant reported the incident to her mother and the village elder who was accompanied by her grand father. Her mother, PW2, examined her private parts and then reported the matter to Tawa police station where they were referred to Tawa hospital for medical examination. She testified that she suffered wounds on her private parts and was given medication for treatment. She identified the appellant as responsible for the ordeal.
5. PW2 Eunice Nzula Musyoki, the complainant's mother gave evidence that the complainant was born on 13 January 2016 and that on 28 May 2022, she was at work when she was informed by a neighbour, Christoper Makau, that her daughter had been defiled after he (the neighbour) noticed her walking with difficulties while her legs were astride and limping. She examined the complainant and noticed she had wounds on her private parts and her inner wear had blood stains. Upon inquiry, the complainant informed her that she had been defiled by the appellant who was her cousin and lived nearby.She, together with the village elder PW3, escorted her to Tawa police where they were referred to Tawa hospital for treatment.
6. PW3, Tabitha Kyalo, the village elder’s evidence was that on 20 May 2022 at around 6pm, she received information that the complainant had been defiled. She went to the complainant’s homestead where she found her together with her mother PW2. Upon inquiry, the complainant informed her that she was defiled by the appellant. She noticed that the complainant was walking with difficulties and in pain. She called the Assistant Chief and apprehended the appellant in his house before handing him over to the police.
7. PW4, a clinical officer at Tawa Sub-County hospital, testified that the complainant was examined on 28 May 2022 having reported to have been defiled on 26 May 2022 by a person known to her. The examination revealed that her hymen was broken, she had lacerations on the vaginal opening and urine tests showed pulses. She testified that the lacerations were evidence of a struggle in trying to penetrate. She produced the P3 form (exhibit 1) and Post Rape Care Form (exhibit 2) as evidence.
8. PW5, the investigating officer attached to Tawa police station testified that on 29 May 2022, he found a report of defilement had been made to the station. He investigated the case, recorded statements, filled the PW3 form and referred the complainant to Tawa hospital for examinations. He stated that the investigations established that the complainant was born on 16 January 2016 and was 9 years old when the incident was reported in May 2022. That he visited the scene but did not make any recoveries. He confirmed that the appellant was apprehended by the Assistant Chief and taken to the police Station where he was arrested and subsequently charged.
9. At the close of the prosecution case, the court ruled that a prima facie case had been established and placed the appellant on his defence. The appellant gave unsworn evidence where he stated that the complainant ran away because she knew that it was not true that he had committed the offence. He maintained that the complainant lied about him commuting the offence. After considering the evidence on record, the trial court rendered judgment, returned a verdict of guilty, convicted and sentenced the appellant as stated above.
10. Aggrieved by the finding, conviction and sentence by the trial court, the appellant filed the instant appeal where he raised the following grounds:
i. THAT the learned trial court erred in law and fact by failing to find that there were procedural illegalities and the charge sheet was defective.
ii. THAT the learned trial court erred in law and fact by failing to find that the prosecution did not prove all ingredients of the offence beyond reasonable doubt.
iii. THAT the learned trial court erred in law and fact by failing to find that crucial witnesses needed to substantiate the prosecution’s case were not called to testify in violation of Article 50 (2) (c) and (j) of the Constitution.
iv. THAT the learned trial court erred in law and fact by failing to consider the contradictions and inconsistencies that affected the credibility of key witnesses rendering their evidence unreliable.
v. THAT the learned trial court erred in law and fact by failing to consider the appellant’s defence that exonerated him.
11. The appeal was argued by way of written submissions which were duly filed by both parties as directed by court. The appellant filed written submissions dated 25 May 2026 which he relied on during hearing. The Respondent opposed the appeal and filed written submissions dated 28 April 2026 which they relied on.
12. The appellant submitted that the proceedings before the trial court were mired with procedural irregularities on grounds that the voire dire was improperly conducted since the trial court asked direct and leading questions, the child's competence was not independently established and the evidence admitted was prejudicial. He argued that by conducting voire dire , the trial court descended on the arena of conflict rendering the trial defective in limine . He relied on the cases of Bukenya vs Uganda and Paul Mbogo Mwangi vs Republic (2016) eKLR to support his contention. He further took the view that the trial court did not establish that the complainant being a child of tender age, understood the nature of oath and duty of telling the truth to warrant it to receive sworn evidence for the witness. He cited Johnson Muiruri vs Republ ic to support his argument.
13. The appellant further submitted that the charge sheet was defective since it stated the age of the complainant to be 9 years. He challenged the evidence by prosecution witnesses pointing out contradictions and inconsistencies as to the age of the complainant submitting that this element was not conclusively proved. He cited the case of Yongo vs Republic (1983) KECA where the court of appeal held that a charge sheet is defective if it does not accord with the evidence adduced during trial.
14. It was his submission that the prosecution did not prove all ingredients of the offence beyond reasonable doubt. On the element of age, he argued that PW2 the complainant’s mother did not produce any document to prove the age of the complainant and that no age assessment was conducted to ascertain her age . He further stated that the complainant was not able to recall her age leading to the conclusion that this element was not proved. He cited Abdihakin Abdow Abioal vs Republic (2017) eKLR , Hillary Nyongesa vs Republic (2010) eKLR, Edwin Nyambogo Onsongo vs Republic (2016) eKLR and JKB vs Republic (2018) eKLR where the courts variously held that age of the complainant as an ingredient must be proved to support his argument.
15. On the element of penetration, he contended that evidence by prosecution witnesses on whether there was full or partial penetration was mired by inconsistencies and irregularity with rendered it unreliable. He argued that the medical documents produced did not prove complete insertion of his penis into the vagina of the complainant and contended that by the complainant not reporting the incident, it means that it did not happen. He relied on the finding in Paul K Gitari vs Repoublic (2016) eKLR , JKB vs Republic (Supra) and John Mutua Munyoki vs Republic (2017) eKLR to support his contentions.
16. On positive identification, he submitted that this ingredient was not proved to the required standard. He submitted that the complainant did not report the incident but testified that it was a neighbour, Chistopher Makau who informed PW2, her mother. He argued that by not mentioning the appellant in the first instance, there was no positive identification.He also submitted that failure to call Chistopher Makau as a witness who was a crucial witness led to miscarriage of justice. He cited the case of Bukenya & others vs Uganda (1972) EA 549 to support this argument.
17. He further submitted that the trial court erred by failing to consider evidence adduced in his defence which exonerated him from the offence. He urged this court to find in his favour, quash the conviction and set aside the sentence.
18. The Respondent represented by M/s Norah Mutua learned Counsel, opposed the appeal and relied on its written submissions dated 28 April 2026. The Respondent submitted that the duly of the court, being the first appellate court, was to re-examine and re-evaluate the case so as to arrive at its own independent conclusion on whether or not to support the findings of the trial court. The case of David Njuguna Wairimu vs Republic (2010) eKLR was cited in support thereof.
19. It was affirmed that the conviction was proper and that there was overwhelming evidence to warrant the conviction. The Respondent further argued that the offence of defilement has three ingredients; proof of age of the complainant, proof of penetration and positive identification of the perpetrator. The case of DS vs Republic (2022) eKLR was cited on this point. It was submitted that the prosecution had proved all three ingredients of the offence of defilement beyond reasonable doubt.
20. On proof of age, the Respondent submitted that PW5 produced the complainant’s birth certificate which showed that the minor was born on 16 January 2016 and hence 9 years when the incident occurred. This corroborated PW1’s testimony.
21. On the issue of penetration, it was submitted that PW1 testimony as corroborated by medical evidence by PW4 proved penetration beyond reasonable doubt.
22. On the element of positive identification of the perpetrator, it was submitted that PW1 positively identified the appellant as the perpetrator. That she identified him by name and he was a her cousin who was well known to her ruling out the possibility of mistaken identity.
23. On the question of whether the appellant's defence dislodged the prosecution’s case, it was submitted that the appellant did not adduce any explicit and cogent defence which could have exonerated him from the offence charged. On the contention that there were contradictions and inconsistencies in the prosecution evidence, the Respondent submitted that no evidence was provided to support that and that its case was consistent and proved all ingredients beyond reasonable doubt. The case of Ochieng vs Republic (2014) eKLR was cited in support thereof. This court was urged to dismiss the appeal and uphold the conviction and sentence.
Analysis and determination
24. This being the first appeal, the duty of this court, as set out in Okeno Vs R [1972] EA 32 and affirmed in various decisions including the case of Mark Oiruri Mose vs Republic (2013) eKLR, is to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses.
25. The court of appeal, in Kiilu & Another V Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
26. Having considered the grounds of appeal, the evidence adduced in the lower court, the trial court’s judgement, the record of proceedings and the rival submissions of parties, I find the main issues for determination to be;
i. Whether there were procedural irregularities that rendered the trial unfair
ii. Whether the charge sheet is defective
iii. Whether the offence of defilement was proved beyond reasonable doubt
i. Whether there were procedural irregularities that rendered the trial unfair
27. The appellant contended that voire dire as conducted by the trial court was mired by procedural irregularities which rendered the trial defective in limine. Specifically, he argued that the examination was not properly conducted, the witness (PW1) competence to testify on oath was not independently established, and the evidence adduced was prejudicial. He took issue with the manner in which the trial court conducted the voire dire, arguing that by asking direct leading questions, the court was pointing the complainant to the desired answer.
28. On voire dire , Section 125 (1) of the Evidence Act provides as follows;
“All persons shall be competent to testify unless the court considers that they
are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease (whether
of body or mind) or any similar cause.”
29. Section 19 (1) of the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya requires voire dire procedure to be carried out on a child of tender years before such a child gives testimony either before a court of law or a tribunal as the case may be. It provides:
“Where in any proceedings before any court or persons having by law or consent of parties’ authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the Court or such person, understand the nature of an oath his evidence may be received, though not given upon oath, if in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.”
30. T he purpose of undertaking the voire dire procedure was set out in the case of Patrick Kathurima vs Republic [2015] eKLR as follows:
“ We take the view that this approach resonates with the need to preserve the integrity of the viva voce evidence of young children especially in criminal proceedings. It implicates the right to a fair trial and should always be followed. The age of fourteen years remains a reasonable indicative age for purposes of section 19 of CAP 15. We are aware that section 2 of the Children’s Act defines a child of tender years to be one under the age of ten years. The definition has not been applied to the oaths and Statutory Declarations Act Cap 15. We have no reason to import it thereto in the absence of express statutory direction given the different contexts of the two statutes.”
31. The procedure for conducting voire dire was set out in the case of Johnson Wanyoike Muiruri vs Republic (1983) KECA 1 (KLR) where the court stated thus;
“We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are tendered as witnesses.
“In Peter Kiriga Kiune, Criminal Appeal No. 77 of 1982 (unreported) we said: -
‘Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which event his sworn evidence may be received. If the court is not so satisfied his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him (section 19, Oaths and Statutory Declarations Act, Cap. 20. The Evidence Act, (s. 124, cap. 80).’
It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided, and not be forced to make assumptions.”
32. The jurisprudence emanating from the above is that in criminal cases, a child of tender years is defined as one below the age of 14 years. Secondly, the purpose of conducting voire dire is to ascertain whether a child of tender age possesses sufficient intelligence to understand the nature and meaning of an oath before the same is administered. Thirdly, the procedure requires the trial court to record the questions and answers put on the child during voire dire.
33. Having laid down the law, I will now turn to the facts of this case. The record shows that PW1 was born on 16 January 2013 and hence was 11 years at the time of testifying on 26 March 2024. This means that she was a child of tender years making voire dire necessary. The main contention by the appellant relates to the manner in which voire dire was administered. The trial court record shows that voire dire was conducted on 26 March 2024 at 2.30pm. The questions and answers by the trial court were recorded. An examination of the record shows that none of the questions by the court were leading as alleged. Additionally, it is apparent that the minor, PW1 clearly understood the nature and purpose of an oath which justified the trial court’s conclusion. This court finds no fault in the manner voire dire was undertaken and finds no merit in the contention by the Appellant. This ground fails.
i i. Whether the charge sheet is defective
34. The appellant submitted that the charge sheet is defective for stating the age of the victim to be 9 years. The appellants main contention was who reported that the victim was 9 years at the time of drafting the charge sheet whereas the victim, PW1 and her mother, PW2 had testified that they did not know the victim’s actual age.
35. Article 50 (2) (b) of the Constitution provides that every accused person has the right to a fair trial, which includes the right to be informed of the charge with sufficient detail to answer it. Section 134 of the Criminal Procedure Code on the other hand, provides as follows regarding framing of charge sheets;
“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
36. Section 137 (f) of the said Act, provides as follows on the general rule as to description;
“subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.”
37. The form and substance of a charge sheet is provided by law. Consequently, in order to determine if a charge sheet is defective, a court must consider the defect in a charge from a two-step test. First is to determine whether the charge is defective and if so, whether such defect can be remedied . See court of appeal decision in Peter Ngure Mwangi vs Republic [2014] eKLR .
38. I t can be deduced from the above that not all defects in a charge sheet are fatal. In Bernard Ombuna vs Republic [2019] eKLR , the court of appeal gave guidance on how to determine whether a defect in a charge is fatal as follows:
“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. O f relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence .”
39. Even where the charge sheet is defective, the issue for consideration is whether the conviction based on a defective charge occasioned a miscarriage of justice . See Obedi Kilonzo Kevevo vs. Republic (2015)eKLR.
40. Section 382 of the Criminal Procedure Code provides further guidance on how to address a a finding based on defective charge.
41. Turning to the current issue, under Section 8 of the Sexual Offences Act, age is an important element of the offence. The victim must be child i.e under the age of 18 years for the offence under this section to crystalize. Additionally, the law prescribes different punishments for different ages of the victim. The issue of how the age was ascertained is a question of fact and evidence to be determined during trial. The charge sheet does not become defective merely because it states or lists a particular age. The court finds that as framed, the issue will be addressed when the court is considering whether age as an the ingredient of the offence was been proved. For avoidance of doubt, the court finds that the charge sheet as framed is not defective.
iii. Whether the offence of defilement was proved beyond reasonable doubt
42. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act . However, owing to the age of the victim, the proper punishment section is Section 8 (2) and not 8 (3).
43. The specific ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration; age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani vs Republic , Criminal Appeal No. 72 of 2013.
44. Age of the victim is a critical ingredient of the offence and must be proved. For the offence of defilement under Section 8 (1) of the Act to crystalize, it must be proved that the victim was a child, that is, below the age of 18 years.
45. The appellant submitted that age as an ingredient was not proved beyond reasonable doubt. He argued that PW2 the complainant’s mother did not produce any document to prove the age of the complainant and that no age assessment was conducted to ascertain her age . He further stated that the complainant was not able to recall her age leading to the conclusion that this element was not proved. He cited Abdihakin Abdow Abioal vs Republic (2017) eKLR , Hillary Nyongesa vs Republic (2010) eKLR, Edwin Nyambogo Onsongo vs Republic (2016) eKLR and JKB vs Republic (2018) eKLR where the courts variously held that age of the complainant as an ingredient must be proved to support his argument.
46. The Respondent took the opposite view contending that PW5 produced the complainant’s birth certificate which showed that the minor was born on 16 January 2016 and hence 9 years when the incident occurred, hence corroborating PW1’s testimony.
47. The High Court in Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) held;
“Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR ), the Court of Appeal stated that: “Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
48. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vsRepublic Criminal Appeal No. 21 of 2015 [2017] .
49. In this case, the record shows that PW1 the complainant testified that she was born in the year 2013 but could not recall the month. PW5, the investigating officer, testified that PW1 was born on 13 January 2013 and produced her Birth Notification as exhibit 3 as proof thereof. This is an official document issued pursuant to Section 7 (1) of the Births and Deaths Registration Act that requires all births to be registered. The court notes that PW2, the victim’s mother testified that the victim was born on 13 December 2016. This was clearly an error that this not displace the evidence of birth. The birth notification being documentary evidence was primary evidence that outweighed the oral testimony. A Birth Notification is one of the documents that can prove age of a person and the court finds that this element was proved beyond reasonable doubt.
50. On the issue of penetration, Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person .
51. “Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
52. To prove penetration, it must be established that the appellant inserted his penis into the vagina of the complainant either partially or completely. Being a minor, the complainant was incapable of consenting hence it is immaterial that she may have agreed to the act.
53. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Cr iminal Appeal No. 35 of 1995 .
54. The court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
55. The appellant contended that evidence by prosecution witnesses on whether there was full or partial penetration was mired by inconsistencies and irregularity with rendered it unreliable. He argued that the medical documents produced did not prove complete insertion of his penis into the vagina of the complainant and contended that by the complainant not reporting the incident, it means that it did not happen.
56. The complainant, PW1 testified that May 2022 in the evening hours, she went to fetch firewood in a forest where she found the appellant whom she knew and identified as her cousin seated. The appellant then stood up, grabbed her hands, removed her clothes including her underwear, removed his clothes, made her lie on the ground and inserted his penis into her vagina. It was her evidence that there were no other people and that after finishing, the appellant released her to go home but warned her that he would beat her up if she disclosed what had transpired. She said that she was in pain and had difficulties in walking due to the pain.
57. PW2 testified that she was informed by a neighbour who had observed how the complainant walked and concluded that she had been defiled. It was her evidence that upon reaching home, she noticed that the complainant was walking with difficulty, limping and kept her legs astride. She examined her private parts after the complainant told her that the appellant had defiled her and saw blood stains on her inner wear and wounds on her private parts. PW3, the village elder gave evidence that she also saw the complainant was walking in pain with legs astride, corroborating PW1 and PW2’s evidence.
58. PW4 the clinical officer testified that the complainant was examined 28 May 2024 at Towa Sub County hospital a
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1. The appellant herein Mutuku Musyoka, was convicted on 12 August 2025 and sentenced to 20 years imprisonment by the Senior Principal Magistrate’s Court at Tawa for the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the offence are that on 26 May 2022 at Kwa Kingee Forest in Kilisa Village Kakuswi Sub-location Mbooni East Sub -County within Makueni County, intentionally and unlawfully caused his penis to penetrate the vagina of E.M.M a girl aged 9 years. Having been convicted on the principal charge, the court did not make any finding on the alternative charge of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act.
2. A background of the case is that on 30 May 2022, the Appellant was arraigned and charged with the offence of defilement contrary to Section 8 (1) and (3) of the Sexual Offences Act . He also faced an alternative charge of committing an indecent act contrary to Section 11 (1) of the said Act. He denied the charges prompting the trial in which the prosecution to called five (5) witnesses.
3. PW1 the complainant, who was 12 years old at the time of testifying in March 2024 stated that she was born in 2013 and recalled that in May 2022 during the evening, she went to fetch firewood in a forest where she found the appellant whom she knew and identified as her cousin seated. The appellant then stood up, grabbed her hands, removed her clothes including her underwear, removed his clothes, made her lie on the ground and inserted his penis into her vagina. It was her evidence that there were no other people and that after finishing, the appellant released her to go home but warned her that he would beat her up if she disclosed what had transpired. She stated that she was in pain and had difficulties in walking due to the pain.
4. Upon reaching home, neighbours noticed that she was walking with difficulties and informed her mother, PW2. The complainant reported the incident to her mother and the village elder who was accompanied by her grand father. Her mother, PW2, examined her private parts and then reported the matter to Tawa police station where they were referred to Tawa hospital for medical examination. She testified that she suffered wounds on her private parts and was given medication for treatment. She identified the appellant as responsible for the ordeal.
5. PW2 Eunice Nzula Musyoki, the complainant's mother gave evidence that the complainant was born on 13 January 2016 and that on 28 May 2022, she was at work when she was informed by a neighbour, Christoper Makau, that her daughter had been defiled after he (the neighbour) noticed her walking with difficulties while her legs were astride and limping. She examined the complainant and noticed she had wounds on her private parts and her inner wear had blood stains. Upon inquiry, the complainant informed her that she had been defiled by the appellant who was her cousin and lived nearby.She, together with the village elder PW3, escorted her to Tawa police where they were referred to Tawa hospital for treatment.
6. PW3, Tabitha Kyalo, the village elder’s evidence was that on 20 May 2022 at around 6pm, she received information that the complainant had been defiled. She went to the complainant’s homestead where she found her together with her mother PW2. Upon inquiry, the complainant informed her that she was defiled by the appellant. She noticed that the complainant was walking with difficulties and in pain. She called the Assistant Chief and apprehended the appellant in his house before handing him over to the police.
7. PW4, a clinical officer at Tawa Sub-County hospital, testified that the complainant was examined on 28 May 2022 having reported to have been defiled on 26 May 2022 by a person known to her. The examination revealed that her hymen was broken, she had lacerations on the vaginal opening and urine tests showed pulses. She testified that the lacerations were evidence of a struggle in trying to penetrate. She produced the P3 form (exhibit 1) and Post Rape Care Form (exhibit 2) as evidence.
8. PW5, the investigating officer attached to Tawa police station testified that on 29 May 2022, he found a report of defilement had been made to the station. He investigated the case, recorded statements, filled the PW3 form and referred the complainant to Tawa hospital for examinations. He stated that the investigations established that the complainant was born on 16 January 2016 and was 9 years old when the incident was reported in May 2022. That he visited the scene but did not make any recoveries. He confirmed that the appellant was apprehended by the Assistant Chief and taken to the police Station where he was arrested and subsequently charged.
9. At the close of the prosecution case, the court ruled that a prima facie case had been established and placed the appellant on his defence. The appellant gave unsworn evidence where he stated that the complainant ran away because she knew that it was not true that he had committed the offence. He maintained that the complainant lied about him commuting the offence. After considering the evidence on record, the trial court rendered judgment, returned a verdict of guilty, convicted and sentenced the appellant as stated above.
10. Aggrieved by the finding, conviction and sentence by the trial court, the appellant filed the instant appeal where he raised the following grounds:
i. THAT the learned trial court erred in law and fact by failing to find that there were procedural illegalities and the charge sheet was defective.
ii. THAT the learned trial court erred in law and fact by failing to find that the prosecution did not prove all ingredients of the offence beyond reasonable doubt.
iii. THAT the learned trial court erred in law and fact by failing to find that crucial witnesses needed to substantiate the prosecution’s case were not called to testify in violation of Article 50 (2) (c) and (j) of the Constitution.
iv. THAT the learned trial court erred in law and fact by failing to consider the contradictions and inconsistencies that affected the credibility of key witnesses rendering their evidence unreliable.
v. THAT the learned trial court erred in law and fact by failing to consider the appellant’s defence that exonerated him.
11. The appeal was argued by way of written submissions which were duly filed by both parties as directed by court. The appellant filed written submissions dated 25 May 2026 which he relied on during hearing. The Respondent opposed the appeal and filed written submissions dated 28 April 2026 which they relied on.
12. The appellant submitted that the proceedings before the trial court were mired with procedural irregularities on grounds that the voire dire was improperly conducted since the trial court asked direct and leading questions, the child's competence was not independently established and the evidence admitted was prejudicial. He argued that by conducting voire dire , the trial court descended on the arena of conflict rendering the trial defective in limine . He relied on the cases of Bukenya vs Uganda and Paul Mbogo Mwangi vs Republic (2016) eKLR to support his contention. He further took the view that the trial court did not establish that the complainant being a child of tender age, understood the nature of oath and duty of telling the truth to warrant it to receive sworn evidence for the witness. He cited Johnson Muiruri vs Republ ic to support his argument.
13. The appellant further submitted that the charge sheet was defective since it stated the age of the complainant to be 9 years. He challenged the evidence by prosecution witnesses pointing out contradictions and inconsistencies as to the age of the complainant submitting that this element was not conclusively proved. He cited the case of Yongo vs Republic (1983) KECA where the court of appeal held that a charge sheet is defective if it does not accord with the evidence adduced during trial.
14. It was his submission that the prosecution did not prove all ingredients of the offence beyond reasonable doubt. On the element of age, he argued that PW2 the complainant’s mother did not produce any document to prove the age of the complainant and that no age assessment was conducted to ascertain her age . He further stated that the complainant was not able to recall her age leading to the conclusion that this element was not proved. He cited Abdihakin Abdow Abioal vs Republic (2017) eKLR , Hillary Nyongesa vs Republic (2010) eKLR, Edwin Nyambogo Onsongo vs Republic (2016) eKLR and JKB vs Republic (2018) eKLR where the courts variously held that age of the complainant as an ingredient must be proved to support his argument.
15. On the element of penetration, he contended that evidence by prosecution witnesses on whether there was full or partial penetration was mired by inconsistencies and irregularity with rendered it unreliable. He argued that the medical documents produced did not prove complete insertion of his penis into the vagina of the complainant and contended that by the complainant not reporting the incident, it means that it did not happen. He relied on the finding in Paul K Gitari vs Repoublic (2016) eKLR , JKB vs Republic (Supra) and John Mutua Munyoki vs Republic (2017) eKLR to support his contentions.
16. On positive identification, he submitted that this ingredient was not proved to the required standard. He submitted that the complainant did not report the incident but testified that it was a neighbour, Chistopher Makau who informed PW2, her mother. He argued that by not mentioning the appellant in the first instance, there was no positive identification.He also submitted that failure to call Chistopher Makau as a witness who was a crucial witness led to miscarriage of justice. He cited the case of Bukenya & others vs Uganda (1972) EA 549 to support this argument.
17. He further submitted that the trial court erred by failing to consider evidence adduced in his defence which exonerated him from the offence. He urged this court to find in his favour, quash the conviction and set aside the sentence.
18. The Respondent represented by M/s Norah Mutua learned Counsel, opposed the appeal and relied on its written submissions dated 28 April 2026. The Respondent submitted that the duly of the court, being the first appellate court, was to re-examine and re-evaluate the case so as to arrive at its own independent conclusion on whether or not to support the findings of the trial court. The case of David Njuguna Wairimu vs Republic (2010) eKLR was cited in support thereof.
19. It was affirmed that the conviction was proper and that there was overwhelming evidence to warrant the conviction. The Respondent further argued that the offence of defilement has three ingredients; proof of age of the complainant, proof of penetration and positive identification of the perpetrator. The case of DS vs Republic (2022) eKLR was cited on this point. It was submitted that the prosecution had proved all three ingredients of the offence of defilement beyond reasonable doubt.
20. On proof of age, the Respondent submitted that PW5 produced the complainant’s birth certificate which showed that the minor was born on 16 January 2016 and hence 9 years when the incident occurred. This corroborated PW1’s testimony.
21. On the issue of penetration, it was submitted that PW1 testimony as corroborated by medical evidence by PW4 proved penetration beyond reasonable doubt.
22. On the element of positive identification of the perpetrator, it was submitted that PW1 positively identified the appellant as the perpetrator. That she identified him by name and he was a her cousin who was well known to her ruling out the possibility of mistaken identity.
23. On the question of whether the appellant's defence dislodged the prosecution’s case, it was submitted that the appellant did not adduce any explicit and cogent defence which could have exonerated him from the offence charged. On the contention that there were contradictions and inconsistencies in the prosecution evidence, the Respondent submitted that no evidence was provided to support that and that its case was consistent and proved all ingredients beyond reasonable doubt. The case of Ochieng vs Republic (2014) eKLR was cited in support thereof. This court was urged to dismiss the appeal and uphold the conviction and sentence.
Analysis and determination
24. This being the first appeal, the duty of this court, as set out in Okeno Vs R [1972] EA 32 and affirmed in various decisions including the case of Mark Oiruri Mose vs Republic (2013) eKLR, is to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses.
25. The court of appeal, in Kiilu & Another V Republic [2005]1 KLR 174 , stated thus;
“ An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
26. Having considered the grounds of appeal, the evidence adduced in the lower court, the trial court’s judgement, the record of proceedings and the rival submissions of parties, I find the main issues for determination to be;
i. Whether there were procedural irregularities that rendered the trial unfair
ii. Whether the charge sheet is defective
iii. Whether the offence of defilement was proved beyond reasonable doubt
i. Whether there were procedural irregularities that rendered the trial unfair
27. The appellant contended that voire dire as conducted by the trial court was mired by procedural irregularities which rendered the trial defective in limine. Specifically, he argued that the examination was not properly conducted, the witness (PW1) competence to testify on oath was not independently established, and the evidence adduced was prejudicial. He took issue with the manner in which the trial court conducted the voire dire, arguing that by asking direct leading questions, the court was pointing the complainant to the desired answer.
28. On voire dire , Section 125 (1) of the Evidence Act provides as follows;
“All persons shall be competent to testify unless the court considers that they
are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease (whether
of body or mind) or any similar cause.”
29. Section 19 (1) of the Oaths and Statutory Declarations Act Cap 15 Laws of Kenya requires voire dire procedure to be carried out on a child of tender years before such a child gives testimony either before a court of law or a tribunal as the case may be. It provides:
“Where in any proceedings before any court or persons having by law or consent of parties’ authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the Court or such person, understand the nature of an oath his evidence may be received, though not given upon oath, if in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.”
30. T he purpose of undertaking the voire dire procedure was set out in the case of Patrick Kathurima vs Republic [2015] eKLR as follows:
“ We take the view that this approach resonates with the need to preserve the integrity of the viva voce evidence of young children especially in criminal proceedings. It implicates the right to a fair trial and should always be followed. The age of fourteen years remains a reasonable indicative age for purposes of section 19 of CAP 15. We are aware that section 2 of the Children’s Act defines a child of tender years to be one under the age of ten years. The definition has not been applied to the oaths and Statutory Declarations Act Cap 15. We have no reason to import it thereto in the absence of express statutory direction given the different contexts of the two statutes.”
31. The procedure for conducting voire dire was set out in the case of Johnson Wanyoike Muiruri vs Republic (1983) KECA 1 (KLR) where the court stated thus;
“We once again wish to draw the attention of our courts as to the proper procedure to be followed when children are tendered as witnesses.
“In Peter Kiriga Kiune, Criminal Appeal No. 77 of 1982 (unreported) we said: -
‘Where, in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion, on a voire dire examination, whether the child understands the nature of an oath in which event his sworn evidence may be received. If the court is not so satisfied his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event an accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support thereof implicating him (section 19, Oaths and Statutory Declarations Act, Cap. 20. The Evidence Act, (s. 124, cap. 80).’
It is important to set out the questions and answers when deciding whether a child of tender years understands the nature of an oath so that the appellate court is able to decide whether this important matter was rightly decided, and not be forced to make assumptions.”
32. The jurisprudence emanating from the above is that in criminal cases, a child of tender years is defined as one below the age of 14 years. Secondly, the purpose of conducting voire dire is to ascertain whether a child of tender age possesses sufficient intelligence to understand the nature and meaning of an oath before the same is administered. Thirdly, the procedure requires the trial court to record the questions and answers put on the child during voire dire.
33. Having laid down the law, I will now turn to the facts of this case. The record shows that PW1 was born on 16 January 2013 and hence was 11 years at the time of testifying on 26 March 2024. This means that she was a child of tender years making voire dire necessary. The main contention by the appellant relates to the manner in which voire dire was administered. The trial court record shows that voire dire was conducted on 26 March 2024 at 2.30pm. The questions and answers by the trial court were recorded. An examination of the record shows that none of the questions by the court were leading as alleged. Additionally, it is apparent that the minor, PW1 clearly understood the nature and purpose of an oath which justified the trial court’s conclusion. This court finds no fault in the manner voire dire was undertaken and finds no merit in the contention by the Appellant. This ground fails.
i i. Whether the charge sheet is defective
34. The appellant submitted that the charge sheet is defective for stating the age of the victim to be 9 years. The appellants main contention was who reported that the victim was 9 years at the time of drafting the charge sheet whereas the victim, PW1 and her mother, PW2 had testified that they did not know the victim’s actual age.
35. Article 50 (2) (b) of the Constitution provides that every accused person has the right to a fair trial, which includes the right to be informed of the charge with sufficient detail to answer it. Section 134 of the Criminal Procedure Code on the other hand, provides as follows regarding framing of charge sheets;
“Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.”
36. Section 137 (f) of the said Act, provides as follows on the general rule as to description;
“subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to.”
37. The form and substance of a charge sheet is provided by law. Consequently, in order to determine if a charge sheet is defective, a court must consider the defect in a charge from a two-step test. First is to determine whether the charge is defective and if so, whether such defect can be remedied . See court of appeal decision in Peter Ngure Mwangi vs Republic [2014] eKLR .
38. I t can be deduced from the above that not all defects in a charge sheet are fatal. In Bernard Ombuna vs Republic [2019] eKLR , the court of appeal gave guidance on how to determine whether a defect in a charge is fatal as follows:
“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. O f relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence .”
39. Even where the charge sheet is defective, the issue for consideration is whether the conviction based on a defective charge occasioned a miscarriage of justice . See Obedi Kilonzo Kevevo vs. Republic (2015)eKLR.
40. Section 382 of the Criminal Procedure Code provides further guidance on how to address a a finding based on defective charge.
41. Turning to the current issue, under Section 8 of the Sexual Offences Act, age is an important element of the offence. The victim must be child i.e under the age of 18 years for the offence under this section to crystalize. Additionally, the law prescribes different punishments for different ages of the victim. The issue of how the age was ascertained is a question of fact and evidence to be determined during trial. The charge sheet does not become defective merely because it states or lists a particular age. The court finds that as framed, the issue will be addressed when the court is considering whether age as an the ingredient of the offence was been proved. For avoidance of doubt, the court finds that the charge sheet as framed is not defective.
iii. Whether the offence of defilement was proved beyond reasonable doubt
42. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act . However, owing to the age of the victim, the proper punishment section is Section 8 (2) and not 8 (3).
43. The specific ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration; age of the complainant and positive identification of the assailant. See Charles Wamukoya Karani vs Republic , Criminal Appeal No. 72 of 2013.
44. Age of the victim is a critical ingredient of the offence and must be proved. For the offence of defilement under Section 8 (1) of the Act to crystalize, it must be proved that the victim was a child, that is, below the age of 18 years.
45. The appellant submitted that age as an ingredient was not proved beyond reasonable doubt. He argued that PW2 the complainant’s mother did not produce any document to prove the age of the complainant and that no age assessment was conducted to ascertain her age . He further stated that the complainant was not able to recall her age leading to the conclusion that this element was not proved. He cited Abdihakin Abdow Abioal vs Republic (2017) eKLR , Hillary Nyongesa vs Republic (2010) eKLR, Edwin Nyambogo Onsongo vs Republic (2016) eKLR and JKB vs Republic (2018) eKLR where the courts variously held that age of the complainant as an ingredient must be proved to support his argument.
46. The Respondent took the opposite view contending that PW5 produced the complainant’s birth certificate which showed that the minor was born on 16 January 2016 and hence 9 years when the incident occurred, hence corroborating PW1’s testimony.
47. The High Court in Kamau vs Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR) held;
“Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR ), the Court of Appeal stated that: “Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
48. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi vsRepublic Criminal Appeal No. 21 of 2015 [2017] .
49. In this case, the record shows that PW1 the complainant testified that she was born in the year 2013 but could not recall the month. PW5, the investigating officer, testified that PW1 was born on 13 January 2013 and produced her Birth Notification as exhibit 3 as proof thereof. This is an official document issued pursuant to Section 7 (1) of the Births and Deaths Registration Act that requires all births to be registered. The court notes that PW2, the victim’s mother testified that the victim was born on 13 December 2016. This was clearly an error that this not displace the evidence of birth. The birth notification being documentary evidence was primary evidence that outweighed the oral testimony. A Birth Notification is one of the documents that can prove age of a person and the court finds that this element was proved beyond reasonable doubt.
50. On the issue of penetration, Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person .
51. “Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus.
52. To prove penetration, it must be established that the appellant inserted his penis into the vagina of the complainant either partially or completely. Being a minor, the complainant was incapable of consenting hence it is immaterial that she may have agreed to the act.
53. Penetration can be proved through the complainant’s testimony and though desirable, corroboration by medical evidence is not mandatory. See Bassita Vs Uganda S.C Cr iminal Appeal No. 35 of 1995 .
54. The court of appeal in Kassim Ali vs Republic Criminal Appeal No. 84 of 2005 (Mombasa) held: -
“The absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim or circumstantial evidence”. See also Kosgei alias Weldon & another v Republic (Criminal Appeal E016 & E022 of 2021 (Consolidated)) [2026] KEHC 4800 (KLR).
55. The appellant contended that evidence by prosecution witnesses on whether there was full or partial penetration was mired by inconsistencies and irregularity with rendered it unreliable. He argued that the medical documents produced did not prove complete insertion of his penis into the vagina of the complainant and contended that by the complainant not reporting the incident, it means that it did not happen.
56. The complainant, PW1 testified that May 2022 in the evening hours, she went to fetch firewood in a forest where she found the appellant whom she knew and identified as her cousin seated. The appellant then stood up, grabbed her hands, removed her clothes including her underwear, removed his clothes, made her lie on the ground and inserted his penis into her vagina. It was her evidence that there were no other people and that after finishing, the appellant released her to go home but warned her that he would beat her up if she disclosed what had transpired. She said that she was in pain and had difficulties in walking due to the pain.
57. PW2 testified that she was informed by a neighbour who had observed how the complainant walked and concluded that she had been defiled. It was her evidence that upon reaching home, she noticed that the complainant was walking with difficulty, limping and kept her legs astride. She examined her private parts after the complainant told her that the appellant had defiled her and saw blood stains on her inner wear and wounds on her private parts. PW3, the village elder gave evidence that she also saw the complainant was walking in pain with legs astride, corroborating PW1 and PW2’s evidence.
58. PW4 the clinical officer testified that the complainant was examined 28 May 2024 at Towa Sub County hospital a
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