(Being an appeal against the conviction and sentence by Hon.R M Amwayi (PM) in Kaloleni SRM (SO) Case No. 035 of 2024)
1. The appellant herein Mwamba Mwambamba Dena, was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that on diverse dates between 1 July 2024 to 1 August 2024 at Kalian’gombe area in Rabai Sub-County Kilifi County within the coast region, unlawfully and intentionally caused his male genital organ namely penis to penetrate the female genital organ namely vagina of Z.N.H a child aged 9 years.
2. The Appellant was also charged with an alternative offence of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act in that on diverse dates between 1 July 2024 to 1 August 2024 at Kalian’gombe area in Rabai Sub-County Kilifi County within the coast region, unlawfully and intentionally touched the vagina of Z.N.H a child aged 9 years using his penis.
3. The appellant denied the charges prompting the trial in which the prosecution to called four (4) witnesses. PW2, the complainant testified that she was 9 years old and a grade four pupil at a local school. She testified that during second term after examinations, her friend told her to go and buy ice cream. While on the way, she met the appellant alone who held her hand and pushed her into the maize plantation. He then inserted his finger into her vagina and then inserted his penis into her vagina. The appellant heard people coming, dressed up and ran away. The complainant also dressed up, went and bought ice cream and went to school. She went on to say that she didn’t tell anyone since the appellant threatened to kill her.
4. PW3 Mijumaa Jumaa the complainant’s mother testified that the complainant was 9 years old having been born on 2 February 2015. She produced a copy of her birth certificate as proof thereof. It was her evidence that on 13 August 2024, while washing the complainant’s panty, she noticed yellowish discharge on it. She then took the complainant to hospital where she was given medication but she did not improve. She was thereafter referred to Coast General hospital where she was told the complainant had been defiled. She reported the matter to the police where the complainant identified the appellant as having defiled her after interrogation by police. This led to his arrest and arraignment.
5. PW1 Mwangolo Chigulu, a senior clinical officer at Mariakani Sub-County Hospital testified that on 20 August 2024, she examined the complainant where he noted that her hymen was broken but all other tests turned negative. He concluded that there was penetration and prepared the P3 form which he produced as evidence together with Gender Based Violence Form, Post Rape Care form, treatment notes and laboratory requested and results.
6. PW4 PC Purity Cherobon the investigating officer based at Rabai Police Station testified that on 22 August 2024, the complainant was taken to the station accompanied by PW3. The complainant narrated how she was defiled by a man called Ondari while on her way to buy ice cream in July 2024. The assailant threatened her not to disclose which she obliged until when she went to the police station. She later identified the assailant as the appellant who was arrested at Kalia Ngómbe and charged with the offence.
7. At the close of the prosecution case, the court found that a prima facie case had been established and placed the appellant on his defence. The appellant opted to remain silent. He was found guilty, convicted and sentenced to life imprisonment.
8. Aggrieved, the appellant filed the present Appeal where he raised the following grounds of appeal:
i. The trial court erred in law and fact by failing to find that identification as an ingredient of the offence was not proved beyond reasonable doubt.
ii. The trial court erred in law and fact by failing to note that section 124 of the Evidence Act was contravened.
iii. The trial court erred in law and fact by failing to consider that the sentence was harsh and excessive.
iv. The trial court erred in law and fact by failing to consider his mitigation pursuant to section 216 and 329 of the Criminal Procedure Code.
9. The appeal was argued by way of written submissions which both parties duly filed. The appellant submitted that the prosecution failed to prove the charges beyond reasonable doubt. It was contended that from the O.B and P3 form, the incident was reported on 20 August 2024 whereas the complainant was examined on 22 August 2024 which cannot be stated to be immediate and is an afterthought. It was further submitted that even if it was proved that he had sex with the complainant, the occurrence of sex in itself is not evidence of defilement. Reliance was placed in the case of Martin Charo vs Republic (2016) eKLR.
10. The appellant contended that the issue of defilement was solely based on the medical examiner’s opinion and had not been raised prior to that. That no evidence was tendered to establish that it was the appellant to had defiled the complainant.
11. The appellant submitted that the trial court erred in placing sole reliance on the fact that the complainant’s hymen was broken to convict the appellant. He argued that no evidence was tendered to show that the hymen had not been broken by any other item other than the penis. The case of PKW vs Republic (2012) eKLR was cited to support the assertion that the absence of hymen by itself is not proof of defilement.
12. The appellant submitted that the element of identification was not proved beyond reasonable doubt. That the only evidence concerning identification was by PW2 the complainant who stated that she knew the appellant since he had a dirty scarf which he always had. It was submitted that she did not identify the appellant by name or mention any permanent physical description of him. The case of Francis Muchiri Joseph vs Republic (2014) eKLR was cited in support. It was further submitted that the complainant identified the assailant by an alias name, “Ordinane” while PW4 stated that the complainant said she was defiled by Ondari. It was argued that these names significantly differed from the appellant’s name which was Mwamba Mwambamba Dena.
13. The appellant submitted that the evidence of PW2, the complainant was mired by contradictions and inconsistencies making it unreliable. The trial court was faulted for placing reliance on the minor’s evidence without satisfying itself on the requirements of Section 124 of the Evidence Act or the proviso thereof. Reliance was placed on the case of Jon Cardon Wagner vs Republic and 2 others (2011) eKLR where the court held, inter alia, that the trial court must point out the demeanor it notes and lay the basis of accepting evidence of a particular witness.
14. The appellant challenged the entire prosecution evidence which he submitted was full of discrepancies and inconsistencies. In particular, he pointed out what he termed as discrepancies in the evidence of PW2 and PW3 on the issue concerning the events that led to the discovery of the offence which leads to the conclusion that the witnesses were not truthful.
15. As regards the sentence, it was submitted that the minimum mandatory sentences under the Sexual Offences Act do not meet the constitutional threshold set out in Article 28 of the Constitution by depriving an accused an opportunity to mitigate. It was argued that despite the appellant’s mitigation, the court disregarded it and went on to sentence the appellant to life imprisonment without even calling for a probation report. He cited the cases of Francis Karioko Muruatetu and another vs Republic; Katiba institute & 5 others (Amicus Curiae) (2021) KESC 31 (KLR) and Evans Wanjala Wanyonyi vs R (2019) eKLR in support thereof. He urged the court to allow the appeal, quash the conviction and sentence.
16. The Respondent opposed the appeal and affirmed that the conviction was proper. It was submitted that this being the first appellate court, the court is duty bound 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. The cases of Okeno vs Republic [1972] EA 32 and Mark Oiruri Mose vs Republic (2013) eKLR were cited in support thereof.
17. The Respondent submitted that they had proved all three ingredients of the offence of defilement, that is, age of the victim, penetration and identification of the perpetrator beyond reason doubt. On age, it was submitted that the victim’s age was proved by the age assessment report produced by PW5 as exhibit 6 which showed that the victim was a minor of 9 years.
18. On penetration, it was submitted that the element was proved by the victim’s evidence (PW2) and corroborated by medical evidence produced by PW1 as exhibits 1,2,3,4 and 5. On identity of the perpetrator, it was submitted that PW2 positively identified the appellant as the perpetrator due to a dirty scarf that he wore on the material day and which he always wore. Additionally, the victim testified that he had met the appellant severally on the road and that the incident occurred during the day in broad daylight. The case of Republic vs Turnbull & others (1976) 3 ALL ER 549 was cited in support thereof.
19. Regarding the defence, it was submitted that the appellant chose to remain silent and hence there was no defence for consideration by the trial court. The respondent reiterated that all ingredients of the offence were proved beyond reasonable doubt and urged the court to dismiss the appeal and uphold the conviction and sentence.
Analysis and determination
20. This being the first appeal, the duty of this court 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. See Okeno vs Republic [1972] EA 32 and Mark Oiruri Mose vs Republic (2013) eKLR.
21. The Court of Appeal, in Kiilu & Another vs 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.”
22. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty
of an offence termed as defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life . ”
23. The specific elements 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. In Charles Wamukoya Karani vs R , Criminal Appeal No. 72 of 2013, the court held;
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
24. On the issue of the age, 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. 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.”
25. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. This was affirmed in the case of Thomas Mwambu Wenyi V Republic Criminal Appeal No. 21 of 2015 [2017].
26. In this case, the complainant (PW2), her mother (PW3) and the investigating Officer (PW4) testified that the complainant was 9 years old. PW3, the mother of the complainant produced the complainant’s Birth Certificate as P exhibit 6 which shows she was born on 2 February 2015 meaning that she was 9 years between July/August 2024 when the offence is said to have offence occurred. The court finds that this element of the offence was proved beyond any reasonable doubt.
27. On the issue of penetration, the appellant contended that the trial court erred in placing reliance on the evidence of the complainant without satisfying itself that the requirements of section 124 of the Evidence Act were met. He further argued that there was no proof of defilement since a broken hymen by itself is not evidence of penetration and that hymen can be broken in other ways others than through penile penetration only. The Respondent on the other hand maintained that the element of penetration was proved by the victim’s evidence (PW2) and corroborated by medical evidence produced by PW1 as exhibits 1,2,3,4 and 5.
28. 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 . “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.
29. To establish this ingredient, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the vagina of the victim, Z.H.N
30. The appellant was charged with defilement with particulars stating the offence occurred on diverse dates between 1 July 2024 to 1 August 2024. PW2 in her testimony, did not mention any dates but stated that the incident occurred during second term after examinations. PW3 did not mention the date of the offence but testified that she found PW2’s panty was s tained on 13 August 2024 while she was washing clothes which prompted her to seek treatment for PW2. PW4 testified that upon interrogation, PW2 said that she was defiled in July 2024.
31. The prosecution must be clear from the onset on the date of an offence to ensure legal clarity , protect the appellant’s constitutional rights and satisfy the strict rules of criminal evidence. Evidence tendered by the prosecution was contradictory and inconclusive as to the particular date or dates within the period of 1 July 2024 and 1 August 2024 the incident is said to have occurred. This denied the appellant clarity of what he was facing to enable him defend himself. Article 50 (2) (b) of the Constitution provides that every accused has a right to fair trial which includes the right to be informed of the charge in sufficient detail to answer it. I find this this requirement was not met and it was unfair to expect the appellant to defend himself in such circumstances.
32. The trial court, in convicting the appellant, held that the evidence of the complainant was fully corroborated by the evidence of the medical officer and medical documents produced that proved penetration of the complainant’s genitalia beyond reasonable doubt. Medical evidence tendered by PW1 established that the complainant’s hymen was broken leading him to confirm that there was penetration. The appellant contended that broken hymen by itself is not proof of defilement. The question for determination whether a broken hymen by itself is evidence of defilement?
33. The court of appeal in PKW vs. Republic (2012) eKLR Stated that:
“Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences, we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback ride, bicycle riding and gymnastics, there can also be natural tearing of the hymen.”
34. Drawing for the above finding, it is a fact that a hymen may be broken as result of other activities as opposed to sexual intercourse. PW1, however, did not lay any basis for arriving at the conclusion. In the absence of any other explanation, the only deduction available is that the conclusion by PW1 was informed by the absence of hymen. The act in question was stated to have been committed in July 2024 while the complainant was examined on 20 August 2024 which is a considerable long period of time after the event.
35. The appellant challenged reliance on the complainant’s evidence on grounds that the requirements of Section 124 of the Evidence Act were not satisfied. The complainant, a child of tender years, was subjected to voire dire and the court concluded that she was intelligent enough to understand the nature of oaths and the need to tell the truth.
30. Section 124 of the Evidence Act provides thus:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
36. In this case, since the only evidence was that of the complainant, the trial court was required to record in the proceedings reasons the court was satisfied that the victim is telling the truth. This requirement in my view, is separate and distinct from voire dire whose purpose is to determine whether or not a person of tender years understands the nature of oath and need to tell the truth so as to enable them give sworn evidence. There is nothing in the proceedings to show that the trial court complied with the proviso in Section 124 of the Evidence Act .
37. This court has considered the case in totality finds that there exists doubt as to whether the appellant committed the offence. PW2’s testimony was too general and lacked specificity to enable the court conclusively find that the appellant is guilty beyond any reasonable doubt. Additionally, the medical evidence did not conclusively establish penetration since a broken or missing hymen can result from activities other than penetration through penis. These possibilities were not ruled out. The court finds that the element of penetration was not proved beyond reasonable doubt.
38. The court must emphasize that the burden of proof rests with the prosecution at all times. See Woolmington vs DPP [1935] AC 462 . An accused has a right to remain silent and not to testify during any proceedings by dint of Article 50 (2) (i) of the Constitution which right was duly exercised by the appellant.
39. On the basis of the evidence on record, my evaluation leads to the conclusion that the conviction herein was unsupported by evidence and was unsafe.
40. The court finds merit in the appeal. The court, accordingly allow the appeal, quash the conviction and set aside the sentence. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
Delivered and signed at Nairobi on this 9 th day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE
1. The appellant herein Mwamba Mwambamba Dena, was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that on diverse dates between 1 July 2024 to 1 August 2024 at Kalian’gombe area in Rabai Sub-County Kilifi County within the coast region, unlawfully and intentionally caused his male genital organ namely penis to penetrate the female genital organ namely vagina of Z.N.H a child aged 9 years.
2. The Appellant was also charged with an alternative offence of committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act in that on diverse dates between 1 July 2024 to 1 August 2024 at Kalian’gombe area in Rabai Sub-County Kilifi County within the coast region, unlawfully and intentionally touched the vagina of Z.N.H a child aged 9 years using his penis.
3. The appellant denied the charges prompting the trial in which the prosecution to called four (4) witnesses. PW2, the complainant testified that she was 9 years old and a grade four pupil at a local school. She testified that during second term after examinations, her friend told her to go and buy ice cream. While on the way, she met the appellant alone who held her hand and pushed her into the maize plantation. He then inserted his finger into her vagina and then inserted his penis into her vagina. The appellant heard people coming, dressed up and ran away. The complainant also dressed up, went and bought ice cream and went to school. She went on to say that she didn’t tell anyone since the appellant threatened to kill her.
4. PW3 Mijumaa Jumaa the complainant’s mother testified that the complainant was 9 years old having been born on 2 February 2015. She produced a copy of her birth certificate as proof thereof. It was her evidence that on 13 August 2024, while washing the complainant’s panty, she noticed yellowish discharge on it. She then took the complainant to hospital where she was given medication but she did not improve. She was thereafter referred to Coast General hospital where she was told the complainant had been defiled. She reported the matter to the police where the complainant identified the appellant as having defiled her after interrogation by police. This led to his arrest and arraignment.
5. PW1 Mwangolo Chigulu, a senior clinical officer at Mariakani Sub-County Hospital testified that on 20 August 2024, she examined the complainant where he noted that her hymen was broken but all other tests turned negative. He concluded that there was penetration and prepared the P3 form which he produced as evidence together with Gender Based Violence Form, Post Rape Care form, treatment notes and laboratory requested and results.
6. PW4 PC Purity Cherobon the investigating officer based at Rabai Police Station testified that on 22 August 2024, the complainant was taken to the station accompanied by PW3. The complainant narrated how she was defiled by a man called Ondari while on her way to buy ice cream in July 2024. The assailant threatened her not to disclose which she obliged until when she went to the police station. She later identified the assailant as the appellant who was arrested at Kalia Ngómbe and charged with the offence.
7. At the close of the prosecution case, the court found that a prima facie case had been established and placed the appellant on his defence. The appellant opted to remain silent. He was found guilty, convicted and sentenced to life imprisonment.
8. Aggrieved, the appellant filed the present Appeal where he raised the following grounds of appeal:
i. The trial court erred in law and fact by failing to find that identification as an ingredient of the offence was not proved beyond reasonable doubt.
ii. The trial court erred in law and fact by failing to note that section 124 of the Evidence Act was contravened.
iii. The trial court erred in law and fact by failing to consider that the sentence was harsh and excessive.
iv. The trial court erred in law and fact by failing to consider his mitigation pursuant to section 216 and 329 of the Criminal Procedure Code.
9. The appeal was argued by way of written submissions which both parties duly filed. The appellant submitted that the prosecution failed to prove the charges beyond reasonable doubt. It was contended that from the O.B and P3 form, the incident was reported on 20 August 2024 whereas the complainant was examined on 22 August 2024 which cannot be stated to be immediate and is an afterthought. It was further submitted that even if it was proved that he had sex with the complainant, the occurrence of sex in itself is not evidence of defilement. Reliance was placed in the case of Martin Charo vs Republic (2016) eKLR.
10. The appellant contended that the issue of defilement was solely based on the medical examiner’s opinion and had not been raised prior to that. That no evidence was tendered to establish that it was the appellant to had defiled the complainant.
11. The appellant submitted that the trial court erred in placing sole reliance on the fact that the complainant’s hymen was broken to convict the appellant. He argued that no evidence was tendered to show that the hymen had not been broken by any other item other than the penis. The case of PKW vs Republic (2012) eKLR was cited to support the assertion that the absence of hymen by itself is not proof of defilement.
12. The appellant submitted that the element of identification was not proved beyond reasonable doubt. That the only evidence concerning identification was by PW2 the complainant who stated that she knew the appellant since he had a dirty scarf which he always had. It was submitted that she did not identify the appellant by name or mention any permanent physical description of him. The case of Francis Muchiri Joseph vs Republic (2014) eKLR was cited in support. It was further submitted that the complainant identified the assailant by an alias name, “Ordinane” while PW4 stated that the complainant said she was defiled by Ondari. It was argued that these names significantly differed from the appellant’s name which was Mwamba Mwambamba Dena.
13. The appellant submitted that the evidence of PW2, the complainant was mired by contradictions and inconsistencies making it unreliable. The trial court was faulted for placing reliance on the minor’s evidence without satisfying itself on the requirements of Section 124 of the Evidence Act or the proviso thereof. Reliance was placed on the case of Jon Cardon Wagner vs Republic and 2 others (2011) eKLR where the court held, inter alia, that the trial court must point out the demeanor it notes and lay the basis of accepting evidence of a particular witness.
14. The appellant challenged the entire prosecution evidence which he submitted was full of discrepancies and inconsistencies. In particular, he pointed out what he termed as discrepancies in the evidence of PW2 and PW3 on the issue concerning the events that led to the discovery of the offence which leads to the conclusion that the witnesses were not truthful.
15. As regards the sentence, it was submitted that the minimum mandatory sentences under the Sexual Offences Act do not meet the constitutional threshold set out in Article 28 of the Constitution by depriving an accused an opportunity to mitigate. It was argued that despite the appellant’s mitigation, the court disregarded it and went on to sentence the appellant to life imprisonment without even calling for a probation report. He cited the cases of Francis Karioko Muruatetu and another vs Republic; Katiba institute & 5 others (Amicus Curiae) (2021) KESC 31 (KLR) and Evans Wanjala Wanyonyi vs R (2019) eKLR in support thereof. He urged the court to allow the appeal, quash the conviction and sentence.
16. The Respondent opposed the appeal and affirmed that the conviction was proper. It was submitted that this being the first appellate court, the court is duty bound 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. The cases of Okeno vs Republic [1972] EA 32 and Mark Oiruri Mose vs Republic (2013) eKLR were cited in support thereof.
17. The Respondent submitted that they had proved all three ingredients of the offence of defilement, that is, age of the victim, penetration and identification of the perpetrator beyond reason doubt. On age, it was submitted that the victim’s age was proved by the age assessment report produced by PW5 as exhibit 6 which showed that the victim was a minor of 9 years.
18. On penetration, it was submitted that the element was proved by the victim’s evidence (PW2) and corroborated by medical evidence produced by PW1 as exhibits 1,2,3,4 and 5. On identity of the perpetrator, it was submitted that PW2 positively identified the appellant as the perpetrator due to a dirty scarf that he wore on the material day and which he always wore. Additionally, the victim testified that he had met the appellant severally on the road and that the incident occurred during the day in broad daylight. The case of Republic vs Turnbull & others (1976) 3 ALL ER 549 was cited in support thereof.
19. Regarding the defence, it was submitted that the appellant chose to remain silent and hence there was no defence for consideration by the trial court. The respondent reiterated that all ingredients of the offence were proved beyond reasonable doubt and urged the court to dismiss the appeal and uphold the conviction and sentence.
Analysis and determination
20. This being the first appeal, the duty of this court 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. See Okeno vs Republic [1972] EA 32 and Mark Oiruri Mose vs Republic (2013) eKLR.
21. The Court of Appeal, in Kiilu & Another vs 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.”
22. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act . The said Act provides:
“ 8 (1) A person who commits an act which causes penetration with a child is guilty
of an offence termed as defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life . ”
23. The specific elements 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. In Charles Wamukoya Karani vs R , Criminal Appeal No. 72 of 2013, the court held;
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
24. On the issue of the age, 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. 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.”
25. Age can be established by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. This was affirmed in the case of Thomas Mwambu Wenyi V Republic Criminal Appeal No. 21 of 2015 [2017].
26. In this case, the complainant (PW2), her mother (PW3) and the investigating Officer (PW4) testified that the complainant was 9 years old. PW3, the mother of the complainant produced the complainant’s Birth Certificate as P exhibit 6 which shows she was born on 2 February 2015 meaning that she was 9 years between July/August 2024 when the offence is said to have offence occurred. The court finds that this element of the offence was proved beyond any reasonable doubt.
27. On the issue of penetration, the appellant contended that the trial court erred in placing reliance on the evidence of the complainant without satisfying itself that the requirements of section 124 of the Evidence Act were met. He further argued that there was no proof of defilement since a broken hymen by itself is not evidence of penetration and that hymen can be broken in other ways others than through penile penetration only. The Respondent on the other hand maintained that the element of penetration was proved by the victim’s evidence (PW2) and corroborated by medical evidence produced by PW1 as exhibits 1,2,3,4 and 5.
28. 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 . “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.
29. To establish this ingredient, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the vagina of the victim, Z.H.N
30. The appellant was charged with defilement with particulars stating the offence occurred on diverse dates between 1 July 2024 to 1 August 2024. PW2 in her testimony, did not mention any dates but stated that the incident occurred during second term after examinations. PW3 did not mention the date of the offence but testified that she found PW2’s panty was s tained on 13 August 2024 while she was washing clothes which prompted her to seek treatment for PW2. PW4 testified that upon interrogation, PW2 said that she was defiled in July 2024.
31. The prosecution must be clear from the onset on the date of an offence to ensure legal clarity , protect the appellant’s constitutional rights and satisfy the strict rules of criminal evidence. Evidence tendered by the prosecution was contradictory and inconclusive as to the particular date or dates within the period of 1 July 2024 and 1 August 2024 the incident is said to have occurred. This denied the appellant clarity of what he was facing to enable him defend himself. Article 50 (2) (b) of the Constitution provides that every accused has a right to fair trial which includes the right to be informed of the charge in sufficient detail to answer it. I find this this requirement was not met and it was unfair to expect the appellant to defend himself in such circumstances.
32. The trial court, in convicting the appellant, held that the evidence of the complainant was fully corroborated by the evidence of the medical officer and medical documents produced that proved penetration of the complainant’s genitalia beyond reasonable doubt. Medical evidence tendered by PW1 established that the complainant’s hymen was broken leading him to confirm that there was penetration. The appellant contended that broken hymen by itself is not proof of defilement. The question for determination whether a broken hymen by itself is evidence of defilement?
33. The court of appeal in PKW vs. Republic (2012) eKLR Stated that:
“Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences, we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback ride, bicycle riding and gymnastics, there can also be natural tearing of the hymen.”
34. Drawing for the above finding, it is a fact that a hymen may be broken as result of other activities as opposed to sexual intercourse. PW1, however, did not lay any basis for arriving at the conclusion. In the absence of any other explanation, the only deduction available is that the conclusion by PW1 was informed by the absence of hymen. The act in question was stated to have been committed in July 2024 while the complainant was examined on 20 August 2024 which is a considerable long period of time after the event.
35. The appellant challenged reliance on the complainant’s evidence on grounds that the requirements of Section 124 of the Evidence Act were not satisfied. The complainant, a child of tender years, was subjected to voire dire and the court concluded that she was intelligent enough to understand the nature of oaths and the need to tell the truth.
30. Section 124 of the Evidence Act provides thus:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
36. In this case, since the only evidence was that of the complainant, the trial court was required to record in the proceedings reasons the court was satisfied that the victim is telling the truth. This requirement in my view, is separate and distinct from voire dire whose purpose is to determine whether or not a person of tender years understands the nature of oath and need to tell the truth so as to enable them give sworn evidence. There is nothing in the proceedings to show that the trial court complied with the proviso in Section 124 of the Evidence Act .
37. This court has considered the case in totality finds that there exists doubt as to whether the appellant committed the offence. PW2’s testimony was too general and lacked specificity to enable the court conclusively find that the appellant is guilty beyond any reasonable doubt. Additionally, the medical evidence did not conclusively establish penetration since a broken or missing hymen can result from activities other than penetration through penis. These possibilities were not ruled out. The court finds that the element of penetration was not proved beyond reasonable doubt.
38. The court must emphasize that the burden of proof rests with the prosecution at all times. See Woolmington vs DPP [1935] AC 462 . An accused has a right to remain silent and not to testify during any proceedings by dint of Article 50 (2) (i) of the Constitution which right was duly exercised by the appellant.
39. On the basis of the evidence on record, my evaluation leads to the conclusion that the conviction herein was unsupported by evidence and was unsafe.
40. The court finds merit in the appeal. The court, accordingly allow the appeal, quash the conviction and set aside the sentence. The appellant shall be set at liberty forthwith unless otherwise lawfully held.
Delivered and signed at Nairobi on this 9 th day of July 2026
JOSEPH KIPKOECH BIOMDO
JUDGE