REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. E024 OF 2025
NAMANIMANA AUDIFAX ……………………………….. APPELLANT
-VERSUS-
REPUBLIC …………………………………..……………. RESPONDENT
(Being an Appeal from the Judgement and Sentence delivered at the in Bungoma CMCR (SO) No. E088 of 2024 by Hon. T.K. Ng’etich, Resident Magistrate on 27 th February 2025).
JUDGMENT
1. 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 No. 3 of 2006. The particulars of the charge were that on 29 th August 2024 at Samoya area in Bungoma South sub-county within Bungoma county, intentionally and unlawfully caused his penis to penetrate the vagina of P.L. (particulars withheld) a child aged 15 years.
2. In the alternative, he was charged with the offence of Committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on 29 th August 2024 at Samoya area in Bungoma South sub-county within Bungoma county, intentionally and unlawfully caused his penis to come into contact with the vagina of P.L. (particulars withheld) a child aged 15 years.
3. After a plea of not guilty was entered, the matter proceeded to a full hearing, with the Prosecution calling a total of five (5) witnesses in support of its case.
PROSECUTION’S CASE
4. PW1 P.L. the victim testified that she was 15 years old and a Form 3 student at St. Theresa Kimilili. On 20th August 2024, she met Audifax for the first time, and he asked whether they could be lovers, but she declined. He later approached her a second time, and she agreed to have a relationship with him. On 28th August 2024, she told the Appellant that she would go to his house the following day.
5. It was PW1’s evidence that on 29 th August 2024, she went to the Appellant’s house, where he asked her to have sex with him, but she initially declined. That was when he left the house and came back, he asked her to sit near him, then he removed her bra, caressed her breasts and wanted to remove her skirt and skin-tight. The Appellant wore a condom and penetrated her vagina while they were lying on a mattress.
6. She told the court that she was the one who removed her skin-tight clothing and that after they had sex, somebody knocked on the door, which she believed was her mother because she had left her brother playing. PW1 stated that she jumped through the window but was arrested by a police officer after she had forgotten her shoes.
7. PW2, Sylivia Mahavi Chimogi, the victim’s mother, testified that she was a resident of Samoya in Bungoma town and sold groceries. On 29th August 2024, she was at her stall when, at about 3.00 pm, a friend informed her that PW2’s daughter had entered a house belonging to a Burundian. She proceeded to the house, knocked, but the door was not opened.
8. PW2 stated that she called a Nyumba Kumi elder, who arrived accompanied by a police officer when the door was opened. Her daughter jumped through the window but was arrested. They took the Appellant to the police station, and her daughter also spent the night at Bungoma Police Station until the following day, when she was taken to hospital.
9. PW3 Bramwel Wafula Simiyu, of registration No. 1338 from Bungoma County Hospital, stated that he had the Treatment Card, P3 form, and lab results for P.L, aged 15 years. He stated that she presented with a history of being defiled on 29th August 2024 at about 4.00 p.m. PW3 stated that the victim told him she had visited her boyfriend near St. Domiano, where he was caressing her, and that they later had sex. Immediately after they began, somebody knocked on the door, and PW1 ran away, leaving her bra and shoes behind.
10. PW3 stated that he examined the victim a day later and prescribed antibiotics and PEP. The injuries sustained were of grievous harm. On vaginal examination, the external was normal with discharge, but there was inflammation at 9 o’clock and 3 o’clock. The hymen was broken with small lacerations, and epithelial cells were present (+3), but STI results were negative. He produced the victim’s P3 form (PEXH 1) and Treatment Notes [PEXH 2(a)], with the lab results as [PEX 2(b)].
11. PW3 stated on cross-examination that he did not examine the Appellant because the Appellant was not brought to the hospital. He also could not tell if he defiled the minor, and he never requested that the Appellant be availed.
12. PW4 Musa Shibukabo stated that he lived in Namachanja in Bungoma town and was a community policing member. He stated that on 29th August 2024 at about 17.00 hrs, he was at Bungoma Police Station when he received a call from Omandu asking whether he was at Bungoma Police Station. He stated that he was requested to get 2 police officers and rush to Samova, as there was a student in the house of a boy. He then informed an officer called Ayabei, and they rushed to the scene, where they found a crowd outside a house.
13. PW4 stated that the man in the house peeped from the curtain and opened the door. He was alone in the house, but when Corporal Ayabei went behind the house, he saw the window open and found a toilet and bathroom with the minor inside. PW4 stated that the officer brought PW1 into the house, after which they inspected the house. In the bedroom, they found sandals and a bra underneath the mattress, and a yellow Marvin, which he produced in court as follows: Yellow Marvin – PEX 3, Purple bra – PEX-4 and Greerush sandals – PEXH 5. They then took the minor and the accused to Bungoma Police Station, and he identified the man in the house as the one before the court.
14. PW5 No. 237633, PC Georgina Mbaasu of Bungoma Gender Desk, stated that she was the investigating officer in this matter after the initial investigating officer transferred in October 2024. She stated that on 29th August 2024, while at the Gender Desk, PC Avebei brought in a girl and a man he had found having sex in a house. PW5 stated that the girl, P.L., informed her that she had visited her boyfriend, who was previously in court, and that they had engaged in sex using a condom inside the Appellant’s house.
15. PW5 stated that the Appellant had bought the minor soda and that, immediately after they began, a knock was heard at the door and the minor escaped through the window out of fear. The Investigating officer stated that the minor was arrested while in the house and that they recovered a marvin, bra and sandals belonging to the minor. It was her testimony that the minor confirmed the items were hers, so she took her to hospital in Bungoma county and gave her a P3 form, which was filled by the doctor. She stated that the minor was 15 years of age and produced her birth certificate (PEX 6).
16. At the close of the Prosecution’s case, the trial court found that the Appellant had a case to answer. He elected to give a sworn statement.
17. DW1, the Appellant, stated his name and informed the court that he is a Burundian and a hawker in Bungoma town. He acknowledged the charges he faced and stated that on 29th August 2024 he was hawking shoes when a motor vehicle stopped in front of him, and he thought they were buying shoes. He testified that he negotiated the price, after which the customer asked why his Kiswahili was not fluent, and he told him that he is a Burundian. DW1 stated that the person asked for his passport, and when he showed it to him, he told the customer that he did not have a permit. The customer then pushed him into the car and took him to a house, where they demanded money, which he did not have.
18. DW1 stated that he stayed in the house from Thursday until Monday, when he was brought to court, and that he denied committing the offence. He said that he thought he was being charged with being in Kenya illegally.
19. The trial court found him guilty of the offence in the first count and sentenced him to 20 years’ imprisonment.
20. Aggrieved by this determination, the Appellant lodged an Appeal by an undated Petition of Appeal against the sentence only, setting out the following grounds:
(1 THAT he is a first offender and remorseful for the offence committed.
(2 THAT the sentence of 20 years as meted out upon him is rather too harsh and excessive as per the circumstances, and also request this Hon. Court to consider reducing the same on humanitarian grounds.
(3 THAT he is a teenager who still needs to do a lot be it bringing up a responsible family as well as active participation in the nation’s prosperity.
(4 THAT may it please this Hon. Court to make a declaration that the time spent in remand awaiting trial be considered.
(5 THAT he wished to adduce more grounds at the hearing thereof.
21. The Appellant then lodged amended Grounds of Appeal, dated 17th November 2025, against both the conviction and the sentence as follows: -
(1 THAT the learned trial magistrate erred in both law and facts by holding that the offence of defilement was proved without proof of the ingredients of the offence.
(2 THAT the learned trial magistrate erred in both law and facts by convicting the appellant yet voire dire conducted was unprocedural.
(3 THAT the learned trial magistrate erred in both law and facts by not observing that evidence brought forward by the prosecution fell short of the standard needed in law and that the evidence was based on conspiracy and thus the said offence was not proved beyond reasonable doubt
(4 THAT the learned trial magistrate erred in both law and facts by not considering the appellants defence.
22. The Appeal was canvassed through written submissions.
23. The Appellant’s submissions are dated 17th November 2025. He submitted that the charge was not proved to the required standard because the element of penetration was not established beyond reasonable doubt. He further stated that the trial court’s findings were not supported by any evidence on record and emphasised the need to prove penetration as defined under Section 2 of the Act and as explained in the cases of EE v Republic (2015) eKLR and Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995.
24. He submitted that the minor’s evidence indicated that her mother walked in before they could commit the act, and that the court ought to view her as mature and having engaged in a love affair with the Appellant. He rejected the trial court’s finding that the victim’s evidence of sexual intercourse pointed to penetration, and asserted that, since the medical evidence indicated that the hymen was broken but not recently, the trial court erred in concluding that the ingredient had been proven.
25. The Appellant submitted that, because he was a trader at the same market as the victim’s mother, there may have been an element of settling scores, further evidenced by the fact that the person who blew the whistle on him was never called to testify. As such, the trial court erred in failing to consider the circumstances of the case and in overlooking the possibility of malice.
26. On the issue of the broken hymen, the Appellant also submitted that a hymen is not only ruptured through sexual intercourse, and cited the case of P.K.W. v Republic (2012) eKLR. Further, since the medical evidence did not demonstrate that there was any bloody discharge, yet she was engaging in sex for the first time, it was not possible to prove that the minor had been defiled.
27. On the voir dire, the Appellant submitted that nothing on record indicated that the minor understood the need to be truthful in her evidence, citing the cases of Republic v Peter Kiriga Kiume, Criminal Appeal No. 77 of 1982 (UR), and Johnson Muiruri v Republic (1983) KLR 445. He stated that the court's failure to conduct a proper voir dire meant that it relied on doubtful evidence.
28. Lastly, the Appellant submitted that his defence was not considered. He asserted that his arrest and prosecution were engineered by people who wanted to extort money from him because he had an expired passport. When he refused, he was framed for the charges. He cited the case of Victor Mwendwa Mulinge v Republic and said that the trial court had a duty to analyse his defence against the entire prosecution evidence, but this was not done. He referred to Section 107 of the Evidence Act and submitted that the burden of proof always rests on the Prosecution and never shifts to an accused person.
29. The Appellant also cited the case Uganda v Sebyala & Others (1969) EA 204, where the court held that the accused need not establish that his alibi is reasonably true, and that, in that case, the defence created doubt in the Prosecution’s case. As a consequence, the Prosecution’s evidence was not cogent enough to sustain a conviction or prove the charge against him. He urged the Court to quash the conviction and set aside the sentence.
30. The Respondent’s submissions are dated 20th November 2025. Counsel submitted that the Appellant filed this Appeal challenging only the sentence and sought a declaration that the period he spent in remand be counted towards the sentence.
31. Counsel stated that in his Petition of Appeal, the Appellant argued that the sentence was too harsh, as he was a teenager who had yet to raise a family and to participate in the nation’s prosperity but they opposed this on the basis that Section 8(3) of the Sexual Offences Act prescribed a punishment of not less than twenty years’ imprisonment where the victim is a minor of 15 years old, as proven in this case through the victim’s birth certificate. They urged the Court to uphold the sentence on the ground that it was lawful.
ANALYSIS AND DETERMINATION
32. From the Record of Appeal, the grounds and amended grounds of appeal and the rival submissions, I note that the two issues for my determination are whether the offence was proven and whether the sentence was proper.
33. The duty of a first appellate court is now well-established. The Court of Appeal in David Njuguna Wairimu v. Republic [2010] eKLR stated thus in this regard: -
“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
(see also Okeno v. R [1972] EA 32).
34. Section 8 of the Sexual Offences Act provides for the offence of defilement as follows: -
8. Defilement
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if-
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
35. Thus, for a charge of defilement to stand, the Prosecution must establish the age of the victim, proof of penetration, and positive identification of the perpetrator (see George Opondo Olunga vs Republic [2016] eKLR.)
36. On the first ingredient, the age of the victim in this case was never controverted. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR held as follows concerning proof of age in defilement cases: -
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
37. PW1 testified that she was 15 years old, and PW5, the Investigating Officer, also produced her birth certificate and serial number (particulars withheld) (P.Exh 6). I have re-examined it and noted that she was born on 30th August 2009. The offence allegedly occurred on 19th August 2024, making her 15 years old. I find this ingredient was adequately established.
38. On penetration, Section 2 of the Sexual Offences Act defines penetration as:-
The partial or complete insertion of the genital organ of a person into the genital organs of another person .
39. In this case, the minor testified as follows: _
“… We entered his house. He asked me for sex. Initially I declined. He left the house and came back when he asked me to sit near him. I sat near him. He removed my bra. He caressed my breasts. He wanted to remove my skirt and skin tight. Somebody knocked on the door and it was my mother… The accused had worn a condom. He penetrated my vagina. We were lying on a mattress. I am the one who removed my skin tight. It was after we had sex that the door was knocked…”
40. The evidence above clearly indicates that the minor and the Appellant engaged in sexual intercourse. The Appellant attempted to undermine this evidence by asserting that the minor was inconsistent and that her mother knocked on the door before they could have sex, but I find that they had already engaged in the act by the time the knock was heard.
41. Further, it did not matter whether the act of penetration was complete. Even the slightest penetration is sufficient to sustain the charge of defilement. In Erick Onyango Ondeng v. Republic (2014) eKLR, the Court of Appeal held that:
“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.”
42. Additionally, I have considered the medical evidence tendered before the Court and re-examined the medical documents adduced by PW3, namely the P3 Form (P.Exh1) and the Treatment Notes (P.Exh 2a). On examination, PW3 noted that the minor had a missing hymen. On this point, I agree with the Appellant that it was not indicated whether the broken hymen was fresh or old. However, the medical examination revealed inflammation and lacerations on the minor’s genitalia. From the P3 Form, I also observed that the minor’s panty was recorded as having dried blood stains and was foul-smelling.
43. Taking into account the totality of this evidence, I find that the evidence of penetration was well established.
44. On the issue of identification, there was no doubt that the Appellant was well known to the minor. She stated that the Appellant had approached her on 20th August 2024 and asked her to be his lover, but she refused and only later agreed on 28th August when he asked her a second time. There was also no doubt from the Appellant’s evidence that he knew the minor and her mother well. They were neighbours.
45. As to whether he was linked to the offence in question, I have considered the minor’s evidence and the provisions of Section 124 of the Evidence Act which states as follows: -
124. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other 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 offense, 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.
46. It follows that an accused person can be convicted on the sole evidence of a minor in sexual offence cases if the court is satisfied that the minor is truthful. From my reading of the trial record, I found no inconsistencies in the minor’s evidence and no impression that she was untruthful or dishonest. She stated that she was in a relationship with the Appellant, that his stall was near her mother’s market stall, that they were neighbours, and even identified his mobile number in court as 0786-688205, which the Appellant never rebutted in cross-examination.
47. Further, the minor’s evidence that she jumped out of the window when they had been caught in the act was well-corroborated by circumstantial evidence from PW4 Musa, the Nyumba Kumi, who said the Appellant’s window behind the house was open; and by that of PW2, the minor’s mother, and PW5, the Investigating Officer, who both stated that the minor jumped out to escape through the window when they heard a knock at the door.
48. This leads me to conclude that it was the Appellant who defiled the minor on the said date, because the identification evidence was one of recognition, which is the most reliable, and it was free from error. I rely on the Court of Appeal’s decision in Kariuki Njiru & 7 others vs. Republic Criminal Appeal no. 6 of 2001 (Unreported), where it was held as follows with regard to identification: -
“The law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”
49. I have considered the Appellant’s defence, the questions put to the Prosecution witnesses during cross-examination, and his submissions that his defence was never considered and that there was alibi evidence. Firstly, I note that at no point during the trial did the Appellant ground his defence on the claim that the victim’s mother had wanted to settle a score with him. It was clear that there were no prior disagreements that would imply a grudge or vendetta. This did not even arise during his cross-examination of PW2.
50. Secondly, he did not deny knowing the victim, and I also noted in his submissions before this Court that he conceded that he used to talk to the minor on the phone and that whatever happened between the victim and himself should be construed as indicating that no force was used on the minor during their engagement on the said date. Thirdly, he alluded to alibi evidence, but this never came up in the trial and cannot be considered on appeal. Lastly, he alleged in his submissions that he was arrested on an expired passport and was being extorted over the same, but in his evidence in the trial court, he stated that he was arrested for not having a work permit.
51. My conclusion is that he was both dishonest and inconsistent in his defence, and some of the assertions were afterthoughts and mere denials that did not displace the Prosecution evidence. Further, the issue of voire dire, as submitted by the Appellant, is not applicable in this case because the minor was not a child of tender years. The question of a proper or improper voire dire did not arise, nor did it vitiate the cogent Prosecution evidence before the court.
52. Accordingly, I find that the offence was proved beyond reasonable doubt and affirm the trial court's conviction on the main charge of defilement contrary to Section 8(1) read with Section 8(3) of the Sexual Offences Act.
53. On whether the sentence was proper and legal. The offence of defilement under Section 8(3) carries a mandatory minimum sentence of 20 years’ imprisonment. On appeal, a court should be careful not to interfere with the trial court’s exercise of discretion unless it is satisfied that the sentence was based on wrong principles, was excessive or too low, or was premised on a misapprehension of facts. The Court of Appeal for Eastern Africa stated in Ogalo s/o Owoura (1954) 21 E A C A 270 that an appellate court will only alter a sentence imposed by the trial court if it is evident that it has acted on wrong principles or overlooked some material factor, or if the sentence is manifestly excessive in view of the circumstances of the case.
54. In this case, the trial court took into account the Appellant’s mitigation and the provisions of Section 8(3) of the Act when imposing the sentence of 20 years’ imprisonment. Guided by the principles laid down by the Supreme Court in Republic v. Julius Kitsao, SC Petition No. E013 of 2024, I find that the sentence imposed was just, appropriate, and well-founded in law. I therefore find no reason to interfere with it.
55. I find that the Appeal lacks merit and is therefore dismissed.
Dated, signed and delivered virtually this 28 th Day of May 2026.
R.E. OUGO
JUDGE
In the presence;
Namanimana Audifax/ Appellant
Respondent -Absent
Wilkister - C/A
HCCRA NO. E024 OF 2025 -JUDGMENT 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. E024 OF 2025
NAMANIMANA AUDIFAX ……………………………….. APPELLANT
-VERSUS-
REPUBLIC …………………………………..……………. RESPONDENT
(Being an Appeal from the Judgement and Sentence delivered at the in Bungoma CMCR (SO) No. E088 of 2024 by Hon. T.K. Ng’etich, Resident Magistrate on 27 th February 2025).
JUDGMENT
1. 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 No. 3 of 2006. The particulars of the charge were that on 29 th August 2024 at Samoya area in Bungoma South sub-county within Bungoma county, intentionally and unlawfully caused his penis to penetrate the vagina of P.L. (particulars withheld) a child aged 15 years.
2. In the alternative, he was charged with the offence of Committing an indecent act contrary to Section 11 (1) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on 29 th August 2024 at Samoya area in Bungoma South sub-county within Bungoma county, intentionally and unlawfully caused his penis to come into contact with the vagina of P.L. (particulars withheld) a child aged 15 years.
3. After a plea of not guilty was entered, the matter proceeded to a full hearing, with the Prosecution calling a total of five (5) witnesses in support of its case.
PROSECUTION’S CASE
4. PW1 P.L. the victim testified that she was 15 years old and a Form 3 student at St. Theresa Kimilili. On 20th August 2024, she met Audifax for the first time, and he asked whether they could be lovers, but she declined. He later approached her a second time, and she agreed to have a relationship with him. On 28th August 2024, she told the Appellant that she would go to his house the following day.
5. It was PW1’s evidence that on 29 th August 2024, she went to the Appellant’s house, where he asked her to have sex with him, but she initially declined. That was when he left the house and came back, he asked her to sit near him, then he removed her bra, caressed her breasts and wanted to remove her skirt and skin-tight. The Appellant wore a condom and penetrated her vagina while they were lying on a mattress.
6. She told the court that she was the one who removed her skin-tight clothing and that after they had sex, somebody knocked on the door, which she believed was her mother because she had left her brother playing. PW1 stated that she jumped through the window but was arrested by a police officer after she had forgotten her shoes.
7. PW2, Sylivia Mahavi Chimogi, the victim’s mother, testified that she was a resident of Samoya in Bungoma town and sold groceries. On 29th August 2024, she was at her stall when, at about 3.00 pm, a friend informed her that PW2’s daughter had entered a house belonging to a Burundian. She proceeded to the house, knocked, but the door was not opened.
8. PW2 stated that she called a Nyumba Kumi elder, who arrived accompanied by a police officer when the door was opened. Her daughter jumped through the window but was arrested. They took the Appellant to the police station, and her daughter also spent the night at Bungoma Police Station until the following day, when she was taken to hospital.
9. PW3 Bramwel Wafula Simiyu, of registration No. 1338 from Bungoma County Hospital, stated that he had the Treatment Card, P3 form, and lab results for P.L, aged 15 years. He stated that she presented with a history of being defiled on 29th August 2024 at about 4.00 p.m. PW3 stated that the victim told him she had visited her boyfriend near St. Domiano, where he was caressing her, and that they later had sex. Immediately after they began, somebody knocked on the door, and PW1 ran away, leaving her bra and shoes behind.
10. PW3 stated that he examined the victim a day later and prescribed antibiotics and PEP. The injuries sustained were of grievous harm. On vaginal examination, the external was normal with discharge, but there was inflammation at 9 o’clock and 3 o’clock. The hymen was broken with small lacerations, and epithelial cells were present (+3), but STI results were negative. He produced the victim’s P3 form (PEXH 1) and Treatment Notes [PEXH 2(a)], with the lab results as [PEX 2(b)].
11. PW3 stated on cross-examination that he did not examine the Appellant because the Appellant was not brought to the hospital. He also could not tell if he defiled the minor, and he never requested that the Appellant be availed.
12. PW4 Musa Shibukabo stated that he lived in Namachanja in Bungoma town and was a community policing member. He stated that on 29th August 2024 at about 17.00 hrs, he was at Bungoma Police Station when he received a call from Omandu asking whether he was at Bungoma Police Station. He stated that he was requested to get 2 police officers and rush to Samova, as there was a student in the house of a boy. He then informed an officer called Ayabei, and they rushed to the scene, where they found a crowd outside a house.
13. PW4 stated that the man in the house peeped from the curtain and opened the door. He was alone in the house, but when Corporal Ayabei went behind the house, he saw the window open and found a toilet and bathroom with the minor inside. PW4 stated that the officer brought PW1 into the house, after which they inspected the house. In the bedroom, they found sandals and a bra underneath the mattress, and a yellow Marvin, which he produced in court as follows: Yellow Marvin – PEX 3, Purple bra – PEX-4 and Greerush sandals – PEXH 5. They then took the minor and the accused to Bungoma Police Station, and he identified the man in the house as the one before the court.
14. PW5 No. 237633, PC Georgina Mbaasu of Bungoma Gender Desk, stated that she was the investigating officer in this matter after the initial investigating officer transferred in October 2024. She stated that on 29th August 2024, while at the Gender Desk, PC Avebei brought in a girl and a man he had found having sex in a house. PW5 stated that the girl, P.L., informed her that she had visited her boyfriend, who was previously in court, and that they had engaged in sex using a condom inside the Appellant’s house.
15. PW5 stated that the Appellant had bought the minor soda and that, immediately after they began, a knock was heard at the door and the minor escaped through the window out of fear. The Investigating officer stated that the minor was arrested while in the house and that they recovered a marvin, bra and sandals belonging to the minor. It was her testimony that the minor confirmed the items were hers, so she took her to hospital in Bungoma county and gave her a P3 form, which was filled by the doctor. She stated that the minor was 15 years of age and produced her birth certificate (PEX 6).
16. At the close of the Prosecution’s case, the trial court found that the Appellant had a case to answer. He elected to give a sworn statement.
17. DW1, the Appellant, stated his name and informed the court that he is a Burundian and a hawker in Bungoma town. He acknowledged the charges he faced and stated that on 29th August 2024 he was hawking shoes when a motor vehicle stopped in front of him, and he thought they were buying shoes. He testified that he negotiated the price, after which the customer asked why his Kiswahili was not fluent, and he told him that he is a Burundian. DW1 stated that the person asked for his passport, and when he showed it to him, he told the customer that he did not have a permit. The customer then pushed him into the car and took him to a house, where they demanded money, which he did not have.
18. DW1 stated that he stayed in the house from Thursday until Monday, when he was brought to court, and that he denied committing the offence. He said that he thought he was being charged with being in Kenya illegally.
19. The trial court found him guilty of the offence in the first count and sentenced him to 20 years’ imprisonment.
20. Aggrieved by this determination, the Appellant lodged an Appeal by an undated Petition of Appeal against the sentence only, setting out the following grounds:
(1 THAT he is a first offender and remorseful for the offence committed.
(2 THAT the sentence of 20 years as meted out upon him is rather too harsh and excessive as per the circumstances, and also request this Hon. Court to consider reducing the same on humanitarian grounds.
(3 THAT he is a teenager who still needs to do a lot be it bringing up a responsible family as well as active participation in the nation’s prosperity.
(4 THAT may it please this Hon. Court to make a declaration that the time spent in remand awaiting trial be considered.
(5 THAT he wished to adduce more grounds at the hearing thereof.
21. The Appellant then lodged amended Grounds of Appeal, dated 17th November 2025, against both the conviction and the sentence as follows: -
(1 THAT the learned trial magistrate erred in both law and facts by holding that the offence of defilement was proved without proof of the ingredients of the offence.
(2 THAT the learned trial magistrate erred in both law and facts by convicting the appellant yet voire dire conducted was unprocedural.
(3 THAT the learned trial magistrate erred in both law and facts by not observing that evidence brought forward by the prosecution fell short of the standard needed in law and that the evidence was based on conspiracy and thus the said offence was not proved beyond reasonable doubt
(4 THAT the learned trial magistrate erred in both law and facts by not considering the appellants defence.
22. The Appeal was canvassed through written submissions.
23. The Appellant’s submissions are dated 17th November 2025. He submitted that the charge was not proved to the required standard because the element of penetration was not established beyond reasonable doubt. He further stated that the trial court’s findings were not supported by any evidence on record and emphasised the need to prove penetration as defined under Section 2 of the Act and as explained in the cases of EE v Republic (2015) eKLR and Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995.
24. He submitted that the minor’s evidence indicated that her mother walked in before they could commit the act, and that the court ought to view her as mature and having engaged in a love affair with the Appellant. He rejected the trial court’s finding that the victim’s evidence of sexual intercourse pointed to penetration, and asserted that, since the medical evidence indicated that the hymen was broken but not recently, the trial court erred in concluding that the ingredient had been proven.
25. The Appellant submitted that, because he was a trader at the same market as the victim’s mother, there may have been an element of settling scores, further evidenced by the fact that the person who blew the whistle on him was never called to testify. As such, the trial court erred in failing to consider the circumstances of the case and in overlooking the possibility of malice.
26. On the issue of the broken hymen, the Appellant also submitted that a hymen is not only ruptured through sexual intercourse, and cited the case of P.K.W. v Republic (2012) eKLR. Further, since the medical evidence did not demonstrate that there was any bloody discharge, yet she was engaging in sex for the first time, it was not possible to prove that the minor had been defiled.
27. On the voir dire, the Appellant submitted that nothing on record indicated that the minor understood the need to be truthful in her evidence, citing the cases of Republic v Peter Kiriga Kiume, Criminal Appeal No. 77 of 1982 (UR), and Johnson Muiruri v Republic (1983) KLR 445. He stated that the court's failure to conduct a proper voir dire meant that it relied on doubtful evidence.
28. Lastly, the Appellant submitted that his defence was not considered. He asserted that his arrest and prosecution were engineered by people who wanted to extort money from him because he had an expired passport. When he refused, he was framed for the charges. He cited the case of Victor Mwendwa Mulinge v Republic and said that the trial court had a duty to analyse his defence against the entire prosecution evidence, but this was not done. He referred to Section 107 of the Evidence Act and submitted that the burden of proof always rests on the Prosecution and never shifts to an accused person.
29. The Appellant also cited the case Uganda v Sebyala & Others (1969) EA 204, where the court held that the accused need not establish that his alibi is reasonably true, and that, in that case, the defence created doubt in the Prosecution’s case. As a consequence, the Prosecution’s evidence was not cogent enough to sustain a conviction or prove the charge against him. He urged the Court to quash the conviction and set aside the sentence.
30. The Respondent’s submissions are dated 20th November 2025. Counsel submitted that the Appellant filed this Appeal challenging only the sentence and sought a declaration that the period he spent in remand be counted towards the sentence.
31. Counsel stated that in his Petition of Appeal, the Appellant argued that the sentence was too harsh, as he was a teenager who had yet to raise a family and to participate in the nation’s prosperity but they opposed this on the basis that Section 8(3) of the Sexual Offences Act prescribed a punishment of not less than twenty years’ imprisonment where the victim is a minor of 15 years old, as proven in this case through the victim’s birth certificate. They urged the Court to uphold the sentence on the ground that it was lawful.
ANALYSIS AND DETERMINATION
32. From the Record of Appeal, the grounds and amended grounds of appeal and the rival submissions, I note that the two issues for my determination are whether the offence was proven and whether the sentence was proper.
33. The duty of a first appellate court is now well-established. The Court of Appeal in David Njuguna Wairimu v. Republic [2010] eKLR stated thus in this regard: -
“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
(see also Okeno v. R [1972] EA 32).
34. Section 8 of the Sexual Offences Act provides for the offence of defilement as follows: -
8. Defilement
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.
(5) It is a defence to a charge under this section if-
(a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and
(b) the accused reasonably believed that the child was over the age of eighteen years.
35. Thus, for a charge of defilement to stand, the Prosecution must establish the age of the victim, proof of penetration, and positive identification of the perpetrator (see George Opondo Olunga vs Republic [2016] eKLR.)
36. On the first ingredient, the age of the victim in this case was never controverted. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR held as follows concerning proof of age in defilement cases: -
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
37. PW1 testified that she was 15 years old, and PW5, the Investigating Officer, also produced her birth certificate and serial number (particulars withheld) (P.Exh 6). I have re-examined it and noted that she was born on 30th August 2009. The offence allegedly occurred on 19th August 2024, making her 15 years old. I find this ingredient was adequately established.
38. On penetration, Section 2 of the Sexual Offences Act defines penetration as:-
The partial or complete insertion of the genital organ of a person into the genital organs of another person .
39. In this case, the minor testified as follows: _
“… We entered his house. He asked me for sex. Initially I declined. He left the house and came back when he asked me to sit near him. I sat near him. He removed my bra. He caressed my breasts. He wanted to remove my skirt and skin tight. Somebody knocked on the door and it was my mother… The accused had worn a condom. He penetrated my vagina. We were lying on a mattress. I am the one who removed my skin tight. It was after we had sex that the door was knocked…”
40. The evidence above clearly indicates that the minor and the Appellant engaged in sexual intercourse. The Appellant attempted to undermine this evidence by asserting that the minor was inconsistent and that her mother knocked on the door before they could have sex, but I find that they had already engaged in the act by the time the knock was heard.
41. Further, it did not matter whether the act of penetration was complete. Even the slightest penetration is sufficient to sustain the charge of defilement. In Erick Onyango Ondeng v. Republic (2014) eKLR, the Court of Appeal held that:
“In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.”
42. Additionally, I have considered the medical evidence tendered before the Court and re-examined the medical documents adduced by PW3, namely the P3 Form (P.Exh1) and the Treatment Notes (P.Exh 2a). On examination, PW3 noted that the minor had a missing hymen. On this point, I agree with the Appellant that it was not indicated whether the broken hymen was fresh or old. However, the medical examination revealed inflammation and lacerations on the minor’s genitalia. From the P3 Form, I also observed that the minor’s panty was recorded as having dried blood stains and was foul-smelling.
43. Taking into account the totality of this evidence, I find that the evidence of penetration was well established.
44. On the issue of identification, there was no doubt that the Appellant was well known to the minor. She stated that the Appellant had approached her on 20th August 2024 and asked her to be his lover, but she refused and only later agreed on 28th August when he asked her a second time. There was also no doubt from the Appellant’s evidence that he knew the minor and her mother well. They were neighbours.
45. As to whether he was linked to the offence in question, I have considered the minor’s evidence and the provisions of Section 124 of the Evidence Act which states as follows: -
124. Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other 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 offense, 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.
46. It follows that an accused person can be convicted on the sole evidence of a minor in sexual offence cases if the court is satisfied that the minor is truthful. From my reading of the trial record, I found no inconsistencies in the minor’s evidence and no impression that she was untruthful or dishonest. She stated that she was in a relationship with the Appellant, that his stall was near her mother’s market stall, that they were neighbours, and even identified his mobile number in court as 0786-688205, which the Appellant never rebutted in cross-examination.
47. Further, the minor’s evidence that she jumped out of the window when they had been caught in the act was well-corroborated by circumstantial evidence from PW4 Musa, the Nyumba Kumi, who said the Appellant’s window behind the house was open; and by that of PW2, the minor’s mother, and PW5, the Investigating Officer, who both stated that the minor jumped out to escape through the window when they heard a knock at the door.
48. This leads me to conclude that it was the Appellant who defiled the minor on the said date, because the identification evidence was one of recognition, which is the most reliable, and it was free from error. I rely on the Court of Appeal’s decision in Kariuki Njiru & 7 others vs. Republic Criminal Appeal no. 6 of 2001 (Unreported), where it was held as follows with regard to identification: -
“The law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.”
49. I have considered the Appellant’s defence, the questions put to the Prosecution witnesses during cross-examination, and his submissions that his defence was never considered and that there was alibi evidence. Firstly, I note that at no point during the trial did the Appellant ground his defence on the claim that the victim’s mother had wanted to settle a score with him. It was clear that there were no prior disagreements that would imply a grudge or vendetta. This did not even arise during his cross-examination of PW2.
50. Secondly, he did not deny knowing the victim, and I also noted in his submissions before this Court that he conceded that he used to talk to the minor on the phone and that whatever happened between the victim and himself should be construed as indicating that no force was used on the minor during their engagement on the said date. Thirdly, he alluded to alibi evidence, but this never came up in the trial and cannot be considered on appeal. Lastly, he alleged in his submissions that he was arrested on an expired passport and was being extorted over the same, but in his evidence in the trial court, he stated that he was arrested for not having a work permit.
51. My conclusion is that he was both dishonest and inconsistent in his defence, and some of the assertions were afterthoughts and mere denials that did not displace the Prosecution evidence. Further, the issue of voire dire, as submitted by the Appellant, is not applicable in this case because the minor was not a child of tender years. The question of a proper or improper voire dire did not arise, nor did it vitiate the cogent Prosecution evidence before the court.
52. Accordingly, I find that the offence was proved beyond reasonable doubt and affirm the trial court's conviction on the main charge of defilement contrary to Section 8(1) read with Section 8(3) of the Sexual Offences Act.
53. On whether the sentence was proper and legal. The offence of defilement under Section 8(3) carries a mandatory minimum sentence of 20 years’ imprisonment. On appeal, a court should be careful not to interfere with the trial court’s exercise of discretion unless it is satisfied that the sentence was based on wrong principles, was excessive or too low, or was premised on a misapprehension of facts. The Court of Appeal for Eastern Africa stated in Ogalo s/o Owoura (1954) 21 E A C A 270 that an appellate court will only alter a sentence imposed by the trial court if it is evident that it has acted on wrong principles or overlooked some material factor, or if the sentence is manifestly excessive in view of the circumstances of the case.
54. In this case, the trial court took into account the Appellant’s mitigation and the provisions of Section 8(3) of the Act when imposing the sentence of 20 years’ imprisonment. Guided by the principles laid down by the Supreme Court in Republic v. Julius Kitsao, SC Petition No. E013 of 2024, I find that the sentence imposed was just, appropriate, and well-founded in law. I therefore find no reason to interfere with it.
55. I find that the Appeal lacks merit and is therefore dismissed.
Dated, signed and delivered virtually this 28 th Day of May 2026.
R.E. OUGO
JUDGE
In the presence;
Namanimana Audifax/ Appellant
Respondent -Absent
Wilkister - C/A
HCCRA NO. E024 OF 2025 -JUDGMENT 2