(Being an appeal against the conviction and sentence judgment delivered on 27th November 2024 by Hon. D. Sure (PM) in Sexual Offence Case No. E033 of 2024 in Kangundo Law Court)
A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of defilement contrary to section 8(1) as read together with section 8 (4) of the Sexual Offences Act, Cap 63A has lodged this appeal. He seeks that his conviction be quashed and the 15 years imprisonment sentence set aside.
2. The appeal is premised on three (3) grounds which I reproduce as follows, THAT: -
i. The learned trial magistrate erred in both law and fact by not considering the defence;
ii. The learned trial magistrate erred in matters of law and fact by convicting me despite the uncollaborative and inconsistent evidence; and
iii. The honourable court issue any other orders as it deems fit in the circumstance.
B. Background
3. Before the trial court, the appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 5th and 6th day of August 2023 at Mathima village, Kivaani Location in Kangundo Sub County within Machakos County intentionally and unlawfully caused his penis to penetrate the vagina of F.M a child aged 17 years.
4. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act (herein after, “the Act”). The particulars were that on diverse dates between 5th and 6th day of August 2023 at Mathima village, Kivaani Location in Kangundo Sub County within Machakos County, he intentionally and unlawfully touched the vagina of F.M., a child aged 17 years.
5. He pleaded not guilty and to prove its case, the prosecution called six (6) witnesses.
C. Prosecution case
6. The Complainant, F.M. testified as PW1. She stated that she was 18 years old and she had finished class 8. It was her testimony that she had gone for a lesso at her friend’s (Maureen) place in Kitange. She did not find her and decided to wait. While returning home, she felt someone holding her, he carried her to his house. That it was around 9pm. The person approached her from behind took her to his house and did bad manners to her. It was her evidence that he had sex three times, on the bed. That she was lying facing up, her legs were wide apart and the man was on top of her. The man used his manhood without protection. That there was no light in the house but it was not too dark.,
7. PW1 explained that the man removed her panty, pulled her dress, removed his trouser and remained with his shirt. She identified the man as the accused by pointing at him. She stated that she did not know the man before and only knew him at the time.
8. PW1 testified that there were people who came to the house who were looking for thieves. They came searched the house, found her and took her to Nagai’s place where other people had been arrested. Later they were taken to Kivaani Police Station where she was interrogated and taken to hospital, examined and treated. The police recorded her statement. She stated that she did not know the people who found her. PW1 described the appellant’s house as one roomed stone house and that she was able to see his face as he lit a candle before putting it off. Again that at the point of rescue, they were taken to the police station together.
9. PW2, Pascalina Syombua, the minor’s mother testified that she went to a marriage function and left PW1 at home with instructions to do house chores. On returning she did not find her and was informed that she had gone to collect a leso. They decided to wait for her but later went to look for her. They did not find her and reported to the assistant chief. That the next day a child requested her to go see Anastacia at the kiosk. On reaching there she found the appellant, PW1 and many people. That the assistant Chief came and the appellant and PW1 were taken to the police station and later referred to the hospital for the doctor to confirm if penetrative sex had taken place. She identified the person found with her daughter as the appellant who was on the dock. She also stated that she could not remember when PW1 was born since her birth certificate got burnt at her grandmother’s house.
10. PW3, Bernard Mbithi Musau, stated that they were looking for a maize thief who had been seen walking towards the accused homestead. They went there and looked around and that is when they heard voices in the appellant’s house. They asked him to open. He took time and when he opened, they entered the house to look for the thief but instead found PW1. They told her to come out and alerted the assistant chief who came. The appellant was then taken to the police station for being with a school child. He confirmed finding PW1 in the house of the appellant and that he knew the appellant from before.
11. PW4 Patrick Munda Mutiso evidence mirrored that of PW3. He stated that they were searching for a thief within the village when they were told that the thief is in the appellant’s homestead. On arriving at the homestead, they heard the radio and knocked on the door. The appellant opened and on searching found him with PW1. That they arrested the appellant who was interrogated by the assistant chief, who then advised that they take him to Kavaani Police Station. He identified the appellant as the person who was found with the girl (PW1). He also stated that the appellant was like his son.
12. PW5, PC Mariam Wangechi, the investigating officer, stated that on 5/8/23 the case was reported and took over the investigations. She stated that in her investigations, she established that the complainant was at home and left the house. That she met the appellant and started talking. That the appellant pulled PW2 into his house. That the road was near his house. The appellant then undressed the complainant and defiled her without using a condom. It had become dark as it was heading to 7pm and the complainant slept in the accused house. That at midnight, the appellant defiled her again. That the complainant tried screaming but the appellant covered her mouth. In the morning, the complainant heard noises outside, and heard the door being knocked. The door was opened. People were looking for thieves and found the child in the house. They interrogated both the appellant and the complainant where it was established that the appellant pulled PW1 from the road and defiled her. They brought them to Kivaani police post.
13. It was her evidence that she took the complainant to hospital and the doctor established defilement. An age assessment was done which showed the age of the child as 17 years. The age assessment report was produced as Prosecution Exhibit No 2. She then proceeded to charge the appellant as the person who defiled the minor. The appellant was identified as the person on the dock.
14. PW6 Dennis Otwal identified himself as a doctor at Kangundo Level 4 Hospital. That he was at work when a girl was brought on allegation of sexual assault. She was 17 years old. He interrogated the girl who told him that she had engaged in sex. On examination, he established the following; normal genital; hymen old torn; whitish discharge. That a laboratory test was done for HIV, pregnancy, VDRL and they were negative. However, spermatozoa were seen on high vaginal swap, infection noted on urinalysis, she was given PEP and antibiotics. PW6 produced the P3 Form as Prosecution Exhibit No. 1.
15. The prosecution closed its case and upon evaluation of the evidence on record, the trial court found a prima facie case had been established and placed the appellant on his defence. Upon being put on his defence, the appellant gave unsworn testimony and did not call any witnesses
D. Defence case
16. DW1, the appellant, in his defence, gave unsworn evidence and stated that he was 58 years old and a farmer. That on 6th August 2023, PW1 went to his house and asked for water. That he had no issue since she was a neighbor. That some people went looking for a thief and found the girl in his compound. They claimed that he was doing something bad which he denied. That he was then detained and harassed. That the chief asked them not to beat him and agreed to being taken to the chief’s office with the girl. That is where they found the girl’s mother. He stated that the people who arrested him did not come to court.
17. Upon evaluation of the entire evidence on record, the trial court rendered its judgment in which it identified four issues for determination: the age of PW1, whether there was penetration, whether PW1’s vagina was touched; and whether the appellant was properly identified. On age, the trial court found that based on the age assessment report dated 7th August 2023 showing her probable age to be 17 years old, the prosecution had proved that PW1 was a minor aged 17 years. On penetration, and whether PW1 vagina was touched, the trial court found that the minor testified that she had sex severally with the appellant and that her testimony was corroborated by that of PW4, the clinical officer who produced the medical documents which confirmed that her hymen was torn and old, spermatozoa was present on high vaginal swap. Thus, there was enough evidence of penetration and it was found that the minor was defiled.
18. On the fourth issue, that is whether the appellant was the culprit, the trial court found that there was no dispute that PW1 was found in the house of the appellant. That this was corroborated by PW3 and PW4 who informed the trial court that they were looking for a thief when they heard noises in the house of the appellant and on entering, they found PW1. Further that PW1 stated that she was defiled and this evidence was corroborated by PW6. The trial court also considered the appellant evidence and found it unconvincing since PW1 was found in his house after he was commanded to open the door that was locked.
19. The trial court found the minor truthful and honest and that she had no reason to lie against the appellant. The trial court also relied on section 124 of the Evidence Act to admit PW1 evidence. It was thus found that the prosecution had proved that the appellant defiled the minor. The appellant was thus convicted for the offense of defilement and he was sentenced to 15 years imprisonment.
E. The Appeal
20. The appellant was aggrieved by the judgment of the trial court and lodged this appeal. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the sentence set aside. The appeal was heard by way of the parties submission as set out herein.
a) Appellant’s Submissions
21. The Appellant amended the grounds of appeal and set out five main grounds to wit: -
i. That, the learned trial magistrate erred in law and facts for failing to find that the prosecution failed to prove the alleged defilement.
ii. That the learned trial magistrate erred in law and facts for failing to find that the complainant (pw1) was not a credible person who could be trusted to have made an error free complaint.
iii. That the learned trial magistrate erred in law and facts for failing to consider that vital witnesses were never procured.
iv. That the learned trial magistrate erred in law and facts for failing to consider the inherent contradictions and inconsistencies that did not warrant conviction.
v. That, the learned trial magistrate erred in law and facts for failing to factor in the brutality accused faced during his arrest.
22. On the first and second ground, failure to establish the key ingredients of the offence and that PW1 who was not a credible witness, it was submitted that the age of the complainant was not proved beyond reasonable doubt. That PW1 was categorical that she was 18 years. That her evidence was adduced a month after he was charged. Further, that the mother of the complainant could not even state the age of the complainant and never adduced any tangible or cogent evidence to prove age of the complainant. That she did not even produce a birth certificate. He sought to rely on the following cases: Daniel Yugu v Republic (2018) eKLR; Abdihakin Abdow Abiqal vs Republic (2017) eKLR; Hillary Nyongesa v Republic (2010) eKLR; Edwin Nyambogo Onsongo vs Republic (2016) eKLR and JKB v Republic (2018) eKLR.
23. The appellant submitted that the age assessment copy was never availed to him and that age assessment probability is always a +/-2 year. Further, that the matter was handled unprocedurally because this was an expert witness’s evidence. Reference was made to section 48(1)(2) of the Evidence Act as well as the Court of Appeal case in Mutonyi vs Republic (1982)KLR 203. On these submissions, he urged this Court to find that the prosecution failed to prove the age of the complainant.
24. On whether there was penetration, the appellant submitted that there is a lot of doubts as to the credibility of the complainant’s evidence. She relied on the case of Biruri v Republic (2025) KECA 375 (KLR). It was the appellant’s submission that the medical documents used in court left a lot of unanswered questions. That the prosecution did not ascertain the linkage between the two parties to clear doubts that the appellant was the perpetrator of the alleged defilement. That the appellant was not subjected to medical examination to ascertain his linkage to the act. It was also submitted that the trial court misconceived the fact by relying on old torn hymen to prove penetration, yet hymens are not always broken by penile penetration. He urged the court to rule in his favour by finding that the prosecution failed to prove beyond reasonable doubt that there as penetration. The appellant relied upon the cases of John Mutua Munyoki v Republic (2017) eKLR and David Mwingirwa v Republic (2017) eKLR, among others.
25. It was further submitted that the spermatozoa found in the complainant genital were not linked to the appellant beyond reasonable doubt. That there is a possibility that she engaged in sexual intercourse on the way between the friend’s home and the appellant before 9pm when she met the appellant.
26. On identification, it was submitted that the complainant was not a credible witness, and that her evidence should not have been believed since her conduct of sneaking to take up a leso at late hours without her mother’s consent showed that she not a trustful person. Reference was made to the cases of Joo v Republic (2015) eKLR; Wamunga v Republic (1980) KLR 426; Ndungu Kinanyi v Republic (1979) KLR 282 and Elizabeth Waithiegeni Gatimu V Republic (2015)eKLR. He urged the Court to accord him the benefit of doubt since the perpetrator of the alleged defilement was never proved beyond reasonable doubt.
27. On the ground of failure by the prosecution side to procure vital witnesses, it was submitted that failure to call Maureen who was named by PW1 was prejudicial to his case as she would have shed light as to whether the complainant was telling the truth about the lesso and her friendship with her so as to ascertain whether PW1 was a credible witness. Further that the assistant chief as was also not called and all other people present at the scene were never called to write their statements.
28. On the ground of inherent contradiction and inconsistencies, it was submitted that PW5, the Investigating Officer seems to have heard a lot of superstitions and hearsays which if analyzed would amount to malicious investigations. That he talked of things which the complainant never talked about. While relying on the cases of Joseph Maina Mwangi v Republic CA No 73 of 1992 and Onubugu vs State 119741 9 S.C 1 KEM vs State (1985) 1 NWLR he urged the court to find in his favour.
29. On the ground of failure to factor in the brutality faced during his arrest, the appellant submitted that the trial court failed to consider his assertions that he was harassed and beaten during the arrest. That the judgment was silent on this issue.
30. The appellant concluded by urging the Court to find that the appeal is merited and proceed to allow it, and quash the conviction as the evidence presented fell short of what was expected in law
Respondent’s Submissions
31. The respondent opposed the appeal in its entirety asserting that the prosecution established and proved the offence of defilement as charged beyond reasonable doubt. That all the ingredients of defilement were proved and that the sentence imposed was lawful and should be affirmed.
32. It was submitted that age was proved by the age assessment report which put the complainant age at 17 years old. On penetration, it was submitted that there was spermatozoa seen on higher vaginal swab, and that this medical evidence supported the complainant’s evidence that she was defiled. As to the identity of the assailant, the respondent submitted that the same was proved beyond a shadow of doubt because the complainant was at all material times with the accused/appellant in his one roomed house where she was defiled. There was no one else in the room apart from herself and the assailant. That it was at dawn when their stay was interrupted by a knock on the door. That it was the appellant who opened the door for PW3 and PW4 leading to the discovery of the complainant within the said house. The appellant was arrested and escorted to the police station together with the complainant. The respondent urged that the chain of events remained uninterrupted and unbroken, thus the appellant is the one who defiled the complainant on the material night.
33. As regards the sentence, the respondent made reference to section 8(4) of the Sexual Offences Act to urge that the sentence was legal. Reference was made to the case of Shitula v Republic KECA 12 (KLR). They concluded by urging the Court to find that the appeal is unmerited and dismiss the same in its entirety.
F. Analysis and determination
34. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR.
35. Having considered the record of appeal as well as the submissions by parties, I discern the following issues for determination: -
a) Whether the offence of defilement was proved;
b) Whether there were contradictions and inconsistencies; and
c) Whether the sentence was harsh and excessive.
(a) Whether the offence of defilement was proved
36. In the case of George Opondo Olunga v Republic (2016) eKLR the ingredients for the offence of defilement were set out as: -
a. Proof of the age of the victim;
b. Proof of penetration or indecent act; and
c. Identification of the perpetrator.
37. Age is a core ingredient upon which the foundation of the offence of defilement is. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows: -
“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -
In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.
38. In this case, the charge sheet indicated that the minor was 17 years. While the complainant stated that she was 18 years while she was testifying, she never gave her date of birth. Her mother, PW2, stated that the birth certificate had been destroyed in a fire and she never stated the complainant’s age. However, an age assessment was conducted as testified by the investigating officer, PW5. The age assessment established that she was 17 years at the time of the alleged incident. The assessment report was produced as prosecution exhibit no. 2 by PW5, the police officer and its production was never challenged. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... 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.”
39. In this case, the people searching for a thief that stormed the appellant’s house stated that they found the appellant with a school child. It was based on this ‘apparent age’ of the minor that they informed the assistant chief. Upon the matter being reported to the police, PW5 caused an age assessment to be done and it confirmed that she was 17 years old. Consequently, I am satisfied that the age of the minor was proved by production of age assessment report and this first ingredient was proved.
40. On penetration, the appellant contents that the complainant was not a credible witness and as such her testimony ought not to have been accepted. Further that the medical evidence did not link him to the offence.
41. In the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the court stated thus: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
42. Am also cognizant of caution required in dealing with the testimony of a victim alone. The Court of Appeal in Chila v. Republic (1967) E.A 722 articulated this position thus: -
“The Judge should warn … himself of the danger of acting on uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless court is satisfied that there has been no failure of justice.”
43. In this case, I am not dealing with evidence of a single witness, but several. First PW1, gave an account of the incident. She clearly described how “someone” held her from the back, to her to his house and had sex with her. The trial court, that had the chance to see PW1 testify, at no time did it find her not a credible witness. Hence her evidence that she was ‘penetrated’ by a man who had sex with her remain unrebutted. This notwithstanding though, the girl was examined by PW6 who testified and confirmed that the hymen was torn, though an old tear; there was presence of a whitish discharge and more particularly, there was presence of spermatozoa. This confirmed that the girl had been recently penetrated for the spermatozoa to be there. The only available account of how the spermatozoa entered up in PW1’s vagina was given in her testimony, which evidence was not rebutted.
44. The upshot is that this Court finds that indeed PW1 was penetrated and the second ingredient was proved to the required standard.
45. Having established that the minor was penetrated, the next issue is the identity of the perpetrator. It is common ground that both the complainant and the appellant were found in the appellant’s house. PW3 and PW4 testified how they found a minor, PW1, in the house of the appellant when they went knocking looking for a thief. In his defence, that appellant confirmed that the complainant was in his ‘compound’, though he gives a different version, that she had gone for water. The appellant in his defence also confirmed that the complainant was a neighbour. Consequently, I find that the identity of the appellant as the perpetrator was proved to the required standard. The girl was found locked up with him in his house.
46. Consequently, as to whether the prosecution proved all the ingredients of defilement, I find that they were proved and this ground lacks merit.
(b) Whether there were contradictions and inconsistencies
47. The appellant alleged that the prosecution’s case was marred with contradictions and irregularities. That the evidence of PW5, the investigation officer was full of hearsay. That she stated things which PW1 did not state in her testimony. I have thoroughly perused the record. First, an investigation officer’s testimony is generally hearsay evidence as she states what was told to her in the course of the investigations. She summaries the evidence of all witnesses as was gathered during investigations. That is why in most cases, as a matter of good practice, an investigating officer testifies last. In some cases, an investigating officer will interview many people before narrowing down on the witnesses. She may also be told a lot of versions of the events. It is only good practice that she states all that she gathered, and the court decides.
48. In this matter, the investigating officer stated her testimony on how she investigated the case and identified witnesses. Those witnesses testified before court. They were direct witnesses and there were no contradictions in their testimonies, especially PW3 and PW4. I find no contradiction in the evidence of PW5 and that of the complainant.
49. Consequently, I find the allegations of contradictions and inconsistencies in the prosecution case to be without merit. I am fortified in my finding by the fact that not all contradictions and inconsistencies are fatal to the prosecution case. The contradictions must be grave as to go to the core of the prosecution’s case and prejudice the accused person. The alleged contradictions, if any, are too remote in this case. I find that this ground lacks merit.
50. It was also argued that a crucial witness, Maureen, was not called to testify. From the evidence on record, PW1 stated that she had gone to pick a lesso from Maureen but did not find her. That on her way back is when the appellant accosted her and took her to his place. In her testimony, she never stated that there was anyone else in the house, save for the appellant. The appellant himself never stated that Maureen was with him or the complainant, when the complainant gave to “ask for water” as he alleged. Consequently, Maureen was not a crucial witness. She was never at the scene, and her testimony would not have aided the appellant in any way. This ground of appeal thus fails.
51. Ultimately, I find that the prosecution proved its case against the appellant to the required standard and his conviction was safe. I find no reason to disturb it.
(c) Whether the sentence was harsh and excessive
52. As to whether the sentence was harsh and excessive, Section 8(4) of the Sexual Offenses Act provides: -
“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.”
53. While there has been judicial discourse on constitutionality of the minimum mandatory sentences under the Sexual Offences Act, the Supreme Court settled the issue in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) where it overturned the decision of the Court of Appeal which had found Section 8 of the Act to be unconstitutional for prescribing a mandatory minimum sentence upon conviction. The Supreme Court upheld the constitutionality of the said law and this Court is bound by such precedent. The Supreme Court held that: -
“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed. ”
54. Consequently, the trial court having meted out the mandatory minimum sentence provided in law, the same sentence cannot be said to be harsh and excessive. This ground has no merit.
55. The upshot is that the appeal is found to be without merit and it is dismissed in its entirety.
Orders accordingly
Dated, Signed and Delivered, this 6th day of March 2026
A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of defilement contrary to section 8(1) as read together with section 8 (4) of the Sexual Offences Act, Cap 63A has lodged this appeal. He seeks that his conviction be quashed and the 15 years imprisonment sentence set aside.
2. The appeal is premised on three (3) grounds which I reproduce as follows, THAT: -
i. The learned trial magistrate erred in both law and fact by not considering the defence;
ii. The learned trial magistrate erred in matters of law and fact by convicting me despite the uncollaborative and inconsistent evidence; and
iii. The honourable court issue any other orders as it deems fit in the circumstance.
B. Background
3. Before the trial court, the appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 5th and 6th day of August 2023 at Mathima village, Kivaani Location in Kangundo Sub County within Machakos County intentionally and unlawfully caused his penis to penetrate the vagina of F.M a child aged 17 years.
4. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act (herein after, “the Act”). The particulars were that on diverse dates between 5th and 6th day of August 2023 at Mathima village, Kivaani Location in Kangundo Sub County within Machakos County, he intentionally and unlawfully touched the vagina of F.M., a child aged 17 years.
5. He pleaded not guilty and to prove its case, the prosecution called six (6) witnesses.
C. Prosecution case
6. The Complainant, F.M. testified as PW1. She stated that she was 18 years old and she had finished class 8. It was her testimony that she had gone for a lesso at her friend’s (Maureen) place in Kitange. She did not find her and decided to wait. While returning home, she felt someone holding her, he carried her to his house. That it was around 9pm. The person approached her from behind took her to his house and did bad manners to her. It was her evidence that he had sex three times, on the bed. That she was lying facing up, her legs were wide apart and the man was on top of her. The man used his manhood without protection. That there was no light in the house but it was not too dark.,
7. PW1 explained that the man removed her panty, pulled her dress, removed his trouser and remained with his shirt. She identified the man as the accused by pointing at him. She stated that she did not know the man before and only knew him at the time.
8. PW1 testified that there were people who came to the house who were looking for thieves. They came searched the house, found her and took her to Nagai’s place where other people had been arrested. Later they were taken to Kivaani Police Station where she was interrogated and taken to hospital, examined and treated. The police recorded her statement. She stated that she did not know the people who found her. PW1 described the appellant’s house as one roomed stone house and that she was able to see his face as he lit a candle before putting it off. Again that at the point of rescue, they were taken to the police station together.
9. PW2, Pascalina Syombua, the minor’s mother testified that she went to a marriage function and left PW1 at home with instructions to do house chores. On returning she did not find her and was informed that she had gone to collect a leso. They decided to wait for her but later went to look for her. They did not find her and reported to the assistant chief. That the next day a child requested her to go see Anastacia at the kiosk. On reaching there she found the appellant, PW1 and many people. That the assistant Chief came and the appellant and PW1 were taken to the police station and later referred to the hospital for the doctor to confirm if penetrative sex had taken place. She identified the person found with her daughter as the appellant who was on the dock. She also stated that she could not remember when PW1 was born since her birth certificate got burnt at her grandmother’s house.
10. PW3, Bernard Mbithi Musau, stated that they were looking for a maize thief who had been seen walking towards the accused homestead. They went there and looked around and that is when they heard voices in the appellant’s house. They asked him to open. He took time and when he opened, they entered the house to look for the thief but instead found PW1. They told her to come out and alerted the assistant chief who came. The appellant was then taken to the police station for being with a school child. He confirmed finding PW1 in the house of the appellant and that he knew the appellant from before.
11. PW4 Patrick Munda Mutiso evidence mirrored that of PW3. He stated that they were searching for a thief within the village when they were told that the thief is in the appellant’s homestead. On arriving at the homestead, they heard the radio and knocked on the door. The appellant opened and on searching found him with PW1. That they arrested the appellant who was interrogated by the assistant chief, who then advised that they take him to Kavaani Police Station. He identified the appellant as the person who was found with the girl (PW1). He also stated that the appellant was like his son.
12. PW5, PC Mariam Wangechi, the investigating officer, stated that on 5/8/23 the case was reported and took over the investigations. She stated that in her investigations, she established that the complainant was at home and left the house. That she met the appellant and started talking. That the appellant pulled PW2 into his house. That the road was near his house. The appellant then undressed the complainant and defiled her without using a condom. It had become dark as it was heading to 7pm and the complainant slept in the accused house. That at midnight, the appellant defiled her again. That the complainant tried screaming but the appellant covered her mouth. In the morning, the complainant heard noises outside, and heard the door being knocked. The door was opened. People were looking for thieves and found the child in the house. They interrogated both the appellant and the complainant where it was established that the appellant pulled PW1 from the road and defiled her. They brought them to Kivaani police post.
13. It was her evidence that she took the complainant to hospital and the doctor established defilement. An age assessment was done which showed the age of the child as 17 years. The age assessment report was produced as Prosecution Exhibit No 2. She then proceeded to charge the appellant as the person who defiled the minor. The appellant was identified as the person on the dock.
14. PW6 Dennis Otwal identified himself as a doctor at Kangundo Level 4 Hospital. That he was at work when a girl was brought on allegation of sexual assault. She was 17 years old. He interrogated the girl who told him that she had engaged in sex. On examination, he established the following; normal genital; hymen old torn; whitish discharge. That a laboratory test was done for HIV, pregnancy, VDRL and they were negative. However, spermatozoa were seen on high vaginal swap, infection noted on urinalysis, she was given PEP and antibiotics. PW6 produced the P3 Form as Prosecution Exhibit No. 1.
15. The prosecution closed its case and upon evaluation of the evidence on record, the trial court found a prima facie case had been established and placed the appellant on his defence. Upon being put on his defence, the appellant gave unsworn testimony and did not call any witnesses
D. Defence case
16. DW1, the appellant, in his defence, gave unsworn evidence and stated that he was 58 years old and a farmer. That on 6th August 2023, PW1 went to his house and asked for water. That he had no issue since she was a neighbor. That some people went looking for a thief and found the girl in his compound. They claimed that he was doing something bad which he denied. That he was then detained and harassed. That the chief asked them not to beat him and agreed to being taken to the chief’s office with the girl. That is where they found the girl’s mother. He stated that the people who arrested him did not come to court.
17. Upon evaluation of the entire evidence on record, the trial court rendered its judgment in which it identified four issues for determination: the age of PW1, whether there was penetration, whether PW1’s vagina was touched; and whether the appellant was properly identified. On age, the trial court found that based on the age assessment report dated 7th August 2023 showing her probable age to be 17 years old, the prosecution had proved that PW1 was a minor aged 17 years. On penetration, and whether PW1 vagina was touched, the trial court found that the minor testified that she had sex severally with the appellant and that her testimony was corroborated by that of PW4, the clinical officer who produced the medical documents which confirmed that her hymen was torn and old, spermatozoa was present on high vaginal swap. Thus, there was enough evidence of penetration and it was found that the minor was defiled.
18. On the fourth issue, that is whether the appellant was the culprit, the trial court found that there was no dispute that PW1 was found in the house of the appellant. That this was corroborated by PW3 and PW4 who informed the trial court that they were looking for a thief when they heard noises in the house of the appellant and on entering, they found PW1. Further that PW1 stated that she was defiled and this evidence was corroborated by PW6. The trial court also considered the appellant evidence and found it unconvincing since PW1 was found in his house after he was commanded to open the door that was locked.
19. The trial court found the minor truthful and honest and that she had no reason to lie against the appellant. The trial court also relied on section 124 of the Evidence Act to admit PW1 evidence. It was thus found that the prosecution had proved that the appellant defiled the minor. The appellant was thus convicted for the offense of defilement and he was sentenced to 15 years imprisonment.
E. The Appeal
20. The appellant was aggrieved by the judgment of the trial court and lodged this appeal. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the sentence set aside. The appeal was heard by way of the parties submission as set out herein.
a) Appellant’s Submissions
21. The Appellant amended the grounds of appeal and set out five main grounds to wit: -
i. That, the learned trial magistrate erred in law and facts for failing to find that the prosecution failed to prove the alleged defilement.
ii. That the learned trial magistrate erred in law and facts for failing to find that the complainant (pw1) was not a credible person who could be trusted to have made an error free complaint.
iii. That the learned trial magistrate erred in law and facts for failing to consider that vital witnesses were never procured.
iv. That the learned trial magistrate erred in law and facts for failing to consider the inherent contradictions and inconsistencies that did not warrant conviction.
v. That, the learned trial magistrate erred in law and facts for failing to factor in the brutality accused faced during his arrest.
22. On the first and second ground, failure to establish the key ingredients of the offence and that PW1 who was not a credible witness, it was submitted that the age of the complainant was not proved beyond reasonable doubt. That PW1 was categorical that she was 18 years. That her evidence was adduced a month after he was charged. Further, that the mother of the complainant could not even state the age of the complainant and never adduced any tangible or cogent evidence to prove age of the complainant. That she did not even produce a birth certificate. He sought to rely on the following cases: Daniel Yugu v Republic (2018) eKLR; Abdihakin Abdow Abiqal vs Republic (2017) eKLR; Hillary Nyongesa v Republic (2010) eKLR; Edwin Nyambogo Onsongo vs Republic (2016) eKLR and JKB v Republic (2018) eKLR.
23. The appellant submitted that the age assessment copy was never availed to him and that age assessment probability is always a +/-2 year. Further, that the matter was handled unprocedurally because this was an expert witness’s evidence. Reference was made to section 48(1)(2) of the Evidence Act as well as the Court of Appeal case in Mutonyi vs Republic (1982)KLR 203. On these submissions, he urged this Court to find that the prosecution failed to prove the age of the complainant.
24. On whether there was penetration, the appellant submitted that there is a lot of doubts as to the credibility of the complainant’s evidence. She relied on the case of Biruri v Republic (2025) KECA 375 (KLR). It was the appellant’s submission that the medical documents used in court left a lot of unanswered questions. That the prosecution did not ascertain the linkage between the two parties to clear doubts that the appellant was the perpetrator of the alleged defilement. That the appellant was not subjected to medical examination to ascertain his linkage to the act. It was also submitted that the trial court misconceived the fact by relying on old torn hymen to prove penetration, yet hymens are not always broken by penile penetration. He urged the court to rule in his favour by finding that the prosecution failed to prove beyond reasonable doubt that there as penetration. The appellant relied upon the cases of John Mutua Munyoki v Republic (2017) eKLR and David Mwingirwa v Republic (2017) eKLR, among others.
25. It was further submitted that the spermatozoa found in the complainant genital were not linked to the appellant beyond reasonable doubt. That there is a possibility that she engaged in sexual intercourse on the way between the friend’s home and the appellant before 9pm when she met the appellant.
26. On identification, it was submitted that the complainant was not a credible witness, and that her evidence should not have been believed since her conduct of sneaking to take up a leso at late hours without her mother’s consent showed that she not a trustful person. Reference was made to the cases of Joo v Republic (2015) eKLR; Wamunga v Republic (1980) KLR 426; Ndungu Kinanyi v Republic (1979) KLR 282 and Elizabeth Waithiegeni Gatimu V Republic (2015)eKLR. He urged the Court to accord him the benefit of doubt since the perpetrator of the alleged defilement was never proved beyond reasonable doubt.
27. On the ground of failure by the prosecution side to procure vital witnesses, it was submitted that failure to call Maureen who was named by PW1 was prejudicial to his case as she would have shed light as to whether the complainant was telling the truth about the lesso and her friendship with her so as to ascertain whether PW1 was a credible witness. Further that the assistant chief as was also not called and all other people present at the scene were never called to write their statements.
28. On the ground of inherent contradiction and inconsistencies, it was submitted that PW5, the Investigating Officer seems to have heard a lot of superstitions and hearsays which if analyzed would amount to malicious investigations. That he talked of things which the complainant never talked about. While relying on the cases of Joseph Maina Mwangi v Republic CA No 73 of 1992 and Onubugu vs State 119741 9 S.C 1 KEM vs State (1985) 1 NWLR he urged the court to find in his favour.
29. On the ground of failure to factor in the brutality faced during his arrest, the appellant submitted that the trial court failed to consider his assertions that he was harassed and beaten during the arrest. That the judgment was silent on this issue.
30. The appellant concluded by urging the Court to find that the appeal is merited and proceed to allow it, and quash the conviction as the evidence presented fell short of what was expected in law
Respondent’s Submissions
31. The respondent opposed the appeal in its entirety asserting that the prosecution established and proved the offence of defilement as charged beyond reasonable doubt. That all the ingredients of defilement were proved and that the sentence imposed was lawful and should be affirmed.
32. It was submitted that age was proved by the age assessment report which put the complainant age at 17 years old. On penetration, it was submitted that there was spermatozoa seen on higher vaginal swab, and that this medical evidence supported the complainant’s evidence that she was defiled. As to the identity of the assailant, the respondent submitted that the same was proved beyond a shadow of doubt because the complainant was at all material times with the accused/appellant in his one roomed house where she was defiled. There was no one else in the room apart from herself and the assailant. That it was at dawn when their stay was interrupted by a knock on the door. That it was the appellant who opened the door for PW3 and PW4 leading to the discovery of the complainant within the said house. The appellant was arrested and escorted to the police station together with the complainant. The respondent urged that the chain of events remained uninterrupted and unbroken, thus the appellant is the one who defiled the complainant on the material night.
33. As regards the sentence, the respondent made reference to section 8(4) of the Sexual Offences Act to urge that the sentence was legal. Reference was made to the case of Shitula v Republic KECA 12 (KLR). They concluded by urging the Court to find that the appeal is unmerited and dismiss the same in its entirety.
F. Analysis and determination
34. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR.
35. Having considered the record of appeal as well as the submissions by parties, I discern the following issues for determination: -
a) Whether the offence of defilement was proved;
b) Whether there were contradictions and inconsistencies; and
c) Whether the sentence was harsh and excessive.
(a) Whether the offence of defilement was proved
36. In the case of George Opondo Olunga v Republic (2016) eKLR the ingredients for the offence of defilement were set out as: -
a. Proof of the age of the victim;
b. Proof of penetration or indecent act; and
c. Identification of the perpetrator.
37. Age is a core ingredient upon which the foundation of the offence of defilement is. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows: -
“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -
In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.
38. In this case, the charge sheet indicated that the minor was 17 years. While the complainant stated that she was 18 years while she was testifying, she never gave her date of birth. Her mother, PW2, stated that the birth certificate had been destroyed in a fire and she never stated the complainant’s age. However, an age assessment was conducted as testified by the investigating officer, PW5. The age assessment established that she was 17 years at the time of the alleged incident. The assessment report was produced as prosecution exhibit no. 2 by PW5, the police officer and its production was never challenged. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... 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.”
39. In this case, the people searching for a thief that stormed the appellant’s house stated that they found the appellant with a school child. It was based on this ‘apparent age’ of the minor that they informed the assistant chief. Upon the matter being reported to the police, PW5 caused an age assessment to be done and it confirmed that she was 17 years old. Consequently, I am satisfied that the age of the minor was proved by production of age assessment report and this first ingredient was proved.
40. On penetration, the appellant contents that the complainant was not a credible witness and as such her testimony ought not to have been accepted. Further that the medical evidence did not link him to the offence.
41. In the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the court stated thus: -
“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
42. Am also cognizant of caution required in dealing with the testimony of a victim alone. The Court of Appeal in Chila v. Republic (1967) E.A 722 articulated this position thus: -
“The Judge should warn … himself of the danger of acting on uncorroborated testimony of the complainant, but having done so he may convict in the absence of corroboration if he is satisfied that her evidence is truthful. If no such warning is given, then the conviction will normally be set aside unless court is satisfied that there has been no failure of justice.”
43. In this case, I am not dealing with evidence of a single witness, but several. First PW1, gave an account of the incident. She clearly described how “someone” held her from the back, to her to his house and had sex with her. The trial court, that had the chance to see PW1 testify, at no time did it find her not a credible witness. Hence her evidence that she was ‘penetrated’ by a man who had sex with her remain unrebutted. This notwithstanding though, the girl was examined by PW6 who testified and confirmed that the hymen was torn, though an old tear; there was presence of a whitish discharge and more particularly, there was presence of spermatozoa. This confirmed that the girl had been recently penetrated for the spermatozoa to be there. The only available account of how the spermatozoa entered up in PW1’s vagina was given in her testimony, which evidence was not rebutted.
44. The upshot is that this Court finds that indeed PW1 was penetrated and the second ingredient was proved to the required standard.
45. Having established that the minor was penetrated, the next issue is the identity of the perpetrator. It is common ground that both the complainant and the appellant were found in the appellant’s house. PW3 and PW4 testified how they found a minor, PW1, in the house of the appellant when they went knocking looking for a thief. In his defence, that appellant confirmed that the complainant was in his ‘compound’, though he gives a different version, that she had gone for water. The appellant in his defence also confirmed that the complainant was a neighbour. Consequently, I find that the identity of the appellant as the perpetrator was proved to the required standard. The girl was found locked up with him in his house.
46. Consequently, as to whether the prosecution proved all the ingredients of defilement, I find that they were proved and this ground lacks merit.
(b) Whether there were contradictions and inconsistencies
47. The appellant alleged that the prosecution’s case was marred with contradictions and irregularities. That the evidence of PW5, the investigation officer was full of hearsay. That she stated things which PW1 did not state in her testimony. I have thoroughly perused the record. First, an investigation officer’s testimony is generally hearsay evidence as she states what was told to her in the course of the investigations. She summaries the evidence of all witnesses as was gathered during investigations. That is why in most cases, as a matter of good practice, an investigating officer testifies last. In some cases, an investigating officer will interview many people before narrowing down on the witnesses. She may also be told a lot of versions of the events. It is only good practice that she states all that she gathered, and the court decides.
48. In this matter, the investigating officer stated her testimony on how she investigated the case and identified witnesses. Those witnesses testified before court. They were direct witnesses and there were no contradictions in their testimonies, especially PW3 and PW4. I find no contradiction in the evidence of PW5 and that of the complainant.
49. Consequently, I find the allegations of contradictions and inconsistencies in the prosecution case to be without merit. I am fortified in my finding by the fact that not all contradictions and inconsistencies are fatal to the prosecution case. The contradictions must be grave as to go to the core of the prosecution’s case and prejudice the accused person. The alleged contradictions, if any, are too remote in this case. I find that this ground lacks merit.
50. It was also argued that a crucial witness, Maureen, was not called to testify. From the evidence on record, PW1 stated that she had gone to pick a lesso from Maureen but did not find her. That on her way back is when the appellant accosted her and took her to his place. In her testimony, she never stated that there was anyone else in the house, save for the appellant. The appellant himself never stated that Maureen was with him or the complainant, when the complainant gave to “ask for water” as he alleged. Consequently, Maureen was not a crucial witness. She was never at the scene, and her testimony would not have aided the appellant in any way. This ground of appeal thus fails.
51. Ultimately, I find that the prosecution proved its case against the appellant to the required standard and his conviction was safe. I find no reason to disturb it.
(c) Whether the sentence was harsh and excessive
52. As to whether the sentence was harsh and excessive, Section 8(4) of the Sexual Offenses Act provides: -
“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.”
53. While there has been judicial discourse on constitutionality of the minimum mandatory sentences under the Sexual Offences Act, the Supreme Court settled the issue in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) where it overturned the decision of the Court of Appeal which had found Section 8 of the Act to be unconstitutional for prescribing a mandatory minimum sentence upon conviction. The Supreme Court upheld the constitutionality of the said law and this Court is bound by such precedent. The Supreme Court held that: -
“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed. ”
54. Consequently, the trial court having meted out the mandatory minimum sentence provided in law, the same sentence cannot be said to be harsh and excessive. This ground has no merit.
55. The upshot is that the appeal is found to be without merit and it is dismissed in its entirety.
Orders accordingly
Dated, Signed and Delivered, this 6th day of March 2026