(Being an appeal from the Judgment of Hon. D.N. Sure (P.M) at Kangundo Court Sexual Offence Case No. E026 of 2023 delivered on 27th March 2024 )
A. Introduction
1. The appellant being aggrieved by the decision of the trial court which convicted him for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act Cap 63A has lodged this appeal. He seeks to have his conviction quashed and the 20 years imprisonment sentence set aside.
2. The appeal is premised on the following grounds, that the Learned Trial Magistrate erred in law and fact by failing to find that the prosecution case was marred with material inconsistencies and contradictions which went to the root of the charges; failed to find that the legal burden against the Appellant was not established due to the weak evidence that was adduced; failing to properly consider the cogent defence, which reasonably exonerated the Appellant from the commission of the alleged offence; the sentence of twenty years imprisonment imposed was manifestly harsh, excessive and contrary to recent jurisprudence on mandatory minimum sentences.
B. Background
3. Before the trial court, the appellant was charged with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act. The particulars of the offence were that on 16th September 2023 at Katine area in Matungulu Sub-county within Machakos County, he intentionally and unlawfully caused his penis to penetrate the anus of S.M.M, a child aged 14 years. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the alternate charge were that on 16th September 2023 at Katine area in Matungulu Sub County within Machakos County, intentionally and unlawfully touched the anus of S.M.M, a child aged 14 years with his penis.
4. The appellant pleaded not guilty to all the charges and to prove its case, the prosecution called 4 witnesses.
C. Prosecution case
5. PW1, John Mutua, a clinical officer attached to Kimiti Level 4 Hospital and previously stationed at Kangundo Level 4 Hospital, stated that on 16th September 2023, a 14year old male patient was brought to the hospital with a history of having been sodomized. PW1 noted that the patient was in fair general condition, with bruise at 12 o’clock position in the anus. Laboratory tests VDRL and urinalysis were negative, and no spermatozoa were detected. The patient was given PEP and referred to post-trauma counselling.
6. The court marked the P3 as Exhibit 1, treatments notes as Exhibit 2 and the lab test as Exhibit 3. Upon cross examination, PW1clarified that he did not identify the accused as the perpetrator, he only examined the complainant who had injuries on his anus.
7. The victim, PW2, S.M.M a minor aged 14 years gave sworn evidence after the court satisfied itself of his understanding of the duty to tell the truth. He testified that he was a Grade 8 pupil at St. Mary’s Tala Boys School. On 16th September 2023 at about 4.00 p.m., while on his way to collect a neck chain from his friend Kelvin, he was accosted at Silanga area. Someone covered his face and mouth, pulled him into a forested, bushy area, removed his trouser and inserted something into his buttocks.
8. After the assailant finished, he pulled up his trousers and uncovered his face. PW2 testified that he was then able to see the perpetrator clearly as visibility was good. He recognized the assailant as a person who used to teach them music at school. He further stated that by then the perpetrator had already covered his private parts and was just looking at him.
9. PW2 stated that he proceeded to his friend Kelvin’s home and informed him of what had happened. Kelvin escorted him to Tala Police Station where he made a report and was advised to call his parent. He informed his mother and together they returned to the police station. He was thereafter taken to Kangundo Level 4 Hospital where he was examined and later released. He subsequently recorded his statement with the police. In court, he identified the accused person in the dock as the person who sodomized him, reiterating that visibility was good and he was able to recognize the assailant when his face was uncovered.
10. Upon cross-examination, PW2 stated that he had gone to collect a chain from Kelvin, but the chain was not produced in court. He testified that he was pulled from a public road, which is at times busy and at times not. He stated that the accused held him from behind and a red kikoi to cover his face and mouth, preventing him from screaming. He estimated that the incident took about five minutes, though he did not have a watch to confirm the exact time.
11. PW2 further testified that upon reaching Kelvin’s home, he did not find Kelvin’s parents but informed Kelvin of what transpired, and he took him to the police station. He confirmed that Kevin is a witness in the case. He stated that he did not know the exact time they reached the police station or the distance between the police post and home. He added that he only knew the accused as their music teacher and also as someone who sold chicken. He clarified that they did not attend tuition on Saturday and denied ever reporting the accused to the chief with his mother regarding chickens.
12. PW3, Mary Kanini Wa Musyoka, testified that she resides in Katine. She stated that on 16th September 2023 at about 4.30 p.m., while she was at work, a neighbour telephoned her and informed her that her son had been held and raped. She immediately rushed home where her son narrated to her that his face had been covered and that he had been raped. He further told her that after his face was uncovered, he recognized the person who had raped him. PW3 testified that her son informed her that he had reported the matter at Tala Police Station and had been advised to go and call his parent. She accompanied him to the police station where they recorded the report. They were thereafter referred to hospital where her son was examined. She stated that she gave the police her son’s birth certificate, which was marked as MFI4. She further testified that her son mentioned a person called Michael as the perpetrator, whom she did not previously know. She, however, stated that she saw the said person at the police post and that she used to see him selling chicken in the market.
13. In cross-examination, PW3 stated that she did not personally know the accused but used to see him selling chicken. She added that her son had informed her that the accused used to teach them music. She testified that she was later referred to Nguluni Health Centre for additional medication. She stated that she did not know the specific bushy area where the accused allegedly took her son. She denied ever asking the accused for Kshs 50,000/= or telling him to take her to Mavoloni to see her sister, maintaining that she does not have a sister in Mavoloni. She also denied ever reporting any case against the accused to the chief. PW3 further stated that she did not know whether the accused taught her son at St. Mary’s. She confirmed that she was aware her son had gone to collect a chain on the material day and that she had left him at home in the morning after he informed her of his intention to collect it. She testified that she received a telephone call at about 4.00 p.m. alerting her of the incident. She added that the chain remained at home and that no one had asked her to produce it in court.
14. PW4, Police Constable Trifonia Mwonyolo, Number 94864, attached to Tala Police Station, testified that on 16th September 2023 in the evening, a case of defilement was reported at the station. She was directed to investigate the matter. She testified that upon commencing investigations, she established that the complainant had left his home in Katine heading to Tala to see a friend. On reaching the Silanga area, he was attacked from behind and his entire face was covered with a kikoi. He was pulled into a bushy area next to the road where he was defiled. She stated that the complainant was made to bend, his trousers and innerwear were pulled down, and his anus was penetrated. The complainant felt pain and was unable to scream because his mouth was covered. After the act, his face was uncovered and he recognized the assailant as his music teacher at school, who was also a chicken trader at Tala Market.
15. PW4 further testified that the complainant went to his friend’s place and informed him of what had transpired. The friend escorted him to the police station, where they were instructed to bring his mother, which they did. She took the complainant to Kangundo Level 4 Hospital where he was examined and a P3 Form was filled. She stated that the accused was subsequently arrested with the assistance of the area chief and village elder and that the scene was visited. She produced the complainant’s birth certificate as Prosecution Exhibit4 to confirm that he was a minor at the time of the incident.
16. Upon cross-examination, PW4 stated that she was the investigating officer but was not the officer who visited the scene. She testified that an officer from Tala who visited the scene informed her that there were trees in the area and that the road near the scene is a public road. She stated that it was possible for a person to be defiled in that area without members of the public noticing. She further stated that the complainant, being a young child, was overpowered and had not anticipated the attack so as to defend himself. She confirmed that the complainant identified the accused as the person who defiled him. Although the complainant was able to walk, he was in pain.
17. PW4 stated that she was not among the officers who arrested the accused and that she did not know how the accused’s children reacted to his arrest. She testified that while she had not specified the exact time the complainant went to the police station, it was in the evening hours. She testified that in the OB, it shows that he reported at 5:45p.m but this was subject to the time he was reached if there were other people.
18. With these 4 witnesses, the prosecution closed its case. The trial court analysed the evidence and found that the prosecution had establish a prima facie case and placed the appellant on his defence. He chose to give a sworn statement and called no witnesses.
D. Defence case
19. DW1, Nicholas Nzioka Muli, testified that he resides in Tala and is a chicken trader. He stated that although he could not recall the exact date, he knew the complainant’s mother in connection with a land transaction in which he had sold his land. He testified that the complainant’s mother approached him and asked for Kshs 100,000/= but he told her to wait. He asserted that the present case arose from that disagreement. DW1 further stated that the complainant’s mother had previously made false allegations against him including claims that he had stolen her chickens. He testified that at one point he was almost lynched over the alleged theft until one Pius Nzioka intervened and explained the source of the chickens in question.
20. Upon cross-examination, DW1 stated that the complainant’s mother wanted to befriend him. He alleged that she sought money from him after learning that he had sold his land to educate his child at university. He further stated that the complainant’s mother did not ask him for money in relation to the child nor did she ask him for a romantic relationship.
21. After the close of the defence case. judgment was delivered on 27th March 2024 convicting the appellant on the first count of defilement. On sentencing the trial court sentenced him to serve 20 years imprisonment running from 18th September 2023 when the accused took plea.
E. The Appeal
22. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the 20 years imprisonment sentence set aside. The appeal was canvased by way of submissions. The appellant relies on his submissions dated 25th April 2025 and rebuttal submissions dated 18th November 2025 while the respondent sought to rely on its submissions dated 27th October 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
23. The Appellant urges this court to quash both conviction and sentence. in support, he cites Fappyton Mutuku Ngui v Republic Criminal Appeal No. 296 of 2010 and Charles Wamukoya v Republic Criminal Appeal No. 72 of 2013, submitting that the essential ingredients of the offence of defilement are proof of the complainant’s age, proof of penetration, and positive identification of the assailant. He contends that the prosecution failed to establish these elements beyond reasonable doubt.
24. On penetration, the Appellant argues that the medical evidence did not prove penetration. He notes that although PW1 testified to observing a bruise at the 12 o’clock position of the anus, laboratory results were negative for spermatozoa and other findings. He further submits that the P3 Form was not produced in court and that a bruise alone cannot amount to proof of penetration. He emphasized that the complainant stated that he “felt something” inserted into his buttocks without confirming that it was a male organ. In support, he relies on Michael Mugo Musyoka versus Republic [2015] eKLR.
25. On identification, the Appellant contends that this was a case of mistaken identity. He submits that the complainant was attacked from behind, his face was covered with a kikoi, and that he only allegedly saw the assailant after the act, when the person was already dressed. He argues that the circumstances were not conducive to positive identification and relies on Weeder v Republic Cr. App. No. 228 of 1980 (unreported) on the dangers of mistaken identification. He further asserts that the first report did not clearly implicate him.
26. The Appellant also argues that the trial court failed to properly evaluate his defence, including his alibi. He maintains that the case against him was based on suspicion rather than cogent evidence. He submits that suspicion, however strong, cannot found a conviction. He relies on Mwangi v Republic [1983] KLR 75 on circumstantial evidence submitting that the evidence presented did not exclude other hypotheses consistent with innocence. He also cites Suleiman Juma alias Tom v Republic [2013] eKLR and JOO v Republic [2015] eKLR for the principle that it is better to acquit several guilty persons than to convict one innocent person.
27. In conclusion, the Appellant prays that the conviction be quashed and the sentence set aside. In the alternative, he seeks that the period already served in custody from 17th September 2023 be taken into account pursuant to Section 333(2) of the Criminal Procedure Code. He further prays for a reduced or non-custodial sentence or any other order the court may deem just and appropriate.
b) Respondent’s Submissions
28. The Respondent opposes the appeal and submits that the conviction and sentence imposed by the trial court were proper, lawful and supported by the evidence on record.
29. On identity, the Respondent submits that PW2 testified that the incident occurred at 4p.m when visibility was perfect.PW2 further stated that he previously knew the assailant as a music teacher at his school and a chicken seller. Since they were alone in the bush, there was no doubt that the appellant was properly identified.
30. On penetration, the Respondent refers to Section 2 of the Sexual Offences Act on the definition of penetration and genital organs. The Respondent submitted that PW1 medically examined the complainant after the alleged incident and testified that there was an injury at 12 o’clock position in the anus, which was indicative of penetration of the anus. The Respondent submitted that the circumstances surrounding the commission of the offence unerringly points to sodomy. The prosecution made reference to Section 33 of the Sexual Offences Act and the case of Safari Chengo versus Republic [2019] eKLR.
31. The Respondent further submitted that it is not true that the Appellant had adduced an alibi defence as the proceedings attest otherwise. In conclusion, the Respondent submit that the appeal is entirely unfounded; Section 333 (2) of the Civil Procedure Code was complied with by the trial court and therefore the Respondent seeks that the court upholds the conviction and sentenced as passed.
c) Appellant’s rebuttal submissions
32. In his rebuttal submissions, the Appellant contends that the prosecution failed to prove both identification and penetration which are essential elements in a defilement case.
33. On identification, the Appellant submits that the complainant’s prior familiarity with him as a music teacher and chicken seller does not establish that he was the person who allegedly committed the offence. He reiterates that he was not present at the scene on the day of the alleged incident and maintains that this is a case of mistaken identity. He further argues that the first report made by the complainant does not implicate him. The Appellant challenges the plausibility of the alleged attack, noting that a single person could not simultaneously cover the complainant’s face, restrain him, remove his clothing and commit the act. He therefore submits that the prosecution failed to establish positive identification, and he is entitled to the benefit of the doubt.
34. On penetration, the Appellant submits that the medical evidence does not support proof of defilement. He refers to PW1’s testimony that the complainant had a bruise at the 12 o’clock position of the anus was in fair condition, tested negative for VDRL and urinalysis and no spermatozoa were found. The Appellant points out that the P3 Form which is critical in establishing penetration was not produced in court. He also notes that the complainant himself could not identify what was inserted into his anus, and the medical evidence does not confirm penetration of a male genital organ. He emphasizes that a bruise alone cannot constitute proof of penetration.
35. The Appellant concludes that both identification and penetration were not proven beyond reasonable doubt. He therefore prays that the court allows the appeal in its entirety, quashes the conviction, and sets aside the sentence.
F. Analysis and determination
36. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence presented before the trial court and arrive at its own independent conclusion. However, in doing the court must remain mindful that it did not see or hear 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.
37. Having considered the record of appeal as well as the submissions by both parties, I discern the following issues for determination:
a) Whether the offence of defilement was proved beyond reasonable doubt;
b) Whether the sentence was harsh
a. Whether the offence of defilement was proved
38. Section 8(1) of the Sexual Offences Act provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. Section 8(3) further stipulates that 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.
39. 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;
c) Identification of the perpetrator.
40. On age, proof of age is a critical component of the offence of defilement as it determines not only culpability but also the applicable sentence. PW4 produced the complainant’s birth certificate as Prosecution Exhibit4 which confirmed that the complainant was a minor aged 14 years as at the time of the offence. Documentary proof in the form of a birth certificate is primary evidence of age and has consistently been accepted by Kenyan courts as sufficient proof. The authenticity of the birth certificate was not challenged. This court therefore finds that the complainant’s age was proved beyond reasonable doubt and that he was indeed a minor within the meaning of Section 2 of the Sexual Offences Act.
41. On penetration, Section 2 of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. The complainant testified that he was attacked from behind, his trousers and innerwear were pulled down and his anus was penetrated causing him pain. PW4 confirmed that the complainant was taken to Kangundo Level 4 Hospital where he was examined and a P3 form filled.
42. The P3 form was produced as an exhibit 1 and indicated that the complainant had a bruise at 12 o’clock position in the anus. The medical evidence corroborated the complainant’s account that there had been anal penetration.
43. Further, Section 124 of the Evidence Act permits a court to convict on the evidence of the victim of a sexual offence if the court believes the victim and records reasons for such belief, even in the absence of corroboration. The complainant’s account was consistent credible and was not shaken in cross-examination. There was no evidence of material contradiction that would undermine the prosecution’s case. This court is therefore satisfied that penetration was proved beyond reasonable doubt.
44. On identification of the perpetrator, the appellant contests identification. The complainant testified that although his face was initially covered with a kikoi during the attack, it was later uncovered after the act and he recognized the perpetrator as his music teacher and a chicken seller at Tala market. The incident occurred during the day. The appellant does not deny being a teacher and selling chicken. He instead introduces an alibi.
45. This was therefore a case of recognition as opposed to identification of a stranger. The Court of Appeal in Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR) held that recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the prior personal knowledge of the assailant.
46. The complainant had prior knowledge of the appellant as his music teacher. The attack occurred in the late afternoon, and there is no evidence that visibility was impaired to the extent of making recognition impossible. The complainant was categorical that once his face was uncovered, he recognized the appellant.
47. The defence advanced by the appellant was essentially a denial coupled with allegations of a grudge involving money and alleged false accusations by the complainant’s mother. However, no cogent evidence was tendered to substantiate the alleged grudge. Mere allegations, without evidential backing, cannot displace strong and consistent prosecution evidence.
48. Having re-evaluated the record, this court finds that the circumstances of recognition were favourable and free from error. The complainant knew the appellant prior to the incident and there was no evidence of mistaken identity. This court therefore finds that the appellant was positively identified as the perpetrator.
Whether the sentence was lawful and appropriate
49. Section 8(3) of the Sexual Offences Act provides that a person who commits an act of defilement with a child between the ages of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
50. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful. There is no indication that the trial court acted on wrong principles or considered irrelevant factors. The sentence imposed fell within the statutory parameters provided under the Sexual Offences Act.
51. Accordingly, this court finds no basis for interfering with the sentence.
52. Following the above therefore, the appeal is dismissed in its entirety and the trial court decision is upheld.
Orders accordingly.
Delivered, Dated and Signed this 6th day of March 2026
A. Introduction
1. The appellant being aggrieved by the decision of the trial court which convicted him for the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act Cap 63A has lodged this appeal. He seeks to have his conviction quashed and the 20 years imprisonment sentence set aside.
2. The appeal is premised on the following grounds, that the Learned Trial Magistrate erred in law and fact by failing to find that the prosecution case was marred with material inconsistencies and contradictions which went to the root of the charges; failed to find that the legal burden against the Appellant was not established due to the weak evidence that was adduced; failing to properly consider the cogent defence, which reasonably exonerated the Appellant from the commission of the alleged offence; the sentence of twenty years imprisonment imposed was manifestly harsh, excessive and contrary to recent jurisprudence on mandatory minimum sentences.
B. Background
3. Before the trial court, the appellant was charged with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act. The particulars of the offence were that on 16th September 2023 at Katine area in Matungulu Sub-county within Machakos County, he intentionally and unlawfully caused his penis to penetrate the anus of S.M.M, a child aged 14 years. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the alternate charge were that on 16th September 2023 at Katine area in Matungulu Sub County within Machakos County, intentionally and unlawfully touched the anus of S.M.M, a child aged 14 years with his penis.
4. The appellant pleaded not guilty to all the charges and to prove its case, the prosecution called 4 witnesses.
C. Prosecution case
5. PW1, John Mutua, a clinical officer attached to Kimiti Level 4 Hospital and previously stationed at Kangundo Level 4 Hospital, stated that on 16th September 2023, a 14year old male patient was brought to the hospital with a history of having been sodomized. PW1 noted that the patient was in fair general condition, with bruise at 12 o’clock position in the anus. Laboratory tests VDRL and urinalysis were negative, and no spermatozoa were detected. The patient was given PEP and referred to post-trauma counselling.
6. The court marked the P3 as Exhibit 1, treatments notes as Exhibit 2 and the lab test as Exhibit 3. Upon cross examination, PW1clarified that he did not identify the accused as the perpetrator, he only examined the complainant who had injuries on his anus.
7. The victim, PW2, S.M.M a minor aged 14 years gave sworn evidence after the court satisfied itself of his understanding of the duty to tell the truth. He testified that he was a Grade 8 pupil at St. Mary’s Tala Boys School. On 16th September 2023 at about 4.00 p.m., while on his way to collect a neck chain from his friend Kelvin, he was accosted at Silanga area. Someone covered his face and mouth, pulled him into a forested, bushy area, removed his trouser and inserted something into his buttocks.
8. After the assailant finished, he pulled up his trousers and uncovered his face. PW2 testified that he was then able to see the perpetrator clearly as visibility was good. He recognized the assailant as a person who used to teach them music at school. He further stated that by then the perpetrator had already covered his private parts and was just looking at him.
9. PW2 stated that he proceeded to his friend Kelvin’s home and informed him of what had happened. Kelvin escorted him to Tala Police Station where he made a report and was advised to call his parent. He informed his mother and together they returned to the police station. He was thereafter taken to Kangundo Level 4 Hospital where he was examined and later released. He subsequently recorded his statement with the police. In court, he identified the accused person in the dock as the person who sodomized him, reiterating that visibility was good and he was able to recognize the assailant when his face was uncovered.
10. Upon cross-examination, PW2 stated that he had gone to collect a chain from Kelvin, but the chain was not produced in court. He testified that he was pulled from a public road, which is at times busy and at times not. He stated that the accused held him from behind and a red kikoi to cover his face and mouth, preventing him from screaming. He estimated that the incident took about five minutes, though he did not have a watch to confirm the exact time.
11. PW2 further testified that upon reaching Kelvin’s home, he did not find Kelvin’s parents but informed Kelvin of what transpired, and he took him to the police station. He confirmed that Kevin is a witness in the case. He stated that he did not know the exact time they reached the police station or the distance between the police post and home. He added that he only knew the accused as their music teacher and also as someone who sold chicken. He clarified that they did not attend tuition on Saturday and denied ever reporting the accused to the chief with his mother regarding chickens.
12. PW3, Mary Kanini Wa Musyoka, testified that she resides in Katine. She stated that on 16th September 2023 at about 4.30 p.m., while she was at work, a neighbour telephoned her and informed her that her son had been held and raped. She immediately rushed home where her son narrated to her that his face had been covered and that he had been raped. He further told her that after his face was uncovered, he recognized the person who had raped him. PW3 testified that her son informed her that he had reported the matter at Tala Police Station and had been advised to go and call his parent. She accompanied him to the police station where they recorded the report. They were thereafter referred to hospital where her son was examined. She stated that she gave the police her son’s birth certificate, which was marked as MFI4. She further testified that her son mentioned a person called Michael as the perpetrator, whom she did not previously know. She, however, stated that she saw the said person at the police post and that she used to see him selling chicken in the market.
13. In cross-examination, PW3 stated that she did not personally know the accused but used to see him selling chicken. She added that her son had informed her that the accused used to teach them music. She testified that she was later referred to Nguluni Health Centre for additional medication. She stated that she did not know the specific bushy area where the accused allegedly took her son. She denied ever asking the accused for Kshs 50,000/= or telling him to take her to Mavoloni to see her sister, maintaining that she does not have a sister in Mavoloni. She also denied ever reporting any case against the accused to the chief. PW3 further stated that she did not know whether the accused taught her son at St. Mary’s. She confirmed that she was aware her son had gone to collect a chain on the material day and that she had left him at home in the morning after he informed her of his intention to collect it. She testified that she received a telephone call at about 4.00 p.m. alerting her of the incident. She added that the chain remained at home and that no one had asked her to produce it in court.
14. PW4, Police Constable Trifonia Mwonyolo, Number 94864, attached to Tala Police Station, testified that on 16th September 2023 in the evening, a case of defilement was reported at the station. She was directed to investigate the matter. She testified that upon commencing investigations, she established that the complainant had left his home in Katine heading to Tala to see a friend. On reaching the Silanga area, he was attacked from behind and his entire face was covered with a kikoi. He was pulled into a bushy area next to the road where he was defiled. She stated that the complainant was made to bend, his trousers and innerwear were pulled down, and his anus was penetrated. The complainant felt pain and was unable to scream because his mouth was covered. After the act, his face was uncovered and he recognized the assailant as his music teacher at school, who was also a chicken trader at Tala Market.
15. PW4 further testified that the complainant went to his friend’s place and informed him of what had transpired. The friend escorted him to the police station, where they were instructed to bring his mother, which they did. She took the complainant to Kangundo Level 4 Hospital where he was examined and a P3 Form was filled. She stated that the accused was subsequently arrested with the assistance of the area chief and village elder and that the scene was visited. She produced the complainant’s birth certificate as Prosecution Exhibit4 to confirm that he was a minor at the time of the incident.
16. Upon cross-examination, PW4 stated that she was the investigating officer but was not the officer who visited the scene. She testified that an officer from Tala who visited the scene informed her that there were trees in the area and that the road near the scene is a public road. She stated that it was possible for a person to be defiled in that area without members of the public noticing. She further stated that the complainant, being a young child, was overpowered and had not anticipated the attack so as to defend himself. She confirmed that the complainant identified the accused as the person who defiled him. Although the complainant was able to walk, he was in pain.
17. PW4 stated that she was not among the officers who arrested the accused and that she did not know how the accused’s children reacted to his arrest. She testified that while she had not specified the exact time the complainant went to the police station, it was in the evening hours. She testified that in the OB, it shows that he reported at 5:45p.m but this was subject to the time he was reached if there were other people.
18. With these 4 witnesses, the prosecution closed its case. The trial court analysed the evidence and found that the prosecution had establish a prima facie case and placed the appellant on his defence. He chose to give a sworn statement and called no witnesses.
D. Defence case
19. DW1, Nicholas Nzioka Muli, testified that he resides in Tala and is a chicken trader. He stated that although he could not recall the exact date, he knew the complainant’s mother in connection with a land transaction in which he had sold his land. He testified that the complainant’s mother approached him and asked for Kshs 100,000/= but he told her to wait. He asserted that the present case arose from that disagreement. DW1 further stated that the complainant’s mother had previously made false allegations against him including claims that he had stolen her chickens. He testified that at one point he was almost lynched over the alleged theft until one Pius Nzioka intervened and explained the source of the chickens in question.
20. Upon cross-examination, DW1 stated that the complainant’s mother wanted to befriend him. He alleged that she sought money from him after learning that he had sold his land to educate his child at university. He further stated that the complainant’s mother did not ask him for money in relation to the child nor did she ask him for a romantic relationship.
21. After the close of the defence case. judgment was delivered on 27th March 2024 convicting the appellant on the first count of defilement. On sentencing the trial court sentenced him to serve 20 years imprisonment running from 18th September 2023 when the accused took plea.
E. The Appeal
22. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the 20 years imprisonment sentence set aside. The appeal was canvased by way of submissions. The appellant relies on his submissions dated 25th April 2025 and rebuttal submissions dated 18th November 2025 while the respondent sought to rely on its submissions dated 27th October 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
23. The Appellant urges this court to quash both conviction and sentence. in support, he cites Fappyton Mutuku Ngui v Republic Criminal Appeal No. 296 of 2010 and Charles Wamukoya v Republic Criminal Appeal No. 72 of 2013, submitting that the essential ingredients of the offence of defilement are proof of the complainant’s age, proof of penetration, and positive identification of the assailant. He contends that the prosecution failed to establish these elements beyond reasonable doubt.
24. On penetration, the Appellant argues that the medical evidence did not prove penetration. He notes that although PW1 testified to observing a bruise at the 12 o’clock position of the anus, laboratory results were negative for spermatozoa and other findings. He further submits that the P3 Form was not produced in court and that a bruise alone cannot amount to proof of penetration. He emphasized that the complainant stated that he “felt something” inserted into his buttocks without confirming that it was a male organ. In support, he relies on Michael Mugo Musyoka versus Republic [2015] eKLR.
25. On identification, the Appellant contends that this was a case of mistaken identity. He submits that the complainant was attacked from behind, his face was covered with a kikoi, and that he only allegedly saw the assailant after the act, when the person was already dressed. He argues that the circumstances were not conducive to positive identification and relies on Weeder v Republic Cr. App. No. 228 of 1980 (unreported) on the dangers of mistaken identification. He further asserts that the first report did not clearly implicate him.
26. The Appellant also argues that the trial court failed to properly evaluate his defence, including his alibi. He maintains that the case against him was based on suspicion rather than cogent evidence. He submits that suspicion, however strong, cannot found a conviction. He relies on Mwangi v Republic [1983] KLR 75 on circumstantial evidence submitting that the evidence presented did not exclude other hypotheses consistent with innocence. He also cites Suleiman Juma alias Tom v Republic [2013] eKLR and JOO v Republic [2015] eKLR for the principle that it is better to acquit several guilty persons than to convict one innocent person.
27. In conclusion, the Appellant prays that the conviction be quashed and the sentence set aside. In the alternative, he seeks that the period already served in custody from 17th September 2023 be taken into account pursuant to Section 333(2) of the Criminal Procedure Code. He further prays for a reduced or non-custodial sentence or any other order the court may deem just and appropriate.
b) Respondent’s Submissions
28. The Respondent opposes the appeal and submits that the conviction and sentence imposed by the trial court were proper, lawful and supported by the evidence on record.
29. On identity, the Respondent submits that PW2 testified that the incident occurred at 4p.m when visibility was perfect.PW2 further stated that he previously knew the assailant as a music teacher at his school and a chicken seller. Since they were alone in the bush, there was no doubt that the appellant was properly identified.
30. On penetration, the Respondent refers to Section 2 of the Sexual Offences Act on the definition of penetration and genital organs. The Respondent submitted that PW1 medically examined the complainant after the alleged incident and testified that there was an injury at 12 o’clock position in the anus, which was indicative of penetration of the anus. The Respondent submitted that the circumstances surrounding the commission of the offence unerringly points to sodomy. The prosecution made reference to Section 33 of the Sexual Offences Act and the case of Safari Chengo versus Republic [2019] eKLR.
31. The Respondent further submitted that it is not true that the Appellant had adduced an alibi defence as the proceedings attest otherwise. In conclusion, the Respondent submit that the appeal is entirely unfounded; Section 333 (2) of the Civil Procedure Code was complied with by the trial court and therefore the Respondent seeks that the court upholds the conviction and sentenced as passed.
c) Appellant’s rebuttal submissions
32. In his rebuttal submissions, the Appellant contends that the prosecution failed to prove both identification and penetration which are essential elements in a defilement case.
33. On identification, the Appellant submits that the complainant’s prior familiarity with him as a music teacher and chicken seller does not establish that he was the person who allegedly committed the offence. He reiterates that he was not present at the scene on the day of the alleged incident and maintains that this is a case of mistaken identity. He further argues that the first report made by the complainant does not implicate him. The Appellant challenges the plausibility of the alleged attack, noting that a single person could not simultaneously cover the complainant’s face, restrain him, remove his clothing and commit the act. He therefore submits that the prosecution failed to establish positive identification, and he is entitled to the benefit of the doubt.
34. On penetration, the Appellant submits that the medical evidence does not support proof of defilement. He refers to PW1’s testimony that the complainant had a bruise at the 12 o’clock position of the anus was in fair condition, tested negative for VDRL and urinalysis and no spermatozoa were found. The Appellant points out that the P3 Form which is critical in establishing penetration was not produced in court. He also notes that the complainant himself could not identify what was inserted into his anus, and the medical evidence does not confirm penetration of a male genital organ. He emphasizes that a bruise alone cannot constitute proof of penetration.
35. The Appellant concludes that both identification and penetration were not proven beyond reasonable doubt. He therefore prays that the court allows the appeal in its entirety, quashes the conviction, and sets aside the sentence.
F. Analysis and determination
36. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence presented before the trial court and arrive at its own independent conclusion. However, in doing the court must remain mindful that it did not see or hear 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.
37. Having considered the record of appeal as well as the submissions by both parties, I discern the following issues for determination:
a) Whether the offence of defilement was proved beyond reasonable doubt;
b) Whether the sentence was harsh
a. Whether the offence of defilement was proved
38. Section 8(1) of the Sexual Offences Act provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. Section 8(3) further stipulates that 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.
39. 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;
c) Identification of the perpetrator.
40. On age, proof of age is a critical component of the offence of defilement as it determines not only culpability but also the applicable sentence. PW4 produced the complainant’s birth certificate as Prosecution Exhibit4 which confirmed that the complainant was a minor aged 14 years as at the time of the offence. Documentary proof in the form of a birth certificate is primary evidence of age and has consistently been accepted by Kenyan courts as sufficient proof. The authenticity of the birth certificate was not challenged. This court therefore finds that the complainant’s age was proved beyond reasonable doubt and that he was indeed a minor within the meaning of Section 2 of the Sexual Offences Act.
41. On penetration, Section 2 of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. The complainant testified that he was attacked from behind, his trousers and innerwear were pulled down and his anus was penetrated causing him pain. PW4 confirmed that the complainant was taken to Kangundo Level 4 Hospital where he was examined and a P3 form filled.
42. The P3 form was produced as an exhibit 1 and indicated that the complainant had a bruise at 12 o’clock position in the anus. The medical evidence corroborated the complainant’s account that there had been anal penetration.
43. Further, Section 124 of the Evidence Act permits a court to convict on the evidence of the victim of a sexual offence if the court believes the victim and records reasons for such belief, even in the absence of corroboration. The complainant’s account was consistent credible and was not shaken in cross-examination. There was no evidence of material contradiction that would undermine the prosecution’s case. This court is therefore satisfied that penetration was proved beyond reasonable doubt.
44. On identification of the perpetrator, the appellant contests identification. The complainant testified that although his face was initially covered with a kikoi during the attack, it was later uncovered after the act and he recognized the perpetrator as his music teacher and a chicken seller at Tala market. The incident occurred during the day. The appellant does not deny being a teacher and selling chicken. He instead introduces an alibi.
45. This was therefore a case of recognition as opposed to identification of a stranger. The Court of Appeal in Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR) held that recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the prior personal knowledge of the assailant.
46. The complainant had prior knowledge of the appellant as his music teacher. The attack occurred in the late afternoon, and there is no evidence that visibility was impaired to the extent of making recognition impossible. The complainant was categorical that once his face was uncovered, he recognized the appellant.
47. The defence advanced by the appellant was essentially a denial coupled with allegations of a grudge involving money and alleged false accusations by the complainant’s mother. However, no cogent evidence was tendered to substantiate the alleged grudge. Mere allegations, without evidential backing, cannot displace strong and consistent prosecution evidence.
48. Having re-evaluated the record, this court finds that the circumstances of recognition were favourable and free from error. The complainant knew the appellant prior to the incident and there was no evidence of mistaken identity. This court therefore finds that the appellant was positively identified as the perpetrator.
Whether the sentence was lawful and appropriate
49. Section 8(3) of the Sexual Offences Act provides that a person who commits an act of defilement with a child between the ages of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
50. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful. There is no indication that the trial court acted on wrong principles or considered irrelevant factors. The sentence imposed fell within the statutory parameters provided under the Sexual Offences Act.
51. Accordingly, this court finds no basis for interfering with the sentence.
52. Following the above therefore, the appeal is dismissed in its entirety and the trial court decision is upheld.
Orders accordingly.
Delivered, Dated and Signed this 6th day of March 2026