(Being an appeal from the conviction and sentence delivered on 29th June 2021 and 15th July 2021 respectively by Hon. G.W.Kirugumi (P.M.) in Kerugoya Magistrates Court S.O. Case No. 17 of 2019)
Background
1. The appellant was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. Particulars of the charge were that on 25th December 2019 at Kagumo village within Kirinyaga County, intentionally and unlawfully caused his penis to penetrate the vagina of L.N.N. a child aged 5 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same date, place and time as in the principal charge the appellant intentionally and unlawfully caused his penis to come into contact with the vagina of L. N. N. a girl aged 5 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called six witnesses in support of its case. PW 1, L.N.N was the complainant. She testified without being sworn after a voire dire examination. It is not disputed that the appellant was well known to her as they had been together with the complainant’s mother PW 2, M. W. N. earlier in the day. However, at some point the appellant left with the complainant for him to go and buy for her soda. They did not return to the mother and the complainant was later that night found by her mother in the appellant’s house with the appellant. PW 3, Hezron Macharia Maina is a clinical officer working at Kerugoya County Referral hospital who completed the complainant’s P3 form (Exh. 3) on 31st December 2019. PW 4, Peter Kunga is also a clinical officer at Kerugoya County Referral hospital. He examined the complainant on 25th December 2019 and referred her to PW 3 to complete the P3 form. The findings of the examination done by PW 4 and as completed by PW 3 in the P3 form were that the complainant’s hymen was freshly torn with some blood stains at the vaginal opening. PW 5, Cpl Stephen Murang’a of Kerugoya police station, together with his colleagues arrested the appellant from his residence on the same night of 25th December 2019. PW 6, PC Jecinta Kanini conducted investigations in the matter and had the appellant charged with the offences.
4. The appellant DW 1, Patrick Muriithi Muriuki gave sworn evidence in defence and did not call a witness. He denied that he committed the offences.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
Grounds of appeal
6. The appellant was aggrieved by the decision of the trial court and has filed the present appeal through the petition of appeal dated 7th December 2023 based on grounds, that the trial court erred in law and in fact:
i. by failing to consider that there was no evidence of an eye witness to the offence.
ii. failing to consider that essential witnesses such as the father of the child were not made available.
iii. by failing to consider that the medical evidence was inconclusive and the age of the complainant was not proved.
iv. by failing to consider that the prosecution evidence was contradictory and inconsistent.
v. by rejecting the appellant’s sworn evidence without cogent reasons.
Submissions
7. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The same are considered in the analysis that follows.
Duty of this court
8. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno v. Republic (1972) E.A. 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya v. R., [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantital M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact the trial court has had the advantage of hearing and seeing the witnesses, see Peters versus Sunday Post (1958) E.A. 424.”
9. This position is recounted variously in other decisions for instance in Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR) where the Court of Appeal laid emphasis on the duty of a first appellate court by stating that:
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect… If the High Court has not carried out its task, it becomes a matter of law on second appeal whether there was any evidence to support the conviction. Certainly misdirection and non-directions on material points are matters of law.”
10. I am well guided by these decisions.
The case before the trial court
11. The prosecution evidence was that PW 1, the complainant, her mother PW 2 and one George, husband of PW 2 but not the father of the complainant together with the appellant, whom they refer to as Snopy were at a bar when the appellant offered to buy the complainant a soda. He took the complainant with her leaving PW 2 and George behind. They did not return.
12. Earlier PW 2, George and the appellant had collected the complainant from her brother, PW 2’s son’s residence.
13. The complainant gave evidence that when she left with the appellant he bought her a soda, cake and biscuits. They left her mother in town and boarded a matatu with him. They went to his house. He removed her panties and trouser then removed his trousers and did “tabia mbaya” or bad manners to her. The record of the trial court shows that she pointed at her genital area when saying so. PW 1 said that the appellant inserted a “kamuti” which is used to urinate into her genital organ. The appellant told her not to tell anybody. She then wore her panties and trousers.
14. PW 2 testified that the complainant was born on 28th April 2014 and produced her birth notification as exhibit 1. It bears the complainant’s name as Shana N.N. but the complainant’s grandmother had insisted that she be called by her name Lucy and that is what how she is commonly known.
15. PW 2 testified that when the appellant went with the complainant outside to buy her a soda, they waited for long but the two did not come back. PW 2 together with George went looking for them around Kagumo market but did not find them. They then went to the appellant’s house where they found him with the complainant. PW 2 asked the appellant why he had left with the child and he answered that he could not recall where he left them. They took the complainant and left.
16. Along the way, PW 2 noticed that the complainant was holding onto her trouser and asked her why. The complainant narrated to her what the appellant had done to her. PW 1 checked the complainant and noticed that she did not have her panties on and her private parts were wet and had blood. PW 1 explained that she had left the panties at the appellant’s house. They proceeded to Kagumo police station where they reported the matter. They proceeded to Kerugoya hospital where the complainant was examined and given medical attention.
17. PW 2 went with police officer’s to the appellant’s house. They found him there. The biscuits and soda were also there but the panties was not. The appellant was arrested.
18. The appellant denied in his defence that he committed either of the offences. His defence was that when he came back with the complainant after buying her the soda they did not find PW 2 and George. They waited for them for a while as the complainant took the soda but they did not come back. He went out and searched for them in vain. There was an attendant by the name of Njeri who advised the appellant to go home with the child because she could not be left at the club. He took the child with him, boarded a matatu and went with her first to Kagumo where he had met PW 2 and George earlier in the day before they proceeded to PW 2’s son’s residence at Kiangai where they picked the complainant. They did not find PW 2 and George there. He told an attendant there by the name Mumbi to tell the complainant’s mother to fetch the child from his home. He took the complainant to his house.
19. The appellant testified further that the complainant played with other children at the home. PW 2 and George went there. They all left to Kagumo town and the appellant bought PW 2 and George each a cup of Keg and asked them to take the child home. They left without any issues. He took alcohol until 2.00 a.m. Later, police officers went to his residence and arrested and took him to Kigumo police post where he found the complainant, PW 2 and George. They alleged that he had defiled the complainant. He denied and told the police officer that they had parted peacefully when the child was well and they did not complain about anything.
20. The investigating officer asked him for KShs 100,000/= which was later reduced to KShs 60,000/= but he did not have. He was escorted to Kerugoya police station and subsequently charged in court.
21. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the charge of defilement against the appellant beyond a reasonable doubt and thus convicted and sentenced him to life imprisonment.
Analysis
22. I have carefully examined and re-evaluated the evidence tendered before the trial court, the judgment as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
23. Sections 8(1) and 8(2) of the Sexual Offences Act under which the appellant was convicted provide as follows:
1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
24. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
25. I will consider each of the grounds of appeal in turn.
26. The first ground is that the trial court by failed to consider that there was no evidence of an eye witness to the offence.
27. That is a misunderstanding of the law because the complainant by herself is a witness. Her evidence is that of an eye witness or first-hand evidence. The position is that she was the only witness to the alleged penetration of her genital organ by the appellant. She was thus the only eye witness on the issue of penetration. What needs to be considered is whether her evidence was cogent and could be relied upon as a basis of conviction for the appellant.
28. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
29. The complainant gave unsworn evidence. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
30. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
31. The complainant’s age was proved by the evidence of her mother, PW 2 and her notification of birth (Exh. 1) which showed her date of birth as 28th April 2014 making her about 5 years and 9 months when the alleged defilement happened on 25th December 2019. She was therefore a minor as found by the trial court.
32. The learned trial magistrate was satisfied that the complainant understood the importance telling the truth and allowed her to testify without being sworn. The next issue is whether or not there was corroboration of the complainant’s evidence that the appellant penetrated her genitalia.
33. The complainant testified that the appellant took her into his house, placed her on his bed, removed her clothes and also removed his and defiled her. The complainant’s evidence was that the appellant inserted a stick used for urinating into her genital organ. No doubt, the reference to stick meant the male genital organ. PW 2 said that they found the complainant in the appellant’s house. The appellant on his part did not say exactly where the complainant was but only said she was playing with other children. He never put the issue of the complainant having been found playing with other children to the complainant or PW 2 in cross-examination. That was a very material issue since each of them had said that the complainant was found inside the appellant’s house with him. I do not think it would have escaped the attention of the appellant to raise such a crucial issue to both witnesses. I therefore find that it was an afterthought and therefore incapable of rebutting the evidence of the complainant as corroborated by PW 2 that she was found with the appellant in his house. I find that the complainant was found with the appellant in his house and not playing with other children.
34. Upon taking the complainant from the appellant’s house, on the way, PW 2 noticed that the child was holding onto her trouser. It was subsequently found out that the complainant had been defiled. Therefore, her holding onto her trouser was an indication that something untoward had happened to her. Since her hymen was freshly broken and bleeding, it follows that she was feeling pain or some discomfort as she walked especially since she did not have her panties on. I am satisfied and do find that the complainant’s condition of showing discomfort while walking was corroboration of her evidence that she had been defiled.
35. The complainant’s mother also said that she checked the complainant and noticed that she was wet in the private parts. More significantly is the medical evidence which showed that the complainant’s hymen was freshly torn and with blood in the genital organ. That was evidence that her genital organ had been penetrated. The complainant’s evidence that her genital organ was penetrated was thus corroborated by that of her mother and the medical evidence.
36. The next issue is whether there is corroboration of the complainant’s evidence that the penetration was by the appellant.
37. The complainant was found with the appellant in his house. I have found above that the appellant’s assertion that she was found playing with other children was not credible and the learned trial magistrate was right in rejecting it even though she does not seem to have made an elaborate evaluation of it. I find no merit in the ground that the learned trial magistrate did not give due regard to the appellant’s evidence. The submission by the appellant that it was not properly rejected is not valid.
38. The appellant’s assertion that when he went back to the club where they had left the complainant’s mother and George and did not find them and that he tried to look for them in vain may be correct. However, the fact remains that he proceeded with the complainant to his house. The question is since he knew the mother so well as he said, why did he not take the child to her mother’s house?
39. Even then, the fact that he was with the complainant in the house gave him an opportunity to commit the act of defilement against her.
40. The appellant submitted that the prosecution evidence was contradictory and inconsistent but he never pointed out any of those. I have not found any material inconsistence or contradiction in the evidence of the prosecution witnesses.
41. It is true as submitted by the appellant that George was not called as a witness. Was that failure fatal to the prosecution’s case? The Court of Appeal for Eastern Africa in the case of Bukenya vs. Uganda [1972] EA 549, (Lutta Ag. Vice President) considering this issue held that:
“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
42. My understanding of this decision is that the witnesses must be those who are “necessary to establish the truth”, and “where the evidence is barely adequate.” So that the prosecution is not required to call all witnesses to an alleged offence just because they have something to say. In the instant case, the failure to call George cannot be blamed on the prosecution. PW 2 said that George not being the complainant’s biological father, he did not wish to be involved further in the prosecution of the case. In any case, even without the evidence of this witness, the prosecution had adduced sufficient evidence against the appellant. Therefore, the failure to call him was not fatal because he was with PW 2 throughout and what he would have said would have been a repetition of what PW 2 said.
43. I have noted that in several instances, the learned trial magistrate appeared to be shifting the burden of proof upon the appellant. For instance, her remarks that the appellant did not call any witness to support his allegation that the minor played with other children and also that the appellant needed to adduce evidence to disprove the allegation that the minor was found in his house. Those were serious misdirections. However, the same did not occasion a miscarriage of justice since there was sufficient evidence upon which the trial court relied in order to convict the appellant.
44. On the whole, I am satisfied that the trial magistrate made a correct evaluation of the evidence before her and arrived at the correct conclusion that each of the elements of the offence of defilement had been proved beyond a reasonable doubt and the appellant was therefore guilty of the offence of defilement. The conviction was therefore sound and the same is upheld.
45. On the ground that the sentence was excessive, the sentence of life imprisonment meted upon the appellant was legal as the law provides for a minimum sentence of life imprisonment where the child is aged eleven years or below. The Supreme Court has recently in the case of Republic v Ayako [2025] KESC 20 (KLR) clarified that life imprisonment means the life of the prisoner and the learned trial magistrate could not have given any less sentence.
46. Consequently, I find that the learned trial magistrate was right in convicting the appellant for the principal charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and passing a sentence of life imprisonment and the same is affirmed. The appeal is found to lack merit and the same is dismissed in its entirety.
47. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 23rd day of December 2025 in the presence of:
The appellant in person from Nyeri prison.
Komu (Ms) for the respondent.
Job: Court assistant.
Background
1. The appellant was charged and convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (Cap. 63A) Laws of Kenya. Particulars of the charge were that on 25th December 2019 at Kagumo village within Kirinyaga County, intentionally and unlawfully caused his penis to penetrate the vagina of L.N.N. a child aged 5 years.
2. He was also charged in the alternative with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act (Cap. 63A) Laws of Kenya that on the same date, place and time as in the principal charge the appellant intentionally and unlawfully caused his penis to come into contact with the vagina of L. N. N. a girl aged 5 years.
3. The appellant pleaded not guilty to the charges and the case proceeded for hearing. The prosecution called six witnesses in support of its case. PW 1, L.N.N was the complainant. She testified without being sworn after a voire dire examination. It is not disputed that the appellant was well known to her as they had been together with the complainant’s mother PW 2, M. W. N. earlier in the day. However, at some point the appellant left with the complainant for him to go and buy for her soda. They did not return to the mother and the complainant was later that night found by her mother in the appellant’s house with the appellant. PW 3, Hezron Macharia Maina is a clinical officer working at Kerugoya County Referral hospital who completed the complainant’s P3 form (Exh. 3) on 31st December 2019. PW 4, Peter Kunga is also a clinical officer at Kerugoya County Referral hospital. He examined the complainant on 25th December 2019 and referred her to PW 3 to complete the P3 form. The findings of the examination done by PW 4 and as completed by PW 3 in the P3 form were that the complainant’s hymen was freshly torn with some blood stains at the vaginal opening. PW 5, Cpl Stephen Murang’a of Kerugoya police station, together with his colleagues arrested the appellant from his residence on the same night of 25th December 2019. PW 6, PC Jecinta Kanini conducted investigations in the matter and had the appellant charged with the offences.
4. The appellant DW 1, Patrick Muriithi Muriuki gave sworn evidence in defence and did not call a witness. He denied that he committed the offences.
5. At the end of the trial, the appellant was found guilty of the principal charge of defilement and he was convicted and sentenced to serve life imprisonment.
Grounds of appeal
6. The appellant was aggrieved by the decision of the trial court and has filed the present appeal through the petition of appeal dated 7th December 2023 based on grounds, that the trial court erred in law and in fact:
i. by failing to consider that there was no evidence of an eye witness to the offence.
ii. failing to consider that essential witnesses such as the father of the child were not made available.
iii. by failing to consider that the medical evidence was inconclusive and the age of the complainant was not proved.
iv. by failing to consider that the prosecution evidence was contradictory and inconsistent.
v. by rejecting the appellant’s sworn evidence without cogent reasons.
Submissions
7. The appeal was disposed of by way of written submissions filed by the appellant and the respondent. The same are considered in the analysis that follows.
Duty of this court
8. This being a first appeal, this court is required to analyze and re-evaluate afresh all the evidence and to draw its own conclusion while bearing in mind that it neither saw nor heard any of the witnesses as per the holding of the Court of Appeal in Okeno v. Republic (1972) E.A. 32 that;
“An appellant on first appeal is entitled to expect the evidence as a whole to be submitted to fresh and exhaustive examination (Pandya v. R., [1957] E.A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantital M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact the trial court has had the advantage of hearing and seeing the witnesses, see Peters versus Sunday Post (1958) E.A. 424.”
9. This position is recounted variously in other decisions for instance in Gabriel Kamau Njoroge v Republic [1987] KECA 4 (KLR) where the Court of Appeal laid emphasis on the duty of a first appellate court by stating that:
“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well on the questions of fact as on questions of law, to demand a decision of the court of first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and to make due allowance in this respect… If the High Court has not carried out its task, it becomes a matter of law on second appeal whether there was any evidence to support the conviction. Certainly misdirection and non-directions on material points are matters of law.”
10. I am well guided by these decisions.
The case before the trial court
11. The prosecution evidence was that PW 1, the complainant, her mother PW 2 and one George, husband of PW 2 but not the father of the complainant together with the appellant, whom they refer to as Snopy were at a bar when the appellant offered to buy the complainant a soda. He took the complainant with her leaving PW 2 and George behind. They did not return.
12. Earlier PW 2, George and the appellant had collected the complainant from her brother, PW 2’s son’s residence.
13. The complainant gave evidence that when she left with the appellant he bought her a soda, cake and biscuits. They left her mother in town and boarded a matatu with him. They went to his house. He removed her panties and trouser then removed his trousers and did “tabia mbaya” or bad manners to her. The record of the trial court shows that she pointed at her genital area when saying so. PW 1 said that the appellant inserted a “kamuti” which is used to urinate into her genital organ. The appellant told her not to tell anybody. She then wore her panties and trousers.
14. PW 2 testified that the complainant was born on 28th April 2014 and produced her birth notification as exhibit 1. It bears the complainant’s name as Shana N.N. but the complainant’s grandmother had insisted that she be called by her name Lucy and that is what how she is commonly known.
15. PW 2 testified that when the appellant went with the complainant outside to buy her a soda, they waited for long but the two did not come back. PW 2 together with George went looking for them around Kagumo market but did not find them. They then went to the appellant’s house where they found him with the complainant. PW 2 asked the appellant why he had left with the child and he answered that he could not recall where he left them. They took the complainant and left.
16. Along the way, PW 2 noticed that the complainant was holding onto her trouser and asked her why. The complainant narrated to her what the appellant had done to her. PW 1 checked the complainant and noticed that she did not have her panties on and her private parts were wet and had blood. PW 1 explained that she had left the panties at the appellant’s house. They proceeded to Kagumo police station where they reported the matter. They proceeded to Kerugoya hospital where the complainant was examined and given medical attention.
17. PW 2 went with police officer’s to the appellant’s house. They found him there. The biscuits and soda were also there but the panties was not. The appellant was arrested.
18. The appellant denied in his defence that he committed either of the offences. His defence was that when he came back with the complainant after buying her the soda they did not find PW 2 and George. They waited for them for a while as the complainant took the soda but they did not come back. He went out and searched for them in vain. There was an attendant by the name of Njeri who advised the appellant to go home with the child because she could not be left at the club. He took the child with him, boarded a matatu and went with her first to Kagumo where he had met PW 2 and George earlier in the day before they proceeded to PW 2’s son’s residence at Kiangai where they picked the complainant. They did not find PW 2 and George there. He told an attendant there by the name Mumbi to tell the complainant’s mother to fetch the child from his home. He took the complainant to his house.
19. The appellant testified further that the complainant played with other children at the home. PW 2 and George went there. They all left to Kagumo town and the appellant bought PW 2 and George each a cup of Keg and asked them to take the child home. They left without any issues. He took alcohol until 2.00 a.m. Later, police officers went to his residence and arrested and took him to Kigumo police post where he found the complainant, PW 2 and George. They alleged that he had defiled the complainant. He denied and told the police officer that they had parted peacefully when the child was well and they did not complain about anything.
20. The investigating officer asked him for KShs 100,000/= which was later reduced to KShs 60,000/= but he did not have. He was escorted to Kerugoya police station and subsequently charged in court.
21. Upon evaluating the evidence, the learned trial magistrate was satisfied that the prosecution had proved the charge of defilement against the appellant beyond a reasonable doubt and thus convicted and sentenced him to life imprisonment.
Analysis
22. I have carefully examined and re-evaluated the evidence tendered before the trial court, the judgment as well as the submissions by the appellant and by the respondent in this appeal. The issue for determination is whether or not the conviction of the appellant can be sustained on the evidence tendered at the trial.
23. Sections 8(1) and 8(2) of the Sexual Offences Act under which the appellant was convicted provide as follows:
1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
24. The Court of Appeal, while considering this section in the case of Shitula v Republic [2025] KECA 12 (KLR) set out the main ingredients of the offence of defilement as follows:
i. proof that the victim is a minor;
ii. penetration of the victim’s genital organs with the genital organs of another person; and
iii. the accused person was the person who penetrated the victim’s genital organs.
25. I will consider each of the grounds of appeal in turn.
26. The first ground is that the trial court by failed to consider that there was no evidence of an eye witness to the offence.
27. That is a misunderstanding of the law because the complainant by herself is a witness. Her evidence is that of an eye witness or first-hand evidence. The position is that she was the only witness to the alleged penetration of her genital organ by the appellant. She was thus the only eye witness on the issue of penetration. What needs to be considered is whether her evidence was cogent and could be relied upon as a basis of conviction for the appellant.
28. The manner in which the court should proceed to consider the evidence of a victim in a sexual offence case where the victim is the only witness on any of the ingredients of the offence is provided for in the proviso to section 124 of the Evidence Act (Cap. 80) Laws of Kenya as follows:
S. 124. Evidence Act:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.”
29. The complainant gave unsworn evidence. The manner in which to proceed to evaluate the evidence of a victim of a sexual offence was explained by the Court of Appeal in the case of Bernard Kebiba vs. Republic [2000] eKLR where it was stated that:
“The law on corroboration in sexual offenses is not in dispute any more in our courts. There is requirement for corroboration in all sexual offenses. It is however, a rule of practice only. Though a strong rule of practice, it has not acquired the force of law. In appropriate circumstances, where the trial court is satisfied that the complainant is speaking nothing but the whole truth, the court may convict without corroboration. In such a situation however, the court must warn itself of the danger of basing a conviction upon uncorroborated evidence of the complainant. Where, however, the court feels that there is need for corroboration, the court must say so expressly in the judgment. The court must then look for corroboration from the evidence led and recorded and if the court finds it, the court must mention it expressly in its judgment. Where the court finds no corroboration after forming the opinion that corroboration is necessary, the benefit of doubt must be given to the accused and acquittal must result.”
30. From these decisions it emerges that the court is enjoined to evaluate the evidence and determine whether there was corroboration and if there is none whether the court believed that the complainant was telling the truth. In determining the second issue of truthfulness the trial court has to make it expressly clear in the proceedings that the complainant was telling the truth and if so that in the judgment the court warned itself of the danger of relying upon uncorroborated evidence of the complainant.
31. The complainant’s age was proved by the evidence of her mother, PW 2 and her notification of birth (Exh. 1) which showed her date of birth as 28th April 2014 making her about 5 years and 9 months when the alleged defilement happened on 25th December 2019. She was therefore a minor as found by the trial court.
32. The learned trial magistrate was satisfied that the complainant understood the importance telling the truth and allowed her to testify without being sworn. The next issue is whether or not there was corroboration of the complainant’s evidence that the appellant penetrated her genitalia.
33. The complainant testified that the appellant took her into his house, placed her on his bed, removed her clothes and also removed his and defiled her. The complainant’s evidence was that the appellant inserted a stick used for urinating into her genital organ. No doubt, the reference to stick meant the male genital organ. PW 2 said that they found the complainant in the appellant’s house. The appellant on his part did not say exactly where the complainant was but only said she was playing with other children. He never put the issue of the complainant having been found playing with other children to the complainant or PW 2 in cross-examination. That was a very material issue since each of them had said that the complainant was found inside the appellant’s house with him. I do not think it would have escaped the attention of the appellant to raise such a crucial issue to both witnesses. I therefore find that it was an afterthought and therefore incapable of rebutting the evidence of the complainant as corroborated by PW 2 that she was found with the appellant in his house. I find that the complainant was found with the appellant in his house and not playing with other children.
34. Upon taking the complainant from the appellant’s house, on the way, PW 2 noticed that the child was holding onto her trouser. It was subsequently found out that the complainant had been defiled. Therefore, her holding onto her trouser was an indication that something untoward had happened to her. Since her hymen was freshly broken and bleeding, it follows that she was feeling pain or some discomfort as she walked especially since she did not have her panties on. I am satisfied and do find that the complainant’s condition of showing discomfort while walking was corroboration of her evidence that she had been defiled.
35. The complainant’s mother also said that she checked the complainant and noticed that she was wet in the private parts. More significantly is the medical evidence which showed that the complainant’s hymen was freshly torn and with blood in the genital organ. That was evidence that her genital organ had been penetrated. The complainant’s evidence that her genital organ was penetrated was thus corroborated by that of her mother and the medical evidence.
36. The next issue is whether there is corroboration of the complainant’s evidence that the penetration was by the appellant.
37. The complainant was found with the appellant in his house. I have found above that the appellant’s assertion that she was found playing with other children was not credible and the learned trial magistrate was right in rejecting it even though she does not seem to have made an elaborate evaluation of it. I find no merit in the ground that the learned trial magistrate did not give due regard to the appellant’s evidence. The submission by the appellant that it was not properly rejected is not valid.
38. The appellant’s assertion that when he went back to the club where they had left the complainant’s mother and George and did not find them and that he tried to look for them in vain may be correct. However, the fact remains that he proceeded with the complainant to his house. The question is since he knew the mother so well as he said, why did he not take the child to her mother’s house?
39. Even then, the fact that he was with the complainant in the house gave him an opportunity to commit the act of defilement against her.
40. The appellant submitted that the prosecution evidence was contradictory and inconsistent but he never pointed out any of those. I have not found any material inconsistence or contradiction in the evidence of the prosecution witnesses.
41. It is true as submitted by the appellant that George was not called as a witness. Was that failure fatal to the prosecution’s case? The Court of Appeal for Eastern Africa in the case of Bukenya vs. Uganda [1972] EA 549, (Lutta Ag. Vice President) considering this issue held that:
“The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent.
Where the evidence called is barely adequate, the Court may infer that the evidence of uncalled witnesses would have tended to be adverse to the prosecution.”
42. My understanding of this decision is that the witnesses must be those who are “necessary to establish the truth”, and “where the evidence is barely adequate.” So that the prosecution is not required to call all witnesses to an alleged offence just because they have something to say. In the instant case, the failure to call George cannot be blamed on the prosecution. PW 2 said that George not being the complainant’s biological father, he did not wish to be involved further in the prosecution of the case. In any case, even without the evidence of this witness, the prosecution had adduced sufficient evidence against the appellant. Therefore, the failure to call him was not fatal because he was with PW 2 throughout and what he would have said would have been a repetition of what PW 2 said.
43. I have noted that in several instances, the learned trial magistrate appeared to be shifting the burden of proof upon the appellant. For instance, her remarks that the appellant did not call any witness to support his allegation that the minor played with other children and also that the appellant needed to adduce evidence to disprove the allegation that the minor was found in his house. Those were serious misdirections. However, the same did not occasion a miscarriage of justice since there was sufficient evidence upon which the trial court relied in order to convict the appellant.
44. On the whole, I am satisfied that the trial magistrate made a correct evaluation of the evidence before her and arrived at the correct conclusion that each of the elements of the offence of defilement had been proved beyond a reasonable doubt and the appellant was therefore guilty of the offence of defilement. The conviction was therefore sound and the same is upheld.
45. On the ground that the sentence was excessive, the sentence of life imprisonment meted upon the appellant was legal as the law provides for a minimum sentence of life imprisonment where the child is aged eleven years or below. The Supreme Court has recently in the case of Republic v Ayako [2025] KESC 20 (KLR) clarified that life imprisonment means the life of the prisoner and the learned trial magistrate could not have given any less sentence.
46. Consequently, I find that the learned trial magistrate was right in convicting the appellant for the principal charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act and passing a sentence of life imprisonment and the same is affirmed. The appeal is found to lack merit and the same is dismissed in its entirety.
47. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual Platform, Teams, this 23rd day of December 2025 in the presence of:
The appellant in person from Nyeri prison.
Komu (Ms) for the respondent.
Job: Court assistant.