(Being an appeal from the judgement of Hon. N. Wairimu (SPM) delivered on 3/2/2023 in Eldoret CMCC No. E086 of 2020)
1. The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 15th day of December, 2020 at Ivugwi village in Likuyani sub-county within Kakamega County, the appellant, unlawfully and intentionally caused his genital organ (penis) to penetrate into the genital organ (vagina) of MJ, a child aged 5 years.
2. In the alternative, the appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No.3 of 2006.The particulars of the alternative count are that on 15 th day of December,2020 at Ivugwi Village in Likuyani Sub-County within Kakamega County, the appellant, unlawfully and intentionally caused his genital organ(penis) to come into contact with the genital organ(vagina) of MJ, a child aged 5 years.
3. The trial magistrate considered the evidence of four (4) prosecution witnesses and one (1) defence and found the appellant guilty for the offence of defilement. Upon conviction, the trial court sentenced the appellant to serve life sentence.
4. Being aggrieved with the judgement and sentence of the trial court, the appellant preferred this appeal. The appeal is based on the following grounds:
a) That the trial court erred both in law and fact by failing to observe that the medical report produced as an exhibit was inconclusive, unsupportive and unreliable.
b) That the prosecution case was not proved as required.
c) That the sentence of life imprisonment meted on the accused is harsh and excessive.
d) That learned trial magistrate erred on points of law and fact by failing to note that identification, which is ingredient of defilement, was not proved.
e) The learned trial magistrate erred in law and fact by not considering the appellant’s defence which was cogent and truthful.
f) That the learned trial magistrate erred in law and fact by failing to note that age, an important ingredient of defilement, was not proved beyond reasonable doubt in this case.
5. PW1, the complainant stated she knows the appellant, “Fundi”. Fundi, PW1 stated, was their neighbour in Maragoli village where she lived with her mother.
6. PW1, further, stated that the appellant ‘raped’ her in his house at Maragoli. He called her for tea and “ kangumu ”, PW1 stated, and removed her panty, skirt and shirt. The appellant also removed his clothes and raped her, PW1 stated, pointing at the direction of her private parts. She also stated she felt pain after the appellant did bad manners to her.
7. PW1, further stated she informed her mother that Fundi had ‘raped’ her and she took her to hospital.
8. PW2, Rose Mukabane, stated she has lived in Nairobi since June 2021 and works as a domestic worker. Before then, PW2 stated, she lived in Soyat Road Block. She is the complainant’s mother.
9. PW2, further, stated that the complainant was born on 28/8/2015 but did not have a birth certificate or clinic card.PW2 also stated that she ran away from home after her husband burnt all their belongings and that complainant schools in Nairobi and lives with her sister.
10. On 15/12/2020 in the evening, PW2 stated, PW1 played with other children. After playing, PW2 stated, PW1 walked home with her legs apart. On checking between her legs, PW2 stated, she saw something like mucus and she had redness. The next day, PW2 stated, she took the child to Moi Teaching and Referral Hospital for medication. She also reported the matter to the police. PW2, further, stated that she lived in Soy for one (1) year and knew the appellant.
11. PW3, CPI Dorcas Kimunge, is a police officer based at Matunda Police Station. She stated age assessment was done for the complainant and she was found to be below 12 years.
12. Age assessment was done for the complainant at Moi Teaching and Referral Hospital on 4/2/2022.Age assessment report was produced at the trial court as P. Exhibit 2.
13. PW3, further stated that she went to the scene of crime of this matter and found that appellant was a neighbour to the child, about 100 meters apart. PW3, further stated he also got to know that the appellant is a mason and lived at Dr. Kitui home.
14. PW4, Dr. Michael Kibowen stated that the complainant was examined at Moi Teaching and Referral Hospital on 17/12/2020. He produced the complainant’s P3 form (P. Exhibit 1) which showed that the complainant’s genitalia had healing hymenal tears at 7, 8, 3 and 9 o’clock. She also had laceration on labia minora and bruises on her posterior fourchette. Further, the complainant, had discharge around the perineum labia majora. The Doctor concluded that PW1 was defiled. In his defence, the appellant admitted that he lived in Soy and he is a mason. On 18/12/2020, the appellant stated, he was arrested by 4 people who led him to Ivugwi Police station where his finger prints were taken. Subsequently, the appellant stated, he was charged with defilement.
15. The issue for determination in this matter is whether the appellant defiled the complainant. In 1 st appeal this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. (see Mark Oiruri Mose -vs- Republic (2013)eKLR)
16. The ingredients of defilement were set out in the case of of Charles Wamukoya Karani v Republic Bungoma HC Criminal Appeal No. 720 of 2013 the court stated:
“ The critical ingredient forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant”
17. PW2, the complainant’s, mother stated that the complainant was born on 28.8.2015 and was therefore, aged 5 years on 15/12/2020, the date of the alleged defilement herein. PW2, however, stated that the complainant did not have a birth certificate or clinic card.
18. Age assessment was done for the complainant at Moi Teaching and Referral Hospital (MTRH) which confirmed that she was aged below 12 years. It is also notable that the appellant did not the appellant did not contest the age of the complaint at the trial court. This court, therefore, finds that the appellant was aged below 12 years.
19. PW1 stated that the appellant lured her into his house to take tea and “ kangumu .” Inside the house, PW1 stated, the appellant however removed her panty skirt and shirt. He also removed his clothes, PW1 stated and ‘raped’ her. She, further stated that the accused did bad manners to her pointing at the direction of her private parts.
20. The evidence of PW1 was corroborated by PW4 Dr. Michael Kibowen of Moi Teaching and Referral Hospital who testified that the complainant was on 17/12/2020 at the hospital. The doctor also produced the complainant’s P3 form filled at hospital which showed that the complainant’s genitalia had healing hymenal tears at 7, 8, 3 and 9 o’clock. She also had laceration on the labia minora and bruises on posterior towelette. Further, PW4 testified had discharge around the perinium and labia majora and it was his conclusion that the minor was defiled.
21. It very clear that the clear that the complainant’s vagina was penetrated and was defiled. The complainant identified the appellant by way of recognition to be the perpetrator of the offence of defilement herein. She knew him as Fundi (Mason). They were neighbours at Maragoli village .This was not contested by the appellant in the trial court.PW 3, the investigating officer visited the scene of crime for this matter and established that, indeed the complainant and the appellant lived 100 meters apart.
22. On his part, the appellant did challenge the prosecution’s evidence herein. In his evidence, the appellant merely stated he was arrested and charge
23. Based on the evidence on record, this court finds that there was penetration of the complainant’s vagina by the appellant using his genital organs.
24. Section 8(2) of the Act provides:
“A person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to life imprisonment’’ .
The only available sentence for defilement of a child aged 11 years or less is life imprisonment. As the complainant herein was aged below 12 years, the life sentence meted on the appellant is proper and lawful.
25. The upshot of my findings above is that this appeal lacks merit and the same is dismissed. Right of Appeal within 14 days.
Dated, signed and delivered online via Microsoft teams platform this 3rd day of July 2026 .
HON. P. K. Rotich
JUDGE
2 | Page
1. The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 15th day of December, 2020 at Ivugwi village in Likuyani sub-county within Kakamega County, the appellant, unlawfully and intentionally caused his genital organ (penis) to penetrate into the genital organ (vagina) of MJ, a child aged 5 years.
2. In the alternative, the appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No.3 of 2006.The particulars of the alternative count are that on 15 th day of December,2020 at Ivugwi Village in Likuyani Sub-County within Kakamega County, the appellant, unlawfully and intentionally caused his genital organ(penis) to come into contact with the genital organ(vagina) of MJ, a child aged 5 years.
3. The trial magistrate considered the evidence of four (4) prosecution witnesses and one (1) defence and found the appellant guilty for the offence of defilement. Upon conviction, the trial court sentenced the appellant to serve life sentence.
4. Being aggrieved with the judgement and sentence of the trial court, the appellant preferred this appeal. The appeal is based on the following grounds:
a) That the trial court erred both in law and fact by failing to observe that the medical report produced as an exhibit was inconclusive, unsupportive and unreliable.
b) That the prosecution case was not proved as required.
c) That the sentence of life imprisonment meted on the accused is harsh and excessive.
d) That learned trial magistrate erred on points of law and fact by failing to note that identification, which is ingredient of defilement, was not proved.
e) The learned trial magistrate erred in law and fact by not considering the appellant’s defence which was cogent and truthful.
f) That the learned trial magistrate erred in law and fact by failing to note that age, an important ingredient of defilement, was not proved beyond reasonable doubt in this case.
5. PW1, the complainant stated she knows the appellant, “Fundi”. Fundi, PW1 stated, was their neighbour in Maragoli village where she lived with her mother.
6. PW1, further, stated that the appellant ‘raped’ her in his house at Maragoli. He called her for tea and “ kangumu ”, PW1 stated, and removed her panty, skirt and shirt. The appellant also removed his clothes and raped her, PW1 stated, pointing at the direction of her private parts. She also stated she felt pain after the appellant did bad manners to her.
7. PW1, further stated she informed her mother that Fundi had ‘raped’ her and she took her to hospital.
8. PW2, Rose Mukabane, stated she has lived in Nairobi since June 2021 and works as a domestic worker. Before then, PW2 stated, she lived in Soyat Road Block. She is the complainant’s mother.
9. PW2, further, stated that the complainant was born on 28/8/2015 but did not have a birth certificate or clinic card.PW2 also stated that she ran away from home after her husband burnt all their belongings and that complainant schools in Nairobi and lives with her sister.
10. On 15/12/2020 in the evening, PW2 stated, PW1 played with other children. After playing, PW2 stated, PW1 walked home with her legs apart. On checking between her legs, PW2 stated, she saw something like mucus and she had redness. The next day, PW2 stated, she took the child to Moi Teaching and Referral Hospital for medication. She also reported the matter to the police. PW2, further, stated that she lived in Soy for one (1) year and knew the appellant.
11. PW3, CPI Dorcas Kimunge, is a police officer based at Matunda Police Station. She stated age assessment was done for the complainant and she was found to be below 12 years.
12. Age assessment was done for the complainant at Moi Teaching and Referral Hospital on 4/2/2022.Age assessment report was produced at the trial court as P. Exhibit 2.
13. PW3, further stated that she went to the scene of crime of this matter and found that appellant was a neighbour to the child, about 100 meters apart. PW3, further stated he also got to know that the appellant is a mason and lived at Dr. Kitui home.
14. PW4, Dr. Michael Kibowen stated that the complainant was examined at Moi Teaching and Referral Hospital on 17/12/2020. He produced the complainant’s P3 form (P. Exhibit 1) which showed that the complainant’s genitalia had healing hymenal tears at 7, 8, 3 and 9 o’clock. She also had laceration on labia minora and bruises on her posterior fourchette. Further, the complainant, had discharge around the perineum labia majora. The Doctor concluded that PW1 was defiled. In his defence, the appellant admitted that he lived in Soy and he is a mason. On 18/12/2020, the appellant stated, he was arrested by 4 people who led him to Ivugwi Police station where his finger prints were taken. Subsequently, the appellant stated, he was charged with defilement.
15. The issue for determination in this matter is whether the appellant defiled the complainant. In 1 st appeal this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. (see Mark Oiruri Mose -vs- Republic (2013)eKLR)
16. The ingredients of defilement were set out in the case of of Charles Wamukoya Karani v Republic Bungoma HC Criminal Appeal No. 720 of 2013 the court stated:
“ The critical ingredient forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant”
17. PW2, the complainant’s, mother stated that the complainant was born on 28.8.2015 and was therefore, aged 5 years on 15/12/2020, the date of the alleged defilement herein. PW2, however, stated that the complainant did not have a birth certificate or clinic card.
18. Age assessment was done for the complainant at Moi Teaching and Referral Hospital (MTRH) which confirmed that she was aged below 12 years. It is also notable that the appellant did not the appellant did not contest the age of the complaint at the trial court. This court, therefore, finds that the appellant was aged below 12 years.
19. PW1 stated that the appellant lured her into his house to take tea and “ kangumu .” Inside the house, PW1 stated, the appellant however removed her panty skirt and shirt. He also removed his clothes, PW1 stated and ‘raped’ her. She, further stated that the accused did bad manners to her pointing at the direction of her private parts.
20. The evidence of PW1 was corroborated by PW4 Dr. Michael Kibowen of Moi Teaching and Referral Hospital who testified that the complainant was on 17/12/2020 at the hospital. The doctor also produced the complainant’s P3 form filled at hospital which showed that the complainant’s genitalia had healing hymenal tears at 7, 8, 3 and 9 o’clock. She also had laceration on the labia minora and bruises on posterior towelette. Further, PW4 testified had discharge around the perinium and labia majora and it was his conclusion that the minor was defiled.
21. It very clear that the clear that the complainant’s vagina was penetrated and was defiled. The complainant identified the appellant by way of recognition to be the perpetrator of the offence of defilement herein. She knew him as Fundi (Mason). They were neighbours at Maragoli village .This was not contested by the appellant in the trial court.PW 3, the investigating officer visited the scene of crime for this matter and established that, indeed the complainant and the appellant lived 100 meters apart.
22. On his part, the appellant did challenge the prosecution’s evidence herein. In his evidence, the appellant merely stated he was arrested and charge
23. Based on the evidence on record, this court finds that there was penetration of the complainant’s vagina by the appellant using his genital organs.
24. Section 8(2) of the Act provides:
“A person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to life imprisonment’’ .
The only available sentence for defilement of a child aged 11 years or less is life imprisonment. As the complainant herein was aged below 12 years, the life sentence meted on the appellant is proper and lawful.
25. The upshot of my findings above is that this appeal lacks merit and the same is dismissed. Right of Appeal within 14 days.
Dated, signed and delivered online via Microsoft teams platform this 3rd day of July 2026 .
HON. P. K. Rotich
JUDGE
2 | Page