(Being an appeal from the original conviction and sentence by Hon. R.C.Mwachi, Resident Magistrate, in Mpeketoni Principal Magistrate’s Court Sexual Offence Case No. E025 of 2024 delivered on 25/6/2025)
1. The Appellant herein was convicted for the offence of defilement contrary to Section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between February 2023 and November 2023 at (name withheld) village in Lamu West sub county within Lamu county he caused his penis to penetrate into the vagina of A.S. (herein referred to as the complainant), a child aged 15 years.
2. The Appellant was sentenced to serve 20 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:
1. The learned trial magistrate erred in law and fact in failing to find that the case against the appellant was not proved beyond reasonable doubt.
2. The learned trial magistrate erred in law and fact in failing to find that the evidence of the prosecution witnesses was inconsistent and contradictory.
3. The learned trial magistrate erred in law and fact by convicting the appellant on shoddy evidence and where no DNA test was done linking the appellant with the offence.
4. The learned trial magistrate erred in law and fact in failing to find that the age of the complainant was not proved.
3. The appellant seeks that this court do quash the conviction, set aside the sentence and order that he be set at liberty.
Case for prosecution
4. The case for the prosecution was that the complainant was at the material time a grade 8 pupil aged 15 years. She was living with her mother PW3 and her sister PW1. The appellant was their neighbour.
5. It was the evidence of the complainant (PW2) that her mother used to send her to take money to her chama group members. That she would pass on the road outside the home of the appellant. That whenever the appellant would see her he would call at her. He would then get hold of her by her hand and lead her to his house. That in the house he would remove her pants and ask her to lie on the bed. He would then lie on top of her and insert his penis into her vagina. That after each incident he would ask her to go home. That he did so for over a period of one year. He used to threaten her with a knife. That later on her sister asked her whether she has seen her menses. She said she had not. She then told her sister what the appellant had been doing to her. Her sister reported the matter to her mother who beat her up. They went to the appellant. They reported at Mpeketoni police station. She was taken to hospital.
6. The sister to the complainant, PW1, told the court that she used to issue the complainant with sanitary pads whenever she was in her menses. That on 19/11/2024 the complainant told her that she had missed her menses. That PW1 realized that the complainant had not requested for pads for 2 months. She probed her further and she told her that the appellant had been defiling her since February 2024 whenever she was sent by her mother to deliver money to her mother`s chama members. PW1 informed her mother PW3. She and her mother went to the home of the appellant and confronted him over the issue. He refuted the accusations. On the following day they went and made a report at Mpeketoni police station and were issued with a P3 form. They then took the complainant to Mpeketoni sub county hospital where she was examined and her P3 form filled. The appellant was arrested after 2 days.
7. The mother to the complainant PW3 testified that she was informed of the matter by her daughter PW1. That she went and confronted the appellant. He told them to report to the government. They went and made a report at Mpeketoni police station and took the complainant to hospital.
8. A doctor at Mpeketoni sub county hospital PW4 testified that the complainant was presented at the hospital with a complaint that she had been defiled by a person known to her. She examined her genitalia and found her with inflammation on both sides of the genital opening, lacerations on the hymen at the 6 and 9 o`clock positions and whitish discharge. Pregnancy test was done and it came out negative. The doctor filled her P3 form.
9. The case was investigated by PC Mwaro PW5 of Mpeketoni police station. It was his evidence that the case was reported at the police station on 18/11/2024. He was assigned the case for investigations on the following day. The complainant went back to the police station. He PW5 recorded statements of witnesses. He issued the complainant with a P3 form and escorted her to Mpeketoni sub county hospital where the same was filled by a doctor. On 21/11/2024 he went to the house of the appellant at night and arrested him. He obtained the birth certificate of the complainant. He charged the appellant with the offence.
10. During the hearing of the case in court, the doctor PW4 produced the P3 form and the treatment notes as exhibits, P.Exh.1 (a) and (b) respectively. The investigating officer PW5 produced the birth certificate as exhibit, P. Exh.2.
Defence case
11. The appellant when placed to his defence stated that he was in a bad relationship with the mother to the complainant. That she used to abuse him and threaten him with dire consequences. That she even used to go and collect cashew nuts in his farm and whenever he asked her she would reply grudgingly. He reported to the headman who warned the complainant`s mother but she did not take heed. It was his evidence that the case was fabricated due to his sour relationship with the mother to the complainant.
Submissions
12. The appellant submitted that the complainant was a child of tender years but the trial court did not conduct a voir dire examination on her.
13. It was submitted that the age of the complainant was not established by any credible evidence. That penetration on the complainant was not proved. That the trial court failed to consider his defence.
14. The respondent on the other hand submitted that the ingredients of the offence of defilement are proof of the age of the victim, proof of penetration and proof of the identity of the perpetrator. That the age of the complainant was proved by the birth certificate. That the trial court had the opportunity of seeing the complainant when she testified and confirmed that she was indeed a minor of 15 years. That the evidence was not controverted by the defence as no evidence was presented to proof the contrary.
15. It was submitted that the evidence of the complainant that the appellant had sexual intercourse with her was corroborated by that of the clinician PW5 who found her vagina to have been penetrated. That the appellant was well known to the complainant as he was her neighbour. That there could have been no mistake as to identification, the same being by recognition. The respondent urged the court to dismiss the appeal.
Analysis and determination
16. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -
“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
17. The ingredients of the offence of defilement are proof the age of the victim, proof of penetration and proof of positive identification of the perpetrator, see Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013.
18. The appeal herein is based on the grounds that the charge was not proved beyond reasonable doubt as the age of the complainant was not proved; that there was no DNA test to link the appellant with the offence and that the evidence adduced in the case was inconsistent and contradictory.
19. Starting with the element of age, the complainant stated that she was at the material time aged 15 years. Her mother PW3 told the trial court that the complainant was born on 18/8/2008 as per her birth certificate, P.Exh.2.
20. It is trite that the age of a child can be proved by documentary evidence or by the oral evidence of the parent or the child if the child is intelligent enough to know his/her age. The Court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR held as follows on the subject:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
21. In this case a birth certificate was produced that showed that the complainant was born on 18/8/2008 which placed her age on the diverse dates at 14 and 15 years. A birth certificate is a credible way of proving the age of a person. The age of the complainant was proved at between 14 and 15 years.
22. The appellant argued that a DNA was not done to test whether he was linked with the defilement on the complainant.
23. However, the law is that a charge of defilement can be proved by other ways and not necessarily by way of DNA evidence. In this respect, the Court of Appeal in the case of AML vs. Republic (2012) eKLR , authoritatively stated that:
“The fact of rape or defilement is not proved by D.N.A. test but by way of evidence.”
24. In the case of Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the same court held that:
“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”.
25. It was therefore not mandatory for a DNA test to be conducted in the case. The question was whether there was sufficient evidence proving that the appellant penetrated the complainant.
26. Section 2 of the Sexual Offences Act defines penetration as:
“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
27. Section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of a child victim where the court is satisfied that the child is telling the truth and gives reasons for such a finding.
28. It was the evidence of the complainant that the appellant used to pull her into his house whenever she was sent to take money to her mother`s “chama” group. That on getting to the house he would remove her clothes and penetrate her vagina with his penis. That he did so many times for over a period of one year.
29. The trial court in convicting the appellant of the offence found the complainant to be a credible witness and held that her evidence was not shaken in cross-examination. More so that her evidence was corroborated by medical evidence.
30. I have re-examined the evidence adduced against the appellant. I have no reason to doubt the evidence of the complainant that she was penetrated by the appellant. Her evidence was straight forward, cogent and convincing. There was no reason to disbelief it.
31. The complainant was examined by a doctor PW4 who found her with inflammation on both sides of the vaginal opening and the hymen was lacerated at the 9 o`clock and 3 o`clock positions. The doctor opined that the complainant had been penetrated. There is no reason to differ with that finding. The evidence of the doctor corroborated the complainant`s evidence on penetration.
32. The appellant was a neighbour to the complainant. There were no differences between the two. There was no reason for the complainant to fabricate the case against the appellant. The appellant was identified as the perpetrator of the offence.
33. The appellant raised a defence that the case was fabricated by the mother to the complainant, PW3, because he had a frosty relationship with her. The trial court considered the defence and dismissed it as an afterthought for the reason that the appellant did not question the said witness on any such a relationship.
34. The mother to the complainant stated in her evidence that there had been no bad blood between her and the appellant. Despite that assertion, the appellant did not put any question to the witness in cross-examination. Failure to challenge that evidence in cross-examination led to the conclusion that the evidence of the witness was true. It is clear that it is not the mother to the complainant who came up with the issue of defilement. It is the sister to the complainant PW1 after she was given the information by the complainant. The trial court was right in describing the allegations on the complainant`s mother as an afterthought. The court was justified in dismissing the defence.
35. The appellant in his memorandum of appeal raised the issue that the prosecution evidence had contradictions. He did not point out any such contradiction. I have perused the record of the trial court and I do not see any material contradiction in the evidence of the prosecution.
36. In view of the foregoing, I find that the case against the appellant was proved beyond reasonable doubt. There is no merit in the appeal and the same is dismissed.
Delivered, dated and signed at GARSEN this 16 th day of September 2026
In the presence of:
Mr. Oluoch for Respondent
Appellant – present virtually at G.K. Prison Malindi
Court Assistant - Rahma
1. The Appellant herein was convicted for the offence of defilement contrary to Section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on diverse dates between February 2023 and November 2023 at (name withheld) village in Lamu West sub county within Lamu county he caused his penis to penetrate into the vagina of A.S. (herein referred to as the complainant), a child aged 15 years.
2. The Appellant was sentenced to serve 20 years imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal are that:
1. The learned trial magistrate erred in law and fact in failing to find that the case against the appellant was not proved beyond reasonable doubt.
2. The learned trial magistrate erred in law and fact in failing to find that the evidence of the prosecution witnesses was inconsistent and contradictory.
3. The learned trial magistrate erred in law and fact by convicting the appellant on shoddy evidence and where no DNA test was done linking the appellant with the offence.
4. The learned trial magistrate erred in law and fact in failing to find that the age of the complainant was not proved.
3. The appellant seeks that this court do quash the conviction, set aside the sentence and order that he be set at liberty.
Case for prosecution
4. The case for the prosecution was that the complainant was at the material time a grade 8 pupil aged 15 years. She was living with her mother PW3 and her sister PW1. The appellant was their neighbour.
5. It was the evidence of the complainant (PW2) that her mother used to send her to take money to her chama group members. That she would pass on the road outside the home of the appellant. That whenever the appellant would see her he would call at her. He would then get hold of her by her hand and lead her to his house. That in the house he would remove her pants and ask her to lie on the bed. He would then lie on top of her and insert his penis into her vagina. That after each incident he would ask her to go home. That he did so for over a period of one year. He used to threaten her with a knife. That later on her sister asked her whether she has seen her menses. She said she had not. She then told her sister what the appellant had been doing to her. Her sister reported the matter to her mother who beat her up. They went to the appellant. They reported at Mpeketoni police station. She was taken to hospital.
6. The sister to the complainant, PW1, told the court that she used to issue the complainant with sanitary pads whenever she was in her menses. That on 19/11/2024 the complainant told her that she had missed her menses. That PW1 realized that the complainant had not requested for pads for 2 months. She probed her further and she told her that the appellant had been defiling her since February 2024 whenever she was sent by her mother to deliver money to her mother`s chama members. PW1 informed her mother PW3. She and her mother went to the home of the appellant and confronted him over the issue. He refuted the accusations. On the following day they went and made a report at Mpeketoni police station and were issued with a P3 form. They then took the complainant to Mpeketoni sub county hospital where she was examined and her P3 form filled. The appellant was arrested after 2 days.
7. The mother to the complainant PW3 testified that she was informed of the matter by her daughter PW1. That she went and confronted the appellant. He told them to report to the government. They went and made a report at Mpeketoni police station and took the complainant to hospital.
8. A doctor at Mpeketoni sub county hospital PW4 testified that the complainant was presented at the hospital with a complaint that she had been defiled by a person known to her. She examined her genitalia and found her with inflammation on both sides of the genital opening, lacerations on the hymen at the 6 and 9 o`clock positions and whitish discharge. Pregnancy test was done and it came out negative. The doctor filled her P3 form.
9. The case was investigated by PC Mwaro PW5 of Mpeketoni police station. It was his evidence that the case was reported at the police station on 18/11/2024. He was assigned the case for investigations on the following day. The complainant went back to the police station. He PW5 recorded statements of witnesses. He issued the complainant with a P3 form and escorted her to Mpeketoni sub county hospital where the same was filled by a doctor. On 21/11/2024 he went to the house of the appellant at night and arrested him. He obtained the birth certificate of the complainant. He charged the appellant with the offence.
10. During the hearing of the case in court, the doctor PW4 produced the P3 form and the treatment notes as exhibits, P.Exh.1 (a) and (b) respectively. The investigating officer PW5 produced the birth certificate as exhibit, P. Exh.2.
Defence case
11. The appellant when placed to his defence stated that he was in a bad relationship with the mother to the complainant. That she used to abuse him and threaten him with dire consequences. That she even used to go and collect cashew nuts in his farm and whenever he asked her she would reply grudgingly. He reported to the headman who warned the complainant`s mother but she did not take heed. It was his evidence that the case was fabricated due to his sour relationship with the mother to the complainant.
Submissions
12. The appellant submitted that the complainant was a child of tender years but the trial court did not conduct a voir dire examination on her.
13. It was submitted that the age of the complainant was not established by any credible evidence. That penetration on the complainant was not proved. That the trial court failed to consider his defence.
14. The respondent on the other hand submitted that the ingredients of the offence of defilement are proof of the age of the victim, proof of penetration and proof of the identity of the perpetrator. That the age of the complainant was proved by the birth certificate. That the trial court had the opportunity of seeing the complainant when she testified and confirmed that she was indeed a minor of 15 years. That the evidence was not controverted by the defence as no evidence was presented to proof the contrary.
15. It was submitted that the evidence of the complainant that the appellant had sexual intercourse with her was corroborated by that of the clinician PW5 who found her vagina to have been penetrated. That the appellant was well known to the complainant as he was her neighbour. That there could have been no mistake as to identification, the same being by recognition. The respondent urged the court to dismiss the appeal.
Analysis and determination
16. This being a first appeal, this court is mandated to analyze and re-evaluate the evidence afresh in line with the holding in the case of Odhiambo v Republic Cr App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: -
“On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour.”
17. The ingredients of the offence of defilement are proof the age of the victim, proof of penetration and proof of positive identification of the perpetrator, see Charles Wamukoya Karani v Republic Criminal Appeal No.72 of 2013.
18. The appeal herein is based on the grounds that the charge was not proved beyond reasonable doubt as the age of the complainant was not proved; that there was no DNA test to link the appellant with the offence and that the evidence adduced in the case was inconsistent and contradictory.
19. Starting with the element of age, the complainant stated that she was at the material time aged 15 years. Her mother PW3 told the trial court that the complainant was born on 18/8/2008 as per her birth certificate, P.Exh.2.
20. It is trite that the age of a child can be proved by documentary evidence or by the oral evidence of the parent or the child if the child is intelligent enough to know his/her age. The Court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR held as follows on the subject:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
21. In this case a birth certificate was produced that showed that the complainant was born on 18/8/2008 which placed her age on the diverse dates at 14 and 15 years. A birth certificate is a credible way of proving the age of a person. The age of the complainant was proved at between 14 and 15 years.
22. The appellant argued that a DNA was not done to test whether he was linked with the defilement on the complainant.
23. However, the law is that a charge of defilement can be proved by other ways and not necessarily by way of DNA evidence. In this respect, the Court of Appeal in the case of AML vs. Republic (2012) eKLR , authoritatively stated that:
“The fact of rape or defilement is not proved by D.N.A. test but by way of evidence.”
24. In the case of Kassim Ali v Republic Criminal, Appeal No. 84 of 2005, the same court held that:
“The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence”.
25. It was therefore not mandatory for a DNA test to be conducted in the case. The question was whether there was sufficient evidence proving that the appellant penetrated the complainant.
26. Section 2 of the Sexual Offences Act defines penetration as:
“the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
27. Section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of a child victim where the court is satisfied that the child is telling the truth and gives reasons for such a finding.
28. It was the evidence of the complainant that the appellant used to pull her into his house whenever she was sent to take money to her mother`s “chama” group. That on getting to the house he would remove her clothes and penetrate her vagina with his penis. That he did so many times for over a period of one year.
29. The trial court in convicting the appellant of the offence found the complainant to be a credible witness and held that her evidence was not shaken in cross-examination. More so that her evidence was corroborated by medical evidence.
30. I have re-examined the evidence adduced against the appellant. I have no reason to doubt the evidence of the complainant that she was penetrated by the appellant. Her evidence was straight forward, cogent and convincing. There was no reason to disbelief it.
31. The complainant was examined by a doctor PW4 who found her with inflammation on both sides of the vaginal opening and the hymen was lacerated at the 9 o`clock and 3 o`clock positions. The doctor opined that the complainant had been penetrated. There is no reason to differ with that finding. The evidence of the doctor corroborated the complainant`s evidence on penetration.
32. The appellant was a neighbour to the complainant. There were no differences between the two. There was no reason for the complainant to fabricate the case against the appellant. The appellant was identified as the perpetrator of the offence.
33. The appellant raised a defence that the case was fabricated by the mother to the complainant, PW3, because he had a frosty relationship with her. The trial court considered the defence and dismissed it as an afterthought for the reason that the appellant did not question the said witness on any such a relationship.
34. The mother to the complainant stated in her evidence that there had been no bad blood between her and the appellant. Despite that assertion, the appellant did not put any question to the witness in cross-examination. Failure to challenge that evidence in cross-examination led to the conclusion that the evidence of the witness was true. It is clear that it is not the mother to the complainant who came up with the issue of defilement. It is the sister to the complainant PW1 after she was given the information by the complainant. The trial court was right in describing the allegations on the complainant`s mother as an afterthought. The court was justified in dismissing the defence.
35. The appellant in his memorandum of appeal raised the issue that the prosecution evidence had contradictions. He did not point out any such contradiction. I have perused the record of the trial court and I do not see any material contradiction in the evidence of the prosecution.
36. In view of the foregoing, I find that the case against the appellant was proved beyond reasonable doubt. There is no merit in the appeal and the same is dismissed.
Delivered, dated and signed at GARSEN this 16 th day of September 2026
In the presence of:
Mr. Oluoch for Respondent
Appellant – present virtually at G.K. Prison Malindi
Court Assistant - Rahma