Introduction and Background
1. Before the subordinate court, the Appellant was charged with the principal count of defilement contrary to section 8(1)(2) of the Sexual Offences Act(Chapter 63A of the Laws of Kenya) . The particulars of the charge were that on 29 th January 2020, at Tumba area in Machakos County, he intentionally and unlawfully caused his penis to penetrate the vagina of B.M, a child aged 4 years. He was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the same Act , based on the same facts.
2. The Appellant denied both charges and the matter was set down for hearing. The Respondent (“the Prosecution”) produced 4 witnesses; the complainant, B.M (PW 1), S.M.K, B.M’s mother (PW 2), Dr. John Mutunga, a medical doctor from Machakos Level 5 Hospital (PW 3) and 77446 Sgt. Fridah Achieng, a police officer based at Machakos Police Station (PW 4). The Appellant called four witnesses including himself (DW 1), Jacinta Muluki Mulwa, an aunt to the Appellant (DW 2), Paul Ngotho, an uncle to the Appellant ( DW 3) and Jacinta Wanza Ngotho, a shop customer (DW 4).
3. After hearing the case, the subordinate court rendered a judgment on 12 th November 2024 where it convicted the Appellant on the main count of defilement and acquitted him on the alternative charge. The trial magistrate then sentenced the Appellant to 15 years imprisonment. It is this decision that the Appellant has appealed against through grounds set out in his Petition of Appeal dated 13 th December 2024. The appeal was canvassed by way of written and oral submissions by the parties’ respective counsel which I have considered together with the record and I will be making relevant references to them in my analysis and determination below. I also note that the Prosecution has filed a Notice of Enhancement of Sentence dated 5 th June 2025 seeking to enhance the sentence from 15 years to life imprisonment.
Analysis and Determination
4. As this is the first appellate court, the predecessor of the Court of Appeal in Okeno v. R [1972] EA. 32, laid down the court’s duty. It is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions and there is nothing objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision (Also see Wairimu v Republic (Criminal Appeal 28 of 2009) [2010] KECA 495 (KLR) ]
5. In his Petition of Appeal, the Appellant lays 18 grounds all of which challenge the trial magistrate's decision on points of fact and law. He contends that PW3’s findings and the PRC form concluded that the case was one of "attempted defilement," not actual defilement but the trial magistrate erred by disregarding this expert medical opinion, which stated the child had no physical injuries, the hymen was intact and there was only evidence of an infection which was not sexually transmitted.
6. The Appellant avers that the trial court incorrectly interpreted the medical evidence to infer penetration when the doctor himself did not confirm it, that the conviction was flawed because there was no positive scientific evidence linking the Appellant to the offence and he points out that no DNA test was conducted on the semen or sperms allegedly found on the child's panties or the Appellant's trousers to confirm that they matched the Appellant. The appeal also questions why the trial court did not order a test to confirm whether the Appellant had Candidiasis , to link him to the infection found on the child and that the trial court erred by relying on hearsay evidence.
7. The Appellant contends that the trial court placed undue weight on the uncorroborated testimony of PW 1 and PW2 when there was no other evidence to back their claims and he points out inconsistencies in the testimony regarding the location and time of the alleged incident and he criticizes the trial court for relying on the mother's claim of seeing "semen mixed with blood" on the child's panty when the garment itself was never presented in court as evidence. The Appellant further states that the trial court erred by disregarding the defence of alibi, which was supported by DW2 and DW3, one of whom stated he was with the Appellant on the material day and he contends that the trial court failed to order an investigation into the alibi claim to establish its correctness before dismissing it. For these reasons, the Appellant prays that this court allows the appeal, quashes and sets aside the conviction and the sentence and that he discharged and set at liberty.
8. I have gone through the submissions and the record. To sustain a conviction for the offense of defilement, three ingredients must be established by the Prosecution; that the complainant was a child; that there was penetration and that the Appellant was the perpetrator of the offence (see Odera v Republic [2026] KECA 1655 (KLR)] . I find that the trial court was properly guided on the same. On the age of B.M, the proceedings indicate that during the voir dire examination, the trial court concluded that she was about 4 years. Her mother, PW 2 testified that B.M was born on 2 nd October 2015 meaning she was around 4 years and 9 months at the time of the incident. An age assessment report (PExhibit 4) was also produced indicating that she was about 4 years old. These conclusions were not seriously contested in the appeal and I find that the trial court was also properly guided when it held that the age of a minor victim of sexual violence can be proved by way of medical documents, birth certificates, victim’s own or her parents’ and or guardians’ evidence, common sense as well as by simple observation (see Kaburu v Republic [2022] KECA 789 (KLR) . It is therefore my finding that the ingredient of age was proven beyond reasonable doubt.
9. On penetration, BM testified that "Junior" inserted his "kadudu", which is euphemistic for penis, into her genital area and that she felt pain. PW 3 testified that B.M’s vaginal walls were inflamed and painful to touch, that there was an abnormal white discharge, which a lab test confirmed as Candidiasis , an infection the doctor stated was sexually transmitted. I find this to be direct evidence of penetration and the Court of Appeal in Kaburu(supra) hastened to add that “ DNA testing per se cannot prove defilement and is indeed irrelevant considering the ingredients of the offence that have to be proved. DNA testing is only relevant for purposes of paternity .” Further, as noted by the trial court, the definition of "penetration" under section 2 of the Sexual Offences Act is "… the partial or complete insertion of the male genital organ into the female genital organ ."
10. The law does not require the hymen to be broken and even partial penetration is sufficient. The medical evidence of inflammation, pain and a sexually transmitted infection strongly corroborates B.M’s testimony and are tell-tale signs of defilement and that there was penetration. PW 3’s conclusion of "attempted defilement" in the Medical P3 form (PExhibit 2) does not negate the child's testimony and is consistent with partial penetration which causes pain and inflammation without necessarily breaking the hymen. Further, the trial court did not rely on PW 2’s testimony for the fact of penetration. Her testimony was only sufficient to show the sequence of events and B.M’s disclosure and B.M’s own testimony, corroborated by the medical evidence, formed the basis of the conviction. It is therefore my finding and conclusion that penetration was satisfactorily proved by the Prosecution.
11. On identification, the Court of Appeal in Mwaura v Republic [1987] KECA 62 (KLR) established the principles for visual identification, including consideration of the length of time the witness had for seeing the accused, the position from which the witness saw the accused and the quality of light. The identification in this case was by recognition. B.M knew the Appellant as "Junior", they lived in the same homestead and she even knew where his house was. She identified him in court without hesitation and PW2 confirmed that the Appellant was their landlord's son.
12. I find that this was not a case of a fleeting glance or a stranger but a case of a child identifying a person well known to her, in a familiar environment. The trial court correctly found that the child's evidence was credible and that there was no evidence of coaching or a motive to falsely implicate the Appellant. Where the testimony of a victim of sexual offence is found to be truthful, the same need not be corroborated. The Court must however give reasons for believing such testimony. In the case of Mohamed vs. Republic [2006] 2 KLR 138 the Court of Appeal stated:
It is now settled that the courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful .
13. The trial magistrate did exactly that, stating that he found no inconsistencies in B.M’s evidence and that she was telling the truth. The defence alibi was that the Appellant was in a shamba on 10 th February 2020 on the arrest date and that others claimed he was not at the shop on 29 th January 2020. This alibi was weak and the trial court correctly noted the defence was an afterthought and was inconsistent with the unchallenged evidence of identification by recognition. The trial court's failure to order an investigation into the alibi is not an error in law and whereas I agree that the burden of proof lies on the prosecution, the alibi must be raised at the earliest opportunity to be properly investigated, which it was not (see Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR) . In the end, I find that the Appellant was properly identified.
14. The court’s findings above lead me to conclude that the Appellant’s conviction was safe and that his appeal on this aspect fails. I now turn to the issue of his sentence where as stated in the introductory part, the Prosecution has filed a notice to enhance the sentence from 15 years to life imprisonment. The trial court sentenced the Appellant to 15 years imprisonment, after considering that he is a first offender. As stated, the Appellant was charged with defilement under section 8(2) of the Sexual Offences Act which provides that “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 .” This is a mandatory minimum sentence and I am in agreement with the Prosecution’s submission that this issue was settled by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that as long as section 8 of the Sexual Offences Act remains valid, the mandatory minimum sentences are constitutional and lawful, emphasizing those minimum sentences “ set the floor rather than the ceiling leaving it open to the discretion of the courts to impose a harsher sentence ” depending on the circumstances of each case.
15. In reaching this decision, the apex court drew a critical and binding distinction between a "mandatory sentence," which leaves no discretion and a "minimum sentence," which sets a floor below which a court cannot go but allows for the imposition of a harsher sentence. The court expressly noted that its earlier decision in the Muruatetu case did not address minimum sentences as found in the Sexual Offences Act. Consequently, I find that the trial magistrate in this case was bound by the law. The statutory minimum sentence for defiling a child aged 11 years or less, as provided under section 8(2) of the Act , is life imprisonment. The trial court had no discretion to reduce this sentence to 15 years and I find that the Prosecution’s application for enhancement of the sentence is therefore correct and is allowed.
Conclusion and Disposition
16. For the reasons set out above, I find that the Appellant’s appeal lacks merit and it is hereby dismissed. The Respondent's Notice of Enhancement of Sentence dated 5 th June 2025 is allowed and the 15-year sentence meted by the trial court is set aside and substituted with a sentence of life imprisonment.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Onkangi for the Appellant
2. Mr. Mangare for the Republic
3. Abdisalan- Court Assistant
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1. Before the subordinate court, the Appellant was charged with the principal count of defilement contrary to section 8(1)(2) of the Sexual Offences Act(Chapter 63A of the Laws of Kenya) . The particulars of the charge were that on 29 th January 2020, at Tumba area in Machakos County, he intentionally and unlawfully caused his penis to penetrate the vagina of B.M, a child aged 4 years. He was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the same Act , based on the same facts.
2. The Appellant denied both charges and the matter was set down for hearing. The Respondent (“the Prosecution”) produced 4 witnesses; the complainant, B.M (PW 1), S.M.K, B.M’s mother (PW 2), Dr. John Mutunga, a medical doctor from Machakos Level 5 Hospital (PW 3) and 77446 Sgt. Fridah Achieng, a police officer based at Machakos Police Station (PW 4). The Appellant called four witnesses including himself (DW 1), Jacinta Muluki Mulwa, an aunt to the Appellant (DW 2), Paul Ngotho, an uncle to the Appellant ( DW 3) and Jacinta Wanza Ngotho, a shop customer (DW 4).
3. After hearing the case, the subordinate court rendered a judgment on 12 th November 2024 where it convicted the Appellant on the main count of defilement and acquitted him on the alternative charge. The trial magistrate then sentenced the Appellant to 15 years imprisonment. It is this decision that the Appellant has appealed against through grounds set out in his Petition of Appeal dated 13 th December 2024. The appeal was canvassed by way of written and oral submissions by the parties’ respective counsel which I have considered together with the record and I will be making relevant references to them in my analysis and determination below. I also note that the Prosecution has filed a Notice of Enhancement of Sentence dated 5 th June 2025 seeking to enhance the sentence from 15 years to life imprisonment.
Analysis and Determination
4. As this is the first appellate court, the predecessor of the Court of Appeal in Okeno v. R [1972] EA. 32, laid down the court’s duty. It is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions and there is nothing objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision (Also see Wairimu v Republic (Criminal Appeal 28 of 2009) [2010] KECA 495 (KLR) ]
5. In his Petition of Appeal, the Appellant lays 18 grounds all of which challenge the trial magistrate's decision on points of fact and law. He contends that PW3’s findings and the PRC form concluded that the case was one of "attempted defilement," not actual defilement but the trial magistrate erred by disregarding this expert medical opinion, which stated the child had no physical injuries, the hymen was intact and there was only evidence of an infection which was not sexually transmitted.
6. The Appellant avers that the trial court incorrectly interpreted the medical evidence to infer penetration when the doctor himself did not confirm it, that the conviction was flawed because there was no positive scientific evidence linking the Appellant to the offence and he points out that no DNA test was conducted on the semen or sperms allegedly found on the child's panties or the Appellant's trousers to confirm that they matched the Appellant. The appeal also questions why the trial court did not order a test to confirm whether the Appellant had Candidiasis , to link him to the infection found on the child and that the trial court erred by relying on hearsay evidence.
7. The Appellant contends that the trial court placed undue weight on the uncorroborated testimony of PW 1 and PW2 when there was no other evidence to back their claims and he points out inconsistencies in the testimony regarding the location and time of the alleged incident and he criticizes the trial court for relying on the mother's claim of seeing "semen mixed with blood" on the child's panty when the garment itself was never presented in court as evidence. The Appellant further states that the trial court erred by disregarding the defence of alibi, which was supported by DW2 and DW3, one of whom stated he was with the Appellant on the material day and he contends that the trial court failed to order an investigation into the alibi claim to establish its correctness before dismissing it. For these reasons, the Appellant prays that this court allows the appeal, quashes and sets aside the conviction and the sentence and that he discharged and set at liberty.
8. I have gone through the submissions and the record. To sustain a conviction for the offense of defilement, three ingredients must be established by the Prosecution; that the complainant was a child; that there was penetration and that the Appellant was the perpetrator of the offence (see Odera v Republic [2026] KECA 1655 (KLR)] . I find that the trial court was properly guided on the same. On the age of B.M, the proceedings indicate that during the voir dire examination, the trial court concluded that she was about 4 years. Her mother, PW 2 testified that B.M was born on 2 nd October 2015 meaning she was around 4 years and 9 months at the time of the incident. An age assessment report (PExhibit 4) was also produced indicating that she was about 4 years old. These conclusions were not seriously contested in the appeal and I find that the trial court was also properly guided when it held that the age of a minor victim of sexual violence can be proved by way of medical documents, birth certificates, victim’s own or her parents’ and or guardians’ evidence, common sense as well as by simple observation (see Kaburu v Republic [2022] KECA 789 (KLR) . It is therefore my finding that the ingredient of age was proven beyond reasonable doubt.
9. On penetration, BM testified that "Junior" inserted his "kadudu", which is euphemistic for penis, into her genital area and that she felt pain. PW 3 testified that B.M’s vaginal walls were inflamed and painful to touch, that there was an abnormal white discharge, which a lab test confirmed as Candidiasis , an infection the doctor stated was sexually transmitted. I find this to be direct evidence of penetration and the Court of Appeal in Kaburu(supra) hastened to add that “ DNA testing per se cannot prove defilement and is indeed irrelevant considering the ingredients of the offence that have to be proved. DNA testing is only relevant for purposes of paternity .” Further, as noted by the trial court, the definition of "penetration" under section 2 of the Sexual Offences Act is "… the partial or complete insertion of the male genital organ into the female genital organ ."
10. The law does not require the hymen to be broken and even partial penetration is sufficient. The medical evidence of inflammation, pain and a sexually transmitted infection strongly corroborates B.M’s testimony and are tell-tale signs of defilement and that there was penetration. PW 3’s conclusion of "attempted defilement" in the Medical P3 form (PExhibit 2) does not negate the child's testimony and is consistent with partial penetration which causes pain and inflammation without necessarily breaking the hymen. Further, the trial court did not rely on PW 2’s testimony for the fact of penetration. Her testimony was only sufficient to show the sequence of events and B.M’s disclosure and B.M’s own testimony, corroborated by the medical evidence, formed the basis of the conviction. It is therefore my finding and conclusion that penetration was satisfactorily proved by the Prosecution.
11. On identification, the Court of Appeal in Mwaura v Republic [1987] KECA 62 (KLR) established the principles for visual identification, including consideration of the length of time the witness had for seeing the accused, the position from which the witness saw the accused and the quality of light. The identification in this case was by recognition. B.M knew the Appellant as "Junior", they lived in the same homestead and she even knew where his house was. She identified him in court without hesitation and PW2 confirmed that the Appellant was their landlord's son.
12. I find that this was not a case of a fleeting glance or a stranger but a case of a child identifying a person well known to her, in a familiar environment. The trial court correctly found that the child's evidence was credible and that there was no evidence of coaching or a motive to falsely implicate the Appellant. Where the testimony of a victim of sexual offence is found to be truthful, the same need not be corroborated. The Court must however give reasons for believing such testimony. In the case of Mohamed vs. Republic [2006] 2 KLR 138 the Court of Appeal stated:
It is now settled that the courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful .
13. The trial magistrate did exactly that, stating that he found no inconsistencies in B.M’s evidence and that she was telling the truth. The defence alibi was that the Appellant was in a shamba on 10 th February 2020 on the arrest date and that others claimed he was not at the shop on 29 th January 2020. This alibi was weak and the trial court correctly noted the defence was an afterthought and was inconsistent with the unchallenged evidence of identification by recognition. The trial court's failure to order an investigation into the alibi is not an error in law and whereas I agree that the burden of proof lies on the prosecution, the alibi must be raised at the earliest opportunity to be properly investigated, which it was not (see Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR) . In the end, I find that the Appellant was properly identified.
14. The court’s findings above lead me to conclude that the Appellant’s conviction was safe and that his appeal on this aspect fails. I now turn to the issue of his sentence where as stated in the introductory part, the Prosecution has filed a notice to enhance the sentence from 15 years to life imprisonment. The trial court sentenced the Appellant to 15 years imprisonment, after considering that he is a first offender. As stated, the Appellant was charged with defilement under section 8(2) of the Sexual Offences Act which provides that “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 .” This is a mandatory minimum sentence and I am in agreement with the Prosecution’s submission that this issue was settled by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) where it was held that as long as section 8 of the Sexual Offences Act remains valid, the mandatory minimum sentences are constitutional and lawful, emphasizing those minimum sentences “ set the floor rather than the ceiling leaving it open to the discretion of the courts to impose a harsher sentence ” depending on the circumstances of each case.
15. In reaching this decision, the apex court drew a critical and binding distinction between a "mandatory sentence," which leaves no discretion and a "minimum sentence," which sets a floor below which a court cannot go but allows for the imposition of a harsher sentence. The court expressly noted that its earlier decision in the Muruatetu case did not address minimum sentences as found in the Sexual Offences Act. Consequently, I find that the trial magistrate in this case was bound by the law. The statutory minimum sentence for defiling a child aged 11 years or less, as provided under section 8(2) of the Act , is life imprisonment. The trial court had no discretion to reduce this sentence to 15 years and I find that the Prosecution’s application for enhancement of the sentence is therefore correct and is allowed.
Conclusion and Disposition
16. For the reasons set out above, I find that the Appellant’s appeal lacks merit and it is hereby dismissed. The Respondent's Notice of Enhancement of Sentence dated 5 th June 2025 is allowed and the 15-year sentence meted by the trial court is set aside and substituted with a sentence of life imprisonment.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Onkangi for the Appellant
2. Mr. Mangare for the Republic
3. Abdisalan- Court Assistant
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