1. Rodgers Nabwera Wafukho, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on the 25th day of May 2020 at Kodero Bara area in Rongo sub-County within Migori County, intentionally and unlawfully caused his penis to penetrate the vagina of R.A.O., a child aged 12 years.
3. The appellant was sentenced to twenty years’ imprisonment. He was aggrieved and filed this appeal against both the conviction and the sentence. He raised grounds of appeal as follows:
a) That the trial court erred in both law and fact by not observing that the ingredients of the offence herein were not proved as required in law.
b) That the trial court erred in both law and fact by failing to comply with article 50 (2) (g) (h) of the Kenyan Constitution 2010.
4. The state opposed the appeal through learned counsel, Elizabeth Kogos. She argued that the offence was proven to the required standards and that the constitution was not in any way violated.
5. This is a first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court afresh. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.
6. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator and
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR. Ngugi J. (as he was then) said:
Going by this definition of defilement… the issues which the court needs to determine…first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
7. I will determine if the prosecution proved these ingredients to the required standards.
8. A copy of the certificate of birth of R.A.O (PW2), the complainant, indicates that she was born on the 28th day of October 2007. As of the 25th day of May 2020, she was 12 years and seven months old. The complainant's age was therefore proved as required.
9. R.A.O., the complainant, testified that she was playing with her siblings. The appellant called her. She went where he was. He took her to his house. He removed her pants and defiled her on the bed. When she attempted to scream, he hushed her. The following day, the appellant called her again and defiled her. She bled for two days.
10. S.O.O.(PW1) is the complainant’s father. His evidence was that the complainant’s siblings reported that she was bleeding from her genitalia. Initially, he assumed it was menses, but when it persisted, they interrogated the child with her mother. This is when she implicated the appellant. The matter was reported, and the complainant was taken to the hospital.
11. Lilian Nyaboke (PW3) examined the complainant on June 8, 2020, and found her hymen to be broken. During the initial examination on June 7, 2020, the hymen was also noted as broken, with no visible bleeding. There were no bruises on the vaginal wall, and her genitalia appeared normal.
12. The medical evidence contradicted the evidence of the complainant’s father, who testified that she bled for about 12 weeks. If indeed this was true, the clinical officer who examined her ought to have seen this evidence.
13. The complainant testified that the next day, the appellant summoned her to his house and again violated her. This is perplexing because if an adult had abused her, it would have been extremely painful, and it seems unlikely she would go willingly again the following day, fully aware of her past experience. In the case of Ben Maina Mwangi v Republic [2006] eKLR, Lesiit, J. (t as she was, then) noted:
Bearing in mind she was a child of tender years being only 4 years at the time, for the offence to be proved there should have been evidence adduced to show that the Appellant used some force on her or something tending to show an assault or infliction of pain. At least some evidence needed to be adduced from which it could be construed that defilement took place. Considering the Complainant’s age as compared to the Appellant, if any attempt were made to penetrate the Complainant’s private parts, it would be expected that the Complainant must have felt pain, if not excruciating pain. There is no way the Complainant would forget the experience or that detail in her evidence.
I fully associate myself with the learned judge's observation in this case.
14. The prosecution either intentionally withheld crucial evidence or failed to understand what needed to be proved. The sole remaining evidence was the broken hymen. However, a broken hymen alone cannot establish that penetration occurred. The Court of Appeal shared this view in P. K.W vs Republic [2012] eKLR], noting that:
“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse.
16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it, like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769.”
15. The contradictions between the complainant, her father, and the medical evidence regarding bleeding, along with the absence of evidence of injury to the minor’s genitalia and the complainant’s voluntary visit to the appellant’s house the next day, create, if anything, a reasonable doubt about whether she was defiled.
16. Having considered the foregoing analysis of the evidence on record, I find that the appellant's conviction was unsafe. The conviction is quashed and the sentence set aside. The appellant is set free unless otherwise lawfully held.
Delivered and signed at Migori, this 23rd day of February 2026
2. The particulars of the offence are that on the 25th day of May 2020 at Kodero Bara area in Rongo sub-County within Migori County, intentionally and unlawfully caused his penis to penetrate the vagina of R.A.O., a child aged 12 years.
3. The appellant was sentenced to twenty years’ imprisonment. He was aggrieved and filed this appeal against both the conviction and the sentence. He raised grounds of appeal as follows:
a) That the trial court erred in both law and fact by not observing that the ingredients of the offence herein were not proved as required in law.
b) That the trial court erred in both law and fact by failing to comply with article 50 (2) (g) (h) of the Kenyan Constitution 2010.
4. The state opposed the appeal through learned counsel, Elizabeth Kogos. She argued that the offence was proven to the required standards and that the constitution was not in any way violated.
5. This is a first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court afresh. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.
6. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator and
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR. Ngugi J. (as he was then) said:
Going by this definition of defilement… the issues which the court needs to determine…first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
7. I will determine if the prosecution proved these ingredients to the required standards.
8. A copy of the certificate of birth of R.A.O (PW2), the complainant, indicates that she was born on the 28th day of October 2007. As of the 25th day of May 2020, she was 12 years and seven months old. The complainant's age was therefore proved as required.
9. R.A.O., the complainant, testified that she was playing with her siblings. The appellant called her. She went where he was. He took her to his house. He removed her pants and defiled her on the bed. When she attempted to scream, he hushed her. The following day, the appellant called her again and defiled her. She bled for two days.
10. S.O.O.(PW1) is the complainant’s father. His evidence was that the complainant’s siblings reported that she was bleeding from her genitalia. Initially, he assumed it was menses, but when it persisted, they interrogated the child with her mother. This is when she implicated the appellant. The matter was reported, and the complainant was taken to the hospital.
11. Lilian Nyaboke (PW3) examined the complainant on June 8, 2020, and found her hymen to be broken. During the initial examination on June 7, 2020, the hymen was also noted as broken, with no visible bleeding. There were no bruises on the vaginal wall, and her genitalia appeared normal.
12. The medical evidence contradicted the evidence of the complainant’s father, who testified that she bled for about 12 weeks. If indeed this was true, the clinical officer who examined her ought to have seen this evidence.
13. The complainant testified that the next day, the appellant summoned her to his house and again violated her. This is perplexing because if an adult had abused her, it would have been extremely painful, and it seems unlikely she would go willingly again the following day, fully aware of her past experience. In the case of Ben Maina Mwangi v Republic [2006] eKLR, Lesiit, J. (t as she was, then) noted:
Bearing in mind she was a child of tender years being only 4 years at the time, for the offence to be proved there should have been evidence adduced to show that the Appellant used some force on her or something tending to show an assault or infliction of pain. At least some evidence needed to be adduced from which it could be construed that defilement took place. Considering the Complainant’s age as compared to the Appellant, if any attempt were made to penetrate the Complainant’s private parts, it would be expected that the Complainant must have felt pain, if not excruciating pain. There is no way the Complainant would forget the experience or that detail in her evidence.
I fully associate myself with the learned judge's observation in this case.
14. The prosecution either intentionally withheld crucial evidence or failed to understand what needed to be proved. The sole remaining evidence was the broken hymen. However, a broken hymen alone cannot establish that penetration occurred. The Court of Appeal shared this view in P. K.W vs Republic [2012] eKLR], noting that:
“15. In their analysis of the evidence on record, the two courts below do not seem to have directed their minds to these details. They appear to have placed a high premium on the finding that the child’s hymen had been broken. Was this justified" Is hymen only ruptured by sexual intercourse.
16. Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina (sic) with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it, like the use of tampons, masturbation injury, and medical examinations can also rupture the hymen when a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be a natural tearing of the hymen. See the Canadian case of The Queen vs Manuel Vincent Quintanila [1999] AB QB 769.”
15. The contradictions between the complainant, her father, and the medical evidence regarding bleeding, along with the absence of evidence of injury to the minor’s genitalia and the complainant’s voluntary visit to the appellant’s house the next day, create, if anything, a reasonable doubt about whether she was defiled.
16. Having considered the foregoing analysis of the evidence on record, I find that the appellant's conviction was unsafe. The conviction is quashed and the sentence set aside. The appellant is set free unless otherwise lawfully held.
Delivered and signed at Migori, this 23rd day of February 2026