1. The appellant, Safari Ngotho alias Boss Kivisi, was charged before the with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars alleged that on 29th October 2022 at about 1.30 p.m. at Kyamatu Village, Kanzau Sub-location, Katwala Location within Kisasi Sub-County, Kitui County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of T.M., a child aged nine years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Appellant pleaded not guilty to both counts.
3. Appellant pleaded not guilty and the prosecution called five witnesses in support of its case.
4. PW1 was the complainant, T.M., a child stated that she was ten years old. A voire dire examination was conducted before she was sworn and her evidence received. Complainant testified that on 29th October 2022, after leaving school, she went home where the appellant, whom she knew as her uncle, called her into his house. He removed her clothes and subjected her to a sexual act which she described as “tabia mbaya.” She stated that he inserted his sexual organ into her from behind while she was lying down. She identified the appellant in court and stated that he had previously subjected her to the same act. She later disclosed the incident to her father, who took her to Nzangathi and thereafter for medical attention. PW1 maintained that she had gone into the appellant’s house alone after he called her.
5. PW2, Malanga Mwikali, the complainant’s father and the appellant’s brother, testified that on the material day he returned from a ceremony and, upon being informed by the younger child that the complainant was in the appellant’s house, went there looking for her. When he called her, the appellant emerged from the house wrapped in a towel, followed by the complainant. On asking the complainant what she had been doing there, she told him that the appellant had done “tabia mbaya” to her. She further disclosed that the appellant had subjected her to the same act about one month earlier. PW2 also acknowledged the strained relationship between him and the appellant arising from allegations that the appellant had been involved with his wife, although he denied that the dispute had caused him to threaten or seek revenge against the appellant.
6. PW3, Mwikali Kavithe, the complainant’s grandmother and the appellant’s mother, testified that PW2 informed her that the complainant had been found with the appellant. She thereafter took the complainant to the police and hospital. The complainant told her that the appellant had called her into his house, removed her clothes and done “tabia mbaya” to her. PW3 likewise acknowledged the previous allegations and disagreement between PW2 and the appellant concerning PW2’s wife.
7. PW4, No. 245339 PC W. Lily Jonathan, the investigating officer, upon receipt of the complaint at Nzangathi Police Post, booked under OB No. 8 of 29th October 2022, commenced investigations, visited the scene at Kyamatu Village, arranged for the complainant’s further medical examination and recorded statements. She subsequently arrested the appellant at Mbitini Shopping Centre on 6th November 2022 and identified him in court.
8. PW5, Ruth Musyoka, a clinical officer at Nzangathi Health Centre, produced the P3 form dated 2nd November 2022 as PEXH. 1. The form recorded the complainant’s age as nine years and documented soiling of the inner wear with whitish discharge, redness and lacerations of the labia minora, redness of the vaginal walls with whitish discharge and dysuria. The injuries were assessed as approximately 23 hours and 40 minutes old.
9. Upon being placed on his defence, the appellant attributed the complaint to his strained relationship with PW2, which arose from a family land dispute and allegations that he had been involved in an improper relationship with PW2’s wife. He testified that the allegations had caused hostility between them and led to family meetings and intervention by relatives and the local administration.
10. In relation to 29th October 2022, he stated that he returned from the farm at about 11.00 a.m., prepared lunch and later rested in his sitting room, where his nephew Tito took his telephone and was joined by Trizah and her younger brother to look at photographs. He then took a towel and went towards the bathroom, whereupon PW2 arrived, found the children in his house and an argument ensued. He denied sexually assaulting the complainant, maintaining that she had been instructed to make the allegation against him.
11. The trial court delivered its judgment on 30th July 2024, convicted the appellant on the main count of defilement, deferred sentencing to 14th August 2024 and, on that date, sentenced him to life imprisonment.
12. The appellant lodged this appeal by a Memorandum of Appeal dated 20th August 2024, challenging his conviction and the resulting sentence. His written submissions dated 25th August 2026 raise five grounds against the conviction: a defective charge; failure to prove the case to the required standard; improper admission of the medical evidence; an improperly conducted voire dire; and non-compliance with sections 124 of the Evidence Act and 199 of the Criminal Procedure Code. He separately contends that the life sentence imposed is harsh and excessive, and asks the Court to quash the conviction, set aside the sentence, and order his release.
13. The respondent, opposing the appeal, submits in its response dated 31st August 2026 that the charge adequately informed the appellant of the offence; that the complainant's age, penetration, and the appellant's identity were all established to the required standard; that the medical evidence was properly admitted; that the voire dire complied with section 19 of the Oaths and Statutory Declarations Act; that the trial court gave reasons for believing the complainant as section 124 requires; and that no breach of section 199, nor any resulting prejudice, has been shown. It urges dismissal of the appeal.
14. As a first appellate court, I have reconsidered and re-evaluated the evidence afresh, reaching my own conclusions while bearing in mind that I neither saw nor heard the witnesses as set out in Okeno v Republic [1972] EA 32 and I consider the following issues to arise for determination:
1) Whether the charge was defective and, if so, whether prejudice was occasioned;
2) Whether the voire dire examination complied with section 19;
3) Whether the ingredients of defilement were proved
4) Whether the medical evidence was properly admitted and what weight it bears;
5) Whether section 124 was complied with
6) Whether section 199 was violated
7) Whether the appellant's defence properly considered and
8) Whether the conviction and sentence should stand.
15. The first issue concerns the alleged defect in the charge sheet. The appellant contended that the particulars did not sufficiently state the intentional and unlawful nature of the conduct and that PW1's evidence was at variance with the particulars. The respondent submitted that the charge expressly stated that the appellant "intentionally and unlawfully" inserted his genital organ into the genitalia of T.M., and that no prejudice was occasioned.
16. The applicable test is not whether a charge is drafted with mathematical precision, but whether the particulars sufficiently disclose the offence and whether any defect has occasioned prejudice. In Benard Ombuna v Republic [2019] KECA 994 (KLR), the Court of Appeal held that the test for determining whether a charge is fatally defective is substantive rather than formalistic, the critical question being whether the accused understood the charge and was thereby able to mount an appropriate defence. The Court of Appeal in Yongo v Republic [2024] KECA 633 (KLR) likewise examined the particulars together with the evidence and the question of prejudice, reinforcing the need to consider the substance of the charge and its effect, if any, upon the accused.
17. In the present case, the main count expressly alleged that the appellant "intentionally and unlawfully" caused his genital organ to penetrate the complainant's genitalia. The complaint that the word "intentionally" was absent is contradicted by the charge sheet itself. The appellant participated in the proceedings, cross-examined the prosecution witnesses and gave a defence directed to the allegation. His complaint concerning PW1's description that the appellant "entered me in my behind" does not alter the ingredients of the offence stated in the charge; the precise position from which penetration occurred was not an ingredient requiring separate pleading. No defect occasioning prejudice has been demonstrated, and this ground fails.
18. The second issue concerns whether the voire dire examination complied with section 19.
19. The appellant relied on Nyasani s/o Bichana v Republic [1958] EA 190, which requires the court, before receiving the evidence of a child on oath, to inquire whether the child understands the nature of an oath; where the child does not, the court must consider whether she possesses sufficient intelligence to justify reception of her evidence and understands the duty of speaking the truth.
20. The record shows that the trial court undertook that inquiry before receiving PW1's evidence on oath. PW1 was questioned on her understanding of truth and falsehood and stated that she had been taught not to lie, that a person who lies goes to hell and that one who tells the truth goes to God. The trial court recorded a finding that she understood the nature of the oath and proceeded to receive her sworn evidence. Although the inquiry was brief, it was not absent, and I am not persuaded that the requirements for receiving her sworn evidence were violated. This ground fails.
21. The third issue concerns whether the prosecution proved the the ingredients of defilement.
22. Section 8(2) of the Sexual Offences Act prescribes life imprisonment where the child in respect of whom the offence is committed is aged eleven years or less. The material question is therefore whether, on 29th October 2022, the complainant fell within that statutory age bracket. PW1 stated that she was 10 years old, PW2 stated that she was 11 years old, while the P3 form recorded her age as 9 years. The appellant challenged proof of age, pointing to the absence of a birth certificate, baptismal card or birth notification.
23. In Kaingu Elias Kasomo v Republic, Criminal Appeal No. 504 of 2010 (unreported), the Court of Appeal emphasised the importance of proving the age of a complainant in a defilement case, since age determines the applicable provision of the Sexual Offences Act and the sentence that follows.
24. The trial magistrate considered the discrepancy and preferred PW2's evidence that the complainant was 11 years old; PW2, as her father, gave evidence relevant to that determination. More importantly, none of the ages given placed the complainant outside the category of a child aged eleven years or below contemplated by section 8(2) of the Sexual Offences Act. Age was therefore proved beyond reasonable doubt.
25. On the issue of penetration, PW1 stated that the appellant did "tabia mbaya", that he "entered me in my behind" and that he put "dudu yake ya kukojoa huku nyuma" on her. The issue is whether, in the context of her age and the evidence as a whole, those words sufficiently described penetration.
26. In Muganga Chilejo Saha v Republic [2017] KECA 359 (KLR), the Court of Appeal recognised that children may describe sexual acts using their own language and euphemisms rather than technical anatomical terminology, and cautioned against rejecting a child's evidence merely because she did not describe the act in adult or medical language.
27. PW1's evidence, considered in that context, was a description of an actual act of penetration; she did not merely state that the appellant touched her or behaved improperly, but that he "entered" her and referred to his genital organ. Her account was further supported by the medical findings recorded in the P3 a soiled inner garment, whitish discharge, reddened and lacerated labia minora, reddened vaginal walls and dysuria. Those findings, while not conclusive as to cause or timing (a matter addressed further under Issue 6), corroborated her direct account. I am satisfied that, considered as a whole, the evidence established penetration beyond reasonable doubt.
28. On the issue of identity of the perpetrator, this was a case of recognition rather than identification of a stranger. PW1 knew the appellant as her uncle. The incident occurred during the day after the appellant summoned her to view pictures on his phone. PW2 subsequently saw the appellant emerge from the house with a towel while the complainant was inside, and the appellant himself admitted being in the house with PW1.
29. The circumstances afforded PW1 a clear opportunity to recognise the appellant; her evidence did not depend on a fleeting observation of a stranger or a subsequent identification parade. I find the evidence of recognition reliable and sufficient to establish his identity as the perpetrator.
30. The fourth issue concerns whether the medical evidence was properly admitted and the weight to be attached to it.
31. PW5 was the maker of the P3 form and testified as to its preparation and findings. The fact that the Post Rape Care Form had been prepared by Judy Mutende Mwanzia, who was not called as a witness, did not render the P3 inadmissible. The two documents are distinct, and the admissibility of the P3 falls to be assessed on the evidence concerning its own preparation and production.
32. The prosecution did not depend on the PRC form to establish penetration. The P3 form was properly produced by PW5, its maker, who testified to the findings recorded therein. The absence of the PRC form did not render the medical evidence inadmissible or diminish the evidential value of the P3.
33. The P3 findings, considered together with PW1's direct evidence of penetration, materially supported her account. I therefore find that the failure to tender the PRC form was not fatal to the prosecution case. The medical evidence was properly admitted and, on the evidence of PW5, was properly available for consideration alongside the other evidence.
34. The fifth issue concerns whether Section 124 of the Evidence Act was properly considered.
35. Section 124 of the Evidence Act permits a conviction for a sexual offence on the evidence of the alleged victim alone where the court records reasons for believing that she is telling the truth. The requirement is that the trial court demonstrate from the record why it accepted the complainant’s evidence as truthful; it does not require that her evidence invariably be corroborated.
36. The appellant took issue with the trial magistrate’s reliance on PW1’s demeanour, noting that she hesitated, looked solemn, looked down and appeared downcast, and submitted that adequate reasons for believing her were not recorded. In assessing a child’s evidence, the court must consider the substance of the testimony, its consistency with the surrounding circumstances and demeanour, exercising due caution: Chila v Republic [1967] EA 722.
37. The trial magistrate did not merely state that PW1 was believed. The judgment considered her account of events, the P3 findings and the surrounding circumstances, and expressly found her credible. Having independently reconsidered her evidence, I find it substantially consistent on the material particulars. PW1 identified the appellant, described the sexual act in language appropriate to her age and placed him with her at the material time. Her account was also supported by the medical findings.
38. I am therefore satisfied that the trial magistrate recorded reasons for believing PW1 and properly applied section 124 of the Evidence Act. This ground fails.
39. The sixth issue is whether section 199 of the Criminal Procedure Code was violated.
40. Section 199 requires a magistrate who has recorded a witness's evidence to record such remarks as are considered material concerning demeanour. The record contains observations that PW1 hesitated, looked solemn, looked down and appeared downcast; those observations were made in the course of evaluating her testimony, not as a substitute for it, and were considered alongside the substance of her account and the other evidence on record.
41. The appellant has not demonstrated that any material evidential step was taken in breach of section 199, or that the manner in which demeanour was recorded occasioned a miscarriage of justice. This ground fails.
42. The seventh issue is whether the appellant’s defence was considered.
43. The Appellant denied the offence and relied on the family disagreement with PW2. He also admitted being in the house with PW1 at the material time. The trial court was required to consider that defence against the prosecution evidence.
44. I have re-evaluated the appellant’s defence alongside PW1’s direct account, her immediate disclosure and the medical evidence. His admitted presence with PW1 at the material time was consistent with her account of the circumstances in which the offence occurred. The evidence of the family disagreement did not, on its own, displace PW1’s evidence or provide a sufficient basis for concluding that she had falsely implicated the appellant.
45. Having considered the defence together with the prosecution evidence, I find that it did not raise a reasonable doubt. The appellant’s defence was therefore properly considered and rejected. This ground fails.
46. The ninth issue is whether the conviction and sentence should stand. Having reconsidered the entire record and the findings made on the preceding issues, I am satisfied that the prosecution proved the charge beyond reasonable doubt. The evidence established that the complainant was within the age bracket prescribed under section 8(2) of the Sexual Offences Act, that penetration occurred and that the appellant was the person who committed the offence.
47. I have also considered the appellant’s contention that the family disagreement could have provided a motive for a false accusation. That contention does not, in the circumstances of this case, raise a reasonable doubt when considered against the totality of the prosecution evidence.
48. The conviction entered on 30th July 2024 for defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act is therefore safe and is upheld.
49. On sentence, section 8(2) of the Sexual Offences Act prescribes life imprisonment where the child defiled is aged eleven years or less. Having found that the complainant fell within that statutory age category, and there being no demonstrated error of principle in the sentence imposed on 14th August 2024 after consideration of mitigation, I find no basis upon which to interfere with the sentence.
50. Accordingly, the appeal against both conviction and sentence is dismissed. The conviction and sentence are upheld.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Appellant pleaded not guilty to both counts.
3. Appellant pleaded not guilty and the prosecution called five witnesses in support of its case.
4. PW1 was the complainant, T.M., a child stated that she was ten years old. A voire dire examination was conducted before she was sworn and her evidence received. Complainant testified that on 29th October 2022, after leaving school, she went home where the appellant, whom she knew as her uncle, called her into his house. He removed her clothes and subjected her to a sexual act which she described as “tabia mbaya.” She stated that he inserted his sexual organ into her from behind while she was lying down. She identified the appellant in court and stated that he had previously subjected her to the same act. She later disclosed the incident to her father, who took her to Nzangathi and thereafter for medical attention. PW1 maintained that she had gone into the appellant’s house alone after he called her.
5. PW2, Malanga Mwikali, the complainant’s father and the appellant’s brother, testified that on the material day he returned from a ceremony and, upon being informed by the younger child that the complainant was in the appellant’s house, went there looking for her. When he called her, the appellant emerged from the house wrapped in a towel, followed by the complainant. On asking the complainant what she had been doing there, she told him that the appellant had done “tabia mbaya” to her. She further disclosed that the appellant had subjected her to the same act about one month earlier. PW2 also acknowledged the strained relationship between him and the appellant arising from allegations that the appellant had been involved with his wife, although he denied that the dispute had caused him to threaten or seek revenge against the appellant.
6. PW3, Mwikali Kavithe, the complainant’s grandmother and the appellant’s mother, testified that PW2 informed her that the complainant had been found with the appellant. She thereafter took the complainant to the police and hospital. The complainant told her that the appellant had called her into his house, removed her clothes and done “tabia mbaya” to her. PW3 likewise acknowledged the previous allegations and disagreement between PW2 and the appellant concerning PW2’s wife.
7. PW4, No. 245339 PC W. Lily Jonathan, the investigating officer, upon receipt of the complaint at Nzangathi Police Post, booked under OB No. 8 of 29th October 2022, commenced investigations, visited the scene at Kyamatu Village, arranged for the complainant’s further medical examination and recorded statements. She subsequently arrested the appellant at Mbitini Shopping Centre on 6th November 2022 and identified him in court.
8. PW5, Ruth Musyoka, a clinical officer at Nzangathi Health Centre, produced the P3 form dated 2nd November 2022 as PEXH. 1. The form recorded the complainant’s age as nine years and documented soiling of the inner wear with whitish discharge, redness and lacerations of the labia minora, redness of the vaginal walls with whitish discharge and dysuria. The injuries were assessed as approximately 23 hours and 40 minutes old.
9. Upon being placed on his defence, the appellant attributed the complaint to his strained relationship with PW2, which arose from a family land dispute and allegations that he had been involved in an improper relationship with PW2’s wife. He testified that the allegations had caused hostility between them and led to family meetings and intervention by relatives and the local administration.
10. In relation to 29th October 2022, he stated that he returned from the farm at about 11.00 a.m., prepared lunch and later rested in his sitting room, where his nephew Tito took his telephone and was joined by Trizah and her younger brother to look at photographs. He then took a towel and went towards the bathroom, whereupon PW2 arrived, found the children in his house and an argument ensued. He denied sexually assaulting the complainant, maintaining that she had been instructed to make the allegation against him.
11. The trial court delivered its judgment on 30th July 2024, convicted the appellant on the main count of defilement, deferred sentencing to 14th August 2024 and, on that date, sentenced him to life imprisonment.
12. The appellant lodged this appeal by a Memorandum of Appeal dated 20th August 2024, challenging his conviction and the resulting sentence. His written submissions dated 25th August 2026 raise five grounds against the conviction: a defective charge; failure to prove the case to the required standard; improper admission of the medical evidence; an improperly conducted voire dire; and non-compliance with sections 124 of the Evidence Act and 199 of the Criminal Procedure Code. He separately contends that the life sentence imposed is harsh and excessive, and asks the Court to quash the conviction, set aside the sentence, and order his release.
13. The respondent, opposing the appeal, submits in its response dated 31st August 2026 that the charge adequately informed the appellant of the offence; that the complainant's age, penetration, and the appellant's identity were all established to the required standard; that the medical evidence was properly admitted; that the voire dire complied with section 19 of the Oaths and Statutory Declarations Act; that the trial court gave reasons for believing the complainant as section 124 requires; and that no breach of section 199, nor any resulting prejudice, has been shown. It urges dismissal of the appeal.
14. As a first appellate court, I have reconsidered and re-evaluated the evidence afresh, reaching my own conclusions while bearing in mind that I neither saw nor heard the witnesses as set out in Okeno v Republic [1972] EA 32 and I consider the following issues to arise for determination:
1) Whether the charge was defective and, if so, whether prejudice was occasioned;
2) Whether the voire dire examination complied with section 19;
3) Whether the ingredients of defilement were proved
4) Whether the medical evidence was properly admitted and what weight it bears;
5) Whether section 124 was complied with
6) Whether section 199 was violated
7) Whether the appellant's defence properly considered and
8) Whether the conviction and sentence should stand.
15. The first issue concerns the alleged defect in the charge sheet. The appellant contended that the particulars did not sufficiently state the intentional and unlawful nature of the conduct and that PW1's evidence was at variance with the particulars. The respondent submitted that the charge expressly stated that the appellant "intentionally and unlawfully" inserted his genital organ into the genitalia of T.M., and that no prejudice was occasioned.
16. The applicable test is not whether a charge is drafted with mathematical precision, but whether the particulars sufficiently disclose the offence and whether any defect has occasioned prejudice. In Benard Ombuna v Republic [2019] KECA 994 (KLR), the Court of Appeal held that the test for determining whether a charge is fatally defective is substantive rather than formalistic, the critical question being whether the accused understood the charge and was thereby able to mount an appropriate defence. The Court of Appeal in Yongo v Republic [2024] KECA 633 (KLR) likewise examined the particulars together with the evidence and the question of prejudice, reinforcing the need to consider the substance of the charge and its effect, if any, upon the accused.
17. In the present case, the main count expressly alleged that the appellant "intentionally and unlawfully" caused his genital organ to penetrate the complainant's genitalia. The complaint that the word "intentionally" was absent is contradicted by the charge sheet itself. The appellant participated in the proceedings, cross-examined the prosecution witnesses and gave a defence directed to the allegation. His complaint concerning PW1's description that the appellant "entered me in my behind" does not alter the ingredients of the offence stated in the charge; the precise position from which penetration occurred was not an ingredient requiring separate pleading. No defect occasioning prejudice has been demonstrated, and this ground fails.
18. The second issue concerns whether the voire dire examination complied with section 19.
19. The appellant relied on Nyasani s/o Bichana v Republic [1958] EA 190, which requires the court, before receiving the evidence of a child on oath, to inquire whether the child understands the nature of an oath; where the child does not, the court must consider whether she possesses sufficient intelligence to justify reception of her evidence and understands the duty of speaking the truth.
20. The record shows that the trial court undertook that inquiry before receiving PW1's evidence on oath. PW1 was questioned on her understanding of truth and falsehood and stated that she had been taught not to lie, that a person who lies goes to hell and that one who tells the truth goes to God. The trial court recorded a finding that she understood the nature of the oath and proceeded to receive her sworn evidence. Although the inquiry was brief, it was not absent, and I am not persuaded that the requirements for receiving her sworn evidence were violated. This ground fails.
21. The third issue concerns whether the prosecution proved the the ingredients of defilement.
22. Section 8(2) of the Sexual Offences Act prescribes life imprisonment where the child in respect of whom the offence is committed is aged eleven years or less. The material question is therefore whether, on 29th October 2022, the complainant fell within that statutory age bracket. PW1 stated that she was 10 years old, PW2 stated that she was 11 years old, while the P3 form recorded her age as 9 years. The appellant challenged proof of age, pointing to the absence of a birth certificate, baptismal card or birth notification.
23. In Kaingu Elias Kasomo v Republic, Criminal Appeal No. 504 of 2010 (unreported), the Court of Appeal emphasised the importance of proving the age of a complainant in a defilement case, since age determines the applicable provision of the Sexual Offences Act and the sentence that follows.
24. The trial magistrate considered the discrepancy and preferred PW2's evidence that the complainant was 11 years old; PW2, as her father, gave evidence relevant to that determination. More importantly, none of the ages given placed the complainant outside the category of a child aged eleven years or below contemplated by section 8(2) of the Sexual Offences Act. Age was therefore proved beyond reasonable doubt.
25. On the issue of penetration, PW1 stated that the appellant did "tabia mbaya", that he "entered me in my behind" and that he put "dudu yake ya kukojoa huku nyuma" on her. The issue is whether, in the context of her age and the evidence as a whole, those words sufficiently described penetration.
26. In Muganga Chilejo Saha v Republic [2017] KECA 359 (KLR), the Court of Appeal recognised that children may describe sexual acts using their own language and euphemisms rather than technical anatomical terminology, and cautioned against rejecting a child's evidence merely because she did not describe the act in adult or medical language.
27. PW1's evidence, considered in that context, was a description of an actual act of penetration; she did not merely state that the appellant touched her or behaved improperly, but that he "entered" her and referred to his genital organ. Her account was further supported by the medical findings recorded in the P3 a soiled inner garment, whitish discharge, reddened and lacerated labia minora, reddened vaginal walls and dysuria. Those findings, while not conclusive as to cause or timing (a matter addressed further under Issue 6), corroborated her direct account. I am satisfied that, considered as a whole, the evidence established penetration beyond reasonable doubt.
28. On the issue of identity of the perpetrator, this was a case of recognition rather than identification of a stranger. PW1 knew the appellant as her uncle. The incident occurred during the day after the appellant summoned her to view pictures on his phone. PW2 subsequently saw the appellant emerge from the house with a towel while the complainant was inside, and the appellant himself admitted being in the house with PW1.
29. The circumstances afforded PW1 a clear opportunity to recognise the appellant; her evidence did not depend on a fleeting observation of a stranger or a subsequent identification parade. I find the evidence of recognition reliable and sufficient to establish his identity as the perpetrator.
30. The fourth issue concerns whether the medical evidence was properly admitted and the weight to be attached to it.
31. PW5 was the maker of the P3 form and testified as to its preparation and findings. The fact that the Post Rape Care Form had been prepared by Judy Mutende Mwanzia, who was not called as a witness, did not render the P3 inadmissible. The two documents are distinct, and the admissibility of the P3 falls to be assessed on the evidence concerning its own preparation and production.
32. The prosecution did not depend on the PRC form to establish penetration. The P3 form was properly produced by PW5, its maker, who testified to the findings recorded therein. The absence of the PRC form did not render the medical evidence inadmissible or diminish the evidential value of the P3.
33. The P3 findings, considered together with PW1's direct evidence of penetration, materially supported her account. I therefore find that the failure to tender the PRC form was not fatal to the prosecution case. The medical evidence was properly admitted and, on the evidence of PW5, was properly available for consideration alongside the other evidence.
34. The fifth issue concerns whether Section 124 of the Evidence Act was properly considered.
35. Section 124 of the Evidence Act permits a conviction for a sexual offence on the evidence of the alleged victim alone where the court records reasons for believing that she is telling the truth. The requirement is that the trial court demonstrate from the record why it accepted the complainant’s evidence as truthful; it does not require that her evidence invariably be corroborated.
36. The appellant took issue with the trial magistrate’s reliance on PW1’s demeanour, noting that she hesitated, looked solemn, looked down and appeared downcast, and submitted that adequate reasons for believing her were not recorded. In assessing a child’s evidence, the court must consider the substance of the testimony, its consistency with the surrounding circumstances and demeanour, exercising due caution: Chila v Republic [1967] EA 722.
37. The trial magistrate did not merely state that PW1 was believed. The judgment considered her account of events, the P3 findings and the surrounding circumstances, and expressly found her credible. Having independently reconsidered her evidence, I find it substantially consistent on the material particulars. PW1 identified the appellant, described the sexual act in language appropriate to her age and placed him with her at the material time. Her account was also supported by the medical findings.
38. I am therefore satisfied that the trial magistrate recorded reasons for believing PW1 and properly applied section 124 of the Evidence Act. This ground fails.
39. The sixth issue is whether section 199 of the Criminal Procedure Code was violated.
40. Section 199 requires a magistrate who has recorded a witness's evidence to record such remarks as are considered material concerning demeanour. The record contains observations that PW1 hesitated, looked solemn, looked down and appeared downcast; those observations were made in the course of evaluating her testimony, not as a substitute for it, and were considered alongside the substance of her account and the other evidence on record.
41. The appellant has not demonstrated that any material evidential step was taken in breach of section 199, or that the manner in which demeanour was recorded occasioned a miscarriage of justice. This ground fails.
42. The seventh issue is whether the appellant’s defence was considered.
43. The Appellant denied the offence and relied on the family disagreement with PW2. He also admitted being in the house with PW1 at the material time. The trial court was required to consider that defence against the prosecution evidence.
44. I have re-evaluated the appellant’s defence alongside PW1’s direct account, her immediate disclosure and the medical evidence. His admitted presence with PW1 at the material time was consistent with her account of the circumstances in which the offence occurred. The evidence of the family disagreement did not, on its own, displace PW1’s evidence or provide a sufficient basis for concluding that she had falsely implicated the appellant.
45. Having considered the defence together with the prosecution evidence, I find that it did not raise a reasonable doubt. The appellant’s defence was therefore properly considered and rejected. This ground fails.
46. The ninth issue is whether the conviction and sentence should stand. Having reconsidered the entire record and the findings made on the preceding issues, I am satisfied that the prosecution proved the charge beyond reasonable doubt. The evidence established that the complainant was within the age bracket prescribed under section 8(2) of the Sexual Offences Act, that penetration occurred and that the appellant was the person who committed the offence.
47. I have also considered the appellant’s contention that the family disagreement could have provided a motive for a false accusation. That contention does not, in the circumstances of this case, raise a reasonable doubt when considered against the totality of the prosecution evidence.
48. The conviction entered on 30th July 2024 for defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act is therefore safe and is upheld.
49. On sentence, section 8(2) of the Sexual Offences Act prescribes life imprisonment where the child defiled is aged eleven years or less. Having found that the complainant fell within that statutory age category, and there being no demonstrated error of principle in the sentence imposed on 14th August 2024 after consideration of mitigation, I find no basis upon which to interfere with the sentence.
50. Accordingly, the appeal against both conviction and sentence is dismissed. The conviction and sentence are upheld.