(Being an appeal from original conviction and sentence in SOA case at Shanzu CMCR (SO) no E007 of 2023 delivered on 6/1/2024 by Hon LN Juma)
1. The Appellant, Said Mkutano Kitone, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act of 2006. The particulars of the offence are that on 12 th January 2023 at Kajiweni area Bamburi location in Kisauni sub-county within Mombasa county intentionally and unlawfully caused his penis to penetrate the vagina of E.H a child aged 13 years.
2. The accused person also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars are that on 12/1/2023 at Kajiweni area, Bamburi location in Kisauni sub-county within Mombasa County intentionally and unlawfully touched the vagina of E.H child aged 13 years with his penis.
3. The appellant was convicted on the main count and sentenced to serve 20 years’ imprisonment.
4. The appellant was not satisfied with the judgement of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the learned trial magistrate erred in law and fact for failing to consider that prove of the 3 ingredients was in absence of bias.
ii. That the learned trial magistrate erred in law and fact by failing to observe that the laid trap by the prosecution had a malicious effect to the appellant.
iii. That the learned trial magistrate erred in law and fact for not observing that the recovery of the alleged bag and clothes to its production was not in the right process of the law.
iv. The learned magistrate erred in law and fact for not considering that the prosecution case was not proved beyond any reasonable doubt.
v. The learned magistrate erred in law and fact for not considering that I was not accorded a fair trial as required by the Constitution 2010.
Prosecution’s case
6. PW1 E.H (minor) the complainant herein testified that she is in Form 1 at Concordia School and she was born on 17/3/2009. She said she knows the accused as he used to be their neighbor. She told the court that in 2020-2021 during corona the appellant wanted to have a sexual relationship with her and or she becomes his wife but she refused and informed him that she is still a student. She told the court that on one occasion, it was at night around 8.00pm her family was in the house. She was going to the toilet and she found the appellant at their house. The appellant took her to his place and closed the door and forcefully defiled her.
7. PW1 narrated that the appellant had a white vest with strips and a brown short. He removed his under pants and forcefully had sex with her. She said that since it was the first time, his penis did not fully penetrate but she saw sperms on her vagina. She did not tell anyone. On 31/12/2023 while people were celebrating new year eve, the appellant went home with the complainant, he gifted her a yoghurt and cake which they ate together on his bed. Subsequently, he forcefully inserted his penis in her vagina. He also penetrated her anus. He then told her not to tell anyone as it will be dangerous for both of them. She did not tell anyone but she lost track of school as she was traumatized with what the appellant had done to her.
8. In January 2023, she was in pain. On 12/1/2023 the appellant went and told her to pack her things so that they can go and stay together. It was at night. She took her clothes and they went to his house. In the morning she was rescued by her father. She informed the court that the accused has had sex with her for an ultimate of five times. The accused would force her to have sex with him both anal and vaginal sex.
9. PW2 Gladys Mramba testified that PW1 is her little sister. She knows the appellant as they were neighbors. She said on 12/1/2023 she woke up at 4.00am to study and found that her sister was missing. She informed her mother who also informed their father. They reported the matter to the village elder. She said that her young siblings went to play at the appellant’s house and saw the complainant at the appellant house. They informed their father who went to the appellant’s house together with pw2. The appellant tried to run. The police were called and the accused person was arrested.
10. PW3 Athman Omar told the court that pw1 is her daughter. She was born on 17/3/2009. He said that the appellant is his neighbor. Their houses are close to each other. He said that on 12/1/2023 very early in the morning his wife informed him that their daughter was missing. He informed her to go to the police and he left to look for the child. He was informed by his other kids that they had seen pw1 at the appellant’s house. He went there and found pw1 in the appellant’s house. He took her to the police and the appellant was arrested. PW1 was taken to the hospital. The police came back with the appellant and pw1 was directed to go and remove her items and take them back home.
11. PW4 Kanze Charo Karisa told the court that the complainant is her daughter. She was born on 17/3/2009. The appellant was their neighbor; their doors face each other. She said that on 12/1/2023 at 6.00am her daughter (pw2) told her that pw1 was not at home. She had gone with her bag and clothes. Pw4 stated that she went to report the matter to the police after telling her husband. She was then called and informed that pw1 had been found. She went home and took her to the police who told her to take the minor to the hospital.
12. PW5 PC woman Tina Wakesa told the court that she is attached at Concordia Police Post Centre, Vikwatani Police Station. on 12/1/2023 she was assigned the instant case. She told the court that the complainant said that the appellant called her to his house so that they can elope. The report from the hospital confirmed that the minor had been defiled. She said that they visited the appellant’s house and found a bag with the complainant’s clothes inside the appellant’s house. The clothes were retrieved. She produced birth certificate as PEX3. Bag PEX4, black flowered bag assorted clothes inside the bag PEX5 and pair of shoes PEX6.
13. PW6 Dr Gabriel Mugola told the court that he works at Coast General Teaching and Referral Hospital. He presented a PRC form for pw1 which was filled on 12/1/2023 and stamped on 17/1/2023. He said that the victim, on the vagina, there was abrasions, the hymen was broken with an old scar. The anus had healed lacerations. The clothes were clean. He produced the PRC form as PEX1 and P3 form as PEX2.
Defence case
14. DWI Said Mkutano Kitone the accused person testified under oath that on 12/1/2023 at 6.00pm the father to the complainant went to the appellant’s place with his children and asked the appellant if had seen his child. Dw1 said that the victim’s father asked his children to go inside the appellant’s house to confirm if the victim was in his house. They went inside and left after finding the victim was not inside the house. The appellant followed him and asked him what was wrong but he did not respond as he was angry. Suddenly the children screamed “Husna ndio huyo” they turned and saw the victim running.
15. Dw1 told the court that the victim said that she was from her friend’s house. They left and came back after 30 minutes and told the appellant that he is needed at the police station because he was with the minor. He was taken to the police station and was placed in custody. He was then transferred to Kiembeni police station then charged with the instant matter. He told the court that he had borrowed ksh. 1,200/- from the victim’s father and had failed to repay hence the instant matter was scripted because of that.
16. In light of the above, the issues for determination before this court are; -
i. Whether the prosecution proved their case beyond reasonable doubt.
Analysis and Determination
17. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the prosecution proved their case beyond reasonable doubt
18. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“8. Defilement
(1) A person who commits an act which causes penetration with a child is
guilty of an offence termed defilement.
(2) 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.
(3) A person who commits an offence of defilement with a child between the
age of twelve and fifteen years is liable upon conviction to imprisonment for a
term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the
age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
19. Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms;
“11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the
offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
Penetration
20. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case the minor stated in evidence that the appellant would force to have both anal and vaginal sex with her. She told the court that the accused forcefully had sex with her for an ultimate of five times.
21. PW6 Dr Gabriel Mugola told the court that on examination there was abrasions on the victim’s vagina, her hymen was broken and with an old scar and her anus had healed lacerations. This clearly indicates that there was penetration in the minor’s genital.
22. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995 , the court held: -
“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
23. In the above foregoing, I find that the evidence of the victim and that of the Doctor was consistent and sufficient to prove the element of penetration thus there is no reason to disturb the finding of the trial court. I affirm that penetration was proved beyond reasonable doubt.
Age of the victim
24. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal stated that: -
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
25. The child’s certificate of birth on record shows that the minor was born on 17/3/2009. I find that the minor was aged 14 years old at the time of the incident.
Positive identification of the assailant
26. Pw1 told the court that the appellant was their neighbor. Her evidence is corroborated by the evidence of Pw2, pw3 and pw4. The appellant also confirmed that he knew the victim and her family as they were neighbors. It is clear that the parties involved know each other thus there is no room for mistaken identity.
27. In his defence, the appellant stated that he had borrowed ksh. 1,200/- from the victim’s father and failed to pay back hence the victim’s father scripted the instant case against him but he did not commit the offence. The issue of lending money came about at the defence stage and the same was not raised during cross-examination of the prosecutions’ witnesses. His evidence did not in any way challenge the prosecutions’ evidence to warrant this court to doubt the prosecutions’ evidence. I therefore find that the appellant’s defence was an afterthought hence the same does not hold water.
28. The prosecution proved their case beyond reasonable doubt.
29. The appeal lacks merit and the same is dismissed.
30. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 11 TH DAY OF JUNE 2026.
WENDY KAGENDO
- JUDGE
IN THE PRESENCE OF;
THE APPELLANT in person
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT
1. The Appellant, Said Mkutano Kitone, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act of 2006. The particulars of the offence are that on 12 th January 2023 at Kajiweni area Bamburi location in Kisauni sub-county within Mombasa county intentionally and unlawfully caused his penis to penetrate the vagina of E.H a child aged 13 years.
2. The accused person also faced an alternative charge of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars are that on 12/1/2023 at Kajiweni area, Bamburi location in Kisauni sub-county within Mombasa County intentionally and unlawfully touched the vagina of E.H child aged 13 years with his penis.
3. The appellant was convicted on the main count and sentenced to serve 20 years’ imprisonment.
4. The appellant was not satisfied with the judgement of the trial court and thus sought this appeal.
5. The appellants’ grounds of appeal are summarized as follows;
i. That the learned trial magistrate erred in law and fact for failing to consider that prove of the 3 ingredients was in absence of bias.
ii. That the learned trial magistrate erred in law and fact by failing to observe that the laid trap by the prosecution had a malicious effect to the appellant.
iii. That the learned trial magistrate erred in law and fact for not observing that the recovery of the alleged bag and clothes to its production was not in the right process of the law.
iv. The learned magistrate erred in law and fact for not considering that the prosecution case was not proved beyond any reasonable doubt.
v. The learned magistrate erred in law and fact for not considering that I was not accorded a fair trial as required by the Constitution 2010.
Prosecution’s case
6. PW1 E.H (minor) the complainant herein testified that she is in Form 1 at Concordia School and she was born on 17/3/2009. She said she knows the accused as he used to be their neighbor. She told the court that in 2020-2021 during corona the appellant wanted to have a sexual relationship with her and or she becomes his wife but she refused and informed him that she is still a student. She told the court that on one occasion, it was at night around 8.00pm her family was in the house. She was going to the toilet and she found the appellant at their house. The appellant took her to his place and closed the door and forcefully defiled her.
7. PW1 narrated that the appellant had a white vest with strips and a brown short. He removed his under pants and forcefully had sex with her. She said that since it was the first time, his penis did not fully penetrate but she saw sperms on her vagina. She did not tell anyone. On 31/12/2023 while people were celebrating new year eve, the appellant went home with the complainant, he gifted her a yoghurt and cake which they ate together on his bed. Subsequently, he forcefully inserted his penis in her vagina. He also penetrated her anus. He then told her not to tell anyone as it will be dangerous for both of them. She did not tell anyone but she lost track of school as she was traumatized with what the appellant had done to her.
8. In January 2023, she was in pain. On 12/1/2023 the appellant went and told her to pack her things so that they can go and stay together. It was at night. She took her clothes and they went to his house. In the morning she was rescued by her father. She informed the court that the accused has had sex with her for an ultimate of five times. The accused would force her to have sex with him both anal and vaginal sex.
9. PW2 Gladys Mramba testified that PW1 is her little sister. She knows the appellant as they were neighbors. She said on 12/1/2023 she woke up at 4.00am to study and found that her sister was missing. She informed her mother who also informed their father. They reported the matter to the village elder. She said that her young siblings went to play at the appellant’s house and saw the complainant at the appellant house. They informed their father who went to the appellant’s house together with pw2. The appellant tried to run. The police were called and the accused person was arrested.
10. PW3 Athman Omar told the court that pw1 is her daughter. She was born on 17/3/2009. He said that the appellant is his neighbor. Their houses are close to each other. He said that on 12/1/2023 very early in the morning his wife informed him that their daughter was missing. He informed her to go to the police and he left to look for the child. He was informed by his other kids that they had seen pw1 at the appellant’s house. He went there and found pw1 in the appellant’s house. He took her to the police and the appellant was arrested. PW1 was taken to the hospital. The police came back with the appellant and pw1 was directed to go and remove her items and take them back home.
11. PW4 Kanze Charo Karisa told the court that the complainant is her daughter. She was born on 17/3/2009. The appellant was their neighbor; their doors face each other. She said that on 12/1/2023 at 6.00am her daughter (pw2) told her that pw1 was not at home. She had gone with her bag and clothes. Pw4 stated that she went to report the matter to the police after telling her husband. She was then called and informed that pw1 had been found. She went home and took her to the police who told her to take the minor to the hospital.
12. PW5 PC woman Tina Wakesa told the court that she is attached at Concordia Police Post Centre, Vikwatani Police Station. on 12/1/2023 she was assigned the instant case. She told the court that the complainant said that the appellant called her to his house so that they can elope. The report from the hospital confirmed that the minor had been defiled. She said that they visited the appellant’s house and found a bag with the complainant’s clothes inside the appellant’s house. The clothes were retrieved. She produced birth certificate as PEX3. Bag PEX4, black flowered bag assorted clothes inside the bag PEX5 and pair of shoes PEX6.
13. PW6 Dr Gabriel Mugola told the court that he works at Coast General Teaching and Referral Hospital. He presented a PRC form for pw1 which was filled on 12/1/2023 and stamped on 17/1/2023. He said that the victim, on the vagina, there was abrasions, the hymen was broken with an old scar. The anus had healed lacerations. The clothes were clean. He produced the PRC form as PEX1 and P3 form as PEX2.
Defence case
14. DWI Said Mkutano Kitone the accused person testified under oath that on 12/1/2023 at 6.00pm the father to the complainant went to the appellant’s place with his children and asked the appellant if had seen his child. Dw1 said that the victim’s father asked his children to go inside the appellant’s house to confirm if the victim was in his house. They went inside and left after finding the victim was not inside the house. The appellant followed him and asked him what was wrong but he did not respond as he was angry. Suddenly the children screamed “Husna ndio huyo” they turned and saw the victim running.
15. Dw1 told the court that the victim said that she was from her friend’s house. They left and came back after 30 minutes and told the appellant that he is needed at the police station because he was with the minor. He was taken to the police station and was placed in custody. He was then transferred to Kiembeni police station then charged with the instant matter. He told the court that he had borrowed ksh. 1,200/- from the victim’s father and had failed to repay hence the instant matter was scripted because of that.
16. In light of the above, the issues for determination before this court are; -
i. Whether the prosecution proved their case beyond reasonable doubt.
Analysis and Determination
17. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424 .”
i. Whether the prosecution proved their case beyond reasonable doubt
18. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement;
“8. Defilement
(1) A person who commits an act which causes penetration with a child is
guilty of an offence termed defilement.
(2) 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.
(3) A person who commits an offence of defilement with a child between the
age of twelve and fifteen years is liable upon conviction to imprisonment for a
term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the
age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
19. Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms;
“11. Indecent act with child or adult
(1) Any person who commits an indecent act with a child is guilty of the
offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.”
Penetration
20. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case the minor stated in evidence that the appellant would force to have both anal and vaginal sex with her. She told the court that the accused forcefully had sex with her for an ultimate of five times.
21. PW6 Dr Gabriel Mugola told the court that on examination there was abrasions on the victim’s vagina, her hymen was broken and with an old scar and her anus had healed lacerations. This clearly indicates that there was penetration in the minor’s genital.
22. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995 , the court held: -
“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.”
23. In the above foregoing, I find that the evidence of the victim and that of the Doctor was consistent and sufficient to prove the element of penetration thus there is no reason to disturb the finding of the trial court. I affirm that penetration was proved beyond reasonable doubt.
Age of the victim
24. Proof of age is important in a sexual offense. In Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) , the Court of Appeal stated that: -
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
25. The child’s certificate of birth on record shows that the minor was born on 17/3/2009. I find that the minor was aged 14 years old at the time of the incident.
Positive identification of the assailant
26. Pw1 told the court that the appellant was their neighbor. Her evidence is corroborated by the evidence of Pw2, pw3 and pw4. The appellant also confirmed that he knew the victim and her family as they were neighbors. It is clear that the parties involved know each other thus there is no room for mistaken identity.
27. In his defence, the appellant stated that he had borrowed ksh. 1,200/- from the victim’s father and failed to pay back hence the victim’s father scripted the instant case against him but he did not commit the offence. The issue of lending money came about at the defence stage and the same was not raised during cross-examination of the prosecutions’ witnesses. His evidence did not in any way challenge the prosecutions’ evidence to warrant this court to doubt the prosecutions’ evidence. I therefore find that the appellant’s defence was an afterthought hence the same does not hold water.
28. The prosecution proved their case beyond reasonable doubt.
29. The appeal lacks merit and the same is dismissed.
30. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 11 TH DAY OF JUNE 2026.
WENDY KAGENDO
- JUDGE
IN THE PRESENCE OF;
THE APPELLANT in person
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT