Being an appeal from the judgement of Hon.B.Kiptoo(PM) delivered on 2.8.2024 in Eldoret CMCR.SO No.E90 of 2021 )
1. The appellant was charged with attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on 1st day of March, 2021 at Cyrus Centre in Ainabkoi Sub-County within Uasin Gishu County, the accused, intentionally attempted to cause his penis to penetrate the vagina of FCK a child aged 10 years.
3. In the alternative, the appellant was charged with committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative count are that on 21st day of march, 2021 at Cyrus Centre in Ainabkoi Sub-County,Uasin Gishu County, the appellant, intentionally touched the breasts and vagina of FCK, a child aged ten (10) years.
4. The trial court considered the evidence of seven (7) prosecution witnesses and one (1) defence witness and found the appellant guilty for the offence of Committing Indecent Act with a child.
5. PW1, the complainant, gave unsworn evidence. She stated she was 11 years old and that her date of birth is 1/6/2010. She also stated she lives with her parents and siblings and she was a class 5 pupil. PW1, further, stated she knows the appellant and that she had known him for long.
6. On 21/3/2021, PW1 stated, her mother sent her to the shop to buy maize flour and oil. On coming back, PW1 stated, she met the appellant. He was standing at a fence across the road. PW1, further, stated that the appellant grabbed her but she screamed and people came and the accused ran away. The accused wanted to touch her private parts, PW1 stated, the place she uses to urinate but did not touch.
7. PW1, further, stated that she ran home and told the mother what happened. Subsequently, PW1 stated, the police arrested the accused and she was taken to hospital.
8. On cross-examination, PW1 stated, the incident herein occurred at 7:00 pm and that he was dressed in black clothes. PW1, further, stated that the appellant touched her. On re-examination, PW1stated, it was not dark and that she saw the appellant’s face properly.
9. PW2, PCK, the complainant’s mother stated she hails from Kapsoiya and works as a casual labourer. PW2 also stated that the complainant was born on 1/6/2010. On 21/3/2021, PW2 stated, she had a visitor called Mama Valence and she went with the complainant to collect flour from her. PW2, further, stated that the child came back crying and the Mama Valence also came running and told her Samson wanted to defile the child.
10. PW3, Jane Jemutai Kipyego, stated she is the complainant’s neighbour. On 21/3/2021, PW3 stated, she was at PW2’s home and PW2 wanted to send the child to a shop at Cyrus. PW3, further, stated that she told the complainant to go for flour at her place and went with her. After giving the complainant the flour, PW3 stated, she heard noises and she was informed Samson (appellant) had raped the child. Police officer on patrol, PW3 stated, arrested the accused and he was taken to Kapsoiya Police Station. PW3 also stated was her neighbour and she had known him for 3 years. On cross-examination, PW3 stated she heard noises close to 8:00 pm.
11. PW4, Edward Ekiru, stated he hails from Cyrus. On 21/3/2021, PW4 stated, he was at home and he heard a child crying for help. On approaching the child, PW4 stated, he told him someone had touched her .PW4, further, stated he saw someone running away from where the child was and he identified the person as “Governor” (Appellant). PW4 also stated the appellant ran and hid in a toilet armed with a hammer but was arrested by police and taken to Kapsoiya Police Station. P W4, further, stated he knows the appellant as Governor and that he has known him for a while. He also stated he had no grudge against the appellant. On cross-examination PW4 stated there was lighting at the scene.
12. PW5, Brian Kibet, stated he is a Jua Kali artisan and hails from Munyaka. On 21/3/021 at about 7 pm, PW5 stated, he went to check on his grandmother. While on the road with Ekiru, PW5 stated, he heard noise and on checking he saw Ekiru chasing a person saying he was told the person wanted to rape a child. On moving closer, PW5 stated, he saw the person was Governor, the appellant and he was arrested by the police. PW5, further, stated he had known the appellant for over one (1) year as a casual labourer in a construction site. He also stated that he had no grudge against the appellant. On cross-examination, PW5 stated the appellant hid in a toilet bbefore he was arrested by police.
13. PW7, No. 115595 PC Mercline Ayiesot, a police officer based at Kapsoiya Police Station was the Investigating office in this case. He produced a copy of the complainant’s birth certificate(P.Exhibit 1) showing she was born on 1.6.2010.
14. The issue for determination in this matter is whether the appellant committed an indecent act against the complainant. This being a first appeal the court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of fact that trial court had the advantage of seeing and assessing the demeanour of witnesses ( See Reuben Omowa Muma & Another -vs- Republic (2012)eKLR.
15. Section 11(1) of the Sexual offences Act provides that any person who commits an indecent act with a child is guilty of the offence of committing indecent act with a child and is liable upon conviction to imprisonment for a term not exceeding 10 years. In section 2 of the Act “indecent”: act is defined as any unlawful intentional act which case:
a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another
b) Exposure or display of any pornographic material to any person against or her will.
16. In the case of Were -vs- Republic (Civil Appeal No. E090 of 2024) (2025)eKLR the court considered the main ingredients of the offence of committing an indecent act with a child. These are:
a) Proof that the victim is a child in law.
b) Proof there was contact between any body part of the body of a person with the genital organ; breast or buttocks of the child victim (but act must not be an act that caused penetration) or proof exposure or display of any pornographic material to the child.
c) Proof that act(s) in (b) was/were intentional.
d) There should be no legal justification in the act (b) complained of.
17. In this case the complainant (PW1) stated that the accused wanted to touch her private parts but did not. On cross-examination she stated the appellant touched her but was not specific which part. This inconsistency creates doubt in the mind of the court doubts whether the appellant had any contact with the genital organ; breast or buttocks of the complainant. This doubt benefits the appellant. It is my finding that the prosecution herein failed to prove the offence of Committing Indecent Act with a child herein against the appellant beyond reasonable doubt. The conviction and sentence by the trial court were, therefore, erroneous.
18. Consequently, this appeal is allowed. The conviction and sentence of the trial court herein are set aside and the appellant is set at liberty forthwith unless otherwise lawfully held.
Right of appeal within 14 days.
Date Signed and Delivered via Microsoft team platform this 9th day of July 2026.
HON. P. K. ROTICH
JUDGE
CRIMINAL APPEAL NO. E024 OF 2025 JUDGEMENT 2 | Page (Samson Kibet Lagat vs Republic)
1. The appellant was charged with attempted defilement contrary to section 9(1) as read with section 9(2) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on 1st day of March, 2021 at Cyrus Centre in Ainabkoi Sub-County within Uasin Gishu County, the accused, intentionally attempted to cause his penis to penetrate the vagina of FCK a child aged 10 years.
3. In the alternative, the appellant was charged with committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative count are that on 21st day of march, 2021 at Cyrus Centre in Ainabkoi Sub-County,Uasin Gishu County, the appellant, intentionally touched the breasts and vagina of FCK, a child aged ten (10) years.
4. The trial court considered the evidence of seven (7) prosecution witnesses and one (1) defence witness and found the appellant guilty for the offence of Committing Indecent Act with a child.
5. PW1, the complainant, gave unsworn evidence. She stated she was 11 years old and that her date of birth is 1/6/2010. She also stated she lives with her parents and siblings and she was a class 5 pupil. PW1, further, stated she knows the appellant and that she had known him for long.
6. On 21/3/2021, PW1 stated, her mother sent her to the shop to buy maize flour and oil. On coming back, PW1 stated, she met the appellant. He was standing at a fence across the road. PW1, further, stated that the appellant grabbed her but she screamed and people came and the accused ran away. The accused wanted to touch her private parts, PW1 stated, the place she uses to urinate but did not touch.
7. PW1, further, stated that she ran home and told the mother what happened. Subsequently, PW1 stated, the police arrested the accused and she was taken to hospital.
8. On cross-examination, PW1 stated, the incident herein occurred at 7:00 pm and that he was dressed in black clothes. PW1, further, stated that the appellant touched her. On re-examination, PW1stated, it was not dark and that she saw the appellant’s face properly.
9. PW2, PCK, the complainant’s mother stated she hails from Kapsoiya and works as a casual labourer. PW2 also stated that the complainant was born on 1/6/2010. On 21/3/2021, PW2 stated, she had a visitor called Mama Valence and she went with the complainant to collect flour from her. PW2, further, stated that the child came back crying and the Mama Valence also came running and told her Samson wanted to defile the child.
10. PW3, Jane Jemutai Kipyego, stated she is the complainant’s neighbour. On 21/3/2021, PW3 stated, she was at PW2’s home and PW2 wanted to send the child to a shop at Cyrus. PW3, further, stated that she told the complainant to go for flour at her place and went with her. After giving the complainant the flour, PW3 stated, she heard noises and she was informed Samson (appellant) had raped the child. Police officer on patrol, PW3 stated, arrested the accused and he was taken to Kapsoiya Police Station. PW3 also stated was her neighbour and she had known him for 3 years. On cross-examination, PW3 stated she heard noises close to 8:00 pm.
11. PW4, Edward Ekiru, stated he hails from Cyrus. On 21/3/2021, PW4 stated, he was at home and he heard a child crying for help. On approaching the child, PW4 stated, he told him someone had touched her .PW4, further, stated he saw someone running away from where the child was and he identified the person as “Governor” (Appellant). PW4 also stated the appellant ran and hid in a toilet armed with a hammer but was arrested by police and taken to Kapsoiya Police Station. P W4, further, stated he knows the appellant as Governor and that he has known him for a while. He also stated he had no grudge against the appellant. On cross-examination PW4 stated there was lighting at the scene.
12. PW5, Brian Kibet, stated he is a Jua Kali artisan and hails from Munyaka. On 21/3/021 at about 7 pm, PW5 stated, he went to check on his grandmother. While on the road with Ekiru, PW5 stated, he heard noise and on checking he saw Ekiru chasing a person saying he was told the person wanted to rape a child. On moving closer, PW5 stated, he saw the person was Governor, the appellant and he was arrested by the police. PW5, further, stated he had known the appellant for over one (1) year as a casual labourer in a construction site. He also stated that he had no grudge against the appellant. On cross-examination, PW5 stated the appellant hid in a toilet bbefore he was arrested by police.
13. PW7, No. 115595 PC Mercline Ayiesot, a police officer based at Kapsoiya Police Station was the Investigating office in this case. He produced a copy of the complainant’s birth certificate(P.Exhibit 1) showing she was born on 1.6.2010.
14. The issue for determination in this matter is whether the appellant committed an indecent act against the complainant. This being a first appeal the court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of fact that trial court had the advantage of seeing and assessing the demeanour of witnesses ( See Reuben Omowa Muma & Another -vs- Republic (2012)eKLR.
15. Section 11(1) of the Sexual offences Act provides that any person who commits an indecent act with a child is guilty of the offence of committing indecent act with a child and is liable upon conviction to imprisonment for a term not exceeding 10 years. In section 2 of the Act “indecent”: act is defined as any unlawful intentional act which case:
a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another
b) Exposure or display of any pornographic material to any person against or her will.
16. In the case of Were -vs- Republic (Civil Appeal No. E090 of 2024) (2025)eKLR the court considered the main ingredients of the offence of committing an indecent act with a child. These are:
a) Proof that the victim is a child in law.
b) Proof there was contact between any body part of the body of a person with the genital organ; breast or buttocks of the child victim (but act must not be an act that caused penetration) or proof exposure or display of any pornographic material to the child.
c) Proof that act(s) in (b) was/were intentional.
d) There should be no legal justification in the act (b) complained of.
17. In this case the complainant (PW1) stated that the accused wanted to touch her private parts but did not. On cross-examination she stated the appellant touched her but was not specific which part. This inconsistency creates doubt in the mind of the court doubts whether the appellant had any contact with the genital organ; breast or buttocks of the complainant. This doubt benefits the appellant. It is my finding that the prosecution herein failed to prove the offence of Committing Indecent Act with a child herein against the appellant beyond reasonable doubt. The conviction and sentence by the trial court were, therefore, erroneous.
18. Consequently, this appeal is allowed. The conviction and sentence of the trial court herein are set aside and the appellant is set at liberty forthwith unless otherwise lawfully held.
Right of appeal within 14 days.
Date Signed and Delivered via Microsoft team platform this 9th day of July 2026.
HON. P. K. ROTICH
JUDGE
CRIMINAL APPEAL NO. E024 OF 2025 JUDGEMENT 2 | Page (Samson Kibet Lagat vs Republic)