1. This appeal arises from the judgment of the trial court, S. N. Mwangi, in Murang’a MCSO No. E018 of 2023, delivered on 19-01-2025.
2. The Appellant was charged with defilement contrary to Section 8(1) & (4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on diverse dates between 29.12.2022 and 01.06.2023 at Gakuyu, Gaturi Location of Murang’a Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of MVK., a child aged 16 years.
3. The appellant also faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that on diverse dates between 29.12.2022 and 01.06.2023 at Gakuyu, Gaturi Location of Murang’a Sub-County within Nyeri County of the Republic of Kenya, the Appellant unlawfully and intentionally touched the breasts/buttocks/anus/vagina of MVK., a child aged 16 years.
4. The Appellant faced a second count of harbouring/concealing a child who has run away contrary to section 164(b) of the Children’s Act 2022. The particulars were that the appellant, on diverse dates between 29.12.2022 and 01.06.2023 at an unknown time, at Gakuyu, Gaturi Location of Murang’a Sub-County within Nyeri County of the Republic of Kenya, knowingly harboured/concealed MVK., a child aged 16 years, who ran away from MR and MRS care to whose care, the said MVK had been committed.
5. The appellant appealed and set forth the following grounds of appeal that.
a) The learned trial magistrate erred in points of law and facts by failing to find that the elements of the charges were not proved beyond reasonable doubt.
b) The learned trial magistrate erred in points of law and facts by failing to find that the complainant acted and adduced evidence through coercion, threat and intimidation.
c) The learned trial magistrate erred in points of law and facts by failing to find that the prosecution’s evidence was tainted with material contradictions, inconsistencies, and discrepancies.
d) The learned trial magistrate erred in points of law and facts in failing to find that there existed a parent’s displeasure and the probable reason for implication with this offence.
e) The learned trial magistrate erred in points of law and facts in failing to find that my sworn defence statement was plausible as the prosecution was unable to disprove it.
f) The learned trial magistrate erred in points of law and facts by failing to consider that my mitigation in line and also in accordance with Section 329 and 216 of the CPC.
The appellant’s submissions.
6. The appellant filed submissions that the count related to harbouring or concealing was misplaced as there was no evidence that the complainant was committed to an institute and that she escaped.
7. He submitted further that there was no evidence linking him to penile penetration of the minor. It was his submissions that the conduct of the complainant was not consistent with the truth. He could not relate to the factual matrix of the offence and the evidence. He highlighted the three dates in this matter. The first one was that the minor testified that the appellant brought her breakfast on 28.08.2023. This meant that they were not together. She further stated that on 1.1.2023, she heard that the mother was looking for her. This was not clear from whom she heard this and where she was.
8. He submitted that the minor stated that the other friend had gone away, then they had sex at 10.00 am. This meant that she was at the alleged friend's house. However, she did not mention the impugned friend at all.
9. The other contradiction pointed out was that she alleged that the appellant was a boyfriend of three years, but on cross-examination by the court, she stated this was the first sexual encounter. He submitted that this was not borne out by the evidence, as the hymen was not freshly broken. He submitted that the event occurred from 29 th December 2022 to 1 st January 2023. However, the court most misdirected itself to the facts and created its own facts. The court will address the specific facts.
10. The appellant filed further submissions through his advocates. No leave was granted to file the submissions. The same shall be disregarded. They raise issues not in the pleadings and intended to obscure the determination of the matter. The issues raised in the petition of appeal are cogent and have been sufficiently covered by the appellant.
11. The state filed submissions dated 26.01.2026. They submitted that the case was provided beyond a reasonable doubt. They indicated that giving a peaceful place to live in was evidence of harbouring. On defilement, they submitted that the age of the complainant and there was proof of penetration. This was said to be corroborated by PW5's evidence. Of course, this aspect is not true. They submitted that the appellant was a boyfriend for three years and knew him well. On sentence, they submitted that the 15-year term was the minimum.
Impugned Judgment
12. The court analysed the evidence and delivered a very short judgment that proceeded from the point of view that the case was proven. There was no analysis of any single submission, evidence, or contradictions. The court eschewed completely every evidence tendered by the appellant. It proceeded as if there was some kind of formal proof or sentencing. It is unknown whether any of the witnesses was believed. To make matters worse, some of the findings were untrue.
13. They were products of conjecture and surmise, not a faithful reading of the record. Some facts were introduced in vacuo, meaning the court had a separate source other than the proceedings. The court found the appellant guilty of defilement and convicted him on both the first and second count. The court did not bother to peruse the court file and the law to familiarise itself with the charges the appellant faced.
14. The court committed three fatal errors that make the conviction unsafe. The court, however, has analysed the entire gamut of evidence since it is not the last court.
Analysis
15. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury, the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
16. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
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. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the 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 findings 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 the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
17. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
18. Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
19. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
20. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code , which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
21. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:
‘Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.
The Law
22. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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.
(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.
23. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows:
(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.
(2) It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years.
(3) The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.
(4) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141)
(5) The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.
24. The second count was based on a different act, that is the Section 164 of the Children’s Act as follows:
Any person who willfully and knowingly-
(a)aids or induces a child
(i)to run away from a fit person, a charitable children’s institution, children remand home or a rehabilitation institution or authorised person to whose care the child has been committed, or from any person or institution with whom or with which the child has been placed by a charitable children’s institution, children remand home or a rehabilitation institution or an approved authorised officer under or by virtue of this Act or any regulations made under the Act;
(ii)to do any of the things specified in section 163 (2);
(b)harbours or conceals a child who has escaped under any of the circumstances, or done any of the things, referred to in paragraph (a); or
prevents such a child from returning, or induces such a child not to return, to the care of the person to whom the child has been committed, or to any place in which the child is placed,
commits an offence and is liable on conviction to imprisonment for a term not exceeding twelve months, or to a fine not exceeding two hundred thousand shillings, or to both.
25. In the case of Charles Wamukoya Karani v. Republic , Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
d. and {I must add that the penetration is of a sexual organ, [of the vagina or anus] by a sexual organ}.
26. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility.
27. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016)eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.
28. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic , Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:
Age of the victim of the 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.
29. The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18.
30. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR) , addressed this aspect as follows:
In the case of Kaingu Elias Kasomo V R , Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence.
However, as the Court clarified in Tumaini Maasai Mwanya V R , MSA CR.A. NO. 364 OF 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age.
31. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000 , the court held that:
In cases of defilement, medical evidence is paramount in determining the victim's age. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.
32. The appellant stated that the complainant was a student in form four. The prosecution produced a birth certificate. Though procured late, it does not appear to be doubtful. The question of the complainant’s age is not in doubt.
33. The foregoing leaves 4 questions:
a. Whether there was defilement.
b. Whether it is the appellant who defiled.
c. Whether the proceedings are a nullity and
d. Whether there was concealment.
34. The safest place to start, at the appeal level, is the defence evidence. The said evidence was not considered at all. This makes the court a biased court and the findings unsustainable.
35. First, the court did not hear the witnesses. The preceding court did not make any notes on the witnesses' demeanor. The court herein, in a rather bizarre manner, departed from the norms required in analyzing evidence already recorded and proceeded as if it had recorded the same. This resulted in the court subsuming the evidence and proceeding as if the prosecution's evidence was true in fact. The court did not bother at all to look at the defence evidence.
36. Further, the court proceeded on a rather strange talent as follows:
The evidence of identification was not contradicted by any of the prosecution witnesses, and it was quite interesting to hear that on 29.12.2022, when she passed by the accused’s phone, but he was busy, she seemed to have stayed there until 10.00 am, when she realized she could no longer go home. There was a bar next to his place where he bought her breakfast. Then they went to another room in Mûkûrwe’inî, where they spent the night, and the next day they returned to Gitwe. Now it was already the new year. The accused took her to his friend's place, though she didn’t know him, and it was 1.1.2023. She heard her mother looking for her and referred to the appellant as her boyfriend of three years.
The mother’s evidence,- when there was a crusade which the complainant attended and did not return home. It was the neighbour, Monica, who informed her that she had been left at the centre, so she began looking for her. The appellant was charged. I find that indeed the prosecution has proved its case. (sic)
37. This forms what the court below called an analysis. First, there was no analysis of the issues the court was dealing with, except for age. The court was regurgitating the evidence of the prosecution's witness. Secondly, there were two factual misstatements. The first one is, “The evidence of identification was not contradicted by any of the prosecution witnesses. This statement had no basis in criminal proceedings. Even if we take it that it meant contradictions on the part of the appellant, he bore no duty to prove or raise any contradictions.
38. The presumption of innocence remains, and the burden of proof is on the state. In the locus classicus and the most oft quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462, pp. 481. Further reliance was placed on the case of Sekitoleko v Uganda (1967) EA 531 at p 533, where the legendary Sir Udo Udoma C J stated as follows:
As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution.
39. Secondly, the state had no duty to create contradictions. The duty of the prosecution is a positive one. The court misdirected itself in that connection.
40. Further, the following statement appears to be demonstrably inaccurate: “ and it was quite interesting to hear that on 29.12.2022, when she passed by the accused’s phone, but he was busy, she seemed to have stayed there until 10.00 am, when she realized she could no longer go home…” The court did not hear this evidence. The matter was heard by Hon. E.M. Nyaga. There is nothing interesting in a solemn hearing of a defilement matter.
41. There were myriad contradictions apparent in the trail. The same relates to the occurrence of the offence. The appellant was busy working, according to the complaint. She went to get her phone, and there was no reason she did not pick it up and go away. The complaint was brought food the following day. This gives accord to the appellant’s evidence that he gave her a safe place to hide. The complainant related that the incident occurred on 1.1.2023. The medical evidence, P3, did not bear this. Either there was no examination, or there was no defilement. The medical report indicates as follows:
Both labia majora and minora are intact, the external genitalia are intact, the hymen is broken, no bleeding areas, and there are no lacerations. Vaginal discharge was noted in the vagina.
42. There was no conclusion on the type of injury or weapon used. It only indicates “days”. This rules out the one day that the sex is alleged to have occurred.
43. The PRC form shows no injuries, normal, no lacerations, no bleeding. Indeed, this is partly born out of the complainant’s evidence and partly by the appellant. She said they had sex. It is not known which type or kind. There was no testimony on penile penetration. This was a 17-year-old girl. She should have been able to say whether it was oral sex, anal sex, vaginal sex, or purely caressing. Her own evidence does not show that the appellant’s penis penetrated the complainant’s vagina. The court cannot presume that this was penile entry. Further, the court helped to clarify the situation. The complainant testified that this was her first sexual relationship. The sex is said to have occurred on 1.1.2023, and she was examined on 2.1.2023.
44. I do not find that the Respondent proved their case beyond a reasonable doubt that the Appellant penetrated the vagina with his penis. The medical evidence did not support the version of evidence tendered by the prosecution. In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
45. The next question is corroboration. Corroboration is required in all cases, including sex offences, except those that fit into the proviso to section 124 of the Evidence Act. In this case, the complainant was not the only witness; there was a mystery man, whom the complainant refused to disclose, and the prosecution failed to call. Secondly, the case appears to be instigated. It does not make sense for PW2 and PW1 to testify that they found the appellant when the appellant did not testify to this. The truth appears that, having found that the appellant did commit the offence, the case was left to lie until someone woke it up in June.
46. PW1 and PW2, who are the complainant and her mother, ended their story on 3.1.2023. Evidence from PW2 raises questions about the veracity of the P3, which was allegedly filed on 2.1.2023, while the respondent went home on 3.1.2023. The evidence of PW3 and PW4 was thus bo
[...truncated]
2. The Appellant was charged with defilement contrary to Section 8(1) & (4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on diverse dates between 29.12.2022 and 01.06.2023 at Gakuyu, Gaturi Location of Murang’a Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of MVK., a child aged 16 years.
3. The appellant also faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars are that on diverse dates between 29.12.2022 and 01.06.2023 at Gakuyu, Gaturi Location of Murang’a Sub-County within Nyeri County of the Republic of Kenya, the Appellant unlawfully and intentionally touched the breasts/buttocks/anus/vagina of MVK., a child aged 16 years.
4. The Appellant faced a second count of harbouring/concealing a child who has run away contrary to section 164(b) of the Children’s Act 2022. The particulars were that the appellant, on diverse dates between 29.12.2022 and 01.06.2023 at an unknown time, at Gakuyu, Gaturi Location of Murang’a Sub-County within Nyeri County of the Republic of Kenya, knowingly harboured/concealed MVK., a child aged 16 years, who ran away from MR and MRS care to whose care, the said MVK had been committed.
5. The appellant appealed and set forth the following grounds of appeal that.
a) The learned trial magistrate erred in points of law and facts by failing to find that the elements of the charges were not proved beyond reasonable doubt.
b) The learned trial magistrate erred in points of law and facts by failing to find that the complainant acted and adduced evidence through coercion, threat and intimidation.
c) The learned trial magistrate erred in points of law and facts by failing to find that the prosecution’s evidence was tainted with material contradictions, inconsistencies, and discrepancies.
d) The learned trial magistrate erred in points of law and facts in failing to find that there existed a parent’s displeasure and the probable reason for implication with this offence.
e) The learned trial magistrate erred in points of law and facts in failing to find that my sworn defence statement was plausible as the prosecution was unable to disprove it.
f) The learned trial magistrate erred in points of law and facts by failing to consider that my mitigation in line and also in accordance with Section 329 and 216 of the CPC.
The appellant’s submissions.
6. The appellant filed submissions that the count related to harbouring or concealing was misplaced as there was no evidence that the complainant was committed to an institute and that she escaped.
7. He submitted further that there was no evidence linking him to penile penetration of the minor. It was his submissions that the conduct of the complainant was not consistent with the truth. He could not relate to the factual matrix of the offence and the evidence. He highlighted the three dates in this matter. The first one was that the minor testified that the appellant brought her breakfast on 28.08.2023. This meant that they were not together. She further stated that on 1.1.2023, she heard that the mother was looking for her. This was not clear from whom she heard this and where she was.
8. He submitted that the minor stated that the other friend had gone away, then they had sex at 10.00 am. This meant that she was at the alleged friend's house. However, she did not mention the impugned friend at all.
9. The other contradiction pointed out was that she alleged that the appellant was a boyfriend of three years, but on cross-examination by the court, she stated this was the first sexual encounter. He submitted that this was not borne out by the evidence, as the hymen was not freshly broken. He submitted that the event occurred from 29 th December 2022 to 1 st January 2023. However, the court most misdirected itself to the facts and created its own facts. The court will address the specific facts.
10. The appellant filed further submissions through his advocates. No leave was granted to file the submissions. The same shall be disregarded. They raise issues not in the pleadings and intended to obscure the determination of the matter. The issues raised in the petition of appeal are cogent and have been sufficiently covered by the appellant.
11. The state filed submissions dated 26.01.2026. They submitted that the case was provided beyond a reasonable doubt. They indicated that giving a peaceful place to live in was evidence of harbouring. On defilement, they submitted that the age of the complainant and there was proof of penetration. This was said to be corroborated by PW5's evidence. Of course, this aspect is not true. They submitted that the appellant was a boyfriend for three years and knew him well. On sentence, they submitted that the 15-year term was the minimum.
Impugned Judgment
12. The court analysed the evidence and delivered a very short judgment that proceeded from the point of view that the case was proven. There was no analysis of any single submission, evidence, or contradictions. The court eschewed completely every evidence tendered by the appellant. It proceeded as if there was some kind of formal proof or sentencing. It is unknown whether any of the witnesses was believed. To make matters worse, some of the findings were untrue.
13. They were products of conjecture and surmise, not a faithful reading of the record. Some facts were introduced in vacuo, meaning the court had a separate source other than the proceedings. The court found the appellant guilty of defilement and convicted him on both the first and second count. The court did not bother to peruse the court file and the law to familiarise itself with the charges the appellant faced.
14. The court committed three fatal errors that make the conviction unsafe. The court, however, has analysed the entire gamut of evidence since it is not the last court.
Analysis
15. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
On a first appeal from a conviction by a Judge or magistrate sitting without a jury, the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different.
16. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra] , the East Africa Court of Appeal stated on the duty of the court on a first appeal:
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. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the 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 findings 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 the witnesses, see Peters v. Sunday Post, [1958] E. A. 424.
17. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England , 4th Edition, Volume 17, paras 13 and 14:
The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues.
18. Brennan J, addressed the standard of proof required in Criminal cases the case of Re Winship 397 US 358 {1970}, at page 36164 that:
The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.
19. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions , [1947] 2 ALL ER 372 had this to say:
That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.
20. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code , which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:
382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:
Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.
Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case.
21. Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The caution has regard to the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma for the accused. It also leaves indelible scars on the victim. conviction must thus be justified based on indisputable evidence given to the required standards. This is what the former Chief Justice Mohamed of Namibia had in mind in addressing sexual offences in S v Chapman 1997 (2) SA CR 3 (A) at 55:
‘Rape is a serious offence, constituting as it does a humiliating, degrading and brutal invasion of the privacy, the dignity and the person of the victim. The rights to dignity, to privacy and the integrity of every person are basic to the ethos of the constitution and to any defensible civilization.
The Law
22. The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:
8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(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.
(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.
23. On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows:
(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.
(2) It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years.
(3) The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.
(4) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141)
(5) The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.
24. The second count was based on a different act, that is the Section 164 of the Children’s Act as follows:
Any person who willfully and knowingly-
(a)aids or induces a child
(i)to run away from a fit person, a charitable children’s institution, children remand home or a rehabilitation institution or authorised person to whose care the child has been committed, or from any person or institution with whom or with which the child has been placed by a charitable children’s institution, children remand home or a rehabilitation institution or an approved authorised officer under or by virtue of this Act or any regulations made under the Act;
(ii)to do any of the things specified in section 163 (2);
(b)harbours or conceals a child who has escaped under any of the circumstances, or done any of the things, referred to in paragraph (a); or
prevents such a child from returning, or induces such a child not to return, to the care of the person to whom the child has been committed, or to any place in which the child is placed,
commits an offence and is liable on conviction to imprisonment for a term not exceeding twelve months, or to a fine not exceeding two hundred thousand shillings, or to both.
25. In the case of Charles Wamukoya Karani v. Republic , Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;
a. Proof of the age of the complainant,
b. Proof of penetration and
c. Proof that the appellant was the perpetrator of the offence.
d. and {I must add that the penetration is of a sexual organ, [of the vagina or anus] by a sexual organ}.
26. The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility.
27. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016)eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.
28. While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic , Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:
Age of the victim of the 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.
29. The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18.
30. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR) , addressed this aspect as follows:
In the case of Kaingu Elias Kasomo V R , Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence.
However, as the Court clarified in Tumaini Maasai Mwanya V R , MSA CR.A. NO. 364 OF 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age.
31. It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000 , the court held that:
In cases of defilement, medical evidence is paramount in determining the victim's age. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense.
32. The appellant stated that the complainant was a student in form four. The prosecution produced a birth certificate. Though procured late, it does not appear to be doubtful. The question of the complainant’s age is not in doubt.
33. The foregoing leaves 4 questions:
a. Whether there was defilement.
b. Whether it is the appellant who defiled.
c. Whether the proceedings are a nullity and
d. Whether there was concealment.
34. The safest place to start, at the appeal level, is the defence evidence. The said evidence was not considered at all. This makes the court a biased court and the findings unsustainable.
35. First, the court did not hear the witnesses. The preceding court did not make any notes on the witnesses' demeanor. The court herein, in a rather bizarre manner, departed from the norms required in analyzing evidence already recorded and proceeded as if it had recorded the same. This resulted in the court subsuming the evidence and proceeding as if the prosecution's evidence was true in fact. The court did not bother at all to look at the defence evidence.
36. Further, the court proceeded on a rather strange talent as follows:
The evidence of identification was not contradicted by any of the prosecution witnesses, and it was quite interesting to hear that on 29.12.2022, when she passed by the accused’s phone, but he was busy, she seemed to have stayed there until 10.00 am, when she realized she could no longer go home. There was a bar next to his place where he bought her breakfast. Then they went to another room in Mûkûrwe’inî, where they spent the night, and the next day they returned to Gitwe. Now it was already the new year. The accused took her to his friend's place, though she didn’t know him, and it was 1.1.2023. She heard her mother looking for her and referred to the appellant as her boyfriend of three years.
The mother’s evidence,- when there was a crusade which the complainant attended and did not return home. It was the neighbour, Monica, who informed her that she had been left at the centre, so she began looking for her. The appellant was charged. I find that indeed the prosecution has proved its case. (sic)
37. This forms what the court below called an analysis. First, there was no analysis of the issues the court was dealing with, except for age. The court was regurgitating the evidence of the prosecution's witness. Secondly, there were two factual misstatements. The first one is, “The evidence of identification was not contradicted by any of the prosecution witnesses. This statement had no basis in criminal proceedings. Even if we take it that it meant contradictions on the part of the appellant, he bore no duty to prove or raise any contradictions.
38. The presumption of innocence remains, and the burden of proof is on the state. In the locus classicus and the most oft quoted English decision by Viscount Sankey L.C in the case of H.L. (E) Woolmington vs. DPP [1935] A.C 462, pp. 481. Further reliance was placed on the case of Sekitoleko v Uganda (1967) EA 531 at p 533, where the legendary Sir Udo Udoma C J stated as follows:
As a general rule of law, the burden of proving the guilt of a prisoner beyond reasonable doubt never shifts, whether the defence set up is an alibi or something else. That burden always rests on the prosecution.
39. Secondly, the state had no duty to create contradictions. The duty of the prosecution is a positive one. The court misdirected itself in that connection.
40. Further, the following statement appears to be demonstrably inaccurate: “ and it was quite interesting to hear that on 29.12.2022, when she passed by the accused’s phone, but he was busy, she seemed to have stayed there until 10.00 am, when she realized she could no longer go home…” The court did not hear this evidence. The matter was heard by Hon. E.M. Nyaga. There is nothing interesting in a solemn hearing of a defilement matter.
41. There were myriad contradictions apparent in the trail. The same relates to the occurrence of the offence. The appellant was busy working, according to the complaint. She went to get her phone, and there was no reason she did not pick it up and go away. The complaint was brought food the following day. This gives accord to the appellant’s evidence that he gave her a safe place to hide. The complainant related that the incident occurred on 1.1.2023. The medical evidence, P3, did not bear this. Either there was no examination, or there was no defilement. The medical report indicates as follows:
Both labia majora and minora are intact, the external genitalia are intact, the hymen is broken, no bleeding areas, and there are no lacerations. Vaginal discharge was noted in the vagina.
42. There was no conclusion on the type of injury or weapon used. It only indicates “days”. This rules out the one day that the sex is alleged to have occurred.
43. The PRC form shows no injuries, normal, no lacerations, no bleeding. Indeed, this is partly born out of the complainant’s evidence and partly by the appellant. She said they had sex. It is not known which type or kind. There was no testimony on penile penetration. This was a 17-year-old girl. She should have been able to say whether it was oral sex, anal sex, vaginal sex, or purely caressing. Her own evidence does not show that the appellant’s penis penetrated the complainant’s vagina. The court cannot presume that this was penile entry. Further, the court helped to clarify the situation. The complainant testified that this was her first sexual relationship. The sex is said to have occurred on 1.1.2023, and she was examined on 2.1.2023.
44. I do not find that the Respondent proved their case beyond a reasonable doubt that the Appellant penetrated the vagina with his penis. The medical evidence did not support the version of evidence tendered by the prosecution. In Philip Nzaka Watu vs. Republic [2016] eKLR, the Court of Appeal held that:
“The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
45. The next question is corroboration. Corroboration is required in all cases, including sex offences, except those that fit into the proviso to section 124 of the Evidence Act. In this case, the complainant was not the only witness; there was a mystery man, whom the complainant refused to disclose, and the prosecution failed to call. Secondly, the case appears to be instigated. It does not make sense for PW2 and PW1 to testify that they found the appellant when the appellant did not testify to this. The truth appears that, having found that the appellant did commit the offence, the case was left to lie until someone woke it up in June.
46. PW1 and PW2, who are the complainant and her mother, ended their story on 3.1.2023. Evidence from PW2 raises questions about the veracity of the P3, which was allegedly filed on 2.1.2023, while the respondent went home on 3.1.2023. The evidence of PW3 and PW4 was thus bo
[...truncated]