REPULIC OF KENYA
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO. E004 OF 2025
SILAS KWEMBOI TENG………………………….…………APPEALLANT
VERSUS
REPUBLIC………………………………………………….….RESPONDENT
(From original conviction and sentence in Principal Magistrate’s Court at Sirisia Criminal Case (SO) No. E037 of 202, Hon.J.O Manasses on 30th October 2024).
JUDGEMENT
A. Background
1. This appeal is against the conviction and sentence to 15 years’ imprisonment for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. It was alleged that on diverse dates between August 2023 and 21st December 2023 at [particular withheld] village, in Chesikaki Sub-Location, Chesikaki Location, Cheptais Sub-County, within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of LC a child aged 15 years old.
2. In the alternative charge, the Appellant was charged with the offence of committing an indecent act contrary to Section11(1) of the Sexual Offences Act No. 3 of 2006. It was alleged that on diverse dates between August 2023 and 21st December 2023 at [particular withheld] village, in Chesikaki Sub-Location, Chesikaki Location, Cheptais Sub-County, within Bungoma County, intentionally touched the vagina of LC a child aged 15 years old with his penis.
3. The Prosecution called Four (4) witnesses. The defence called one witness; the Appellant.
B. Role of the appellate Court
4. As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174, the Court of Appeal set out the duties of a first appellate court as follows:-
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; 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.”
C. Evidence
Respondent’s Case
5. The Complainant gave evidence as PW1 and told the court that she lived with her grandmother, Peratira Chemutai, and her elder brother, Edward Boiyo, at [particulars withheld] within Bungoma County and she was a secondary school student.
6. According to her, sometime in 2021 while a class 8 pupil the Appellant herein started seducing her and she accepted his advances. They continued their communication until 2013 between the month of August and December when she visited her sister, Brigit Cheberen Namanda, in (particulars withheld) for a whole month. She told the Court that eventually on 19th December 2023, she visited the Appellant herein at his home (particulars withheld) village and stayed there until 21st December 2023 when the police officers apprehended them. She confirmed that during that period she engaged in protected sexual intercourse with the Appellant three times wherein the Appellant placed his private parts i.e the one he uses to urinate and inserted it into her vagina. After their arrest, they were both taken to Chesikaki Police Station for interrogation and later they were taken to Cheptais Sub-County Hospital.
7. Further, she told the Court that at that point she was 15 years old and at the time she was testifying before the trial Court she was 16 years old, and that her date of birth was 5th July 2008.
8. Finally, she told the Court that she had known the Appellant for 3 years and she did a dock identification.
9. PW2 Rose Chematui Stephen, the mother of the Complainant testified that on 21st December 2023, while at home her eldest son informed her that the Complainant had been spotted at (particulars withheld) area and had been apprehended in the company of the Appellant herein and taken to Chesikaki Police Station. She told the Court that she reported to the station and recorded her statement and that prior to the incident she had not been acquainted to the Appellant herein.
10. PW3 was Job Kiprop, who testified that he was a Clinician based at Cheptais Sub-County and was before Court to avail the P3 form, treatment notes and PRC form of the Complainant dated 21st December 2023. It was his evidence that upon examination of the Complainant he had observed that she was in fair general condition. On examination of her genitalia, he had established that the external appearance was normal with no stain or lacerations on her labia minora and majora, but her hymen was missing. On laboratory examination, her urinalysis confirmed presence of an infection and the puss cells were present in her urine. He opined that the Complainant had been defiled due to the absence of hymen and the presence of epithelial cells and he had issued her with some medication. He produced the P3 form, treatment notes and PRC form filled on 21st December 2023, as PEXH 2, PEXH 3, and PEXH 4 respectively.
11. On cross-examination, he told the Court that he also examined the Appellant herein.
12. PW4, No. 255813 PC Gabriel Muthunga, was the investigating officer in the case and was based at Chesikaki Police Station. According to him, on 21st December 2023, while on duty his deputy OCS, PC David Ngubao and the brother of the Complainant arrived at the station with the Appellant herein and the Complainant. The complainant’s brother had informed the police officers that the Appellant and his sister were involved in sexual relations. He told the Court that the Complainant was arrested at the Appellant’s house and the two were immediately placed in custody then later taken to Cheptais Sub-County Hospital by his colleagues. He later recorded the statement of the Complainant. He told the Court that the Complainant was born on 5th July 2008 as per the birth certificate serialized as 83154977 and he produced the same in Court as PEXH 1
Defence/Appellant’s case
13. The Appellant in his defence denied the offence. He alleged that on 21st December 2023, at 7.00 a.m. he went to his shamba and finished his chores at 11.00 a.m. and later went to watch some pool game and at 12.00 p.m. he was apprehended by police officers and taken to Mulatiwa Police Station and later Sirisia Law Courts where he was charged with an offence he knew nothing about.
14. The trial Court evaluated the evidence and was of considered view that the Respondent proved its case beyond reasonable doubt and hence conviction the Appellant on the main count. The Appellant was consequently sentenced to serve 15 years imprisonment.
D. Appeal
15. Dissatisfied with the conviction and sentence, the Appellant filed a petition of appeal listing seven (7) grounds of appeal: -
a. That the learned trial magistrate erred in both law and fact by not finding out that penetration was not proved to the required standard.
b. That the learned trial magistrate erred in both law and fact by failing to prove the age of the Complainant
c. That the learned trial magistrate erred in both law and fact by failing to admit the Appellant’s defence which was cogent enough to exonerate him from the offence.
d. That the judgement of the Court was against the weight of the evidence.
e. That the learned trial magistrate erred in both law and fact by failing to consider the circumstances surrounding the case.
f. That the learned trial magistrate erred in both law and fact by not considering the conflicting evidence among the Prosecution witnesses which could lead to acquittal of the Appellant.
g. That further grounds of appeal will be erected/adduced after the receipt and perusal of the true certified copy of the trial proceedings.
16. He prayed that this Court allows his appeal in its entirety and the sentence of 15 years imprisonment be set aside and he be set at liberty.
17. The appeal was canvassed by way of written submissions. The record clearly indicates that only the Respondent complied with the Court timelines and directive on filing of the written submissions. The Appellant’s written submissions were struck out for been filed beyond the granted 21 days.
E. Issues for Determination.
18. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the Respondent’s submissions filed before this Court and the applicable law. In the circumstances, it is my view that the issues for determination emanating therein are as follows:
i. Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt;
ii. Whether there were contradictions and inconsistencies in the Respondent’s case; and
iii. Whether the sentence meted out on the Appellant was excessive and harsh.
F. Analysis and Determination
Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt.
19. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The section provides that:
“(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 between the age of twelve and fifteen is liable upon conviction to imprisonment for a term not less than twenty years.”
20. To sustain the charge of defilement against the Appellant, the Respondent needed to prove the following essential ingredients of the offence of defilement:
a. That the Complainant was, at the material time, a child as defined under section 2 of the Children’s Act and of the age between 12 years and 15 years
b. That there was penetration of the child’s vagina; and;
c. That it was the appellant who caused such penetration of the complainant’s vagina or genitalia.
a. Proof of age
21. On the age of the Complainant, Complainant was born on 5th July 2008 and that at the time of the incident she was 15 years old. PW4 testified that the Complainant was born 5th July 2008 as per the birth certificate serialized as 83154977 which he produced the same in Court as PEXH 1. This simply means on 21st December 2023, the Complainant was 15 years 5 months 16 days old.
22. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal stated as follows:
“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.”
23. Rule 4 of the Sexual Offences Rules of Court Rules is explicit that:
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
24. Therefore, in this case, in the absence of any other evidence to the contrary, I find that Complainant was aged 15 years when the alleged incident of defilement occurred.
b. Penetration
22. On penetration, Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
25. Before the trial Court, the evidence was that the Complainant (PW1) knew the Appellant herein and she told the Court that sometime in 2021 while a class 8 pupil the Appellant herein started seducing her and she accepted his advances. They continued their communication until 2013 between the month of August and December when visited her sister, Brigit Cheberen Namanda, in (particulars withheld) for a whole month. She told the Court that eventually on 19th December 2023, she visited the Appellant herein at his home (particulars withheld) village and stayed there until 21st December 2023 when the police officers apprehended them. She confirmed that during that period she engaged in protected sexual intercourse with the Appellant three times wherein the Appellant placed his private parts i.e the one he uses to urinate and inserted it into her vagina.
26. This evidence confirmed that the Complainant was penetrated and the evidence by PW3 hence corroborated the evidence of the Complainant. PW3 opined that the Complainant was defiled due to the absence of hymen and the presence of epithelial cells and issued her with some medication. He produced in Court the P3 form, treatment notes and PRC form filled on 21st December 2023, as PEXH 2, PEXH 3, and PEXH 4 respectively.
27. Further, in the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the Court stated thus;
“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.”
28. Consequently, guided by the above, I find that the evidence of the Complainant and PW3, the Clinical Officer, was sufficient to prove penetration, and there is no reason to disturb the finding of the trial Court.
c. Identification of perpetrator
29. As to whether the Appellant was the perpetrator, it was the Complainant’s evidence that she commenced a sexual affair with the Appellant in 2021 while in class 8 and that on 19th December 2023, she visited the Appellant herein at his home (particulars withheld) village and stayed there until 21st December 2023 when the police officers apprehended them. It is clear that the Complainant knew the Appellant well and recognized him as the perpetrator hence her testimony was not a lie. In the circumstances, I find that the Appellant was properly recognized as the perpetrator of the offence. I find guidance in the principles set out in the English case of R. vs Turnbull (1971) QR 227.
30. It is also accepted in law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59).
31. I find that the Respondent proved all the ingredients of defilement against the Appellant beyond any reasonable doubts.
Whether there were contradictions and inconsistencies in the Respondent’s case
32. It is trite law that not all discrepancies and inconsistencies are fatal to the Prosecution case. The discrepancies must be of such gravity that they prejudice the Accused. In Mwangi v Republic [2021] KECA 345 (KLR) it was held:
“34. On the alleged failure of the first appellate court to address inconsistencies, glaring gaps and extenuating gaps, the position in law and which we fully adopt is as was stated, inter alia by the court in Joseph Maina Mwangi vs. Republic Criminal Appeal No. 73 of 1993, that:
“In any trial, there are bound to be discrepancies and any appellate court in considering those discrepancies must be guided by the wording of section 382 of the Criminal Procedure Code to determine whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences…”
33. Consequently, the issue is whether in this matter, there were indeed contradictions and inconsistencies and whether the said inconsistencies and contradictions were of such a degree that they prejudiced the Appellant.
34. This Court has subjected the evidence adduced before the trial Court to a fresh scrutiny and it notes that there are no contradictions and inconsistencies as alluded to by the Appellant herein. In my humble view, the Respondent only had to prove the elements of the criminal offence herein which in my view, were met. Consequently, this ground fails.
Whether the sentence meted out on the Appellant was excessive and harsh.
35. Under Section 8 (3) of the Sexual Offences Act, a person who commits an offence of defilement with a child between the age of Twelve (12) and Fifteen years (15) is liable upon conviction to imprisonment for a term of not less than Twenty (20) years. The trial Court in this instance proceeded to issue a sentence of Fifteen (15) years. The Respondent in its written submissions beseeched this Court to maintain the Appellant’s sentence to Fifteen (15) years.
36. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
37. The Complainant herein was found to be aged 15 years old and with no proper cross-appeal on record for enhancement of sentence the Appellant should Court himself lucky that this Court will not enhance the sentence of fifteen (15) years as meted out by the trial Court.
38. The upshot of the above is that this appeal fails as the Court finds no justification for this to interfere with the sentence that was imposed upon the Appellant.
39. In the result, this appeal against conviction and sentence lacks merit and the same is dismissed.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 28th day of January 2026.
M.S.Shariff
Judge
In the presence of:
Appellant
Ms Matere for the Respondent
Peter Machoni – Court Assistant
IN THE HIGH COURT OF KENYA
CRIMINAL APPEAL NO. E004 OF 2025
SILAS KWEMBOI TENG………………………….…………APPEALLANT
VERSUS
REPUBLIC………………………………………………….….RESPONDENT
(From original conviction and sentence in Principal Magistrate’s Court at Sirisia Criminal Case (SO) No. E037 of 202, Hon.J.O Manasses on 30th October 2024).
JUDGEMENT
A. Background
1. This appeal is against the conviction and sentence to 15 years’ imprisonment for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. It was alleged that on diverse dates between August 2023 and 21st December 2023 at [particular withheld] village, in Chesikaki Sub-Location, Chesikaki Location, Cheptais Sub-County, within Bungoma County, intentionally and unlawfully caused his penis to penetrate the vagina of LC a child aged 15 years old.
2. In the alternative charge, the Appellant was charged with the offence of committing an indecent act contrary to Section11(1) of the Sexual Offences Act No. 3 of 2006. It was alleged that on diverse dates between August 2023 and 21st December 2023 at [particular withheld] village, in Chesikaki Sub-Location, Chesikaki Location, Cheptais Sub-County, within Bungoma County, intentionally touched the vagina of LC a child aged 15 years old with his penis.
3. The Prosecution called Four (4) witnesses. The defence called one witness; the Appellant.
B. Role of the appellate Court
4. As a first appellate Court, I must reconsider and evaluate the evidence in the Court below to arrive at an independent conclusion while bearing in mind that I did not hear or see the witness. In Kiilu & Another V Republic, [2005] 1 KLR 174, the Court of Appeal set out the duties of a first appellate court as follows:-
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; 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.”
C. Evidence
Respondent’s Case
5. The Complainant gave evidence as PW1 and told the court that she lived with her grandmother, Peratira Chemutai, and her elder brother, Edward Boiyo, at [particulars withheld] within Bungoma County and she was a secondary school student.
6. According to her, sometime in 2021 while a class 8 pupil the Appellant herein started seducing her and she accepted his advances. They continued their communication until 2013 between the month of August and December when she visited her sister, Brigit Cheberen Namanda, in (particulars withheld) for a whole month. She told the Court that eventually on 19th December 2023, she visited the Appellant herein at his home (particulars withheld) village and stayed there until 21st December 2023 when the police officers apprehended them. She confirmed that during that period she engaged in protected sexual intercourse with the Appellant three times wherein the Appellant placed his private parts i.e the one he uses to urinate and inserted it into her vagina. After their arrest, they were both taken to Chesikaki Police Station for interrogation and later they were taken to Cheptais Sub-County Hospital.
7. Further, she told the Court that at that point she was 15 years old and at the time she was testifying before the trial Court she was 16 years old, and that her date of birth was 5th July 2008.
8. Finally, she told the Court that she had known the Appellant for 3 years and she did a dock identification.
9. PW2 Rose Chematui Stephen, the mother of the Complainant testified that on 21st December 2023, while at home her eldest son informed her that the Complainant had been spotted at (particulars withheld) area and had been apprehended in the company of the Appellant herein and taken to Chesikaki Police Station. She told the Court that she reported to the station and recorded her statement and that prior to the incident she had not been acquainted to the Appellant herein.
10. PW3 was Job Kiprop, who testified that he was a Clinician based at Cheptais Sub-County and was before Court to avail the P3 form, treatment notes and PRC form of the Complainant dated 21st December 2023. It was his evidence that upon examination of the Complainant he had observed that she was in fair general condition. On examination of her genitalia, he had established that the external appearance was normal with no stain or lacerations on her labia minora and majora, but her hymen was missing. On laboratory examination, her urinalysis confirmed presence of an infection and the puss cells were present in her urine. He opined that the Complainant had been defiled due to the absence of hymen and the presence of epithelial cells and he had issued her with some medication. He produced the P3 form, treatment notes and PRC form filled on 21st December 2023, as PEXH 2, PEXH 3, and PEXH 4 respectively.
11. On cross-examination, he told the Court that he also examined the Appellant herein.
12. PW4, No. 255813 PC Gabriel Muthunga, was the investigating officer in the case and was based at Chesikaki Police Station. According to him, on 21st December 2023, while on duty his deputy OCS, PC David Ngubao and the brother of the Complainant arrived at the station with the Appellant herein and the Complainant. The complainant’s brother had informed the police officers that the Appellant and his sister were involved in sexual relations. He told the Court that the Complainant was arrested at the Appellant’s house and the two were immediately placed in custody then later taken to Cheptais Sub-County Hospital by his colleagues. He later recorded the statement of the Complainant. He told the Court that the Complainant was born on 5th July 2008 as per the birth certificate serialized as 83154977 and he produced the same in Court as PEXH 1
Defence/Appellant’s case
13. The Appellant in his defence denied the offence. He alleged that on 21st December 2023, at 7.00 a.m. he went to his shamba and finished his chores at 11.00 a.m. and later went to watch some pool game and at 12.00 p.m. he was apprehended by police officers and taken to Mulatiwa Police Station and later Sirisia Law Courts where he was charged with an offence he knew nothing about.
14. The trial Court evaluated the evidence and was of considered view that the Respondent proved its case beyond reasonable doubt and hence conviction the Appellant on the main count. The Appellant was consequently sentenced to serve 15 years imprisonment.
D. Appeal
15. Dissatisfied with the conviction and sentence, the Appellant filed a petition of appeal listing seven (7) grounds of appeal: -
a. That the learned trial magistrate erred in both law and fact by not finding out that penetration was not proved to the required standard.
b. That the learned trial magistrate erred in both law and fact by failing to prove the age of the Complainant
c. That the learned trial magistrate erred in both law and fact by failing to admit the Appellant’s defence which was cogent enough to exonerate him from the offence.
d. That the judgement of the Court was against the weight of the evidence.
e. That the learned trial magistrate erred in both law and fact by failing to consider the circumstances surrounding the case.
f. That the learned trial magistrate erred in both law and fact by not considering the conflicting evidence among the Prosecution witnesses which could lead to acquittal of the Appellant.
g. That further grounds of appeal will be erected/adduced after the receipt and perusal of the true certified copy of the trial proceedings.
16. He prayed that this Court allows his appeal in its entirety and the sentence of 15 years imprisonment be set aside and he be set at liberty.
17. The appeal was canvassed by way of written submissions. The record clearly indicates that only the Respondent complied with the Court timelines and directive on filing of the written submissions. The Appellant’s written submissions were struck out for been filed beyond the granted 21 days.
E. Issues for Determination.
18. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the Respondent’s submissions filed before this Court and the applicable law. In the circumstances, it is my view that the issues for determination emanating therein are as follows:
i. Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt;
ii. Whether there were contradictions and inconsistencies in the Respondent’s case; and
iii. Whether the sentence meted out on the Appellant was excessive and harsh.
F. Analysis and Determination
Whether the Respondent’s case against the Appellant was proven beyond reasonable doubt.
19. The Appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act. The section provides that:
“(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 between the age of twelve and fifteen is liable upon conviction to imprisonment for a term not less than twenty years.”
20. To sustain the charge of defilement against the Appellant, the Respondent needed to prove the following essential ingredients of the offence of defilement:
a. That the Complainant was, at the material time, a child as defined under section 2 of the Children’s Act and of the age between 12 years and 15 years
b. That there was penetration of the child’s vagina; and;
c. That it was the appellant who caused such penetration of the complainant’s vagina or genitalia.
a. Proof of age
21. On the age of the Complainant, Complainant was born on 5th July 2008 and that at the time of the incident she was 15 years old. PW4 testified that the Complainant was born 5th July 2008 as per the birth certificate serialized as 83154977 which he produced the same in Court as PEXH 1. This simply means on 21st December 2023, the Complainant was 15 years 5 months 16 days old.
22. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal stated as follows:
“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.”
23. Rule 4 of the Sexual Offences Rules of Court Rules is explicit that:
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
24. Therefore, in this case, in the absence of any other evidence to the contrary, I find that Complainant was aged 15 years when the alleged incident of defilement occurred.
b. Penetration
22. On penetration, Section 2(1) of the Sexual Offences Act defines penetration as:
“The partial or complete insertion of the genital organs of a person into the genital organ of another person.”
25. Before the trial Court, the evidence was that the Complainant (PW1) knew the Appellant herein and she told the Court that sometime in 2021 while a class 8 pupil the Appellant herein started seducing her and she accepted his advances. They continued their communication until 2013 between the month of August and December when visited her sister, Brigit Cheberen Namanda, in (particulars withheld) for a whole month. She told the Court that eventually on 19th December 2023, she visited the Appellant herein at his home (particulars withheld) village and stayed there until 21st December 2023 when the police officers apprehended them. She confirmed that during that period she engaged in protected sexual intercourse with the Appellant three times wherein the Appellant placed his private parts i.e the one he uses to urinate and inserted it into her vagina.
26. This evidence confirmed that the Complainant was penetrated and the evidence by PW3 hence corroborated the evidence of the Complainant. PW3 opined that the Complainant was defiled due to the absence of hymen and the presence of epithelial cells and issued her with some medication. He produced in Court the P3 form, treatment notes and PRC form filled on 21st December 2023, as PEXH 2, PEXH 3, and PEXH 4 respectively.
27. Further, in the case of Bassita Hussein v Uganda, Supreme Court Criminal Appeal No 35 of 1995, the Court stated thus;
“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.”
28. Consequently, guided by the above, I find that the evidence of the Complainant and PW3, the Clinical Officer, was sufficient to prove penetration, and there is no reason to disturb the finding of the trial Court.
c. Identification of perpetrator
29. As to whether the Appellant was the perpetrator, it was the Complainant’s evidence that she commenced a sexual affair with the Appellant in 2021 while in class 8 and that on 19th December 2023, she visited the Appellant herein at his home (particulars withheld) village and stayed there until 21st December 2023 when the police officers apprehended them. It is clear that the Complainant knew the Appellant well and recognized him as the perpetrator hence her testimony was not a lie. In the circumstances, I find that the Appellant was properly recognized as the perpetrator of the offence. I find guidance in the principles set out in the English case of R. vs Turnbull (1971) QR 227.
30. It is also accepted in law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59).
31. I find that the Respondent proved all the ingredients of defilement against the Appellant beyond any reasonable doubts.
Whether there were contradictions and inconsistencies in the Respondent’s case
32. It is trite law that not all discrepancies and inconsistencies are fatal to the Prosecution case. The discrepancies must be of such gravity that they prejudice the Accused. In Mwangi v Republic [2021] KECA 345 (KLR) it was held:
“34. On the alleged failure of the first appellate court to address inconsistencies, glaring gaps and extenuating gaps, the position in law and which we fully adopt is as was stated, inter alia by the court in Joseph Maina Mwangi vs. Republic Criminal Appeal No. 73 of 1993, that:
“In any trial, there are bound to be discrepancies and any appellate court in considering those discrepancies must be guided by the wording of section 382 of the Criminal Procedure Code to determine whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences…”
33. Consequently, the issue is whether in this matter, there were indeed contradictions and inconsistencies and whether the said inconsistencies and contradictions were of such a degree that they prejudiced the Appellant.
34. This Court has subjected the evidence adduced before the trial Court to a fresh scrutiny and it notes that there are no contradictions and inconsistencies as alluded to by the Appellant herein. In my humble view, the Respondent only had to prove the elements of the criminal offence herein which in my view, were met. Consequently, this ground fails.
Whether the sentence meted out on the Appellant was excessive and harsh.
35. Under Section 8 (3) of the Sexual Offences Act, a person who commits an offence of defilement with a child between the age of Twelve (12) and Fifteen years (15) is liable upon conviction to imprisonment for a term of not less than Twenty (20) years. The trial Court in this instance proceeded to issue a sentence of Fifteen (15) years. The Respondent in its written submissions beseeched this Court to maintain the Appellant’s sentence to Fifteen (15) years.
36. The applicable principles in considering sentence on appeal were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:
“It is now settled law, following several authorities by this court and the high court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.”
37. The Complainant herein was found to be aged 15 years old and with no proper cross-appeal on record for enhancement of sentence the Appellant should Court himself lucky that this Court will not enhance the sentence of fifteen (15) years as meted out by the trial Court.
38. The upshot of the above is that this appeal fails as the Court finds no justification for this to interfere with the sentence that was imposed upon the Appellant.
39. In the result, this appeal against conviction and sentence lacks merit and the same is dismissed.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 28th day of January 2026.
M.S.Shariff
Judge
In the presence of:
Appellant
Ms Matere for the Respondent
Peter Machoni – Court Assistant