(Being an appeal from the Judgment that was delivered by Honourable MS. M. Mutuku on 4 th 25th January 2023 at Mombasa law Courts in Criminal Case No. E006 OF 2022)
The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.
The appellant was after full trial found guilty of the main count upon which the alternative count was deemed spent and thereby sentenced .
Being aggrieved with the conviction and sentence, he preferred the present appeal on the following grounds; -
That the learned trial court magistrate erred in law and facts by convicting the appellant to life imprisonment without considering that the charge of defilement was not proved beyond reasonable doubt.
That the learned trial court magistrate erred in law and facts by convicting the appellant to life imprisonment without considering that there was no DNA conducted to prove that the swab taken from the complainant had any link toI the appellant.
That the learned trial court magistrate erred in law and facts by convicting the appellant for life imprisonment without considering that I the appellant was denied a right to a fair trial pursuant to article 50 (2)(p) of the constitution.
That the learned trial court magistrate erred in law and facts by convicting the appellant to life imprisonment without considering my reasonable sworn defence.
The circumstances of the case are as follows; -
That On the 12th day of January 2022 at around 1500 hrs at Cambodia area of Jomvu Sub County within Mombasa county, Simon Musyoki intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of V.E.O, a child aged 11 yrs. He was charged with the offence of defilement Contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006. He is convicted under Section 215 CPC
The role of this court being the first appellant court is now settled as was stated in the case of Odeno Versus Republic (1977) EALR32 and later Mark Oiruri Mose Versus Republic ( 2013) e KLR among other decisions that this court is duty bound to revisit the evidence tendered before the trail court afresh, evaluate it analyses it and come to its ownconclusion on the matter but laws bearing in mind that the trial court had the advantage of observingthe demeanor of the witnesses and hearing them giving evidence and give allowance for that.
Analysis of the Appeal
a) Proof Beyond Reasonable Doubt
The Appellant contends that the prosecution did not prove the charge of defilement beyond reasonable doubt. Under Section 8(1) of the sexual Offences Act, the prosecution must establish the age of the victim, penetration, and the identity of the perpetrator.
The age of the victim was proved by the production of her birth certificate (Exhibit 1), which showed she was born on 19 th April 2010, making her 11 years old at the time of the offence. This was corroborated by the testimony of PW2, the victim’s mother, and PW7, the investigating officer.
Penetration was established through the victim’s testimony (PW1), which was consistent and detailed. She described how the Appellant lured her to a toilet, bent her over, and penetrated her vagina.
This was corroborated by PW3, who testified that she caught the Appellant in the act with the victim’s dress lifted and his trousers pulled down. Medical evidence (Exhibits 2, 3, and 4) further confirmed penetration, noting bruising and redness in the victim’s genital area, as well as the absence of an intact hymen.
The identity of the Appellant as the perpetrator was confirmed by PW1, who knew him as a frequent passerby in their neighborhood. PW3 also identified the Appellant, stating she had previously sent him on errands. The Appellant’s claim that he was unknown to the victim and PW3 was contradicted by their testimonies and the lack of any established grudge.
b) Absence of DNA Evidence
The Appellant argues that the trial court erred by convicting him without DNA evidence. While DNA evidence can strengthen a case, it is not “mandatory for proving defilement. The Court of Appeal in Joseph Mwangi Kariuki v Republic [2018] eKLR held that medical evidence and credible testimonies are sufficient to prove penetration. In this case, the victim’s testimony, corroborated by PW3 and medical reports, provided overwhelming evidence of the Appellant’s guilt. The absence of DNA evidence does not create reasonable doubt where other evidence is conclusive.
c) Right to a Fair Trial
The Appellant alleges a violation of his right to a fair trial under Article 50(2)(p) of the Constitution. However, the record shows that he was represented during the trial, cross-examined witnesses, and presented his defense. The trial court meticulously evaluated the evidence and gave reasons for its findings. There is no indication of procedural unfairness or bias.
d) Consideration of the Appellant’s Defense
The Appellant claims his defense was disregarded. The trial court considered his testimony but found it inconsistent and unconvincing. He denied knowing the victim or PW3, yet their testimonies and other evidence placed him at the scene. His assertion that he was framed was unsupported by evidence. The trial court rightly concluded that his defense did not raise reasonable doubt.
Conclusion
The prosecution proved all elements of defilement beyond reasonable doubt. The victim’s age, penetration, and the Appellant’s identity were established through credible evidence. The absence of DNA evidence was not fatal to the case, and the Appellant’s right to a fair trial was upheld. His defense was properly considered but found lacking.
Disposition
For the foregoing reasons, the appeal lacks merit and is hereby dismissed. The conviction and sentence imposed by the trial court are upheld.
It is so held
Dated signed and delivered this 27 th day of June 2025
WENDY KAGENDO
JUDGE
APPELANT PRESENT IN PERSON
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT
The appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006.
The appellant was after full trial found guilty of the main count upon which the alternative count was deemed spent and thereby sentenced .
Being aggrieved with the conviction and sentence, he preferred the present appeal on the following grounds; -
That the learned trial court magistrate erred in law and facts by convicting the appellant to life imprisonment without considering that the charge of defilement was not proved beyond reasonable doubt.
That the learned trial court magistrate erred in law and facts by convicting the appellant to life imprisonment without considering that there was no DNA conducted to prove that the swab taken from the complainant had any link toI the appellant.
That the learned trial court magistrate erred in law and facts by convicting the appellant for life imprisonment without considering that I the appellant was denied a right to a fair trial pursuant to article 50 (2)(p) of the constitution.
That the learned trial court magistrate erred in law and facts by convicting the appellant to life imprisonment without considering my reasonable sworn defence.
The circumstances of the case are as follows; -
That On the 12th day of January 2022 at around 1500 hrs at Cambodia area of Jomvu Sub County within Mombasa county, Simon Musyoki intentionally and unlawfully caused his genital organ namely penis to penetrate the vagina of V.E.O, a child aged 11 yrs. He was charged with the offence of defilement Contrary to Section 8 (1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006. He is convicted under Section 215 CPC
The role of this court being the first appellant court is now settled as was stated in the case of Odeno Versus Republic (1977) EALR32 and later Mark Oiruri Mose Versus Republic ( 2013) e KLR among other decisions that this court is duty bound to revisit the evidence tendered before the trail court afresh, evaluate it analyses it and come to its ownconclusion on the matter but laws bearing in mind that the trial court had the advantage of observingthe demeanor of the witnesses and hearing them giving evidence and give allowance for that.
Analysis of the Appeal
a) Proof Beyond Reasonable Doubt
The Appellant contends that the prosecution did not prove the charge of defilement beyond reasonable doubt. Under Section 8(1) of the sexual Offences Act, the prosecution must establish the age of the victim, penetration, and the identity of the perpetrator.
The age of the victim was proved by the production of her birth certificate (Exhibit 1), which showed she was born on 19 th April 2010, making her 11 years old at the time of the offence. This was corroborated by the testimony of PW2, the victim’s mother, and PW7, the investigating officer.
Penetration was established through the victim’s testimony (PW1), which was consistent and detailed. She described how the Appellant lured her to a toilet, bent her over, and penetrated her vagina.
This was corroborated by PW3, who testified that she caught the Appellant in the act with the victim’s dress lifted and his trousers pulled down. Medical evidence (Exhibits 2, 3, and 4) further confirmed penetration, noting bruising and redness in the victim’s genital area, as well as the absence of an intact hymen.
The identity of the Appellant as the perpetrator was confirmed by PW1, who knew him as a frequent passerby in their neighborhood. PW3 also identified the Appellant, stating she had previously sent him on errands. The Appellant’s claim that he was unknown to the victim and PW3 was contradicted by their testimonies and the lack of any established grudge.
b) Absence of DNA Evidence
The Appellant argues that the trial court erred by convicting him without DNA evidence. While DNA evidence can strengthen a case, it is not “mandatory for proving defilement. The Court of Appeal in Joseph Mwangi Kariuki v Republic [2018] eKLR held that medical evidence and credible testimonies are sufficient to prove penetration. In this case, the victim’s testimony, corroborated by PW3 and medical reports, provided overwhelming evidence of the Appellant’s guilt. The absence of DNA evidence does not create reasonable doubt where other evidence is conclusive.
c) Right to a Fair Trial
The Appellant alleges a violation of his right to a fair trial under Article 50(2)(p) of the Constitution. However, the record shows that he was represented during the trial, cross-examined witnesses, and presented his defense. The trial court meticulously evaluated the evidence and gave reasons for its findings. There is no indication of procedural unfairness or bias.
d) Consideration of the Appellant’s Defense
The Appellant claims his defense was disregarded. The trial court considered his testimony but found it inconsistent and unconvincing. He denied knowing the victim or PW3, yet their testimonies and other evidence placed him at the scene. His assertion that he was framed was unsupported by evidence. The trial court rightly concluded that his defense did not raise reasonable doubt.
Conclusion
The prosecution proved all elements of defilement beyond reasonable doubt. The victim’s age, penetration, and the Appellant’s identity were established through credible evidence. The absence of DNA evidence was not fatal to the case, and the Appellant’s right to a fair trial was upheld. His defense was properly considered but found lacking.
Disposition
For the foregoing reasons, the appeal lacks merit and is hereby dismissed. The conviction and sentence imposed by the trial court are upheld.
It is so held
Dated signed and delivered this 27 th day of June 2025
WENDY KAGENDO
JUDGE
APPELANT PRESENT IN PERSON
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT