(Being an appeal from the Judgment of Hon. M.A Otindo (PM) at Machakos Court Sexual Offence Case No 46 of 2019 delivered on 19th September 2024)
A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act Cap 63A has lodged this appeal. He seeks that his conviction be quashed and the 15-year imprisonment sentence set aside.
2. The appeal is premised on the grounds that: the learned trial Magistrate erred in law and facts: in failing to find that the prosecution failed to prove the alleged defilement; failing to consider the appellant’s defence and the circumstances of the case therefore mete a harsh and unproportionate sentence hence violated the appellant’s rights under Article 50 (2) (p) of the Constitution; and failing to find that the complainant was not an incredible person who could not be trusted to have made an error free complaint.
B. Background
3. Before the trial court, the appellant was charged with the offence of defilement contrary to section 8(1) as read with 8(4) of the Sexual Offences Act. The particulars of the offence were that on 10th September 2019 at Musalani village, Muimbuni sub-location, Mitaboni location, Kathiani Sub-county within Machakos county, he intentionally caused his penis to penetrate the vagina of F.N a child aged 16 years. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on 10th September 2019 at Musalani village, Muimbuni sub-location, Mitaboni location, Kathiani Sub-county within Machakos county, he intentionally touched the vagina of a child aged 16 years.
4. The appellant pleaded not guilty and to prove its case, the prosecution called 4 witnesses.
C. Prosecution case
5. The victim, PW1, F. N. M. , testified that she was a former student at Kaiyani Secondary School, which she attended as a day scholar. That she left school in June 2019 and between June 2019 and October 2019, she lived with her parents. Then in October 2019, she went to Nairobi to live with one Philomena Mwongeli. At the time of testifying, she stated that she was living with her sister in Kyumvi. She stated that prior to going to Nairobi, she had been taken to Mumbuni Police Post after she had been found in the accused’s house. She identified the accused in court as Wambua.
6. PW1 testified that she had stayed in the accused’s house for about three days in September 2019, though she could not recall the exact date. She explained that on the material day, she and her stepsister Carolyne had been sent to get food from Mumbuni as was customary. They usually obtained food from their mother’s hotel, but on that day their mother did not give them food and instead quarreled them. They returned home, and Carolyne told her that they would be beaten. Carolyne then suggested that they should not go home. They met the accused, whom PW1 said she had known earlier. He offered them a place to sleep.
7. PW1 stated that the accused had previously been in a relationship with her sister Nzilani. They accompanied him to his home, which she described as a three-roomed house. She stated that they slept in the bedroom and that there was no one else in the house at the time, although the accused’s sister in-law lived there. Her step-sister and herself slept on the floor, and the accused’s sister in-law served them food in the bedroom and greeted them as she knew them. She testified that the following day they returned home. Carolyne collected her clothes and suggested that they go back to the accused’s house, which they did at about 11.00 a.m. They slept there again and the accused was present, although PW1 did not know where he slept. On the third day, Carolyne received a call from a person PW1 did not know and left, leaving PW1 alone with the accused.
8. PW1 stated that she went into the bedroom and the accused later entered. He asked her several questions to which she did not respond. She stated that she slept there and in the morning a police officer arrested her while she was still in the bedroom. She said that when the accused came into the room, she asked him where Carolyne was but they did not understand each other. She stated that she slept alone. She further testified that at the police station she was interrogated and narrated her account as it was recorded. She initially stated that she did not have sexual intercourse with the accused and had never had sex with anyone. She claimed that she was caned by a police officer named Timothy in order to record a statement saying that they had had sex. She stated that her mother was present at the station but remained outside. She acknowledged her signature on the statement and alleged that she had been beaten to tell lies.
9. However, PW1 later stated that after Carolyne left, she slept on the same bed with the accused. She said that he asked her for sex and she refused but that they eventually had sexual intercourse against her will. She stated that the accused asked her whether she was ready to have sex for about twenty minutes. She explained that she had initially denied having sex with him because she was worried and afraid. She further stated that many people had told her to say that they did not have sex, but the truth was that they did. She described the accused as her boyfriend and stated that it was the first time they had sexual intercourse. PW1 testified that she was taken to Kathiani Hospital for examination. She showed her birth certificate showing that she was born on 3rd November 2003. She again identified the accused in court.
10. During cross-examination, PW1 stated that she was now 18 years old and knew the accused well as he had been her sister, Nzilani’s boyfriend. She stated that Nzilani was older than her and worked in Nairobi. She did not know whether her parents were aware of that relationship. She stated that she had never gone to the accused’s house with Nzilani. That she had previously ran away from home because her stepfather had caned her. On the material day, she stated that she ran away after her stepfather cut her with a panga for arriving home late. She maintained that she had sexual intercourse with the accused on the third day when they were alone in the bedroom. She stated that in the morning she saw the accused’s brother leaving another room together with his wife. She stated that prior to the incident they had been friends for about two months, having met at a hotel. She testified that the accused had seduced her and told her that he had separated from her sister. She stated that they had not had sexual intercourse before that day.
11. She testified that she did not cry that night and that the other people in the house did not know that she had sexual intercourse with the accused. She stated that it was the accused who opened the door when the police arrived.
12. PW2, Patricia Munee, testified that she resides in Mumbuni–Mitaboni and is a businesswoman aged 48 years. She stated that the complainant, F. N., is her fourth born child and was at the material time a student at Kaiyani Secondary School. She stated that the complainant was born in the year 2003. . She produced the complainant’s birth certificate as Pexhibit1. PW2 stated that she knew the accused prior to the incident, as he had been in a relationship with her elder daughter, Nzilani and they had intended to marry though they did not eventually do so.
13. She testified that on 7th September 2019, which was a Saturday, she returned home from work at about 7.00 p.m. and did not find F. N. and her stepsister Carolyne at home. She waited until about 9.00 p.m. and then began making phone calls to inquire about their whereabouts but no one knew where they were. The following day she searched for them without success and subsequently reported the matter to the police. On 10th September 2019, she received information that the girls were at the accused’s home. She returned to the police station and informed them of this development. On the morning of 11th September 2019, her husband accompanied police officers to the accused’s home, where they found F. N. She testified that F. N. was taken to Mumbuni Police Station, where she joined them and thereafter, they proceeded to Kenol Police Post. F. N. was later taken to Kathiani Hospital for medical examination. PW2 identified the P3 form as an exhibit and confirmed that she submitted the birth certificate to the police. She stated that the accused was also present at the time.
14. PW2 further testified that her daughter disappeared again on 30th September 2019 and remained away until September 2020, when she called and requested fare, stating that she was in Nairobi. PW2 stated that she sent her the fare. She testified that when they found the victim at the accused’s home, Carolyne had already been moved from the house but was later found. She maintained that the girls had been locked in the accused’s house from 7th to 11th September 2019, when the police removed them.
15. On cross-examination, PW2 confirmed that she knew the accused before the incident ashe had been in a relationship with her elder daughter, Nzilani, with plans of marriage that did not materialize. She stated that she did not know why the marriage did not take place and denied harboring any bitterness towards the accused. She denied the suggestion that she used her daughters as a trap to get back at the accused for failing to marry Nzilani. She testified that F.N. was still in school at the time and that she had paid her school fees on 5th September 2019. She denied meeting F.N. and Carolyne in the market on the material morning or threatening to beat them. She also stated that she did not personally go to the accused’s house. She confirmed that F.N. had been beaten by the police.
16. In re-examination, PW2 stated that she had no ill will against the accused and that the charges were not fabricated. She denied threatening her children and reiterated that the girls stayed at the accused’s house from 7th to 11th September 2019, when the police removed them.
17. PW3, Jennipher Mwongeli, testified that she was a Clinical Officer specialized in reproductive health. At the material time in 2019, she was working at Kathiani Level 4 Hospital but had since been transferred to Machakos Level 5 Hospital. She stated that she examined the complainant, F.N.M. and filled the P3 form. She informed the court that the complainant presented with a history of defilement and that she was seen approximately four days after the alleged incident.
18. PW3 testified that on general physical examination, the complainant was physically well kept, clean and normal from head to toe. She observed that the dress the complainant wore was dirty but there were no blood stains. On genital examination, the external genitalia appeared normal. The hymen was broken, and there was normal vaginal discharge. She did not observe any fresh injuries. PW3 formed the opinion that the complainant was sexually active. She stated that the hymen appeared to have been broken a long time ago and that there were no fresh tears. She produced the P3 form as Pexhibit3.
19. On cross-examination, PW3 reiterated that the hymen appeared to have been broken long before the examination and that there were no fresh injuries to suggest recent penetration. She stated that after three days, it would not be possible to detect spermatozoa and therefore she could not tell whether sexual intercourse had occurred on the alleged dates. She further stated that there were no physical findings to conclusively show recent sexual activity.
20. PW4, No. 118332, PC Collins Kirui, testified that he took over the conduct of investigations in the matter from PC Timothy Ngugi, who had since been transferred to Marsabit County. He testified that on 11th September 2019, a report was received from Mumbuni AP Camp regarding an alleged case of defilement. Acting on that report, police officers proceeded to the scene, found both the complainant and the accused, and escorted them to Kenol Police Station. PW4 stated that the complainant, whom he described as a 16-year-old child, was taken to hospital for examination and treatment. According to the medical findings, the doctor indicated that she had been defiled. He further stated that the complainant reported that the alleged defilement had occurred on 10th September 2019. After receiving treatment, her statement was recorded by the initial investigating officer. Other witnesses, including her mother, also recorded statements. He confirmed that a P3 form was duly filled. He produced the birth certificate as PExhibit1 which confirmed that the complainant was born on 3rd November 2003.
21. With these 4 witnesses, the prosecution rested its case. Upon the closure of the prosecution case, the trial court found that the prosecution had established a prima facie case and the appellant was placed on his defence. He chose to give a sworn statement and did not call any witnesses.
D. Defence case
22. DW1, the appellant, Stephen Wambua Kavila, testified that he is from Mumbuni and was born in the year 2002. He confirmed that he knew the complainant, F.N., whom he described as his in-law, stating that she is a sister to Nzilani, with whom he had previously been in a relationship. He stated that Nzilani had been his wife but that they had separated. He testified that on 11th September 2019, the complainant and her sister Carol came to his home asking whether their sister Nzilani was present. That he informed them that they had separated and questioned why they had come looking for her. According to him, the girls then left and he proceeded to the market. He further testified that while at the market, he met a police officer and the complainant’s father, Ben. That the father greeted him and that the girls pointed at him and said, “Ndio huyu.” He stated that he did not understand what they meant. That he was then taken to Mumbuni Police Post, where the complainant’s mother was also present. Thereafter, he was taken to Kenol Police Station. DW1 denied defiling the complainant and stated that the allegations against him were false. He testified that the complainant had told him that her father had forced her to lie and had even cut her with a panga. He denied seeing the PRC form and maintained that he had been framed. He further stated that the complainant’s mother also lied.
23. On cross-examination, DW1 stated that the complainant had said she was 17 years old, though the charge sheet indicated she was 16 years old. He confirmed that he knew her well as she was Nzilani’s sister. He denied that Carolyne had left the complainant at his house as alleged and maintained that the girls only came to ask for Nzilani and left after being informed she was not there. He denied that he was found in the house with the complainant or that she was removed from his house by police. He stated that he had no grudge against the complainant. He reiterated that her father had forced her to make the allegations and had assaulted her with a panga, though he admitted that he had no proof of this and no witnesses to support his claim. He maintained that he was not lying.
24. Ultimately, judgment was delivered on 12th September 2024 where the appellant was convicted for the offence of defilement. On sentencing, the trial court considered all mitigating factors and noted that there was a semblance of no violence or coercion but that does not negate the fact that a minor’s innocence was taken away by the accused person and therefore the appellant was sentenced to serve 15 years imprisonment from 19th September 2024.
E. The Appeal
25. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the 15 years imprisonment sentence set aside. The appellant seeks to rely on his undated written submissions while the respondent sought to rely on its submissions dated 22nd May 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
26. The appellant submits that the prosecution failed to discharge its burden of proof beyond reasonable doubt and urges this Court, as a first appellate court, to re-evaluate the evidence afresh.
27. On the first ground, the appellant contends that penetration was not proved. He argues that the complainant (PW1) gave contradictory evidence, initially denying having had sexual intercourse with him and alleging that she had been beaten by police to implicate him. He submits that any evidence allegedly obtained through coercion offended Article 50(4) of the Constitution and section 25 of the Evidence Act, and ought not to have been relied upon. He further argues that the medical evidence did not confirm recent penetration, noting that PW3 found an old broken hymen with no fresh injuries and was unable to determine whether intercourse had occurred on the material date. He relies on decisions such as J K B v Republic [2018] eKLR, John Mutua Munyoki v Republic [2017] eklr, Daniel Otieno Yugi v Republic [2018] eKLR and Chrispine Waweru Njeri v Republic [2015] eKLR to argue that a broken hymen alone is insufficient proof of penetration and that medical evidence must support the complainant’s account.
28. On age, the appellant disputes both the complainant’s age and his own treatment as an adult offender. He submits that there were inconsistencies regarding the complainant’s age and questions the authenticity and production of the birth certificate. He further argues that he was a minor at the time of the alleged offence, having been born in 2002, and that the trial court erred in disregarding this assertion and relying on an age assessment report allegedly produced without proper evidentiary foundation. He contends that if both parties were minors, the circumstances amounted to a “Romeo and Juliet” scenario and that he was subjected to discrimination contrary to Article 27 of the Constitution. He relies on authorities such as POO (A Minor) v Director of Public Prosecutions & Another [2017] eKLR and G O v Republic [2017] eKLR to submit that custodial sentencing of a minor in such circumstances is unlawful or improper.
29. On identification and credibility, the appellant argues that the complainant’s testimony was inconsistent and unreliable, and that she admitted being beaten to implicate him. He relies on Paul K. Gitari v Republic [2016] eKLR to submit that evidence of identification must be carefully scrutinized, particularly where it is the sole basis of conviction. He further contends that the complainant disappeared for a year and that material contradictions in her testimony cast doubt on her truthfulness, citing the principles in Philip Nzaka Watu v Republic [2016] KECA 696 (KLR).
30. On failure to call vital witnesses, the appellant faults the prosecution for not calling Carolyne, who allegedly accompanied the complainant and was central to the events in question, and for not calling other people present at the alleged scene. He invokes Bukenya & Others v Uganda and Daniel Kipyegon Ng'eno v Republic [1972] EA 549 to argue that failure to call essential witnesses entitled the court to draw an adverse inference against the prosecution.
31. Finally, the appellant submits that the trial court failed to properly evaluate his sworn defence, improperly shifted the burden of proof to him, and convicted him on insufficient and contradictory evidence. He urges this Court to find that the prosecution did not prove its case beyond reasonable doubt, to allow the appeal, quash the conviction, set aside the sentence and set him at liberty.
b) Respondent’s Submissions
32. The respondent opposed the appeal in its entirety on grounds that the prosecution established and proved beyond reasonable doubt the ingredients of defilement that is: age, penetration and identification of accused.
33. On grounds one and three, the respondent submits that PW1 at first tried to recant her evidence stating that she did not have sex with the accused. That from her introduction and description of her relationship with her parents, it was clear that PW1 had been interfered with wherein she tried to paint her parents in bad faith that she stopped to attend school because they used to punish her. The respondent submits that during cross examination, she tried to paint the relationship between her and her step father as strained since she said that her step father at one point cut her with a panga. That the minor further testified that she was currently living with one Philomena Mwongeli in Nairobi. That from the evidence of PW1, it was clear that that there was interference in the manner in which she was testifying in court.
34. The respondent submitted that PW1 in the cause of her testimony, finally decided to state the truth that indeed she had sexual intercourse with the accused person at her own volition. That the reason why she was trying to recant her evidence as recorded was because she was afraid and worried to say that she had sex with the accused person. That the minor confessed that she had been advised by many people to come and say that they did not have sex with the accused person. In consideration of the probative values against the systemic risk, the respondent submitted that even though the minor attempted to recant her evidence, she midway changed to the original position and explained the reason why she was recanting her evidence hence admissibility of her original evidence as recorded at the police station.
35. On identification, the respondent submits that the appellant does not dispute identification bearing that the appellant was arrested at the locus in quo. On penetration, the respondent submits that it was the minor’s evidence that she voluntarily removed her clothes and had sexual intercourse with the accused. That the evidence of the minor was reliable and the trial court convicted him as per Section 124 of the Evidence Act.
36. On ground 2, the respondent submits that the appellant was given a chance to testify and indeed the court proceeded to dismiss the testimony because it was questionable and unreliable hence this ground fails. While making reference to Section 8 of the Sexual Offences Act, the respondent submits that from the evidence of PW2, even though on the charge sheet it was particularized that the minor was 16 years, the minor was born on 3rd November 2003 hence not exactly the age stated as she was actually 15 years 9 months and 3 weeks. That the court exercised its discretion and sentenced the accused to a term of 15 years as opposed to a term of 20 years as provided as the minimum sentence. Respondent submitted that the court was very lenient and exercised its discretion to sentence the appellant to a lower sentence despite the mandatory minimum provisions of the Act.
37. The court was urged to find that the prosecution established all the requisite elements for the offence of defilement contrary to section 8(1) as read together with 8(4) of the Sexual Offences Act.
F. Analysis and determination
38. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR.
39. Having reconsidered the entire record and the rival submissions and bearing in mind the duty of a first appellate court, the following issues arise for determination:
a.) Whether the offence of defilement was proved;
b.) Whether the complainant’s evidence was credible and whether the alleged contradictions and recantation were fatal to the prosecution case.
c.) Whether failure to call certain witnesses weakened the prosecution case.
d.) Whether the appellant’s defence was properly considered
e.) Whether the sentence was lawful and appropriate.
(a) Whether the offence of defilement was proved
40. Section 8(1) of the Sexual Offences Act provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. While 8(4) states: 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.
41. In the case of George Opondo Olunga v Republic (2016) eKLR the ingredients for the offence of defilement were set out as:
i. Proof of the age of the victim;
ii. Proof of penetration or indecent act;
iii. Identification of the perpetrator.
42. On age, the prosecution produced a birth certificate indicating that the complainant was born on 3rd November 2003. The alleged offence occurred on 10th September 2019. This placed her at 15 years, 10 months and a few days therefore below 16 years. The birth certificate was produced as an exhibit without objection. PW2, the complainant’s mother, confirmed the date of birth. There is no indication on record that the document was challenged for authenticity during trial. The appellant argues there were inconsistencies because the charge sheet stated the complainant was 16 years old.
43. Age is a core ingredient upon which the foundation of the offence of defilement is. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows: -
“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -
In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.
44. Hence, when it comes to defilement, age of the accused MUST be clearly stated. Clearly, the victim herein was above 15 years but below the age of 16 years. How should the court treat this scenario? Faced with a similar scenario, the Court of Appeal in Hadson Ali Mwachongo vs. Republic [2016] eKLR stated as follows:
“Before we conclude this judgment, it is necessary to say a word on computation of the age of the victim. The Sexual Offences Act provides for punishment for defilement in a graduated scale. The younger the victim, the severe the punishment. Where the victim is aged 11 years or less, the prescribed punishment is imprisonment for life. Defilement of a child of 12 years to 15 years attracts 20 years imprisonment while defilement of a child aged 16 years to 18 years is punishable by 15 years imprisonment.Rarely will the age of the victim be exact, say exactly 8 years, 10 years, 13 years etc., as at the date of defilement. It will be a few days or months above or below the prescribed age. The question then arises, is a victim who is, for example, 11 years and six months old at the time of defilement to be treated as 11 years old, or as more than 11 years old? If the victim is treated as more than 11 years old, to what term is the offender to be sentenced since the victim has not attained 12 years for which a sentence is prescribed? In the same vein, in the present appeal where the victim was aged 15 years and a couple of months old, but was not yet 16 years old, is the appellant to be sentenced as if the victim was exactly 15 years or as if she was 16 years old?On the face of it, an attractive argument is that there is doubt as to the age of the victim and that the benefit of the doubt ought to be given to the accused person, so that the less severe sentence is imposed. Thus, where the victim is say, 15 years and 2 months, she would be treated as 16 years so that the accused person is sentenced to 15 years imprisonment, as though the victim was aged between 16 and 18 years, instead of 20 years for a victim of 15 years.Indeed, in Alfayo Gombe Okello vs. Republic, (supra), this Court went about the issue as follows:“The evidence of the mother was that she (the victim) was born in 1992. No month or date is mentioned. If she was born between January and July 1992, she would obviously have been above 15 years of age but below sixteen when the offence was committed. It seems to us that there is an obvious lacuna in the Act as there is no provision for punishment where the child is between the age of fifteen and sixteen years. Section 8 (4) caters for the ages of sixteen to eighteen years. We must therefore take the construction which is favourable to the appellant. In our view, there is a reasonable doubt over the actual age of the child as at the time of commission of the offence. The onus was on the prosecution to clear such doubts, failure to which the benefit would go to the appellant. We so find.”We are of a different mind for the following reasons. Section 2 of the Interpretation and General Provisions Act defines “year” to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus, a person who is, for example, 10 years and 6 months is deemed to be10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not a
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A. Introduction
1. The appellant being aggrieved by the decision of the trial court that convicted him for the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act Cap 63A has lodged this appeal. He seeks that his conviction be quashed and the 15-year imprisonment sentence set aside.
2. The appeal is premised on the grounds that: the learned trial Magistrate erred in law and facts: in failing to find that the prosecution failed to prove the alleged defilement; failing to consider the appellant’s defence and the circumstances of the case therefore mete a harsh and unproportionate sentence hence violated the appellant’s rights under Article 50 (2) (p) of the Constitution; and failing to find that the complainant was not an incredible person who could not be trusted to have made an error free complaint.
B. Background
3. Before the trial court, the appellant was charged with the offence of defilement contrary to section 8(1) as read with 8(4) of the Sexual Offences Act. The particulars of the offence were that on 10th September 2019 at Musalani village, Muimbuni sub-location, Mitaboni location, Kathiani Sub-county within Machakos county, he intentionally caused his penis to penetrate the vagina of F.N a child aged 16 years. In the alternative, he was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on 10th September 2019 at Musalani village, Muimbuni sub-location, Mitaboni location, Kathiani Sub-county within Machakos county, he intentionally touched the vagina of a child aged 16 years.
4. The appellant pleaded not guilty and to prove its case, the prosecution called 4 witnesses.
C. Prosecution case
5. The victim, PW1, F. N. M. , testified that she was a former student at Kaiyani Secondary School, which she attended as a day scholar. That she left school in June 2019 and between June 2019 and October 2019, she lived with her parents. Then in October 2019, she went to Nairobi to live with one Philomena Mwongeli. At the time of testifying, she stated that she was living with her sister in Kyumvi. She stated that prior to going to Nairobi, she had been taken to Mumbuni Police Post after she had been found in the accused’s house. She identified the accused in court as Wambua.
6. PW1 testified that she had stayed in the accused’s house for about three days in September 2019, though she could not recall the exact date. She explained that on the material day, she and her stepsister Carolyne had been sent to get food from Mumbuni as was customary. They usually obtained food from their mother’s hotel, but on that day their mother did not give them food and instead quarreled them. They returned home, and Carolyne told her that they would be beaten. Carolyne then suggested that they should not go home. They met the accused, whom PW1 said she had known earlier. He offered them a place to sleep.
7. PW1 stated that the accused had previously been in a relationship with her sister Nzilani. They accompanied him to his home, which she described as a three-roomed house. She stated that they slept in the bedroom and that there was no one else in the house at the time, although the accused’s sister in-law lived there. Her step-sister and herself slept on the floor, and the accused’s sister in-law served them food in the bedroom and greeted them as she knew them. She testified that the following day they returned home. Carolyne collected her clothes and suggested that they go back to the accused’s house, which they did at about 11.00 a.m. They slept there again and the accused was present, although PW1 did not know where he slept. On the third day, Carolyne received a call from a person PW1 did not know and left, leaving PW1 alone with the accused.
8. PW1 stated that she went into the bedroom and the accused later entered. He asked her several questions to which she did not respond. She stated that she slept there and in the morning a police officer arrested her while she was still in the bedroom. She said that when the accused came into the room, she asked him where Carolyne was but they did not understand each other. She stated that she slept alone. She further testified that at the police station she was interrogated and narrated her account as it was recorded. She initially stated that she did not have sexual intercourse with the accused and had never had sex with anyone. She claimed that she was caned by a police officer named Timothy in order to record a statement saying that they had had sex. She stated that her mother was present at the station but remained outside. She acknowledged her signature on the statement and alleged that she had been beaten to tell lies.
9. However, PW1 later stated that after Carolyne left, she slept on the same bed with the accused. She said that he asked her for sex and she refused but that they eventually had sexual intercourse against her will. She stated that the accused asked her whether she was ready to have sex for about twenty minutes. She explained that she had initially denied having sex with him because she was worried and afraid. She further stated that many people had told her to say that they did not have sex, but the truth was that they did. She described the accused as her boyfriend and stated that it was the first time they had sexual intercourse. PW1 testified that she was taken to Kathiani Hospital for examination. She showed her birth certificate showing that she was born on 3rd November 2003. She again identified the accused in court.
10. During cross-examination, PW1 stated that she was now 18 years old and knew the accused well as he had been her sister, Nzilani’s boyfriend. She stated that Nzilani was older than her and worked in Nairobi. She did not know whether her parents were aware of that relationship. She stated that she had never gone to the accused’s house with Nzilani. That she had previously ran away from home because her stepfather had caned her. On the material day, she stated that she ran away after her stepfather cut her with a panga for arriving home late. She maintained that she had sexual intercourse with the accused on the third day when they were alone in the bedroom. She stated that in the morning she saw the accused’s brother leaving another room together with his wife. She stated that prior to the incident they had been friends for about two months, having met at a hotel. She testified that the accused had seduced her and told her that he had separated from her sister. She stated that they had not had sexual intercourse before that day.
11. She testified that she did not cry that night and that the other people in the house did not know that she had sexual intercourse with the accused. She stated that it was the accused who opened the door when the police arrived.
12. PW2, Patricia Munee, testified that she resides in Mumbuni–Mitaboni and is a businesswoman aged 48 years. She stated that the complainant, F. N., is her fourth born child and was at the material time a student at Kaiyani Secondary School. She stated that the complainant was born in the year 2003. . She produced the complainant’s birth certificate as Pexhibit1. PW2 stated that she knew the accused prior to the incident, as he had been in a relationship with her elder daughter, Nzilani and they had intended to marry though they did not eventually do so.
13. She testified that on 7th September 2019, which was a Saturday, she returned home from work at about 7.00 p.m. and did not find F. N. and her stepsister Carolyne at home. She waited until about 9.00 p.m. and then began making phone calls to inquire about their whereabouts but no one knew where they were. The following day she searched for them without success and subsequently reported the matter to the police. On 10th September 2019, she received information that the girls were at the accused’s home. She returned to the police station and informed them of this development. On the morning of 11th September 2019, her husband accompanied police officers to the accused’s home, where they found F. N. She testified that F. N. was taken to Mumbuni Police Station, where she joined them and thereafter, they proceeded to Kenol Police Post. F. N. was later taken to Kathiani Hospital for medical examination. PW2 identified the P3 form as an exhibit and confirmed that she submitted the birth certificate to the police. She stated that the accused was also present at the time.
14. PW2 further testified that her daughter disappeared again on 30th September 2019 and remained away until September 2020, when she called and requested fare, stating that she was in Nairobi. PW2 stated that she sent her the fare. She testified that when they found the victim at the accused’s home, Carolyne had already been moved from the house but was later found. She maintained that the girls had been locked in the accused’s house from 7th to 11th September 2019, when the police removed them.
15. On cross-examination, PW2 confirmed that she knew the accused before the incident ashe had been in a relationship with her elder daughter, Nzilani, with plans of marriage that did not materialize. She stated that she did not know why the marriage did not take place and denied harboring any bitterness towards the accused. She denied the suggestion that she used her daughters as a trap to get back at the accused for failing to marry Nzilani. She testified that F.N. was still in school at the time and that she had paid her school fees on 5th September 2019. She denied meeting F.N. and Carolyne in the market on the material morning or threatening to beat them. She also stated that she did not personally go to the accused’s house. She confirmed that F.N. had been beaten by the police.
16. In re-examination, PW2 stated that she had no ill will against the accused and that the charges were not fabricated. She denied threatening her children and reiterated that the girls stayed at the accused’s house from 7th to 11th September 2019, when the police removed them.
17. PW3, Jennipher Mwongeli, testified that she was a Clinical Officer specialized in reproductive health. At the material time in 2019, she was working at Kathiani Level 4 Hospital but had since been transferred to Machakos Level 5 Hospital. She stated that she examined the complainant, F.N.M. and filled the P3 form. She informed the court that the complainant presented with a history of defilement and that she was seen approximately four days after the alleged incident.
18. PW3 testified that on general physical examination, the complainant was physically well kept, clean and normal from head to toe. She observed that the dress the complainant wore was dirty but there were no blood stains. On genital examination, the external genitalia appeared normal. The hymen was broken, and there was normal vaginal discharge. She did not observe any fresh injuries. PW3 formed the opinion that the complainant was sexually active. She stated that the hymen appeared to have been broken a long time ago and that there were no fresh tears. She produced the P3 form as Pexhibit3.
19. On cross-examination, PW3 reiterated that the hymen appeared to have been broken long before the examination and that there were no fresh injuries to suggest recent penetration. She stated that after three days, it would not be possible to detect spermatozoa and therefore she could not tell whether sexual intercourse had occurred on the alleged dates. She further stated that there were no physical findings to conclusively show recent sexual activity.
20. PW4, No. 118332, PC Collins Kirui, testified that he took over the conduct of investigations in the matter from PC Timothy Ngugi, who had since been transferred to Marsabit County. He testified that on 11th September 2019, a report was received from Mumbuni AP Camp regarding an alleged case of defilement. Acting on that report, police officers proceeded to the scene, found both the complainant and the accused, and escorted them to Kenol Police Station. PW4 stated that the complainant, whom he described as a 16-year-old child, was taken to hospital for examination and treatment. According to the medical findings, the doctor indicated that she had been defiled. He further stated that the complainant reported that the alleged defilement had occurred on 10th September 2019. After receiving treatment, her statement was recorded by the initial investigating officer. Other witnesses, including her mother, also recorded statements. He confirmed that a P3 form was duly filled. He produced the birth certificate as PExhibit1 which confirmed that the complainant was born on 3rd November 2003.
21. With these 4 witnesses, the prosecution rested its case. Upon the closure of the prosecution case, the trial court found that the prosecution had established a prima facie case and the appellant was placed on his defence. He chose to give a sworn statement and did not call any witnesses.
D. Defence case
22. DW1, the appellant, Stephen Wambua Kavila, testified that he is from Mumbuni and was born in the year 2002. He confirmed that he knew the complainant, F.N., whom he described as his in-law, stating that she is a sister to Nzilani, with whom he had previously been in a relationship. He stated that Nzilani had been his wife but that they had separated. He testified that on 11th September 2019, the complainant and her sister Carol came to his home asking whether their sister Nzilani was present. That he informed them that they had separated and questioned why they had come looking for her. According to him, the girls then left and he proceeded to the market. He further testified that while at the market, he met a police officer and the complainant’s father, Ben. That the father greeted him and that the girls pointed at him and said, “Ndio huyu.” He stated that he did not understand what they meant. That he was then taken to Mumbuni Police Post, where the complainant’s mother was also present. Thereafter, he was taken to Kenol Police Station. DW1 denied defiling the complainant and stated that the allegations against him were false. He testified that the complainant had told him that her father had forced her to lie and had even cut her with a panga. He denied seeing the PRC form and maintained that he had been framed. He further stated that the complainant’s mother also lied.
23. On cross-examination, DW1 stated that the complainant had said she was 17 years old, though the charge sheet indicated she was 16 years old. He confirmed that he knew her well as she was Nzilani’s sister. He denied that Carolyne had left the complainant at his house as alleged and maintained that the girls only came to ask for Nzilani and left after being informed she was not there. He denied that he was found in the house with the complainant or that she was removed from his house by police. He stated that he had no grudge against the complainant. He reiterated that her father had forced her to make the allegations and had assaulted her with a panga, though he admitted that he had no proof of this and no witnesses to support his claim. He maintained that he was not lying.
24. Ultimately, judgment was delivered on 12th September 2024 where the appellant was convicted for the offence of defilement. On sentencing, the trial court considered all mitigating factors and noted that there was a semblance of no violence or coercion but that does not negate the fact that a minor’s innocence was taken away by the accused person and therefore the appellant was sentenced to serve 15 years imprisonment from 19th September 2024.
E. The Appeal
25. The appeal is as set out in the earlier paragraphs of this judgment. The appellant seeks that his conviction be quashed and the 15 years imprisonment sentence set aside. The appellant seeks to rely on his undated written submissions while the respondent sought to rely on its submissions dated 22nd May 2025. The parties’ submissions are as follows:
a) Appellant’s Submissions
26. The appellant submits that the prosecution failed to discharge its burden of proof beyond reasonable doubt and urges this Court, as a first appellate court, to re-evaluate the evidence afresh.
27. On the first ground, the appellant contends that penetration was not proved. He argues that the complainant (PW1) gave contradictory evidence, initially denying having had sexual intercourse with him and alleging that she had been beaten by police to implicate him. He submits that any evidence allegedly obtained through coercion offended Article 50(4) of the Constitution and section 25 of the Evidence Act, and ought not to have been relied upon. He further argues that the medical evidence did not confirm recent penetration, noting that PW3 found an old broken hymen with no fresh injuries and was unable to determine whether intercourse had occurred on the material date. He relies on decisions such as J K B v Republic [2018] eKLR, John Mutua Munyoki v Republic [2017] eklr, Daniel Otieno Yugi v Republic [2018] eKLR and Chrispine Waweru Njeri v Republic [2015] eKLR to argue that a broken hymen alone is insufficient proof of penetration and that medical evidence must support the complainant’s account.
28. On age, the appellant disputes both the complainant’s age and his own treatment as an adult offender. He submits that there were inconsistencies regarding the complainant’s age and questions the authenticity and production of the birth certificate. He further argues that he was a minor at the time of the alleged offence, having been born in 2002, and that the trial court erred in disregarding this assertion and relying on an age assessment report allegedly produced without proper evidentiary foundation. He contends that if both parties were minors, the circumstances amounted to a “Romeo and Juliet” scenario and that he was subjected to discrimination contrary to Article 27 of the Constitution. He relies on authorities such as POO (A Minor) v Director of Public Prosecutions & Another [2017] eKLR and G O v Republic [2017] eKLR to submit that custodial sentencing of a minor in such circumstances is unlawful or improper.
29. On identification and credibility, the appellant argues that the complainant’s testimony was inconsistent and unreliable, and that she admitted being beaten to implicate him. He relies on Paul K. Gitari v Republic [2016] eKLR to submit that evidence of identification must be carefully scrutinized, particularly where it is the sole basis of conviction. He further contends that the complainant disappeared for a year and that material contradictions in her testimony cast doubt on her truthfulness, citing the principles in Philip Nzaka Watu v Republic [2016] KECA 696 (KLR).
30. On failure to call vital witnesses, the appellant faults the prosecution for not calling Carolyne, who allegedly accompanied the complainant and was central to the events in question, and for not calling other people present at the alleged scene. He invokes Bukenya & Others v Uganda and Daniel Kipyegon Ng'eno v Republic [1972] EA 549 to argue that failure to call essential witnesses entitled the court to draw an adverse inference against the prosecution.
31. Finally, the appellant submits that the trial court failed to properly evaluate his sworn defence, improperly shifted the burden of proof to him, and convicted him on insufficient and contradictory evidence. He urges this Court to find that the prosecution did not prove its case beyond reasonable doubt, to allow the appeal, quash the conviction, set aside the sentence and set him at liberty.
b) Respondent’s Submissions
32. The respondent opposed the appeal in its entirety on grounds that the prosecution established and proved beyond reasonable doubt the ingredients of defilement that is: age, penetration and identification of accused.
33. On grounds one and three, the respondent submits that PW1 at first tried to recant her evidence stating that she did not have sex with the accused. That from her introduction and description of her relationship with her parents, it was clear that PW1 had been interfered with wherein she tried to paint her parents in bad faith that she stopped to attend school because they used to punish her. The respondent submits that during cross examination, she tried to paint the relationship between her and her step father as strained since she said that her step father at one point cut her with a panga. That the minor further testified that she was currently living with one Philomena Mwongeli in Nairobi. That from the evidence of PW1, it was clear that that there was interference in the manner in which she was testifying in court.
34. The respondent submitted that PW1 in the cause of her testimony, finally decided to state the truth that indeed she had sexual intercourse with the accused person at her own volition. That the reason why she was trying to recant her evidence as recorded was because she was afraid and worried to say that she had sex with the accused person. That the minor confessed that she had been advised by many people to come and say that they did not have sex with the accused person. In consideration of the probative values against the systemic risk, the respondent submitted that even though the minor attempted to recant her evidence, she midway changed to the original position and explained the reason why she was recanting her evidence hence admissibility of her original evidence as recorded at the police station.
35. On identification, the respondent submits that the appellant does not dispute identification bearing that the appellant was arrested at the locus in quo. On penetration, the respondent submits that it was the minor’s evidence that she voluntarily removed her clothes and had sexual intercourse with the accused. That the evidence of the minor was reliable and the trial court convicted him as per Section 124 of the Evidence Act.
36. On ground 2, the respondent submits that the appellant was given a chance to testify and indeed the court proceeded to dismiss the testimony because it was questionable and unreliable hence this ground fails. While making reference to Section 8 of the Sexual Offences Act, the respondent submits that from the evidence of PW2, even though on the charge sheet it was particularized that the minor was 16 years, the minor was born on 3rd November 2003 hence not exactly the age stated as she was actually 15 years 9 months and 3 weeks. That the court exercised its discretion and sentenced the accused to a term of 15 years as opposed to a term of 20 years as provided as the minimum sentence. Respondent submitted that the court was very lenient and exercised its discretion to sentence the appellant to a lower sentence despite the mandatory minimum provisions of the Act.
37. The court was urged to find that the prosecution established all the requisite elements for the offence of defilement contrary to section 8(1) as read together with 8(4) of the Sexual Offences Act.
F. Analysis and determination
38. This being a first appeal, this Court has a duty to reconsider and re-evaluate the evidence adduced before the trial court and make its own independent conclusion. It should however give regard to the fact that it has neither heard nor seen the witnesses testify. See the cases of Pandya v R {1957} EA 336; Ruwalla v R {1957} EA 570 and Kisumu Criminal Appeal No. 28 of 2009 David Njuguna Wairimu v. Republic [2010] eKLR.
39. Having reconsidered the entire record and the rival submissions and bearing in mind the duty of a first appellate court, the following issues arise for determination:
a.) Whether the offence of defilement was proved;
b.) Whether the complainant’s evidence was credible and whether the alleged contradictions and recantation were fatal to the prosecution case.
c.) Whether failure to call certain witnesses weakened the prosecution case.
d.) Whether the appellant’s defence was properly considered
e.) Whether the sentence was lawful and appropriate.
(a) Whether the offence of defilement was proved
40. Section 8(1) of the Sexual Offences Act provides that “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement”. While 8(4) states: 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.
41. In the case of George Opondo Olunga v Republic (2016) eKLR the ingredients for the offence of defilement were set out as:
i. Proof of the age of the victim;
ii. Proof of penetration or indecent act;
iii. Identification of the perpetrator.
42. On age, the prosecution produced a birth certificate indicating that the complainant was born on 3rd November 2003. The alleged offence occurred on 10th September 2019. This placed her at 15 years, 10 months and a few days therefore below 16 years. The birth certificate was produced as an exhibit without objection. PW2, the complainant’s mother, confirmed the date of birth. There is no indication on record that the document was challenged for authenticity during trial. The appellant argues there were inconsistencies because the charge sheet stated the complainant was 16 years old.
43. Age is a core ingredient upon which the foundation of the offence of defilement is. The importance of proving age was underscored by the Court of Appeal in the case of Hadson Ali Mwachongo v Republic [2016] eKLR, as follows: -
“The importance of proving the age of the victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim. In Alfayo Gombe Okello v Republic Cr. App 203 of 2009 (Kisumu) this Court stated as follows: -
In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. This must be so because dire consequences flow from proof of the offence under section 8(1)”.
44. Hence, when it comes to defilement, age of the accused MUST be clearly stated. Clearly, the victim herein was above 15 years but below the age of 16 years. How should the court treat this scenario? Faced with a similar scenario, the Court of Appeal in Hadson Ali Mwachongo vs. Republic [2016] eKLR stated as follows:
“Before we conclude this judgment, it is necessary to say a word on computation of the age of the victim. The Sexual Offences Act provides for punishment for defilement in a graduated scale. The younger the victim, the severe the punishment. Where the victim is aged 11 years or less, the prescribed punishment is imprisonment for life. Defilement of a child of 12 years to 15 years attracts 20 years imprisonment while defilement of a child aged 16 years to 18 years is punishable by 15 years imprisonment.Rarely will the age of the victim be exact, say exactly 8 years, 10 years, 13 years etc., as at the date of defilement. It will be a few days or months above or below the prescribed age. The question then arises, is a victim who is, for example, 11 years and six months old at the time of defilement to be treated as 11 years old, or as more than 11 years old? If the victim is treated as more than 11 years old, to what term is the offender to be sentenced since the victim has not attained 12 years for which a sentence is prescribed? In the same vein, in the present appeal where the victim was aged 15 years and a couple of months old, but was not yet 16 years old, is the appellant to be sentenced as if the victim was exactly 15 years or as if she was 16 years old?On the face of it, an attractive argument is that there is doubt as to the age of the victim and that the benefit of the doubt ought to be given to the accused person, so that the less severe sentence is imposed. Thus, where the victim is say, 15 years and 2 months, she would be treated as 16 years so that the accused person is sentenced to 15 years imprisonment, as though the victim was aged between 16 and 18 years, instead of 20 years for a victim of 15 years.Indeed, in Alfayo Gombe Okello vs. Republic, (supra), this Court went about the issue as follows:“The evidence of the mother was that she (the victim) was born in 1992. No month or date is mentioned. If she was born between January and July 1992, she would obviously have been above 15 years of age but below sixteen when the offence was committed. It seems to us that there is an obvious lacuna in the Act as there is no provision for punishment where the child is between the age of fifteen and sixteen years. Section 8 (4) caters for the ages of sixteen to eighteen years. We must therefore take the construction which is favourable to the appellant. In our view, there is a reasonable doubt over the actual age of the child as at the time of commission of the offence. The onus was on the prosecution to clear such doubts, failure to which the benefit would go to the appellant. We so find.”We are of a different mind for the following reasons. Section 2 of the Interpretation and General Provisions Act defines “year” to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus, a person who is, for example, 10 years and 6 months is deemed to be10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not a
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