(Being an appeal from the Conviction and Sentence in Kisii Criminal Case Number CMCSO E008 of 2022 delivered on 23 rd September 2024 by Hon. W Kugwa RM in the Chief Magistrate’s Court at Kisii)
Introduction
1. The Appellant, Thedaus Atandi was on 23 rd September 2024 convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act (SOA) and Assault causing actually bodily harm contrary to Section 251 of the Penal Code in Kisii Chief Magistrate Sexual Offence Case No. E008 of 2022. The particulars of the offence are that on 13 th February 2022 at Bumwanda village in Kisii South Sub County, within Kisii County intentionally caused his penis to penetrate the vagina of A.K , a child aged 6 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offence Act and assault causing actual bodily harm contrary to Section 251 of the Penal Code . Following a full hearing the Appellant was convicted and sentenced to serve 29 years imprisonment.
2. Dissatisfied by both the conviction and sentence, the Appellant lodged a Petition of Appeal dated 3 rd October 2026 . In his Fourteen grounds of appeal. The Appellant contends that the learned trial court erred in law and in fact in several respects going to the fairness of the trial and the sufficiency of the evidence. He argued that the trial court accorded undue weight to the prosecution's case and least weight to the defence, That there was improper shifting of the burden of proof onto the Appellant and the conviction was based on evidence that was inconsistent, contradictory, and uncorroborated.
3. The Appellant further contends that there were gaps and discrepancies in the evidence tendered, the trial court failed to properly evaluate the Complainant's testimony, including the minor's and the mother's testimonies were unreliable and untrue. He states that the sentence was too harsh in the circumstances, prosecution failed to prove its case beyond reasonable doubt and the defence dismissed as mere allegations, giving undue reliance on speculative bruises as conclusive proof of defilement, despite other possible causes such as blunt trauma. The trial court further failed to properly evaluate oral vis-à-vis documentary evidence, especially the absence of proof of penetration. Thus, the evidence could not sustain conviction and sentence for defilement.
4. Lastly, the failure to inform the Appellant of his constitutional right to legal representation or to engage alternative counsel, given the gravity of the offence. The Appellant urged this Court to allow the appeal, the conviction quashed and sentence set aside freeing the Appellant. In the alternative the whole judgment be reviewed.
5. On 21 st May 2026 parties took directions on hearing of the appeal which was to be canvassed by way of written submissions. The Appellant confirmed he had filed his written submissions dated 2 nd March 2026 and equally in receipt of notice of enhancement dated 5 th March 2026. The Appellant requested for 7 days to respond to the notice of enhancement, none was filed at the time of writing this judgment. The Respondent confirmed that they had filed a notice of enhancement and written submissions both dated 5 th March 2026 in opposition of the appeal.
6. This court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court.
Prosecution Case
7. In support of its case, the prosecution called 7 witnesses at the trial court. PW1, the Complainant , a minor and grade one pupil gave unsworn evidence after a voir dire test . She testified that on 13 th February 2022 at about 2:00pm she and her brother PW2 were fetching firewood when the Appellant accused them of stealing his firewood. He sent PW2 to the river to fetch water and kept her back to wash dishes in his house. After she brought water, the Appellant sent PW2 off, closed the door, removed his trousers and forced his penis onto her private parts. PW2 returned to find the door only shut, not locked, saw the Appellant in the act, and began screaming; the Appellant fled to his own house. She and her brother reported to the Appellant’s mother, who examined her and found her dirty, then to their own mother, who found her abdomen aching and her genitals painful. Her brother was called, a police report made, and she was taken to hospital. She identified the Appellant as Thadeus Atandi, whom she knew previously. On cross-examination she denied being coached, denied knowing one Atwori or meeting Isota, and said they were running from the Appellant’s place.
8. PW2, a 12 year old, grade six pupil and the Complainant's brother, gave sworn evidence after a voir dire test. He corroborated the firewood dispute, stating that the Appellant claimed the firewood was his, made them relocate it to his house, then sent him to fetch water while keeping PW1 back, claiming she would wash dishes, though he told him PW1 didn't know how to wash. The Appellant struck him three times on the back with a slasher and set him to slashing grass, while sending PW1 to guard firewood in the thicket. On returning, he found the Appellant lying on his sister with her legs protruding and started screaming; the Appellant ran off. They reported first to the Appellant’s mother, who examined Complainant and confirmed bad manners had been done to her, then to their own mother, and eventually to Gesonso Police Station. On cross-examination he maintained the sequence, denied meeting Isota, confirmed Otwori was his uncle, and said he was never taken to hospital despite being struck with a slasher.
9. PW3, mother of the Complainant confirmed that the Complainant was born on 20 th March 2016 and PW2 on 13 th April 2009. She testified that on 13 th February 2022 the children returned home crying at around 6:00pm; PW2 told her to check the Complainant because the Appellant had done bad things to her. On examination she found semen discharge from Complainant’s private parts and that she was struggling to walk. The Complainant told her the Appellant had lain on her and done foolish things. She took her to Iyabe Hospital, where she was found to have been raped and treated; PRC and P3 forms were completed and treatment notes taken, and the matter was reported to police leading to the Appellant’s arrest. Regarding PW2, she said he was struck three times with a panga after refusing to have his sister wash dishes; he too was issued a P3 form. On cross-examination she denied any relationship with the Appellant, confirmed PW1 had stomach ache rather than visible beating, and said PW1 was given HIV-preventive drugs.
10. PW4 Vincent Ombura Orina, a member of community policing at Gesonso testified that he knew the PW1 & PW2 family. He testified that on 13 th February 2022 at about 5:00pm he was summoned by the children's uncle, who told him his niece had been defiled. Accompanied by Daniel Isota and Justus Otwori, he went to the Appellant’s home, arrested him, and escorted him to Gesonso Police Station. He identified the Appellant in court. On cross-examination he admitted he did not witness the offence itself but spoke to the children afterward and confirmed what had happened; he also confirmed the arrest team and that the scene was among trees within the compound, 20 to 50 metres from the house, near a bag of cement.
11. PW5 PC Elizabeth Rioba, formerly attached to Gesonso Police Station, testified that she received a report on 13 th February 2022 from the Complainant and her mother that the Complainant had been defiled by a neighbour. She recounted the firewood accusation, the sending of PW2 for water and keeping PW1 to wash dishes, and PW2 finding the Appellant lying on the Complainant upon his return, prompting the Appellant to release her. The children then went to the Appellant’s mother before going to the police station, where P3 forms were issued and they proceeded to Iyabe Hospital. She confirmed the Appellant was later arrested by members of the public and community policing members, and that he struck PW2 three times with a slasher for protesting the chore assignment. She visited the scene under a tree. On cross-examination she clarified she visited the scene the following day, that PW1 was not crying and walked normally, and that PW1 had been given emergency drugs.
12. PW6 Scholastica Okoth Clinical Officer, Iyabe Hospital, testifying on behalf of Dr. Ann Mageto and Irene Lumumba. She confirmed PW1 aged 6 years was brought in on 13 th February 2022 reporting a defilement at 1700 hours by a known person, caught in the act by PW2, and that she had changed clothes. On examination, the Complainant appeared generally okay, with wetness on the external genitalia, mild labia minora bruising, and an intact hymen. High vaginal swab tests revealed spermatozoa, though VDRL was negative. Urinalysis and HIV tests followed the next day. She noted the victim was initially difficult to assess psychologically but later coordinated well; the vagina was hyperemic with semen discharge visible, no venereal infection. The P3 Form was completed and signed on 14 th February 2022 and the PRC form on 13 th February 2022. On cross-examination she stated the report did not indicate a struggle, that labia redness was due to increased blood flow, that the bruise was estimated at about one and a half hours old, that emergency contraceptives were administered given the possibility of pregnancy even in a 6 year old, and that while semen discharge and an intact hymen were both recorded, the child did not know what semen was.
13. Lastly PW7 Daniel Otwori Isosa, a clan elder of Onsebe testified that on 13 th February 2022 at about 5:30pm he was called by the Complainant’s uncle who informed him that his niece had been defiled, and went with Vincent Bundi to Ekiiga Vocational Training Centre, arrested the Appellant, and escorted him to Gesonso Police Station, where he recorded a statement. On cross-examination he clarified he never met the victim himself and was not present during the alleged defilement, relying on what the children later told him.
14. The prosecution closed its case on 9 th April 2024 and upon the defence submissions and consideration of evidence and evaluation, the trial court found the prosecution had established a prima facie case, thus the Appellant had a case to answer. Section 211 of the CPC was explained to the accused and he elected to give sworn evidence and calling witnesses.
Defence Case
15. DW1 Thadeus Atandi, the Appellant gave sworn evidence. He testified he is a driver residing at Bogiakumu, where his family and the Complainants' family are village mates, not neighbours. He stated that it was on the Sunday, at about 4:00pm, having just returned from church, he heard children at his live fence and found they had destroyed his fence; they ran off when they saw him. Shortly after, their mother PW3 arrived screaming, accusing him of defiling her daughter, with his grandmother and sister Maurine Monchere present. PW2 later went away with a warning that he would regret. He was arrested later that day at 6:00pm by "Nyumba Kumi" members, taken to a room, and required to remove his clothes for urine and blood samples to test for the offence. He suggested a motive for fabrication, his grandmother had told the Complainants' mother that she would no longer receive vegetables from her, prompting the false accusation. He also claimed the matter was to be settled out of court, but the mother demanded Kshs 40,000, which he could not raise. On cross-examination he confirmed he knew the mother and was present when she testified but did not raise the money issue then, and confirmed he knew PW1, PW2, and PW5.
16. DW2 Maureen Monchere Omuga, the Appellant’s sister testified that on 13 th February 2022 at about 4:00pm she was passing by and found two children collecting firewood near the Appellant’s house, she chased them away, after which they ran off; the Appellant was arrested later. She stated she did not know the children's mother and was unaware the Appellant had called the children to wash his dishes .
17. Subsequently, the trial court found that age of the minor, penetration and the identity of the Appellant had been established and proved beyond a reasonable doubt. The Defence raised was incredible, thus dismissed. The trial Court proceeded to convict the Appellant under Section 215 of the Criminal Procedure Code for assault and defilement . The trial court in consideration of the Appellant’s mitigation, being a first offender, the only bread winner, willingness to reform, 30 years old of age, his mother being old and sick sentenced the Appellant to serve 29 years in prison and a right of appeal within 14 days.
Appellant's Submissions
18. The Appellant submits that the appeal is meritorious. The Appellant invokes the principle that on a first appeal, the court's primary duty is to re-analyze and reconsider the evidence to arrive at its own independent conclusions, citing Pandya v Republic [1957] EA 336 and Okeno v Republic [1972] EA 32 . The Appellant foremost submits as to whether the medical evidence was conclusive he submits that the P3 form is internally contradictory noting bruises on the labia minora at one point while stating elsewhere that the genitalia had no injuries. He further contends that since the clothes were said to have been changed, finding spermatozoa/seminal discharge a day after the alleged act is implausible, especially where the Investigating Officer separately indicated the clothes were not changed, the Complainant was not crying, was not carried, and walked normally. He questions whether ejaculation without penetration was possible, notes the state dry or liquid of the spermatozoa was never clarified, and observes the underwear was never produced as evidence. He also submits that the mother and others physically checking the child's genitalia post incident, being non experts, could itself have caused the bruising and redness, and argues they ought not to have interfered at all. He submits these unresolved questions raise reasonable doubt in the Appellant's favour.
19. On the second issue of penetration, the Appellant highlights that the Complainant never screamed despite the alleged act being very painful for a 6-year-old, absent evidence her mouth was covered; that the alleged act was never clearly explained; that the IO's account of the child walking normally and not crying is inconsistent with a fresh defilement; and that the same P3 contradiction on injuries bruises versus no injuries should benefit the Appellant. He again raises the possibility that the physical checking caused the bruising, and asks, if there was no penetration where the spermatozoa were collected from.
20. On Sentence, the Appellant was convicted on the alternative count under Section 11(1) of the Sexual Offences Act indecent act with a child, which prescribes a minimum of not less than ten years, yet was sentenced to 29 years without the record showing consideration of the statutory parameters or reasons for departing from them. He submits an illegal sentence, or one exceeding the statutory range, cannot be upheld, citing Bernard Kimani Gacheru v Republic [2002] eKLR , and that where a minimum sentence is prescribed, the trial court must comply unless the statute expressly confers discretion to exceed it. Lastly, the Appellant submits the inconsistencies in the prosecution's case and the casual manner of investigation, holistically considered, show the prosecution failed to discharge its legal and evidentiary burden beyond reasonable doubt.
Respondent's Submissions
21. The Respondent opposes the appeal grounded in the Petition of Appeal dated 3 rd October 2024 and notes that all grounds save grounds 8 and 14 essentially contend the prosecution evidence did not meet the required standard for defilement and assault. It sets out the three elements required to prove defilement: the age of the Complainant, whether penetration occurred, and whether the Appellant was the perpetrator.
22. On age, the Respondent submits the Complainant's age of 6 years at the time of the offence was confirmed by the mother, PW3, and by the birth certificate Exhibit 1, and was therefore sufficiently proved. On the second ingredient of penetration the Respondent submits citing the statutory definition of penetration under section 2 of the Sexual Offences Act as the partial or complete insertion of genital organs into another's genital organs, the Respondent submits PW1 gave a detailed account of forceful penetration and pain, corroborated by PW6, the clinical officer, who found mild bruising on the labia minora and lab findings of semen and spermatozoa. The Respondent submits penetration was proved to the required standard.
23. The Respondent submits the Appellant was properly identified as the perpetrator through PW1's account of being taken to his house, PW2's evidence of catching the Appellant in the act and the Appellant fleeing and locking himself in his house upon PW2 screaming, the offence occurring in broad daylight at about 2:00pm, and the children's prior familiarity with and naming of the Appellant as a neighbour, plus their prompt report to PW3.
24. On Count II Assault Causing Actual Bodily Harm . The Respondent relies on PW2's testimony that the Appellant struck him three times with a slasher on the back after forcing him to fetch water and wash dishes, corroborated by PW6's finding of injuries to the upper and right lower scapula, documented in the P3 form (PExh 7) and classified as harm. The Respondent submits there is no evidence on record of any such infraction, as the Appellant was in fact represented by an advocate at trial.
25. Lastly on sentence, the Respondent submits the sentence was, if anything, unduly lenient and itself illegal, given that section 8(2) of the Sexual Offences Act applicable given the Complainant's age prescribes life imprisonment. The Respondent prays for enhancement of the sentence, relying on Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) , where the Supreme Court affirmed the courts' duty to impose sentences as provided under the Sexual Offences Act.
Analysis and Determination.
26. This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions. In the case of Okeno v Republic [1972] EA 32, East Africa Court of Appeal put this duty 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 (Pandya v R, [1957] EA 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M Ruwala v R, [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, [1958] EA 424.”
27. I have extensively read the Appellant’s submissions, the Respondents submissions, given due consideration to the trial court’s proceedings, the record of appeal and the Petition of Appeal. The following issues arise for my determination: -
a. Whether the Prosecution proved its case beyond reasonable doubt.
b. Whether the sentence was harsh and excessive.
Whether the Prosecution proved its case beyond reasonable doubt
28. The Appellant was charged under with the offence of defilement as provided under Section 8(1), as read with Section 8(2), of the Sexual Offences Act, as follows:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
29. The Court of Appeal in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act, the main elements of the offence of defilement are that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice.
30. As to whether the Complainant is a minor. This Complainant’s mother PW3 testified that the Complainant was born on 20 th March 2016 and identified a birth certificate which was produced as Exhibit 1. This court equally notes the Complainant was a minor with the meaning of Sexual Offences Act and the Children Act aged 6 years. Therefore; the age of the minor was sufficiently proved.
31. On positive identification and/or recognition of the perpetrator, the Complainant and the Appellant are known to each other and their families too. The Complainant pointed that it was the Appellant who chased them, sent them to the river and lastly forced her into having sex. The Appellant equally identifies the Complainant and PW2 and that he confirmed that he chased them while fetching firewood close to his house. The Appellant was positively identified through recognition.
32. On penetration, the Complainant testified that the Appellant had sex with her. PW2 testified that he saw the Appellant lying on top of the Complainant, with her legs protruding. PW3 testifies that she examined the Complainant and realized she was wet and dirty, and upon further examination on her genital area it was realized it was reddish with soft tissue injuries. PW6 the clinical officer in her examination observed wetness on the external genitalia, mild labia minora bruising, and an intact hymen. High vaginal swab tests revealed spermatozoa. She concluded that the Complainant had been defiled. This evidence was corroborated by the Investigating officer.
33. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
34. The Appellant contests that penetration was not proved and if proved it was not complete, he asserts that the injuries on the genital area may have been caused by the examination by the mother and other neighbours who are non-experts. He submits that the medical evidence is contradictory and not conclusive, also the prosecution failed to conduct a DNA on the alleged spermatozoa whether dry or liquid. This courts observes that lack of DNA testing of the spermatozoa or whitish discharge is not fatal as it is not a strict requirement of Section 36 of the Sexual Offences Act
35. Section 124 of the Evidence Act allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth .” (Underlined for emphasis)
36. The Complainant in this case tendered unsworn evidence, she was not of age enough to appreciate an oath. A trial court must be satisfied that the Complainant is telling the truth. In its judgment, the trial court was persuaded that the Complainant positively identified the Appellant through recognition and testified that she was defiled, which was corroborated by evidence of PW2 who caught him pants down and screamed. The testimony was corroborated by medical evidence.
37. Should penetration be complete, to warrant an ejaculation or a broken hymen? The evidence adduced all pointed to the Appellant penetrating the Complainant with his penis. It is not a requirement of the law that there must be a complete penetration to warrant a broken hymen. Therefore, absence of a broken hymen does not mean that there was no penetration.
38. The trial court rightfully found that penetration had been proved, Appellant’s defence that he was not around and he was from work was inconsistent and contradictory on cross examination and defence.
39. From the evaluation of the evidence, it is indeed clear that all the three ingredients of the offence of defilement were established to the required standard, and the finding of the trial court was based on credible and cogent evidence. Wherein the Appellant has simply denied his involvement, there was no error or inconsistency was material enough to render the evidence adduced to be of no probative value.
40. This Court therefore finds that the Prosecution proved beyond reasonable doubt the offence of defilement.
41. On the offence of assault, the Appellant was charged for assault causing actual bodily harm contrary Section 251 of the Penal Code . The aforesaid section describes the offence of Assault causing actual body harm as follows:
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years.”
42. In Ndaa v Republic (Criminal Appeal 146 of 1983) [1984] KECA 19 (KLR) (24 January 1984) (Judgment) the Court of Appeal identified the ingredients of the offence as
a) assaulting the Complainant or victim;
b) occasioning actual bodily harm
43. PW2 testified that the Appellant struck him with a slasher on his back. The Appellant being initially identified by both PW1 & PW2. Also, this evidence was corroborated through medical evidence produced by PW6. Wherein it is noted that PW2 sustained soft tissue injuries on left upper scapula and right lower scapula region, an injury likely caused by a blunt object. The nature of the injuries was classified as harm to mean bodily harm.
44. This Court is therefore satisfied that the offence of assault causing actual body harm was proved beyond reasonable doubt.
Whether the sentence was harsh and excessive.
45. As to whether the sentence of 29 years’ imprisonment is harsh and excessive? The trial court found the Appellant guilty of defilement and assault, before meting out the sentence considered the Appellant mitigation. The court further considered that the Appellant is a first offender and sentence him to serve a 29 years. The Penal consequences of defilement under Section 8 (2) of the Sexual Offences Act provides for a mandatory life imprisonment for a person who commits an offence of defilement with a child aged eleven years or less.
46. The Respondent in opposing the sentence and through a notice to the Appellant seeks this court to enhance the sentence to a life imprisonment. In JJW v Republic, Cr. App. No 11 of 2011, (UR) the court of Appeal held that notwithstanding the fact that section 354(3) of the Criminal Procedure Code empowers the High Court to enhance or alter the nature of the sentence imposed by the trial court, in the absence of an appeal against sentence, the court must warn the Appellant before it enhances the sentence. Such a warning is conveyed by the prosecution through a notice or a warning by the court that if the appeal on conviction fails, the sentence may be enhanced or reduced at the end of the hearing of his appeal."
47. The Sentencing Policy Guidelines 2023 outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender.
48. On Mandatory Minimum sentences, the Supreme court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) upheld that mandatory minimum sentences are constitutional and applicable. The Apex court held as follows
“Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence….
… However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed”
49. The trial court despite correctl
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Introduction
1. The Appellant, Thedaus Atandi was on 23 rd September 2024 convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act (SOA) and Assault causing actually bodily harm contrary to Section 251 of the Penal Code in Kisii Chief Magistrate Sexual Offence Case No. E008 of 2022. The particulars of the offence are that on 13 th February 2022 at Bumwanda village in Kisii South Sub County, within Kisii County intentionally caused his penis to penetrate the vagina of A.K , a child aged 6 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offence Act and assault causing actual bodily harm contrary to Section 251 of the Penal Code . Following a full hearing the Appellant was convicted and sentenced to serve 29 years imprisonment.
2. Dissatisfied by both the conviction and sentence, the Appellant lodged a Petition of Appeal dated 3 rd October 2026 . In his Fourteen grounds of appeal. The Appellant contends that the learned trial court erred in law and in fact in several respects going to the fairness of the trial and the sufficiency of the evidence. He argued that the trial court accorded undue weight to the prosecution's case and least weight to the defence, That there was improper shifting of the burden of proof onto the Appellant and the conviction was based on evidence that was inconsistent, contradictory, and uncorroborated.
3. The Appellant further contends that there were gaps and discrepancies in the evidence tendered, the trial court failed to properly evaluate the Complainant's testimony, including the minor's and the mother's testimonies were unreliable and untrue. He states that the sentence was too harsh in the circumstances, prosecution failed to prove its case beyond reasonable doubt and the defence dismissed as mere allegations, giving undue reliance on speculative bruises as conclusive proof of defilement, despite other possible causes such as blunt trauma. The trial court further failed to properly evaluate oral vis-à-vis documentary evidence, especially the absence of proof of penetration. Thus, the evidence could not sustain conviction and sentence for defilement.
4. Lastly, the failure to inform the Appellant of his constitutional right to legal representation or to engage alternative counsel, given the gravity of the offence. The Appellant urged this Court to allow the appeal, the conviction quashed and sentence set aside freeing the Appellant. In the alternative the whole judgment be reviewed.
5. On 21 st May 2026 parties took directions on hearing of the appeal which was to be canvassed by way of written submissions. The Appellant confirmed he had filed his written submissions dated 2 nd March 2026 and equally in receipt of notice of enhancement dated 5 th March 2026. The Appellant requested for 7 days to respond to the notice of enhancement, none was filed at the time of writing this judgment. The Respondent confirmed that they had filed a notice of enhancement and written submissions both dated 5 th March 2026 in opposition of the appeal.
6. This court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court.
Prosecution Case
7. In support of its case, the prosecution called 7 witnesses at the trial court. PW1, the Complainant , a minor and grade one pupil gave unsworn evidence after a voir dire test . She testified that on 13 th February 2022 at about 2:00pm she and her brother PW2 were fetching firewood when the Appellant accused them of stealing his firewood. He sent PW2 to the river to fetch water and kept her back to wash dishes in his house. After she brought water, the Appellant sent PW2 off, closed the door, removed his trousers and forced his penis onto her private parts. PW2 returned to find the door only shut, not locked, saw the Appellant in the act, and began screaming; the Appellant fled to his own house. She and her brother reported to the Appellant’s mother, who examined her and found her dirty, then to their own mother, who found her abdomen aching and her genitals painful. Her brother was called, a police report made, and she was taken to hospital. She identified the Appellant as Thadeus Atandi, whom she knew previously. On cross-examination she denied being coached, denied knowing one Atwori or meeting Isota, and said they were running from the Appellant’s place.
8. PW2, a 12 year old, grade six pupil and the Complainant's brother, gave sworn evidence after a voir dire test. He corroborated the firewood dispute, stating that the Appellant claimed the firewood was his, made them relocate it to his house, then sent him to fetch water while keeping PW1 back, claiming she would wash dishes, though he told him PW1 didn't know how to wash. The Appellant struck him three times on the back with a slasher and set him to slashing grass, while sending PW1 to guard firewood in the thicket. On returning, he found the Appellant lying on his sister with her legs protruding and started screaming; the Appellant ran off. They reported first to the Appellant’s mother, who examined Complainant and confirmed bad manners had been done to her, then to their own mother, and eventually to Gesonso Police Station. On cross-examination he maintained the sequence, denied meeting Isota, confirmed Otwori was his uncle, and said he was never taken to hospital despite being struck with a slasher.
9. PW3, mother of the Complainant confirmed that the Complainant was born on 20 th March 2016 and PW2 on 13 th April 2009. She testified that on 13 th February 2022 the children returned home crying at around 6:00pm; PW2 told her to check the Complainant because the Appellant had done bad things to her. On examination she found semen discharge from Complainant’s private parts and that she was struggling to walk. The Complainant told her the Appellant had lain on her and done foolish things. She took her to Iyabe Hospital, where she was found to have been raped and treated; PRC and P3 forms were completed and treatment notes taken, and the matter was reported to police leading to the Appellant’s arrest. Regarding PW2, she said he was struck three times with a panga after refusing to have his sister wash dishes; he too was issued a P3 form. On cross-examination she denied any relationship with the Appellant, confirmed PW1 had stomach ache rather than visible beating, and said PW1 was given HIV-preventive drugs.
10. PW4 Vincent Ombura Orina, a member of community policing at Gesonso testified that he knew the PW1 & PW2 family. He testified that on 13 th February 2022 at about 5:00pm he was summoned by the children's uncle, who told him his niece had been defiled. Accompanied by Daniel Isota and Justus Otwori, he went to the Appellant’s home, arrested him, and escorted him to Gesonso Police Station. He identified the Appellant in court. On cross-examination he admitted he did not witness the offence itself but spoke to the children afterward and confirmed what had happened; he also confirmed the arrest team and that the scene was among trees within the compound, 20 to 50 metres from the house, near a bag of cement.
11. PW5 PC Elizabeth Rioba, formerly attached to Gesonso Police Station, testified that she received a report on 13 th February 2022 from the Complainant and her mother that the Complainant had been defiled by a neighbour. She recounted the firewood accusation, the sending of PW2 for water and keeping PW1 to wash dishes, and PW2 finding the Appellant lying on the Complainant upon his return, prompting the Appellant to release her. The children then went to the Appellant’s mother before going to the police station, where P3 forms were issued and they proceeded to Iyabe Hospital. She confirmed the Appellant was later arrested by members of the public and community policing members, and that he struck PW2 three times with a slasher for protesting the chore assignment. She visited the scene under a tree. On cross-examination she clarified she visited the scene the following day, that PW1 was not crying and walked normally, and that PW1 had been given emergency drugs.
12. PW6 Scholastica Okoth Clinical Officer, Iyabe Hospital, testifying on behalf of Dr. Ann Mageto and Irene Lumumba. She confirmed PW1 aged 6 years was brought in on 13 th February 2022 reporting a defilement at 1700 hours by a known person, caught in the act by PW2, and that she had changed clothes. On examination, the Complainant appeared generally okay, with wetness on the external genitalia, mild labia minora bruising, and an intact hymen. High vaginal swab tests revealed spermatozoa, though VDRL was negative. Urinalysis and HIV tests followed the next day. She noted the victim was initially difficult to assess psychologically but later coordinated well; the vagina was hyperemic with semen discharge visible, no venereal infection. The P3 Form was completed and signed on 14 th February 2022 and the PRC form on 13 th February 2022. On cross-examination she stated the report did not indicate a struggle, that labia redness was due to increased blood flow, that the bruise was estimated at about one and a half hours old, that emergency contraceptives were administered given the possibility of pregnancy even in a 6 year old, and that while semen discharge and an intact hymen were both recorded, the child did not know what semen was.
13. Lastly PW7 Daniel Otwori Isosa, a clan elder of Onsebe testified that on 13 th February 2022 at about 5:30pm he was called by the Complainant’s uncle who informed him that his niece had been defiled, and went with Vincent Bundi to Ekiiga Vocational Training Centre, arrested the Appellant, and escorted him to Gesonso Police Station, where he recorded a statement. On cross-examination he clarified he never met the victim himself and was not present during the alleged defilement, relying on what the children later told him.
14. The prosecution closed its case on 9 th April 2024 and upon the defence submissions and consideration of evidence and evaluation, the trial court found the prosecution had established a prima facie case, thus the Appellant had a case to answer. Section 211 of the CPC was explained to the accused and he elected to give sworn evidence and calling witnesses.
Defence Case
15. DW1 Thadeus Atandi, the Appellant gave sworn evidence. He testified he is a driver residing at Bogiakumu, where his family and the Complainants' family are village mates, not neighbours. He stated that it was on the Sunday, at about 4:00pm, having just returned from church, he heard children at his live fence and found they had destroyed his fence; they ran off when they saw him. Shortly after, their mother PW3 arrived screaming, accusing him of defiling her daughter, with his grandmother and sister Maurine Monchere present. PW2 later went away with a warning that he would regret. He was arrested later that day at 6:00pm by "Nyumba Kumi" members, taken to a room, and required to remove his clothes for urine and blood samples to test for the offence. He suggested a motive for fabrication, his grandmother had told the Complainants' mother that she would no longer receive vegetables from her, prompting the false accusation. He also claimed the matter was to be settled out of court, but the mother demanded Kshs 40,000, which he could not raise. On cross-examination he confirmed he knew the mother and was present when she testified but did not raise the money issue then, and confirmed he knew PW1, PW2, and PW5.
16. DW2 Maureen Monchere Omuga, the Appellant’s sister testified that on 13 th February 2022 at about 4:00pm she was passing by and found two children collecting firewood near the Appellant’s house, she chased them away, after which they ran off; the Appellant was arrested later. She stated she did not know the children's mother and was unaware the Appellant had called the children to wash his dishes .
17. Subsequently, the trial court found that age of the minor, penetration and the identity of the Appellant had been established and proved beyond a reasonable doubt. The Defence raised was incredible, thus dismissed. The trial Court proceeded to convict the Appellant under Section 215 of the Criminal Procedure Code for assault and defilement . The trial court in consideration of the Appellant’s mitigation, being a first offender, the only bread winner, willingness to reform, 30 years old of age, his mother being old and sick sentenced the Appellant to serve 29 years in prison and a right of appeal within 14 days.
Appellant's Submissions
18. The Appellant submits that the appeal is meritorious. The Appellant invokes the principle that on a first appeal, the court's primary duty is to re-analyze and reconsider the evidence to arrive at its own independent conclusions, citing Pandya v Republic [1957] EA 336 and Okeno v Republic [1972] EA 32 . The Appellant foremost submits as to whether the medical evidence was conclusive he submits that the P3 form is internally contradictory noting bruises on the labia minora at one point while stating elsewhere that the genitalia had no injuries. He further contends that since the clothes were said to have been changed, finding spermatozoa/seminal discharge a day after the alleged act is implausible, especially where the Investigating Officer separately indicated the clothes were not changed, the Complainant was not crying, was not carried, and walked normally. He questions whether ejaculation without penetration was possible, notes the state dry or liquid of the spermatozoa was never clarified, and observes the underwear was never produced as evidence. He also submits that the mother and others physically checking the child's genitalia post incident, being non experts, could itself have caused the bruising and redness, and argues they ought not to have interfered at all. He submits these unresolved questions raise reasonable doubt in the Appellant's favour.
19. On the second issue of penetration, the Appellant highlights that the Complainant never screamed despite the alleged act being very painful for a 6-year-old, absent evidence her mouth was covered; that the alleged act was never clearly explained; that the IO's account of the child walking normally and not crying is inconsistent with a fresh defilement; and that the same P3 contradiction on injuries bruises versus no injuries should benefit the Appellant. He again raises the possibility that the physical checking caused the bruising, and asks, if there was no penetration where the spermatozoa were collected from.
20. On Sentence, the Appellant was convicted on the alternative count under Section 11(1) of the Sexual Offences Act indecent act with a child, which prescribes a minimum of not less than ten years, yet was sentenced to 29 years without the record showing consideration of the statutory parameters or reasons for departing from them. He submits an illegal sentence, or one exceeding the statutory range, cannot be upheld, citing Bernard Kimani Gacheru v Republic [2002] eKLR , and that where a minimum sentence is prescribed, the trial court must comply unless the statute expressly confers discretion to exceed it. Lastly, the Appellant submits the inconsistencies in the prosecution's case and the casual manner of investigation, holistically considered, show the prosecution failed to discharge its legal and evidentiary burden beyond reasonable doubt.
Respondent's Submissions
21. The Respondent opposes the appeal grounded in the Petition of Appeal dated 3 rd October 2024 and notes that all grounds save grounds 8 and 14 essentially contend the prosecution evidence did not meet the required standard for defilement and assault. It sets out the three elements required to prove defilement: the age of the Complainant, whether penetration occurred, and whether the Appellant was the perpetrator.
22. On age, the Respondent submits the Complainant's age of 6 years at the time of the offence was confirmed by the mother, PW3, and by the birth certificate Exhibit 1, and was therefore sufficiently proved. On the second ingredient of penetration the Respondent submits citing the statutory definition of penetration under section 2 of the Sexual Offences Act as the partial or complete insertion of genital organs into another's genital organs, the Respondent submits PW1 gave a detailed account of forceful penetration and pain, corroborated by PW6, the clinical officer, who found mild bruising on the labia minora and lab findings of semen and spermatozoa. The Respondent submits penetration was proved to the required standard.
23. The Respondent submits the Appellant was properly identified as the perpetrator through PW1's account of being taken to his house, PW2's evidence of catching the Appellant in the act and the Appellant fleeing and locking himself in his house upon PW2 screaming, the offence occurring in broad daylight at about 2:00pm, and the children's prior familiarity with and naming of the Appellant as a neighbour, plus their prompt report to PW3.
24. On Count II Assault Causing Actual Bodily Harm . The Respondent relies on PW2's testimony that the Appellant struck him three times with a slasher on the back after forcing him to fetch water and wash dishes, corroborated by PW6's finding of injuries to the upper and right lower scapula, documented in the P3 form (PExh 7) and classified as harm. The Respondent submits there is no evidence on record of any such infraction, as the Appellant was in fact represented by an advocate at trial.
25. Lastly on sentence, the Respondent submits the sentence was, if anything, unduly lenient and itself illegal, given that section 8(2) of the Sexual Offences Act applicable given the Complainant's age prescribes life imprisonment. The Respondent prays for enhancement of the sentence, relying on Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) , where the Supreme Court affirmed the courts' duty to impose sentences as provided under the Sexual Offences Act.
Analysis and Determination.
26. This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions. In the case of Okeno v Republic [1972] EA 32, East Africa Court of Appeal put this duty 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 (Pandya v R, [1957] EA 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M Ruwala v R, [1957] EA 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, [1958] EA 424.”
27. I have extensively read the Appellant’s submissions, the Respondents submissions, given due consideration to the trial court’s proceedings, the record of appeal and the Petition of Appeal. The following issues arise for my determination: -
a. Whether the Prosecution proved its case beyond reasonable doubt.
b. Whether the sentence was harsh and excessive.
Whether the Prosecution proved its case beyond reasonable doubt
28. The Appellant was charged under with the offence of defilement as provided under Section 8(1), as read with Section 8(2), of the Sexual Offences Act, as follows:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
29. The Court of Appeal in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act, the main elements of the offence of defilement are that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice.
30. As to whether the Complainant is a minor. This Complainant’s mother PW3 testified that the Complainant was born on 20 th March 2016 and identified a birth certificate which was produced as Exhibit 1. This court equally notes the Complainant was a minor with the meaning of Sexual Offences Act and the Children Act aged 6 years. Therefore; the age of the minor was sufficiently proved.
31. On positive identification and/or recognition of the perpetrator, the Complainant and the Appellant are known to each other and their families too. The Complainant pointed that it was the Appellant who chased them, sent them to the river and lastly forced her into having sex. The Appellant equally identifies the Complainant and PW2 and that he confirmed that he chased them while fetching firewood close to his house. The Appellant was positively identified through recognition.
32. On penetration, the Complainant testified that the Appellant had sex with her. PW2 testified that he saw the Appellant lying on top of the Complainant, with her legs protruding. PW3 testifies that she examined the Complainant and realized she was wet and dirty, and upon further examination on her genital area it was realized it was reddish with soft tissue injuries. PW6 the clinical officer in her examination observed wetness on the external genitalia, mild labia minora bruising, and an intact hymen. High vaginal swab tests revealed spermatozoa. She concluded that the Complainant had been defiled. This evidence was corroborated by the Investigating officer.
33. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
34. The Appellant contests that penetration was not proved and if proved it was not complete, he asserts that the injuries on the genital area may have been caused by the examination by the mother and other neighbours who are non-experts. He submits that the medical evidence is contradictory and not conclusive, also the prosecution failed to conduct a DNA on the alleged spermatozoa whether dry or liquid. This courts observes that lack of DNA testing of the spermatozoa or whitish discharge is not fatal as it is not a strict requirement of Section 36 of the Sexual Offences Act
35. Section 124 of the Evidence Act allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth .” (Underlined for emphasis)
36. The Complainant in this case tendered unsworn evidence, she was not of age enough to appreciate an oath. A trial court must be satisfied that the Complainant is telling the truth. In its judgment, the trial court was persuaded that the Complainant positively identified the Appellant through recognition and testified that she was defiled, which was corroborated by evidence of PW2 who caught him pants down and screamed. The testimony was corroborated by medical evidence.
37. Should penetration be complete, to warrant an ejaculation or a broken hymen? The evidence adduced all pointed to the Appellant penetrating the Complainant with his penis. It is not a requirement of the law that there must be a complete penetration to warrant a broken hymen. Therefore, absence of a broken hymen does not mean that there was no penetration.
38. The trial court rightfully found that penetration had been proved, Appellant’s defence that he was not around and he was from work was inconsistent and contradictory on cross examination and defence.
39. From the evaluation of the evidence, it is indeed clear that all the three ingredients of the offence of defilement were established to the required standard, and the finding of the trial court was based on credible and cogent evidence. Wherein the Appellant has simply denied his involvement, there was no error or inconsistency was material enough to render the evidence adduced to be of no probative value.
40. This Court therefore finds that the Prosecution proved beyond reasonable doubt the offence of defilement.
41. On the offence of assault, the Appellant was charged for assault causing actual bodily harm contrary Section 251 of the Penal Code . The aforesaid section describes the offence of Assault causing actual body harm as follows:
“Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor and is liable to imprisonment for five years.”
42. In Ndaa v Republic (Criminal Appeal 146 of 1983) [1984] KECA 19 (KLR) (24 January 1984) (Judgment) the Court of Appeal identified the ingredients of the offence as
a) assaulting the Complainant or victim;
b) occasioning actual bodily harm
43. PW2 testified that the Appellant struck him with a slasher on his back. The Appellant being initially identified by both PW1 & PW2. Also, this evidence was corroborated through medical evidence produced by PW6. Wherein it is noted that PW2 sustained soft tissue injuries on left upper scapula and right lower scapula region, an injury likely caused by a blunt object. The nature of the injuries was classified as harm to mean bodily harm.
44. This Court is therefore satisfied that the offence of assault causing actual body harm was proved beyond reasonable doubt.
Whether the sentence was harsh and excessive.
45. As to whether the sentence of 29 years’ imprisonment is harsh and excessive? The trial court found the Appellant guilty of defilement and assault, before meting out the sentence considered the Appellant mitigation. The court further considered that the Appellant is a first offender and sentence him to serve a 29 years. The Penal consequences of defilement under Section 8 (2) of the Sexual Offences Act provides for a mandatory life imprisonment for a person who commits an offence of defilement with a child aged eleven years or less.
46. The Respondent in opposing the sentence and through a notice to the Appellant seeks this court to enhance the sentence to a life imprisonment. In JJW v Republic, Cr. App. No 11 of 2011, (UR) the court of Appeal held that notwithstanding the fact that section 354(3) of the Criminal Procedure Code empowers the High Court to enhance or alter the nature of the sentence imposed by the trial court, in the absence of an appeal against sentence, the court must warn the Appellant before it enhances the sentence. Such a warning is conveyed by the prosecution through a notice or a warning by the court that if the appeal on conviction fails, the sentence may be enhanced or reduced at the end of the hearing of his appeal."
47. The Sentencing Policy Guidelines 2023 outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender.
48. On Mandatory Minimum sentences, the Supreme court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) upheld that mandatory minimum sentences are constitutional and applicable. The Apex court held as follows
“Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence….
… However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed”
49. The trial court despite correctl
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