A. INTRODUCTION
1. The Appellant, Timothy Wekesa Wepukhulu, was convicted after a full trial of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on 10th January 2023 at Kisindi Sub-Location, in Bungoma Central Sub-County within Bungoma County, he intentionally and unlawfully caused his penis to penetrate the vagina of C.N.S., a child aged 14 years. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that, on the same dates and at the same place, he intentionally and unlawfully touched the vagina of C.N.S., a child of 14 years.
2. On 27th November 2025, the trial court found the Appellant guilty of the main charge and sentenced him to 20 years' imprisonment. Dissatisfied with the conviction and sentence, the Appellant filed a Petition of Appeal dated 3rd December 2025, raising the following grounds: (i) that he did not plead guilty; (ii) that the twenty (20) year sentence meted out upon the Appellant is rather too harsh and excessive in the circumstances, and requesting the Court to consider reducing the same on humanitarian grounds; (iii) that the trial magistrate misguided himself by misapprehending the evidence of the victim without corroboration, leading to injustice; and (iv) that the learned trial magistrate erred by failing to consider the alibi defence raised by the Appellant, which could have changed the outcome.
3. The Appellant filed Supplementary Grounds of Appeal raising the following further grounds: (i) that the learned trial magistrate erred in law and fact in convicting the Appellant on the basis of a defective charge sheet; (ii) that the trial magistrate erred in law and fact in not observing that the case against the Appellant was framed by PW1, PW2 and one lady called Jane; (iii) that the trial magistrate erred in law and in fact in convicting the Appellant on contradictory evidence which was manifestly unsafe; (iv) that the trial magistrate erred in law and fact by ignoring the doctor's evidence, which shed light on what was organised and planned by the complainant against the Appellant; (v) that the trial magistrate erred in law and fact in omitting the evidence of a crucial witness who allegedly saw PW1 coming out of the Appellant's house; and (vi) that the trial magistrate erred in law and fact in disregarding his plausible defence, which was supported by the Appellant's boda boda rider colleague, contrary to Section 169 of the Criminal Procedure Code.
4. The Appellant urges this Court to allow the appeal.
B. THE DUTY OF THIS COURT
5. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
6. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
7. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
8. A good place to start is a summary of the evidence before the trial court.
C. SUMMARY OF THE PROSECUTION EVIDENCE
9. The prosecution called four witnesses. PW1, C.N.S., a minor aged 14 years, was taken through voir dire and the Court was satisfied that she understood the difference between right and wrong, was intelligent, and appreciated the solemnity of the oath.
10. PW1, C.N.S., testified that she was born in 2008 and was 14 years old. She identified her birth certificate, which indicated that she was born on 5th June 2008. She was in grade 7 and knew the Appellant before this case, stating that he was a cousin to her father. She recalled that on 10th January 2023, at around 1.00 p.m., she was at home with her grandmother. She was sent by Jane, her uncle's wife, to the posho mill. On the way she met the Appellant standing at the doorway of his house, which was along the path she used. He invited her to take githeri in his house before proceeding to the posho mill, and since she knew him, she obliged. She found food on the table in the house. She left her maize on the verandah.
11. She testified that immediately she entered the house, he closed the door and took a panga and threatened to cut her if she made noise. He lifted her and placed her on the sofa and removed her white underpant while she struggled. He removed his trousers and proceeded to have intercourse with her, and she felt a watery substance inside her vagina; he tightly covered her mouth and she fell down. When he was finished, he rose, pushed her, and told her that her grandmother was foolish and that she should come see him again after her grandmother left for church at 2.00 p.m. She rose, put on her underpant, and left.
12. As she went to the posho mill, her grandmother saw her outside her house, which was about 30 metres from the Appellant's house. Her grandmother asked her where she was coming from, and she pointed at the Appellant's house. Her grandmother asked what she had been doing there, and she narrated what had happened. Her grandmother informed the Appellant's relatives and her grandfather, and her Uncle Benson took her to Nalondo Sub-County Hospital at around 7.00 p.m. She testified that they were referred to Bungoma Referral Hospital, examined, and advised to return the following day, when she was examined again and given medicine. She identified the PRC Form, the P3 Form, and the laboratory report, and identified the Appellant in court.
13. On cross-examination, she confirmed that she gave the police her underpant, that the panga was not produced before court, that the incident happened around 1.00 p.m., and that she was taken to hospital by her grandfather and uncle.
14. PW2, Lilian Teresa Sirengo, testified that the Appellant is a son to her husband's brother, and that the complainant is her granddaughter. She recalled that on 10th January 2023, at around 1.00 p.m., she was at home with the complainant, whom she sent to the posho mill. At 2.00 p.m. she saw the complainant come out of the Appellant's house and called her; the complainant walked with difficulty and told her what had transpired in the Appellant's house. She informed her husband, who informed the Appellant's father. She identified the complainant's birth certificate, though she herself believed the complainant to be 16 years old. She identified the treatment notes and testified that the complainant's pant was recovered from home, and that on the material day the Appellant was home alone, his wife and children being away.
15. On cross-examination, she confirmed that her home and the Appellant's home are about 30 metres apart, with nothing obstructing her view, though she did not witness the incident itself. She does not know how to read. She confirmed the complainant was taken to hospital at around 4.00 p.m., not 9.00 p.m., and that they were referred to Bungoma.
16. PW3, No. 245152 PC Kennedy Makokha, testified that he is stationed at Nalondo Police Station and took over the case from IP Lilian Onzongo, who had been transferred. He testified that on 10th January 2023 the complainant came to the station accompanied by her grandmother and stated that she had been defiled by her uncle, the Appellant. He produced treatment notes from both hospitals, the laboratory report, and the PRC Form. The matter was investigated and the Appellant arrested and charged. On cross-examination he confirmed that he did not visit the scene, not having been the initial investigating officer, and that he did not know the white underpant produced in court.
17. PW4, Dr. Claudia Wafula Were, testified that she is a doctor at Bungoma County Referral Hospital and saw the complainant on 11th January 2023. On examination, the complainant had a bleeding laceration on the vagina, which was tender, with no discharge noted. Her hymen was not recently broken. A high vaginal swab showed gram-stain-positive results, with no spermatozoa noted and no epithelial cells indicating bleeding of the vagina. Urinalysis showed no inflammation, and she was not pregnant.
18. On cross-examination, she stated that she could not recall the exact time the complainant was brought to hospital, save that it was on 11th January 2023, accompanied by her grandfather; the Appellant was not brought in for examination.
19. The Appellant was placed on his defence and elected to give sworn evidence, calling two witnesses. He testified that he is a boda boda rider and motor vehicle driver, denied the offence, and stated that on 10th January 2023 he left home and went to work, returning at 7.00 p.m.; he stated that he does not know the complainant.
20. DW2, Josephat Juma Wamalwa, testified that he is a boda boda rider and a colleague of the Appellant. He did not know the complainant. On 10th January 2023 he was not doing boda boda work but had gone to ferry grass for animals. He left home at 7.00 a.m. for Nzoia Sugar Company and returned at 10.00 a.m., then left again. At 1.00 p.m., he found the Appellant at the stage and gave him grass to deliver to a client at Kanduyi. He then went home after work, the Appellant not yet having returned by that time. In the evening, at about 4.30 p.m., he went back to work.
21. On cross-examination, he stated that he met the Appellant at 1.00 p.m. on 10th January 2023, and could not say where the Appellant was thereafter. He confirmed the Appellant delivered grass to a client named Catherine at Kanduyi, and that he came back and met the Appellant again at 2.00 p.m.
22. The trial magistrate, after considering the evidence on record, found that the ingredients of defilement had been proved, convicted the Appellant, and sentenced him to the mandatory 20 years' imprisonment.
23. The appeal was canvassed by way of written submissions. The Appellant submitted that there was a discrepancy in the date of arrest on the charge sheet, whether it was 27th January 2023 or 7th January 2023, and that the discrepancy ought to be resolved in his favour. He submitted that the offence date on Count I was 10th January 2023 while that on Count II was 11th January 2023. He questioned the identity of “IP Lilian” on the witness list, the absence of a service number, the identity of “Dr. Wafula,” and who “others to be stated” were as witnesses on the charge sheet. He submitted that these were irregularities the trial court ignored, and urged the Court to declare the charge sheet defective.
24. He further submitted that there were contradictions as to the complainant's age, PW1 stating she was 14 years old and PW2 stating she was 16 years old, and that the trial magistrate did not resolve this but convicted him regardless. He submitted that the complainant's age was not proved so as to determine the appropriate sentence. He also submitted that there was a contradiction as to where the complainant's pant was recovered from, since the complainant testified that she rose and put it on herself, yet there was also a scene visit at which a pant was recovered, and PW3 stated he did not know about the pant; he submitted it was unclear who had possession of the pant, where it was recovered, and whether the investigating team had properly received it. He urged the Court to acquit him on the strength of these contradictions.
25. He further submitted that he had been framed, the case having been generated and manufactured by his family members due to existing wrangles between them. He submitted that PW2 allowed PW1 to proceed to the posho mill despite having noticed she was walking with difficulty, and that nothing was done about this, and urged the Court to allow the appeal.
26. On penetration, the Appellant submitted that the same was not proved, PW4 having found that the hymen was not recently broken, with no discharge and no spermatozoa found, and no epithelial cells indicating bleeding of the vagina. He submitted that this evidence showed the complainant was not defiled, and that since he was not himself taken for medical examination, penetration had not been proved by the prosecution.
27. He further submitted that crucial witnesses were not called to shed light on what transpired, in particular Jane, who had sent PW1 to the posho mill. He submitted that his defence witness testified that they were together at the time of the incident, and that the trial court did not properly take this alibi evidence into account. He submitted that his family wanted to punish him and have him imprisoned, and urged the Court to allow the appeal, quash the conviction, and set aside the sentence.
28. The Respondent submitted that the three ingredients of defilement had been proved and that the sentence imposed was lawful, the complainant's age having been proved to be 14 years by the birth certificate produced, and relied on the fact that the trial court properly evaluated the evidence.
D. ANALYSIS AND DETERMINATION
29. I have carefully considered the record of appeal, the evidence adduced before the trial court, the judgment of the trial magistrate, and the rival written submissions filed by both parties. Having done so, I am satisfied that the following issues arise for determination: (a) whether the charge sheet was defective; (b) whether the case against the Appellant was framed, and whether the evidence was materially contradictory and unsafe to found a conviction; (c) whether the prosecution proved the ingredients of defilement, in particular penetration, to the required standard, and whether corroboration of the complainant's evidence was required; (d) whether the trial magistrate properly considered the Appellant's defence of alibi; and (e) whether the sentence imposed was lawful and appropriate. I take each in turn.
30. On the alleged defect in the charge sheet, the Appellant's complaint reduces to a series of matters going to the identification of witnesses on the charge sheet and the police file — whether there is more than one “IP Lilian,” the absence of a service number, ambiguity as to “Dr. Wafula,” and the description “others to be stated.” A charge sheet under Section 137 of the Criminal Procedure Code is required to state the offence with which the accused is charged and to contain such particulars as are necessary to give reasonable information as to the nature of the offence; it is not a witness list, and imprecision in the manner in which prosecution witnesses are subsequently identified in the file does not render the charge itself defective. I find no substance in the submission that the charge sheet is defective on this account. As to the suggestion of a discrepancy in the date of arrest, I have myself examined the charge sheet, which states in clear and unambiguous terms that the Appellant was arrested on 27th January 2023; the alternative date of 7th January 2023 advanced in submissions finds no support anywhere on the face of the charge sheet or the record, and I am satisfied there is, in truth, no discrepancy for this Court to resolve in the Appellant's favour. Nor am I satisfied that the one-day difference between the two counts as originally framed occasioned the Appellant any prejudice: he was tried, cross-examined every prosecution witness fully on the substance of the allegation against him, and at no stage suggested that he did not understand the case he was required to meet. This ground fails.
31. Closely related is the Appellant's assertion, made for the first time in his Petition of Appeal, that “he did not plead guilty.” The record is clear, and is not disputed by either party, that the Appellant was tried and convicted after a full trial, not upon a plea of guilty. This ground does not disclose any error on the part of the trial court and, on the material before me, appears to be no more than a restatement of the fact that the Appellant maintained his innocence throughout, a fact already reflected in the record..
32. On the submission that the case was framed by PW1, PW2 and “Jane,” and that the evidence was so contradictory as to be unsafe to found a conviction, I have scrutinised the contradictions relied upon. The first is the age of the complainant: PW1 stated she was 14 years old, and this was corroborated by her birth certificate showing a date of birth of 5th June 2008, making her 14 years and 7 months old at the time of the offence; PW2, an elderly grandmother who confirmed she cannot read, gave her own lay estimate of the complainant's age as 16 years. Documentary proof of age, where available, is the best evidence of age and prevails over a lay witness's approximation; I find no material contradiction capable of undermining the prosecution's case, particularly where the complainant's own age, as documented, still placed her squarely within the 12-to-15-year bracket contemplated by Section 8(3) of the Sexual Offences Act. The second is the recovery of the complainant's pant: the complainant testified that she put it back on after the assault, while other evidence refers to a pant being recovered from the her grandmother’s house; PW3 stated he did not personally know of the pant. This is, at worst, a minor inconsistency as to a peripheral matter of exhibit-handling, not a contradiction going to the identity of the assailant or the fact of the assault itself. The Court of Appeal in Erick Onyango Odeng' v Republic [2014] eKLR, adopting the reasoning of the Uganda Court of Appeal in Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001, held that grave contradictions, unless satisfactorily explained, will usually but not necessarily lead to evidence being rejected, but that a court will ignore minor contradictions unless they point to deliberate untruthfulness or affect the main substance of the prosecution's case. Applying that test, I find the contradictions relied upon here to be peripheral and not indicative of fabrication. As to the bare assertion that the Appellant was framed on account of family wrangles, no particulars of any such wrangle, nor any evidence of a motive to falsely implicate the Appellant, were led at trial; an unsubstantiated allegation of a frame-up cannot, without an evidential foundation, displace direct and credible testimony. This ground fails.
33. On the complaint that the trial court omitted the evidence of “a crucial witness who allegedly saw PW1 coming out of the Appellant's house,” and that Jane, who sent the complainant to the posho mill, was not called, I reiterate the well-established position that the prosecution is not obliged to call a multiplicity of witnesses to prove its case: Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove any fact, in the absence of any contrary legal requirement. In Bukenya & Others v Uganda [1972] EA 549, applied with approval by the Court of Appeal in Erick Onyango Odeng' v Republic (supra), it was held that while the prosecution has a duty to make available witnesses who give direct evidence on a fact in issue, a failure to call a particular witness will only found an adverse inference where that witness's evidence was essential and its omission was not satisfactorily explained. Nothing on this record suggests that Jane's evidence would have been anything other than what PW1 already testified to — that she was the one who sent PW1 to the posho mill — nor is there any suggestion that Jane witnessed the alleged offence itself. If the Appellant considered Jane's evidence, or that of any other witness said to have seen the complainant leaving his house, to be exculpatory, it was open to him to summon such a witness in his own defence; he did not do so. No adverse inference falls to be drawn against the prosecution on this account. This ground fails.
34. I turn to the central question of penetration, and the associated submission that the trial magistrate ignored the doctor's evidence, which the Appellant contends showed the complaint to have been “organised and planned.” PW4's evidence was that the complainant presented with a bleeding laceration to the vagina that was tender on examination, though her hymen was not recently broken, no spermatozoa were noted, and no epithelial cells indicating bleeding were seen on the high vaginal swab. The Appellant submits that this evidence in fact negates penetration. I do not accept that submission. The law on this point is settled. In Mark Oiruri Mose v Republic [2013] eKLR the Court of Appeal held that an attacker does not always complete the sexual act, which is precisely why the law does not require evidence of spermatozoa to prove penetration; so long as there is penetration, even only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep. In Erick Onyango Odeng' v Republic (supra) the Court of Appeal held, in terms, that the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence, and that it is not necessary that the hymen be ruptured. Applying these principles, the fact that the complainant's hymen was not found to be freshly broken, and that no spermatozoa were recovered, does not establish the absence of penetration; if anything, the presence of a fresh, tender bleeding laceration to the vagina, observed by a qualified doctor the day after the incident, is affirmative medical corroboration consistent with recent genital trauma of the kind described by the complainant. I find nothing in PW4's evidence to suggest fabrication, still less orchestration by the complainant; to the contrary, her findings support rather than undermine the complainant's account. This ground fails.
35. As to whether corroboration of the complainant's evidence was required at all, I note that Section 124 of the Evidence Act, as proviso, expressly provides that where, in a criminal case involving a sexual offence, the only evidence is that of the alleged victim, the court may receive that evidence and convict the accused if, for reasons recorded, it is satisfied that the victim is telling the truth. The trial magistrate conducted a voir dire examination of PW1 and satisfied himself that she understood the difference between truth and falsehood and appreciated the solemnity of the oath, before receiving her sworn testimony. Her account of the assault was consistent, detailed, and unshaken in its essentials on cross-examination, and was, in any event, corroborated by the evidence of PW2 as to her distressed condition and difficulty walking shortly after leaving the Appellant's house, by the medical evidence of PW4, and by the fact that the Appellant was, on his own witness's account, unaccounted for at the very hour the offence is said to have occurred. In these circumstances, corroboration, though present, was in any event not a legal precondition to conviction. This ground fails.
36. I turn to the defence of alibi, said to have been supported by DW2. An alibi places an accused elsewhere than at the scene of the offence at the material time, and the legal burden of disproving it never shifts from the prosecution to the accused; an accused need only raise it in a manner that casts reasonable doubt on the prosecution's case. However, an alibi must actually place the accused away from the scene at the material time in order to raise any such doubt, and it is best raised at the earliest opportunity so that the prosecution may investigate its truth: Republic v Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA 145. On my own independent evaluation of DW2's evidence, I find that it does not achieve what the Appellant contends for. The offence is alleged, on the complainant's evidence which I accept, to have occurred at around 1.00 p.m. on 10th January 2023. DW2's own testimony was that he met the Appellant at the stage at exactly 1.00 p.m. that day and handed him grass to deliver, alone, to a client at Kanduyi, and that he did not see the Appellant again until 2.00 p.m.; on cross-examination, DW2 candidly admitted that he could not say where the Appellant was during that intervening hour. Far from placing the Appellant in DW2's company at the material time, DW2's evidence places the Appellant alone and unaccounted for at precisely the hour the complainant says she was assaulted, engaged on a solitary errand that took him away from, rather than in the company of, any witness who could vouch for his whereabouts. An alibi that leaves the accused unaccompanied and unaccounted for at the critical hour is no alibi at all; it corroborates opportunity rather than negating it. I find, independently, that the defence of alibi was not reasonably possibly true, and that the trial magistrate did not err, whether expressly or by necessary implication, in rejecting it.
37. Having so found on penetration, the age and identity of the complainant — which was never seriously in dispute, the Appellant being well known to the complainant as a paternal relative and having been recognised and named by her without hesitation — and the defence of alibi, I am satisfied that the prosecution proved each ingredient of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act to the standard of beyond reasonable doubt, and that the conviction was safe and proper.
38. Finally, on sentence, the Appellant urges that the 20-year term imposed is harsh and excessive and ought to be reduced on humanitarian grounds. Section 8(3) of the Sexual Offences Act prescribes a sentence of not less than 20 years' imprisonment for the defilement of a child aged between 12 and 15 years, and the complainant here, at 14 years and 7 months, fell within that bracket. I bear in mind the guidance of the Court of Appeal in Dismas Wafula Kilwake v Republic [2024] eKLR that the provisions of Section 8 of the Sexual Offences Act must be interpreted so as not to remove the sentencing discretion of the court altogether; a trial court, in an appropriate case, retains the discretion to depart from the prescribed sentence, whether upward or downward, where the circumstances so demand, and is not rigidly constrained by the statutory figure. In the present case, however, the trial magistrate did not exceed the prescribed sentence; he imposed precisely the statutory minimum applicable to the age bracket in question. The Appellant has not identified any mitigating circumstance capable of warranting a sentence below that floor: the offence was committed against a child in his own extended family who trusted him enough to accept an invitation into his house, was accompanied by a threat of violence with a panga, and has left the complainant with the physical and psychological consequences described in the evidence. In those circumstances I find no basis, humanitarian or otherwise, to interfere with the sentence imposed, which was lawful, proportionate, and squarely within the discretion available to the trial court on this record.
39. Having re-evaluated the entirety of the evidence afresh, tested each ground of appeal against the record, and accorded appropriate deference to the findings of the learned trial magistrate, who had the advantage of seeing and hearing the witnesses testify, I find no merit in any of the grounds of appeal advanced, whether as against conviction or as against sentence.
E. DISPOSITION
40. For the foregoing reasons, I find no merit in this appeal, whether as against conviction or as against sentence.
(a) The appeal is hereby dismissed in its entirety.
(b) The conviction of the Appellant for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, and the sentence of 20 years' imprisonment imposed thereon by the trial court on 27th November 2025, are hereby upheld.
Delivered at Kericho on 30th July 2026
In the presence of
Godia for the Appellant
C/A Irene Chelangat
1. The Appellant, Timothy Wekesa Wepukhulu, was convicted after a full trial of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on 10th January 2023 at Kisindi Sub-Location, in Bungoma Central Sub-County within Bungoma County, he intentionally and unlawfully caused his penis to penetrate the vagina of C.N.S., a child aged 14 years. He also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that, on the same dates and at the same place, he intentionally and unlawfully touched the vagina of C.N.S., a child of 14 years.
2. On 27th November 2025, the trial court found the Appellant guilty of the main charge and sentenced him to 20 years' imprisonment. Dissatisfied with the conviction and sentence, the Appellant filed a Petition of Appeal dated 3rd December 2025, raising the following grounds: (i) that he did not plead guilty; (ii) that the twenty (20) year sentence meted out upon the Appellant is rather too harsh and excessive in the circumstances, and requesting the Court to consider reducing the same on humanitarian grounds; (iii) that the trial magistrate misguided himself by misapprehending the evidence of the victim without corroboration, leading to injustice; and (iv) that the learned trial magistrate erred by failing to consider the alibi defence raised by the Appellant, which could have changed the outcome.
3. The Appellant filed Supplementary Grounds of Appeal raising the following further grounds: (i) that the learned trial magistrate erred in law and fact in convicting the Appellant on the basis of a defective charge sheet; (ii) that the trial magistrate erred in law and fact in not observing that the case against the Appellant was framed by PW1, PW2 and one lady called Jane; (iii) that the trial magistrate erred in law and in fact in convicting the Appellant on contradictory evidence which was manifestly unsafe; (iv) that the trial magistrate erred in law and fact by ignoring the doctor's evidence, which shed light on what was organised and planned by the complainant against the Appellant; (v) that the trial magistrate erred in law and fact in omitting the evidence of a crucial witness who allegedly saw PW1 coming out of the Appellant's house; and (vi) that the trial magistrate erred in law and fact in disregarding his plausible defence, which was supported by the Appellant's boda boda rider colleague, contrary to Section 169 of the Criminal Procedure Code.
4. The Appellant urges this Court to allow the appeal.
B. THE DUTY OF THIS COURT
5. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
6. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
7. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
8. A good place to start is a summary of the evidence before the trial court.
C. SUMMARY OF THE PROSECUTION EVIDENCE
9. The prosecution called four witnesses. PW1, C.N.S., a minor aged 14 years, was taken through voir dire and the Court was satisfied that she understood the difference between right and wrong, was intelligent, and appreciated the solemnity of the oath.
10. PW1, C.N.S., testified that she was born in 2008 and was 14 years old. She identified her birth certificate, which indicated that she was born on 5th June 2008. She was in grade 7 and knew the Appellant before this case, stating that he was a cousin to her father. She recalled that on 10th January 2023, at around 1.00 p.m., she was at home with her grandmother. She was sent by Jane, her uncle's wife, to the posho mill. On the way she met the Appellant standing at the doorway of his house, which was along the path she used. He invited her to take githeri in his house before proceeding to the posho mill, and since she knew him, she obliged. She found food on the table in the house. She left her maize on the verandah.
11. She testified that immediately she entered the house, he closed the door and took a panga and threatened to cut her if she made noise. He lifted her and placed her on the sofa and removed her white underpant while she struggled. He removed his trousers and proceeded to have intercourse with her, and she felt a watery substance inside her vagina; he tightly covered her mouth and she fell down. When he was finished, he rose, pushed her, and told her that her grandmother was foolish and that she should come see him again after her grandmother left for church at 2.00 p.m. She rose, put on her underpant, and left.
12. As she went to the posho mill, her grandmother saw her outside her house, which was about 30 metres from the Appellant's house. Her grandmother asked her where she was coming from, and she pointed at the Appellant's house. Her grandmother asked what she had been doing there, and she narrated what had happened. Her grandmother informed the Appellant's relatives and her grandfather, and her Uncle Benson took her to Nalondo Sub-County Hospital at around 7.00 p.m. She testified that they were referred to Bungoma Referral Hospital, examined, and advised to return the following day, when she was examined again and given medicine. She identified the PRC Form, the P3 Form, and the laboratory report, and identified the Appellant in court.
13. On cross-examination, she confirmed that she gave the police her underpant, that the panga was not produced before court, that the incident happened around 1.00 p.m., and that she was taken to hospital by her grandfather and uncle.
14. PW2, Lilian Teresa Sirengo, testified that the Appellant is a son to her husband's brother, and that the complainant is her granddaughter. She recalled that on 10th January 2023, at around 1.00 p.m., she was at home with the complainant, whom she sent to the posho mill. At 2.00 p.m. she saw the complainant come out of the Appellant's house and called her; the complainant walked with difficulty and told her what had transpired in the Appellant's house. She informed her husband, who informed the Appellant's father. She identified the complainant's birth certificate, though she herself believed the complainant to be 16 years old. She identified the treatment notes and testified that the complainant's pant was recovered from home, and that on the material day the Appellant was home alone, his wife and children being away.
15. On cross-examination, she confirmed that her home and the Appellant's home are about 30 metres apart, with nothing obstructing her view, though she did not witness the incident itself. She does not know how to read. She confirmed the complainant was taken to hospital at around 4.00 p.m., not 9.00 p.m., and that they were referred to Bungoma.
16. PW3, No. 245152 PC Kennedy Makokha, testified that he is stationed at Nalondo Police Station and took over the case from IP Lilian Onzongo, who had been transferred. He testified that on 10th January 2023 the complainant came to the station accompanied by her grandmother and stated that she had been defiled by her uncle, the Appellant. He produced treatment notes from both hospitals, the laboratory report, and the PRC Form. The matter was investigated and the Appellant arrested and charged. On cross-examination he confirmed that he did not visit the scene, not having been the initial investigating officer, and that he did not know the white underpant produced in court.
17. PW4, Dr. Claudia Wafula Were, testified that she is a doctor at Bungoma County Referral Hospital and saw the complainant on 11th January 2023. On examination, the complainant had a bleeding laceration on the vagina, which was tender, with no discharge noted. Her hymen was not recently broken. A high vaginal swab showed gram-stain-positive results, with no spermatozoa noted and no epithelial cells indicating bleeding of the vagina. Urinalysis showed no inflammation, and she was not pregnant.
18. On cross-examination, she stated that she could not recall the exact time the complainant was brought to hospital, save that it was on 11th January 2023, accompanied by her grandfather; the Appellant was not brought in for examination.
19. The Appellant was placed on his defence and elected to give sworn evidence, calling two witnesses. He testified that he is a boda boda rider and motor vehicle driver, denied the offence, and stated that on 10th January 2023 he left home and went to work, returning at 7.00 p.m.; he stated that he does not know the complainant.
20. DW2, Josephat Juma Wamalwa, testified that he is a boda boda rider and a colleague of the Appellant. He did not know the complainant. On 10th January 2023 he was not doing boda boda work but had gone to ferry grass for animals. He left home at 7.00 a.m. for Nzoia Sugar Company and returned at 10.00 a.m., then left again. At 1.00 p.m., he found the Appellant at the stage and gave him grass to deliver to a client at Kanduyi. He then went home after work, the Appellant not yet having returned by that time. In the evening, at about 4.30 p.m., he went back to work.
21. On cross-examination, he stated that he met the Appellant at 1.00 p.m. on 10th January 2023, and could not say where the Appellant was thereafter. He confirmed the Appellant delivered grass to a client named Catherine at Kanduyi, and that he came back and met the Appellant again at 2.00 p.m.
22. The trial magistrate, after considering the evidence on record, found that the ingredients of defilement had been proved, convicted the Appellant, and sentenced him to the mandatory 20 years' imprisonment.
23. The appeal was canvassed by way of written submissions. The Appellant submitted that there was a discrepancy in the date of arrest on the charge sheet, whether it was 27th January 2023 or 7th January 2023, and that the discrepancy ought to be resolved in his favour. He submitted that the offence date on Count I was 10th January 2023 while that on Count II was 11th January 2023. He questioned the identity of “IP Lilian” on the witness list, the absence of a service number, the identity of “Dr. Wafula,” and who “others to be stated” were as witnesses on the charge sheet. He submitted that these were irregularities the trial court ignored, and urged the Court to declare the charge sheet defective.
24. He further submitted that there were contradictions as to the complainant's age, PW1 stating she was 14 years old and PW2 stating she was 16 years old, and that the trial magistrate did not resolve this but convicted him regardless. He submitted that the complainant's age was not proved so as to determine the appropriate sentence. He also submitted that there was a contradiction as to where the complainant's pant was recovered from, since the complainant testified that she rose and put it on herself, yet there was also a scene visit at which a pant was recovered, and PW3 stated he did not know about the pant; he submitted it was unclear who had possession of the pant, where it was recovered, and whether the investigating team had properly received it. He urged the Court to acquit him on the strength of these contradictions.
25. He further submitted that he had been framed, the case having been generated and manufactured by his family members due to existing wrangles between them. He submitted that PW2 allowed PW1 to proceed to the posho mill despite having noticed she was walking with difficulty, and that nothing was done about this, and urged the Court to allow the appeal.
26. On penetration, the Appellant submitted that the same was not proved, PW4 having found that the hymen was not recently broken, with no discharge and no spermatozoa found, and no epithelial cells indicating bleeding of the vagina. He submitted that this evidence showed the complainant was not defiled, and that since he was not himself taken for medical examination, penetration had not been proved by the prosecution.
27. He further submitted that crucial witnesses were not called to shed light on what transpired, in particular Jane, who had sent PW1 to the posho mill. He submitted that his defence witness testified that they were together at the time of the incident, and that the trial court did not properly take this alibi evidence into account. He submitted that his family wanted to punish him and have him imprisoned, and urged the Court to allow the appeal, quash the conviction, and set aside the sentence.
28. The Respondent submitted that the three ingredients of defilement had been proved and that the sentence imposed was lawful, the complainant's age having been proved to be 14 years by the birth certificate produced, and relied on the fact that the trial court properly evaluated the evidence.
D. ANALYSIS AND DETERMINATION
29. I have carefully considered the record of appeal, the evidence adduced before the trial court, the judgment of the trial magistrate, and the rival written submissions filed by both parties. Having done so, I am satisfied that the following issues arise for determination: (a) whether the charge sheet was defective; (b) whether the case against the Appellant was framed, and whether the evidence was materially contradictory and unsafe to found a conviction; (c) whether the prosecution proved the ingredients of defilement, in particular penetration, to the required standard, and whether corroboration of the complainant's evidence was required; (d) whether the trial magistrate properly considered the Appellant's defence of alibi; and (e) whether the sentence imposed was lawful and appropriate. I take each in turn.
30. On the alleged defect in the charge sheet, the Appellant's complaint reduces to a series of matters going to the identification of witnesses on the charge sheet and the police file — whether there is more than one “IP Lilian,” the absence of a service number, ambiguity as to “Dr. Wafula,” and the description “others to be stated.” A charge sheet under Section 137 of the Criminal Procedure Code is required to state the offence with which the accused is charged and to contain such particulars as are necessary to give reasonable information as to the nature of the offence; it is not a witness list, and imprecision in the manner in which prosecution witnesses are subsequently identified in the file does not render the charge itself defective. I find no substance in the submission that the charge sheet is defective on this account. As to the suggestion of a discrepancy in the date of arrest, I have myself examined the charge sheet, which states in clear and unambiguous terms that the Appellant was arrested on 27th January 2023; the alternative date of 7th January 2023 advanced in submissions finds no support anywhere on the face of the charge sheet or the record, and I am satisfied there is, in truth, no discrepancy for this Court to resolve in the Appellant's favour. Nor am I satisfied that the one-day difference between the two counts as originally framed occasioned the Appellant any prejudice: he was tried, cross-examined every prosecution witness fully on the substance of the allegation against him, and at no stage suggested that he did not understand the case he was required to meet. This ground fails.
31. Closely related is the Appellant's assertion, made for the first time in his Petition of Appeal, that “he did not plead guilty.” The record is clear, and is not disputed by either party, that the Appellant was tried and convicted after a full trial, not upon a plea of guilty. This ground does not disclose any error on the part of the trial court and, on the material before me, appears to be no more than a restatement of the fact that the Appellant maintained his innocence throughout, a fact already reflected in the record..
32. On the submission that the case was framed by PW1, PW2 and “Jane,” and that the evidence was so contradictory as to be unsafe to found a conviction, I have scrutinised the contradictions relied upon. The first is the age of the complainant: PW1 stated she was 14 years old, and this was corroborated by her birth certificate showing a date of birth of 5th June 2008, making her 14 years and 7 months old at the time of the offence; PW2, an elderly grandmother who confirmed she cannot read, gave her own lay estimate of the complainant's age as 16 years. Documentary proof of age, where available, is the best evidence of age and prevails over a lay witness's approximation; I find no material contradiction capable of undermining the prosecution's case, particularly where the complainant's own age, as documented, still placed her squarely within the 12-to-15-year bracket contemplated by Section 8(3) of the Sexual Offences Act. The second is the recovery of the complainant's pant: the complainant testified that she put it back on after the assault, while other evidence refers to a pant being recovered from the her grandmother’s house; PW3 stated he did not personally know of the pant. This is, at worst, a minor inconsistency as to a peripheral matter of exhibit-handling, not a contradiction going to the identity of the assailant or the fact of the assault itself. The Court of Appeal in Erick Onyango Odeng' v Republic [2014] eKLR, adopting the reasoning of the Uganda Court of Appeal in Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001, held that grave contradictions, unless satisfactorily explained, will usually but not necessarily lead to evidence being rejected, but that a court will ignore minor contradictions unless they point to deliberate untruthfulness or affect the main substance of the prosecution's case. Applying that test, I find the contradictions relied upon here to be peripheral and not indicative of fabrication. As to the bare assertion that the Appellant was framed on account of family wrangles, no particulars of any such wrangle, nor any evidence of a motive to falsely implicate the Appellant, were led at trial; an unsubstantiated allegation of a frame-up cannot, without an evidential foundation, displace direct and credible testimony. This ground fails.
33. On the complaint that the trial court omitted the evidence of “a crucial witness who allegedly saw PW1 coming out of the Appellant's house,” and that Jane, who sent the complainant to the posho mill, was not called, I reiterate the well-established position that the prosecution is not obliged to call a multiplicity of witnesses to prove its case: Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove any fact, in the absence of any contrary legal requirement. In Bukenya & Others v Uganda [1972] EA 549, applied with approval by the Court of Appeal in Erick Onyango Odeng' v Republic (supra), it was held that while the prosecution has a duty to make available witnesses who give direct evidence on a fact in issue, a failure to call a particular witness will only found an adverse inference where that witness's evidence was essential and its omission was not satisfactorily explained. Nothing on this record suggests that Jane's evidence would have been anything other than what PW1 already testified to — that she was the one who sent PW1 to the posho mill — nor is there any suggestion that Jane witnessed the alleged offence itself. If the Appellant considered Jane's evidence, or that of any other witness said to have seen the complainant leaving his house, to be exculpatory, it was open to him to summon such a witness in his own defence; he did not do so. No adverse inference falls to be drawn against the prosecution on this account. This ground fails.
34. I turn to the central question of penetration, and the associated submission that the trial magistrate ignored the doctor's evidence, which the Appellant contends showed the complaint to have been “organised and planned.” PW4's evidence was that the complainant presented with a bleeding laceration to the vagina that was tender on examination, though her hymen was not recently broken, no spermatozoa were noted, and no epithelial cells indicating bleeding were seen on the high vaginal swab. The Appellant submits that this evidence in fact negates penetration. I do not accept that submission. The law on this point is settled. In Mark Oiruri Mose v Republic [2013] eKLR the Court of Appeal held that an attacker does not always complete the sexual act, which is precisely why the law does not require evidence of spermatozoa to prove penetration; so long as there is penetration, even only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep. In Erick Onyango Odeng' v Republic (supra) the Court of Appeal held, in terms, that the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence, and that it is not necessary that the hymen be ruptured. Applying these principles, the fact that the complainant's hymen was not found to be freshly broken, and that no spermatozoa were recovered, does not establish the absence of penetration; if anything, the presence of a fresh, tender bleeding laceration to the vagina, observed by a qualified doctor the day after the incident, is affirmative medical corroboration consistent with recent genital trauma of the kind described by the complainant. I find nothing in PW4's evidence to suggest fabrication, still less orchestration by the complainant; to the contrary, her findings support rather than undermine the complainant's account. This ground fails.
35. As to whether corroboration of the complainant's evidence was required at all, I note that Section 124 of the Evidence Act, as proviso, expressly provides that where, in a criminal case involving a sexual offence, the only evidence is that of the alleged victim, the court may receive that evidence and convict the accused if, for reasons recorded, it is satisfied that the victim is telling the truth. The trial magistrate conducted a voir dire examination of PW1 and satisfied himself that she understood the difference between truth and falsehood and appreciated the solemnity of the oath, before receiving her sworn testimony. Her account of the assault was consistent, detailed, and unshaken in its essentials on cross-examination, and was, in any event, corroborated by the evidence of PW2 as to her distressed condition and difficulty walking shortly after leaving the Appellant's house, by the medical evidence of PW4, and by the fact that the Appellant was, on his own witness's account, unaccounted for at the very hour the offence is said to have occurred. In these circumstances, corroboration, though present, was in any event not a legal precondition to conviction. This ground fails.
36. I turn to the defence of alibi, said to have been supported by DW2. An alibi places an accused elsewhere than at the scene of the offence at the material time, and the legal burden of disproving it never shifts from the prosecution to the accused; an accused need only raise it in a manner that casts reasonable doubt on the prosecution's case. However, an alibi must actually place the accused away from the scene at the material time in order to raise any such doubt, and it is best raised at the earliest opportunity so that the prosecution may investigate its truth: Republic v Sukha Singh s/o Wazir Singh & Others (1939) 6 EACA 145. On my own independent evaluation of DW2's evidence, I find that it does not achieve what the Appellant contends for. The offence is alleged, on the complainant's evidence which I accept, to have occurred at around 1.00 p.m. on 10th January 2023. DW2's own testimony was that he met the Appellant at the stage at exactly 1.00 p.m. that day and handed him grass to deliver, alone, to a client at Kanduyi, and that he did not see the Appellant again until 2.00 p.m.; on cross-examination, DW2 candidly admitted that he could not say where the Appellant was during that intervening hour. Far from placing the Appellant in DW2's company at the material time, DW2's evidence places the Appellant alone and unaccounted for at precisely the hour the complainant says she was assaulted, engaged on a solitary errand that took him away from, rather than in the company of, any witness who could vouch for his whereabouts. An alibi that leaves the accused unaccompanied and unaccounted for at the critical hour is no alibi at all; it corroborates opportunity rather than negating it. I find, independently, that the defence of alibi was not reasonably possibly true, and that the trial magistrate did not err, whether expressly or by necessary implication, in rejecting it.
37. Having so found on penetration, the age and identity of the complainant — which was never seriously in dispute, the Appellant being well known to the complainant as a paternal relative and having been recognised and named by her without hesitation — and the defence of alibi, I am satisfied that the prosecution proved each ingredient of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act to the standard of beyond reasonable doubt, and that the conviction was safe and proper.
38. Finally, on sentence, the Appellant urges that the 20-year term imposed is harsh and excessive and ought to be reduced on humanitarian grounds. Section 8(3) of the Sexual Offences Act prescribes a sentence of not less than 20 years' imprisonment for the defilement of a child aged between 12 and 15 years, and the complainant here, at 14 years and 7 months, fell within that bracket. I bear in mind the guidance of the Court of Appeal in Dismas Wafula Kilwake v Republic [2024] eKLR that the provisions of Section 8 of the Sexual Offences Act must be interpreted so as not to remove the sentencing discretion of the court altogether; a trial court, in an appropriate case, retains the discretion to depart from the prescribed sentence, whether upward or downward, where the circumstances so demand, and is not rigidly constrained by the statutory figure. In the present case, however, the trial magistrate did not exceed the prescribed sentence; he imposed precisely the statutory minimum applicable to the age bracket in question. The Appellant has not identified any mitigating circumstance capable of warranting a sentence below that floor: the offence was committed against a child in his own extended family who trusted him enough to accept an invitation into his house, was accompanied by a threat of violence with a panga, and has left the complainant with the physical and psychological consequences described in the evidence. In those circumstances I find no basis, humanitarian or otherwise, to interfere with the sentence imposed, which was lawful, proportionate, and squarely within the discretion available to the trial court on this record.
39. Having re-evaluated the entirety of the evidence afresh, tested each ground of appeal against the record, and accorded appropriate deference to the findings of the learned trial magistrate, who had the advantage of seeing and hearing the witnesses testify, I find no merit in any of the grounds of appeal advanced, whether as against conviction or as against sentence.
E. DISPOSITION
40. For the foregoing reasons, I find no merit in this appeal, whether as against conviction or as against sentence.
(a) The appeal is hereby dismissed in its entirety.
(b) The conviction of the Appellant for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, and the sentence of 20 years' imprisonment imposed thereon by the trial court on 27th November 2025, are hereby upheld.
Delivered at Kericho on 30th July 2026
In the presence of
Godia for the Appellant
C/A Irene Chelangat