1) The accused was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence are that on 16th day of April, 2018 at Sokyot Village, Sugoi Location, Turbo Sub- County within Uasin Gishu County, the appellant wilfully and unlawfully caused his genital organ (penis) to penetrate the genital organ namely Vagina of A. J a child aged 4 years.
2) In the alternative the appellant was charged with committing an indecent act with a child contrary to Section 11(1) of Sexual Offence Act No. 3 of 2001. The particulars of the alternative count are that on the 16th day of April, 2018 at Sokyot village, Sugoi Location, Turbo sub-county, within Uasin Gishu County, the appellant intentionally and unlawfully allowed his genital organ namely (Penis) to come into contact with the genital organ namely (Vagina) of AJ a girl aged 4 years.
3) Secondly, the appellant was charged with refusing to permit finger prints contrary to Section 55 (5) of National Police Act No. 1 of 2021. The particulars of the 2nd count are that on 7th day of June, 2020 at Turbo Police Station, Turbo town in Uasin Gishu County, the appellant wilfully refused to permit his finger prints to be taken by No. 59307 CPI Samson Bor for the purpose of record.
4) The court considered the evidence of 4 prosecution witnesses and 3 defence and found the appellant guilty of the offence of defilement contrary to Section 8(2) of the Sexual Offences Act and accordingly convicted him. Upon conviction, the accused was sentenced to serve life imprisonment.
5) Being dissatisfied with the conviction and sentence by the trial court, the accused preferred this appeal. The appeal is based on the following rounds: -
I. That the Learned trial Magistrate erred in points of law and fact by failing to note the age of the complainant, an essential ingredient of defilement was not proved.
II. That the trial magistrate erred in law and fact by failing to note that penetration a key ingredient of defilement was not proved to warrant conviction.
III. That the learned trial magistrate erred in law and fact by failing to ignore the principles and procedures of conducting the voire dire examination of the minor.
IV. That the trial magistrate erred in law and fact by failing to consider the appellant’s plausible defence which was not rebutted by the prosecution.
6) PW1, AJK, the complainant gave unsworn evidence. She stated she was aged 7 years and in grade 2. PW1, further, stated she knows the appellant as Ronoh. She also stated that the appellant was their neighbour at school and that her mother took her to their house. PW1, further, stated the appellant’s brother who is younger than her was her friend.
7) In her testimony, the complainant, also stated that Rono (appellant) did tabia mbaya (bad manners) to her. After removing her trouser and underpants, the complainant stated, the appellant lied on her facing down after removing his trouser and boxed while the complainant lay on her back.
8) The complainant, further, stated that he did it on the part he uses to urinate using his part he uses to urinate.
9) PW1, further, stated she told her mother what happened and she was taken to hospital. At hospital, PW1 stated, the part she uses to urinate was examined and she was given medicine and they also went to the police where her mother told the police what happened.
10) On cross-examination by the accused, the complainant reiterated she knows the appellant. She also stated that they slept outside the accused person home and that he was alone.
11) PW2, the complainant’s mother, stated her daughter was born on 15/5/2014 and was in grade 3. On 19.4.2018, PW2 stated, she went for prayers and left the complainant at home playing with other children. On coming back, PW2 stated, she realized the complainant was withdrawn. The complainant was also terrified, PW2 stated and she started crying. PW2, further, stated that she removed the complainant’s clothes and she told her Rono urinated on her and she took the complainant to Turbo Hospital where she was treated and discharged. PW2 also stated that Rono (appellant) is known to her and that she left the complainant at the appellant’s home with his parents. After the incident, PW2 stated, the accused who was a neighbour disappeared for one (1) year.
12) PW3, Jane Kolio, is a Senior Clinical Officer at Turbo Sub- County Hospital. She stated that she examined the complainant and found she had whitish discharge on her private parts.PW3, further, stated, the complainant had bruises and her hymen was torn. She also stated that complainant had semen on her private parts and concluded that she was defiled. Finally, PW3 produced the complainant’s treatment notes marked P. Exhibit1 and P3 form marked P. Exhibit 2.
13) PW4 Samson Bor stated that she was supplied with the complainant’s birth certificate marked P. Exhibit 3. He also stated that the accused after the alleged incident herein the appellant disappeared and was arrested after several months in Ziwa with the assistance of the complainant’s mother and police officers at Ziwa Police Station. PW4, further, stated that the appellant declined to have his finger prints taken.
14) In his defence, the appellant stated that he worked as a casual labourer and woke up in the morning and carried stones at Kosechei until 6:00 pm. Thereafter, PW3 stated he waited to be paid and got home at 9:00 pm. He denied defiling the complainant and stated that his parents and siblings were at home.
15) On being cross-examined, the appellant stated he did not know if the complainant was in their compound that day because he was not at home on the material date.
16) DW2, the accused person’s mother stated she was with complainant from 2:00 pm to 5:00 pm when she was taken away by her grandmother and that she was not defiled when she was with her. DW3 also stated it is not true the complainant was defiled and stated the complainant was a friend to her younger child.
17) On cross-examination, DW2 stated the complainant played with her child C and they never left her sight since tarmac is very risky for children.
18) DW3, the appellant’s father, stated he was at home at 9:00 am when the complainant came and started playing with other children. He left briefly, DW3 stated and went back home at 1:00 pm and found the children still playing.
19) At 5:30 pm, DW3, stated, the child’s nanny came and took her away. DW3, however, confirmed that the accused disappeared from for 2 years before he was arrested. He, however, stated the allegations of defilement against him are not true because he was not at home on that day.
20) On cross-examination, DW3, stated he did not know what happened when he left home. He also stated that he did not know why the appellant disappeared.
21) The issue for determination in this matter is whether the appellant defiled the complainant. This being a first appeal this court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses.( see. Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR )
22) The ingredients of defilement were set out in the case of Dominic Kibet Mwareng -vs- Republic (2013) eKLR thus:
“The critical ingredients forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant”.
23) In this case the prosecution relied on a birth certificate produced in court (P. Exhibit 3) to prove the age of the complainant. However, the name of the complainant in the charge sheet and the name in the birth certificate are different. The charge indicates name of the complainant to be AJ and the name in the birth certificate produced in Court is AL. The name the complainant gave in her testimony and the name of her mother are also different from those in the birth certificate. All these discrepancies were not explained by the prosecution witnesses. It is also noted that in its judgment, the trial court did not address the actual name and age of the complainant.
24) Age is a critical factor in a case of defilement as it determines whether the offence was committed and sentence to be meted out. The discrepancies pointed out above create a doubt in the mind of this court whether the birth certificate produced to prove the age of the complainant actually belongs to her. It is, therefore my finding that the age of the complainant was not conclusively proved in this case as the alleged name of the complainant in the said birth certificate are different from those in the charge sheet and also different from that given by the complainant in her testimony.
25) The trial court erred in not determining the name and age of the complainant. This court agrees with the appellant that the age of the complainant was not proved. On this ground alone, the appellant’s appeal succeeds.
26) The upshot of findings above is that the appellant’s conviction and sentence by trial court are set aside and the appellant is set as liberty forthwith unless otherwise lawfully held.
27) Right of Appeal within 14 days.
Dated, signed and delivered online via Microsoft teams this 8th day of July 2026.
HON. P. K. ROTICH
JUDGE
2) In the alternative the appellant was charged with committing an indecent act with a child contrary to Section 11(1) of Sexual Offence Act No. 3 of 2001. The particulars of the alternative count are that on the 16th day of April, 2018 at Sokyot village, Sugoi Location, Turbo sub-county, within Uasin Gishu County, the appellant intentionally and unlawfully allowed his genital organ namely (Penis) to come into contact with the genital organ namely (Vagina) of AJ a girl aged 4 years.
3) Secondly, the appellant was charged with refusing to permit finger prints contrary to Section 55 (5) of National Police Act No. 1 of 2021. The particulars of the 2nd count are that on 7th day of June, 2020 at Turbo Police Station, Turbo town in Uasin Gishu County, the appellant wilfully refused to permit his finger prints to be taken by No. 59307 CPI Samson Bor for the purpose of record.
4) The court considered the evidence of 4 prosecution witnesses and 3 defence and found the appellant guilty of the offence of defilement contrary to Section 8(2) of the Sexual Offences Act and accordingly convicted him. Upon conviction, the accused was sentenced to serve life imprisonment.
5) Being dissatisfied with the conviction and sentence by the trial court, the accused preferred this appeal. The appeal is based on the following rounds: -
I. That the Learned trial Magistrate erred in points of law and fact by failing to note the age of the complainant, an essential ingredient of defilement was not proved.
II. That the trial magistrate erred in law and fact by failing to note that penetration a key ingredient of defilement was not proved to warrant conviction.
III. That the learned trial magistrate erred in law and fact by failing to ignore the principles and procedures of conducting the voire dire examination of the minor.
IV. That the trial magistrate erred in law and fact by failing to consider the appellant’s plausible defence which was not rebutted by the prosecution.
6) PW1, AJK, the complainant gave unsworn evidence. She stated she was aged 7 years and in grade 2. PW1, further, stated she knows the appellant as Ronoh. She also stated that the appellant was their neighbour at school and that her mother took her to their house. PW1, further, stated the appellant’s brother who is younger than her was her friend.
7) In her testimony, the complainant, also stated that Rono (appellant) did tabia mbaya (bad manners) to her. After removing her trouser and underpants, the complainant stated, the appellant lied on her facing down after removing his trouser and boxed while the complainant lay on her back.
8) The complainant, further, stated that he did it on the part he uses to urinate using his part he uses to urinate.
9) PW1, further, stated she told her mother what happened and she was taken to hospital. At hospital, PW1 stated, the part she uses to urinate was examined and she was given medicine and they also went to the police where her mother told the police what happened.
10) On cross-examination by the accused, the complainant reiterated she knows the appellant. She also stated that they slept outside the accused person home and that he was alone.
11) PW2, the complainant’s mother, stated her daughter was born on 15/5/2014 and was in grade 3. On 19.4.2018, PW2 stated, she went for prayers and left the complainant at home playing with other children. On coming back, PW2 stated, she realized the complainant was withdrawn. The complainant was also terrified, PW2 stated and she started crying. PW2, further, stated that she removed the complainant’s clothes and she told her Rono urinated on her and she took the complainant to Turbo Hospital where she was treated and discharged. PW2 also stated that Rono (appellant) is known to her and that she left the complainant at the appellant’s home with his parents. After the incident, PW2 stated, the accused who was a neighbour disappeared for one (1) year.
12) PW3, Jane Kolio, is a Senior Clinical Officer at Turbo Sub- County Hospital. She stated that she examined the complainant and found she had whitish discharge on her private parts.PW3, further, stated, the complainant had bruises and her hymen was torn. She also stated that complainant had semen on her private parts and concluded that she was defiled. Finally, PW3 produced the complainant’s treatment notes marked P. Exhibit1 and P3 form marked P. Exhibit 2.
13) PW4 Samson Bor stated that she was supplied with the complainant’s birth certificate marked P. Exhibit 3. He also stated that the accused after the alleged incident herein the appellant disappeared and was arrested after several months in Ziwa with the assistance of the complainant’s mother and police officers at Ziwa Police Station. PW4, further, stated that the appellant declined to have his finger prints taken.
14) In his defence, the appellant stated that he worked as a casual labourer and woke up in the morning and carried stones at Kosechei until 6:00 pm. Thereafter, PW3 stated he waited to be paid and got home at 9:00 pm. He denied defiling the complainant and stated that his parents and siblings were at home.
15) On being cross-examined, the appellant stated he did not know if the complainant was in their compound that day because he was not at home on the material date.
16) DW2, the accused person’s mother stated she was with complainant from 2:00 pm to 5:00 pm when she was taken away by her grandmother and that she was not defiled when she was with her. DW3 also stated it is not true the complainant was defiled and stated the complainant was a friend to her younger child.
17) On cross-examination, DW2 stated the complainant played with her child C and they never left her sight since tarmac is very risky for children.
18) DW3, the appellant’s father, stated he was at home at 9:00 am when the complainant came and started playing with other children. He left briefly, DW3 stated and went back home at 1:00 pm and found the children still playing.
19) At 5:30 pm, DW3, stated, the child’s nanny came and took her away. DW3, however, confirmed that the accused disappeared from for 2 years before he was arrested. He, however, stated the allegations of defilement against him are not true because he was not at home on that day.
20) On cross-examination, DW3, stated he did not know what happened when he left home. He also stated that he did not know why the appellant disappeared.
21) The issue for determination in this matter is whether the appellant defiled the complainant. This being a first appeal this court is obligated to re-appraise and re-evaluate the evidence tendered before the trial court being mindful of the fact the trial court had the advantage of seeing and assessing the demeanour of witnesses.( see. Reuben Ombwa Muma & Another -vs- Republic (2012) eKLR )
22) The ingredients of defilement were set out in the case of Dominic Kibet Mwareng -vs- Republic (2013) eKLR thus:
“The critical ingredients forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant”.
23) In this case the prosecution relied on a birth certificate produced in court (P. Exhibit 3) to prove the age of the complainant. However, the name of the complainant in the charge sheet and the name in the birth certificate are different. The charge indicates name of the complainant to be AJ and the name in the birth certificate produced in Court is AL. The name the complainant gave in her testimony and the name of her mother are also different from those in the birth certificate. All these discrepancies were not explained by the prosecution witnesses. It is also noted that in its judgment, the trial court did not address the actual name and age of the complainant.
24) Age is a critical factor in a case of defilement as it determines whether the offence was committed and sentence to be meted out. The discrepancies pointed out above create a doubt in the mind of this court whether the birth certificate produced to prove the age of the complainant actually belongs to her. It is, therefore my finding that the age of the complainant was not conclusively proved in this case as the alleged name of the complainant in the said birth certificate are different from those in the charge sheet and also different from that given by the complainant in her testimony.
25) The trial court erred in not determining the name and age of the complainant. This court agrees with the appellant that the age of the complainant was not proved. On this ground alone, the appellant’s appeal succeeds.
26) The upshot of findings above is that the appellant’s conviction and sentence by trial court are set aside and the appellant is set as liberty forthwith unless otherwise lawfully held.
27) Right of Appeal within 14 days.
Dated, signed and delivered online via Microsoft teams this 8th day of July 2026.
HON. P. K. ROTICH
JUDGE