The Appellant VINCENT MAGAIWA MASIAGA was charged with the offence of causing defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006.
The particulars were that on 17 th April 2023 at Nyamagagara area in Kuria West Sub-County within Migori County within the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of C. N. N. a girl aged 11 years.
In the alternative the Appellant was charged with the offence of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars were that on 17 th April 2023 at Nyamagagara area in Kuria West Sub-County within Migori County within the Republic of Kenya intentionally touched the vagina of C. N. N. a girl aged 11 years.
The Trial Magistrate considered the evidence of 5 prosecution witnesses and the Appellant’s sworn statement in defence and found that the prosecution had established beyond reasonable doubt that the Appellant had committed the offence of defilement and he was convicted and sentenced to serve 30 years imprisonment.
Being aggrieved by the conviction and sentence the Appellant lodged the appeal herein vide undated Petition of Appeal on the following grounds:-
1. That I pleaded not guilty to the charge herein.
2. That the trial court erred in both law and facts by not complying with Article 50(2) (g) and (h) of the Constitution 2010.
3. That the trial court erred in both law and facts not observing that the ingredients of the offence were not proved to the required standard in law.
REASONS WHEREFORE
i. Conviction should be quashed and sentence set aside
ii. Leave of the court to amend or supplement more grounds after receiving the lower court proceedings
PW1 the Complainant herein was examined by the court voire dire to establish her level of intelligence and whether she understood the meaning of an oath and the court said that she was competent to give evidence on oath. She was therefore sworn and she said that on 17 th April 2023, she was with her younger brother Nicholas Matinde and they were going to school when they came across the Vincent who came from behind and told her he wanted to talk to her. That when she declined the Appellant gave her brother a piece of sugar cane and told him to go to school. That her brother went to school and left her with the Appellant holding her hand and led her to the bush near the river. That the Appellant pushed her down and removed her pant, pulled her legs apart and had sex with her. That after he had defiled her he told her to take a bath in the river. That when she refused the Appellant threatened to kill her using the panga that he had. That she took a bath and proceeded back home. That at home she found her mother and explained what had happened. That her mother accompanied her to school where the Head Teacher wrote a letter and they went to Kwimba Hospital and she was treated. That she was also taken to Kehancha Hospital by her father and she was again treated and treatment notes, P3 and PRC forms duly filled. PW1 also identified Certificate of Birth showing her age. PW1 identified the Appellant in the dock as the person who defiled her.
In cross examination by the Appellant’s Advocate PW1 said that the Appellant was their neighbour and she knew him very well. She said that there was no home nearby and she did not see any other person at the scene where the Appellant defiled her.
That when she stared screaming, the Appellant held her mouth. She said that she went back home and her mother took her o school where the Head Teacher wrote a letter.
She said that she was taken to hospital and she told the police it was Vincent who defiled her. She said that she knew Vincent by one name.
PW2.Peter Nyamaguche Robi testified that the Complainant was his daughter. He said that he was at his place of work near his home on 17 th April 2023 when he received a phone call from the teacher from the school where his daughter learns. That he told him that his daughter had been defiled. That he went and reported the matter at the Chief’s office and proceeded to school where he found the Complainant with the mother aftwr they had gone to Kohanga Dispensary.
That the Complainant explained that it was Vincent who defiled her. That the Head Teacher wrote a letter referring them to the Police Station and they proceeded to the Police Station from where the girl was taken to Kuria West Sub-County Hospital where she was examined and treated.
In cross examination, PW2 said that it was Esther who called him and reported his daughter had been defiled. He said that he had been told it was Dan Boke who defiled the Complainant but when he got to the school the Complainant told him it was Vincent who defiled her. He said that his statement does not indicate the name of the Appellant od Dna Boke as assailant. He said that the Appellant was his neighbour and he did not have any dispute with his mother or father. He said whathe said in court was the truth.
PW3.George Omondi Olocho Clinical Officer at Kuria West Sub-County Hospital testified that he examined the Complainant herein who had been referred from Kohanga Dispensary with history of having been defiled by someone known to her on 17 th April 2023. That the perpetrator forced her to take a bath after defiling her. PW3 said the child was sick looking and in pain.
He observed fresh bruises on her labias and the hymen was freshly broken with visible tear.
PW3 also said that Laboratory tests revealed red blood cells confirming that the child was defiled.
The child was put on treatment and P3, and PRC forms duly filled. PW3 produced P3, PRC and treatment notes as exhibits. 3,4 and 2.
In cross examination, PW3 said that he examined the patient at Kuria West Sub-County Hospital after she was referred from Kohanga Dispensary. He said he did not examine the Appellant. He said that there was penetration as the labia minora had bruises and the hymen was broken.
PW4.P. C. Maceline Achieng from Kehancha Police Station testified that she took over matter from P. C. Hyline who went on transfer. That upon taking over the matter she established that the Complainant’s father reported that his daughter had been defiled by the Appellant. She established that the Appellant held the Complainant’s hand and led her into the bush where he defiled her.after wrestling her to the ground and removing her pant. That the Appellant who was armed with a panga threatened to kill the Complainant if she screamed. That later he ordered the girl to take a bath at the river. That when the Complainant refused, he threatened to strangle her using his shirt.
That he girl washed her private parts only and then and went back home. That she found her mother at home and reported and she was taken to the Head Teacher who referred them to the Kehancha Police Station.
PW4 testified that the Complainant was taken to Kuria West Sub-County Hospital where she was examined and treated and P3 and PRC forms duly filled. Subsequently their statements were recorded.
That the Appellant was arrested on 27 th May 2023 and arraigned in court where he was charged.
PW4 produced Certificate of Birth for the Complainant confirming she was 11 years old at the time of the incident.
PW4 said that she also recorded the statement of the Complainant’s 8 years old brother who was with her when the Appellant held he Complainant and chased him threatening to cut him with a panga and he ran away. PW4 said that the Complainant’s brother said he knew the Appellant.
In cross examination PW4 said that she did not interrogate the Complainant’s brother and the Complainant did not say in her statement that the Appellant threatened to beat the brother. She said she interrogated Nicholas after the Complainant had testified in court. She also said that the Head Teacher wrote a letter referring the Complainant’s mother to the police but the Head Teacher did not record a statement.
PW4 said that the Complainant identified the Appellant with one name as Vincent. She said she did not interrogate the Appellant.
PW5 testified and said that she was Mary Wegesa Marca. She said she was a farmer and lived in Nyamagagana .She said that on 17 th April 2023, she was at the farm when the Complainant went to her while running and crying. That on inquiry the girl told her that she was on the way to school when she met one man who took her to the bush and defiled her. That she examined her private parts and took her to school and reported the matter. She also took the child to Kohanga Dispensary where she was examined and treated and later referred to Kuria West Sub-County Hospital. She said that the Complainant’s father took her to Kuria West Sub-County Hospital. She said that the Complainant told her that the assailant was a stranger to her.
In cross examination, PW5 said that she was the first person to interact with the Complainant but she recorded her statement in October 2023.She said she did not know the person who defiled the Complainant and the Complainant also said that the person was a stranger to her.
When the Appellant was placed on defence he gave sworn statement and said that the charge against him was not true. He said that on 17 th April 2023, he was at his place of work in a mining company at No. 5. He said that he was arrested on the same day by police officers. He said that he heard what the Complainant said in court but it was false evidence. He said he did not know why the Complainant lied against him. He said that he did not have grudge with he Complainant but had a grudge with the Complainant’s father. He said they disagreed at the pool. He said that the evidence of the other witnesses was also false.
The Appellant said that he had witnesses who can confirm he was at his place of work and did not commit the offence.
In cross examination the Appellant said that he was arrested on 27 th May 2023 and not on 17 th May 2023. He also said he was 19 years old at the time of the incident. He said that he did not know why the Complainant gave false evidence against him. The Appellant said that he was working with a mining company and he used to sleep at the camp. He said that he had colleagues at work but he did not give their names.
The Appellant said that the Complainant was his neighbour but he did not commit the offence. He said that he rarely lived at home but used to play pool at the shopping center. He said that he knew the Complainant’s father.
In re-examination, the Appellant said he did not tell the police he was 16 years. He said he did not have a grudge with the Complainant and he did not have documents to show where he was working. He also said that he did not give the names of his colleagues at work.
The appeal was canvassed by way of written submissions. The Appellant subsequently indicated in his submissions that he was not contesting the conviction but sought reduction of the sentence. He nevertheless challenged the medical evidence, contending that the high vaginal swab did not establish defilement and that a broken hymen was not, by itself, evidence of defilement. He also pleaded remorse and his status as a first offender. The Respondent in submissions dated 14 th March 2025 urged the Court to dismiss the appeal and uphold the sentence as the same lacks merit.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence that was presented before the trial court and arrive at its own independent conclusion. The Court must, however, bear in mind that it did not have the advantage of seeing or hearing the witnesses testify.
This court has accordingly considered the entire record, the evidence of the five prosecution witnesses, the Appellant's sworn defence, the grounds of appeal and the respective submissions and the the issues that arise for determination are:-
i. Whether the prosecution proved the essential ingredients of the offence of defilement beyond reasonable doubt namely:-
a. Age
b. Penetration and
c. Identification of the perpetrator
ii. Whether the Appellant's rights under Article 50(2)(g) and (h) of the Constitution were violated;
iii. Whether the sentence of thirty (30) years' imprisonment ought to be interfered with.
The complainant, PW1, testified that she was 11 years old. Her age was further supported by the Certificate of Birth which was identified by PW1 and produced in evidence through PW4. PW4 testified that the Certificate of Birth confirmed that the complainant was 11 years old at the time of the incident.
The element of age was therefore established by the prosecution beyond reasonable doubt. There is therefore no basis upon which the finding of the trial court on age can be faulted.
On the element of penetration, PW1 gave direct evidence that the Appellant pushed her to the ground, removed her pant, pulled her legs apart and had sexual intercourse with her. She further stated that after the incident the Appellant directed her to bathe in the river.
PW3, the Clinical Officer at Kuria West Sub-County Hospital, examined the complainant after she had been referred from Kohanga Dispensary. He observed fresh bruises on her labia and a freshly broken hymen with a visible tear. Laboratory examination revealed red blood cells. He formed the opinion that there had been penetration.
The Appellant challenged the medical evidence, particularly the significance of the vaginal swab and the broken hymen. The submission cannot succeed. Medical evidence is not to be considered in isolation from the testimony of the complainant. In the present case, the complainant gave a clear account of penile-vaginal penetration and her evidence was accompanied by medical findings of fresh genital injuries. The evidence of PW3 therefore materially corroborated the complainant's account. It is also correct that a broken hymen, considered in isolation, does not necessarily establish that a child has been defiled. The question for the Court is whether, considering the whole evidence, penetration was proved. Here, there was direct testimony from PW1, supported by the clinical findings of fresh bruising and a fresh tear. This court therefore finds, independently of the trial court, that penetration was proved beyond reasonable doubt.
Concerning whether the Appellant was positively identified as the perpetrator, PW1 testified that she was walking to school with her younger brother when the Appellant approached them. She stated that she knew the Appellant very well because he was their neighbour. According to her evidence, the Appellant gave her brother a piece of sugar cane and told him to proceed to school. He then held PW1 by the hand and led her into the bush near the river.
PW1 further testified that the Appellant threatened to kill her with a panga when she screamed and thereafter directed her to bathe in the river. She returned home and reported what had happened. PW1 identified the Appellant in court. In cross-examination she maintained that she knew him and stated that she knew him by the name Vincent. PW2, the complainant's father, testified that he was informed that his daughter had been defiled. When he subsequently went to the school, the complainant told him that Vincent was the person who had defiled her.
PW4, the investigating officer, similarly testified that upon taking over the investigation she established that the Complainant's father had reported that the Appellant had defiled his daughter. She also testified that the complainant stated that the Appellant had taken her into the bush and threatened her.
There are, however, inconsistencies in the prosecution evidence which this Court must carefully consider.
PW2 stated in cross-examination that he had initially been told that one Dan Boke had defiled the complainant, but that when he reached the school the Complainant herself told him that it was Vincent. He further acknowledged that his statement did not contain the name of the Appellant or Dan Boke as the assailant.
More significantly, PW5, who testified that she was the first person to interact with the Complainant after the incident, stated that the Complainant told her that the assailant was a stranger. PW5 maintained in cross-examination that she did not know the person who defiled the Complainant and that the Complainant had described the assailant as a stranger.
The evidence of PW5 therefore appears, on the face of it, to conflict with the evidence of PW1 that the Appellant was a person she knew very well and with the subsequent account given to PW2 and PW4 identifying Vincent as the perpetrator.
The Court must distinguish between contradictions which go to the root of the prosecution case and minor discrepancies which do not affect the substance of the evidence. Here, the discrepancy concerning whether the assailant was a stranger or a person known to PW1 is not a trivial discrepancy because the identity of the perpetrator is a central issue in the case.
Nevertheless, having subjected the evidence to a fresh evaluation, I do not consider the discrepancy sufficient, in the circumstances of this case, to create a reasonable doubt as to the Appellant's identity.
PW1 was the victim and an eye witness to the incident. She testified that the Appellant was her neighbour and that she knew him well. The incident occurred in circumstances in which she was physically with the perpetrator. She described him by name and subsequently identified him to her father and to the police.
The fact that PW2 was initially given a different name does not, by itself, establish that PW1's subsequent identification of Vincent was false. Indeed, PW2's evidence was that the Complainant herself, when he reached the school, identified the perpetrator as Vincent.
The evidence of PW5 presents a genuine inconsistency, but PW5 did not witness the offence. Her evidence concerning the identity of the perpetrator was based upon what the child allegedly told her shortly after the incident. The Court must therefore attach greater weight to PW1's direct evidence concerning the person who assaulted her, provided that such evidence is otherwise credible. This court has considered the circumstances under which PW1 encountered the Appellant. She said she knew him as a neighbour. There was no evidence that she had only a fleeting opportunity to observe an unknown person. Her evidence was that the Appellant approached her, spoke to her, held her hand and led her into the bush. The interaction was therefore sufficiently prolonged for recognition. After defiling her he even had the audacity to cause her to bathe with an intention of concealing his trails as the perpetrator. This court is consequently satisfied that the identification of the Appellant was by recognition and not by a mere dock identification of an unknown person.
The Appellant raised an alibi, stating that he was working at a mining company and was away from home. However, he did not give the names of his alleged colleagues or produce any documentation to support the alleged presence at work. More importantly, the burden remained upon the prosecution throughout to prove that he was the perpetrator. The failure of the defence to establish the alibi does not itself prove guilt; rather, the question is whether the prosecution evidence, considered as a whole, displaced the alibi and established guilt beyond reasonable doubt. Having reconsidered the evidence this court finds that the prosecution evidence displaced the Appellant’s defence of alibi.
The essential elements of the offence were therefore established. The complainant was a child aged 11 years; there was proof of penetration; and the evidence sufficiently established that it was the Appellant who caused the penetration. The fact that the complainant was aged 11 years is material because, under Section 8(1) of the Sexual Offences Act, a person who intentionally and unlawfully causes penetration with a child commits the offence of defilement. The prosecution was therefore not required to prove consent.
The prosecution proved the charge beyond reasonable doubt.
The Appellant complained that the trial court failed to comply with Article 50(2)(g) and (h) of the Constitution.
Article 50(2)(g) guarantees an accused person the right to choose, and be represented by, an advocate and to be informed of that right promptly. Article 50(2)(h) concerns the right to have an advocate assigned by the State at State expense where substantial injustice would otherwise result.
The record before this Court shows that the Appellant participated in the trial and was represented by Counsel. No particular instance has been identified in which the trial court denied him the right to choose or be represented by an advocate, nor has the Appellant demonstrated that he applied for State-funded representation and was denied the same in circumstances contemplated by Article 50(2)(h).
A general assertion that Article 50(2)(g) and (h) was not complied with, without demonstrating the particular violation and the prejudice occasioned thereby, cannot, in the circumstances of this appeal, justify the quashing of an otherwise properly supported conviction. This ground therefore fails.
The Appellant was sentenced to thirty (30) years' imprisonment. The offence under Section 8(3) of the Sexual Offences Act, where the child is aged between 12 and 15 years, attracts a minimum term of imprisonment of twenty years. In this case, the complainant was 11 years old and the applicable statutory provision was Section 8(2), as charged by the prosecution and found by the trial court.
The sentence imposed by the trial court was therefore within the statutory framework. The principles governing interference with sentence on appeal are well settled. An appellate court does not ordinarily substitute its own discretion for that of the sentencing court merely because it would have imposed a different sentence. Interference is justified where the trial court acted on an erroneous principle, overlooked a material factor, took into account an irrelevant factor, or imposed a sentence that is manifestly excessive or otherwise unlawful.
The Appellant is a first offender and has expressed remorse. Those are mitigating considerations. However, they must be balanced against the circumstances of the offence. The complainant was a child of only 11 years. The evidence was that the Appellant took her into a bush, pushed her to the ground, removed her clothing and forcibly defiled her. He further threatened her with a panga when she screamed and compelled her to bathe in the river.
Those circumstances are aggravating. The offence was committed against a particularly vulnerable child and involved force, intimidation and threats.
In those circumstances, I am not persuaded that the learned trial Magistrate acted on an erroneous principle or that the sentence of thirty years' imprisonment was manifestly excessive so as to warrant appellate interference.
The fact that the Appellant is a first offender and has expressed remorse does not, in the circumstances, outweigh the aggravating features of the offence. This court therefore declines to interfere with the sentence.
Having independently re-evaluated the evidence, I find that the prosecution proved beyond reasonable doubt that:
i. the complainant was a child aged 11 years;
ii. there was unlawful penetration;
iii. the penetration was intentionally caused by the Appellant; and
iv. the Appellant was properly identified as the perpetrator.
Although there were discrepancies in the evidence, particularly concerning the initial description of the assailant as a stranger and the reference by PW2 to another name, those discrepancies do not, when the evidence is considered as a whole, create a reasonable doubt.
It is further found that the Appellant's constitutional right has not been violated and that the sentence imposed was lawful and not shown to be manifestly excessive.
Consequently, the appeal against conviction and sentence is dismissed.
The conviction of the Appellant for the offence of defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act is hereby upheld.
The sentence of thirty (30) years' imprisonment is likewise upheld.
The Appellant shall be entitled to the benefit of the period spent in custody prior to sentence from 12 th June2023 to 14 th May 2024 in accordance with Section 333(2) of the Criminal Procedure Code.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 17 TH DAY OF SEPTEMBER 2026.
The particulars were that on 17 th April 2023 at Nyamagagara area in Kuria West Sub-County within Migori County within the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of C. N. N. a girl aged 11 years.
In the alternative the Appellant was charged with the offence of committing indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars were that on 17 th April 2023 at Nyamagagara area in Kuria West Sub-County within Migori County within the Republic of Kenya intentionally touched the vagina of C. N. N. a girl aged 11 years.
The Trial Magistrate considered the evidence of 5 prosecution witnesses and the Appellant’s sworn statement in defence and found that the prosecution had established beyond reasonable doubt that the Appellant had committed the offence of defilement and he was convicted and sentenced to serve 30 years imprisonment.
Being aggrieved by the conviction and sentence the Appellant lodged the appeal herein vide undated Petition of Appeal on the following grounds:-
1. That I pleaded not guilty to the charge herein.
2. That the trial court erred in both law and facts by not complying with Article 50(2) (g) and (h) of the Constitution 2010.
3. That the trial court erred in both law and facts not observing that the ingredients of the offence were not proved to the required standard in law.
REASONS WHEREFORE
i. Conviction should be quashed and sentence set aside
ii. Leave of the court to amend or supplement more grounds after receiving the lower court proceedings
PW1 the Complainant herein was examined by the court voire dire to establish her level of intelligence and whether she understood the meaning of an oath and the court said that she was competent to give evidence on oath. She was therefore sworn and she said that on 17 th April 2023, she was with her younger brother Nicholas Matinde and they were going to school when they came across the Vincent who came from behind and told her he wanted to talk to her. That when she declined the Appellant gave her brother a piece of sugar cane and told him to go to school. That her brother went to school and left her with the Appellant holding her hand and led her to the bush near the river. That the Appellant pushed her down and removed her pant, pulled her legs apart and had sex with her. That after he had defiled her he told her to take a bath in the river. That when she refused the Appellant threatened to kill her using the panga that he had. That she took a bath and proceeded back home. That at home she found her mother and explained what had happened. That her mother accompanied her to school where the Head Teacher wrote a letter and they went to Kwimba Hospital and she was treated. That she was also taken to Kehancha Hospital by her father and she was again treated and treatment notes, P3 and PRC forms duly filled. PW1 also identified Certificate of Birth showing her age. PW1 identified the Appellant in the dock as the person who defiled her.
In cross examination by the Appellant’s Advocate PW1 said that the Appellant was their neighbour and she knew him very well. She said that there was no home nearby and she did not see any other person at the scene where the Appellant defiled her.
That when she stared screaming, the Appellant held her mouth. She said that she went back home and her mother took her o school where the Head Teacher wrote a letter.
She said that she was taken to hospital and she told the police it was Vincent who defiled her. She said that she knew Vincent by one name.
PW2.Peter Nyamaguche Robi testified that the Complainant was his daughter. He said that he was at his place of work near his home on 17 th April 2023 when he received a phone call from the teacher from the school where his daughter learns. That he told him that his daughter had been defiled. That he went and reported the matter at the Chief’s office and proceeded to school where he found the Complainant with the mother aftwr they had gone to Kohanga Dispensary.
That the Complainant explained that it was Vincent who defiled her. That the Head Teacher wrote a letter referring them to the Police Station and they proceeded to the Police Station from where the girl was taken to Kuria West Sub-County Hospital where she was examined and treated.
In cross examination, PW2 said that it was Esther who called him and reported his daughter had been defiled. He said that he had been told it was Dan Boke who defiled the Complainant but when he got to the school the Complainant told him it was Vincent who defiled her. He said that his statement does not indicate the name of the Appellant od Dna Boke as assailant. He said that the Appellant was his neighbour and he did not have any dispute with his mother or father. He said whathe said in court was the truth.
PW3.George Omondi Olocho Clinical Officer at Kuria West Sub-County Hospital testified that he examined the Complainant herein who had been referred from Kohanga Dispensary with history of having been defiled by someone known to her on 17 th April 2023. That the perpetrator forced her to take a bath after defiling her. PW3 said the child was sick looking and in pain.
He observed fresh bruises on her labias and the hymen was freshly broken with visible tear.
PW3 also said that Laboratory tests revealed red blood cells confirming that the child was defiled.
The child was put on treatment and P3, and PRC forms duly filled. PW3 produced P3, PRC and treatment notes as exhibits. 3,4 and 2.
In cross examination, PW3 said that he examined the patient at Kuria West Sub-County Hospital after she was referred from Kohanga Dispensary. He said he did not examine the Appellant. He said that there was penetration as the labia minora had bruises and the hymen was broken.
PW4.P. C. Maceline Achieng from Kehancha Police Station testified that she took over matter from P. C. Hyline who went on transfer. That upon taking over the matter she established that the Complainant’s father reported that his daughter had been defiled by the Appellant. She established that the Appellant held the Complainant’s hand and led her into the bush where he defiled her.after wrestling her to the ground and removing her pant. That the Appellant who was armed with a panga threatened to kill the Complainant if she screamed. That later he ordered the girl to take a bath at the river. That when the Complainant refused, he threatened to strangle her using his shirt.
That he girl washed her private parts only and then and went back home. That she found her mother at home and reported and she was taken to the Head Teacher who referred them to the Kehancha Police Station.
PW4 testified that the Complainant was taken to Kuria West Sub-County Hospital where she was examined and treated and P3 and PRC forms duly filled. Subsequently their statements were recorded.
That the Appellant was arrested on 27 th May 2023 and arraigned in court where he was charged.
PW4 produced Certificate of Birth for the Complainant confirming she was 11 years old at the time of the incident.
PW4 said that she also recorded the statement of the Complainant’s 8 years old brother who was with her when the Appellant held he Complainant and chased him threatening to cut him with a panga and he ran away. PW4 said that the Complainant’s brother said he knew the Appellant.
In cross examination PW4 said that she did not interrogate the Complainant’s brother and the Complainant did not say in her statement that the Appellant threatened to beat the brother. She said she interrogated Nicholas after the Complainant had testified in court. She also said that the Head Teacher wrote a letter referring the Complainant’s mother to the police but the Head Teacher did not record a statement.
PW4 said that the Complainant identified the Appellant with one name as Vincent. She said she did not interrogate the Appellant.
PW5 testified and said that she was Mary Wegesa Marca. She said she was a farmer and lived in Nyamagagana .She said that on 17 th April 2023, she was at the farm when the Complainant went to her while running and crying. That on inquiry the girl told her that she was on the way to school when she met one man who took her to the bush and defiled her. That she examined her private parts and took her to school and reported the matter. She also took the child to Kohanga Dispensary where she was examined and treated and later referred to Kuria West Sub-County Hospital. She said that the Complainant’s father took her to Kuria West Sub-County Hospital. She said that the Complainant told her that the assailant was a stranger to her.
In cross examination, PW5 said that she was the first person to interact with the Complainant but she recorded her statement in October 2023.She said she did not know the person who defiled the Complainant and the Complainant also said that the person was a stranger to her.
When the Appellant was placed on defence he gave sworn statement and said that the charge against him was not true. He said that on 17 th April 2023, he was at his place of work in a mining company at No. 5. He said that he was arrested on the same day by police officers. He said that he heard what the Complainant said in court but it was false evidence. He said he did not know why the Complainant lied against him. He said that he did not have grudge with he Complainant but had a grudge with the Complainant’s father. He said they disagreed at the pool. He said that the evidence of the other witnesses was also false.
The Appellant said that he had witnesses who can confirm he was at his place of work and did not commit the offence.
In cross examination the Appellant said that he was arrested on 27 th May 2023 and not on 17 th May 2023. He also said he was 19 years old at the time of the incident. He said that he did not know why the Complainant gave false evidence against him. The Appellant said that he was working with a mining company and he used to sleep at the camp. He said that he had colleagues at work but he did not give their names.
The Appellant said that the Complainant was his neighbour but he did not commit the offence. He said that he rarely lived at home but used to play pool at the shopping center. He said that he knew the Complainant’s father.
In re-examination, the Appellant said he did not tell the police he was 16 years. He said he did not have a grudge with the Complainant and he did not have documents to show where he was working. He also said that he did not give the names of his colleagues at work.
The appeal was canvassed by way of written submissions. The Appellant subsequently indicated in his submissions that he was not contesting the conviction but sought reduction of the sentence. He nevertheless challenged the medical evidence, contending that the high vaginal swab did not establish defilement and that a broken hymen was not, by itself, evidence of defilement. He also pleaded remorse and his status as a first offender. The Respondent in submissions dated 14 th March 2025 urged the Court to dismiss the appeal and uphold the sentence as the same lacks merit.
ANALYSIS AND DETERMINATION
This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence that was presented before the trial court and arrive at its own independent conclusion. The Court must, however, bear in mind that it did not have the advantage of seeing or hearing the witnesses testify.
This court has accordingly considered the entire record, the evidence of the five prosecution witnesses, the Appellant's sworn defence, the grounds of appeal and the respective submissions and the the issues that arise for determination are:-
i. Whether the prosecution proved the essential ingredients of the offence of defilement beyond reasonable doubt namely:-
a. Age
b. Penetration and
c. Identification of the perpetrator
ii. Whether the Appellant's rights under Article 50(2)(g) and (h) of the Constitution were violated;
iii. Whether the sentence of thirty (30) years' imprisonment ought to be interfered with.
The complainant, PW1, testified that she was 11 years old. Her age was further supported by the Certificate of Birth which was identified by PW1 and produced in evidence through PW4. PW4 testified that the Certificate of Birth confirmed that the complainant was 11 years old at the time of the incident.
The element of age was therefore established by the prosecution beyond reasonable doubt. There is therefore no basis upon which the finding of the trial court on age can be faulted.
On the element of penetration, PW1 gave direct evidence that the Appellant pushed her to the ground, removed her pant, pulled her legs apart and had sexual intercourse with her. She further stated that after the incident the Appellant directed her to bathe in the river.
PW3, the Clinical Officer at Kuria West Sub-County Hospital, examined the complainant after she had been referred from Kohanga Dispensary. He observed fresh bruises on her labia and a freshly broken hymen with a visible tear. Laboratory examination revealed red blood cells. He formed the opinion that there had been penetration.
The Appellant challenged the medical evidence, particularly the significance of the vaginal swab and the broken hymen. The submission cannot succeed. Medical evidence is not to be considered in isolation from the testimony of the complainant. In the present case, the complainant gave a clear account of penile-vaginal penetration and her evidence was accompanied by medical findings of fresh genital injuries. The evidence of PW3 therefore materially corroborated the complainant's account. It is also correct that a broken hymen, considered in isolation, does not necessarily establish that a child has been defiled. The question for the Court is whether, considering the whole evidence, penetration was proved. Here, there was direct testimony from PW1, supported by the clinical findings of fresh bruising and a fresh tear. This court therefore finds, independently of the trial court, that penetration was proved beyond reasonable doubt.
Concerning whether the Appellant was positively identified as the perpetrator, PW1 testified that she was walking to school with her younger brother when the Appellant approached them. She stated that she knew the Appellant very well because he was their neighbour. According to her evidence, the Appellant gave her brother a piece of sugar cane and told him to proceed to school. He then held PW1 by the hand and led her into the bush near the river.
PW1 further testified that the Appellant threatened to kill her with a panga when she screamed and thereafter directed her to bathe in the river. She returned home and reported what had happened. PW1 identified the Appellant in court. In cross-examination she maintained that she knew him and stated that she knew him by the name Vincent. PW2, the complainant's father, testified that he was informed that his daughter had been defiled. When he subsequently went to the school, the complainant told him that Vincent was the person who had defiled her.
PW4, the investigating officer, similarly testified that upon taking over the investigation she established that the Complainant's father had reported that the Appellant had defiled his daughter. She also testified that the complainant stated that the Appellant had taken her into the bush and threatened her.
There are, however, inconsistencies in the prosecution evidence which this Court must carefully consider.
PW2 stated in cross-examination that he had initially been told that one Dan Boke had defiled the complainant, but that when he reached the school the Complainant herself told him that it was Vincent. He further acknowledged that his statement did not contain the name of the Appellant or Dan Boke as the assailant.
More significantly, PW5, who testified that she was the first person to interact with the Complainant after the incident, stated that the Complainant told her that the assailant was a stranger. PW5 maintained in cross-examination that she did not know the person who defiled the Complainant and that the Complainant had described the assailant as a stranger.
The evidence of PW5 therefore appears, on the face of it, to conflict with the evidence of PW1 that the Appellant was a person she knew very well and with the subsequent account given to PW2 and PW4 identifying Vincent as the perpetrator.
The Court must distinguish between contradictions which go to the root of the prosecution case and minor discrepancies which do not affect the substance of the evidence. Here, the discrepancy concerning whether the assailant was a stranger or a person known to PW1 is not a trivial discrepancy because the identity of the perpetrator is a central issue in the case.
Nevertheless, having subjected the evidence to a fresh evaluation, I do not consider the discrepancy sufficient, in the circumstances of this case, to create a reasonable doubt as to the Appellant's identity.
PW1 was the victim and an eye witness to the incident. She testified that the Appellant was her neighbour and that she knew him well. The incident occurred in circumstances in which she was physically with the perpetrator. She described him by name and subsequently identified him to her father and to the police.
The fact that PW2 was initially given a different name does not, by itself, establish that PW1's subsequent identification of Vincent was false. Indeed, PW2's evidence was that the Complainant herself, when he reached the school, identified the perpetrator as Vincent.
The evidence of PW5 presents a genuine inconsistency, but PW5 did not witness the offence. Her evidence concerning the identity of the perpetrator was based upon what the child allegedly told her shortly after the incident. The Court must therefore attach greater weight to PW1's direct evidence concerning the person who assaulted her, provided that such evidence is otherwise credible. This court has considered the circumstances under which PW1 encountered the Appellant. She said she knew him as a neighbour. There was no evidence that she had only a fleeting opportunity to observe an unknown person. Her evidence was that the Appellant approached her, spoke to her, held her hand and led her into the bush. The interaction was therefore sufficiently prolonged for recognition. After defiling her he even had the audacity to cause her to bathe with an intention of concealing his trails as the perpetrator. This court is consequently satisfied that the identification of the Appellant was by recognition and not by a mere dock identification of an unknown person.
The Appellant raised an alibi, stating that he was working at a mining company and was away from home. However, he did not give the names of his alleged colleagues or produce any documentation to support the alleged presence at work. More importantly, the burden remained upon the prosecution throughout to prove that he was the perpetrator. The failure of the defence to establish the alibi does not itself prove guilt; rather, the question is whether the prosecution evidence, considered as a whole, displaced the alibi and established guilt beyond reasonable doubt. Having reconsidered the evidence this court finds that the prosecution evidence displaced the Appellant’s defence of alibi.
The essential elements of the offence were therefore established. The complainant was a child aged 11 years; there was proof of penetration; and the evidence sufficiently established that it was the Appellant who caused the penetration. The fact that the complainant was aged 11 years is material because, under Section 8(1) of the Sexual Offences Act, a person who intentionally and unlawfully causes penetration with a child commits the offence of defilement. The prosecution was therefore not required to prove consent.
The prosecution proved the charge beyond reasonable doubt.
The Appellant complained that the trial court failed to comply with Article 50(2)(g) and (h) of the Constitution.
Article 50(2)(g) guarantees an accused person the right to choose, and be represented by, an advocate and to be informed of that right promptly. Article 50(2)(h) concerns the right to have an advocate assigned by the State at State expense where substantial injustice would otherwise result.
The record before this Court shows that the Appellant participated in the trial and was represented by Counsel. No particular instance has been identified in which the trial court denied him the right to choose or be represented by an advocate, nor has the Appellant demonstrated that he applied for State-funded representation and was denied the same in circumstances contemplated by Article 50(2)(h).
A general assertion that Article 50(2)(g) and (h) was not complied with, without demonstrating the particular violation and the prejudice occasioned thereby, cannot, in the circumstances of this appeal, justify the quashing of an otherwise properly supported conviction. This ground therefore fails.
The Appellant was sentenced to thirty (30) years' imprisonment. The offence under Section 8(3) of the Sexual Offences Act, where the child is aged between 12 and 15 years, attracts a minimum term of imprisonment of twenty years. In this case, the complainant was 11 years old and the applicable statutory provision was Section 8(2), as charged by the prosecution and found by the trial court.
The sentence imposed by the trial court was therefore within the statutory framework. The principles governing interference with sentence on appeal are well settled. An appellate court does not ordinarily substitute its own discretion for that of the sentencing court merely because it would have imposed a different sentence. Interference is justified where the trial court acted on an erroneous principle, overlooked a material factor, took into account an irrelevant factor, or imposed a sentence that is manifestly excessive or otherwise unlawful.
The Appellant is a first offender and has expressed remorse. Those are mitigating considerations. However, they must be balanced against the circumstances of the offence. The complainant was a child of only 11 years. The evidence was that the Appellant took her into a bush, pushed her to the ground, removed her clothing and forcibly defiled her. He further threatened her with a panga when she screamed and compelled her to bathe in the river.
Those circumstances are aggravating. The offence was committed against a particularly vulnerable child and involved force, intimidation and threats.
In those circumstances, I am not persuaded that the learned trial Magistrate acted on an erroneous principle or that the sentence of thirty years' imprisonment was manifestly excessive so as to warrant appellate interference.
The fact that the Appellant is a first offender and has expressed remorse does not, in the circumstances, outweigh the aggravating features of the offence. This court therefore declines to interfere with the sentence.
Having independently re-evaluated the evidence, I find that the prosecution proved beyond reasonable doubt that:
i. the complainant was a child aged 11 years;
ii. there was unlawful penetration;
iii. the penetration was intentionally caused by the Appellant; and
iv. the Appellant was properly identified as the perpetrator.
Although there were discrepancies in the evidence, particularly concerning the initial description of the assailant as a stranger and the reference by PW2 to another name, those discrepancies do not, when the evidence is considered as a whole, create a reasonable doubt.
It is further found that the Appellant's constitutional right has not been violated and that the sentence imposed was lawful and not shown to be manifestly excessive.
Consequently, the appeal against conviction and sentence is dismissed.
The conviction of the Appellant for the offence of defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act is hereby upheld.
The sentence of thirty (30) years' imprisonment is likewise upheld.
The Appellant shall be entitled to the benefit of the period spent in custody prior to sentence from 12 th June2023 to 14 th May 2024 in accordance with Section 333(2) of the Criminal Procedure Code.
Orders accordingly.
DATED, SIGNED AND DELIVERED AT MIGORI THIS 17 TH DAY OF SEPTEMBER 2026.