(Being an Appeal against the Judgment by Hon. M.K.Kyalo in Chief Magistrate’s Court at Nakuru Case No. E095 of 2022, Delivered on 9th August, 2024).
1. Many are the decisions on the burden and standard of proof in any criminal case. In respect I find the decision of Woolmington Vs DPP (1935) AC 462, apposite, where it was remarked that in English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
2. This being a first appeal, the court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal is to be well deliberated and resolutely expressed. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.
3. RWN (PW1) told court that she is 13 years old and in grade six. On 5th October, 2022 she had gone to buy tomatoes and, on his way, back, she met the appellant whom she knows as Baba Cheru. The appellant told her that he was in love and he carried him to the bush where she defiled her and thereafter released her to go home. She took a shower and went to sleep. After sometimes, the events of that day were revealed to Simeon who passed the message to the victim’s mother. The minor was taken to the hospital for examination.
4. Under cross examination, she said that indeed the incident took place in a bush and that she did not disclose anything as she was scared of her mum.
5. Jane Njeri Ndungu(PW2) is a mother to the minor herein who was born in the year 2009 and so she is 13 years old. She noticed that the victim was not sitting well in church and so she asked the Sunday school teacher to talk to her and find out what was happening. The news was passed to her husband of the events that took place. She took her to hospital for examination and a report was made to the police station. The P3 Form was marked as MFI 1 and the Birth certificate as Exhibit 2. Under cross examination, the witness said that the victim disclosed the scene where the incident took place. The incident took place at about 7pm.
6. Inspector Jane Chepchumba (PW3) is the investigation officer in the matter and reiterated the testimony of the victim on what happened on the 5th October 2022. She further told court that after being defiled on 5th October, 2025, she did not disclose to her mother. On 9th October 2022, while in church, the victim disclosed the news to her Sunday school teacher who in turn broke the news to her father. The mother took the child to hospital where she was examined and issued with P3 Form and PRC Form which were duly filled. The witness further said that the child had been defiled by another man by the name Mark Masai in another case. The appellant was a neighbour to the victim but has since relocated a kilometre away. Under cross examination, the witness said that the appellant took her to a small thicket and defiled her.
7. Kiarie Simeon Njuguna (PW4) said on 9th October 2022, the victim looked disturbed and on inquiry, she disclosed that the appellant who was their tenant had defiled her. She further said that another man by the name Masai defiled her too on another occasion. The witness disclosed to the father to the victim and the matter was reported to the police and he recorded his statement. Under cross examination, the witness said that he is a Sunday school teacher and pastor and he has no relationship with the victim.
8. Jacob Limo (PW5) told the court that he is a Clinician at Njoro Sub -County Hospital. He filled a P3 Form for the victim in this case on 11th October 2022 following a history of defilement. On examination, the victim had a perforated hymen- virginity had been lost for a while. She had whitish vaginal discharge. The witness produced the P3Form as exhibit 1, PRC Form as Exhibit 3 and treatment notes as Exhibit 4.
9. Being satisfied with the evidence at hand, the Investigation Officer charged the appellant with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006 and particulars of the offence being that on the 5th day of October 2022 at Njokerio area in Njoro Sub-County within Nakuru County unlawfully and intentionally committed an act by inserting a male genital organ (penis) into a female genital organ(vagina) of RWN a child aged 13 years.
10. In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 and particulars of the offence being that on the 5th day of October 2022 at Njokerio area in Njoro Sub-County within Nakuru County unlawfully and intentionally committed an indecent act to RWN a child aged 13 years by touching her genital organ namely vagina with your genital organ namely penis.
11. In his sworn testimony, the appellant Weldon Yegon, said that he did not commit the offence and prayed to be discharged from the case because he is innocent.
12. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;
a. That the learned trial Magistrate erred in law and fact by failing to note that the charge of defilement was not proved against the appellant to the required standard.
b. That the learned trial Magistrate erred in law and fact by failing to note that the prosecution case was marred with contradictions which vitiated the credibility of the prosecution witnesses.
c. That the learned trial Magistrate erred in law and fact by conducting a trial which was prejudicial to the appellant which was not in accordance with article 50(1)(2)© and Article 25© of the Constitution.
Analysis and Determination:
13. I have carefully considered the Petition of Appeal, and considered the three grounds of appeal and I propose to collapse them into one issue for determination; Did the prosecution prove their case beyond reasonable doubt?
14. In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the Court stated: “ That the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.”
15. In Hussein Bassita Vs Uganda CR Appeal No. 35 of 1995 it was held as follows: “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove it’s case such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
16. In Hudson Ali Mwachungo Vs R {2016} eKLR it was held by the Court of Appeal as follows: “ The importance of proving the age of the victim of defilement under the Sexual Offences Act, by cogent evidence cannot be gain said. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge, because the prescribed sentence is dependent on the age of the victim.
17. In Hilary Nyongesa Vs Republic HCCRA No. 123 of 2009 the court held that: “I n defilement cases medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim. In the case of any other evidence apart from medical evidence, age may also be proved by a birth certificate, the victim’s parents or guardian and by observance and common sense.”
18. On age of the victim , there was a birth certificate produced to show that the victim was born on the 8th October 2009 and so 13 years at the time the defilement was committed. In terms of the definition of a Child, the victim was therefore, a minor.
19. On penetration, PW5 told court that upon examination of the victim had a perforated hymen- virginity had been lost for a while. She had whitish vaginal discharge. Besides, scientific proof on penetration, the victim told court that indeed she was defiled on 5th October 2022 and did disclose to Kiarie Simeon Njuguna (PW4).
20. On positive identification of the assailant, the victim knows the appellant as baba chiru besides having been a tenant in their compound.PW2 equally told court that the appellant was her tenant in the compound and so well known to them. In view of the evidence, there is no doubt as to the identity of the appellant.
21. In conclusion I have perused the Judgement of the lower court and I note that the trial magistrate has meticulously analysed and contextualized the evidence and the elements of defilement.
22. Disposal:
a. The Appeal lacks merit. It is dismissed.
Delivered virtually this 9th September, 2026 in the presence of Mr Sagasi- Court Assistant. And in the absence of parties.
1. Many are the decisions on the burden and standard of proof in any criminal case. In respect I find the decision of Woolmington Vs DPP (1935) AC 462, apposite, where it was remarked that in English Criminal Law, one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner’s guilt subject to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, the prosecution has not made out the case and the prisoner is entitled to an acquittal.
2. This being a first appeal, the court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely. The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal is to be well deliberated and resolutely expressed. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.
3. RWN (PW1) told court that she is 13 years old and in grade six. On 5th October, 2022 she had gone to buy tomatoes and, on his way, back, she met the appellant whom she knows as Baba Cheru. The appellant told her that he was in love and he carried him to the bush where she defiled her and thereafter released her to go home. She took a shower and went to sleep. After sometimes, the events of that day were revealed to Simeon who passed the message to the victim’s mother. The minor was taken to the hospital for examination.
4. Under cross examination, she said that indeed the incident took place in a bush and that she did not disclose anything as she was scared of her mum.
5. Jane Njeri Ndungu(PW2) is a mother to the minor herein who was born in the year 2009 and so she is 13 years old. She noticed that the victim was not sitting well in church and so she asked the Sunday school teacher to talk to her and find out what was happening. The news was passed to her husband of the events that took place. She took her to hospital for examination and a report was made to the police station. The P3 Form was marked as MFI 1 and the Birth certificate as Exhibit 2. Under cross examination, the witness said that the victim disclosed the scene where the incident took place. The incident took place at about 7pm.
6. Inspector Jane Chepchumba (PW3) is the investigation officer in the matter and reiterated the testimony of the victim on what happened on the 5th October 2022. She further told court that after being defiled on 5th October, 2025, she did not disclose to her mother. On 9th October 2022, while in church, the victim disclosed the news to her Sunday school teacher who in turn broke the news to her father. The mother took the child to hospital where she was examined and issued with P3 Form and PRC Form which were duly filled. The witness further said that the child had been defiled by another man by the name Mark Masai in another case. The appellant was a neighbour to the victim but has since relocated a kilometre away. Under cross examination, the witness said that the appellant took her to a small thicket and defiled her.
7. Kiarie Simeon Njuguna (PW4) said on 9th October 2022, the victim looked disturbed and on inquiry, she disclosed that the appellant who was their tenant had defiled her. She further said that another man by the name Masai defiled her too on another occasion. The witness disclosed to the father to the victim and the matter was reported to the police and he recorded his statement. Under cross examination, the witness said that he is a Sunday school teacher and pastor and he has no relationship with the victim.
8. Jacob Limo (PW5) told the court that he is a Clinician at Njoro Sub -County Hospital. He filled a P3 Form for the victim in this case on 11th October 2022 following a history of defilement. On examination, the victim had a perforated hymen- virginity had been lost for a while. She had whitish vaginal discharge. The witness produced the P3Form as exhibit 1, PRC Form as Exhibit 3 and treatment notes as Exhibit 4.
9. Being satisfied with the evidence at hand, the Investigation Officer charged the appellant with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006 and particulars of the offence being that on the 5th day of October 2022 at Njokerio area in Njoro Sub-County within Nakuru County unlawfully and intentionally committed an act by inserting a male genital organ (penis) into a female genital organ(vagina) of RWN a child aged 13 years.
10. In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006 and particulars of the offence being that on the 5th day of October 2022 at Njokerio area in Njoro Sub-County within Nakuru County unlawfully and intentionally committed an indecent act to RWN a child aged 13 years by touching her genital organ namely vagina with your genital organ namely penis.
11. In his sworn testimony, the appellant Weldon Yegon, said that he did not commit the offence and prayed to be discharged from the case because he is innocent.
12. In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;
a. That the learned trial Magistrate erred in law and fact by failing to note that the charge of defilement was not proved against the appellant to the required standard.
b. That the learned trial Magistrate erred in law and fact by failing to note that the prosecution case was marred with contradictions which vitiated the credibility of the prosecution witnesses.
c. That the learned trial Magistrate erred in law and fact by conducting a trial which was prejudicial to the appellant which was not in accordance with article 50(1)(2)© and Article 25© of the Constitution.
Analysis and Determination:
13. I have carefully considered the Petition of Appeal, and considered the three grounds of appeal and I propose to collapse them into one issue for determination; Did the prosecution prove their case beyond reasonable doubt?
14. In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the Court stated: “ That the critical ingredients forming the offence of defilement are: age of the complainant, proof of penetration and positive identification of the assailant.”
15. In Hussein Bassita Vs Uganda CR Appeal No. 35 of 1995 it was held as follows: “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove it’s case such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”
16. In Hudson Ali Mwachungo Vs R {2016} eKLR it was held by the Court of Appeal as follows: “ The importance of proving the age of the victim of defilement under the Sexual Offences Act, by cogent evidence cannot be gain said. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge, because the prescribed sentence is dependent on the age of the victim.
17. In Hilary Nyongesa Vs Republic HCCRA No. 123 of 2009 the court held that: “I n defilement cases medical evidence is paramount in determining the age of the victim and the doctor is the only person who would professionally determine the age of the victim. In the case of any other evidence apart from medical evidence, age may also be proved by a birth certificate, the victim’s parents or guardian and by observance and common sense.”
18. On age of the victim , there was a birth certificate produced to show that the victim was born on the 8th October 2009 and so 13 years at the time the defilement was committed. In terms of the definition of a Child, the victim was therefore, a minor.
19. On penetration, PW5 told court that upon examination of the victim had a perforated hymen- virginity had been lost for a while. She had whitish vaginal discharge. Besides, scientific proof on penetration, the victim told court that indeed she was defiled on 5th October 2022 and did disclose to Kiarie Simeon Njuguna (PW4).
20. On positive identification of the assailant, the victim knows the appellant as baba chiru besides having been a tenant in their compound.PW2 equally told court that the appellant was her tenant in the compound and so well known to them. In view of the evidence, there is no doubt as to the identity of the appellant.
21. In conclusion I have perused the Judgement of the lower court and I note that the trial magistrate has meticulously analysed and contextualized the evidence and the elements of defilement.
22. Disposal:
a. The Appeal lacks merit. It is dismissed.
Delivered virtually this 9th September, 2026 in the presence of Mr Sagasi- Court Assistant. And in the absence of parties.