1. The appellant was charged with the offence of defilement, contrary to section 8(1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006. It was alleged that on the 11th day of December 2017, at Nzaumi Location in Migwani Sub-County within Kitui County, he intentionally caused the penetration of his male genital organ, namely his penis, into the female genital organ, namely the vagina, of Alice Mwako alias Catherine Femea, a child aged 14 years and 8 months.
2. In the alternative, he was charged with committing an indecent act with a child, contrary to section 11(1) of the same Act. The particulars of the alternative charge were that, on the same date and at the same place, he intentionally caused the contact of his male genital organ, namely his penis, with the female genital organ, namely the vagina, of the same complainant.
3. PW1, A.M., the complainant, stated that she was born in 2003 and was a Form 2 student at Kyang’i Secondary School. She recalled that on 11th December 2017, she was with her nephew, Musila, herding her father’s cows. At about 1.00 p.m., they took the cows to a well to drink water, where they encountered a man whom she did not know before the incident. The man ordered them to proceed towards a dry riverbed and to undress. Musila complied, while she refused. The man then grabbed her, forcefully threw her to the ground, undressed her and defiled her for about 30 minutes as Musila remained lying face down.
4. She further testified that after the incident, the man ordered her and Musila to hit each other with a stone. When they refused, he hit her on the head with a stone and threatened to kill her, prompting her to run away naked to the home of Martha Kalowe. Martha gave her clothes and called her mother. She subsequently reported the matter at Migwani Police Station and was taken to Migwani Sub-District Hospital, where she was examined and treated. She identified her treatment notes dated 11th December 2017, Post Rape Care Form dated 11th December 2017, P3 Form dated 13th December 2017 and her birth certificate showing that she was born on 21st February 2003. She maintained that although she did not know the appellant before the incident, she saw him clearly during the ordeal, which lasted about 30 minutes and occurred at about 1.00 p.m.
5. PW2, SMM, testified that he was aged 12 years and was a Class 6 pupil at Kithune Primary School. He recalled that on 11th December 2017, at about 1.00 p.m., he was herding livestock with the complainant when they were accosted by a man whom he did not know before the incident. He stated that the man defiled the complainant while he lay facing downwards and thereafter injured her on the head with a stone.
6. PW4, Martha Musyki Kalovye, testified that she found the complainant in her farm, naked. The complainant reported to her that she had been undressed and raped by Vundi Mubea. She gave the complainant clothes and called her mother, PW3, Janet Mwakio. The complainant thereafter informed her mother that she had been defiled by Vundi Muvea.
7. PW5, Dr. Christopher Waihenya, examined the complainant on 11th December 2017. He observed sand on her head, tenderness at the back of the head, bruises on the labia, a freshly broken hymen, active bleeding on the vaginal walls and fresh blood from the vagina. In his opinion, the findings confirmed penetration. He produced the treatment notes dated 11th December 2017 as PExh. 1, the P3 Form dated 11th December 2017 as PExh. 2 and the PRC Form dated 11th December 2017 as PExh. 3.
8. PW4, CPL Vivian Mbinya, testified that she investigated the case in which the complainant was alleged to have been defiled by a person known to her as Vundi Mubea. She produced the complainant’s birth certificate as PExh. 4, which showed that she was born on 21st February 2003.
9. PW5, Corporal Vivian Mbinya, the Investigating Officer, testified that a report of defilement was made at Migwani Police Station on 11th December 2017 at about 8.24 p.m., vide OB No. 24 of 11th December 2017. She investigated the matter and produced the complainant’s birth certificate as PExh. 4, which showed that she was born on 21st February 2003. She also stated that the complainant was subsequently examined at Migwani Sub-County Hospital.
10. In his sworn defence, the appellant denied committing the offence. He stated that in January 2017, he travelled home to visit his parents and later found himself at Mathari Mental Hospital before being taken to court, where he heard witnesses testify that he had raped someone. He maintained that the complainant was unknown to him.
11. At the close of the trial, the trial magistrate convicted the Appellant on the main count on 16th August 2023 and on the same date sentenced him to serve 25 years imprisonment.
12. Aggrieved by the conviction and sentence, the appellant lodged the present appeal by the Petition of Appeal dated 4th July 2024, in which he raised the following grounds:
1) THAT the learned trial magistrate erred in law and fact by finding that the evidence adduced by the doctor was insufficient to support a conviction.
2) THAT the learned trial magistrate erred in law and fact by finding that the first report made by the complainant was doubtful when considered alongside the testimony of the other witnesses.
3) THAT the learned trial magistrate erred in law and fact by convicting the appellant on the basis of evidence from witnesses which was contradictory.
4) THAT the learned trial magistrate erred in law and fact by failing to give due consideration to the appellant’s plausible defence.
5) THAT the learned trial magistrate erred in law and fact by relying on prosecution evidence that was riddled with contradictions and discrepancies, thereby arriving at a selective finding.
6) THAT the appellant sought to be furnished with a copy of the trial record and judgment to enable him to raise further reasonable grounds during the hearing of the appeal.
13. The appellant filed written submissions dated 18th August 2026 challenging both the conviction and sentence. On the conviction, he submitted that the prosecution evidence was insufficient to establish the charge of defilement beyond reasonable doubt. He challenged the medical evidence, pointing to the discrepancy between the complainant’s assertion that the assailant was unknown to her and the evidence suggesting that he was known to her. He also questioned the dates appearing on the PRC and P3 Forms and the absence of medical findings corresponding to the duration of the alleged defilement.
14. On his defence, the appellant submitted that his sworn account had not been adequately considered or rebutted and maintained that the burden of proof remained throughout on the prosecution.
15. As regards sentence, he submitted that the trial court failed to give adequate consideration to the circumstances of the case and his personal circumstances, including his history of psychiatric treatment and admissions at Mathari National Teaching and Referral Hospital. He contended that these matters ought to have been taken into account in mitigation. He therefore urged this Court to allow the appeal, quash the conviction and set aside the sentence or, in the alternative, reduce the sentence.
16. The respondent did not file submissions, although it had been afforded an opportunity to do so.
17. Having considered the grounds of appeal, the evidence on record and the submissions by the appellant, this Court finds the following issues arising for determination:
1) Whether the prosecution proved the offence of defilement beyond reasonable doubt.
2) Whether the appellant’s defence was properly considered.
3) Whether the conviction was merited
4) Whether the sentence imposed was lawful and appropriate.
18. As a first appellate court, this Court is required to re-evaluate and re-analyse the evidence afresh and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify, as stated in Okeno v Republic [1972] EA 32.
19. The first issue for consideration is whether the prosecution proved beyond reasonable doubt that the appellant was the person who defiled the complainant. This Court has considered the evidence relating to age, penetration and identification, together with the circumstances in which the appellant was linked to the offence.
20. The complainant’s birth certificate, PExh. 4, showed that she was born on 21st February 2003. The alleged offence occurred on 11th December 2017, when she was fourteen years old. The documentary evidence therefore provided sufficient basis for the trial court’s finding that the complainant was a child within the meaning of the Sexual Offences Act.
21. On penetration, the complainant testified that the appellant forced her to undress and thereafter defiled her. Her account was supported by the medical evidence, which recorded bruises on the labia, a freshly broken hymen, active bleeding on the vaginal walls and fresh blood from the vagina. The examining doctor formed the opinion that penetration had occurred. The treatment notes, P3 form and PRC form were also produced. This Court has considered the discrepancies raised by the appellant concerning the medical documentation, but they do not detract from the medical findings regarding penetration.
22. The central question is whether the evidence sufficiently established that the person who committed the act was the appellant. The complainant described the appellant as the person who accosted her and PW2 while they were grazing cattle, took them aside, questioned them, forced her to undress and thereafter defiled her. PW2 placed the same person at the scene and stated that he disclosed his name as Muvea Vundi, before ordering PW2 to lie facing away. The prosecution therefore relied principally on the evidence of the two witnesses to establish the appellant’s identity.
23. This Court has considered the fact that both witnesses stated that they did not know the appellant before the material date. Their evidence was consequently one of identification of a stranger rather than recognition of a person previously known to them. Although PW2 stated that the person at the scene gave his name as Muvea Vundi, the prosecution did not explain how the witnesses came to know that the person they encountered was indeed the person bearing that name, or how that information was verified. There was no evidence of any prior acquaintance between the witnesses and the appellant and no independent evidence connecting the name allegedly given at the scene to the person who was subsequently charged.
24. The identification relied upon was made in the dock, there having been no identification parade. In Biruri v Republic [2025] KECA 375 (KLR),the Court of Appeal considered the identification of a perpetrator who was previously unknown to the complainant and held that where the circumstances called for an identification parade, the absence of such a parade raised a real possibility of mistaken identity. The Court stressed that casual identification at the police station and in court was unsafe in such circumstances and that the prosecution remained under the obligation to prove identity beyond reasonable doubt.
25. The circumstances of the appellant’s arrest further require consideration. The Investigating Officer did not know the appellant before the case, yet the prosecution did not establish who arrested him, when or where the arrest occurred, or what information led the police to him. In particular, there was no evidence showing how the name allegedly disclosed at the scene resulted in the appellant being traced and arrested. This omission is material because the prosecution had to establish a reliable evidential link between the stranger encountered at the scene and the appellant who eventually stood trial.
26. In Zacharia Kokot Londopash v Republic [2015] KECA 809 (KLR), the Court of Appeal considered a similar gap in the prosecution evidence concerning the connection between the report of an offence, the description of the suspect and his eventual arrest. The Court held that where it remained unexplained how the description led to the arrest, the gap left room for speculation and created doubt regarding the appellant’s connection with the offence.
27. The prompt disclosure of the incident by the complainant and her condition shortly thereafter provide support for the occurrence of the sexual assault, while the medical evidence establishes penetration. Neither, though, supplies the missing link as to the identity of the perpetrator. The evidence of what happened to the complainant must therefore be distinguished from the evidence establishing who committed the act.
28. The burden of proof remained throughout on the prosecution to establish the appellant’s guilt beyond reasonable doubt. The appellant was not required to explain the gaps in the prosecution evidence concerning his identification, the alleged disclosure of his name or the circumstances leading to his arrest. As stated in Woolmington v DPP [1935] AC 462, the burden of proving the guilt of an accused person rests throughout on the prosecution and does not shift to the accused merely because he has been called upon to answer the case against him.
29. Upon consideration of the evidence as a whole, this Court finds that the prosecution proved the complainant’s age and penetration, but failed to establish beyond reasonable doubt that the appellant was the person who defiled her. The identification of a stranger was made in the dock without an identification parade, and the prosecution did not sufficiently explain how the appellant was traced and arrested. The evidence on identity therefore falls short of the required standard of proof.
30. The third issue for consideration is whether the appellant’s defence was properly considered by the trial court. In his sworn defence, the appellant denied committing the offence and stated that the complainant was unknown to him. He explained that he had travelled home in January 2017 to visit his parents, later found himself at Mathari Mental Hospital and subsequently in court, where he heard the witnesses testify that he had raped someone.
31. The significance of the defence lay principally in the question of how the appellant was connected to the offence. PW1 and PW2 both stated that they did not know him before the material date. PW2 testified that the person who accosted them disclosed his name as Muvea Vundi. The prosecution evidence did not, in turn, explain how that name was verified or how it led to the appellant. More importantly, the circumstances of the appellant’s arrest were not brought out. There was no evidence as to who arrested him, when or where the arrest took place, or what information led the police to him.
32. These matters assumed greater significance because the case against the appellant depended substantially on the identification evidence of persons who had not known him before the incident. The trial court was therefore required to examine the appellant’s denial in the context of those circumstances and the evidential link between the person encountered at the scene and the appellant who was eventually charged.
33. Upon re-evaluation of the record, this Court finds that the trial magistrate considered the appellant’s defence but did not sufficiently address the evidential gaps relating to his identification and arrest. Had those matters been considered together with the defence and the evidence of PW1 and PW2, they would have raised a reasonable doubt as to whether the appellant was the person who committed the offence. This Court therefore finds that the appellant was entitled to the benefit of that doubt.
34. The fourth issue for consideration is whether the conviction was merited. This Court has already found that the prosecution proved the complainant’s age and established penetration. The remaining question was whether the evidence sufficiently connected the appellant to the offence.
35. As analysed above, the identification evidence was inadequate, particularly because PW1 and PW2 did not know the appellant before the incident, no identification parade was conducted, and the circumstances leading to his arrest were not explained. The evidence therefore left a reasonable doubt as to the appellant’s participation in the offence.
36. Accordingly, this Court finds that the conviction was not safe and cannot stand.
37. The fifth issue for consideration is whether the sentence imposed was lawful and appropriate. The appellant was convicted and sentenced to 25 years’ imprisonment on 16th August 2023.
38. The appellant challenged the sentence on the basis that the trial court did not adequately consider the circumstances of the case and his mitigation. Having found that the conviction was not safe, the sentence imposed pursuant to that conviction cannot be sustained.
39. In the result, the appeal succeeds. The conviction for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act is quashed and the sentence of 25 years’ imprisonment is set aside.
40. The appellant shall be released forthwith unless otherwise lawfully held.
2. In the alternative, he was charged with committing an indecent act with a child, contrary to section 11(1) of the same Act. The particulars of the alternative charge were that, on the same date and at the same place, he intentionally caused the contact of his male genital organ, namely his penis, with the female genital organ, namely the vagina, of the same complainant.
3. PW1, A.M., the complainant, stated that she was born in 2003 and was a Form 2 student at Kyang’i Secondary School. She recalled that on 11th December 2017, she was with her nephew, Musila, herding her father’s cows. At about 1.00 p.m., they took the cows to a well to drink water, where they encountered a man whom she did not know before the incident. The man ordered them to proceed towards a dry riverbed and to undress. Musila complied, while she refused. The man then grabbed her, forcefully threw her to the ground, undressed her and defiled her for about 30 minutes as Musila remained lying face down.
4. She further testified that after the incident, the man ordered her and Musila to hit each other with a stone. When they refused, he hit her on the head with a stone and threatened to kill her, prompting her to run away naked to the home of Martha Kalowe. Martha gave her clothes and called her mother. She subsequently reported the matter at Migwani Police Station and was taken to Migwani Sub-District Hospital, where she was examined and treated. She identified her treatment notes dated 11th December 2017, Post Rape Care Form dated 11th December 2017, P3 Form dated 13th December 2017 and her birth certificate showing that she was born on 21st February 2003. She maintained that although she did not know the appellant before the incident, she saw him clearly during the ordeal, which lasted about 30 minutes and occurred at about 1.00 p.m.
5. PW2, SMM, testified that he was aged 12 years and was a Class 6 pupil at Kithune Primary School. He recalled that on 11th December 2017, at about 1.00 p.m., he was herding livestock with the complainant when they were accosted by a man whom he did not know before the incident. He stated that the man defiled the complainant while he lay facing downwards and thereafter injured her on the head with a stone.
6. PW4, Martha Musyki Kalovye, testified that she found the complainant in her farm, naked. The complainant reported to her that she had been undressed and raped by Vundi Mubea. She gave the complainant clothes and called her mother, PW3, Janet Mwakio. The complainant thereafter informed her mother that she had been defiled by Vundi Muvea.
7. PW5, Dr. Christopher Waihenya, examined the complainant on 11th December 2017. He observed sand on her head, tenderness at the back of the head, bruises on the labia, a freshly broken hymen, active bleeding on the vaginal walls and fresh blood from the vagina. In his opinion, the findings confirmed penetration. He produced the treatment notes dated 11th December 2017 as PExh. 1, the P3 Form dated 11th December 2017 as PExh. 2 and the PRC Form dated 11th December 2017 as PExh. 3.
8. PW4, CPL Vivian Mbinya, testified that she investigated the case in which the complainant was alleged to have been defiled by a person known to her as Vundi Mubea. She produced the complainant’s birth certificate as PExh. 4, which showed that she was born on 21st February 2003.
9. PW5, Corporal Vivian Mbinya, the Investigating Officer, testified that a report of defilement was made at Migwani Police Station on 11th December 2017 at about 8.24 p.m., vide OB No. 24 of 11th December 2017. She investigated the matter and produced the complainant’s birth certificate as PExh. 4, which showed that she was born on 21st February 2003. She also stated that the complainant was subsequently examined at Migwani Sub-County Hospital.
10. In his sworn defence, the appellant denied committing the offence. He stated that in January 2017, he travelled home to visit his parents and later found himself at Mathari Mental Hospital before being taken to court, where he heard witnesses testify that he had raped someone. He maintained that the complainant was unknown to him.
11. At the close of the trial, the trial magistrate convicted the Appellant on the main count on 16th August 2023 and on the same date sentenced him to serve 25 years imprisonment.
12. Aggrieved by the conviction and sentence, the appellant lodged the present appeal by the Petition of Appeal dated 4th July 2024, in which he raised the following grounds:
1) THAT the learned trial magistrate erred in law and fact by finding that the evidence adduced by the doctor was insufficient to support a conviction.
2) THAT the learned trial magistrate erred in law and fact by finding that the first report made by the complainant was doubtful when considered alongside the testimony of the other witnesses.
3) THAT the learned trial magistrate erred in law and fact by convicting the appellant on the basis of evidence from witnesses which was contradictory.
4) THAT the learned trial magistrate erred in law and fact by failing to give due consideration to the appellant’s plausible defence.
5) THAT the learned trial magistrate erred in law and fact by relying on prosecution evidence that was riddled with contradictions and discrepancies, thereby arriving at a selective finding.
6) THAT the appellant sought to be furnished with a copy of the trial record and judgment to enable him to raise further reasonable grounds during the hearing of the appeal.
13. The appellant filed written submissions dated 18th August 2026 challenging both the conviction and sentence. On the conviction, he submitted that the prosecution evidence was insufficient to establish the charge of defilement beyond reasonable doubt. He challenged the medical evidence, pointing to the discrepancy between the complainant’s assertion that the assailant was unknown to her and the evidence suggesting that he was known to her. He also questioned the dates appearing on the PRC and P3 Forms and the absence of medical findings corresponding to the duration of the alleged defilement.
14. On his defence, the appellant submitted that his sworn account had not been adequately considered or rebutted and maintained that the burden of proof remained throughout on the prosecution.
15. As regards sentence, he submitted that the trial court failed to give adequate consideration to the circumstances of the case and his personal circumstances, including his history of psychiatric treatment and admissions at Mathari National Teaching and Referral Hospital. He contended that these matters ought to have been taken into account in mitigation. He therefore urged this Court to allow the appeal, quash the conviction and set aside the sentence or, in the alternative, reduce the sentence.
16. The respondent did not file submissions, although it had been afforded an opportunity to do so.
17. Having considered the grounds of appeal, the evidence on record and the submissions by the appellant, this Court finds the following issues arising for determination:
1) Whether the prosecution proved the offence of defilement beyond reasonable doubt.
2) Whether the appellant’s defence was properly considered.
3) Whether the conviction was merited
4) Whether the sentence imposed was lawful and appropriate.
18. As a first appellate court, this Court is required to re-evaluate and re-analyse the evidence afresh and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify, as stated in Okeno v Republic [1972] EA 32.
19. The first issue for consideration is whether the prosecution proved beyond reasonable doubt that the appellant was the person who defiled the complainant. This Court has considered the evidence relating to age, penetration and identification, together with the circumstances in which the appellant was linked to the offence.
20. The complainant’s birth certificate, PExh. 4, showed that she was born on 21st February 2003. The alleged offence occurred on 11th December 2017, when she was fourteen years old. The documentary evidence therefore provided sufficient basis for the trial court’s finding that the complainant was a child within the meaning of the Sexual Offences Act.
21. On penetration, the complainant testified that the appellant forced her to undress and thereafter defiled her. Her account was supported by the medical evidence, which recorded bruises on the labia, a freshly broken hymen, active bleeding on the vaginal walls and fresh blood from the vagina. The examining doctor formed the opinion that penetration had occurred. The treatment notes, P3 form and PRC form were also produced. This Court has considered the discrepancies raised by the appellant concerning the medical documentation, but they do not detract from the medical findings regarding penetration.
22. The central question is whether the evidence sufficiently established that the person who committed the act was the appellant. The complainant described the appellant as the person who accosted her and PW2 while they were grazing cattle, took them aside, questioned them, forced her to undress and thereafter defiled her. PW2 placed the same person at the scene and stated that he disclosed his name as Muvea Vundi, before ordering PW2 to lie facing away. The prosecution therefore relied principally on the evidence of the two witnesses to establish the appellant’s identity.
23. This Court has considered the fact that both witnesses stated that they did not know the appellant before the material date. Their evidence was consequently one of identification of a stranger rather than recognition of a person previously known to them. Although PW2 stated that the person at the scene gave his name as Muvea Vundi, the prosecution did not explain how the witnesses came to know that the person they encountered was indeed the person bearing that name, or how that information was verified. There was no evidence of any prior acquaintance between the witnesses and the appellant and no independent evidence connecting the name allegedly given at the scene to the person who was subsequently charged.
24. The identification relied upon was made in the dock, there having been no identification parade. In Biruri v Republic [2025] KECA 375 (KLR),the Court of Appeal considered the identification of a perpetrator who was previously unknown to the complainant and held that where the circumstances called for an identification parade, the absence of such a parade raised a real possibility of mistaken identity. The Court stressed that casual identification at the police station and in court was unsafe in such circumstances and that the prosecution remained under the obligation to prove identity beyond reasonable doubt.
25. The circumstances of the appellant’s arrest further require consideration. The Investigating Officer did not know the appellant before the case, yet the prosecution did not establish who arrested him, when or where the arrest occurred, or what information led the police to him. In particular, there was no evidence showing how the name allegedly disclosed at the scene resulted in the appellant being traced and arrested. This omission is material because the prosecution had to establish a reliable evidential link between the stranger encountered at the scene and the appellant who eventually stood trial.
26. In Zacharia Kokot Londopash v Republic [2015] KECA 809 (KLR), the Court of Appeal considered a similar gap in the prosecution evidence concerning the connection between the report of an offence, the description of the suspect and his eventual arrest. The Court held that where it remained unexplained how the description led to the arrest, the gap left room for speculation and created doubt regarding the appellant’s connection with the offence.
27. The prompt disclosure of the incident by the complainant and her condition shortly thereafter provide support for the occurrence of the sexual assault, while the medical evidence establishes penetration. Neither, though, supplies the missing link as to the identity of the perpetrator. The evidence of what happened to the complainant must therefore be distinguished from the evidence establishing who committed the act.
28. The burden of proof remained throughout on the prosecution to establish the appellant’s guilt beyond reasonable doubt. The appellant was not required to explain the gaps in the prosecution evidence concerning his identification, the alleged disclosure of his name or the circumstances leading to his arrest. As stated in Woolmington v DPP [1935] AC 462, the burden of proving the guilt of an accused person rests throughout on the prosecution and does not shift to the accused merely because he has been called upon to answer the case against him.
29. Upon consideration of the evidence as a whole, this Court finds that the prosecution proved the complainant’s age and penetration, but failed to establish beyond reasonable doubt that the appellant was the person who defiled her. The identification of a stranger was made in the dock without an identification parade, and the prosecution did not sufficiently explain how the appellant was traced and arrested. The evidence on identity therefore falls short of the required standard of proof.
30. The third issue for consideration is whether the appellant’s defence was properly considered by the trial court. In his sworn defence, the appellant denied committing the offence and stated that the complainant was unknown to him. He explained that he had travelled home in January 2017 to visit his parents, later found himself at Mathari Mental Hospital and subsequently in court, where he heard the witnesses testify that he had raped someone.
31. The significance of the defence lay principally in the question of how the appellant was connected to the offence. PW1 and PW2 both stated that they did not know him before the material date. PW2 testified that the person who accosted them disclosed his name as Muvea Vundi. The prosecution evidence did not, in turn, explain how that name was verified or how it led to the appellant. More importantly, the circumstances of the appellant’s arrest were not brought out. There was no evidence as to who arrested him, when or where the arrest took place, or what information led the police to him.
32. These matters assumed greater significance because the case against the appellant depended substantially on the identification evidence of persons who had not known him before the incident. The trial court was therefore required to examine the appellant’s denial in the context of those circumstances and the evidential link between the person encountered at the scene and the appellant who was eventually charged.
33. Upon re-evaluation of the record, this Court finds that the trial magistrate considered the appellant’s defence but did not sufficiently address the evidential gaps relating to his identification and arrest. Had those matters been considered together with the defence and the evidence of PW1 and PW2, they would have raised a reasonable doubt as to whether the appellant was the person who committed the offence. This Court therefore finds that the appellant was entitled to the benefit of that doubt.
34. The fourth issue for consideration is whether the conviction was merited. This Court has already found that the prosecution proved the complainant’s age and established penetration. The remaining question was whether the evidence sufficiently connected the appellant to the offence.
35. As analysed above, the identification evidence was inadequate, particularly because PW1 and PW2 did not know the appellant before the incident, no identification parade was conducted, and the circumstances leading to his arrest were not explained. The evidence therefore left a reasonable doubt as to the appellant’s participation in the offence.
36. Accordingly, this Court finds that the conviction was not safe and cannot stand.
37. The fifth issue for consideration is whether the sentence imposed was lawful and appropriate. The appellant was convicted and sentenced to 25 years’ imprisonment on 16th August 2023.
38. The appellant challenged the sentence on the basis that the trial court did not adequately consider the circumstances of the case and his mitigation. Having found that the conviction was not safe, the sentence imposed pursuant to that conviction cannot be sustained.
39. In the result, the appeal succeeds. The conviction for the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act is quashed and the sentence of 25 years’ imprisonment is set aside.
40. The appellant shall be released forthwith unless otherwise lawfully held.