(Being an Appeal against the Judgment and Conviction of Principal Magistrate’s Court at Mariakani S.K Ngei PM in S.O No. 26 of 2020 delivered on 25 th March, 2021)
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. The particulars are that on the 8 th day of June, 2020 at around 1200hrs at Mkapuni area in Rabai Sub County of Kilifi County within the Coast Region unlawfully and intentionally committed an act which caused his male genital organ namely penis to penetrate into the male genital organ namely anus of R.C a child aged 6 years.
The appellant also faces an alternative charge 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 the 8 th day of June, 2020 at around 1200hrs at Mkapuni area in Rabai Sub County of Kilifi County within Coast Region unlawfully and intentionally committed an indecent act with a child aged 6 years namely R.C by touching his private parts using his penis.
The appellant pleaded not guilty to the charges when he was arraigned before the trial magistrate. The matter proceeded for hearing with the prosecution calling five witnesses to prove the charges against the appellant. The appellant was placed on his defence and he opted to give unsworn statement. In a judgment delivered on 25 th March, 2021 the appellant was found guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and accordingly convicted and subsequently sentenced to serve twenty-five years imprisonment.
Aggrieved by the conviction and sentence the appellant preferred this appeal. The appellant in a memorandum of appeal and amended grounds of appeal raised the following grounds:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove their case against the appellant beyond reasonable doubt as required by the law;
2. That the learned trial magistrate erred in law and facts by failing to consider sharp contradiction in breach of Section 163(1)(2) of the Evidence Act;
3. That the learned trial magistrate erred in law and facts by failing to consider that there was no cogent evidence to connect the appellant with the commission of the alleged offence;
4. The learned trial magistrate erred in law and facts by failing to adequately consider his defence;
The prosecution case was that complainant who testified as PW1 was a pupil at Mwawesa primary school. He told the court that on the material date he had gone to see his friend Kisembi at their house. While there the appellant got hold of his hand while watching television. He removed his trousers, placed him on a seat and defiled him. He said the appellant had locked the door but when he heard someone opening the door he stopped and rose up and left. He went home and told his father what had happened to him. His father took him to hospital and went and reported the matter at Rabai police station. He was later taken to Mariakani Sub County hospital for medical examination. He said he was not aware of any differences between his family and that of the appellant. He confirmed that he used to see the appellant before the incident. In cross-examination he said there were people inside the house but he did not know their names. He said Breshley was not inside the house. He said when Kisembi left the house he was left with the appellant. He further said when his uncle asked him about the incident, he told him that nothing had happened to him. He denied that he was beaten neither coached to testify in court.
PW2 the father of the complainant testified that the complainant was born on 21 st August, 2013. He identified his birth notification and child health card. He told the court that on 8 th June, 2020 he overheard children saying that the complainant was defiled. He called the complainant and inspected his anus and he saw traces of feaces on his buttocks. The complainant told him that he was with other children at Kisembi’s house watching cartoon when Kisembi and Breshley walked out of the house. As the complainant followed them the appellant got hold of him and placed him on a seat, undressed him and inserted his penis into his anus. He said Breshley viewed the incident through a window from outside according to what he told him. He inquired from his sister and she told her that the appellant was known to her as he lived in the 5 th house from his house. He went to the appellant’s who denied the incident. He reported the matter to the police. He later established that the appellant and Kisembi were brothers. He took the complainant to the hospital for medical examination. A P3 Form was later filled at Mariakani Sub County hospital. He said the appellant was not known to him at the time but he later came to know that he was called Willy. In cross-examination he said what he told the court was based on what he was told. He denied caning the complainant. He said the complainant was examined and it was confirmed that he was defiled.
PW3 is the mother of the complainant. She said the complainant was born on 20 th August, 2013. She said on the material date she was called by one Alex who told her that his son had been defiled. She was told that the culprit was a known resident within the area. He said the complainant was examined and the doctor told her that there were tears on the anus. In cross-examination she said she did not know the appellant by name. She further said she testified on the basis of what she was told.
PW4 a clinical officer working at Mariakani Sub County hospital produced the P3 Form in respect of the complainant. He said the complainant was first treated at Rabai Rural Demonstration Centre on 8 th June, 2020 for sexual assault by known person. According to hos findings the complainant had difficult in walking due to pain. His anal orifice was swollen with a tear at 6 O’clock. He said at the time of examination the complainant had already bathed. He said he confirmed that there was evidence of defilement. In cross-examination he said the complainant was able to walk but with difficulties. He maintained that the complainant’s anus was swollen with tears but there was no discharge seen.
PW5 investigated the case. She narrated what the complainant told her and issued him with a P3 Form which was filled at Mariakani Sub County hospital.
On being placed on his defence the appellant gave unsworn statement. He said on the material date he was seated outside his house when Alex Chisemi came with the complainant who was crying. He said Alex was holding a cane beating the complainant. He said Alex told him that he had been informed that the complainant had been defiled by a Kamba man. He told Alex to continue looking for the culprit because there were many Kambas in the area. Alex told him that if he did not tell him who defiled the complainant, he would press charges against him. He said it is the complainant’s uncle who told him to say that it is the appellant who defiled him. He said Alex wanted to have the matter settled amicably but he refused because he had not done anything. They called the area chief who castigated Alex for allowing the children who allegedly witnessed the incident to leave. He said he was taken to Rabai Police station. He lamented that he was never taken for medical examination to determine if he had sexual power to commit the offence.
Both the appellant and the respondent filed written submissions which I have carefully perused and considered. This being the first appellate court and as expected, I have analyzed and re-evaluated the evidence adduced before the trial court to make my own independent decision. I have done so cautiously as I did not have the advantage to hear and see the witnesses testify before the trial court. I have done in line with principle set out in various court decisions among them Kiilu & Another vs Republic (2005) e KLR where the Court of Appeal rendered itself thus:
“An Appellant on a first appeal is entitled to expect the evidence as whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
The appellant in his submissions argued that the prosecution did not prove the essential elements of the offence of defilement to wit; penetration, age of the victim and positive identification of the assailant. He cited several cases on the ingredients of the offence of defilement among them the case of Dominic Kibet vs Republic (2013) e KLR. The appellant argued that the evidence adduced before the trial court was contradictory and inconsistent and thus the trial court faulted in convicting him based on such evidence.
The respondent on the other hand argued that all the essential ingredients of the offence of defilement, that is the age of the complainant, evidence of penetration and positive identification of the appellant as the perpetrator. The respondent further argued that the evidence adduced by the prosecution witnesses was clear, consistent and reliable. Reliance was placed on the case of Richard Munene vs Republic. Further the respondent submitted that the appellant’s defence was a mere denial and it did not displace the evidence adduced by the prosecution.
The appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. These sections provide:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be liable to imprisonment for life.”
In considering the foregoing provisions the court in the case of Simon Oloo vs Republic (2020) e KLR set out the essential ingredients which the prosecution must establish to sustain a conviction in a defilement case. The court held:
“To sustain a conviction in a defilement charge, certain elements must be proved beyond reasonable doubt. The first element is whether there was penetration of the complainant’s genitalia; second is whether the complainant was a child and of what age; and finally, whether the penetration was done by the appellant.”
Regarding the age of the complainant, the trial court relied on the evidence of the complainant who said he was a pupil in class one. The trial court appreciated that the complainant did not expressly state his age but nevertheless PW2 his father told the court that the complainant was aged 6 years having been born on 21 st August, 2013. The trial court also relied on the birth notification produced in court as exhibit 1 together with child health card.
In the case of Musyoki Mwakavi vs Republic (2014) e KLR the court held that:
“…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian or common sense…”
Further in the case of Joseph Kiet Seet vs Republic (2014) e KLR the court stated:
“It is trite law that age of a victim can be determined by medical evidence and other cogent evidence.”
In the instant case, the trial court relied on the evidence of the complainant’s father and the birth notification and child health card. This was cogent evidence in proof of the age of the complainant and the trial court cannot be faulted for finding that the complainant was aged 6 years at the time of the offence.
On the element of penetration, the trial court relied on the evidence of the complainant and the medical evidence adduced by PW4. The appellant argued that there was contradiction in the evidence of the complainant and that of the doctor regarding penetration. On contradiction and inconsistencies of the prosecution evidence, the court stated as follows in the case of Richard Munene vs Republic (2018) e KLR:
“Contradictions, discrepancies and inconsistent in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to main issue in question and thus necessarily creates some in the mind of the trial court that an accused person will be entitled to benefit from it.”
In the instant case the trial court believed the evidence of the complainant who testified that he was defiled. The trial court categorically stated that the complainant maintained that he was never told by either his uncle or coached on what to tell the court. Section 124 of the Evidence Act allows the court to convict on the sole evidence of the victim of a sexual offence even without corroboration where the court believes the evidence of the victim and records the reason for so believing. The trial court not only believed that the complainant was truthful but also found that there was corroborative evidence by PW4 who examined the complainant and found that he had been defiled. Further to the foregoing I have evaluated the evidence adduced by the prosecution witnesses and especially the complainant, his father and the medical officer and I find that the same was not only consistent but reliable. The trial court cannot be faulted on the finding that there was proof of penetration.
Regarding he element of whether the appellant was positively identified as the perpetrator, I have evaluated the evidence adduced by the complainant and as rightly found by the trial court the appellant was known to the complainant as he was uncle to one Kisembi who was a friend to the complainant. It is further the evidence of the complainant that the appellant locked him in the house and told the other children to and play outside. Further the offence took place during the day. The complainant could hardly not have identified the appellant. I have no reason to fault the trial court on the element of identification of the complainant.
Further to the foregoing, I have considered the appellant’s defence and particularly that the person suspected to have committed the offence was a Kamba whom the one Alex told him to disclose to him else he will press the charges against him. The appellant never brought this particular aspect when Alex testified as PW2. He never cross-examined him on that aspect. The same is an afterthought as rightly found by the trial court. Further I agree with the trial court that failure to subject a suspect of the offence of defilement to medical examination is not fatal to the prosecution case. Further the finding of the trial court regarding the appellant’s defence that there were other children who were never called as witnesses was not fatal cannot be faulted as the prosecution is not under any obligation to call any number of witnesses to prove its case so long as the evidence adduced is sufficient to prove the charges against an accused person.
On the sentence meted by the trial court, it is important to point out that under Section 8(2) of the Sexual Offences Act the sentence provide for is life imprisonment. The appellant was sentenced to serve 25 years imprisonment which I find to be lenient.
For the foregoing I find no reason to interfere with the judgment of the trial court on both the conviction and sentence and the same is upheld and the appeal herein is dismissed.
Dated, signed and delivered virtually this 9 th day of July, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Malindi G.K Prison
Ms. Mutua for the Respondent
Ms. Otwo Court Assistant,
2
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. The particulars are that on the 8 th day of June, 2020 at around 1200hrs at Mkapuni area in Rabai Sub County of Kilifi County within the Coast Region unlawfully and intentionally committed an act which caused his male genital organ namely penis to penetrate into the male genital organ namely anus of R.C a child aged 6 years.
The appellant also faces an alternative charge 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 the 8 th day of June, 2020 at around 1200hrs at Mkapuni area in Rabai Sub County of Kilifi County within Coast Region unlawfully and intentionally committed an indecent act with a child aged 6 years namely R.C by touching his private parts using his penis.
The appellant pleaded not guilty to the charges when he was arraigned before the trial magistrate. The matter proceeded for hearing with the prosecution calling five witnesses to prove the charges against the appellant. The appellant was placed on his defence and he opted to give unsworn statement. In a judgment delivered on 25 th March, 2021 the appellant was found guilty of the main charge of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and accordingly convicted and subsequently sentenced to serve twenty-five years imprisonment.
Aggrieved by the conviction and sentence the appellant preferred this appeal. The appellant in a memorandum of appeal and amended grounds of appeal raised the following grounds:
1. That the learned trial magistrate erred in law and facts by failing to consider that the prosecution did not prove their case against the appellant beyond reasonable doubt as required by the law;
2. That the learned trial magistrate erred in law and facts by failing to consider sharp contradiction in breach of Section 163(1)(2) of the Evidence Act;
3. That the learned trial magistrate erred in law and facts by failing to consider that there was no cogent evidence to connect the appellant with the commission of the alleged offence;
4. The learned trial magistrate erred in law and facts by failing to adequately consider his defence;
The prosecution case was that complainant who testified as PW1 was a pupil at Mwawesa primary school. He told the court that on the material date he had gone to see his friend Kisembi at their house. While there the appellant got hold of his hand while watching television. He removed his trousers, placed him on a seat and defiled him. He said the appellant had locked the door but when he heard someone opening the door he stopped and rose up and left. He went home and told his father what had happened to him. His father took him to hospital and went and reported the matter at Rabai police station. He was later taken to Mariakani Sub County hospital for medical examination. He said he was not aware of any differences between his family and that of the appellant. He confirmed that he used to see the appellant before the incident. In cross-examination he said there were people inside the house but he did not know their names. He said Breshley was not inside the house. He said when Kisembi left the house he was left with the appellant. He further said when his uncle asked him about the incident, he told him that nothing had happened to him. He denied that he was beaten neither coached to testify in court.
PW2 the father of the complainant testified that the complainant was born on 21 st August, 2013. He identified his birth notification and child health card. He told the court that on 8 th June, 2020 he overheard children saying that the complainant was defiled. He called the complainant and inspected his anus and he saw traces of feaces on his buttocks. The complainant told him that he was with other children at Kisembi’s house watching cartoon when Kisembi and Breshley walked out of the house. As the complainant followed them the appellant got hold of him and placed him on a seat, undressed him and inserted his penis into his anus. He said Breshley viewed the incident through a window from outside according to what he told him. He inquired from his sister and she told her that the appellant was known to her as he lived in the 5 th house from his house. He went to the appellant’s who denied the incident. He reported the matter to the police. He later established that the appellant and Kisembi were brothers. He took the complainant to the hospital for medical examination. A P3 Form was later filled at Mariakani Sub County hospital. He said the appellant was not known to him at the time but he later came to know that he was called Willy. In cross-examination he said what he told the court was based on what he was told. He denied caning the complainant. He said the complainant was examined and it was confirmed that he was defiled.
PW3 is the mother of the complainant. She said the complainant was born on 20 th August, 2013. She said on the material date she was called by one Alex who told her that his son had been defiled. She was told that the culprit was a known resident within the area. He said the complainant was examined and the doctor told her that there were tears on the anus. In cross-examination she said she did not know the appellant by name. She further said she testified on the basis of what she was told.
PW4 a clinical officer working at Mariakani Sub County hospital produced the P3 Form in respect of the complainant. He said the complainant was first treated at Rabai Rural Demonstration Centre on 8 th June, 2020 for sexual assault by known person. According to hos findings the complainant had difficult in walking due to pain. His anal orifice was swollen with a tear at 6 O’clock. He said at the time of examination the complainant had already bathed. He said he confirmed that there was evidence of defilement. In cross-examination he said the complainant was able to walk but with difficulties. He maintained that the complainant’s anus was swollen with tears but there was no discharge seen.
PW5 investigated the case. She narrated what the complainant told her and issued him with a P3 Form which was filled at Mariakani Sub County hospital.
On being placed on his defence the appellant gave unsworn statement. He said on the material date he was seated outside his house when Alex Chisemi came with the complainant who was crying. He said Alex was holding a cane beating the complainant. He said Alex told him that he had been informed that the complainant had been defiled by a Kamba man. He told Alex to continue looking for the culprit because there were many Kambas in the area. Alex told him that if he did not tell him who defiled the complainant, he would press charges against him. He said it is the complainant’s uncle who told him to say that it is the appellant who defiled him. He said Alex wanted to have the matter settled amicably but he refused because he had not done anything. They called the area chief who castigated Alex for allowing the children who allegedly witnessed the incident to leave. He said he was taken to Rabai Police station. He lamented that he was never taken for medical examination to determine if he had sexual power to commit the offence.
Both the appellant and the respondent filed written submissions which I have carefully perused and considered. This being the first appellate court and as expected, I have analyzed and re-evaluated the evidence adduced before the trial court to make my own independent decision. I have done so cautiously as I did not have the advantage to hear and see the witnesses testify before the trial court. I have done in line with principle set out in various court decisions among them Kiilu & Another vs Republic (2005) e KLR where the Court of Appeal rendered itself thus:
“An Appellant on a first appeal is entitled to expect the evidence as whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.”
The appellant in his submissions argued that the prosecution did not prove the essential elements of the offence of defilement to wit; penetration, age of the victim and positive identification of the assailant. He cited several cases on the ingredients of the offence of defilement among them the case of Dominic Kibet vs Republic (2013) e KLR. The appellant argued that the evidence adduced before the trial court was contradictory and inconsistent and thus the trial court faulted in convicting him based on such evidence.
The respondent on the other hand argued that all the essential ingredients of the offence of defilement, that is the age of the complainant, evidence of penetration and positive identification of the appellant as the perpetrator. The respondent further argued that the evidence adduced by the prosecution witnesses was clear, consistent and reliable. Reliance was placed on the case of Richard Munene vs Republic. Further the respondent submitted that the appellant’s defence was a mere denial and it did not displace the evidence adduced by the prosecution.
The appellant was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. These sections provide:
“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
8(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be liable to imprisonment for life.”
In considering the foregoing provisions the court in the case of Simon Oloo vs Republic (2020) e KLR set out the essential ingredients which the prosecution must establish to sustain a conviction in a defilement case. The court held:
“To sustain a conviction in a defilement charge, certain elements must be proved beyond reasonable doubt. The first element is whether there was penetration of the complainant’s genitalia; second is whether the complainant was a child and of what age; and finally, whether the penetration was done by the appellant.”
Regarding the age of the complainant, the trial court relied on the evidence of the complainant who said he was a pupil in class one. The trial court appreciated that the complainant did not expressly state his age but nevertheless PW2 his father told the court that the complainant was aged 6 years having been born on 21 st August, 2013. The trial court also relied on the birth notification produced in court as exhibit 1 together with child health card.
In the case of Musyoki Mwakavi vs Republic (2014) e KLR the court held that:
“…apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian or common sense…”
Further in the case of Joseph Kiet Seet vs Republic (2014) e KLR the court stated:
“It is trite law that age of a victim can be determined by medical evidence and other cogent evidence.”
In the instant case, the trial court relied on the evidence of the complainant’s father and the birth notification and child health card. This was cogent evidence in proof of the age of the complainant and the trial court cannot be faulted for finding that the complainant was aged 6 years at the time of the offence.
On the element of penetration, the trial court relied on the evidence of the complainant and the medical evidence adduced by PW4. The appellant argued that there was contradiction in the evidence of the complainant and that of the doctor regarding penetration. On contradiction and inconsistencies of the prosecution evidence, the court stated as follows in the case of Richard Munene vs Republic (2018) e KLR:
“Contradictions, discrepancies and inconsistent in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to main issue in question and thus necessarily creates some in the mind of the trial court that an accused person will be entitled to benefit from it.”
In the instant case the trial court believed the evidence of the complainant who testified that he was defiled. The trial court categorically stated that the complainant maintained that he was never told by either his uncle or coached on what to tell the court. Section 124 of the Evidence Act allows the court to convict on the sole evidence of the victim of a sexual offence even without corroboration where the court believes the evidence of the victim and records the reason for so believing. The trial court not only believed that the complainant was truthful but also found that there was corroborative evidence by PW4 who examined the complainant and found that he had been defiled. Further to the foregoing I have evaluated the evidence adduced by the prosecution witnesses and especially the complainant, his father and the medical officer and I find that the same was not only consistent but reliable. The trial court cannot be faulted on the finding that there was proof of penetration.
Regarding he element of whether the appellant was positively identified as the perpetrator, I have evaluated the evidence adduced by the complainant and as rightly found by the trial court the appellant was known to the complainant as he was uncle to one Kisembi who was a friend to the complainant. It is further the evidence of the complainant that the appellant locked him in the house and told the other children to and play outside. Further the offence took place during the day. The complainant could hardly not have identified the appellant. I have no reason to fault the trial court on the element of identification of the complainant.
Further to the foregoing, I have considered the appellant’s defence and particularly that the person suspected to have committed the offence was a Kamba whom the one Alex told him to disclose to him else he will press the charges against him. The appellant never brought this particular aspect when Alex testified as PW2. He never cross-examined him on that aspect. The same is an afterthought as rightly found by the trial court. Further I agree with the trial court that failure to subject a suspect of the offence of defilement to medical examination is not fatal to the prosecution case. Further the finding of the trial court regarding the appellant’s defence that there were other children who were never called as witnesses was not fatal cannot be faulted as the prosecution is not under any obligation to call any number of witnesses to prove its case so long as the evidence adduced is sufficient to prove the charges against an accused person.
On the sentence meted by the trial court, it is important to point out that under Section 8(2) of the Sexual Offences Act the sentence provide for is life imprisonment. The appellant was sentenced to serve 25 years imprisonment which I find to be lenient.
For the foregoing I find no reason to interfere with the judgment of the trial court on both the conviction and sentence and the same is upheld and the appeal herein is dismissed.
Dated, signed and delivered virtually this 9 th day of July, 2026
F.N Kyambia
Judge
In the presence of:
Appellant appearing virtually from Malindi G.K Prison
Ms. Mutua for the Respondent
Ms. Otwo Court Assistant,
2