(Appeal against the Judgment and sentence delivered by Hon. V. Karanja – PM on 12/11/2024 in Iten Senior Principal Magistrate’s Court Criminal (Sexual Offences) Case No. E014 of 2023)
JUDGMENT
1. The Appellant was charged in the case referred to above 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 . It was alleged that the Appellant, on diverse dates between May 2020 and 21/2/2021, at [ particulars withheld ] village, Marakwet West sub-County, within Elgeyo Marakwet County, intentionally caused his penis to penetrate the vagina of DJK , a girl aged 14 years. He also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 by indecently touching the vagina of the same girl.
2. The Appellant pleaded not guilty to the charges and the case then proceeded to full trial in which the Prosecution called 7 witnesses. At the close of the trial, the Court convicted him on the main charge and sentenced him to serve 20 years’ imprisonment.
3. Dissatisfied with the decision, the Appellant, through Messrs Omboto & Co. Advocates , filed this Appeal by way of the Petition of Appeal dated 13/11/2024, on the grounds reproduced verbatim as follows:
i) THAT the Learned Trial Magistrate erred in matters of law and fact by failing to note that the charge of defilement was not proved beyond reasonable doubt.
ii) THAT the Trial Magistrate erred in matters of law and fact in failing to analyze the ingredients of defilement as provided under Section 8(1) and 8(3) of the Sexual Offences Act No. 3 of 2006.
iii) THAT the Learned trial Magistrate erred in matters of law and fact by convicting and sentencing the Appellant to serve a period of 20 years’ imprisonment despite the Court making a finding that penetration was not proved as per the two medical reports provided in Court nevertheless proceeded to pronounce herself on the DNA test report conducted on the two children sired by the complainant victim herein
iv) THAT the Learned trial Magistrate erred in matters of law and fact in failing to appreciate that in the cases of rape or defilement is not proved by DNA test but by way of evidence and/or the essential ingredient of the offence of defilement is penetration and not impregnation.
v) THAT the Learned trial Magistrate erred in matters of law and fact in relying on DNA test conducted on 5 th April 2023 by the Government analyst whereas the charge of defilement was allegedly committed on unknown dates to wit the diverse dates between May 2020 and February 2021 and February 2021 and 17 th December 2022.
vi) THAT the Learned trial erred in matters of fact and law in failing to appreciate that penetration is an essential ingredient of defilement which is proved through the evidence of the victim corroborated by medical evidence and in this case the two medical officers were categorical that they were not in a position to ascertain the act of defilement after examining the complainant as she had given birth to two children to wit.-
(a) The medical evidence of the clinical officer PW4 states that on examination the patient (complainant) presented mild abdominal pains five (5) days post partum (delivery). She had delivered five (5) days prior to examination.
(b) The medical evidence of clinical officer (PW6) examined the complainant who had already delivered and made remarks that the ‘Recommended DNA to prove paternity’.
vii) THAT the Learned trial Magistrate erred in matters of law and fact when she declined to allow the appellant to undergo an independent or Alternative DNA test examination as she observed (Obiter Dicta) that as per the evidence on record the issue for determination is the paternity and not defilement (She made reference to the P3 form provided by PW6 whose remarks state (recommended DNA to prove paternity) by the clinical officer (PW6)
viii) THAT the Learned trial Magistrate erred in law and fact in the misinterpretation of Section 36 (1) and 26 of the Sexual Offences Act as read with Section 124 of the Evidence Act.
ix) THAT the Learned trial Magistrate erred in matters of law and fact in not making a finding that the charge of defilement was allegedly committed in the year 2020 by one FESTUS KORIR KIPTOO alias ‘TUMBOO’ who was the grandson to the appellant and boyfriend to the complainant as per the charge sheet dated 22 nd March 2023.
x) THAT the Learned trial Magistrate erred in matters of law and fact in failing to appreciate that the prosecution brought charges of defilement after a period of three (3) years and on medical reports prepared three (3) years later and even after the complainant had given birth to two (2) children hence the medical examination done after three (3) years was of no value.
xi) THAT the Learned trial Magistrate erred in matters of law and fact in failing to appreciate that the complainant confirmed that the father of the two (2) children was Festus Kiptoo Kibet who was his boyfriend.
xii) THAT the Learned trial Magistrate erred in law and fact in failing to consider the final submissions filed by the Appellant and authorities on the law of Defilement and DNA test.
xiii) THAT the Learned trial Magistrate erred in law and fact in failing to make a finding that this is a case where the family members of the complainant victim schemed a conspiracy to settle scores with the Appellant after he stopped supplying ‘milk’ and other goodies as he knew and/or believed that the first child belonged to his grandson Festus Kibet till when the complainant again gave birth to a second child within a span of two (2) years.
4. As will be clearly noted, the Grounds of Appeal are unnecessarily too lengthy and verbose. The Court of Appeal has on many occasions reminded Counsels that the practice of filing such verbose and argumentative Memoranda or Petitions of Appeal is wrong and unnecessary. Lengthy and verbose pleadings, are not only irritating but also many a time end up containing duplication and repetition and rarely adds any value to the content thereof. If anything, it only gives the strong indication that the Appeal is speculatory, or a fishing expedition, with the drafter simply throwing everything at the Court hoping that perhaps one of the multiple stray torrents of bombs fired would find a target. There are for instance, the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR , the case of William Koross v. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, the case of Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR , and also the case of case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR . The 13 grounds cited above can, in fact, be simply all summarized into one brief ground, namely, “ whether the Prosecution proved its case beyond reasonable doubt ”
5. Be that as it may, I will now recount the testimonies and evidence presented before the trial Court.
6. PW1 was the complainant, DJK . She stated that she was, at the time of testifying, a Form 2 student and that the Appellant is known to her as they come from the same village. She testified that she was born in 2006 and referred to her Certificate of Birth. She then narrated that sometime between the year 2020 and 21/02/2021 she had taken maize for milling at the posho mill belonging to the Appellant, the Appellant took her maize and put it at the end of the queue such that she was the last customer remaining alone. She testified that the Appellant then began seducing her and locked the door, before grabbing her. She narrated that the Appellant pulled up her dress, removed her panty, removed his belt and lowered his trousers and shorts, and pushed her towards some potato, covered her mouth and then had sex with her. She stated that the Appellant penetrated her vagina with his penis without protection for about 15 minutes, and that he deposited sperms in her. She testified further that the Appellant, after finishing, dressed up, and opened the door but, on her part, she did not dress up immediately as she was shocked and remained seated while the Appellant went out and “peed” then returned and asked her to leave, and that she should not tell anyone about the incident. She stated that she conceived after the incident but no one knew about it and that her mother only discovered when she delivered a baby in the house, and that was when she disclosed that it was the Appellant who had fathered the child. It was her further testimony that the Appellant used to go to their house and when she informed him about the pregnancy, he asked her to implicate his own grandson, FK , and that the Appellant also asked her to abort but she refused. She stated that it was after she gave birth that the matter was reported, and that she went back to school after the baby attained 4 months. She testified further that her mother and the Appellant entered into an arrangement whereby the Appellant would be supplying milk for the baby and the complainant’s mother would pay for the same at the end of the month. She testified on a certain day she had gone to the Appellant’s home to collect the milk when the Appellant told her to go inside his house to watch television and that his maid had gone out to milk the cow. She narrated that the Appellant then came and closed the door to the sitting room and told her that he wanted to change the channel but then jumped on her, undressed her and had sex with her for about 10 minutes, before dressing and going out. She stated that she remained there shocked, the maid came and gave her the milk and the complainant then left, only to realize, about 2 months later that she had again conceived and was pregnant. She stated that at the time of testifying, the 1 st child was 2 ½ years old while the younger one was 8 months. She stated further that she went to the hospital and was issued with a P3 Form, and that the Appellant was arrested. In the end, she asserted that it is only the Appellant who defiled her, and denied that she had ever had sex with the said FK .
7. In cross-examination, she stated that in May 2020 she was 13 years old and at the time of testifying she was 17. Regarding the 1 st incident, she stated that it happened around 6.30 pm, in the year 2020, and that she resisted but the Appellant continued. She also conceded that the said FK , the Appellant’s grandson, had indeed been her boyfriend since she was in class 7, and that F used to live with the Appellant. About the 1 st incident, she agreed that she never informed her mother about it. She also agreed that a P3 Form was only procured for the 2 nd incident. She also agreed that she delivered the second baby on 17/12/2022 and that the incident was reported on 27/12/2022. She also agreed that she told her mother that she had been impregnated by FK as she had been asked to do by the Appellant. She then stated that she delivered the first child on 21/02/2021 and named her VC , and the second, a baby boy named H , on 17/12/2021. She insisted that the Appellant is the father to her 2 nd child, that she did not continue with the relationship with FK , and that she does not remember when the Appellant defiled her. She also agreed that she had 2 boyfriends, one of whom was FK who was her boyfriend between 2019-2020. She then disclosed that she had sex with the Appellant 3 times, once in 2020, twice in 2021 and twice in 2022, and denied that she had sex with FK in 2021. She also agreed that the P3 Form was filled in 2/03/2023, and claimed that the Appellant was arrested 3 years after the incident because a DNA test was still being awaited. She stated that the DNA results showed that the 1 st child was fathered by the Appellant, and the 2 nd child by FK .
8. In re-examination, she stated that with the Appellant, she had sex once in 2020, once in 2021 and twice in 2022, and with FK , she had sex once in 2020, once in 2021, and once in 2022. She insisted that with the Appellant, they never used protection, and with FK , they used protection in 2020.
9. PW2 was the complainant’s mother. She described the Appellant as a relative of her husband in their clan, and stated that the complainant (her daughter) was born in 2006. She testified that the complainant was in class 8 when she first became pregnant and told her that FK , the Appellant’s grandson was the one responsible for the same, that her family discussed the matter with the Appellant, and that the Appellant was comfortable with the name “ VC” given to the child when she was born, and even committed to be supplying milk for the baby. She described how the complainant again gave birth at home on 17/12/2020 during the school holidays and named the baby DK , that she ( PW2 ) had not known of the second pregnancy, and that she looked for the Appellant and informed him about it since the complainant had told her that it was FK , the Appellant’s grandson, who had impregnated her. She stated that the Appellant asked her to look for FK and have him arrested before the complainant later disclosed that it was actually the Appellant who was responsible. She then stated that she did not know the results of the DNA tests but to her knowledge, it was that the children belonged to the Appellant. In cross-examination, she stated that for the 1 st pregnancy, the complainant was in class 8 and 14 years old. She agreed that she was aware of the 1 st pregnancy which the complainant informed her was by FK but agreed that she never reported the defilement and the Appellant committed to be supplying milk for the baby for free. Regarding the 2 nd pregnancy, she stated that the complainant was in Form 2 and gave birth on 17/12/2022. She stated further that the complainant told her that it is the Appellant who was responsible, but that the Appellant had asked her to implicate FK , his own grandson, and that the complainant should not mention him. She also stated that she reported the Appellant on 27/12/2022 and that she was not aware of the 2 nd pregnancy. In re-examination, she denied demanding from, or being given any money by the Appellant, and also denied that her sons assaulted the Appellant.
10. PW3 was the complainant’s father. He described the Appellant as a neighbour and relative within their clan and confirmed that PW2 is his ( PW3’s ) wife. He testified that the complainant did not disclose the identity of the person responsible for the 1 st pregnancy and they did not report the matter and that the baby was named VC , but after giving birth, the complainant disclosed that it was in fact FK , the Appellant’s grandson who was responsible. He stated that he did not report the matter because both the complainant and FK were still in school but they informed the Appellant who committed to supplying milk for the baby. He testified that on 17/12/2022, the complainant, again, gave birth to a second child named DK , which pregnancy he was also not aware of, and that his wife ( PW2 ) told him that the complainant had named FK as being, once more, the father. He stated that this time, he reported the matter to the police and upon investigations by the police, the complainant confessed that while the 2 nd child belonged to FK , the 1 st child was, in fact, fathered by the Appellant, FK’s grandfather. He also stated that they moved to the Children’s Court to seek upkeep for the children. In cross-examination, he reiterated that he was not aware of the 1 st pregnancy, and agreed that the P3 Form was procured after 3 years. He also agreed that some of his sons were charged with the offence of assault.
11. PW4 was Komen Kiprono Isaac , a Clinical Officer at the Cheptongei Heath Centre , who testified that the complainant, who had delivered 5 days prior was seen at the facility with a history of stomach pains. He then produced the P3 Form dated 27/12/2022. In cross-examination, he stated that he was not aware of any case brought to the attention of the facility involving defilement of the complainant.
12. PW5 was Polycarp Lutta Kweyu , a Principal Chemist at the Government Chemist, Kisumu. He stated that he was tasked by the police through a Court order to carry out a DNA analysis test for purposes of ascertaining parentage of the complainant’s 2 children ( VC , the 1 st child) and DK , the 2 nd child) and who the father was as between the Appellant and FK . He testified that upon carrying out the test he established that there is 99.9% chance that the Appellant is the father of the 1 st child ( VC ), and FK is the father to the 2 nd child ( DK ) and also that the complainant is the mother of both children. He then produced the DNA Report dated 5/04/2023. In cross-examination, he stated that his task was to establish parentage, not kinship.
13. PW6 was Wilfred Kimosop , a Doctor at the Kapsowar Mission Hospital , who testified that the complainant, alleged to have been 17 years old was seen at the facility with a history of defilement, and that she had already delivered. He testified that he made a recommendation for a DNA test to ascertain paternity, and he then produced the P3 Form. In cross-examination, he stated that he examined the complainant on 21/03/2023 but did not capture when the defilement took place, and that the defilement was reported to the police on 27/12/2022, three months before the examination. He denied that he was coerced to make the Report and stated that his task was to establish when penetration occurred. He however agreed that in cases of defilement, medicine will not work if given 72 hours after the act.
14. PW7 was Police Constable Vivian Chesang , the Investigating Officer, attached to the Directorate of Criminal Investigations (DCI ) Kapsowar Marakwet West, who stated that she was assigned the case on 17/01/2023 and she recorded statements. She testified that the complainant told her that she had gone to the Appellant’s posho mill sometime in May 2020 when the accused told her that he had something which he needed the complainant to take to her mother, that she waited then the Appellant took her to his home where she watched television but the Appellant then removed her inner clothes and had sex with her before dropping her at their home, and that she reported the incident to her mother 4 months later when she missed her periods. She testified that the complainant however told the mother that the person responsible for the pregnancy was FK , that she later gave birth on 21/02/2021 and upon which the Appellant offered to be supplying milk for the baby. She testified further that however, FK contested to his friends the allegation that the children belonged to his grandfather, the Appellant herein, and that she then visited the scene and arrested both the Appellant and FK , whom she however later released pending investigations. She then produced the Certificate of Birth which indicated that the complainant was born on 10/08/2006 and also the Child’s Hospital Card, and testified that subsequently, a DNA test was conducted. She also produced a letter from the complainant’s school. In cross-examination, regarding FK’s contestation of paternity, she testified that FK did so when he was with his friends while drunk. She then stated that the Appellant is 70 years old, and agreed that she could not ascertain when penetration occurred since the children had already ben born, and also agreed that duration within which examination for penetration should be conducted is 72 hours. She also agreed that the DNA was to ascertain paternity, not defilement, and reiterated that the test revealed that the Appellant was the 1 st child’s father.
15. After the Prosecution closed its case, the Court found the Appellant with a case to answer and placed him on his defence. The Appellant then gave sworn testimony in his defence as DW1 .
16. The Appellant testified that he is 67 years old and termed the charges as false. He confirmed that FK is his grandson and that the complainant is a neighbour. He also confirmed that the complainant delivered her first child in 2020 and that she had a romantic relationship with FK , and also that she used to visit FK at his house where he once found her lying in FK’s bed, and that they were both students, FK in Form 3 and the complainant in class 8. He also confirmed that he operates a posho mill and added that he also operates a carpentry workshop, and testified that his wife died in 2019 and that FK runs his businesses. He also confirmed that the complainant’s family and his are his relatives, and that after the 1 st pregnancy, the complainant’s family approached him about the matter and he agreed to be supplying milk for the baby, and that the complainant’s family told him that FK had denied being responsible for the pregnancy. He also confirmed that the complainant gave birth to the 2 nd child on 16/12/2022 upon which he stopped supplying the milk, and claimed that thereafter, the complainant’s brothers went to his posho mill and assaulted him claiming that it is him who had sired both children, and that he screamed and was rescued and that the brothers were arrested, charged and later convicted and fined. He also confirmed that he was taken to the Government Chemist at Kisumu where the DNA test was conducted on him, and he also claimed that the complainant’s family dragged him through negative media publicity about the pregnancies. He denied that the alleged child is his and doubted the DNA test results terming it as a possible forgery by the Investigating Officer, claiming that the Officer is related to the complainant’s family. He also claimed that the complainant’s family and the police have been soliciting for and extorting money from him, and also threatening and blackmailing him. He also pointed out that the P3 Form was procured in 2023.
17. As further aforesaid, by the Judgment delivered on 12/11/2024, the trial Court found the Appellant guilty, convicted him, and sentenced him to serve 20 years imprisonment.
18. I then gave the parties the liberty to file written Submissions but only the Appellant seems to have filed the Submissions dated 10/09/2025. I say so because despite Prosecution Counsel requesting for more time to file her Submissions, I have not come across any filed on behalf of the State, whether in the Judiciary Case Tracking System (CTS) online platform or in the physical Court file.
Appellant’s Submissions
19. The Appellant’s Submissions is basically a recital of the Grounds of Appeal. Counsel submitted that a victim of defilement or rape is supposed to be examine immediately after the incident, probably before taking a shower or changing clothes, and observed that in this case, the medical examination was conducted 2 years after the alleged incident. He criticized the trial Court for anchoring the conviction on the DNA Report dated 5/04/2023 despite the offences spanning from May 2020 to December 2022, and urged that the DNA results did not tie the Appellant to any specific act of penetration on any particular date, and that Section 36(1) of the Sexual Offences Act permits scientific testing “where appropriate” but does not allow conviction based solely on such results. He also faulted the Court for circumventing the provisions of Section 124 of the Evidence Act which allows the Court to convict in sexual offences cases on the basis of testimony of the complainant as a single witness but only where the Court records its reasons for believing such testimony. He submitted that in this case, no such reasons were recorded. Counsel also submitted that the complainant identified FK as the father of both children, which fact was corroborated by inclusion of the alias “ T…….” in the charge sheet yet the Prosecution failed to investigate or summon FK thereby breaking the evidential chain. He submitted further that the trial Court erred by failing to give proper consideration to the Appellant’s defence and submissions, as the Appellant stated that he was wrongfully implicated due to a family vendetta after withdrawing material support, including supply of milk to the complainant’s household. Counsel also cited several authorities in support of his contentions above.
Determination
20. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32) .
21. The broad issues that arise for determination in this Appeal are evidently the following:
a) Whether the defilement charge against the Appellant was proved beyond reasonable doubt and what was the place of the DNA test results in the trial.
b) Whether the sentence of 20 years imprisonment was justified.
22. On whether the charge was proved beyond reasonable doubt, it is trite law that for the offence of defilement to be established, 3 ingredients must be proved, namely, age of the victim, penetration and positive identification of the offender. In respect thereto, Section 8(1) and 8(3) of the Sexual Offences Act under which the Appellant was charged provide as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years .”
23. In this case, the charge sheet indicates the complainant’s age, as at the date of the offence (between May 2020 and February 2021), as 14 years old. On the other hand, the complainant’s Certificate of Birth indicated that she was born on 10/08/2006. Going by the Certificate of Birth therefore, the complainant was indeed about 14 years at the date of the alleged offence, thus below 15 years. I am therefore satisfied that the ingredient of age was sufficiently proved.
24. On the issue of “ penetration ”, Section 2(1) of the Sexual Offences Act defines the term as “ the partial or complete insertion of the genital organs of a person into the genital organ of another person .”
25. In regard thereto, the Court of Appeal, in the case of Mark Oiruri Mose v R (2013 eKLR, guided as follows:
“….. In any event the offence is against penetration of a complainant and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.”
26. In this case, the complainant, in her evidence-in-chief, accused the Appellant of two separate cases of defilement. For the 1 st incident, she narrated that sometime between the year 2020 and 21/02/2021 when she had taken maize for milling at the posho mill belonging to the Appellant, the Appellant made her stay behind after all customers had left, began seducing her and then locked the door, before he grabbed her, pulled up her dress, removed her panty, removed his belt and lowered his trousers and shorts, and then pushed her towards some potato, covered her mouth and had sex with her. She testified that she conceived after the incident but no one knew about it and that her mother only discovered when she delivered a baby in the house, and that it is after this that she disclosed that it was the Appellant who had fathered the child. She testified that when she informed the Appellant, he asked her to implicate his own grandson, FK , and also asked her to abort but she refused. She testified further that her mother and the Appellant entered into an arrangement whereby the Appellant would be supplying milk for the baby.
27. Regarding the 2 nd incident of alleged defilement, she testified that on a certain day she had gone to the Appellant’s home to collect milk in accordance with the arrangement referred to above when the Appellant asked her to go inside his house to watch television and that as the Appellant’s maid was outside milking the cow, the Appellant came, closed the door and told her that he wanted to change the channel but then jumped on her, undressed her and had sex with her for about 10 minutes. She stated that it was about 2 months later when she realized that she had again conceived.
28. Her testimony is that it is after the 2 nd incident that the two separate acts of defilement were both reported to the police and the Appellant arrested.
29. In the end, the complainant asserted that it is only the Appellant who defiled her, and denied that she had ever had sex with the said FK .
30. In cross-examination, the complainant conceded that FK , the Appellant’s grandson, had indeed been her boyfriend since she was in class 7. She also stated that she delivered the 1 st child on 21/02/2021 and the 2 nd child on 17/12/2022 and agreed that the matter was reported to the police on 27/12/2022. She also stated that she told her mother that she had been impregnated by FK as that is what the Appellant had asked her to do. She however insisted that the Appellant is the father to her 2 nd child. She then stated that she had in fact, had sex with the Appellant 3 times, once in 2020, twice in 2021 and twice in 2022 thus adding a 3 rd incident not earlier disclosed in her evidence-in-chief. She then denied that she had sex with FK in 2021. She also agreed that the P3 Form was only procured in 2/03/2023, and the Appellant arrested 3 years after the incident.
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JUDGMENT
1. The Appellant was charged in the case referred to above 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 . It was alleged that the Appellant, on diverse dates between May 2020 and 21/2/2021, at [ particulars withheld ] village, Marakwet West sub-County, within Elgeyo Marakwet County, intentionally caused his penis to penetrate the vagina of DJK , a girl aged 14 years. He also faced the alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006 by indecently touching the vagina of the same girl.
2. The Appellant pleaded not guilty to the charges and the case then proceeded to full trial in which the Prosecution called 7 witnesses. At the close of the trial, the Court convicted him on the main charge and sentenced him to serve 20 years’ imprisonment.
3. Dissatisfied with the decision, the Appellant, through Messrs Omboto & Co. Advocates , filed this Appeal by way of the Petition of Appeal dated 13/11/2024, on the grounds reproduced verbatim as follows:
i) THAT the Learned Trial Magistrate erred in matters of law and fact by failing to note that the charge of defilement was not proved beyond reasonable doubt.
ii) THAT the Trial Magistrate erred in matters of law and fact in failing to analyze the ingredients of defilement as provided under Section 8(1) and 8(3) of the Sexual Offences Act No. 3 of 2006.
iii) THAT the Learned trial Magistrate erred in matters of law and fact by convicting and sentencing the Appellant to serve a period of 20 years’ imprisonment despite the Court making a finding that penetration was not proved as per the two medical reports provided in Court nevertheless proceeded to pronounce herself on the DNA test report conducted on the two children sired by the complainant victim herein
iv) THAT the Learned trial Magistrate erred in matters of law and fact in failing to appreciate that in the cases of rape or defilement is not proved by DNA test but by way of evidence and/or the essential ingredient of the offence of defilement is penetration and not impregnation.
v) THAT the Learned trial Magistrate erred in matters of law and fact in relying on DNA test conducted on 5 th April 2023 by the Government analyst whereas the charge of defilement was allegedly committed on unknown dates to wit the diverse dates between May 2020 and February 2021 and February 2021 and 17 th December 2022.
vi) THAT the Learned trial erred in matters of fact and law in failing to appreciate that penetration is an essential ingredient of defilement which is proved through the evidence of the victim corroborated by medical evidence and in this case the two medical officers were categorical that they were not in a position to ascertain the act of defilement after examining the complainant as she had given birth to two children to wit.-
(a) The medical evidence of the clinical officer PW4 states that on examination the patient (complainant) presented mild abdominal pains five (5) days post partum (delivery). She had delivered five (5) days prior to examination.
(b) The medical evidence of clinical officer (PW6) examined the complainant who had already delivered and made remarks that the ‘Recommended DNA to prove paternity’.
vii) THAT the Learned trial Magistrate erred in matters of law and fact when she declined to allow the appellant to undergo an independent or Alternative DNA test examination as she observed (Obiter Dicta) that as per the evidence on record the issue for determination is the paternity and not defilement (She made reference to the P3 form provided by PW6 whose remarks state (recommended DNA to prove paternity) by the clinical officer (PW6)
viii) THAT the Learned trial Magistrate erred in law and fact in the misinterpretation of Section 36 (1) and 26 of the Sexual Offences Act as read with Section 124 of the Evidence Act.
ix) THAT the Learned trial Magistrate erred in matters of law and fact in not making a finding that the charge of defilement was allegedly committed in the year 2020 by one FESTUS KORIR KIPTOO alias ‘TUMBOO’ who was the grandson to the appellant and boyfriend to the complainant as per the charge sheet dated 22 nd March 2023.
x) THAT the Learned trial Magistrate erred in matters of law and fact in failing to appreciate that the prosecution brought charges of defilement after a period of three (3) years and on medical reports prepared three (3) years later and even after the complainant had given birth to two (2) children hence the medical examination done after three (3) years was of no value.
xi) THAT the Learned trial Magistrate erred in matters of law and fact in failing to appreciate that the complainant confirmed that the father of the two (2) children was Festus Kiptoo Kibet who was his boyfriend.
xii) THAT the Learned trial Magistrate erred in law and fact in failing to consider the final submissions filed by the Appellant and authorities on the law of Defilement and DNA test.
xiii) THAT the Learned trial Magistrate erred in law and fact in failing to make a finding that this is a case where the family members of the complainant victim schemed a conspiracy to settle scores with the Appellant after he stopped supplying ‘milk’ and other goodies as he knew and/or believed that the first child belonged to his grandson Festus Kibet till when the complainant again gave birth to a second child within a span of two (2) years.
4. As will be clearly noted, the Grounds of Appeal are unnecessarily too lengthy and verbose. The Court of Appeal has on many occasions reminded Counsels that the practice of filing such verbose and argumentative Memoranda or Petitions of Appeal is wrong and unnecessary. Lengthy and verbose pleadings, are not only irritating but also many a time end up containing duplication and repetition and rarely adds any value to the content thereof. If anything, it only gives the strong indication that the Appeal is speculatory, or a fishing expedition, with the drafter simply throwing everything at the Court hoping that perhaps one of the multiple stray torrents of bombs fired would find a target. There are for instance, the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR , the case of William Koross v. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, the case of Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR , and also the case of case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR . The 13 grounds cited above can, in fact, be simply all summarized into one brief ground, namely, “ whether the Prosecution proved its case beyond reasonable doubt ”
5. Be that as it may, I will now recount the testimonies and evidence presented before the trial Court.
6. PW1 was the complainant, DJK . She stated that she was, at the time of testifying, a Form 2 student and that the Appellant is known to her as they come from the same village. She testified that she was born in 2006 and referred to her Certificate of Birth. She then narrated that sometime between the year 2020 and 21/02/2021 she had taken maize for milling at the posho mill belonging to the Appellant, the Appellant took her maize and put it at the end of the queue such that she was the last customer remaining alone. She testified that the Appellant then began seducing her and locked the door, before grabbing her. She narrated that the Appellant pulled up her dress, removed her panty, removed his belt and lowered his trousers and shorts, and pushed her towards some potato, covered her mouth and then had sex with her. She stated that the Appellant penetrated her vagina with his penis without protection for about 15 minutes, and that he deposited sperms in her. She testified further that the Appellant, after finishing, dressed up, and opened the door but, on her part, she did not dress up immediately as she was shocked and remained seated while the Appellant went out and “peed” then returned and asked her to leave, and that she should not tell anyone about the incident. She stated that she conceived after the incident but no one knew about it and that her mother only discovered when she delivered a baby in the house, and that was when she disclosed that it was the Appellant who had fathered the child. It was her further testimony that the Appellant used to go to their house and when she informed him about the pregnancy, he asked her to implicate his own grandson, FK , and that the Appellant also asked her to abort but she refused. She stated that it was after she gave birth that the matter was reported, and that she went back to school after the baby attained 4 months. She testified further that her mother and the Appellant entered into an arrangement whereby the Appellant would be supplying milk for the baby and the complainant’s mother would pay for the same at the end of the month. She testified on a certain day she had gone to the Appellant’s home to collect the milk when the Appellant told her to go inside his house to watch television and that his maid had gone out to milk the cow. She narrated that the Appellant then came and closed the door to the sitting room and told her that he wanted to change the channel but then jumped on her, undressed her and had sex with her for about 10 minutes, before dressing and going out. She stated that she remained there shocked, the maid came and gave her the milk and the complainant then left, only to realize, about 2 months later that she had again conceived and was pregnant. She stated that at the time of testifying, the 1 st child was 2 ½ years old while the younger one was 8 months. She stated further that she went to the hospital and was issued with a P3 Form, and that the Appellant was arrested. In the end, she asserted that it is only the Appellant who defiled her, and denied that she had ever had sex with the said FK .
7. In cross-examination, she stated that in May 2020 she was 13 years old and at the time of testifying she was 17. Regarding the 1 st incident, she stated that it happened around 6.30 pm, in the year 2020, and that she resisted but the Appellant continued. She also conceded that the said FK , the Appellant’s grandson, had indeed been her boyfriend since she was in class 7, and that F used to live with the Appellant. About the 1 st incident, she agreed that she never informed her mother about it. She also agreed that a P3 Form was only procured for the 2 nd incident. She also agreed that she delivered the second baby on 17/12/2022 and that the incident was reported on 27/12/2022. She also agreed that she told her mother that she had been impregnated by FK as she had been asked to do by the Appellant. She then stated that she delivered the first child on 21/02/2021 and named her VC , and the second, a baby boy named H , on 17/12/2021. She insisted that the Appellant is the father to her 2 nd child, that she did not continue with the relationship with FK , and that she does not remember when the Appellant defiled her. She also agreed that she had 2 boyfriends, one of whom was FK who was her boyfriend between 2019-2020. She then disclosed that she had sex with the Appellant 3 times, once in 2020, twice in 2021 and twice in 2022, and denied that she had sex with FK in 2021. She also agreed that the P3 Form was filled in 2/03/2023, and claimed that the Appellant was arrested 3 years after the incident because a DNA test was still being awaited. She stated that the DNA results showed that the 1 st child was fathered by the Appellant, and the 2 nd child by FK .
8. In re-examination, she stated that with the Appellant, she had sex once in 2020, once in 2021 and twice in 2022, and with FK , she had sex once in 2020, once in 2021, and once in 2022. She insisted that with the Appellant, they never used protection, and with FK , they used protection in 2020.
9. PW2 was the complainant’s mother. She described the Appellant as a relative of her husband in their clan, and stated that the complainant (her daughter) was born in 2006. She testified that the complainant was in class 8 when she first became pregnant and told her that FK , the Appellant’s grandson was the one responsible for the same, that her family discussed the matter with the Appellant, and that the Appellant was comfortable with the name “ VC” given to the child when she was born, and even committed to be supplying milk for the baby. She described how the complainant again gave birth at home on 17/12/2020 during the school holidays and named the baby DK , that she ( PW2 ) had not known of the second pregnancy, and that she looked for the Appellant and informed him about it since the complainant had told her that it was FK , the Appellant’s grandson, who had impregnated her. She stated that the Appellant asked her to look for FK and have him arrested before the complainant later disclosed that it was actually the Appellant who was responsible. She then stated that she did not know the results of the DNA tests but to her knowledge, it was that the children belonged to the Appellant. In cross-examination, she stated that for the 1 st pregnancy, the complainant was in class 8 and 14 years old. She agreed that she was aware of the 1 st pregnancy which the complainant informed her was by FK but agreed that she never reported the defilement and the Appellant committed to be supplying milk for the baby for free. Regarding the 2 nd pregnancy, she stated that the complainant was in Form 2 and gave birth on 17/12/2022. She stated further that the complainant told her that it is the Appellant who was responsible, but that the Appellant had asked her to implicate FK , his own grandson, and that the complainant should not mention him. She also stated that she reported the Appellant on 27/12/2022 and that she was not aware of the 2 nd pregnancy. In re-examination, she denied demanding from, or being given any money by the Appellant, and also denied that her sons assaulted the Appellant.
10. PW3 was the complainant’s father. He described the Appellant as a neighbour and relative within their clan and confirmed that PW2 is his ( PW3’s ) wife. He testified that the complainant did not disclose the identity of the person responsible for the 1 st pregnancy and they did not report the matter and that the baby was named VC , but after giving birth, the complainant disclosed that it was in fact FK , the Appellant’s grandson who was responsible. He stated that he did not report the matter because both the complainant and FK were still in school but they informed the Appellant who committed to supplying milk for the baby. He testified that on 17/12/2022, the complainant, again, gave birth to a second child named DK , which pregnancy he was also not aware of, and that his wife ( PW2 ) told him that the complainant had named FK as being, once more, the father. He stated that this time, he reported the matter to the police and upon investigations by the police, the complainant confessed that while the 2 nd child belonged to FK , the 1 st child was, in fact, fathered by the Appellant, FK’s grandfather. He also stated that they moved to the Children’s Court to seek upkeep for the children. In cross-examination, he reiterated that he was not aware of the 1 st pregnancy, and agreed that the P3 Form was procured after 3 years. He also agreed that some of his sons were charged with the offence of assault.
11. PW4 was Komen Kiprono Isaac , a Clinical Officer at the Cheptongei Heath Centre , who testified that the complainant, who had delivered 5 days prior was seen at the facility with a history of stomach pains. He then produced the P3 Form dated 27/12/2022. In cross-examination, he stated that he was not aware of any case brought to the attention of the facility involving defilement of the complainant.
12. PW5 was Polycarp Lutta Kweyu , a Principal Chemist at the Government Chemist, Kisumu. He stated that he was tasked by the police through a Court order to carry out a DNA analysis test for purposes of ascertaining parentage of the complainant’s 2 children ( VC , the 1 st child) and DK , the 2 nd child) and who the father was as between the Appellant and FK . He testified that upon carrying out the test he established that there is 99.9% chance that the Appellant is the father of the 1 st child ( VC ), and FK is the father to the 2 nd child ( DK ) and also that the complainant is the mother of both children. He then produced the DNA Report dated 5/04/2023. In cross-examination, he stated that his task was to establish parentage, not kinship.
13. PW6 was Wilfred Kimosop , a Doctor at the Kapsowar Mission Hospital , who testified that the complainant, alleged to have been 17 years old was seen at the facility with a history of defilement, and that she had already delivered. He testified that he made a recommendation for a DNA test to ascertain paternity, and he then produced the P3 Form. In cross-examination, he stated that he examined the complainant on 21/03/2023 but did not capture when the defilement took place, and that the defilement was reported to the police on 27/12/2022, three months before the examination. He denied that he was coerced to make the Report and stated that his task was to establish when penetration occurred. He however agreed that in cases of defilement, medicine will not work if given 72 hours after the act.
14. PW7 was Police Constable Vivian Chesang , the Investigating Officer, attached to the Directorate of Criminal Investigations (DCI ) Kapsowar Marakwet West, who stated that she was assigned the case on 17/01/2023 and she recorded statements. She testified that the complainant told her that she had gone to the Appellant’s posho mill sometime in May 2020 when the accused told her that he had something which he needed the complainant to take to her mother, that she waited then the Appellant took her to his home where she watched television but the Appellant then removed her inner clothes and had sex with her before dropping her at their home, and that she reported the incident to her mother 4 months later when she missed her periods. She testified that the complainant however told the mother that the person responsible for the pregnancy was FK , that she later gave birth on 21/02/2021 and upon which the Appellant offered to be supplying milk for the baby. She testified further that however, FK contested to his friends the allegation that the children belonged to his grandfather, the Appellant herein, and that she then visited the scene and arrested both the Appellant and FK , whom she however later released pending investigations. She then produced the Certificate of Birth which indicated that the complainant was born on 10/08/2006 and also the Child’s Hospital Card, and testified that subsequently, a DNA test was conducted. She also produced a letter from the complainant’s school. In cross-examination, regarding FK’s contestation of paternity, she testified that FK did so when he was with his friends while drunk. She then stated that the Appellant is 70 years old, and agreed that she could not ascertain when penetration occurred since the children had already ben born, and also agreed that duration within which examination for penetration should be conducted is 72 hours. She also agreed that the DNA was to ascertain paternity, not defilement, and reiterated that the test revealed that the Appellant was the 1 st child’s father.
15. After the Prosecution closed its case, the Court found the Appellant with a case to answer and placed him on his defence. The Appellant then gave sworn testimony in his defence as DW1 .
16. The Appellant testified that he is 67 years old and termed the charges as false. He confirmed that FK is his grandson and that the complainant is a neighbour. He also confirmed that the complainant delivered her first child in 2020 and that she had a romantic relationship with FK , and also that she used to visit FK at his house where he once found her lying in FK’s bed, and that they were both students, FK in Form 3 and the complainant in class 8. He also confirmed that he operates a posho mill and added that he also operates a carpentry workshop, and testified that his wife died in 2019 and that FK runs his businesses. He also confirmed that the complainant’s family and his are his relatives, and that after the 1 st pregnancy, the complainant’s family approached him about the matter and he agreed to be supplying milk for the baby, and that the complainant’s family told him that FK had denied being responsible for the pregnancy. He also confirmed that the complainant gave birth to the 2 nd child on 16/12/2022 upon which he stopped supplying the milk, and claimed that thereafter, the complainant’s brothers went to his posho mill and assaulted him claiming that it is him who had sired both children, and that he screamed and was rescued and that the brothers were arrested, charged and later convicted and fined. He also confirmed that he was taken to the Government Chemist at Kisumu where the DNA test was conducted on him, and he also claimed that the complainant’s family dragged him through negative media publicity about the pregnancies. He denied that the alleged child is his and doubted the DNA test results terming it as a possible forgery by the Investigating Officer, claiming that the Officer is related to the complainant’s family. He also claimed that the complainant’s family and the police have been soliciting for and extorting money from him, and also threatening and blackmailing him. He also pointed out that the P3 Form was procured in 2023.
17. As further aforesaid, by the Judgment delivered on 12/11/2024, the trial Court found the Appellant guilty, convicted him, and sentenced him to serve 20 years imprisonment.
18. I then gave the parties the liberty to file written Submissions but only the Appellant seems to have filed the Submissions dated 10/09/2025. I say so because despite Prosecution Counsel requesting for more time to file her Submissions, I have not come across any filed on behalf of the State, whether in the Judiciary Case Tracking System (CTS) online platform or in the physical Court file.
Appellant’s Submissions
19. The Appellant’s Submissions is basically a recital of the Grounds of Appeal. Counsel submitted that a victim of defilement or rape is supposed to be examine immediately after the incident, probably before taking a shower or changing clothes, and observed that in this case, the medical examination was conducted 2 years after the alleged incident. He criticized the trial Court for anchoring the conviction on the DNA Report dated 5/04/2023 despite the offences spanning from May 2020 to December 2022, and urged that the DNA results did not tie the Appellant to any specific act of penetration on any particular date, and that Section 36(1) of the Sexual Offences Act permits scientific testing “where appropriate” but does not allow conviction based solely on such results. He also faulted the Court for circumventing the provisions of Section 124 of the Evidence Act which allows the Court to convict in sexual offences cases on the basis of testimony of the complainant as a single witness but only where the Court records its reasons for believing such testimony. He submitted that in this case, no such reasons were recorded. Counsel also submitted that the complainant identified FK as the father of both children, which fact was corroborated by inclusion of the alias “ T…….” in the charge sheet yet the Prosecution failed to investigate or summon FK thereby breaking the evidential chain. He submitted further that the trial Court erred by failing to give proper consideration to the Appellant’s defence and submissions, as the Appellant stated that he was wrongfully implicated due to a family vendetta after withdrawing material support, including supply of milk to the complainant’s household. Counsel also cited several authorities in support of his contentions above.
Determination
20. As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses (See Okeno vs. Republic [1972] E.A 32) .
21. The broad issues that arise for determination in this Appeal are evidently the following:
a) Whether the defilement charge against the Appellant was proved beyond reasonable doubt and what was the place of the DNA test results in the trial.
b) Whether the sentence of 20 years imprisonment was justified.
22. On whether the charge was proved beyond reasonable doubt, it is trite law that for the offence of defilement to be established, 3 ingredients must be proved, namely, age of the victim, penetration and positive identification of the offender. In respect thereto, Section 8(1) and 8(3) of the Sexual Offences Act under which the Appellant was charged provide as follows:
“8. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years .”
23. In this case, the charge sheet indicates the complainant’s age, as at the date of the offence (between May 2020 and February 2021), as 14 years old. On the other hand, the complainant’s Certificate of Birth indicated that she was born on 10/08/2006. Going by the Certificate of Birth therefore, the complainant was indeed about 14 years at the date of the alleged offence, thus below 15 years. I am therefore satisfied that the ingredient of age was sufficiently proved.
24. On the issue of “ penetration ”, Section 2(1) of the Sexual Offences Act defines the term as “ the partial or complete insertion of the genital organs of a person into the genital organ of another person .”
25. In regard thereto, the Court of Appeal, in the case of Mark Oiruri Mose v R (2013 eKLR, guided as follows:
“….. In any event the offence is against penetration of a complainant and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.”
26. In this case, the complainant, in her evidence-in-chief, accused the Appellant of two separate cases of defilement. For the 1 st incident, she narrated that sometime between the year 2020 and 21/02/2021 when she had taken maize for milling at the posho mill belonging to the Appellant, the Appellant made her stay behind after all customers had left, began seducing her and then locked the door, before he grabbed her, pulled up her dress, removed her panty, removed his belt and lowered his trousers and shorts, and then pushed her towards some potato, covered her mouth and had sex with her. She testified that she conceived after the incident but no one knew about it and that her mother only discovered when she delivered a baby in the house, and that it is after this that she disclosed that it was the Appellant who had fathered the child. She testified that when she informed the Appellant, he asked her to implicate his own grandson, FK , and also asked her to abort but she refused. She testified further that her mother and the Appellant entered into an arrangement whereby the Appellant would be supplying milk for the baby.
27. Regarding the 2 nd incident of alleged defilement, she testified that on a certain day she had gone to the Appellant’s home to collect milk in accordance with the arrangement referred to above when the Appellant asked her to go inside his house to watch television and that as the Appellant’s maid was outside milking the cow, the Appellant came, closed the door and told her that he wanted to change the channel but then jumped on her, undressed her and had sex with her for about 10 minutes. She stated that it was about 2 months later when she realized that she had again conceived.
28. Her testimony is that it is after the 2 nd incident that the two separate acts of defilement were both reported to the police and the Appellant arrested.
29. In the end, the complainant asserted that it is only the Appellant who defiled her, and denied that she had ever had sex with the said FK .
30. In cross-examination, the complainant conceded that FK , the Appellant’s grandson, had indeed been her boyfriend since she was in class 7. She also stated that she delivered the 1 st child on 21/02/2021 and the 2 nd child on 17/12/2022 and agreed that the matter was reported to the police on 27/12/2022. She also stated that she told her mother that she had been impregnated by FK as that is what the Appellant had asked her to do. She however insisted that the Appellant is the father to her 2 nd child. She then stated that she had in fact, had sex with the Appellant 3 times, once in 2020, twice in 2021 and twice in 2022 thus adding a 3 rd incident not earlier disclosed in her evidence-in-chief. She then denied that she had sex with FK in 2021. She also agreed that the P3 Form was only procured in 2/03/2023, and the Appellant arrested 3 years after the incident.
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