18.The Appellant did not submit on the issue of age. On its part, the Respondent submitted PW 1 was a child. It pointed out that PW 1 testified that she was born on 3rd April 2006, a fact that was corroborated by Samuel Omari Rigare (hereinafter referred to as “PW 3”) and No 83851 CPL David Adundo (hereinafter referred to as “PW 4”) who produced PW 1’s Birth Certificate indicating the aforesaid date of birth.
19.A perusal of the Birth Certificate showed that PW 1 was born on 3rd April 2006. The offence took place on 9th August 2018. She was therefore aged twelve (12) years at the material time of the incident and thirteen (13) years old when she was testifying in 2019.
20.This court was thus persuaded that PW 1’s age had been proven and that for all purposes and intent, she was a child.
21.The Appellant submitted that there was only a single identifying witness. On its part, the Respondent submitted that PW 1 stated in her testimony that the Appellant was a brother to her grandfather and that she used to go to his house to help with house chores as the wife had left him. It contended that that meant that the Appellant was a person she knew so well and could positively identify him. It was its case that the Appellant was therefore positively identified as the perpetrator.
22.The Respondent summarised the evidence that was adduced by the Prosecution witnesses. It was, however, not necessary to set it out again. Suffice it to state that PW 1 maintained that she knew the Appellant well and that in his unsworn testimony, the Appellant admitted that PW 1 would go to his home and fetch him water. It was therefore clear that the Appellant and PW 1 were not strangers to each other. Any identification of the Appellant by PW 1 was by way of recognition.
23.The question of whether or not he defiled her was a different question altogether.
24.The Appellant submitted that there was a contradiction regarding the date when the incident was alleged to have taken place. He pointed out that the Charge Sheet indicated the date to have been 9th August 2018, PW 3 testified that it was on 11th February 2018 and that George Mwita (hereinafter referred to as “PW 2”) averred that they received PW 1 on 13th August 2018 as per the P3 form yet in his evidence in chief, he stated that he examined her on 13th February 2018.
25.He asserted that the delay in ferrying PW 1 to the hospital affected PW 2’s findings given that the Post Rape Care (PRC) Form was dated 11th February 2018 and showed that her genital organ was normal.
26.It was his case that the medical evidence did not support the allegation of defilement and that there was no evidence that the genitalia of PW 1 came into contact with his organs, that there were no injuries on the external part of the organ and that her hymen was not freshly broken. He added that the degree of injury and the probable type of weapon were not ascertained.
27.On its part, the Respondent submitted that penetration was proved by medical evidence and corroborated by the evidence of PW 1 as highlighted in the case of Charles Wamukoya vs Republic Criminal Appeal No 72 of 2013(eKLR citation not given). It contended that PW 1 testified that she would go to the Appellant’s house to help in cooking and that he defiled her three (3) times. It added that PW 2 examined her and filed a P3 form and a PRC form. It pointed out that the medical examination revealed that PW 1’s hymen was broken, there were bruises on the vaginal walls and that she had a whitish discharge from her vagina which was proof that she had been defiled.
28.When PW 1 testified on 4th March 2019, she said that the Appellant was her uncle and that in August 2018, he called her to his house, asked her to remove her clothes and he inserted his penis into her vagina. He asked her not to tell anyone about the incident and gave her a sum of Kshs 10/=.
29.She added that on another day, he called her to fetch water and to cook for him. When she got home her grandparents beat her and to asked her disclose where she had come from. She told them that she had come from the Appellant’s house and they had sexual intercourse after he sent her to the shop. She identified the Appellant in court as the person who had sexual intercourse with her. When she was cross-examined, she stated that the Appellant had sexual intercourse with her on three (3) occasions. “PW 3” corroborated her evidence in this regard and explained that it was discovered that she had been defiled after a physical examination was conducted by his wife.
30.Notably, when she testified on 8th October 2021, PW 1 referred to the Appellant as a brother to her grandfather. Previously, she had referred to him as her uncle. Be that as it may, on this day, she reiterated what she had told the first Trial Court.
31.PW 2 adduced in evidence the P3 Form and the Post Rape Care (PRC) Form in evidence. He stated that PW 1 had lower abdominal pains and although her genital parts were normal, her hymen was absent and she had bruises and a whitish discharge from her vagina. He concluded that sexual penetration had taken place.
32.Whereas the Appellant had challenged her evidence as a single witness, nothing barred a trial court from relying on the evidence of a single witness. Notably, the proviso of Section 124 of the Evidence Act Cap 80 (Laws of Kenya) states that:-
33.Although PW 1 was a single witness, her evidence was scientifically corroborated by the P3 Form and PRC Form that were adduced in evidence by PW 2 of Ahero Hospital showing that there was penetration in her vagina and PW 3’s evidence that a physical examination of her vagina showed that she had bruises which a confirmation that she had been defiled.
34.The Appellant’s assertion that PW 2 testified that he examined PW 1 on 13th August 2018 was immaterial, irrelevant and was rendered moot because the P3 Form was dated 13th August 2018, The PRC Form referred to the date of the incident having been 11th August 2018. Notably, the P3 Form had indicated that the approximate date of injuries was four (4) days which correlated with the date of 9th August 2018 that was indicated in the Charge Sheet. PW 1 had been defiled three (3) times. This court did not therefore find the evidence as was adduced to have been contradictory and inconsistent.
35.The above notwithstanding, even without the documentary evidence, nothing detracted from the fact that the Appellant defiled PW 1 on the material date and time. She identified him as having been the perpetrator of the offence. His unsworn evidence of alibi did not therefore out-weigh the Prosecution case. In any event, his unsworn evidence had little or no probative value before this court as the veracity of his evidence was not tested.
36.It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic  eKLR.
37.This court came to the firm conclusion that the Prosecution had proved its case against the Appellant beyond reasonable doubt as it had proven that PW 1 was a child, that she was defiled on the material date and that she identified the Appellant as the perpetrator of the offence and that the Learned Trial Magistrate did not err when he convicted him.
38.In the circumstances foregoing, this court found and held that Grounds of Appeal Nos (3) and (4) of the Petition of Appeal were not merited and the same be and are hereby dismissed.