Analysis and determination.
19.In Okeno v Republic  EA 32 at 36, the duty of a fisrt appellate court was stated thus:
20.In a charge of defilement, the prosecution is required to establish; complainant’s age, the fact of penetration and positive identity of the assailant.
21.Before delving into the specific ingredients, I will deal with the preliminary issues raised by the appellant thus; failure to comply with Section 200 of the Criminal Procedure Code and the language used in the trial.
22.On the issue of section 200 of the CPC, Sub-Section (3) thereof provides;
23.This provision has been interpreted in several decisions of this court some of which I highlight as follows; in Ndegwa v Republic  KLR at 534 the Court of Appeal stated:-
25.Looking at the record in this matter, Hon Rashid FM took over the conduct of the matter from Hon Njalale who was on transfer. Subsequent proceedings that show that on March 14, 2019, the matter came up for mention to confirm the progress of typing the proceedings. On March 28, 2019, the matter came up again in the presence of defence counsel. On that date, a hearing date was fixed.
26.My perusal of the record shows that counsel did not raise the issue of failure to comply with Section 200 of the CPC. I find that if counsel deemed the directions taken on February 13, 2019 was unfavourable to the appellant, an application to that court would suffice. In this case, the matter has been raised on appeal and not in the trial court.
27.In the circumstances, I find that the directions given on the said February 13, 2019 were not a violation of the appellant’s right to fair trial. I thus reject this line of argument.
28.On the issue of language, I note that the appellant was represented all through the trial. The issue of the language used in the proceedings is not material at this moment.
29.Going back to the ingredients of the offence, on the element of age, I note that a birth certificate was produced without objection from the defence in the trial court. I find this limb was proved.
30.The other element is penetration which is defined by section 2 of the Act as; the partial or complete insertion of the genital organs of a person into the genital organs of another person.
31.In this case, the minor testified that; he told me to lie on his bed, he removed his dudu and inserted it in my dudu. He uses his dudu to urinate and use mine to urinate too.
32.According to PW-3, a clinical officer who examined the minor, she found that the hymen was broken and the vagina pus-filled. She concluded that the minor had been defiled as it was not normal for a vagina to have pus.
34.It is also trite law that penetration can be proved by way of the victim’s evidence and or medical evidence which clearly showed that the minor had injuries on her genitalia.
35.On the appellant’s identity, the record shows that the appellant was a neighbour to the minor and that the appellant would occasionally charge his laptop from the minor’s home. The minor’s mother indeed confirmed that the minor enjoyed a cordial relationship with the appellant. During the trial, the minor identified him from the dock as Elly.
36.I find the element of identification by way of recognition to have been proved satisfactorily.
37.The appellant also faults the trial court for rejecting his defence of alibi and shifting the burden of proof to him. The defence was to the effect that the appellant was at work on the date of the offence and left work at 5.30 p.m carried by DW-2 on his motorcycle.
38.To that extent, he produced an attendance register showing that he reported to work at 7.45 am.
39.My analysis of the same shows only the reporting time. According to the evidence tendered by the prosecution, the offence occurred after the minor had come back from school which must be in the evening.
40.When an accused, in this case the appellant raises a defence of alibi, the evidence of such defence has to be weighed against all the other evidence presented by the prosecution. In Abdullah Bin Wendo v Rex 20 EACA 166, it was stated:
41.In this case, the time of the offence was after the minor had returned back home from the school, the exact hour is not indicated. The trial magistrate having considered the same found it not to have been sufficient to displace the prosecution’s evidence.
42.I equally find that in light of the evidence tendered by the prosecution in the trial court, the defence was not proved to the required standard and I reject it.
43.On the issue of sentence, Section 8(2) provides for a life sentence, the appellant herein was sentenced to 25 years imprisonment. I find this to be lenient in the circumstances. The appellant has not shown that the trial magistrate in handing down the sentence considered irrelevant factors or failed to take into account material factors before handing down the sentence.
45.Premised upon the above reasons, I do find that the appeal is without merit and I proceed to dismiss it.
46.The conviction and sentence are hereby confirmed.