1.The Appellant was charged with the offence of Defilement contrary to Section 8(1) (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence as per the charge sheet are that on 24th January 2020 at around 1300hours in [Particulars withheld] area of Mpeketoni division in Lamu West Sub-County within Lamu County the Appellant intentionally caused his penis to penetrate the anus of SWK a child aged five years. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the offence hereof being that on 24th January, 2020 at around 1300 hours in [Particulars withheld] area of Mpeketoni division in Lamu West Sub County within Lamu County, the appellant intentionally touched the anus of SWK a child aged five years with his penis against his will.
2.The trial court found the appellant guilty on the main charge and sentenced him to serve life imprisonment.
3.Aggrieved by the conviction and the sentence of the trial court, the Appellant lodged an appeal on the following grounds:1.That the learned trial magistrate grossly erred in both law and facts by failing to consider that no identification parade was conducted pursuant to cap 46 of the police force standing orders, prior to the arrest of the appellant, thereby making the mode of the arrest not free from the possibility of error resulting to mistaken identity as this was identification of a stranger.2.That the learned trial magistrate erred in both law and fact by failing to consider sharp contradictions by the prosecution witness in breach of Section 163 (1) (c) of The Evidence Act.3.That the learned trial magistrate erred in both law and facts by failing to adequately consider evidence.4.That the learned trial magistrate erred in both law and facts by failing to consider that the sentence imposed to the appellant is unlawful, manifestly harsh and excessive in all the circumstances
Evidence at Trial
5.The prosecution in advancing their case against the appellant called a total of seven witnesses. The summary of evidence tendered is as follows.
6.PW1- SWK aged 5 years and a class one pupil at [Particulars withheld] primary school upon voir dire being conducted he told the court that on a certain Friday on his way from school the accused forcefully held his right hand. He was wearing a camouflaged vest and a brownish trouser; had no shoes, and had lots of hair in the middle of his head and no hair on the sides. The accused asked him to accompany him to pick fruits somewhere near his home where he removed the complainant’s shorts and his trousers. He inserted something in his anus which he did not see as he was lying on his stomach. When he finished he took leaves and wiped the complainant’s anus. On his way, the complainant met one Musa and explained to him what had happened. Musa carried him on his bicycle and took him home. He told the complainant’s father what had happened. His father then took him to the police station and later to Mpeketoni hospital where he was treated.
7.PW2 – Musa Wekesa gave sworn testimony. He told the court that on 24.03.2020 at around 13:00-13:30 hours while on his way from the shops he saw someone ahead of him wearing an army vest and a dark brown trouser. He then saw the complainant coming from the bushes in school uniform. It was his testimony that the complainant ran towards him and told him that the accused had defiled him. The person had his hair shaved in box format. He then took the complainant and on the way met one Genaro and told him what the complainant had told him. Genaro advised him to take the complainant home where he found his father and explained to him what had transpired.
8.PW3 - Genaro Wachira Mwaniki the village elder of [Particulars withheld] informed the court that on 24.01.2020 a child was brought to him by Pw2. He told him the child had been sodomised by a man who ran away. Upon questioning the minor, the minor told him what had happened. He then investigated and narrowed down on the accused who on 28.01.2020 was identified by the minor. The accused had his head shaved box style. The accused was then taken to the police station.
9.PW 4- PKK the complainant’s father, testified that on 24.01.2020 at around 14:00hours the complainant was brought home by Pw2 who informed him that the minor had been sodomised. The complainant confirmed that he had been sodomised. He went to the village elder who informed him to go to the police. He checked the child’s behind and he had a lot of leaves on his anus. He then took the minor to the police station, recorded their statement and went to Mpeketoni sub county hospital. The complainant was then examined. The minor was questioned and stated that he did not know the accused before but pointed out that the perpetrator wore an army printed type of vest and there are only three people in the area with the said type of vest. On 28/01/2020 the minor identified the accused who was then arrested and taken into police custody.
10.PW 5- RW the minor’s mother, told the court that on 24/01/2020 she was at the hospital for a doctor’s appointment at Mpeketoni Sub County hospital when Pw4 and the minor went and she was informed by PW4 that the minor had been sodomised. Investigations were then conducted narrowing down on the accused. When they went to the accused place, he was in the company of another man and the child pointed at the accused who had his head shaved box style.
11.PW 6- Musyoki Kalinga a clinical officer at Mpeketoni sub county Hospital informed the court that he had treatment notes for the minor dated 24/1/2020. That in examination, there were bruises on the anal area and some fluids were observed which had sperms. A digital examination was done to confirm the muscle strength of the minor and the findings were that the muscles were loose. The conclusion was that the minor had been sodomised.
12.PW7- force number xxxx Fatuma Salim the I.O informed the court that 24/1/2020 she was assigned the case for investigation. She interrogated the minor and his father. The minor stated that he did not know the accused’s name but he could recognize him. He accompanied them to Mpeketoni Sub county hospital where the minor was examined and treated having been sodomised. The minor had given a description of the accused which led to his apprehension.
13.The appellant was placed on his defence and elected to give sworn evidence.
14.He told the court that he had a grudge with the complainant’s father who promised to kill him or bewitch him. The complainant while accompanied by the village elder and his mother, when at first was asked if it was the accused nodded his head in disapproval but changed and said it was the accused when his mother shouted at him. He was then arrested and taken to the police station.
Analysis and Determination
15.I have considered the lower court record and the submissions by the appellant and the respondent as well as the authorities relied upon, and the only issue for determination is whether the ingredients for the offence of defilement were established by the prosecution beyond reasonable doubt.
16.The ingredients for the offence of defilement as were identified in the case of George Opondo Olunga v Republic  eKLR, are; identification or recognition of the offender, penetration and the age of the victim.
Proof of Age
17.Pw1 who is the victim, testified that he was five years old. A copy of birth certificate PEX 1 was produced in court which shows that the minor was born on 05/05/2014. The offence allegedly took place on 24/1/2020 and by calculation, the minor was 4 years and 8 months old. Age must be proven by cogent evidence and in various ways as stated in the case of Francis Omuroni vs. Uganda, Criminal Appeal No. 2 of 2000, where the Court of Appeal of Uganda held thus: -
18.I find that the prosecution proved the complainant’s age by production of the birth certificate.
Proof of Penetration
20.Pw1 the complainant informed the trial court that the accused had pulled down his short and inserted something in his anus area. His evidence is corroborated by the treatment notes PEX - 2 and the P3 form PEX-3; they confirm that the complainant had bruises on the anal area, fluid suspected to be semen on the lower side of the anus and a digital examination revealed that the muscles of the anal area were loose which are consistent with sodomy. From the medical evidence and the victim’s evidence there is no shadow of doubt that the victim was penetrated in the anus with a penis, by the appellant. I find that the element of penetration of a sexual organ by a sexual organ was sufficiently established.
21.In Turnbull and others (1979)3 AR ER 549, it was stated thus:-
22.The appellant challenges the aspect of identification. He asserts that there was no identification parade. The victim while testifying was consistent that he did not know the accused but could identify him. He gave a vivid description that the accused was wearing an army like vest and a brownish trouser and his hair was shaved box style. Pw-2 also testified giving the same description of someone he saw near the scene of the alleged crime. Pw-4 the victim’s father testified that only three people in the area had the kind of vest the accused was wearing. Pw-3 the village elder confirmed that the accused had the said vest. Pw-1, Pw-2, Pw-3 and Pw-4 were all consistent in the description of the accused, more so, the camouflaged vest and his style of hair. Even if there was an iota of doubt, it’s cleared as the prosecution witnesses present at the apprehension of the accused consistently told the court that the victim had positively pointed out to the appellant who was in the company of another man, as the real culprit.
23.What is now left for my determination, is whether the evidence adduced in respect of identification is cogent enough to point towards the Appellant. I make reference to the Court of Appeal case of Michael Kinuthia Muturi vs. R. CRA 51 of 2002 (NRI) where the following was stated:
24.I am satisfied that the element of identification was sufficiently proved. In view of the foregoing, I do find that indeed there was sufficient evidence to sustain a conviction.
25.Having found that the conviction is safe, I now turn to the issue of sentence. The appellant while challenging his sentence, relied on the Muruatetu Case
26.The Court of Appeal sitting at Nyeri in the case of Francis Nkunja Tharamba v Republic  eKLR held as follows with regards to sentencing:
27.In Francis Karioko Muruatetu & Another v Republic, Katiba Institute and 5 Others (Amicus Curiae) the Supreme Court held that;
28.From the provisions of Section 8 (2) the minimum sentence for the offence of defilement to a child aged 11 years and below is life imprisonment. I do find that the sentence is in line with the provision stated herein and thus there is no ground for me to interfere with the same.
29.The upshot is that the appeal fails in its entirety.