1.The appellant was charged 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. The particulars of the offence were that on 20th June 2019 between 1900 hours and 2000 hours at [particulars withheld] village, [particulars withheld] sub-county within Bungoma County intentionally caused his penis to penetrate the vagina of MN a child aged 15 years. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act No.3 of 2006.
2.After a full hearing, the trial court found that the prosecution proved its case to the required standard and convicted the appellant. The appellant was sentenced to 8 years imprisonment.
3.The appellant dissatisfied with the finding of the trial court has now lodged his petition of appeal raising the following grounds:
4.This being the first appeal, this court is mandated to analyse and re-evaluate the evidence afresh in line with the holding in the case of Okeno v. R  EA. 32 in which the Court of Appeal for East Africa held that:
5.Rose Ng’otor (Pw1) testified that she is a clinical officer working at Cheptais Sub-County Hospital. She testified that the complainant had a history of being defiled. She was defiled on 20/6/2019 at 5:00 p.m. at the coffee plantation by a person well-known to her. On speculum examination, she had been bruised and was bleeding but was not swollen. After running laboratory tests, it was confirmed that there were red blood cells in the vaginal swab, pus cells, and epithelial cells. She had injuries to the genitalia, a broken hymen, PV bleeding and curdline discharge. The urine test revealed that she had an infection and was given antibiotics and analgesics. They also examined the appellant who also had pus cells in his urine. She produced into exhibit the complainant's treatment book, Pexh1, the P3 form, and the treatment book for the appellant.
6.TO (Pw2) testified that she is a county health worker. She heard that NM Pw3, who was her neighbor was defiled. Pw2 went to the victim who told her that she was defiled by the appellant in the coffee plantation. Pw2 went to where the child had been defiled and found cabbage and a small pant tied in a handkerchief and kept the items. The following day the chief and police officers were at the complainant’s home but Pw2 testified that Pw3 was trembling and she asked the police if she could take her to the station the following day. They reported the case on the following day and went to Cheptais health centre.
7.After conducting voire dire examination, the trial court directed that the complainant, NM (Pw3) gives unsworn evidence. She testified that on 20/6/2018 at 8:00 p.m. she was coming from Masaba and heading to her mother’s place in Namutokholo. She met the appellant and he held her hand and took her to the coffee plantation. He pushed her down and slept on her. She testified that:
8.She testified that Jomba Wangila came and got her off. The appellant started throwing stones at him and was told to go home. When she arrived home, she was alone and Pw2 took her to the police station and she told the police what had happened. She testified that she clearly saw the appellant who was well known to her. She recalled that there was lighting from the sky and the appellant wore a black coat and gum boots.
9.The appellant was placed on his defence and elected to keep quiet.
10.The appellant submits that the proceedings before the subordinate court were conducted in violation of Articles 49 and 50 of the Constitution. The appellant was arrested one month after the offence was committed giving an indication that they were not sure who committed the offence. She testified that the police indicated the age of the child as 15 yet it was not substantiated by any evidence. Although Pw2 testified that the child was 15 years she was not a medical practitioner. Pw1 on the other hand did not attend to the complainant and merely presented the evidence of another medical officer. There was no documentary evidence, that is a birth certificate, baptismal card, or age assessment report that shows the child’s age. He submitted that the child was 20 years old.
11.The only eyewitness Jomba Wangila did not testify before the court. The appellant submits that he was framed so that they could take his properties. He pointed to the evidence of Pw2 who testified that the girl admitted that she was on her period from Thursday. He testified that there were contradictions in the testimony of Pw1, Pw2 and Pw3 leading to the conclusion that the girl was coached.
12.He also pointed out that the appellant identified the perpetrator as Jomo Kabaka yet he is Samuel Kurima Musundi and the two were different people.
13.The prosecution in their submissions argued that they had proved the age of the complainant, that there was penetration, and the identity of the perpetrator. On the age of the minor, it was submitted that the trial magistrate had the benefit of seeing the minor and she appeared to be a minor. They relied on the case of JAO v Republic (2019) eKLR. On the issue of penetration, they submitted that Pw1 confirmed the fact of penetration on account that the child was bruised, bleeding, and had a broken hymen. On the issue of identification, it was submitted that the complainant knew the appellant for a long time, and at the time there was sufficient light from the sky to identify the appellant and she gave a description of how he was dressed. The court invoked the provision of section 124 of the Evidence Act and believed that the child was telling the truth.
Analysis And Determination
14.The elements constituting the offence of defilement include penetration, the age of the victim, and the identification of the offender.
15.Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case, the prosecution's evidence was clear that there was evidence of penetration. Pw3 testified that:
16.Pw3’s evidence was further corroborated by the testimony of Pw2 who testified that she examined Pw3 who had sustained injuries to the genitalia, a broken hymen, was bleeding, and had a whitish discharge. I therefore find that penetration was proved beyond reasonable doubt.
17.I now turn to consider whether the prosecution proved that the victim was 15 years old. The appellant submitted that Pw3 was 20 years old. He faulted the prosecution for failing to provide documentary evidence such as a birth certificate, baptismal card, or age assessment report to prove the age of Pw1. The age of the complainant could be proved through the parents of the victim or by medical evidence. The Court of Appeal in Richard Wahome Chege v Republic Criminal Appeal No 61 of 2014, sitting in Nyeri held that:
18.In the case of Francis Omuroni vs. Uganda, Criminal Appeal No. 2 of 2000, where the Court of Appeal of Uganda held thus:
19.In this case, the prosecution evidence on age was based on the testimony of Pw1, Pw2, and Pw3. Pw3 testified that she was 15 years old while her neighbor Pw2 testified that the complainant was born in 1999 and this would mean that she was 20 years old when at the time of the offence. I however note that Pw2 was not the victim's parents/guardian and in my view, her evidence on the victim’s age carried very little weight. The clinical officer, Pw1 during her examination in chief testified that the complainant was 15 years old. The trial court in her judgment on the issue stated:
20.The trial court’s decision was therefore based on her observation and the respondent in their submissions supported the finding of the subordinate court. There were are contradictions concerning the age of the complainant and this was also captured by the trial court.
21.Pw1 in her testimony before the subordinate court testified that the complainant was 15 years. However, in the P3 Form which was filled by Pw1 in her capacity as a clinical officer, she found that the estimated age of the complainant was 18 years. There were definitely contradictions in the evidence tendered by the prosecution. In Philip Nzaka Watu v Republic (2016) CR APP 29 OF 2015, the court held that:
22.The Court of Appeal in Richard Munene v Republic  eKLR, the Court of Appeal stated with regard to contradiction or inconsistency in the evidence of the prosecution witness:
23.In this case, there were clear contradictions regarding the complainant’s age. I note that the trial magistrate had the opportunity to see the complainant, however, she did not make any finding on the evidence contained in the P3 form that was filled by Pw1 which revealed that Pw3 was 18 years old. The trial magistrate ought to have ordered an age assessment report in the circumstances. It is also my finding that contradictions in prosecution evidence could not simply be resolved by the trial magistrate’s observation of the victim in her judgment. In my view, the contractions regarding the age of the complainant were fundamental and went to the root of the prosecution case. Therefore, the contradictions regarding the age of the complainant should be resolved in favor of the accused person. I therefore find that the complainant was 18 years old at the time of the offence and the element of age was not proved to the required standard.
24.In the end,the appeal against conviction and sentence is allowed forthwith and the appellant shall be at liberty unless otherwise lawfully held.