1.Joel Ochieng Juma, the appellant herein, was convicted after pleading guilty to the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 0f 2006.
2.The particulars of the offence are that on the night of the 1st day of November 2018 at [Particulars Withheld] , Rangwe sub-County within Homa Bay County, intentionally and unlawfully caused his penis to penetrate the vagina of J.A.O, a child aged 15 years.
3.The appellant was sentenced to twenty (20) years’ imprisonment. He was aggrieved and filed this appeal against both conviction and sentence. He raised grounds of appeal as follows:a.That trial magistrate erred both in law and fact in convicting the appellant without considering that the evidence tendered was meant to falsely implicate him.b.That the trial court failed to appreciate that the appellant was not medically tested to ascertain whether he committed the offence.c.That the trial court grossly erred both in law and fact to believe the make-believe story created by both PW1 and PW9 to conceal their wayward acts by implicating the appellant in the offence.d.That the trial court did not consider that PW1 testified that at the alleged rented house there was a lack of sufficient lighting to confirm if it was indeed the appellant and not the other person (PW9) who she said was in the house who committed the said act.e.That vital witnesses did not come to court to testify.f.That the trial magistrate erred in law and fact by demonstrating that she was biased and prejudicial against the appellant as enshrined in Article 50(2) of the Constitution.g.That broken or missing hymen is not proof of penetration or defilement.
4.The appeal was opposed by the state through David Ndege, learned counsel. He raised the following grounds of opposition:a.That the prosecution proved the case to the required standards.b.That all ingredients of the offence were proved.c.That the sentence meted was legal.
5.This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic  EA 32.
6.Article 50 (1) of the Constitution provides for a fair hearing in the following terms:
7.To sustain a conviction for the offence of defilement, the prosecution has to prove the following ingredients:a.Whether there was penetration;b.Evidence must show that the accused is the perpetrator; andc.The age of the victim must be below eighteen years.In the case of Fappyton Mutuku Ngui vs. Republic  eKLR Joel Ngugi J. said:These are the ingredients I will endeavour to find if they were proven.
8.The evidence of J.A.O (PW1) which was supported by that of PW2, was that the duo went for a haircut at the barber shop of the appellant. They found many customers and they were the last to be attended. This was at about 8 p.m. The appellant and his companion closed the shop and he (the appellant) seduced the complainant and she agreed to accompany him to his house. This is where they had a sexual liaison.
9.On the following morning, PW1 testified that the appellant advised her to go to her sister’s home instead of her parents’.
10.Clifford Abuya (PW7) examined the complainant on the 4th day of November 2018 and observed that she had a freshly torn hymen. The tear was about 2 1/2 days old. He therefore concluded that she had been defiled.
11.A copy of the Certificate of Birth that was produced indicates that the complainant was born on the 24th of December 2002. As of 1st day of November 2018, she was aged 15 years and eleven months.
12.In his defence the appellant contended that on the material day, his mother went for him and he accompanied her to their home. They went to a prayer meeting that ended at 6.30 p.m. He returned to his business premises the following morning. He called DW2, DW3 & DW4 erroneously indicated as DW5 who supported his claim that on the material day and time, he was at home.
13.When an accused raises an alibi defence, he/she does not assume any burden to prove that it is the truth. This was stated in the case of Kiarie vs. Republic  KLR where the Court of Appeal held:
14.The alibi defence could not be true for his witnesses introduced material contradictions. His father DW2 testified that he was arrested on the 1st day of November 2018 whereas the evidence on record including that of the appellant was that he was arrested on the 2nd day of November 2018. Whereas he contended that he went home in the company of his mother, his wife DW3 testified that he left Rangwe for home in the company of his father.
15.The evidence of Paul Otieno Opado (PW9) supported the contention of the complainant and DW2.
16.The learned trial magistrate was, therefore, justified to dismiss the alibi defence tendered by the appellant.
17.The evidence against the appellant is that of the complainant and circumstantial evidence. The proviso to section 124 of the Evidence Act states:
18.What is circumstantial evidence was explained in the case of Mohamed & 3 Others vs. Republic 1KLR 722 Osiemo Judge as follows:
19.From the evidence on record I find that there was sufficient evidence on record for the trial court to believe that the complainant was telling the truth as to who defiled her. The circumstances of this case cannot lead to any other hypothesis other than that the appellant committed the offence of defilement.
20.For an offence of defilement to be proved, it is immaterial that the complainant was an active participant except in instances where there is an obvious deception on age or where it is genuinely believed that the victim is an adult. This was not the case in this matter.
21.Section 8 (3) of the Sexual Offences Act provides:The appellant was sentenced to the minimum period provided by the law. I have no basis to interfere with the said sentence. The appellant, by the time this matter was concluded, was serving another sentence. That period cannot be factored in this case.
22.The upshot of the foregoing analysis of the evidence on record, I find that the appeal lacks merits and is accordingly dismissed.