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Hassan v Republic (Criminal Appeal E026 of 2024) [2026] KECA 929 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KECA 929 (KLR) Republic of Kenya In the Court of Appeal at Mombasa Criminal Appeal E026 of 2024 F Tuiyott, KI Laibuta & GW Ngenye-Macharia, JJA May 15, 2026 Between Issa Kussow Hassan Appellant and Republic Respondent (Being an appeal from the Judgement (Ong’injo, J.) delivered on 26th September 2022 in Mombasa Criminal Appeal No. E083 of 2021) Judgment 1.The appellant, Issa Kussow Hassan, was charged before the Chief Magistrate’s Court in Mombasa in Criminal Case No. 26 of 2019 in the main count with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that, on an unknown date during the month of February 2019, at [Particulars Withheld] in Mvita sub-County within Mombasa County, the appellant intentionally and unlawfully caused his penis to penetrate the genital organ (vagina) of HOM, a child aged 12 years. 2.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 in that, during the same period, at the same place, he intentionally and unlawfully touched the private parts, namely the vagina of HOM, a child aged 12 years with his male genital organ, namely the penis. 3.As a precis, the prosecution’s case was that the complainant, PW2, then aged 12 years, was a student at a Madrassa School ran by the appellant, and which she attended between 4.00 to 6.00 p.m. on Mondays to Wednesdays, and the appellant was her teacher for three years. According to her mother, PW1, MRA, on 5th March 2019, the complainant told her that the appellant took her to a separate room from the main classroom at around breaktime where he removed her trouser and also undressed himself after which he defiled her; and that she identified the appellant by the name Issa. PW1 testified that she came to know of the incident in the month of March 2019, but that it was likely that the offence could have been committed in the month of February. PW1, while accompanied by PW3, OMA, the complainant’s father and PW5, Amina Mohamed, a friend to PW2’s mother, took PW2 to hospital where she was examined. PW3 thereafter reported the matter to Makupa Police Station. 4.In her sworn testimony after a voire dire examination, PW2, while corroborating the evidence of PW1, testified that, as at the date of defilement, she was attending Madrassa classes at [Particulars Withheld] Quran School Bin Afan where the appellant was the Madrassa teacher; that it was on a Monday when the appellant asked her to remain behind while the other students were leaving the Madrassa Class; that he took advantage of the absence of other students and defiled her; that she informed her mother of what transpired after a long time; that, although there were two Madrassa teachers, it was the appellant, Issa, who defiled her; that the appellant warned her not to scream while defiling her; and that her mother discontinued her attendance of the Madrassa classes after the incident. 5.The complainant’s P3 form was produced by PW4, Dr. Bikuu Salman Mohamed of Coast General Hospital on behalf of Dr. Aisha Alambu who examined the complainant. The examination revealed healing a laceration and bruises to the vagina, and the hymen was found to be broken. The age of the injury was estimated to be around two months old. According to PW4, the type of weapon which caused the injury was a blunt object, and probably a penis. 6.PW6, PC Nelson Ochieng of Majengo Police Post under Makupa Police Station, was the investigating officer. He summed up the prosecution case and added that he received the report of the incidence on 6th March 2019 from the complainant, who was accompanied by her parents. It was reported that the incident took place in the month of February 2019; and that the appellant, who was the culprit, defiled the complainant while she was attending Madrassa classes where he was a teacher. 7.In his sworn statement of defence, the appellant (DW1) stated that he owned a Madrassa School; that he knew the complainant as his student from 2016 to 2019; that he had a second teacher by the name of Abdiralman; that he resided in the School which was in a three-roomed house; that he used two rooms to himself while the sitting room was used as the Madrassa classroom; that the students would report at different times; and that the first set of students, which the complainant was in, attended class between 6.00 a.m. - 4.00 p.m. and the second set of students from 4.00 p.m. The appellant denied that there was a possibility that he would have defiled the complainant since he lived with his family comprising a wife and six children. He instead blamed the complainant’s father of being jealous of his successful Madrassa business. 8.DW2, Sofia Sheliba, a village elder of Majengo Musa B, testified that she knew the appellant as he sought clearance from her office before starting the Madrassa School. She testified that she used to go to the Madrassa School to monitor how the students were fairing on; and that the appellant’s wife would always be in the house. 9.DW3, Deka Baire Hussein, the appellant’s wife, confirmed that the Madrassa classes used to take place in their home, and had about 100 students; that she knew the complainant as one of the students; that she used to be in the house throughout except when she went to buy vegetables; that she did not witness the defilement; and that the appellant did not have any differences or quarrels with the complainant’s parents, but that the complainant’s family were out to tarnish his name. 10.The trial court relied on the charge sheet and age assessment report which confirmed that the complainant was 12 years old. The learned Magistrate was satisfied that, from her demeanour, the complainant was a truthful witness as she even broke down in court while testifying, lamenting that what was done to her was shameful. 11.As to the fact of penetration, the trial court held that the medical evidence corroborated the complainant’s evidence as the injuries noted were abrasions and laceration, and the hymen was broken as a result of a blunt object which was opined to possibly being a human penis. The trial court also held that the appellant was positively identified by the complainant as he was known to her as her Madrassa teacher. 12.The trial court dismissed the appellant’s defence that the probable cause of the broken hymen was due to circumcision, noting that circumcision involves cutting of the clitoris and not the hymen. The learned Magistrate observed that the failure of the complainant to state the exact date she was defiled was inconsequential and attributed it to the fact that the complainant did not attend formal school and could not read or write. 13.In the end, the trial court found that the prosecution had proved its case beyond reasonable doubt. It convicted the appellant of the main charge of defilement and sentenced him to serve 20 years imprisonment. 14.Aggrieved by the decision of the trial court, the appellant proffered an appeal to the High Court at Mombasa, being Criminal Appeal No. E083 of 2021. The appellant raised seven grounds of appeal which the first appellate court determined on two broad issues, namely whether the prosecution proved its case beyond reasonable doubt and whether the appellant’s defence was considered. 15.On proof of the case, the complainant’s age was found to have been proved through an age assessment report, which was not disputed before the trial court. As to penetration, the learned Judge held that the same was proved through the medical report; and that circumcision which took place when the complainant was 7 years old could not be attributed to healing lacerations and abrasions to the vagina. On identification, the learned Judge dismissed the appellant’s argument that the complainant could not have known who defiled her since she had been his student for three years. The Judge held that the complainant knew the appellant as her religious instructor and, therefore, there was no need to conduct an identification parade, the appellant’s identification being by way of recognition. 16.The learned Judge further held that the fact that the complainant could not remember the exact date when she was defiled did not of itself negate the fact that the offence took place; and that the trial court took judicial notice of the complainant’s low literacy levels, and was satisfied that the complainant was a truthful witness, who even broke down during her testimony. 17.As to the assertion that the trial court failed to consider the appellant’s defence, it was held that the appellant’s defence did not raise any alibi, and that the trial court could not consider a non-existent defence. The appellant’s appeal was dismissed for want of merit. Ultimately, the prosecution was found to have proved its case beyond reasonable doubt. 18.Further aggrieved, the appellant proffered the instant appeal which is hinged on three grounds of appeal, namely that:i.the learned Judge erred in law and in fact by disregarding the submissions of the appellant and the respondent;ii.the learned Judge erred in law and fact in dismissing the appellant’s appeal despite the respondent admitting to sufficient doubt that was to exonerate the appellant; andiii.that the decision of the learned Judge was wrong and it was a misdirection to dismiss the appellant’s appeal at the superior court. 19.The appellant prayed that the appeal be allowed; the judgement of Ong’injo, J. delivered on 26th October 2022 be set aside; and that he be set free and be unconditionally released from prison. 20.We heard this appeal on 21st October 2025. Learned counsel Mr. Taliti was present for the appellant while learned Prosecution Counsel Ms. Nyawinda appeared for the respondent. 21.Highlighting the appellant’s submissions dated 25th June 2025, Mr. Taliti submitted that the learned Judge ignored the parties’ submissions and, instead, ventured into the arena of investigations. Counsel took issue with the fact that, in its submissions, the respondent admitted that there were material contradictions in the prosecution’s case as regards the date on which the offence was committed; and that the lack of clarity on the date of the offence occasioned a miscarriage of justice since the appellant could not, with clarity, understand the particulars of the offence charged so as to avail him an opportunity to sufficiently prepare a defence. 22.It was contended that the respondent admitted that there was business rivalry between the appellant on the one hand, with a rival teacher and the complainant’s parents on the other hand; that, our legal system being adversarial, courts are required to be impartial and remain guided by the parties’ case, and are not expected to assist a party to better its own case or otherwise descend into arena of the dispute or controversy as was pronounced by the decision of this Court in Dakianga Distributors (K) Limited vs. Kenya Seed Company Limited (2015) KECA 870 (KLR), inter alia, that “As parties are adversaries, it is left to each one of them to formulate his case in his own way, subject to the basic rules of pleadings…” 23.In view of the foregoing, it was submitted that the prosecution’s case cast doubt as to the appellant’s culpability, which should have been resolved in his favour; and that, on all fours, the prosecution did not prove its case to the required standard - beyond reasonable doubt. To buttress this submission, reference was made to the cases of Pius Arap Maina vs. Republic (2013) eKLR; and Woolmington vs. DPP [1935] UKHL 1 for the proposition that, in criminal cases, the golden rule is that the burden of proof is always on the prosecution to prove its case beyond reasonable doubt, and which burden can never shift to the accused person to prove his innocence. 24.In conclusion, the appellant urged that we allow the appeal; set aside the Judgment of the learned Judge; and immediately and forthwith set him at liberty. 25.In the respondent’s submissions dated 14th October 2025, it was contended that the learned Judge properly exercised her mandate as a first appellate court; that she re–analysed and re-evaluated the evidence adduced before the trial court before coming up with an independent conclusion that the prosecution had proved its case beyond reasonable doubt; that the prosecution proved all the ingredients of the offence of defilement as enunciated by the persuasive decision of the High Court in Charles Wamukoya Karani vs. Republic Criminal Appeal No. 72 of 2013, being the age of the complainant, penetration and identification of the perpetrator; that the age of the complainant was proved by the complainant’s own evidence, that of her parents, the medical reports and the appellant’s admission that Madrassa classes are attended by children below the age of 16 years; that penetration was also proved by the complainant’s testimony and the corroborating medical evidence; that identification was not in question as both the complainant and the appellant were known to each other, their relationship being that of a student and teacher respectively; and that the offence was committed in broad day light when possibility of mistaken identity was remote. 26.Counsel also cited the decision of this Court in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR, submitting that age can be proved by documentary evidence, such as a birth certificate or baptism card, or by oral evidence; and that, in this case, the threshold was met. We were thus urged to find that the appeal had no merit and the same ought to be dismissed in its entirety. 27.This is a second appeal and, by dint of Section 362(1)(a) of the Criminal Procedure Code, this Court concerns itself with matters of law only, the issues of fact having been settled in the two courts below. This Court explained its mandate on second appeal in David Njoroge Macharia vs. Republic (2011) KECA 406 (KLR) as follows:“Only matters of law fall for consideration and the court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings. (See also Chemagong vs Republic [1984] KLR 213).” 28.In Karingo vs. Republic (1982) KECA 23 (KLR); and M’Riungu vs. Republic (1983) KLR 455, this Court further emphasised that a second appeal must be confined to points of law, and that a complaint about facts only becomes a point of law if the findings are unsupported by evidence or disclose a misdirection in principle. 29.We have considered the record of appeal, the respective parties’ written and oral submissions as well as the authorities cited in support of each party’s case. In our view, the issues that fall for determination are: whether the appellant’s submissions were considered; and whether the prosecution discharged its burden of proof in establishing the offence of defilement. 30.The appellant complains that the learned Judge failed in her duty of considering the parties’ submissions. In particular, the appellant takes issue with the learned Judge’s failure to consider that, in its submissions, the respondent admitted that the prosecution’s case was laced with material contradictions insofar as the date of the offence and the possibility of existence of a business rivalry between the appellant and the complainant’s family were concerned. 31.We have appraised ourselves with the respondent’s submissions before the High Court. They were dated 14th July 2022, and are found between pages 99 and 102 of the record of appeal. Indeed, the respondent appeared to be agreeing with the appellant’s submission that its case was laced with contradictions as regards the date of the offence and the existence of rivalry between the two families. It submitted as follows:“Effect of contradiction on dates of commission of the offenceAs was held in Twehangane Alfred v Uganda, it is not every contradiction that warrants rejection of evidence. It was subtly stated in Crim. App. No. 139 of 2001, (2003] UGCA, 6.“With regard to contradictions in the prosecution’s case that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.”It is submitted that there were material contradictions as to the date of the offence and the said (sic) were material to the case. Lack of clarity on the same would occasion an injustice as the Appellant needed to understand the particulars of the offence, in order to prepare sufficiently for the defence case.Whether the case was proved beyond doubt.From the analysis herein, it would appear that there was a business rivalry between the two teachers and the parents of the pupils at the madrassa may have been drawn into the same. The allegation that the minor was circumcisedcreated doubt as to the cause of the healing lacerations. 32.The admission of contradictions notwithstanding, it is factual that none of the grounds of appeal raised by the appellant before the first appellate court challenged material contradictions in the prosecution’s case, including the possibility of business rivalry between the parties. 33.It is neither here nor there what parties have to say in their submissions. What is important is whether an accused or prosecution proved their case by the evidence they adduced. In Moi vs. Muriithi & Another (2014) KECA 642 (KLR), this Court held:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented. In any event all the 1st respondent would claim and prove as loss could only relate to the shares in the companies and not the properties of the companies. And even that he did not do.” 34.In contending that there was admission from the prosecution that there was material contradiction as to the date of the offence, we understand the appellant to be essentially making the argument that the charge sheet was defective for failure to state precisely or with specificity, the date the defilement was committed. The charge sheet reads that the offence took place:“on an unknown date during the month of February 2019.” 35.It is trite law that the failure to state the actual date of the offence in the charge sheet does not occasion a defect in the charge sheet or render the prosecution case fatal. Section 134 of the Criminal Procedure Code provides what the components/ingredients of a charge constitutes as follows:Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. 36.What constitutes a defective charge sheet was spelt out by the predecessor of this Court in the case of Yosefu & another vs. Uganda (1960) E.A. 236 thus:“The charge sheet was defective in that it did not allege an essential ingredient of the offence; i.e. that the skins came animals in contravention of the Act.”And, in Sigilani vs. Republic (2004) 2 KLR, 480, the High Court sitting at Nakuru held that:“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to the specific charge that he can understand. It will also enable the accused to prepare his defence.” 37.This Court in Benard Ombuna vs. Republic (2019) KECA 994 (KLR) discussed the parameters of determining whether a charge sheet is defective or not as follows:“In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” 38.By the mere fact that the prosecution admitted in its submissions of the existence of a contradiction in its case, did not, of itself, render the charge sheet defective. The test is whether the appellant was prejudiced by the alleged omission of stating the actual date of the offence. Reading and appreciating the proceedings before the trial court, the appellant was represented by a counsel. Secondly, the charges which he was facing were read to him in a language which he understood, and he entered a plea of not guilty. In other words, he did not complain that he did not understand what he pleaded to or what he was tried for. Therefore, the complaint that the prosecution’s case was marred with contradictions for want of specifying the actual date of the offence, and for that matter rendered the charge sheet defective, is unmerited. In any event, the omission to specify the date is curable under Section 382 of the Criminal Procedure Code which provides that:…no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgement or other proceedings before or during the trial or in any inquiry or other proceedings under this code unless the error, omission or irregularity has occasioned a failure of justice. 39.The above notwithstanding, we note that the learned Judge substantively and at length considered both the appellant’s and the respondent’s submissions. She arrived at the conclusion that the prosecution’s case was water tight, and that it was not ousted by the appellant’s defence. According to the learned Judge, the complainant, at her age, ably testified that she was defiled on a Monday in the month of February 2019; and that, even if she did not tell of the actual date of the offence, the prosecution established that the offence was committed, and that the culprit was the appellant. 40.Further, even if the respondent admitted to the existence of contradictions in the prosecution’s case, our evaluation of the evidence leads us to the conclusion that none existed. While corroborating the testimony of the complainant, PW1, her mother, was candid that although the complainant reported to her of the incidence in the month of March 2019, she also told her she had been defiled in the month of February of that year. Therefore, the prosecution correctly stated in the charge sheet that the offence was committed on a date in February 2019. 41.As to whether the offence of defilement was established, all that the prosecution was required to prove was the age of the complainant, penetration and identification of the perpetrator as spelt under Section 8(1) and (3) of the Sexual Offences Act which provide:(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 42.As to proof of the age of the complainant, the importance of age assessment was stated by this Court in Mwachongo vs. Republic (2016) KECA 521 (KLR) as follows:“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient in the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.” 43.In Kennedy Mavindu Kyengo vs. Republic (2019) KECA 1024 (KLR), this Court referred to the decision of Kaingu Elias Kasomo vs Republic in Malindi Criminal Appeal No.504 of 2010 (UR), where the Court acknowledged that age assessment may come in many forms. The Court stated that:“Age of the victim of the sexual assault under the sexual offences act is a critical component. It forms part of the charge, which must be proved in the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be dependent on the age of the victim. ” 44.In the case of Francis Omuromi vs. Uganda Court of Appeal - Criminal Appeal No. 2 of 2000, it was held:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense….” 45.In this instance, the complainant’s age was determined by way of an age assessment report which was not disputed, and was accepted as evidence that the complainant was 12 years old as at the time of the offence. 46.As to penetration, it is defined under Section 2 of the Sexual Offences Act as ‘partial’ or ‘complete insertion’ of the genital organs of a person into the genital organs of another person. The complainant vividly recalled how the appellant called her after other children had gone for a break, and after undressing her, defiled her. She testified that the appellant asked her to remove her trouser, made her lie down, whereupon he penetrated her with his penis. PW4 produced the P3 form as prosecution exhibit No. 1, which confirmed a broken hymen. She was healing from a laceration and bruises at the vagina. Both the trial and the appellate courts considered the complainant to be a truthful child, more so having regard to the proviso to Section 124 of the Evidence Act, which allows a court to rely on the uncorroborated evidence of a minor victim in sexual assault cases as long as the court believes that the child is speaking the truth. We have no reason upon which to depart from the finding of fact of the two courts below. Accordingly, we find that penetration was also proved to the required standard. 47.On the issue of identification, we have no doubt that the appellant was positively identified as the perpetrator. The complainant testified that she was defiled by her Madrassa teacher. The appellant confirmed that he knew the complainant as one of his students of about 3 years. The complainant was not a stranger to the appellant, neither was the appellant a stranger to the complainant. They were both acquittances. Hence, the identification of the appellant was by way of recognition, which is more assuring and satisfactory as was held by Madan, JA. in Anjononi and Others vs. The Republic [1980] KLR that:“……This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 48.Further, in Lesarau vs. R, 1988 KLR 783, this Court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name. The complainant recognized the appellant as the perpetrator by the name Issa, whom she said was her teacher. See also Karaton Ole Lesarau vs. Republic (1988) KECA 94 (KLR). More critically is that the offence was committed during the day when likelihood of mistaken identity was slim. We thus find and hold that the prosecution proved the ingredient of identification as well to the required standard. 49.In conclusion, we find no fault in the concurrent findings of the two courts below that the prosecution discharged its burden of proof of the offence of defilement beyond reasonable doubt. And, just as the first appellate court found, we too find that the appellant’s defence to the effect that the charges were levelled against him because there existed a grudge between him and the family of the complainant to be unfounded and based on no evidence. 50.The upshot of our findings is that the appeal is devoid of merit and is hereby dismissed in its entirety. Accordingly, we uphold the Judgment of the High Court at Mombasa delivered by Ong’injo, J. on 26th September 2022.Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS 15TH DAY OF MAY, 2026. F. TUIYOTT…………………............…..JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………………............…..JUDGE OF APPEALF. W. NGENYE-MACHARIA…………………............…..JUDGE OF APPEALI certify that this is the true copy of the originalSignedDEPUTY REGISTRAR