https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7110

Nduto v Republic (Criminal Appeal E036 of 2023) [2026] KEHC 7110 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 7110 (KLR) Republic of Kenya In the High Court at Kajiado Criminal Appeal E036 of 2023 CW Meoli, J May 21, 2026 Between Samson Musembi Nduto Appellant and Republic Respondent (Being an appeal against conviction and sentence in Loitokitok CM’s S.O Case No. 22 of 2019 - C. Ndumia, RM)) Judgment 1.Samson Musembi Nduto, the Appellant herein was charged before the lower court in the main count, with Defilement contrary to Section 8 (1) as read together with Section 8(3) of the Sexual Offences Act. In that on 28th day of August, 2019 in Kajiado South Sub-County within Kajiado county, he intentionally caused his penis to penetrate the vagina of MKM a child aged 14 years. 2.In the alternative, he faced a charge of Indecent Act with a child contrary to Section 11(1) of the Sexual Offences Act. He denied the charges. Following a full trial, he was found guilty, convicted on the main charge, and sentenced to serve 15 years imprisonment. 3.Aggrieved with the outcome, the Appellant filed the present appeal via an undated memorandum of appeal containing 4 initial grounds later amended through submissions to include a 5th ground of appeal as follows: -“ 1.That the Hon. trial magistrate erred in law and fact by failing to explain to the accused of his right to appoint an advocate of his choice in the present matter which was a serious offence calling for a hefty sentence of fifteen (15) years imprisonment if found culpable. 2.That the Hon. trial magistrate erred in law and fact by finding that the key ingredients of the offence were established against the appellant herein while in fact they were not. 3.That the Hon. trial magistrate erred in law and fact by failing to find that the inherent contradictions and inconsistencies on record not only impugned on the credibility of the various witnesses but also vitiated on the overall burden of prove. 4.That the Hon. trial magistrate erred in law and in fact by failing to freshly, comprehensively and deliberately analyze, weigh and consider the strong defence case, which exonerated the appellant from any wrong doing. 5.That the learned trial magistrate erred in law and fact by failing to find that the charge sheet was defective which was relied upon to find conviction, in nature of non- conformity with plea that the appellant took. ‘’ sic Appellant’s Submissions 4.The appeal was canvassed by way of written submissions. By his submissions dated 26th June, 2025 the Appellant in arguing his 5th ground of appeal contended that the trial magistrate erred in law and fact by failing to find that the charge sheet was defective. Stating that Section 134 of the Criminal Procedure Code requires every charge to contain sufficient particulars of the specific offence(s) charged, as held in Issac Omambia v Republic [1995] KLR. 5.The Appellant contended that the charge sheet provided to him differed from the one used during plea-taking, in that while he was charged with Defilement contrary to Section 8(1)(3) of the Sexual Offences Act, with an alternative of Indecent Act contrary to Section 11(a), the copy supplied to him was incomplete, rendering it defective under Section 134 of the CPC. 6.Secondly, the Appellant asserted that the complainant's age was not properly proved as no birth certificate was produced in court, while the age assessment report relied on was of questionable authorship and evidential value, having been produced by the clinical officer who completed the Post Rape Care (PRC) form but who was not its author. 7.Thirdly, in relation to penetration, he contended that the clinical officer who examined the complainant stated during cross-examination that spermatozoa cells were found in the complainant's vagina and urine but concluded that the Appellant person could not have defiled her on that day. Moreover, DNA samples taken from both the complainant and the Appellant were rejected by the Government Chemist for failing to meet required standards, whereas the relevant report from the Government Chemist was not produced. Recounting the clinical officer’s findings that the complainant's hymen was missing, genitalia normal, and absence of discharge or blood, he stated that the complainant was sexually active prior to the incident. In addition, he pointed out, no nexus was established between him, and the spermatozoa found. 8.Addressing what he said were numerous contradictions in the prosecution case, he highlighted the complainant’s assertion that she was forcefully pulled into the Appellant's house and defiled, yet she did not scream despite it being daytime and in a densely populated residence. Further that PW2 confirmed during cross-examination that the Appellant was alone and that she saw no children, whereas the Appellant's defence was that his children were home, making the alleged act impossible. 9.As regards the testimony of the complainant's mother that she saw semen and blood on the child, the Appellant referred to contrary evidence by the clinical officer (PW1). Adding that while PW1 stated that the complainant handed over her underwear to police, the Investigating Officer (PW6) said the complainant had no underwear when inspected. 10.Citing Joseph Maina Mwangi v Republic, CR Appeal No. 73 of 1992 (NAIROBI), for the holding that discrepancies in a trial must be evaluated under Section 382 of the Criminal Procedure Code to determine whether they were so fundamental as to prejudice the appellant or to render the conviction unsafe. . 11.Thus, the Appellant submitted that the prosecution failed entirely to discharge its burden of proof, relying on Stephen Muli Mulili v Republic, Criminal Appeal No. 90 of 2013, and the principle in DPP v Woolmington [1935] UK L 1, that the prosecution must prove its case beyond reasonable doubt, and gaps in the prosecution case must benefit the accused. He prayed that the appeal be allowed, the conviction and sentence be quashed, and that he be set at liberty. Respondent’s submissions. 12.The Respondents filed submissions dated 26th June, 2025. The Respondent contends that none of the grounds of appeal raised by the Appellant have merit and that the appeal ought to be dismissed. 13.The Respondent submitted that to prove a charge of defilement, the prosecution must establish three essential ingredients, namely, the age of the complainant, penetration, and the identity of the person who committed the offence. 14.Regarding penetration, the Respondent stated that the evidence was overwhelming. First, the victim narrated how the Appellant defiled her in his room, after which she reported the matter to a neighbor called Mwendwa (PW3). As confirmed by the medical report from Oloitokitok Sub-County Hospital, and moreover penetration as defined in Section 2 of the Sexual Offences Act, is the complete or partial insertion of a genital organ into the genital organs of another person. And as held in Mohamed Bachero v Republic [2015] eKLR, even the slightest penetration suffices to establish the offence. The Respondent submitted that the trial court correctly found that penetration had been proved beyond reasonable doubt. 15.On the question of identification of the perpetrator, the Respondent pointed out that the offence occurred during daytime at (Particulars Withheld), when the victim having completed her rounds hawking vegetables to neighbours, went to collect payment for vegetables from the Appellant. The Respondent reiterated the victim’s testimony that after arriving at the Appellant's house, the Appellant pulled her inside, placed her on the bed, removed her underwear, and defiled her. 16.The Respondent pointing out that the victim knew the Appellant well prior to the incident having seen him at her uncle’s home where he occasionally stayed; that the Appellant was subsequently arrested on the same date after the defilement; and hence the identification of the Appellant was positive and beyond any reasonable doubt. 17.Regarding the element of age, the Respondent relied on the complainant's own testimony in which she stated she was 14 years old, which was corroborated by the clinician who conducted the age assessment and confirmed she was 14 years of age. 18.Addressing the question of alleged contradictions, the Respondent submitted that if any contradictions existed in the prosecution evidence, they were minor, and curable by the application of Section 382 of the Criminal Procedure Code, which provides that a conviction shall not be set aside solely on account of an error or irregularity in the proceedings unless it has occasioned a failure of justice. 19.The Respondent also dismissed the complaint on the alleged failure by the trial court to inform him of his right to appoint an advocate as lacking merit. And contended that the Appellant fully participated in cross-examination of witnesses throughout the trial and never raised the issue of his right to an advocate. Hence no substantial injustice occurred. 20.In summation, the Respondent reiterating the prosecution evidence at the trial supported the findings of the trial court. And asserting that the Appellant’s unsworn defence carried little probative value and did not shake the prosecution case. Hence, in the absence of grounds to warrant interference with the conviction or sentence, prayed that the appeal be dismissed in its entirety. Analysis and Determination 21.The duty of this court as the first appellate court is to re-evaluate, re-analyze and re-consider all the evidence adduced before the trial court with a view to arriving at its own conclusion. This being a first appeal, the court is guided by the timeless principles espoused in Okeno -vs- Republic (1972) E.A 32:- ,“It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters Vs. Sunday Post (1958) EA. 424.” See also Pandya v R {1957} EA 336; Ruwalla v R (1957) EA 570. 22.Similarly in David Njuguna Wairimu v. Republic [2010] eKLR the Court of Appeal observed that:“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusion on that evidence without overlooking the conclusion of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusion as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.’’ 23.To prove the offence of defilement, the prosecution must establish the three ingredients thereof, namely, the age of the complainant, the fact of penetration and the identity of the perpetrator. The burden of proof rests on the prosecution and does not shift, and the standard of proof is beyond reasonable doubt. 24.A precis of the evidence before the trial court was as follows. MKM the complainant, testifying as PW2 following a voire dire examination stated that she was 14 years old, lived in (Particulars Withheld), and was a class 3 student at (Particulars Withheld) Primary School. She recalled that on 28th August 2019, she and her sister M had been tasked by their mother JM (PW4) to hawk vegetables (mnafu) in Rombo, which task involved going from house to house. At the house of a neighbour called Mwendwa, they sold vegetables but they were asked to collect payment after completing their hawking rounds 25.Thus, upon depleting their stocks, PW2 sent M to collect more vegetables while she went alone to collect payment from Mwendwa. When she knocked on the door however, the Appellant opened it and told her that she, as a girl, should give him what he did not have. When she baulked, he grabbed her arm, pulled her into his house, pushed her onto the bed, removed her underwear and then his own clothing, before proceeding to penetrate her which she described as ‘’tabia mbaya’’, causing her pain. That the Appellant promised to give her extra cash on top of the 20 shillings he owed for the vegetables, but he instead threw away the vegetables and ordered her to leave. 26.Upon leaving, PW2 met M who asked what had happened, before both proceeded to report the incident to Vincent Mwendwa (PW3), who sent his son to call the complainant's mother, who upon hearing her account called the police. She was subsequently taken to the police post and then to Loitokitok Sub-County Hospital. She said that she knew the Appellant well because he used to visit and stay with her uncle, and she had no previous differences with him. 27.PW3 on his part testified that he lived in (Particulars Withheld) and was a casual labourer. On 28th August 2019, he was at his home when the complainant came round hawking vegetables while accompanied by a small girl. PW2 then went to the next plot to the house of Musyoka, the Appellant. A few minutes later, the witness heard a rattling of iron sheets coming from Musyoka's mabati house, which was nearby and made of iron sheets, then heard a voice saying words to the effect that the complainant should give him what she had in exchange for more money on top of the vegetable payment. There was also a lady nearby leaving her house, whom he called over, and together they moved towards Musyoka's house. 28.As they approached, PW2 bolted out of the house with Musyoka close behind her carrying a jiko. Upon questioning her, PW2 told him what had happened, and he sent a neighbour boy who knew the complainant’s mother to call her. The mother JM (PW4) came and he informed her of what had occurred. The police were subsequently called and Musyoka was arrested and taken to the police post. 29.According to PW4, on 28th August 2019 at about 1:00 pm, she sent out her children PW2 and M with some vegetables and instructed them to hawk them around the neighbourhood. Later, M returned home for more stocks saying PW2 had gone to collect money from an old man who had earlier taken some vegetables on credit. About an hour later, a boy sent by PW3 to summon her arrived. She was led to the Appellant’s homestead where she found a crowd gathered, and PW2 crying at a corner. On learning what had happened, the witness went to the Appellant’s house and confronted him, but he denied having defiled the child. Taking PW2 to a nearby house, she examined her and noted a mixture of what appeared to be semen and a little blood in her private parts which were swollen. 30.The police who were called to the scene took the complainant, the Appellant, and herself to the police post. The Appellant was interrogated and later, he and PW2 were escorted to hospital for examination. PW4 stated that she did not know the Appellant prior to that day. 31.PC Stephen Kyalo Kimuyu (PW5), a police officer stationed at Rombo Patrol Base under Illasit Police Station testified that on 28th August 2019, he was at the Rombo Patrol Base camp, when a colleague received a call from a member of the public reporting that a 14-year-old girl had been defiled. He and PC Mwawit went to the scene and found a crowd surrounding the Appellant, who was about to be assaulted by the public. They secured the suspect and took him to the patrol base together with PW2 and her mother PW4. 32.The Appellant and the complainant were thereafter taken to the hospital for tests, following which the suspect was transferred to Illasit Police Station. The witness and PC Faith (PW6) then visited the suspect's house but found nothing of evidential value. 33.Martha Maiyo (PW1) a Clinical Officer, at Loitokitok Sub-County Hospital stated that on 29th August 2019 she completed a P3 Form in respect of PW2, who was brought to the hospital by the police and her parents. By way of history, the complainant informed her that she had been defiled by someone known to her while she was hawking vegetables. Upon physical examination, the complainant was calm and in fair condition, with injuries approximated at 11 hours old. The external genitalia were noted to be normal, but the vaginal orifice was open and the hymen was absent, with no blood or vaginal discharge. The injuries were assessed as grievous harm. 34.The Appellant was also examined, and no injury was found on his penis, though dry discharge stains were found on his pubic hair. The witness further stated that pubic hair samples were taken from both parties for DNA analysis. Explaining her findings, she said that a person who had not had sexual intercourse before would not have an open vagina. In her opinion, the sexual assault was vaginal without use of a condom and the girl had been sexually active prior to the incident, even though she had not started her menses. 35.The witness produced the P3 Form as P.Exh. 1 and lab test results for both the complainant and the Appellant, the PRC Form, and an age assessment report as P.Exh. 2 a,b,c, 3 a,b,c respectively. The lab results and examination indicated the presence of spermatozoa in the HVS and urine sample taken from the complainant, while the Appellant’s penile shaft and pubic hair had dry discharge, respectively. The age assessment confirmed the complainant was 14 years old. In cross-examination by the Appellant, the witness confirmed that spermatozoa cells were found in the complainant's vagina and urine and that PW2 stated that the Appellant had defiled her on the same date. 36.PC Faith Mutua (PW6), the investigating officer based at Rombo Patrol Base testified that on 28th August 2019, she was at home when her boss, CPL. Evans, called her at about 6:00pm and instructed her to investigate a defilement case. She went to the patrol base and found both the Appellant and the complainant. Having interviewed the complainant, she inspected complainant's genital parts and noted that she was not wearing underwear. She and PC Kyalo (PW5) visited the scene and inspected the house but found nothing of evidential value. 37.PW6 subsequently escorted the complainant and the Appellant to the hospital for examination. At Loitokitok Sub-County Hospital, samples including hair and blood were collected. The witness took the samples to the government analyst and a report dated 18th September 2019 was produced. She also escorted the complainant for age assessment, which confirmed she was 14 years old. She identified the Appellant as the suspect who had earlier been arrested. 38.At the close of the prosecution case, the Appellant was placed on his defence. Having elected to give unsworn evidence, the Appellant testified that he was a casual labourer residing in Rombo. That on 8.08.2019, he left his home to go to Rombo town to collect payment for work he had done, but failing to find the person who owed him money, he returned home where he found four people outside his house, namely two police officers, a woman, and his neighbour PW3. 39.He stated that on inquiring from his children why the people were outside his home, he was informed that they had come looking for him, even as the police officers asked whether he was Samson, and upon him confirming, the police officers informed him that they were looking for him. He further stated that he had disagreements with his neighbour, PW3, but was not told the reason for his arrest despite inquiring from the officers. 40.He further stated that on his arrest, he was placed in custody for about two hours before being taken to the Mission Hospital where he underwent medical examination. According to him, he was not informed why he was being examined, beyond the doctor stating that he had a problem. Thereafter, he was returned to the police cells and later transferred to Illasit Police Station. He maintained that despite repeatedly asking why he had been arrested, no explanation was given to him. On 29.08.2019 he was arraigned in court, and learned the reason for his arrest, which shocked him. That marked the end of the trial. 41.The court has considered the evidence at the trial, the grounds of appeal as well as submissions thereon. Concerning the assertion that the copy of charge sheet supplied to the Appellant was incomplete, and hence defective for violating Section 134 of the Criminal Procedure Code (CPC), the court acknowledges that whereas an accused person is entitled to a properly drawn charge sheet setting out with sufficient particularity the offence charged, the allegation as to the state of the copy of charge sheet supplied to the Appellant cannot properly be tested on this appeal as it would require adduction of evidence. 42.Be that as it may, the original charge sheet which was duly endorsed by the court during plea on 29.08.2019, and which formed the basis of the trial and judgment, reflects both the main count and alternative charges and the respective particulars. The record further shows that the on 12.09.2019 the Appellant’s request to be supplied with witness statements and charge sheet was granted by the court, further to the initial order made to the same effect on plea date. On 3.10.2019 and 28.10.2019 the Appellant confirmed receipt of witness statements and at no time before or during the trial did he raise the complaint now raised on this appeal that the charge sheet supplied to him was incomplete whereas in the same period he made several other applications for adjournment and to be escorted to hospital. 43.If indeed the copy of charge sheet given to him was incomplete, nothing stopped him from demanding a proper one. In any event, it is evident from his cross examination of witnesses that he was aware of the charges facing him, and it is too late for him to raise matter requiring a factual inquiry at this stage as to the nature of the alleged omissions in his own copy of the charge sheet. The alleged deficiency in the charge sheet is not stated and there is no suggestion that the deficiency, if any, prevented the Appellant from understanding the nature of the charge against him or from mounting a full defence. 44.Suffice to say that the charge sheet on the original lower court record and copy on the record of appeal complies fully with the requirements of Section 134 of the CPC and it appears an afterthought for the Appellant to now claim that he was supplied with an incomplete charge sheet. Besides, not every omission renders a charge fatally defective thus vitiating a conviction. Section 382 of the CPC provides that a conviction shall not be set aside on account of any error, omission or irregularity in the charge unless the error, omission or irregularity occasioned a failure of justice. That ground of appeal is therefore devoid of merit and is rejected. 45.Moving on to the substance, PW2’s age was established through her evidence and the age assessment report produced by PW1 as P.Exh. 5 confirming her age as 14 years. Submissions by the Appellant that the evidential value of the age assessment report was diminished because PW1 was not the maker cannot stand. The court was entitled, pursuant to Section 33 and 77 of the Evidence Act to receive and act upon that evidence through PW1 though not the maker. 46.Concerning penetration there was direct evidence by PW2, circumstantial evidence by PW3 and PW4, as well as medical evidence through PW1. The complainant gave a clear, consistent, and detailed account of the events of 28th August 2019. She described how the Appellant grabbed her arm, pulled her into his house, pushed her onto the bed and removed her underwear, before undressing and penetrating her on his bed, causing her pain. This account was given to PW3 and PW4 before police were called. 47.The former witness who summoned the latter described seeing the minor proceed from his plot towards the plot where the Appellant lived and thereafter hearing the rattle of mabati at the Appellant’s house, and words to the effect: give me what I myself don’t have. I will pay extra money in addition to the cash for vegetables. After deliberating with a neighbour, the two had resolved to go find out, only to meet with the complainant fleeing the Appellant’s house, and the Appellant following closely while carrying a jiko. Then PW2 told him what happened. 48.According to PW1, the complainant's vaginal orifice was open and her hymen missing, suggesting previous sexual activity as there were no recent injuries noted. However, as documented in P.Exh2-4, the urine and high vaginal swab (HVS) samples taken from the complainant showed the presence of spermatozoa , while the Appellant himself had dry discharge on his penile shaft and pubic hair. 49.The Appellant’s contention that PW1 had during cross-examination stated that the complainant had not been defiled on the material date is not supported by the trial record. Moreover, the thrust of evidence by PW1 is that having examined PW2 some 11 hours after the alleged defilement, she confirmed through her own examination and lab tests that indeed the minor had been defiled The Appellant has on this appeal highlighted the fact that the government analyst rejected the samples of pubic hair and blood from both the Appellant and PW2 pursuant to the court’s order of 12.09.2019 were rejected as detracting from PW2’s evidence. Hence stating that no nexus was made between him, and the spermatozoa found in the PW2’s HVS and urine sample. 50.The exhibit memo form bearing the Government Chemist’s receipt date stamp of 18.09.2019 accompanying the samples as well as his letter of even date addressed to the trial court are on the court record. Though referred to by PW6 in her evidence, it is not clear whether they were produced as exhibits. Be that as it may the reason for the rejection of the samples is stated in the letter as follows:“We wish to kindly inform the court that the samples submitted do not meet our acceptance criteria for sexual offences cases. We require a HVS and clothing (underpants, petticoat) of the victim. The pubic hair from the complainant and accused is not sufficient for comprehensive analysis.On the basis of the above, we therefore reject the samples submitted”. 51.In Mohamed Bachero v Republic [2015] eKLR, the Court of Appeal held that the slightest penetration is sufficient to establish the offence of defilement, and that Section 2 of the Sexual Offences Act defines penetration to include partial insertion. The rejection of the DNA samples does not destroy the prosecution case; it merely means that DNA evidence was not used to corroborate penetration. DNA evidence is not the only means of proving or corroborating penetration. In this case, the remaining unimpeachable evidence including the complainant's testimony as corroborated by the medical evidence through PW1, and circumstantial evidence through PW3 which establish penetration beyond reasonable doubt. 52.In any event, under the proviso to Section 124 of the Evidence Act, the trial court would have been justified, for stated reasons, if it believed PW2 (and it clearly did) to be a truthful witness to accept and found a conviction on her evidence alone. This court is accordingly satisfied that the ingredient of penetration was proved. 53.Concerning the identity of the perpetrator, the offence took place during broad daylight. The complainant knew the Appellant prior to the incident, as he was a frequent visitor to her uncle's home, and she had no previous differences with him as to motivative false accusations against him. The identification in this case was therefore by recognition, which is the most assuring, satisfactory and reliable form of identification, as held in Anjononi & Another vs. R [1976-80] KLR 1566. 54.PW3, who was a neighbour of the Appellant and witnessed the minor walk over to the plot where the Appellant lived, recounted the commotion and words he heard spoken soon after, all coming from the house of the Appellant. Before seeing the minor bolting out of the house, with the Appellant in tow, and then hearing her report on what had actually happened in that house. He was close enough to hear the Appellant's words and to observe the events. The incident occurred in daytime, and according to PW3, the Appellant remained at the scene. The Appellant was known to the witness as his neighbour, and was subsequently arrested on the same day at the scene, a matter the Appellant confirmed while claiming that he had been out of the house. At no time did the Appellant put to PW3 allegations of enemity between them as he raised later in his defence. 55.Not only does the evidence by PW2 and PW3 place the Appellant at the scene of the offence, but it also further disproves his claim to have been away during the material time, or that he did not know why he was arrested until his first appearance in court. The court is satisfied that the Appellant was identified as the perpetrator of the offence. 56.Finally, the Appellant asserted the existence of contradictions in the prosecution case. Including that the complainant did not scream despite being in a populated area in broad daylight; that PW4 (the mother) testified to finding semen and blood on the child, while PW1 recorded no blood discharge; that PW1 stated the complainant handed over her underwear to police, while PW6 found the complainant without underwear; and that the underwear was never produced as an exhibit. 57.This court has carefully considered these alleged contradictions or gaps. Regarding the failure by PW2 to raise an alarm, it is not unusual for a child victim of a sudden sexual assault, as in this case, not to scream or resist due to fear, embarrassment, shock, or coercion. The complainant testified that she was grabbed by the Appellant from the door and forcibly pulled into the house before being defiled, which sufficiently explains her muted response. However, she thereafter fled the house of the Appellant and immediately reported her encounter to PW3 who was the first person she met while fleeing. 58.On the alleged contradiction between PW4's observation of semen and blood and PW1's clinical findings, the court notes that PW4 is the complainant's mother, not a medical professional, and her observation was made in a rush in a neighbor’s house, and under evidently stressful conditions, having just learned of the sexual assault of her daughter. On the other hand, PW1 was a professional and not related to the victim and her findings were made during a clinical examination approximately 11 hours after the incident. 59.These are not irreconcilable observations; a trace of blood may have been present at the first examination and subsided by the time of clinical examination. Whatever the case, the HVS and urine samples of the victim contained spermatozoa, and according to PW1 (and indeed other witnesses), the victim recounted defilement at the hands of the Appellant on the material date, while admitting in her medical history to previous sexual encounter a month prior. 60.According to PW1 the underwear of the victim was handed to police while PW6 states the complainant had no underwear on inspection. That the underwear was not produced as an exhibit does not lessen the weight of the prosecution evidence through the witnesses; slight omissions, variations and inconsistencies are bound to occur during a trial. Such minor contradictions, inconsistencies or omissions in the prosecution case as may have occurred here are not fatal to the prosecution. The standard of proof in criminal cases is beyond reasonable doubt and not beyond any doubt. 61.This is what the Court of Appeal said concerning alleged contradictions and inconsistencies in the prosecution evidence in in Thoya Kitsao v Republic [2015] KECA 174 (KLR)“But we must ask ourselves whether these are normal variations that would be expected when different human beings recollect an event or incident or whether they are of such a nature as to betray a cooked up or contrived case? This Court has stated severally that the mere fact that there are some variations in evidence does not ipso facto prove that the evidence is false or unreliable (See Willis Ochieng Odero V. Republic, CR. APP. NO. 80 OF 2004 (Kisumu)). Indeed variations must be expected in evidence that is true. It is said that sometimes evidence without the slightest variation may be a good indicator of coached witnesses.In Dickson Elia Nsamba Shapwata & Another V. The Republic, CR APP NO 92 OF 2007, the Court of Appeal of Tanzania stated as follows regarding discrepancies in evidence, which we respectfully endorse:“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 62.Similarly, in this appeal, the court finds that the omissions, contradictions and inconsistencies cited by the Appellant were minor and did not go to the root of the prosecution case. And reviewing all the evidence, the court is satisfied as the trial court was, that the prosecution proved the main count beyond reasonable doubt and displaced the Appellant’s defence. The appeal against conviction cannot stand. 63.The appellant was sentenced to fifteen (15) years imprisonment. Section 8(3) of the Sexual Offences Act prescribes a minimum sentence of fifteen years imprisonment for defilement of a child between the ages of twelve and fifteen years. The complainant in this case being aged 14 years at the time of the offence fell within that age bracket. The sentence imposed is the statutory minimum and reflects the legislature's considered view of the gravity of the offence. 64.Accordingly, the court finds no merit in the appeal, which is hereby dismissed in its entirety. DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 21ST DAY OF MAY 2026.C. MEOLIJUDGEIn the presence of:For the State: Ms. KihumbaAppellant: PresentC/A: Lepatei