https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9910

Tietie v Republic (Criminal Appeal E020 of 2024) [2026] KEHC 9910 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEHC 9910 (KLR) Republic of Kenya In the High Court at Nanyuki Criminal Appeal E020 of 2024 AK Ndung'u, J July 7, 2026 Between Amos Nalwa Tietie Appellant and Republic Respondent (Being an Appeal from the sentence and conviction delivered in Nanyuki CMCCRC (SO) No. E020 of 2024 delivered by Hon. L.G. Nyaga (RM) on 28/03/2024) Judgment 1.The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that on the 28th day of January, 2023, at [Particulars Withheld] of Jikaze Centre in Laikipia Central Sub - County within Laikipia County unlawfully caused his penis to penetrate the vagina of A.W a child aged 15 years old. 2.In the alternative the Appellant was charged with committing an indecent act with a child contrary to section 11 (1) of the Sexual offences Act No. 3 of 2006. The particulars are that on the same day at the same place he intentionally and unlawfully touched the vagina of the same child. 3.The Appellant pleaded not guilty to all the charges and the matter proceeded to trial. The prosecution called six witnesses and the court found that the Appellant had a case to answer and put him on his defence. He called no witnesses and gave sworn testimony. 4.Upon considering the testimonies of the witnesses and the evidence tendered in court, the trial court convicted him of the main charge and sentenced him to 20 years’ imprisonment on 28th March 2024. 5.Being dissatisfied with the decision of the trial court, the Appellant instituted this appeal against the conviction and sentence vide a Petition of Appeal dated 2nd April, 2024 premised on the following grounds;1.That the learned trial magistrate erred in law and fact by convicting the appellant on a case that was not proved beyond reasonable doubt.2.That, the trial magistrate erred in Law and facts by convicting the appellant on a case whose identity of perpetrator was not proved.3.That the learned trial magistrate erred in Law and facts by convicting the appellant without noting that the PRC/P3 (medical record) depicted a different name from the charge sheet thus rendering the entire proceedings fatally defective in Law.4.That the learned trial magistrate erred in Law and facts by convicting the appellant while relying on single witness evidence without considering the danger of such admissibility.5.That the learned trial magistrate erred in Law and facts by convicting the appellant while relying on no investigations into the matter.6.That the learned trial magistrate erred in Law and facts by quashing the appellants defence without giving cogent reasons.7.That the learned trial magistrate erred in Law and facts by applying wrong principle during sentencing by meting out a mandatory minimum sentence without considering provision of Section 333(2) CPC as well. Appellants’ submissions 6.The Appellant opened his submissions by setting out Amended memorandum Grounds of Appeal pursuant to section 350(2) (iv) of the Criminal Procedure Code to wit;1.That the learned trial magistrate erred in matters of law and fact by failing to note that the case herein was not proved beyond a reasonable doubt.2.That the learned trial magistrate erred in matters of law and fact by failing to adhere to the set parameters enshrined under section 124 of the Evidence Act.3.That the trial magistrate failed to note that section 34 of the Sexual Offences Act was contravened.4.That the learned trial magistrate erred in matters of law and fact by failing to note that was non-disclosure of material evidence contrary to Article 50 of the Constitution.5.That the learned trial magistrate erred in matters of law and fact by quashing the accused’s defence without weighing it against the prosecutions’ weak case.6.That the learned trial magistrate erred in matters of law and fact while meting out the sentence by applying a wrong principle, deriving a harsh and excessive and unconstitutional sentence.7.The Appellant submitted that the prosecution did not prove its case to the required standard. He listed the elements of the offence of defilement to wit; age, penetration and positive identification of the perpetrator. 7.The Appellant urged that Rule 4 of the Sexual offences Rules provides that evidence of age must be advanced through a birth certificate, school documents or baptismal card. A medical assessment may also be sought. He cited DWM vs Rep at Court of Appeal in Nyeri CR.App 12 of 2014. 8.The Appellant submitted that age is disputed in this case and was never conclusively proved. That the prosecutor relied on a copy of a birth certificate which was never certified and the original was never availed. He urged that the prosecution relied on oral evidence which was not credible. He urged that there were inconsistencies in the testimonies of the witnesses as to the date of birth of the complainant and maintained that the age was still in dispute and never proved. 9.On penetration, He urged that the same was proved by the evidence of the complainant alone. He submitted that the medical evidence was inconclusive and the trial court was mandated to admit the oral evidence of the complainant after being satisfied that she possessed the truthfulness, honesty and integrity as per section 124 of the Evidence Act. The Appellant submitted that the complainant failed the tests under section 124 of the act. He urged that her testimony and that of her mother were inconsistent and lacked corroboration. He cited Ndungu Kimanyi vs rep (1979) KLR 282 and urged that the complainant was a hostile witness. He maintained that the evidence was not sufficient to convict. 10.On identification, the Appellant submitted that the complainant testified that the perpetrator was a stranger and no witnesses testified as to witnessing the alleged defilement. He urged that where the only evidence is of identification or recognition a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of the identification were favourable and free from the possibility of error before it can safely make it the basis of the conviction. 11.The appellant submitted that an identification parade was necessary to identify the culprit and water down the possibility of a mistaken identity in accordance to the Police Force Standing Orders. He placed reliance on Peter Njogu Ndege vs Republic (CR.App No. 120 of 2014) in this regard. He reiterated that the accused was not identified through an identification parade and further, that he was mistakenly identified. He stated that identification was never proved beyond reasonable doubt. 12.The Appellant urged that the court was mandated to record the reasons it believed the witness was being truthful as per section 124 of the Evidence Act. He cited section 34 of the Sexual Offences Act and urged that the same was contravened as the clinician adduced evidence on previous sexual conduct of the complainant without leave of the court. 13.The Appellant maintained that there was non-disclosure of material evidence as the birth certificate of the complainant was not supplied to the appellant during pre-trial. He urged that this was a violation of his right to a fair trial under Article 50 of the Constitution. 14.The Appellant urged that the accused’s evidence was quashed without weighing it against the prosecution’s weak case. That the trial court disregarded his evidence which was uncontroverted by the prosecution. 15.On Sentence, the Appellant submitted that the accused was faced with an offence of defilement under section 8(1) as read with Section 8(4) of the Sexual Offences Act as per the charge sheet but the trial court applied section 8(1) as read with section 8(3) of the Sexual Offences Act while sentencing him. He urged that as the age was not proved, the trial magistrate never resolved the same which translated to confusion when sentencing the Appellant. He submitted that the right to a fair trial is a non-alienable right and prayed that the court allow the Appeal and set aside the conviction and sentence. Respondents’ submissions 16.Counsel for the state urged that they noted that from the Appellant’s further submissions, he purports to introduce new grounds of appeal through the submissions. That at the outset, Section 350 (2) of the Criminal Procedure Code estops an Appellant from relying on grounds that were not in the Petition of Appeal unless leave of the Court is sought. That no leave to amend the Petition of Appeal had been sought. He urged that the Court to disregard any grounds introduced through the submissions that did not form part of the Petition of Appeal dated 30th August, 2024. 17.Counsel reproduced the testimonies of the witnesses and urged that the prosecution’s case was proved beyond reasonable doubt. He urged that the offence of defilement is rooted on three main ingredients being the age of the victim, penetration and the proper identification of the perpetrator. That these ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. Reliance was placed on George Opondo Olunga vs. Republic [2016] eKLR. 18.Counsel urged that the first element is age, citing the decision of the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR in this regard. Further, that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. Counsel urged that Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. He stated that there are various ways which can be used to prove a victim’s age as held in Mwalengo Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR). 19.Counsel submitted that in the present case PW1 testified that she was 15 years at the time. That though there was no birth certificate produced, her evidence with regard to her age was believable. Her mother confirmed she was a school going child and was 14 years while the investigating officer also stated that PW1 was a young school going girl. PW3, the appellant’s manager stated that he had seen the appellant with a young girl on the material day and the trial court observed that PW1 was a young a child and hence conducted voire dire. 20.On Penetration, Counsel cited Section 2 of the Sexual offences Act and urged that Penetration is proved through the evidence of the victim. That he testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. He cited Section 124 of the Evidence Act and the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995 on proof of penetration. 21.Counsel reproduced the testimony of PW1 and urged that the direct description therein meets the definition of penetration under Section 2 of the Sexual Offences Act, which provides that the slightest entry of the male sexual organ into the female genital organ constitutes penetration. That the complainants’’ account was neither vague nor generalized; it explicitly described penile-vaginal penetration occurring repeatedly during the attack. Counsel urged that Kenyan jurisprudence firmly supports that such clear testimony alone is sufficient to prove penetration. He cited Kassim Ali v Republic [2006] eKLR, and George Owiti Raya v Republic [2013] eKLR and PW v Republic [2016] eKLR in this regard. 22.Counsel urged that her account of feeling as though the appellant applied “something” that caused partial unconsciousness further supports the inference that prolonged sexual assault occurred, and explains any gaps in her sensory awareness without undermining her clear recollection of penetration. Immediately after regaining consciousness, she screamed — an instinctive reaction consistent with being violated. The complainant was subsequently found in the appellant’s house exactly as she testified, which corroborates the circumstances surrounding the assault. Taken together, the evidence establishes the element of penetration with clarity and certainty, meeting both the statutory definition and the evidentiary standard required in law. 23.Counsel urged that therefore, the second ingredient namely penetration was adequately proven based on the victim’s evidence and the medical evidence. 24.On Identification, Counsel urged that the evidence on record demonstrates clear, consistent, and reliable identification of the appellant as the perpetrator. The complainant testified that although she was not familiar with the man who approached her, the circumstances of their interaction were overwhelmingly favourable for positive identification. She was stopped on the road, physically engaged in conversation, and persuaded to accompany him to his house. This initial encounter occurred in broad daylight and involved direct, close contact. Once inside the house, she was with the appellant for an extended period during which he undressed her, undressed himself, and defiled her three times. The lengthy face-to-face interaction, the physical proximity, and the absence of any visual obstruction eliminate any possibility of mistaken identity. Her in-court identification was immediate and consistent with the account she gave to PW2 her mother the PW4 the farm manager, and the investigating officer. 25.Counsel urged that the complainant’s testimony was further reinforced by PW4, the farm manager, who saw the appellant passing by the chemical store at around 3:30 p.m. in the company of the same girl. PW4 was well acquainted with the appellant as his employee and therefore had no difficulty recognising him. His evidence forms an independent and credible stream of identification placing the appellant and the complainant together shortly before the assault. Later that evening, villagers also reported that the appellant had last been seen with the missing schoolgirl, further corroborating the complainant’s identification. Such external confirmation strengthens the reliability of visual identification as required by the principles in Maitanyi v Republic [1986] eKLR. 26.Counsel submitted that the identification was finally and conclusively established through the circumstances of the appellant’s arrest. That the complainant being found inside the appellant’s house forms compelling circumstantial evidence connecting him directly to the offence. 27.Counsel submitted that Kenyan courts have repeatedly held that being found in recent company or custody of the victim provides strong linkage to the perpetrator, placing reliance on Republic v Oyier [1985] eKLR and Kimeu v Republic [2002] eKLR. That when assessed together, the complainant’s detailed and prolonged observation, PW4’s direct recognition, the villagers’ independent sightings, and the actual recovery of the complainant from the appellant’s house establish a complete, unbroken chain of positive identification. The identification in this case therefore meets the standards set out in Wamunga v Republic [1989] eKLR and Anjononi v Republic [1980] eKLR, rendering the conviction safe and well-supported by the evidence. 28.Counsel submitted that the Appellant has raised a concern that the medical evidence presented depicted a different name from the one in the charge-sheet hence making the entire proceedings fatally defective and the conviction unsafe. Despite the appellant’s contention that the clinical officer produced a P3 form relating to a different victim, this defect is not fatal to the prosecution’s case. Kenyan jurisprudence-is clear that medical evidence in defilement matters is corroborative rather than constitutive of the offence. The essential ingredient required under Section 8(1) of the Sexual Offences Act is penetration, which may be proved through the testimony of the complainant alone. Counsel cited the decision of the Court of Appeal in Kassim Ali v Republic [2006] eKLR where it affirmed that the absence of medical evidence does not negate a finding of defilement where there is credible evidence of penetration. Further reliance was placed on PW v Republic [2016] eKLR, George Owiti Raya v Republic [2013] eKLR, and Julius Kiunga M’birithia v Republic [2013] eKLR. 29.Counsel urged that the appellant has not demonstrated any prejudice resulting from the defective P3. The particulars of the charge were clear, the defence had full opportunity to cross-examine the complainant, and the error in the medical form did not undermine the core facts establishing penetration and identity. The mistaken production of the P3 is therefore a curable irregularity under Section 382 of the Criminal Procedure Code and does not render the conviction unsafe. The remaining evidence on record sufficiently proved the elements of the offence, and the conviction should accordingly be upheld. 30.On interference with sentence, Counsel cited Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 and Bernard Kimani Gacheru vs. Republic [2002] eKLR. He cited the case of Republic v Elijah Munee Ndundu and another [19781 eKLR on the purpose of penalties in criminal cases. Further, that the court also considered the time he spent in custody in line with section 333(2) of the Criminal Procedure Code. Counsel urged that it is upon the appellant to demonstrate that there exists one of the above listed reasons for this court to interfere with the sentence. That Section 8(3) of the Sexual Offences Act provides that the sentence for the offence of defilement to imprisonment for a term which shall not be less than 20 years. He urged that the sentence of fifteen (sic) (20) years imprisonment was not only lawful but lenient in the circumstances. 31.He prayed that the appeal be dismissed in its entirety. Analysis & Determiantion 32.As a first appellate forum, this Court is obligated to revisit and re-evaluate the evidence afresh, assess the same and make its own conclusions, bearing in mind that the trial Court had the advantage of hearing and observing the demeanour of the witnesses. (See Okeno vs. Republic [1972] E.A 32). 33.I shall now recollect the testimonies in the trial court. 34.PW1 was AWM the complainant minor aged 15 years old. She testified afresh on 27th April, 2023 after the trial court conducted a voire dire and found her fit to give sworn evidence. She stated that she was 15 years old and recalled that on 28/01/2023 she had been sent by her mother to the shop to buy sugar, rice, and maize flour, and had been given Kshs. 800/-. On her way to the shop, the accused approached her, held her hand, and told her to escort him to his house to pick a pullover. She initially refused, but he convinced her to follow him. Upon reaching the house, the accused instructed her to enter, and she complied. He then removed both his and her clothes and forcefully lay on her. She stated that he inserted his penis into her vagina and raped her. She testified that the accused raped her three times and after the ordeal, she felt as though the accused had applied something to her, causing her to become partially unconscious and unaware of what was happening around her. When she regained her senses, she screamed. The farm manager who had given the accused work heard her screams, came to her aid, and found her seated in the accused’s house. She stated that the accused took the money her mother had given her and left for Mutara. 35.It was her testimony that the manager summoned another woman, and they eventually took her to the village elder, who mobilized individuals who arrested the accused. She stated that the matter was reported to the police, and that she was taken to Ndaragwa Hospital, and later to Nyahururu, accompanied by her mother and a police officer. A PRC Form dated 30/01/2023 was completed at the hospital, which she identified as PMFI 1(a). She stated that the accused was the man who raped her. 36.PW2 was Monica Warutira PW1’s mother. She stated that on 28/01/2023 she sent PW1 to the shop to buy sugar, rice, maize flour and cooking oil and gave her Kshs. 850/-. PW1 took time to come back from the shop and she decided to call the shopkeeper who informed her that Angelica had not arrived at the shop. She began inquiring on her where about, the shopkeeper called her back after a while and told her that Angelica had been found unconscious, they went to the location and indeed found that Angelica was unconscious. They sought the assistance of the area manager who helped them arrest the appellant and Angelica was found at the appellant’s house. The following day they escorted her to hospital where she treated and a P3 form filled. 37.PW3 was John Ndungu Nderitu a resident of Mutero Location who stated that on 28/01/2023 he was informed by the Mutara farm manager that there was a girl who had been locked inside a house. They proceeded to the scene and found the house locked, and found the girl but the appellant was absent. The appellant arrived after an hour and they managed to arrest him and escorted him to the police station. 38.PW4 was Christopher Muthama Gichuru who stated that on 28/01/2023 he was at the shamba from 5:00 a.m. until evening. That he and his family had employed the accused who worked on the farm spraying crops until about 11:00 a.m., after which he left. He informed him that he was going to Magutu market and returned at around 3 ;00 p.m. He asked him to give him Kshs. 200, but the witness told him that he had already paid the other workers. At that time, Tietie came back with a certain young girl and informed him that they were headed to Jikaze, after which they left. At around 5:30 p.m., Peter Kariuki, another employee at the farm, came and called him. Kariuki informed him that there was some confrontation in Tietie’s house, which had been allocated to him by the witness. Shortly thereafter, the accused came and again asked him to lend him Kshs. 200, saying he needed to buy medicine for a girl who had fallen sick in his house. He told him he had no money but took his phone and sought M-Pesa Fuliza of Kshs. 200, which he gave to Tietie. Tietie then went to purchase medicine at Magutu market. 39.He stated that at around 7:00 p.m., a group of people arrived looking for Tietie, stating that he had been seen with a schoolgirl who was being searched for. He told them that Tietie had already left and the group then gathered around him, took his mobile phone, and waited there for Tietie. They waited until around 10:00 p.m., when Amos Tietie returned. The people arrested him and escorted him to his house, where they found the girl and freed her. They then escorted both Tietie and the girl to Jikaze Police Station. He recalled that the accused passed by the chemical store accompanied by the same girl who was later found in Tietie’s house. 40.During cross-examination, he insisted that he was not lying to the court. He maintained that the accused had passed by the chemical store with the girl at around 3:30 p.m. He denied that the accused had left the shamba at 11:00 p.m. He also denied giving the accused Kshs. 1000 to go to Makutano. He further denied ever informing the accused that he did not want him around the farm on that material day. He stated that he had not informed the accused that he had a visitor. He added that Peter Kariuki had previously warned the accused against girls in the area. He stated that earlier that day, the accused had attempted to persuade him not to testify and had asked him to go away so that he would not testify. 41.PW5, Police Constable Jarso Yunis, testified that while on duty at Jikaze Police Post on 29/01/2023 at around 12:30 a.m., members of the public brought in a young man alleging he had defiled a girl named AW. He arrested the suspect, interviewed both him and the girl. As it was late at night, he instructed the girl’s mother to return the next day, when he issued them with a P3 Form and referred them to Ndaragwa Sub-County Hospital. He later visited the scene but found no signs of commotion or any used condom. 42.He stated that investigations established the girl was 14 years old. That the girl’s mother provided a renewed birth certificate because the original had been burnt, though the new one contained an error showing the wrong birth date. 43.The prosecution sought time to confirm the correct birth details, while the accused complained he had not been given the certificate of birth. The prosecution sought that the matter proceed without the birth certificate. 44.During cross-examination, PW5 confirmed that the accused was brought to the station at night and that the complainant was taken to the hospital the following morning. He stated that only the minor required medical examination, as the doctor is the expert who determines whether defilement occurred. PW5 maintained that the person he re-arrested and charged is the accused present in court. 45.PW6, Ernest Muriithi Gatere, a clinician at Nyahururu County Referral Hospital, testified that he had the PRC and P3 Forms for IWK who was born on 05/08/2006. The girl had been examined on 30/01/2023 by his colleague Naomi Mwangi, whose handwriting and signature he recognized. He explained that Naomi Mwangi could not testify as she was on maternity leave, and the accused raised no objection to him producing the documents. 46.PW6 proceeded to read the P3 Form, indicating that the minor had an old broken hymen, a fresh smelly discharge, and a high vaginal swab showing pus cells ranging from 10-15. Urinalysis revealed leucocytes, confirming an infection, while pregnancy, HIV, and hepatitis tests were all negative. He relayed the P3 findings into the PRC Form and produced both documents as Prosecution Exhibits. PW6 added that while the PRC and P3 Forms listed the victim as IWK, the P3 Form filled by police referred to the girl as Angelica Wambui, and he was unsure whether the two names referred to the same person. 47.During cross-examination, PW6 maintained that the girl examined was Irene Wambui Kinuthia and that she had been examined by Naomi Mwangi. He confirmed there were no scratches on her body and that the hymen was already old and broken, consistent with a past incident. He stated that the girl had an STI—gonorrhoea—and explained that a hymen can break through previous sexual activity, falls, or riding bicycles. 48.The appellant gave unsworn testimony as DW1 and called no witnesses. He testified that on 29/2/2024 he recalled that on 28th January 2023, he followed his usual routine, worked for approximately five and a half hours, and later went to Mukutu Centre at around noon. He remained at Sweet Waters Club from 2:00 p.m. to 10:00 p.m., after which he left while drunk and on his way home encountered a group of individuals who assaulted him. He stated that the group beat him, questioned him briefly and eventually escorted him to the police station, where he arrived at around 11:30 p.m. He remained in custody until 1st February 2023, after which he was taken to court without understanding the reason for his arrest. 49.He further testified that he was surprised to learn he had been charged with defilement. According to him, the complainant could not identify the perpetrator, and he maintained that he did not know her. He claimed that the complainant’s statements contained inconsistencies, including whether the alleged sexual encounter was protected or unprotected, and he asserted that the complainant’s reported age did not match the birth records presented. He also stated that there were two complainants named in the documents, but he only came to know their identities after the case commenced. 50.During cross-examination, the accused explained that on the material day he had been working for an employer named Stanley Kanyotu, spraying pesticides on tomato crops from 6:00 a.m. to 1.1:30 a.m. He stated that there were casual labourers on the farm but that none were his witnesses. He maintained that he was at the club from 2:00 p.m. to 10:00 p.m. in the company of a friend named Wamalwa, though Wamalwa was not called as a defence witness. He further denied that the signature appearing on the accused’s recorded statement at the police station was his. 51.The accused concluded by stating that he had no grudge with any neighbours, farmworkers, or his former employer. He indicated that his family and a friend named Morris Chengo had visited him in remand, and that he had no witness to support his case. In re-examination, he offered no further evidence and closed his defence. 52.Before identifying the issues for determination, I must first address the Amended grounds of Appeal that the Appellant sought to introduce with his submissions under section 350(2)(iv) of the Criminal Procedure Code. The said section provides as follows;iv)save as provided in paragraph (i), a petition of appeal may only be amended with the leave of the High Court and on such terms and conditions, whether as to costs or otherwise, as the High Court may see fit to impose; 53.From the record of the trial court it is apparent that the Appellant did not seek leave to amend the Petition of Appeal and therefore, the same cannot inform the issues for determination. 54.The following issues arise for determination1.Whether the prosecution proved its case beyond reasonable doubt2.Whether the sentence was harsh or excessive in the circumstances 55.Section 8(1) as read with Section 8(4) of the Sexual Offences Act provides as follows;(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 56.In the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 the court laid out the elements of the offence of Defilement as follows:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 57.With regards to the age of the complainant, it is apparent that there was an issue with the production of the birth certificate. Upon conducting investigations, PW5 established that the minor was 14 years old but the birth certificate produced, which was a renewed one since the original had been burnt, had an error. However, the complainant testified to her age as 15 years old and PW4’s testimony leads me to agree that the complainant was a minor. The Sexual Offences Court Rules provide as follows in rule 4;“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar documents.” 58.In the case of Francis Omuroni vs Uganda Court of Appeal, Criminal Appeal No 2 of 2000 the court held that:-“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….” 59.In Fappyton Mutuku Ngui vs. Republic [2012] eKLR it was held as follows:“conclusive” proof of age in cases under Sexual Offences Act does not necessarily mean certificate. Such formal documents might be necessary in borderline cases, but other modes of proof of age are available and can be used in other cases.” 60.The trial court clearly appreciated the law on the question of proof of age and reached a suitable conclusion that cannot be faulted. It is my considered view that the age of the complainant was proved to the required standard. 61.Section 2(1) of the Sexual Offences Act defines penetration as:“The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 62.In the case of Mark Oiruri Mose v R [2013] eKLR the Court of Appeal stated that:“Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ.” (Emphasis added). 63.The complainant described the ordeal and gave evidence on penetration. Her evidence was that the appellant lured her to his house and upon undressing, inserted his penis into her vagina. She categorically stated that he raped her three times. From the description of the incident, the same meets the threshold for penetration. 64.Additionally, the provisions of section 124 of the Evidence Act come into play. It provides;“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him.Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 65.It then emerged that the P3 form which had been produced did not relate to the complainant in the present case. The trial court noted this and made a determination on this element based on other evidence. He P3 form was never the basis for conviction in this matter. 66.In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995, the court held: -“the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 67.It is my considered view that the evidence on penetration by the complainant was cogent and credible. The trial court conformed with the principles set out in law in making its determination. 68.On Identification, in the case of Kariuki Njiru & 7 others vs Republic, Criminal Appeal no. 6 of 2001 (Unreported) the court held as follows:“Law on identification is well settled, and this court has from time to time said that the evidence relating to identification must be scrutinized, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error.” 69.In the case of R vs Turnbull and Others (1976) 3 ALL ER 549. Lord Widgery C.J expressed himself as follows:“First, wherever the case against an accused depends wholly or substantially on the correctness of one or more identification of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance to the correctness of the identification or identifications. In addition, he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be convincing one and that a number of such witness can all be mistaken. Secondly the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation” At what distance” In what light” was the observation impended in any way, as for example by passing traffic or press of people. Had the witness ever seen the accused before” How often” if only occasionally, had he any special reason for remembering the accused” How long elapsed between original observation and the reason for remembering the accused” How long elapsed between original observation and the subsequent identification to the police” was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and the actual appearance.” 70.The Appellant was identified by the complainant as the perpetrator of the offence. The complainant, recovering from the ordeal and the substance she had been given to dull her senses, raised alarm resulting in her being found at the Appellants’ house. PW3 and PW4 also corroborated the testimony that the complainant was found in his house at around 10 pm, where she had been locked in. The circumstances provide a chain that is unbreakable, corroborating the evidence of the complainant as to the identification of the Appellant. There was no evidence tendered to the contrary and therefore, I find that this element was proved to the required standard. 71.It is therefore the finding of this court that the prosecution proved its case to the required standard. The conviction of the Appellant was safe and I therefore dismiss the Appeal on conviction. Whether the sentence was harsh or excessive 72.On the second issue, sentence, the applicable principles in re-considering sentence on appeal, were restated by the Court of Appeal in Bernard Kimani Gacheru v Republic [2002] eKLR, in the following terms:“It is now settled law, following several authorities by this Court and the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account the wrong material, or acted on the wrong principle. Even if, the appellate Court feels that the sentence is heavy and that the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial Court on sentence unless, anyone of the matters already stated is shown to exist”. 73.Section 8(4) of the Sexual Offences Act provides as follows:“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 74.The Appellant contends that there was no application of section 333(2) of the Criminal Procedure Code during his sentencing. This was the only issue pertaining to sentence that was pleaded in the Petition of Appeal. A perusal of the record of the trial court reveals that the trial magistrate took into consideration the provisions of Section 333(2) of the Criminal Procedure Code and considered the time spent in remand while meting out the sentence. 75.The upshot of the foregoing is that the Appeal against both sentence and conviction fails. The appeal is dismissed in its entirety. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF JULY 2026A.K.NDUNG’UJUDGE