https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7952

Wasilwa v Republic (Criminal Appeal E073 of 2025) [2026] KEHC 7952 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 7952 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E073 of 2025 S Mbungi, J June 5, 2026 Between Joseph Misiko Wasilwa Appellant and Republic Respondent (Being an appeal against both the judgement and sentence of Hon. Caroline Ndumia -SPM delivered on 5TH May 2025 in Kangema SPM’S Court SO case No. E013 of 2024) Judgment 1.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 27th May 2024 at xxxxxx in Murang’a County, the Appellant intentionally caused his penis to penetrate the vagina of R.N.W, a child aged 15 years. 2.He was also charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 27th May 2024 at Mathioya in Murang’a County, the appellant intentionally touched the vagina of R.N.W, a child of 13 years with his penis. Facts at trial 3.The appellant pleaded not guilty to all the charges and the case then went to full trial; the prosecution called 5 witnesses. 4.Upon examination after a voire dire, the court found the minor competent to give a sworn statement. PW1 was R.N.W, the complainant, a female minor aged 13 years. She lived with her grandmother and grandfather and she was in Grade 8. She was born on 23rd March 2011. PW1 testified that on 22nd May 2024 at around 6:00 pm, she had gone to [Particulars withheld] Shopping Centre to buy a school tie and socks. On her way back, she met the accused person, whom she knew as “Jose” or “Joseph,” and another young man known as “Jamo.” They asked her to stop, but she refused and continued walking home. However, they followed her and one of them caught her hand. The accused person told her, “Mimi niko mrembo sana unaweza kuwa wife yangu” (I am very beautiful, you can be my wife). She refused. They picked her up and took her to the house of Joseph (the accused). It was at night, the accused told her they should sleep. She refused, but he forced her onto the bed. Jamo came and then left. The accused then removed her trousers, laid on her and inserted his penis into her private part. She screamed. Jamo returned and asked what was wrong, but the accused told Jamo to lock the door from the outside because they wanted to sleep. When she screamed, the accused removed his penis. He did not insert it again at that time and went to sleep. At 5:00 am, the accused woke up and tried to insert his penis again. He inserted it, but she did not scream. She told him she did not want to get pregnant. At 6:00 am, he woke up and told her he was going to make tea. She then dressed up and escaped. She went home and found her grandmother, but she was afraid to tell her what had happened because she thought her grandmother would think she was lying and scold her. She dressed up and went to school, where she explained to the headteacher (PW2) why she was late. The headteacher later accompanied her to Kiriaini Police Station and she was taken to the hospital for examination. PW1 stated that she did not know Jose before the incident but heard him being called that name. She pointed to the accused person in court as the one who defiled her. Under cross-examination by the accused, PW1 stated that she did not know him before the incident and had never been to his house. They met at 6:00 pm and there was light. She denied having sexual intercourse with her former boyfriends, Brian and Alex, and confirmed that she did not tell her grandmother where she had slept that day. 5.PW2, RWK, the principal at [Particulars withheld] School, testified that on 28th May 2024 at about 10:00 a.m., PW1 came to her office. PW1 told PW2 that she had just arrived in school and had come to explain why she was late. PW1 informed PW2 that on the previous night of 27th May 2024, she had been sent by her grandmother to [Particulars withheld] Shopping Centre to buy a tie and socks for school. While heading home, she was caught by two young men she did not know, who took her to their home. PW2 further testified that PW1 told her that she was taken to one known as Jose, after she heard the two calling each other. PW1 stated that the other young man had left and that Jose raped her. PW1 further told PW2 that when they arrived, they had sex the first time and she screamed. Then Jamo heard the scream and came to ask what had happened. Jose told him to close the door from outside so that they would not be discovered. PW1 slept at that home. PW2 testified that PW1 also told her that at around midnight, they had sex again. PW2 stated that when she asked PW1 how she escaped, PW1 told her that Jose called Jamo and asked him to come open the door in the morning, as the door had been locked from outside. Jose told PW1 that he was going to prepare tea and that was when she was able to escape. PW1 told PW2 that Jamo had left at that time. PW1 said she went directly home and did not tell her grandmother (cucu) that she had been raped; instead, she told the grandmother that she had been kidnapped by two men. PW1 did not give PW2 her grandmother’s number because she did not have it. PW2 stated that she called the Sub-County Director of Education, Mathioya, who instructed her to go to Kiriaini Police Station. The Sub-County Director of Education had already informed the Officer Commanding Station (OCS). PW2 testified that she took PW1 to Kiriaini Police Station, where the OCS directed her to the crime officer. The crime officer took the child and interviewed her in an office. The Sub-County Director of Education arrived at the police station and found them there. The crime officer told PW2 that PW1 should proceed to hospital and they went to Nyakianga Hospital. PW2 said that those present at the hospital were herself, the Sub-County Director of Education and the police officer. They did not enter the doctor’s office; the officer went with the minor to the doctor. PW2 was told to buy her some medication. PW2 did not get to know or see the two young men; she only got their names from PW1 as Jose and Jamo. 6.PW3, MN, grandmother to PW1, testified that she is also known as GN. She lives in [Particulars withheld] with her husband, and the two children under her care: RNW (the victim) and Prudence. She stated that RNW attends [Particulars withheld] Secondary School and is in Grade 8. On 27th May 2024, she sent RNW to buy a tie for school. When the minor left, she did not return, and PW3 did not know where she had gone. She waited for her, but she did not come back. The following day, the victim returned, but PW3 had already gone out to look for her. She did not see her that day. Her husband (Guka) told her that the victim had come home, dressed up, and gone to school. PW3 waited for the victim in the evening but did not see her. She went to look for her at her friends' homes. She was told that while in school, the victim had been called by the teacher. The victim did not come back home on 28th July 2024 (sic – likely a typographical error from the original notes; the intended date is 28th May 2024). She went to look for her. She was later called and informed that the child was with the teacher. In the evening, she saw officers from Kiriaini Police Station. She was called by the headteacher and asked to go see him. The headteacher told her that he had been called by the Officer Commanding Station (OCS) of Kiriaini and informed that the child had run away. PW3 told the headteacher that she knew the child had gone with the headteacher. That evening, she saw police officers, the OCS, and a woman named Madam Veronica. They came to pick her up to go and arrest the accused person. The officers told her that the child had run away, but she responded that she did not know. The police officers then informed her that the child had come and slept at the accused person's home. PW3 told them that she knew the child had run away and slept at the accused person's home. The victim (Rose) then directed the officers to the accused person's home. PW3 stated that she did not direct the officers to the accused person's home; she remained in the vehicle while the victim directed them. They went back home thereafter. The following day, they went to the police station, where she recorded her statement. PW3 confirmed that she did not know the accused person. She stated that RNW is aged 14 years old, and she is the guardian of RNW and her sister. She was informed that the child had been raped but had been treated. She talked to RNW , who told her what had happened, and PW3 admitted that she scolded her. She clarified that she did not send the victim on the errand that evening; the victim had been given money by her uncle and went to the shop in the evening. PW3 further testified that in January of the same year, the victim had run away for two weeks. She did not know where she was and did not ask her. She reported that matter to the chief. She stated that the other child under her care is 11 years old. During cross-examination, PW3 stated that she did not see the victim on 28th May 2024 because she had gone to look for her. The victim found her grandfather (Guka), dressed up, and went to school. PW3 waited for the victim, but the victim instead went to the teacher and then to the hospital. She stayed with the headteacher. When PW3 asked the victim, the victim told her that she met with the accused person and another individual. PW3 confirmed that the victim had not slept outside the home before, but the victim told her that she slept at the accused person's house. They were called to the police station, and the accused person was also called to the police station. The accused person was asked if he knew the victim, and he answered yes. His employer had come to the station. PW3 stated that she knows the accused person's employer but does not know the accused person. She also stated that she had not been summoned to school regarding the victim missing school. 7.PW4 testified that he is a Clinical Officer stationed at Murang'a Level 5 Hospital. He presented the P3 form findings for the victim, identified as R.N. According to the report, the victim alleged to have been defiled by a person well known to her on 27th May 2024 in the [Particulars Withheld] area at 6:00 pm. She spent the night with the perpetrator and was able to run away on the morning of 28th May 2024. Upon medical examination, PW4 found that the victim had normal outer genitalia. Her hymen was broken, although not freshly broken. There was reddening of the vulva. Laboratory tests were negative for Syphilis and HIV. Pus cells were present, and the victim was found to have a fungal infection as well as a whitish discharge. PW4 produced the P3 form as Prosecution Exhibit 1. He also produced the Post-Rape Care (PRC) form as Prosecution Exhibit 2, and the treatment notes (which were filled by another clinician) as Prosecution Exhibit 3. PW4 confirmed that he had examined and filled the P3 form for the victim. He stated that the victim told him she had been defiled. He noted the reddening on her vulva. He further testified that if the victim had been defiled previously (before the alleged incident), she would not have presented with reddening. He opined that the victim was qualified to give testimony. During cross-examination, PW4 reiterated that he wished to produce the medical documents marked as Prosecution Exhibits 1, 2, and 3. He identified the person arrested in respect to the defilement as the accused person present in court. 8.PW5 – No. 232743 CPL Veronica Nthenya (Investigating Officer, Kiriaini Police Station). PW5 testified that she is attached to Kiriaini Police Station. On 28th May 2024 at 12:30 hours, a victim of defilement was brought to the station escorted by the headteacher of [Particulars withheld] Secondary School. The victim stated that she had been defiled on the night of 27th May 2024. PW5 recorded in the Occurrence Book (OB) that on 27th May 2024, the victim arrived home at 5:00 pm and then went to [Particulars withheld] Shopping Centre, which is approximately 1 kilometre from her home. After buying socks, she began walking home. On her way, she met two men, one of whom identified himself as Joseph. They stopped her, and Jose (the accused) asked her to follow them. The victim was 13 years old. She refused to follow them. The victim stated that Joseph took a handkerchief and closed her mouth while the other man forced her to follow them. They reached a home and entered a one-roomed house. Jose entered the room with her and shouted to the other man to lock the house from outside. The accused defiled the victim during the night. That report formed the basis of PW5's investigation. PW5 escorted the minor to Nyakianga Hospital, where she was treated and released to go home. PW5 recorded the victim's statement and the headteacher's statement. She also summoned the victim's guardian and recorded her statement. On 29th May 2024, PW5 visited the scene of the incident, accompanied by the area chief and the victim's guardian. The victim led them to the scene, which was a one-roomed house containing one bed. They did not find the accused at that time. On 31st May 2024, with the assistance of the assistant chief and officers from [Particulars withheld] Police Post, the accused was arrested and charged. PW5 confirmed the age of the victim using a birth certificate, a copy of which she produced as Prosecution Exhibit 4. According to the birth certificate, the victim was born in the year 2011, meaning she was 13 years old at the time of the incident. During cross-examination, PW5 stated that the complainant (victim) identified the accused as the person who defiled her. She confirmed that the accused was not present when she first visited the scene. The accused was arrested on a later date. PW5 stated that she did not know the relationship between the accused and the victim. She acknowledged that the victim had relations with another man, noting that this matter was still being investigated. She confirmed that the victim reported the accused as the one who defiled her. The victim first reported to her teacher, and the teacher then reported to the police. PW5 further stated that she did not know who Alex and Brian were (names that had arisen during the defence cross-examination of earlier witnesses). Defence Case 9.The Appellant denies committing the offence of defilement. He states that he did not know the complainant before the alleged incident. He points out that the incident happened at night in a house with no light, making positive identification impossible. He further relies on the complainant's own admission that she did not know him, had never been to his home, and did not know where he lived. 10.The Appellant notes that the complainant named other men Jose, Alex and Brian who were her boyfriends. He states that his name is Josphat Misiko Wasilwa, not any of those names, and argues this proves mistaken identity. He maintains he is not the person who defiled the complainant on the night of 27th May 2024. 11.Regarding penetration, the Appellant points to the complainant's own statement that "Jose did not inserted his penis into my vagina. Nothing else happened." He argues that this alone defeats the charge of defilement. 12.He further contends that the prosecution failed to prove the essential elements of the offence: age, penetration and identity. He asserts that the burden of proof never shifted to him and the prosecution's failure to prove his identity is fatal to their case. He claims the trial court rushed its finding and ignored critical factors such as the lack of lighting, the complainant's relationships with other men and contradictions in the evidence. The Appeal 13.Being dissatisfied by the decision of the trial court, the Appellant filed a petition of appeal on the following grounds:(a)That the element of the offence was not proved beyond reasonable doubt.(b)That the conviction was based on doubtful identification evidence and statement.(c)That the prosecution failed to prove penetration(d)That the defence was not considered Appellant’s Submission 14.On the elements of the offence: Relying on the cases of Fappyton Mutuku Ngui v Republic [2010] eKLR, John Muthama v Republic [2016] eKLR and Francis Ndungu Tweni v Republic [2017] eKLR, the Appellant argued that the prosecution failed to prove the three essential ingredients of defilement beyond a reasonable doubt: the age of the complainant, penetration and positive identification of the perpetrator. 15.On identification: The Appellant submitted that the incident allegedly occurred at night without light inside the house. He pointed to the complainant’s (PW1) testimony on page 8 of the record where she stated, “there was no light in the house” and that she did not know the Appellant before the incident. The Appellant emphasized that PW1 admitted in cross-examination that she had two former boyfriends (Brian and Alex) but did not know him. He submitted that this pointed to a case of mistaken identity, as he is not named Jose, Alex, or Brian. He relied on the principle in Kariuki Njiru & 7 Others v. Republic [2001] eKLR that identification evidence in sexual offences, especially those carrying long sentences, must be subjected to the most careful scrutiny. 16.On the burden of proof: The Appellant argued that the trial court shifted the burden of proof onto him. He submitted that as an unrepresented accused, he merely told his side of the story, but it remained the prosecution’s duty to prove its case. He cited the locus classicus of Woolmington v. DPP [1935] AC 462 (as applied in Kenya in Okethi Okale & Others v. Republic [1965] EA 555) that the burden never shifts to an accused person. 17On the duty of the first appellate court: Citing Okeno v. Republic [1972] EA 32 and Pandya v. Republic [1957] EA 336, the Appellant prayed that this court, as the first appellate court, re-evaluate the evidence on record afresh and come to its own independent conclusion, which he urged should be to quash the conviction and set aside the sentence. Respondent’s Submission 18.On the legality of the sentence: The Respondent argued that the sentence of twenty (20) years’ imprisonment for defilement of a child aged thirteen (13) years under Section 8(3) of the Sexual Offences Act is lawful and, if anything, is minimal and lenient. Counsel submitted that under Section 10(b) of the Community Service Orders Act, sexual offences are not eligible for non-custodial sentences, and no reduction of sentence should be entertained. 19.On proof of the elements of the offence: Relying on Section 124 of the Evidence Act (Cap. 80), the Respondent submitted that the trial court was entitled to convict on the uncorroborated evidence of the victim if it believed she was telling the truth. The Respondent argued that the trial court did so believe PW1. 20.On penetration: The Respondent submitted that the clinical officer’s evidence (PW4) and the medical exhibits confirmed that the complainant had been penetrated. The P3 form and treatment notes corroborated the complainant’s testimony. 21.On age: The Respondent pointed to the complainant’s birth certificate, produced as Exhibit 4, which proved that the complainant was aged thirteen (13) years at the time of the offence. 22.On identification: The Respondent strongly contested the Appellant’s claim of mistaken identity. Counsel submitted that the complainant knew the Appellant well before the incident. He noted that the complainant spent the night with the Appellant, with interruptions from a person named “Jamo,” and that in the morning there was sufficient light. Counsel argued that this was not a case of a stranger identification but of recognition, which is more reliable. He submitted that the complainant’s consistent naming of the Appellant throughout her testimony removed any doubt about identity. 23.On the Appellant’s defence: The Respondent submitted that the Appellant’s unsworn defence was a mere afterthought that lacked credible and sustainable proof. It did not shake the prosecution’s case. Analysis and Determination 24.This being a first appeal, this Court is bound by the well-established duty to re-evaluate the evidence tendered before the trial court afresh and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify or observing their demeanour. This principle was authoritatively restated by the Court of Appeal in Okeno v. Republic [1972] EA 32 and Pandya v. Republic [1957] EA 336, both of which were cited by the Appellant. I have undertaken this duty with the requisite diligence and care. 25.The offence of defilement is defined under Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. For a conviction to stand, the prosecution must prove three essential ingredients beyond reasonable doubt:a.the age of the victim (who must be a child under 18 years)b.penetrationc.the positive identification of the perpetrator. (George Opondo Olunga v Republic [2016] eKLR and Fappyton Mutuku Ngui v Republic [2010] eKLR). 26.I shall address each ingredient in turn. Proof of Age 27.The Appellant was charged with defiling a child aged 15 years, while the alternative charge referred to a child of 13 years. The prosecution produced the complainant's birth certificate as Prosecution Exhibit 4, which established that the complainant was born on 23rd March 2011. At the time of the incident on 27th May 2024, the complainant was therefore 13 years and two months old. PW5, the Investigating Officer, confirmed this age through the birth certificate. The Court of Appeal in Edwin Nyambogo Onsongo v. Republic [2016] eKLR held that the age of a victim in defilement cases can be proved by documents such as a birth certificate, baptismal card, or by oral evidence of the child, parents, guardian or medical evidence, provided the evidence is credible and reliable. In Thomas Mwambu Wenyi v. Republic, Criminal Appeal No. 21 of 2015 [2017] eKLR, the Court further clarified that a birth certificate is a primary and highly credible document for proving age. 28.In the present case, the birth certificate was properly produced and identified. The complainant herself testified that she was born on 23rd March 2011. Her grandmother, PW3, stated that the complainant was 14 years old (testifying in 2024). The slight discrepancy between the charge sheet (which stated 15 years for the main count and 13 years for the alternative count) and the birth certificate evidence does not affect the substance of the charge. The complainant was indisputably a child under 18 years at the time of the offence and more specifically, she was 13 years old, squarely falling within the bracket of Section 8(3) of the Sexual Offences Act, which prescribes a minimum sentence of 20 years' imprisonment for defilement of a child between 12 and 15 years. Under Section 382 of the Criminal Procedure Code, minor discrepancies in the charge sheet that do not occasion a failure of justice do not vitiate a conviction. I find that the age of the complainant was proved beyond reasonable doubt. Proof of Penetration 29.The Appellant strenuously argues that penetration was not proved, relying on a purported statement by the complainant that "Jose did not insert his penis into my vagina". This submission is, with respect, a mischaracterisation of the evidence on record. PW1, the complainant, gave a detailed and graphic account of the events. She testified that the Appellant removed her trousers, laid on her and "used his penis" by inserting it into her private part. She screamed during the first act. At 5:00 a.m., the Appellant woke up and inserted his penis again. Her testimony was consistent, vivid and unshaken under cross-examination. 30.This oral evidence was corroborated by the medical evidence of PW4, the Clinical Officer, who examined the complainant. PW4 found that:a.The complainant's hymen was broken;b.There was reddening of the vulva;c.There were pus cells and a fungal infection with whitish discharge;d.Laboratory tests were negative for Syphilis and HIV. 31.PW4 produced the P3 form as Prosecution Exhibit 1, the Post-Rape Care (PRC) form as Prosecution Exhibit 2 and the treatment notes as Prosecution Exhibit 3. Crucially, PW4 testified that if the victim had been defiled previously (before the alleged incident), she would not have presented with reddening of the vulva. This medical opinion directly links the physical findings to the alleged incident. Section 2 of the Sexual Offences Act defines penetration as "the partial or complete insertion of the genital organs of a person into the genital organs of another person." The Court of Appeal in George Hezron Mwakio v. Republic [2010] eKLR emphasized that even partial penetration constitutes the offence of defilement. The medical evidence of a broken hymen, reddening of the vulva and the presence of infection, combined with the complainant's detailed testimony of penile insertion, amply satisfies the legal threshold for proof of penetration. The Appellant's reliance on an isolated and out-of-context statement allegedly made by the complainant cannot override the totality of the evidence. The complainant's testimony, corroborated by medical evidence, establishes penetration beyond reasonable doubt. I find that penetration was proved beyond reasonable doubt. Proof of Identification 32.The Appellant's second major ground of appeal is that he was not positively identified, arguing that the incident occurred at night without light and that the complainant had never known him before. He further contends that the complainant referred to him as "Jose" or "Joseph," whereas his name is Josphat Misiko Wasilwa and that she had boyfriends named Alex and Brian, pointing to mistaken identity. 33.I have carefully considered these submissions and find them unpersuasive for the following reasons: a. Recognition, Not Stranger Identification 34.The distinction between identification of a stranger and recognition of a known person is fundamental in criminal law. The Court of Appeal in Kariuki Njiru & 7 Others v. Republic [2001] eKLR held that while identification evidence in sexual offences must be subjected to the most careful scrutiny, recognition evidence is inherently more reliable than identification of a stranger. In the present case, the complainant spent the entire night with the Appellant in a one-roomed house. She had ample opportunity to observe him, hear his voice and interact with him. She testified that she heard him being called "Jose" or "Joseph" by his companion, Jamo. She pointed to him in court as the person who defiled her. b. The "Jose/Joseph" Name Issue 35.The Appellant's argument that he cannot be "Jose" because his name is "Josphat" is specious. "Jose" is a common diminutive or nickname for "Joseph" or "Josphat." The complainant testified that she heard his companion call him "Jose." The fact that the complainant did not know the Appellant's full legal name before the incident does not negate her ability to recognise him as the person who committed the offence. The complainant's grandmother, PW3, testified that the complainant directed the police officers to the Appellant's house, demonstrating that she knew where he lived. c. The Presence of Light 36.The complainant testified that she met the Appellant at 6:00 p.m. when there was still daylight. She was then taken to his house, where she spent the night. In the morning at 5:00 a.m. and 6:00 a.m., there was sufficient natural light for her to observe the Appellant. The Appellant's assertion that there was "no light in the house" ignores the fact that the complainant had multiple opportunities to see and recognise him both before nightfall and after dawn. d. The Complainants' Relationships with Other Men 37.The Appellant's attempt to introduce the complainant's alleged relationships with "Alex" and "Brian" is a red herring. The complainant denied having sexual intercourse with these individuals during cross-examination. Even if she had previous relationships, this does not establish that the Appellant did not defile her on the night in question. The medical evidence of reddening of the vulva, which PW4 opined would not be present if the complainant had been defiled previously, supports the conclusion that the penetration occurred during the alleged incident. e. Corroboration by PW2 and PW5 38.PW2, the headteacher RNW , testified that the complainant told her that "Jose raped her" and provided consistent details of the events. PW5, the Investigating Officer, recorded the complainant's statement and confirmed that the complainant consistently identified the Appellant as the perpetrator. The complainant also led the police to the Appellant's house, which she described as a one-roomed house with one bed a description that PW5 confirmed upon visiting the scene. 39.I find that the Appellant was positively identified as the perpetrator beyond reasonable doubt. Section 124 of the Evidence Act and the Complainant's Testimony 40The Respondent correctly relied on Section 124 of the Evidence Act (Cap. 80), which provides: "Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, 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." 41.This provision was introduced by the Criminal Law (Amendment) Act (2003) and further amended by the Sexual Offences Act. The Court of Appeal in Dennis Osoro Obiri v. Republic, Criminal Appeal No. 279 of 2011 [2014] eKLR authoritatively held that corroboration of a child's evidence is no longer mandatory in sexual offences as long as the trial court is satisfied that the child is telling the truth and records its reasons for so finding. In the present case, the trial court conducted a voire dire examination and found the complainant competent to give a sworn statement. The complainant's testimony was not only internally consistent but was also corroborated by: PW2 (the headteacher, who received the first report); PW3 (the grandmother, who confirmed the complainant's absence and subsequent report); PW4 (the Clinical Officer, whose medical findings supported penetration); PW5 (the Investigating Officer, who confirmed the complainant's consistent identification and led the investigation to the Appellant's house). 342.The trial court was therefore not solely reliant on the complainant's evidence. Even if it were, the complainant's testimony was of such cogency, clarity, and consistency that it would satisfy the requirements of Section 124 of the Evidence Act. The Burden of Proof 43.The Appellant argues that the trial court shifted the burden of proof onto him. This submission is without merit. The burden of proof in criminal cases never shifts from the prosecution to the accused. As Lord Sankey LC stated in the locus classicus of Woolmington v. DPP [1935] AC 462 and as applied in Kenya in Okethi Okale & Others v. Republic [1965] EA 555, the prosecution bears the burden of proving the accused's guilt beyond reasonable doubt. 44.In this case, the prosecution discharged this burden by adducing five witnesses, medical evidence, and documentary exhibits. The Appellant chose to remain silent and did not offer any sworn defence or call witnesses. His unsworn statement, which consisted of bare denials and assertions of mistaken identity, did not rebut the prosecution's evidence. The trial court was entitled to reject his defence as a mere afterthought lacking credible and sustainable proof. 45.The Appellant's reliance on Woolmington is misplaced in the context of this appeal. The prosecution's case was proved through positive and credible evidence, not through any shift in the burden of proof. The Defense 46.The Appellant's defense consists of the following propositions:i.He did not know the complainant before the incident;ii.The incident happened at night without light, making identification impossible;iii.His name is not "Jose," "Alex," or "Brian";iv.The complainant admitted that "Jose did not insert his penis." 47.As I have analyzed above, each of these propositions collapses under scrutiny:a.The complainant's lack of prior acquaintance with the Appellant does not prevent her from recognising him after spending an entire night with him;b.The presence of daylight at 6:00 p.m. and morning light at 5:00–6:00 a.m. provided ample opportunity for recognition;c.The name "Jose" is a nickname for "Joseph" or "Josphat," and the complainant identified him by appearance, not merely by name;d.The alleged admission is contradicted by the complainant's detailed testimony of penile penetration, corroborated by medical evidence. 48.The trial court was entitled to find, as I do, that the Appellant's defence was a mere denial that did not raise any reasonable doubt in the prosecution's case. Mtenzi v. Republic [2025] KEHC 1835 (KLR), where the High Court held that a defence of mere denial cannot override credible prosecution evidence. The Sentence 49.The Appellant was sentenced to 20 years' imprisonment under Section 8(3) of the Sexual Offences Act, which provides: "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." 50.The Respondent submits, correctly in my view, that the sentence of 20 years is not only lawful but minimal and lenient given the mandatory minimum prescribed by statute. Section 10(b) of the Community Service Orders Act explicitly excludes sexual offences from eligibility for non-custodial sentences. The Court of Appeal in Republic v. Joshua Gichuki Mwangi [2024] (upholding the High Court decision) confirmed that the minimum sentence of 20 years under Section 8(3) is mandatory and must be imposed where the offence is proved. The trial court had no discretion to impose a lesser sentence and this Court, sitting on appeal, has no basis to interfere with the sentence imposed. 51.The Appellant has not demonstrated that the trial court acted ultra vires its sentencing powers, that it failed to consider relevant factors, or that the sentence is manifestly excessive in the circumstances. The complainant was a 13-year-old child who was abducted, held overnight and subjected to repeated sexual violation. The sentence of 20 years is proportionate to the gravity of the offence and serves the objectives of retribution, deterrence and protection of vulnerable children. 52.I find that the sentence of 20 years' imprisonment is lawful, appropriate, and should be upheld. 53.Having re-evaluated the evidence on record afresh, I am satisfied that the prosecution proved all three essential ingredients of the offence of defilement beyond reasonable doubt:a.Age: The complainant was 13 years old at the time of the offence, proved by her birth certificate and testimony.b.Penetration: The complainant's testimony of penile insertion was corroborated by medical evidence of a broken hymen, reddening of the vulva and genital infection.c.Identification: The Appellant was positively identified by the complainant through recognition during an overnight ordeal, corroborated by her consistent reporting to PW2 and PW5, and her ability to lead the police to his house. 54.The Appellant's grounds of appeal are devoid of merit. His defense of mistaken identity and denial of penetration is contradicted by the overwhelming weight of the prosecution evidence. The trial court's finding was based on credible, cogent and consistent evidence, and its conclusion was safe and proper. 55.The sentence of 20 years' imprisonment is the mandatory minimum under Section 8(3) of the Sexual Offences Act and is neither excessive nor unlawful. Determination 56.For the foregoing reasons, I make the following orders:a.The appeal is dismissed in its entirety.b.The conviction for defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 is upheld.c.The sentence of 20 years' imprisonment imposed by the trial court is upheld.d.The Appellant shall serve the sentence as imposed by the trial court.e.Right of Appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 5TH DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angong’a/VelmaNdege for ODPP present online.Appellant present online.