Kevin Wanjala v Republic

The Court applied its settled jurisprudence from Mwalango Chichoro Mwanjembe v Republic that proof of age may be by birth certificate, baptism card, oral evidence of a sufficiently intelligent child, parents, guardian or medical evidence. PW2 testified to the complainant's date of birth and produced a birth certificate, placing the complainant at 10 years old at the material time. Both courts below accepted this evidence and the Court saw no basis to disturb the concurrent finding of fact.

The Court noted the statutory definition of penetration in section 2 of the Sexual Offences Act and the authority of Wanyonyi v Republic that absence of medical evidence is not decisive. PW1 was an eyewitness who saw the appellant defiling the victim, and the victim's testimony corroborated PW1's account of when, where and how the act occurred. The medical evidence, though not conclusive alone, was consistent with penetration and corroborative. This was a rare defilement case with an eyewitness.

The appellant argued the night-time incident made identification unreliable. The Court held that PW1 and PW3 knew the appellant well as a herdsman employed by PW2 who lived on the homestead, and he was in the same house on the fateful night. PW1 saw the appellant during the act. Recognition evidence of a known person is materially more reliable than identification of a stranger, and the positive recognition evidence displaced the appellant's defence.

The Court held that section 8(2) of the Sexual Offences Act prescribes only one sentence for defilement of a child below eleven years, namely life imprisonment. It relied on the Supreme Court's decision in Republic v Mwangi; ISLA (Amicus Curiae), which affirmed the lawfulness of the minimum sentence of life imprisonment under that provision. The sentence was therefore lawful and could not be disturbed as harsh or excessive.