Cornelius Wafula Chambisa v Republic

The Court reiterated that proof of age may be by oral evidence of the child, parents or guardians, medical evidence, or documents such as a birth certificate. Here there was oral evidence from the complainant herself plus the age assessment report produced by PW3. The findings of both courts below were therefore evidence-based and beyond the reach of a second appeal under section 361(1)(a) of the Criminal Procedure Code.

Section 2 of the Sexual Offences Act defines penetration as partial or complete insertion of genital organs. PW1 described the acts in detail; PW3 found redness of the labia minora, an intact hymen absent, discharge and pain. Although P.K.W. cautions against assuming absence of the hymen proves penetration, penetration here did not rest solely on the hymen but on testimony plus the totality of medical findings.

The complainant lived with the appellant, a relative, and knew him well; the appellant himself admitted she had stayed with his family and that her mother referred to him as an uncle. Both courts below found positive identification. Recognition evidence being more reliable than identification of a stranger, the Court found no basis to disturb the finding.

The record showed that on 7th April 2015, 14th May 2015 and 16th June 2015 the trial court ordered supply of statements, and on 27th July 2015 ordered preparation of the P3 form. The application to reopen the case was refused because the case was old and statements had been supplied. The appellant indicated readiness at the start of the trial and cross-examined all witnesses extensively, so he suffered no handicap.

Relying on the Supreme Court's decision in Petition No. E018 of 2023, Republic vs. Joshua Gichuki Mwangi, the Court held that life imprisonment for defilement of a child aged eleven years or less is mandatory/minimum and not discretionary, so the appellant's invocation of Articles 25(c), 27(1), 28 and 50(2)(p) could not succeed. The appeal against sentence therefore failed.