REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT ELDORET CRIMINAL APPEAL NO. E089 OF 2023 JAMES KIPCHUMBA KOSGEI ........................... APPELLANT VERSUS REPUBLIC ....................................................... RESPONDENT (Being an appeal from the judgement of Hon. P. N.Areri (SPM) delivered on 13/9/2023 in Eldoret CM SO Case No. 251 of 2016) JUDGEMENT 1. The appellant is charged with defilement contrary to section 8(1) as section 8(2) of Sexual Offences Act No. 3 of 2001. The particulars of the offence are that on 22nd day of October, 2016 at Ziwa market in Eldoret West SubCounty within Uasin Gishu County, the appellant intentionally and unlawfully, caused his genital organ to penetrate the vagina of M O a girl aged 6 years. 2. In the alternative, the appellant was charged with indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars of the alternative count are that on 22nd day of October, 2016 at Ziwa Market in Eldoret West Sub-County within Uasin Gishu County, the appellant intentionally and unlawfully caused his genital organ namely penis to come into contact with the genital organ namely vagina of one M O a child aged 6 years. 3. The trial court considered the evidence of 3 prosecution witnesses and one defence witness and found the appellant guilty of the offence of defilement. Upon CRIMINAL APPEAL NO. E089 OF 2023 (James Kipchumba Kosgei vs Republic) JUDGEMENT 1|Page
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conviction the appellant was sentenced to serve life imprisonment. 4. Being dissatisfied with conviction and sentence by the trial court the appellant preferred this appeal. The appeal is based on 7 grounds which can be summarized as follows: - 5. a) That prosecution failed to avail critical witnesses and did not prove its case the appellant beyond reasonable doubt. b) The learned magistrate erred in finding that rejecting the appellant’s evidence simply because he denied the offence. c) That the time he spent in remand is not factored in his sentence. PW1, MO, the complainant gave unsworn testimony. In October, 2016, PW1 stated, while she was playing with the children of Karisi – Allan and Toi-, their neighbour at their garage near their home, that man (pointing at appellant) promised to give her Kshs. 10 and she refused. PW1, further stated, he used to see the appellant at Manu’s movie place nearby and that he had seen him about 10 times before. 6. When she refused to go, PW1 stated, the appellant carried her to the shamba like a baby from the garage to a shamba near their home. Nobody else was, PW1 stated, but her friends saw her being carried and they went and told their mother. 7. PW1, further, stated that they went through the wire to the shamba and the accused removed her trouser and did bad manners to her. PW1 explained he removed my pant and put his thing into my thing and she started crying. 8. People called by Mama Joy, PW1 stated, came from all directions and carried the accused over the fence and they CRIMINAL APPEAL NO. E089 OF 2023 (James Kipchumba Kosgei vs Republic) JUDGEMENT 2|Page
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went with him to the police station and PW1 told the police what happened. 9. PW1 also stated that her sister Awino took her to hospital the same day Ziwa Sub-County Hospital. PW1 was not cross examined by the appellant 10. PW2, Jaqueen Auma, stated she lived in Ziwa Sirikwa and she is a saloonist. PW2 said she was called by someone who informed her that her child was being taken to police station and she followed the crowd and found it was her sister. At the police station, PW2, she was advised to take the child to hospital to confirm if she was defiled. PW2, further, stated she took the child to hospital and was treated and issued with documents including a P3 form which was filed at Ziwa Sirikwa Sub-County hospital. PW2, also stated the complainant was born on 24/1/2010 but she did not have her birth certificate. She also did not know where her clinic card was. 11. PW3, Dr. Eunice Timet, a medical doctor based at MTRH hospital stated that on 25/10/2016 she filed a P3 for M O who was referred to the hospital from Ziwa Police Station. PW3, stated the complainant had hymenal tear at 9:00 O’clock consistent with defilement. P3, further, produced the complainant’s P3 form marked P. Exhibit 2. 12. When PW1 was recalled by Counsel for the appellant, PW1 stated stated she in Class 1 at J Academy and she is 7 years old the accused attempted to ran away but was arrested by people. She also stated that the accused removed his thing and put in the place where she ‘susu’’ and that she was injured on her ‘chuchu’ and was taken to hospital. CRIMINAL APPEAL NO. E089 OF 2023 (James Kipchumba Kosgei vs Republic) JUDGEMENT 3|Page
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13. PW2 was also re-called. She stated she left the complainant playing with 2 other children as she went to pick Omena from her mother’s sister house. At 4:00 pm, while at stage, PW2 stated, she was informed her child had been taken to the police station and found the accused had also been taken to the police station by members of the public. 14. DW1 stated, he was in-charge of pool. He recalls on the day of the alleged incident herein; he was at home up to noon. Thereafter, he went to Ziwa Centre to pool at 3:00 pm. The appellant also stated, 2 people came and asked what he had done to a Luos child. Thereafter the appellant, he was taken to Ziwa police stated arrested and charged. 15. On cross-examination, the appellant stated he had an affair with PW2 elder daughter but they differed. He also stated he knows the complainant and her mother but had not differed with them. 16. The issue for determination from the court is whether the prosecution proved the offence of defilement against the appellant. This being 1st appeal, this court has jurisdiction to revisit the evidence tendered in the lower court afresh, evaluate the same and come to own conclusion, bearing in mind that the lower court had the advantage of observing the demeanour of witnesses and give due allowance to that. (see. Mark Oiruri Mose -vs- Republic (2013) eKLR) 17. Section 8(1) of the Sexual Offences Act provides: “A person an act which causes penetration with a child is guilty of an offence termed as defilement’’ In Section 2 of the Act “penetration ” is defined as: CRIMINAL APPEAL NO. E089 OF 2023 (James Kipchumba Kosgei vs Republic) JUDGEMENT 4|Page
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“ ..partial or complete insertion of the genital organs of a person into the genital organs of another person.” 18. The ingredients of defilement were set out in the case of of Charles Wamukoya Karani v Republic Bungoma HC Criminal Appeal No. 720 of 2013 the court stated: “The critical ingredient forming the offence of defilement are the age of the complainant, proof of penetration and positive identification of the assailant” 19. PW2, the complainant’s sister stated the complainant was born on 24/1/2010 but she did not have her birth certificate. She also did not know where her clinic card was. The complainant herself stated she in Class 1 at J Academy and she is 7 years old. It is also is noted the age of the complainant was not contested by the appellant. It is, therefore, my finding that the appellant born in 2010 and was aged 6 years in 2016 when the alleged offence herein occurred. 20. On penetration, complainant stated that in October, 2016, while she was playing with of their neighbour Karisi children Allan and Toi, the appellant carried her like a baby to a shamba near their home. Nobody else was, PW1 stated, but her friends saw her being carried and they went and told their mother. 21. PW1, further, stated that they went through a wire to the shamba and at the accused removed her trouser and did bad manners to her. PW1 explained he removed my pant and put his thing into my thing and she started crying. When the appellant was recalled for further x-examination by the appellant’s Counsel she explained that the accused removed his thing and put in the place where she ‘susu’’ CRIMINAL APPEAL NO. E089 OF 2023 (James Kipchumba Kosgei vs Republic) JUDGEMENT 5|Page
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and that she was injured on her ‘chuchu’ and was taken to hospital.This court takes judicial notice that ‘susu’ is to urinate 22. The evidence of PW1 is corroborated by the evidence of PW3, Dr. Eunice Timet, a medical doctor based at MTRH hospital stated that the complainant was examined at their hospital and it was observed she had hymenal tear at 9:00 O’clock consistent with defilement. P3, further. This position is captured in the complainant’s P3 form marked Exhibit 2. It is very clear there was penetration of the complainant. 23. PW1 stated she used to see the appellant at Manu’s movie place nearby and that he had seen him about 10 times before. On his part, the appellant stated he had an affair with the complainant’s elder sister but they differed. He also admitted he knew the complainant and her mother. It is therefore finding the complainant knew each other and the complainant identified the appellant as the perpetrator of the offence herein by way of recognition. 24. Based on the evidence the court find that the prosecution prove the offence of defilement at this matter at the trial court beyond reasonable doubt 25. Section 8(2) of the Act provides: “A person who commits an offence of defilement with a child aged 11 years or less shall upon conviction be sentenced to life imprisonment’’ The only sentence prescribed for offenders convicted for defilement of imprisonment. minors aged below 12 years if life The sentence meted on the appellant herein is, therefore, lawful and proper. CRIMINAL APPEAL NO. E089 OF 2023 (James Kipchumba Kosgei vs Republic) JUDGEMENT 6|Page
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26. The upshot of my findings above is that this appeal lacks merit and the same is dismissed. Right of Appeal within 14 days. Dated, signed and delivered online via Microsoft teams platform this 3rd day of July 2026. HON. P. K. Rotich JUDGE In the presence of Mwaita h/b for Ms.Kirenge for DPP Accused in person. CRIMINAL APPEAL NO. E089 OF 2023 (James Kipchumba Kosgei vs Republic) JUDGEMENT 7|Page
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