4. THAT the learned trial Magistrate erred in law and facts by failing to put into consideration the evidence of the doctor, PW5 that no Spermatozoa was ever seen on the complainant, PW2 nor on her virginal swab examination. 5. THAT the prosecution side failed to avail in court vital witnesses such as the chief, to whom the first report is purported to have been made, the Administration Police Officer from the Chief’s Camp who it is alleged they effected the arrest. The father to PW2, medical report and staff from Rianna’s Hospital at Kangemi, the neighbour one by name of M. W., thereby denying the court the chance and opportunity to arrive at a fair and impartial decision as provided for under Section 150 of the Criminal Procedure Code. 6. THAT the learned trial magistrate failed to observe and note it, as strange and unbelievable, for one to be detained and defiled for two (2) days in a densely populated area like Kangemi and fail to raise an alarm or “at least sos” and scream for help, thereby raising doubt on the single witness evidence. 7. THAT the whole trial was illegal, null and void as my constitutional rights as enshrined under Section 72(3) (b) of the Constitution were infringed by my prolonged detention on police custody for more than 24 hours, from 31/12/2006 to 18/1/2007.’’ The first four grounds can be considered fairly together. The answers to the issues raised therein are straight forward. For a start, Section 8(1) of the Sexual Offences Act, states as follows“8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.’’ It is worth noting that this section does not include the word “unlawfully”. The charge is therefore properly framed and does not bear any defect as alleged by the Appellant. The introduction by the appellant of the word ‘‘unlawfully’’ into the charge would imply that there are instances in which defilement may be lawful. That is a fallacy. By definition, “defilement” denotes an act which causes penetration with a child. At no time can such an act be lawful. Consequently, the charge was not defective for the omission of the word “unlawful”, which word is not included in the definition of the offence of defilement. Therefore the first ground of appeal has no merit. With regard to grounds 3 and 4, the offence of defilement is constituted by an act which causes penetration with a child. Such penetration does not require completion of the sexual act by ejaculation. If the later we to be the law, many offenders would escape liability by wearing condoms which would prevent detection of any spermatozoa. This ground also lacks merit. The complainant did not conduct herself like a person who had been defiled. If she was locked up in the 1st Appellant’s room against her will, it is surprising that she did not raise an alarm at least to alert the neighbours that she was in distress. She is alleged to have been in that room until the next day. Again, she did not complain even to the 2nd Appellant. When her mother found her the following day at the door of the 2 nd Appellant’s room, she did not complain immediately. It was not until some officers came from the chief’s camp that she spoke about her whereabouts the previous day. This is not compatible with the conduct of a child who had been defiled. Her silence throughout the afternoon of the incident and the night raises more questions than answers. This leads one to pose the question - what is the truth about this incident?