Joel Omino Ngutu v Republic [2013] eKLR take him (PW1) to the hospital where his (PW1's) mother was admitted for a chopped off breast. The appellant took him to the thicket about 500 metres away and showed PW1 a knife and threatened to stab him if he (PW1) screamed. The appellant removed the PW1's shorts and shirt. He then unzipped his trouser, removed his penis, wore a condom on his penis and then pushed the penis into the PW.1's anus while the PW1 was lying down on his stomach. P.W1 felt pain as the appellant defiled him. After the act, the appellant ran away but later met the PW1 on the way and took him (PW1) to his (appellant) house where they slept until morning and PW1 went home. PW1 reported the matter to mama boy who took him home. The matter was later reported to the police and PW1was taken to hospital. On cross-examination PW1 was very firm that he knew the appellant as his neighbours with a home just 500 meters away. G A J (PW2) is the PW1's mother and sister in law to the appellant. On 22.1.2010, she went to the market at 4 p.m and left the PW1 and his siblings at home. When she returned she found PW1 missing until 6 a.m the following morning when he returned with a bleeding anus. PW1 explained to her that the appellant defiled him in a thicket near his home after threatening him with a knife and later took him to his (appellant) home for the night. PW2 then reported to the police and took the PW1 to hospital where a P3 was filled. She denied being the appellant's girl friend. Mose Jobes (PW3) is the clinical office who examined the PW1 and filled his P3 form. He noted scratch marks on the left side of the chest and tears on the anal region. In his opinion PW3 found that there was penetration on the anus. Felix Nyagah (PW4) was the arresting as well as the investigating officer. He arrested the appellant after one year 8 months at Kisumu. After considering the foregoing evidence the trial court found that the appellant had a case to answer and put him to his defence. DEFENCE CASE The appellant gave a sworn defence. He denied the offence and stated that on 22.1.2010 at 4 p.m he left Ahero for home after a funeral and on the way he met PW2 whom he had inherited after the death – of her husband. According to him the evidence of PW1 was a lie because PW2 said that she went to look for PW1 and did not find him in the house of the appellant. After considering all the evidence adduced, the trial court convicted the appellant and sentenced him to life imprisonment. The appellant being dissatisfied with the decision of the trial magistrate brought this appeal. GROUNDS OF THE APPEAL 1. That the trial magistrate erred in law and facts in sentencing the appellant life imprisonment contrary to article 8 (1) (3) of the sexual Offences Act. 2. That the trial magistrate erred in law and in facts by not scrutinizing the medical report which was not thorough and comprehensive 3. That the trial magistrate erred in law and in facts by relying on the ages of the complainant's given and failed to order an age assessment as required by the law. APPELLANT'S SUBMISSIONS The appellant filed written submissions and also made oral argument. He submitted that the age of the http://www.kenyalaw.org - Page 2/5