Joel Omino Ngutu v Republic [2013] eKLR PW1 was not proved and the evidence of the witnesses had material contradiction. In addition the appellant submitted that the P3 should not have been relied on to convict him because his date had been forged. He argued that the dismissal of his defence was erroneous because it had been corroborated by PW2 when she said he was her brother. RESPONDENT'S SUBMISSIONS IN REPLY Mr. Magoma, learned Counsel for the State opposed the appeal. He submitted that the evidence of PW1, 2, 3 and 4 proved that the offence of defilement had been committed by the appellant. He argued that the P3 showed the PW1's anus had been injured an indication that there was penetration. He further submitted that the appellant was properly identified by PW1. The learned State Counsel cited HCCRA NO. 106 of 2008 Hudson Luseno Travogha VS. Republic but did not show its relevance. That is what I would call dumping of precedents to the court and saying nothing about them. ANALYSIS AND DETERMINATION This being the first appeal, this court has the duty to re- evaluate the evidence and make a finding on the guilty or otherwise of the appellant. The court also has jurisdiction to interfere with the sentence of the trial court if certain factors are demonstrated. The first issue for determination in this appeal is whether the offence of defilement was proved against the appellant beyond reasonable doubt. Section 8 (1) of the Sexual Offences Act under which the appellant was charged provides the key elements of the offence of defilement as being “Penetration.” and the minority age of the “Victim.” The prosecution must therefore prove beyond reasonable doubt that there was penetration and that the victim was a child. Section 2 of said Act defines penetration as partial or complete insertion of the genital organ of a person into the genital organ of another person. The Blacks Law dictionary defines penetration as the entry of the penis or other body part or foreign object into the vagina or other bodily orifice. Section 2 of the Act then defines genital organ to include anus. Section 2 of the said Act also defines a child in terms of the meaning given by the Children's Act which is basically a person whose age is below 18 years. The question to answer in this appeal therefore is whether the prosecution proved beyond doubt that the PW1 was a child and that the genital organ of the appellant was inserted into the genital organ of the PW1. This court's view is that all the above two elements of the offence of defilements were not proved beyond doubt. No age assessment was done on the PW1 and no other evidence like birth certificate or postnatal clinic card for the PW1 was produced. Age in defilement charge is material and it ought to have been proved scientifically and not by common sense like in the present case. Even if common sense pointed to the minority age of the PW1, at least the PW2, being the mother of the victim should have stated the age of the PW1 in her testimony if at all she did not have birth certificate or at least postnatal clinic card for the PW1. That lapse however only become more relevant in the sentencing because the exact age of the victim is material. As regards penetration, the parliament extended the definition thereof to include penetration into the anus as per the definition of genital organ iunder Section 2 of the Sexual Offences Act. In this case the evidence of PW1 on penetration was corroborated by PW2 and PW3. PW2 stated that the PW1 was http://www.kenyalaw.org - Page 3/5