JUDGMENT OF THE COURT
1. Francis Kipsang Chemase, the appellant, was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act. The particulars are that on the 10th day of December 2011 in Keiyo South District within Rift Valley Province, he unlawfully and intentionally caused penetration of his genital organ (penis) to the genital organ (anus) of BK. a boy aged seven (7) years. He faced an alternative charge of indecent act contrary to Section 11 (1) of the Sexual Offences Act.
2. PW1, a minor named BK was a boy child seven (7) years old. After voire dire examination, the trial court formed the view the boy was not intelligent enough to give evidence on oath. He was, however, allowed to give an unsworn evidence. PW1 stated as follows:
“I am BN. .... I attend school. I am in class 3. I know the accused who is in court. I was in a house of another mzee who herds cattle. I was sleeping in that house. Accused came from a kiosk and…