AYUB NDAYALA VS The Republic

1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that Ayub Ndayala on diverse dates between the month of April 2024 to 3rd June 2024 at Idumbu Village, Emanda Sub Location Central Maragoli location within Vihiga County intentionally and unlawfully caused his penis to penetrate the vagina of PK a child aged 16 years old. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2. The Appellant was tried and in the judgment delivered on 11th November 2024, the trial Court found the Appellant guilty of the offence of Defilement as charged. After considering the Appellant’s mitigation, the Court proceeded to sentence him to 15 years’ imprisonment. 3. Being aggrieved by both his conviction and sentence, the Appellant filed the present appeal. Vide the Appellant’s Petition of Appeal dated 24th June 2025, the Appellant set out five (5) grounds of appeal, which can be summarized as follows: - a. That the trial Court erred in law and facts in not observing that the prosecution case was full of contradictions discrepancies and inconsistencies which were inconsequential to conviction. 1 HCCRA NO E020 OF 2025 b. That the trial Court erred in law and facts in not observing that the prosecution failed to prove its case beyond reasonable doubt as legally required by law. c. That the trial Court erred in law and in fact in not observing that the key ingredients of defilement were not proved beyond reasonable doubt. d. That the trial Court erred in law and in fact by failing to give the appellant his absolute right to a least severe sentence pursuant to Article 50(2)(p), 25(c) and Section 333(2) CPC. e. That the trial Court erred in law and facts in disregarding the appellant’s defence despite the same being worth of acquittal. 4. The Appellant sought the following orders from his Petition of Appeal: - that the conviction be quashed, the sentence be set aside, the Appellant be set at liberty and any other order that the Court may deem fit and just. 5. The Appeal was canvassed by way of written submissions. Appellants Written Submissions 6. The Appellant filed his Written submissions dated 26th November 2025. On the issue of representation, the Appellant submitted that the right to legal representation goes to the root of a fair trial and is likely to cause a substantial injustice to the accused if denied. In this regard, he relied on the case of Archibolds Criminal Pleading Evidence and Practice 38th Edition at paragraph 925 where it was held that a miscarriage of justice occurs whereby reason of a mistaken or omission or irregularity in the trial, the appellant loses a chance of acquittal which is fairly open to the accused. 7. He argued that he was a layman in law and was his first time to be tried in Court and, therefore, was confused, fearful and had no adequate intelligence to bring out any point in his favour or pop holes in the weakness of the prosecution case. He added that he cross-examined shallowly and gave a weak defence which the trial Court did not consider hence the case being compromised. It was his case that the trial was, therefore, not fair. 2 HCCRA NO E020 OF 2025 8. On penetration, the Appellant submitted that the trial Court erred in not finding that penetration was not proved beyond reasonable doubt. He argued that the testimony of the medical examination was contrary to the information in the P3 form. He asserted that a broken hymen was not conclusive proof of penetration as was held in the case of P.K.W Vs Republic [2012] eKLR. He also placed reliance on the case of Kimatu Mbuvi t/a Kimatu Mbuvi & Bros vs Augustine Munyao Kioko (2007) 1 EA 139 where it was held that scientific opinions are not binding on the Court although they will be given proper respect especially where there was no contrary opinion and in the case of Campbell-The Tracy Peerage (1939) 10CL & F 154.P.191 where it was held that hardly any weight is to be given to the evidence of what are called scientific witnesses as they come with a bias in their mind to support the cause which they are embarked. 9. He further argued that PW1 was not specific on the date that they had sexual intercourse. He asserted that he stayed in the shop with his wife and children and there was no room for sex with PW 1. He added that there were allegations that PW1 was having sexual intercourse with one David although she denied. He asserted that a DNA test was important to connect him to the offence. 10. On the issue of sentence, the Appellant submitted that the trial Court denied him his right under Section 333(2) of the Criminal Procedure Code and paragraph 5.1.21 of the Sentencing Policy Guidelines Revised 2023. Respondents Written Submissions 11. The Respondent filed its written submissions dated 6th February 2026 through the Learned Prosecution Counsel Mr. Leina Davies. On the issue of age, the Learned Prosecution Counsel submitted that the Charge Sheet indicated that the Complainant, PK, (hereinafter referred to as (“PW 1”) was sixteen (16) years of age at the time of the commission of the offence. He relied on the case of Musyoki Mwakavi Vs Republic [2014] eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the 3 HCCRA NO E020 OF 2025 victim’s parents and/or guardians, observation or common sense. He further asserted that PW 1 stated that she was sixteen (16) years old and that the Prosecution produced a copy of birth certificate as exhibit in Court which indicated her date of birth as 18th May 2008. He added that the Appellant did not rebut this evidence at all and, therefore, it had proved the ingredient of age beyond reasonable doubt. 12. On the issue of identification, the Learned Prosecution Counsel submitted that the Appellant was well known to PW1 and therefore, there was no mistake on identity. He stated that this was evidence of recognition which had previously been held by Courts to be more reliable and weightier than that of identification of a stranger in the case of Anjononi & Others Vs Republic (1976-80)1 KLR 1566, 1568. He was emphatic that there was proper identification in the circumstances of this case. 13. On the issue of penetration, the Learned Prosecution Counsel invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed Vs Republic [2020] eKLR where it was held that the key evidence relied upon by the Courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the Medical Officer. He submitted that the evidence of PW1 was corroborated by PW4 which proved penetration. 14. He argued that the Appellant had not shown this Court any inconsistencies or contradictions in the prosecution’s case. In this regard, it relied in the case of S.O.O Vs Republic [2018] eKLR where it was held that the Court should consider whether the contradictions and/or inconsistencies go to the root of the case. He added that the trial Court considered the Appellant’s defence and found that the prosecution had proved its case beyond reasonable doubt. 15. On the issue of sentence, the learned prosecution Counsel invoked Section 8(4) of the Sexual Offences Act and placed reliance on the case of Republic vs Joshua Gichuki Mwangi Supreme Court Petition No E018 of (2023) eKLR where it was held that mandatory sentences leave no discretion to the Judicial Officer whereas minimum sentences set the floor rather than 4 HCCRA NO E020 OF 2025 the ceiling of such sentences. He also cited the case of Shadrack Kipchoge Kogo vs Republic Criminal Appeal No 253 of 2003. He further invoked Section 329 of the Criminal Procedure Code and asserted that the trial Court took into account the evidence, the nature of the offence and the circumstances of the case in arriving at the appropriate sentence. Analysis and Determination 16. This being a first appeal, this Court is guided by the principles set out in the case of David Njuguna Wairimu Vs Republic [2010] eKLR where the Court of Appeal stated: - “The duty of the first appellate Court is to analyse and re-evaluate the evidence which was before the trial Court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial Court. There are instances where the first appellate Court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower Court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the Court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” 17. Similarly, in the case of Okeno Vs Republic [1972] EA 32 the Court of Appeal set out the duties of the appellate Court as follows: - “An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs Republic (1957) EA 336) and the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs R (1957) EA 570). It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s finding and conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses, see Peters vs Sunday Post [1958] 5 HCCRA NO E020 OF 2025 EA 424.” This was also set out in the case of Kiilu & Another Vs Republic [2005] KLR 174. 18. I have read and considered the Appellant’s Petition of Appeal and the rival submissions. There are three (3) issues manifest for determination by this Honourable Court: - a. Whether the Trial Court erred in not according the Appellant legal representation? b. Whether the Prosecution proved its case beyond reasonable doubt? c. Whether sentence meted was harsh and excessive? Whether the Trial Court erred in not according the Appellant legal representation. 19. Legal representation is to be provided to an accused person who is likely to suffer substantial injustice if an advocate is not assigned to him by the State irrespective of the offence he is charged with. Article 50(1) of the Constitution of Kenya, 2010 states that: - “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.” 20. Article 50(2)(h) of the Constitution of Kenya further provides as follows: - “Every accused person has the right to a fair trial which includes the right to have an advocate assigned to the accused person by the State and at State expense if substantial injustice would otherwise result, and to be informed of this right promptly.” 21. Notably, Article 50(2)(g) of the Constitution of Kenya provides as follows: - “Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly.” 22. Article 50(2)(j) of Constitution of Kenya states that: - “Every accused person has the right to a fair trial which includes the right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence.” 6 HCCRA NO E020 OF 2025 23. The right under Article 50(2)(g) of the Constitution must be distinguished from the right under Article 50(2)(h) of the Constitution given that in many instances the rights under Article 50(2)(g) and (h) of the Constitution are dealt with contemporaneously. The right under Article 50(2)(h) of the Constitution on one hand places a duty on the State to assign an Advocate to an accused person at its own expense if substantial injustice will otherwise result. The right under Article 50(2)(g) of the Constitution on the other hand deals with informing an accused person of his/her right to be represented by an Advocate of one’s choice further to giving necessary information to the accused person and calling him/her to make a choice on his/her legal representation. Put differently, the right under Article 50(2)(h) of the Constitution deals with instances where the State must assign an Advocate to an accused person. Suffice to say that the right to a fair trial under Article 50 of the Constitution is among those rights that cannot be limited in any way whatsoever Courtesy of Article 25 of the Constitution. 24. Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett Vs Greyhound Racing Association (1968) 2 All ER 545 Lord Denning presented himself thus: - “It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.” 25. In South Africa in Fraser Vs ABSA Bank Limited (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the Constitutional Court had the following to say: - “Without the recognition of the right to legal representation in Section 26(6), the scheme of restraint embodied in POCA might well have been 7 HCCRA NO E020 OF 2025 unconstitutional. However, the right embodied in Section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any counsel he or she chooses, regardless of his or her financial situation….” 26. In the case of Joseph Kiema Philip Vs Republic (2019) eKLR, the Court stated as follows: - “……it is paramount that the record of the trial Court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate; one may be appointed at the expense of the state. It [the Court record] must show that the Court did take the profile of the accused person before the trial commenced……” 27. A perusal of the proceedings of the lower Court showed that the Trial Court informed the Appellant of his right to legal representation on 4th June 2024 before taking of plea. He informed the Trial Court that he was ready to proceed with the case on several occasions. The Trial Court proceeded to hear the case and he cross-examined the Prosecution witnesses. At no point in the proceedings did he request for counsel for time to instruct a counsel to represent him during trial. 28. The limitation of the right to be assigned legal representation by the State was addressed by the Court of Appeal in the case of Karisa Chengo, Jefferson Kalama Kengha & Kitsao Charo Ngati Vs Republic [2015] eKLR when it stated as follows: - “It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that 8 HCCRA NO E020 OF 2025 all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise. 29. In this particular case, the Appellant proceeded with the trial without ever having asked that the trial Court to give him time to instruct counsel to represent him during trial. Provision of legal representation at the State expense was a progressive right which was currently accorded to persons who had been charged with capital offences only. This Court thus came to the firm conclusion that his constitutional and fundamental right to fair trial had not been breached as the trial Court informed him of his right of legal representation under Article 50(2)(g) of the Constitution of Kenya. 30. In the absence of proof of violation of the Appellant’s right to fair trial, this Court is not persuaded that it should find that the trial be rendered a nullity necessitating a retrial. In the foregoing, this allegation is not merited and the same be and is hereby dismissed. Whether the Prosecution proved its case beyond reasonable doubt? 31. Ground of Appeal No (1), (2), (3) and (5) of the Petition of Appeal are dealt with under this head as they were all related. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this Court must consider the ingredients of the offence of defilement. In the case of Charles Wamukoya Karani Vs Republic, Criminal Appeal No. 72 of 2013 the Court stated as follows: - “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 32. Based on the above dictum, it is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration 9 HCCRA NO E020 OF 2025 and identification of the perpetrator. This Court will deal with the same under the following distinct and separate heads. a. Age 33. The Appellant did not submit on this issue. A look at the trial record indicates that PW1 testified that she was sixteen (16) years old which her aunt, Caroline Vihenda (hereinafter referred to as “PW 2”) and the Clinical Officer, Boaz Aliona (hereinafter referred to as “PW 4”) also alluded to. No 113961 PC Grace Nasimuyu Wafula (hereinafter referred to as PW 5”) produced her Birth Certificate which showed PW 1 was born on 18th May 2008. The incident took place on diverse dates between the month of April 2024 and 3rd June 2024. She was, therefore, about sixteen (16) years at the material time of the incident. 34. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut the said evidence by adducing evidence to the contrary, this Court is satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at all material times. b. Identification 35. The Appellant did not submit on this issue. A perusal of the trial record indicates that PW1 stated that the week before 3rd June 2024, she had gone to the Appellant’s shop and that the Appellant fondled her breast, touched her private parts, undressed her, placed her on his bed and inserted his manhood into her womanhood. She said that she felt pain and that when she asked him to stop, he complied and wiped her and she left for school. PW 2 testified that on the material day she received a call from a man, one Stephen Masiza Lubacho (hereinafter referred to as “PW 3”) informing her that her niece had entered the Appellant’s house. When she followed the directions and got to the house, she found PW 1 half-naked in her bra and skirt and the Appellant was in his boxers. She called out the neighbours and informed them what she had found. 36. The Appellant did not deny knowing PW1. He stated that he knew her as a school going minor and his customer. As PW1 and the Appellant knew each other, this Court is satisfied that there could not be any mistaken identity as they were both known to each other. Identification was by way 10 HCCRA NO E020 OF 2025 of recognition. The Courts have held that evidence of recognition is far much more reliable than mere identification alone. This was well enunciated in the case of Anjoroni Vs Republic 1980 KLR 59 to deal with the issue of identification of a stranger. The Court of Appeal observed that; “Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or the other.” c. Penetration 37. A scrutiny of the trial Court’s record indicates that PW4 confirmed that there was defilement. He testified that he also examined the Appellant and noted that both PW 1 and the Appellant were positive for gonorrhea. He produced the P3 form, treatment notes for both PW 1 and the Appellant and Post-Rape Care Form as exhibits in Court. 38. Notably, the provision of Section 124 of the Evidence Act states that: - “Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that Section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the Court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the Court is satisfied that the alleged victim is telling the truth (emphasis).” 39. Even so, a trial Court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Although PW1 may be treated as a single witness, the evidence of PW 4 corroborated her evidence. 40. The Appellant’s submissions that the prosecution’s case had conflicting evidence and/or that a DNA test was needed was neither here nor there. Although he denied committing the offence, it was evident that PW1’s 11 HCCRA NO E020 OF 2025 evidence that she was defiled on the material day was corroborated by PW 4’s medical evidence and that of PW 2 who corroborated her evidence that she found her half-naked with the Appellant. The evidence that was adduced by the Prosecution outweighed the evidence that he tendered in Court. 41. It is the view of this Court that the evidence before the trial Court was sufficient to have formed a basis for conviction as the Prosecution proved their case to the required standard, which in criminal cases, was prove beyond reasonable doubt. In view of the foregoing, Ground of Appeal No (1), (2), (3) and (5) of the Petition of Appeal are not merited and the same be and are hereby dismissed. Whether sentence meted was harsh and excessive? 42. It bears repeating that, the High Court has the mandate under Article 165 (3) of the Constitution to hear and determine matters on enforcement of rights and fundamental freedoms enshrined in the constitution ,A further leapfrog development; under article 50(2)(p) of the Constitution: - 50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing 43. In Philip Mueke Maingi & Others Vs Rep, Petition No E17 of 2021 specifically outlawed mandatory minimum sentence. It stated; There is nothing which prevents the Court from applying decisional law and ordering sentence review in cases where the penalty imposed was mandatory penalty in law even if the cases are finalized. To me, denying an accused the benefit of Court’s discretion to impose appropriate sentence is inconsistent with the right to fair trial. Fair trial includes sentencing. On that basis this Court has jurisdiction to determine and/or review sentence’s where appropriate. 12 HCCRA NO E020 OF 2025 44. The Appellant was charged under Section 8(4) of the Sexual Offences Act Cap 63A (Laws of Kenya). The same provides as follows: - “A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 45. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that: - “Subject to the provisions of Section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code. Provided that where the person sentenced under Subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 46. The Judiciary Sentencing Policy Guidelines provides that: - “The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: …Time already spent in prison by the convict…” 47. The requirement to comply with Section 333(2) CPC is mandatory in computation of the sentence to be served by the Convict upon establishing the nature of the sentence to be imposed. The requirement is also amplified by the Judiciary Sentencing Policy and thus an integral part of sentencing process to avoid excessive punishment that is not proportional to the offence committed. 48. The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR. 49. The Appellant herein was sentenced to fifteen (15) years imprisonment which is the minimum mandatory sentence. A perusal of the trial Court’s 13 HCCRA NO E020 OF 2025 proceedings showed that the Learned Trial Magistrate considered the time the Appellant had spent in custody during trial while sentencing him in accordance with Section 333(2) of the Criminal Procedure Code. In particular, the learned Trial Magistrate stated as follows, “I hereby sentence the accused to serve 15 years’ imprisonment term as deterrence for others and for rehabilitation for him. The time will take into account time spent in remand since 4/6/2024 in line with Section 333(2) of CPC.” In the premises, Ground No (4) of the Petition of Appeal is not merited and the same be and is hereby dismissed. 50. In view of the foregoing, the Appellant’s Petition of Appeal dated 24th June 2025 for conviction and sentence is not merited and the same be and is hereby dismissed. The Trial Court’s Judgment be and is hereby upheld. The sentence of 15 years imposed by the Trial Court shall run from 4th June 2024 in terms of Section 333(2) of the Criminal Procedure Code. 51. Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026