( Being an appeal from the Judgement of Hon. A. C. Munyuny (RM) delivered on 31 st July 2025 at the Chief Magistrate Court at Migori being Sexual Offence Case No. E032 of 2023 )
JUDGMENT
Introduction
1. The Appellant Dancan Onduu Miguye alias Steve was convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve 20 years’ imprisonment.
2. The evidence before the court was that the victim, who was aged 12 years at the time of the offence was defiled by the Appellant on diverse dates between 29 th May 2023 and 2 nd June 2023 at his house at Arombe area where the Appellant unlawfully and intentionally caused his penis to penetrate the vagina of L. A. J. a child aged 12 years.
3. The Appellant filed petition of appeal against both conviction and sentence in which he has advanced several grounds as follows:
i. That he did not plead guilty to the charge herein.
ii. That the trial court erred in both law and facts by failing to comply with the provision of Article 50(2)(h) of the Kenyan Constitution 2010.
iii. That the trial court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the required standard in law and facts.
iv. That the trial court erred in both law and facts by refusing to consider the defence and mitigation.
4. Ms. Otieno, the learned state counsel opposed the appeal urging that the trial court did not infringe upon the right to representation of the accused person during the trial and that the trial magistrate took into consideration all the elements of the offence in the judgement.
5. The appeal was canvassed through written submissions.
Analysis and Determination
6. This being a first appellate court, its duty is to analyze and re-evaluate the evidence afresh with a view to making its own independent decision bearing in mind the fact that it did not have the benefit of observing and hearing the witnesses as they gave evidence. The Court of Appeal in Boru & Anor V Republic Cr. App No. 19 of 2001 [2005] 1 KLR , held inter alia that:
“A duty is imposed on a court hearing a first appeal to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld, as well as to deal with any question of law raised on the appeal?
7. The following issues arise for determination from the petition of appeal and the parties’ submissions:
v. Whether the trial court failed to comply with the provision of Article 50(2)(h) of the Constitution of Kenya 2010.
vi. Whether the trial court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the required standard in law and facts.
vii. Whether the trial court erred in both law and facts by refusing to consider the defence and mitigation.
On the first issue, the Appellant claims that the trial magistrate failed to inform him that he had a right to legal representation therefore resulting in an unfair trial.
8. Article 50 (2) (h) of the Constitution provides that every accused person has a right to a fair trial which includes the right to a Counsel of his choice or assigned by state and at state expense and to be promptly informed of this right. This right is further extrapolated by the Legal Aid Act which stipulates in Section 43 (1) (a) that:
1) A court before which an unrepresented accused person is presented shall—
a) promptly inform the accused of his or her right to legal representation.”
9. I have perused the record and established that the trial Magistrate who first took the Appellant’s plea informed the Appellant of his right to legal representation in his native language being Luo, and at the earliest appearance in court whereas the accused choose to proceed on his own without any legal representation. The communication was documented. The prompt notification would afford the accused the opportunity to look for an Advocate before the case proceeds to hearing. It is incumbent on the trial court to communicate to the accused that he has a right to retain the services of an Advocate, and to document the fact of the communication.
10. In Dennis Omweri Edwin v. Republic [2024] KEHC 1317 (KLR) , T.A Odera J. stated thus:
“At what point is the court required to inform an accused person of his right to legal representation? According to the Article 50(2) of the Constitution , it appears that an accused person should be informed of this right at the outset, hence the use of the word “promptly”. Black’s Law Dictionary, 9 th Edition, defines prompt as “to incite, esp. to immediate action.” “Immediate” is defined as “occurring without delay; instant”.”
11. As has been held by courts, the duty to inform an accused person of his right to legal representation is a constitutional and statutory imperative. Courts are mandated to promptly inform an accused person of this right and the right cannot be derogated as it is pivotal in realizing a fair trial. In HO v. Republic [2020] KEHC 7957 (KLR) , Musyoka J, held that:
“The constitutional provisions on the right to legal representation, as stated in Article 50(2) (g) (h) and the provisions of the Legal Aid Act in general, clearly put a damper on the mantra that every citizen is expected to know the law, and that ignorance of the law is no defence. They clearly are alive to the general ignorance of the law and lack of awareness with regard to legal processes and rights amongst the general populace. It is against that reality that the law has placed a burden on the courts to enlighten accused persons of their rights in law, so that they can benefit from the law, and, specifically, the rights that accrue to them under Article 50(2) (h) of the Constitution and the Legal Aid Act.”
The trial court informed the Appellant of his constitutional right to a fair trial and all the constitutional prerequisites for a fair trial, stated in Article 50 were adhered to by the trial court.
12. The main ingredients of defilement are:
(1) Age assessment
(2) Penetration
(3) Corroboration
(4) Identification
Age assessment
13. The complainant did testify that she is 12 years. The court relied on the age assessment report dated 12 th June 2023 and marked as MFI4. It shows that the estimate age of the complainant is 12 years. The offence of defilement is indicated to have been committed between 29 th May 2023 and 2 nd June 2023.
Penetration
14. The complainant had testified of how the appellant had forcefully taken her into his house, removed her panty and pulled her skirt up and inserted his male organ into hers and he had sexual intercourse with her for three days, having locked her in his house for three days. That while playing outside the Appellant’s house, someone saw her and informed her Aunt who came for her and was taken to her grandmother’s house. Later she was taken to God Kweru Hospital where she was examined and treated.
15. The clinical officer who examined her found that she had bruises on the labia majora and labia minora, there was also tenderness on touch at lower part of vagina and dark blood outside the vagina which was not blood as a result of menstruation, the minor was already infected and was HIV positive. There was positive clinical evidence of the defilement from the above and corroboration as to penetration. Medical report was produced in court as evidence. From the report, it is clear that there was penetration as the minor had bruises to both the labia minora and the labia majora. The vagina was also tender indicative of pain.
Corroboration and identification
16. The complainant knew the Appellant before. She knew where they lived with his mother in Arombe, she testified that the mother to the Appellant had informed her that she can seek refuge at her home in case she was sent away, when she went to Mama Steve home, she found Appellant who took her to the place where her mother (Mama Steve) works and later returned together. An identification parade was also done involving three suspects together with the Appellant and the Appellant was positively identified by the victim. The Appellant was known to the victim before and thus could easily identify him.
17. That all the ingredients of defilement were proved beyond reasonable doubt. The conviction was therefore safe.
18. On the sentence imposed of 20 years, the provisions of section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006, provides for a minimum sentence of 20 years. From the evidence before court, the Appellant defiled the minor for three days while she was confined in his house. The medical report also indicates the minor was infected with HIV.
19. With these facts, I do no find reason to disturb the sentence imposed on the Appellant herein. The same is within the ambit of the applicable statute.
20. The import of the above is that there are no good grounds to disturb the determination of the trial court. The court will thus dispose of the appeal as follows:
a. The appeal on conviction and sentence of the Appellant herein is hereby dismissed.
b. The conviction and sentence imposed by the trial court against the accused person on the 19 th of August, 2025 is hereby upheld.
Orders accordingly .
Dated, signed and delivered virtually via Microsoft Teams this 9 th day of July 2026.
HCCRA NO. E088 OF 2025 DANCAN ONDUU MIGUYE ALIAS STEVE VS REPUBLIC JUDGMENT Pg. 6
JUDGMENT
Introduction
1. The Appellant Dancan Onduu Miguye alias Steve was convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 and sentenced to serve 20 years’ imprisonment.
2. The evidence before the court was that the victim, who was aged 12 years at the time of the offence was defiled by the Appellant on diverse dates between 29 th May 2023 and 2 nd June 2023 at his house at Arombe area where the Appellant unlawfully and intentionally caused his penis to penetrate the vagina of L. A. J. a child aged 12 years.
3. The Appellant filed petition of appeal against both conviction and sentence in which he has advanced several grounds as follows:
i. That he did not plead guilty to the charge herein.
ii. That the trial court erred in both law and facts by failing to comply with the provision of Article 50(2)(h) of the Kenyan Constitution 2010.
iii. That the trial court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the required standard in law and facts.
iv. That the trial court erred in both law and facts by refusing to consider the defence and mitigation.
4. Ms. Otieno, the learned state counsel opposed the appeal urging that the trial court did not infringe upon the right to representation of the accused person during the trial and that the trial magistrate took into consideration all the elements of the offence in the judgement.
5. The appeal was canvassed through written submissions.
Analysis and Determination
6. This being a first appellate court, its duty is to analyze and re-evaluate the evidence afresh with a view to making its own independent decision bearing in mind the fact that it did not have the benefit of observing and hearing the witnesses as they gave evidence. The Court of Appeal in Boru & Anor V Republic Cr. App No. 19 of 2001 [2005] 1 KLR , held inter alia that:
“A duty is imposed on a court hearing a first appeal to reconsider the evidence, evaluate it itself and draw its own conclusions in deciding whether the judgment of the trial court should be upheld, as well as to deal with any question of law raised on the appeal?
7. The following issues arise for determination from the petition of appeal and the parties’ submissions:
v. Whether the trial court failed to comply with the provision of Article 50(2)(h) of the Constitution of Kenya 2010.
vi. Whether the trial court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the required standard in law and facts.
vii. Whether the trial court erred in both law and facts by refusing to consider the defence and mitigation.
On the first issue, the Appellant claims that the trial magistrate failed to inform him that he had a right to legal representation therefore resulting in an unfair trial.
8. Article 50 (2) (h) of the Constitution provides that every accused person has a right to a fair trial which includes the right to a Counsel of his choice or assigned by state and at state expense and to be promptly informed of this right. This right is further extrapolated by the Legal Aid Act which stipulates in Section 43 (1) (a) that:
1) A court before which an unrepresented accused person is presented shall—
a) promptly inform the accused of his or her right to legal representation.”
9. I have perused the record and established that the trial Magistrate who first took the Appellant’s plea informed the Appellant of his right to legal representation in his native language being Luo, and at the earliest appearance in court whereas the accused choose to proceed on his own without any legal representation. The communication was documented. The prompt notification would afford the accused the opportunity to look for an Advocate before the case proceeds to hearing. It is incumbent on the trial court to communicate to the accused that he has a right to retain the services of an Advocate, and to document the fact of the communication.
10. In Dennis Omweri Edwin v. Republic [2024] KEHC 1317 (KLR) , T.A Odera J. stated thus:
“At what point is the court required to inform an accused person of his right to legal representation? According to the Article 50(2) of the Constitution , it appears that an accused person should be informed of this right at the outset, hence the use of the word “promptly”. Black’s Law Dictionary, 9 th Edition, defines prompt as “to incite, esp. to immediate action.” “Immediate” is defined as “occurring without delay; instant”.”
11. As has been held by courts, the duty to inform an accused person of his right to legal representation is a constitutional and statutory imperative. Courts are mandated to promptly inform an accused person of this right and the right cannot be derogated as it is pivotal in realizing a fair trial. In HO v. Republic [2020] KEHC 7957 (KLR) , Musyoka J, held that:
“The constitutional provisions on the right to legal representation, as stated in Article 50(2) (g) (h) and the provisions of the Legal Aid Act in general, clearly put a damper on the mantra that every citizen is expected to know the law, and that ignorance of the law is no defence. They clearly are alive to the general ignorance of the law and lack of awareness with regard to legal processes and rights amongst the general populace. It is against that reality that the law has placed a burden on the courts to enlighten accused persons of their rights in law, so that they can benefit from the law, and, specifically, the rights that accrue to them under Article 50(2) (h) of the Constitution and the Legal Aid Act.”
The trial court informed the Appellant of his constitutional right to a fair trial and all the constitutional prerequisites for a fair trial, stated in Article 50 were adhered to by the trial court.
12. The main ingredients of defilement are:
(1) Age assessment
(2) Penetration
(3) Corroboration
(4) Identification
Age assessment
13. The complainant did testify that she is 12 years. The court relied on the age assessment report dated 12 th June 2023 and marked as MFI4. It shows that the estimate age of the complainant is 12 years. The offence of defilement is indicated to have been committed between 29 th May 2023 and 2 nd June 2023.
Penetration
14. The complainant had testified of how the appellant had forcefully taken her into his house, removed her panty and pulled her skirt up and inserted his male organ into hers and he had sexual intercourse with her for three days, having locked her in his house for three days. That while playing outside the Appellant’s house, someone saw her and informed her Aunt who came for her and was taken to her grandmother’s house. Later she was taken to God Kweru Hospital where she was examined and treated.
15. The clinical officer who examined her found that she had bruises on the labia majora and labia minora, there was also tenderness on touch at lower part of vagina and dark blood outside the vagina which was not blood as a result of menstruation, the minor was already infected and was HIV positive. There was positive clinical evidence of the defilement from the above and corroboration as to penetration. Medical report was produced in court as evidence. From the report, it is clear that there was penetration as the minor had bruises to both the labia minora and the labia majora. The vagina was also tender indicative of pain.
Corroboration and identification
16. The complainant knew the Appellant before. She knew where they lived with his mother in Arombe, she testified that the mother to the Appellant had informed her that she can seek refuge at her home in case she was sent away, when she went to Mama Steve home, she found Appellant who took her to the place where her mother (Mama Steve) works and later returned together. An identification parade was also done involving three suspects together with the Appellant and the Appellant was positively identified by the victim. The Appellant was known to the victim before and thus could easily identify him.
17. That all the ingredients of defilement were proved beyond reasonable doubt. The conviction was therefore safe.
18. On the sentence imposed of 20 years, the provisions of section 8(1) as read with section 8(3) of the Sexual Offences Act, No. 3 of 2006, provides for a minimum sentence of 20 years. From the evidence before court, the Appellant defiled the minor for three days while she was confined in his house. The medical report also indicates the minor was infected with HIV.
19. With these facts, I do no find reason to disturb the sentence imposed on the Appellant herein. The same is within the ambit of the applicable statute.
20. The import of the above is that there are no good grounds to disturb the determination of the trial court. The court will thus dispose of the appeal as follows:
a. The appeal on conviction and sentence of the Appellant herein is hereby dismissed.
b. The conviction and sentence imposed by the trial court against the accused person on the 19 th of August, 2025 is hereby upheld.
Orders accordingly .
Dated, signed and delivered virtually via Microsoft Teams this 9 th day of July 2026.
HCCRA NO. E088 OF 2025 DANCAN ONDUU MIGUYE ALIAS STEVE VS REPUBLIC JUDGMENT Pg. 6