1. Darius Abuga Nyabando was convicted on 08th August 2024 of the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced to serve fifteen (15) years imprisonment.
2. Aggrieved, the appellant challenged both conviction and sentence on grounds that the charge sheet was defective, the offence was not proved beyond reasonable doubt, the investigations were shoddy, the prosecution case was riddled with contradictions, his right to a fair trial under Article 50 of the Constitution was violated and that the sentence imposed was harsh and excessive.
3. The appeal was argued by way of the Appellant’s undated submission and the Respondent’s submission dated 24th March 2026 opposing the appeal on the grounds that the age of the complainant, penetration, the identity of the Appellant were proved to the required standard and that the sentence imposed was the minimum and cannot be said to be harsh in the circumstances.
4. As this is a first appeal, this court is required to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify as stated in Okeno v Republic [1972] EA 32 and Kiilu & Another v Republic [2005] 1 KLR 174.
5. On the issue whether the charge sheet was defective, the appellant submitted that there was inconsistency in the particulars because count one referred to M.M aged 16 years while the alternative count referred to E.R aged 8 years and therefore the charge sheet was incurably defective. The respondent did not make any submissions on this ground.
6. I have carefully examined the charge sheet together with the proceedings and I note that throughout the hearing the complainant was consistently identified as M.M aged 16 years. PW1 M.M testified that she was 16 years old at the time of the offence. PW3 also produced an age assessment report confirming that the complainant was aged between 16 and 17 years.
7. Granted, the charge sheet cited section 8(3) instead of section 8(4) of the Sexual Offences Act and the alternative charge referred to a different complainant, the particulars of the main charge clearly disclosed that the complainant was M.M aged 16 years and the appellant fully understood the case facing him. The appellant cross-examined the witnesses and tendered his defence and there is nothing on record to show that he was prejudiced or misled by the error in the charge sheet or the inconsistency in the alternative count.
8. Under section 382 of the Criminal Procedure Code, no finding or sentence shall be reversed on account of an error in the charge unless such error occasioned a failure of justice. I therefore find that the defect complained of did not occasion any miscarriage of justice and this ground must therefore fail.
9. On whether the prosecution proved the offence of defilement beyond reasonable doubt, the prosecution was required to prove the age of the complainant, penetration and the identity of the perpetrator.
10. On proof of age, as already stated hereinabove, PW1 testified that she was 16 years old while PW3 produced the age assessment report confirming that she was between 16 and 17 years old. I am therefore satisfied that age was proved to the required standard.
11. On penetration, PW1 testified that after the appellant took her to his home, they stayed together as husband and wife and engaged in sexual intercourse for about one month. PW2 Amos Odhiambo, a Clinical Officer at Keroka Sub-County Hospital, produced the P3 Form dated 30th May 2023, the PRC Form and treatment notes which confirmed that the complainant’s hymen had an old tear. The complainant’s testimony, coupled with the medical evidence on record, sufficiently established penetration within the meaning of section 2 of the Sexual Offences Act. Although the appellant contended that the complainant willingly stayed with him and that her grandparents had allegedly consented to the marriage, consent is immaterial in an offence of defilement where the complainant is a child. I am therefore satisfied that the prosecution proved penetration beyond reasonable doubt.
12. On identification, PW1 testified that she knew the appellant before the incident because he used to visit her grandfather’s home and that she stayed with him for one month. The appellant himself admitted in his defence that he knew the complainant, discussed marriage with her family and took her to his home where they lived together as husband and wife.
13. In the circumstances, this was a case of recognition rather than mere identification and there was therefore no possibility of mistaken identity.
14. I am consequently satisfied that the prosecution proved all the ingredients of the offence beyond reasonable doubt.
15. The appellant further contended that his constitutional right to a fair trial under Article 50(2)(g) and (h) of the Constitution was violated because the trial court allegedly failed to inform him of his right to legal representation and failed to provide him with an advocate at state expense.
16. The proceedings disclose that the appellant actively participated in the trial, cross-examined prosecution witnesses and tendered sworn evidence in his defence. The right to legal representation at state expense under Article 50(2)(h) of the Constitution is not automatic in every criminal trial and depends on whether substantial injustice would otherwise result. In Olenkom v Republic [2026] KECA 798 (KLR), the Court of Appeal observed that the circumstances of each case must be considered in determining whether the absence of legal representation occasioned prejudice to an accused person and and in the present case no substantial injustice has been demonstrated. I therefore find no merit in this ground of appeal.
17. The appellant also submitted that the trial court failed to indicate the language used during interpretation and swearing of witnesses thereby occasioning prejudice to him. Although the respondent did not respond to this ground, I have carefully reconsidered the proceedings and I note that the record indicates that interpretation was provided in Kiswahili and in some instances English/Kiswahili/Ekegusii.
18. The appellant actively participated throughout the trial, cross-examined prosecution witnesses and subsequently gave sworn testimony in his defence. In John Mureithi & 2 Others v Republic [2007] KECA 201 (KLR), the Court of Appeal held that where no prejudice is shown to have been occasioned by the language used in court, any irregularity is curable under section 382 of the Criminal Procedure Code.
19. Similarly, in Reuben Nduma v Republic [2011] KECA 369 (KLR),the Court of Appeal declined to interfere with the conviction where the record showed that interpretation had been provided and the appellant had participated in the proceedings.
20. In the circumstances, I am satisfied that the appellant understood the proceedings and fully participated in the trial and I therefore find no merit in this ground of appeal.
21. On sentence, the appellant submitted that the sentence of fifteen (15) years imprisonment imposed by the trial court was harsh and excessive.
22. The respondent on the other hand submitted that the sentence imposed was lawful and was in fact the minimum sentence prescribed under section 8(4) of the Sexual Offences Act considering that the complainant was aged 16 years.
23. I have reconsidered the sentence imposed by the trial court together with the mitigation tendered by the appellant and I note that the complainant was proved to have been aged 16 years at the time of the offence. Section 8(4) of the Sexual Offences Act provides that a person who commits an offence of defilement with a child between the ages of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. The learned trial magistrate considered the circumstances of the case and imposed the statutory minimum sentence of fifteen years imprisonment.
24. In proposing review of sentence, the appellant relied on Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Muruatetu I) as well as Petition No. E017 of 2021 at Machakos. However, the legal position was subsequently clarified by the Supreme Court in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR (Muruatetu II) where the court expressly stated that the decision in Muruatetu I applied strictly to the mandatory death sentence under section 204 of the Penal Code and did not automatically extend to other offences carrying mandatory sentences unless extended through appropriate proceedings.
25. In the circumstances of this case, I find that the sentence imposed was lawful, proportionate and neither harsh nor excessive. Consequently, the appeal against sentence equally fails.
26. Consequently, I find that the appeal against both conviction and sentence lacks merit and it is dismissed in its entirety. The conviction is upheld and the sentence affirmed.
2. Aggrieved, the appellant challenged both conviction and sentence on grounds that the charge sheet was defective, the offence was not proved beyond reasonable doubt, the investigations were shoddy, the prosecution case was riddled with contradictions, his right to a fair trial under Article 50 of the Constitution was violated and that the sentence imposed was harsh and excessive.
3. The appeal was argued by way of the Appellant’s undated submission and the Respondent’s submission dated 24th March 2026 opposing the appeal on the grounds that the age of the complainant, penetration, the identity of the Appellant were proved to the required standard and that the sentence imposed was the minimum and cannot be said to be harsh in the circumstances.
4. As this is a first appeal, this court is required to reconsider and re-evaluate the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify as stated in Okeno v Republic [1972] EA 32 and Kiilu & Another v Republic [2005] 1 KLR 174.
5. On the issue whether the charge sheet was defective, the appellant submitted that there was inconsistency in the particulars because count one referred to M.M aged 16 years while the alternative count referred to E.R aged 8 years and therefore the charge sheet was incurably defective. The respondent did not make any submissions on this ground.
6. I have carefully examined the charge sheet together with the proceedings and I note that throughout the hearing the complainant was consistently identified as M.M aged 16 years. PW1 M.M testified that she was 16 years old at the time of the offence. PW3 also produced an age assessment report confirming that the complainant was aged between 16 and 17 years.
7. Granted, the charge sheet cited section 8(3) instead of section 8(4) of the Sexual Offences Act and the alternative charge referred to a different complainant, the particulars of the main charge clearly disclosed that the complainant was M.M aged 16 years and the appellant fully understood the case facing him. The appellant cross-examined the witnesses and tendered his defence and there is nothing on record to show that he was prejudiced or misled by the error in the charge sheet or the inconsistency in the alternative count.
8. Under section 382 of the Criminal Procedure Code, no finding or sentence shall be reversed on account of an error in the charge unless such error occasioned a failure of justice. I therefore find that the defect complained of did not occasion any miscarriage of justice and this ground must therefore fail.
9. On whether the prosecution proved the offence of defilement beyond reasonable doubt, the prosecution was required to prove the age of the complainant, penetration and the identity of the perpetrator.
10. On proof of age, as already stated hereinabove, PW1 testified that she was 16 years old while PW3 produced the age assessment report confirming that she was between 16 and 17 years old. I am therefore satisfied that age was proved to the required standard.
11. On penetration, PW1 testified that after the appellant took her to his home, they stayed together as husband and wife and engaged in sexual intercourse for about one month. PW2 Amos Odhiambo, a Clinical Officer at Keroka Sub-County Hospital, produced the P3 Form dated 30th May 2023, the PRC Form and treatment notes which confirmed that the complainant’s hymen had an old tear. The complainant’s testimony, coupled with the medical evidence on record, sufficiently established penetration within the meaning of section 2 of the Sexual Offences Act. Although the appellant contended that the complainant willingly stayed with him and that her grandparents had allegedly consented to the marriage, consent is immaterial in an offence of defilement where the complainant is a child. I am therefore satisfied that the prosecution proved penetration beyond reasonable doubt.
12. On identification, PW1 testified that she knew the appellant before the incident because he used to visit her grandfather’s home and that she stayed with him for one month. The appellant himself admitted in his defence that he knew the complainant, discussed marriage with her family and took her to his home where they lived together as husband and wife.
13. In the circumstances, this was a case of recognition rather than mere identification and there was therefore no possibility of mistaken identity.
14. I am consequently satisfied that the prosecution proved all the ingredients of the offence beyond reasonable doubt.
15. The appellant further contended that his constitutional right to a fair trial under Article 50(2)(g) and (h) of the Constitution was violated because the trial court allegedly failed to inform him of his right to legal representation and failed to provide him with an advocate at state expense.
16. The proceedings disclose that the appellant actively participated in the trial, cross-examined prosecution witnesses and tendered sworn evidence in his defence. The right to legal representation at state expense under Article 50(2)(h) of the Constitution is not automatic in every criminal trial and depends on whether substantial injustice would otherwise result. In Olenkom v Republic [2026] KECA 798 (KLR), the Court of Appeal observed that the circumstances of each case must be considered in determining whether the absence of legal representation occasioned prejudice to an accused person and and in the present case no substantial injustice has been demonstrated. I therefore find no merit in this ground of appeal.
17. The appellant also submitted that the trial court failed to indicate the language used during interpretation and swearing of witnesses thereby occasioning prejudice to him. Although the respondent did not respond to this ground, I have carefully reconsidered the proceedings and I note that the record indicates that interpretation was provided in Kiswahili and in some instances English/Kiswahili/Ekegusii.
18. The appellant actively participated throughout the trial, cross-examined prosecution witnesses and subsequently gave sworn testimony in his defence. In John Mureithi & 2 Others v Republic [2007] KECA 201 (KLR), the Court of Appeal held that where no prejudice is shown to have been occasioned by the language used in court, any irregularity is curable under section 382 of the Criminal Procedure Code.
19. Similarly, in Reuben Nduma v Republic [2011] KECA 369 (KLR),the Court of Appeal declined to interfere with the conviction where the record showed that interpretation had been provided and the appellant had participated in the proceedings.
20. In the circumstances, I am satisfied that the appellant understood the proceedings and fully participated in the trial and I therefore find no merit in this ground of appeal.
21. On sentence, the appellant submitted that the sentence of fifteen (15) years imprisonment imposed by the trial court was harsh and excessive.
22. The respondent on the other hand submitted that the sentence imposed was lawful and was in fact the minimum sentence prescribed under section 8(4) of the Sexual Offences Act considering that the complainant was aged 16 years.
23. I have reconsidered the sentence imposed by the trial court together with the mitigation tendered by the appellant and I note that the complainant was proved to have been aged 16 years at the time of the offence. Section 8(4) of the Sexual Offences Act provides that a person who commits an offence of defilement with a child between the ages of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. The learned trial magistrate considered the circumstances of the case and imposed the statutory minimum sentence of fifteen years imprisonment.
24. In proposing review of sentence, the appellant relied on Francis Karioko Muruatetu & Another v Republic [2017] eKLR (Muruatetu I) as well as Petition No. E017 of 2021 at Machakos. However, the legal position was subsequently clarified by the Supreme Court in Francis Karioko Muruatetu & Another v Republic; Katiba Institute & 5 Others (Amicus Curiae) [2021] eKLR (Muruatetu II) where the court expressly stated that the decision in Muruatetu I applied strictly to the mandatory death sentence under section 204 of the Penal Code and did not automatically extend to other offences carrying mandatory sentences unless extended through appropriate proceedings.
25. In the circumstances of this case, I find that the sentence imposed was lawful, proportionate and neither harsh nor excessive. Consequently, the appeal against sentence equally fails.
26. Consequently, I find that the appeal against both conviction and sentence lacks merit and it is dismissed in its entirety. The conviction is upheld and the sentence affirmed.