( Being an appeal from the Conviction and Sentence in Criminal Case Number SO 36 of 2016 by Hon. S N Abuya in the Chief Magistrate’s Court at Kisii )
Introduction
1. The Appellant Dennis Sianya Mosoti was convicted on 23 rd September 2024 of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (SOA) in Kisii Sexual Offence Case No. 36 of 2016. The Particulars of the offence are that on diverse dates between 30 th January 2016 and 1 st February 2016 at Riana Location, Kisii South Sub County, within Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of NB , a child aged 15 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (SOA) . Following a full hearing the Appellant was convicted and sentenced to serve 20 years’ imprisonment. The Appellant was admitted to bail terms on 5 th April 2016.
2. Aggrieved by both the conviction and sentence, the Appellant vide a petition of Appeal dated 4 th October 2024 preferred the Appeal herein. In summary, the trial court erred in failing to consider that the prosecution did not prove its case against him beyond reasonable doubt, the sentence of 20 years’ imprisonment meted was punitive, unconstitutional and harsh in the circumstances. Lastly, he states that the trial court failed to consider that the Appellant person was not represented by a lawyer. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence. In the alternative review the excessive sentence.
3. On 21 st May 2026 parties took directions on disposal of the appeal, parties agreed to have the appeal canvassed by way of written submissions, the Appellant filed his submissions dated 12 th August 2025 . Respondent equally confirmed filing and service of its written submissions dated 5 th March 2026.
4. To begin with, this court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court.
The Prosecution Case
5. In support of its case, the prosecution called 4 witnesses at the trial court. PW1, N.B , the Complainant in this case, took oath and stated that she is 17 years old and a student in Secondary School. She recalls on 29 th January 2016 she was from school and she met the Appellant and asked him to take her home but instead he took her to his place, he forced her to have sex with him without her consent and she decided not to go back home. The Appellant forced her to stay in his home. The next day her parents came for her and they were taken to Gesonso Police station. She was taken to Iyabe hospital and she was treated. She positively identified the Accused person who was present in court, she acknowledged that she was her former boyfriend while she was in class 4 and he was in class 6.
6. On cross examination she stated that the Appellant met her on the road. It's not true that she had been chased away by her parents. She confirms that they had sex once, which the Appellant confirmed. It is her testimony that she did not consent to be defiled and that the Appellant locked her in his house. On whether she was paid she states that she does not know if her parents were compensated with ksh 15,000/=.
7. PW2 Grace Kwamboka, the complainant’s mother stated that she stays at Bombure and she is a house wife. She recalls that on 29 th January 2016 the complainant PW1 who had gone to school did not come back home and she was informed she had been seen with the Appellant. The next day she reported to the area Chief and Village Elder. Then they went to the Appellant’s home, the Appellant and complainant were arrested and taken to Gesonso Police Station. The Appellant wanted to marry PW1 yet she was a student. The Appellant had defiled the complainant. She took PW1 to hospital and it was confirmed she had been defiled. On her age, she testified that PWI was born on 11 th March 2000 and she was about 15 years old. She further testified that the Appellant is their neigbhour and she is aware they were casual friends since primary school. She produced the complainant's Birth Certificate as P Exh 3. On cross examination she denied that the Appellant had given her ksh 15,000/=. The Appellant had been warned to leave the complainant alone but he refused and that it is true that the Complainant was found at the Appellan's home and arrested.
8. PW3 Evans Mosota a Clinical Officer at Iyabe district hospital stated that on 2 nd February 2016 he filled the complainant's P3 form. There was tenderness on the linings of the vagina walls of the complainant & her hymen was torn. She had a whitish discharge. Urinalysis showed proteins and there were numerous epidermal cells. He concluded that the Complainant had been defiled. He produced the Complainant's P3 form and Treatment Notes as exhibits
9. PW4 P.C Kiprop Mercy No.102618 stated that he is attached at Gesongo police station. He took over the case from the previous Investigation Officer. She testified that the complainant aged 15 years disagreed with her parents, she went to the Appellants home who was her boyfriend and she stayed there for 2 days. The matter was reported to the police and the Appellant was arrested. The complainant was taken for treatment. She identified that the Appellant in open court
Defence Case
10. The Appellant on 28 th November 2019 was placed on his defence after the court found the Appellant had a case to answer. Section 211 of the CPC was read out and explained to the Appellant in Kiswahili. The Appellant responded that he will give sworn evidence and he intends to call witnesses.
11. This was the last day the trial court ever saw the Appellant, in an otherwise bold move the Appellant absconded court sessions for a record of 22 times, until he was arrested on 23 rd September 2024. By the time of his arrest the trial court had closed the Defence case and convicted him to 20 years imprisonment. The sentence would run from the date the Appellant person will be arrested. He was subsequently committed to serve his jail term upon his arrest on 23 rd September 2024
The Appellant's Submission
12. The Appellant, as aggrieved submits that PW1 is her girlfriend, that PW1 willingly left their home for his house, and that PW1's evidence during cross-examination was inconsistent as to whether she resisted him. He states that they are teenagers in juvenile relationship. The Appellant argues the pre-sentencing report was never formally produced. He submits that during sentencing the trial magistrate started from a 20-year mandatory minimum without properly interrogating the complainant's correct age thus ought to have benefited from the court discretion and proportionality in sentencing, citing AMO v Republic (Criminal Appeal No. 44 of 2018 eKLR). He submits that the sentence is unconstitutional for being mandatory in nature.
13. The Appellant also raises right to fair trial issue: he submits that the PW3 clinical officer's P3 form and Birth Certificate were not authentic, credible, or properly understood by the witnesses testifying to them, and that the trial court failed to interrogate the language used by witnesses, potentially compromising a fair trial. He submits that PW2 the mother gave evidence about events on 29 th January 2026 that was inconsistent with when the Appellant was actually arrested, and that PW4 the Area Chief was not properly summoned to give evidence, further undermining the credibility of the evidence relied upon for conviction. In mitigation, he submits he is a total orphan with no parents, was the only son in his family, and that the sentence of 20 years, with no possibility of review by the trial court despite its discretion. He prays that the appeal be allowed, or in the alternative, that the sentence be reviewed and reduced.
The Respondent's Submissions
14. The Respondent opposed the appeal on nine grounds, of which it specifically addressing grounds 1, 3, 5, 6, 7, and 9, submitting that the prosecution evidence met the required standard to prove defilement. On age, the Respondent relies on the complainant's Birth Certificate, showing she was born on 11 th March 2000 and was therefore 15 years old at the time of the offence, which was sufficiently proved. On penetration, invoking the statutory definition under section 2 of the Sexual Offences Act , the Respondent points to PW1's detailed account of being taken to the Appellant's house and forcefully penetrated, corroborated by the clinical officer PW3, who found tenderness on the vaginal wall, a torn hymen, and numerous epidermal cells, with lab results, treatment notes, and the P3 form confirms defilement. On identification, the Respondent submits PW1 clearly identified the Appellant as the perpetrator, describing how he took her to his house and defiled her while alone with her, and notes that he was subsequently arrested at his house in her company.
15. On grounds 2 and 8, challenging the 20-year sentence as unconstitutional and harsh, the Respondent submits the sentence was correctly imposed under the mandatory minimum in section 8(3) of the Sexual Offences Act , relying on the Supreme Court's decision in Republic v Joshua Gichuki Mwangi; ISLA & 3 others (Amicus Curiae) [2024] KESC 34, which affirmed courts' duty to impose sentences as prescribed by the Act. On ground 4, that the Appellant lacked legal representation at trial, the Respondent relies on Article 50(2)(h) of the Constitution and R v Chengo & 2 Others [2017] eKLR to argue that state funded representation is only constitutionally required where its absence would occasion substantial injustice, and submits no such injustice arose here, since the Appellant fully participated in the trial and cross-examined all prosecution witnesses. The Respondent concludes by urging the court to find the conviction safe and to dismiss the appeal in its entirety, upholding both conviction and sentence.
Analysis And Determination
16. This being a first appellate court, it has a duty to scrutinize and evaluate the evidence afresh, while cautioned enough, that it did not have the advantage of seeing or hearing the witnesses testify during trial, whilst giving due allowance for the trial court’s findings. This is well set out in decision of the Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 as follows: -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanour which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
17. I have read the respective parties’ submissions, given due consideration to the trial court’s proceedings and the record of Appeal dated 24 th October, 2024 . The following are the issues that arise for the determination of this court: -
a. Whether the Prosecution proved its case beyond reasonable doubt.
b. Whether the sentence was harsh and excessive.
c. Whether the Appellant’s rights to fair trial were threatened infringed and/or violated.
Whether the Prosecution proved its case beyond reasonable doubt.
18. The Appellant was charged under Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act which provides; -
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years”
19. The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act , the main elements of the offence of defilement are that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice.
20. As to the age of the Complainant, there is no doubt and/or contestation of the age of the Complainant. the Complainant’s Birth Certificate was produced as P Exh 3, indicating she was born on 11 th March 2000 . She was aged 15 Years as at January 2016 when the offence took place, this was corroborated by PW2, the mother who confirmed she was born on 11 th March 2000 aged hence was 15 years at the date of the incident. The Treatment Notes and the P3 form captured that the complainant was 15 years then.
21. The Court of Appeal in Eliud Waweru Wambui v Republic [2019] eKLR , pronounced itself on the importance of age ascertainment in sexual offences cases that:
“There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt.”
22. The Birth Certificate, Treatment Notes, P3 Form and testimonies of PW1, PW2, PW3 and PW4 clearly demonstrated the age of the complainant removing any doubts and/or inconsistencies thereon. Therefore, the age of the Complainant was proved by the birth certificate, thus a child aged 15 years with the meaning section 2, 9 Sexual Offences Act as read with Section 2 of the Children Act 2022 to mean someone who has not attained the age of 18 years.
23. This court therefore finds that the age of the complainant as a minor of 15 years as at the time of the offence was proved beyond reasonable doubt.
24. On penetration, the Complainant testified that the Appellant forcefully had sex with her. She narrates that Appellant took her to his home after school and locked her up. She was forcefully taken to bed by the Appellant she did not consent to be defiled. She admits that the Appellant was her former boyfriend when she was at Class 4. PW2 testifies that she found the Complainant at the Appellant’s home where she took her to the hospital and upon examination she was found to have been defiled.
25. PW3 Evans Mosota testified that he examined the Complainant and he observed that there was tenderness on the linings on the vaginal walls, hymen was broken and numerous epidermal cells. He produces the Treatment Notes, and P3 Form.
26. On his defence, the Appellant did not tender any defence, he absconded court thus the defence case closed. This Court notes that the Appellant abrogated his Constitutional right to be present at trial.
27. The Appellant, however through an appeal, more so through submissions is seeking to raise a defence anchored on consensual, non-coercive, and non-exploitative sexual conduct between adolescents of close age proximity and similar developmental capacity. The same is not tenable as from the evidence adduced at the trial court, the complainant has denied consent. The age of the Appellant is unknown. This defence cannot be introduced at Appeal stage.
28. On identification of the perpetrator, the Complainant positively identified the Appellant through recognition and also she identified him in open court. The Complainant admits that they once had sex. PW2 equally confirms that she knows the Appellant and that she found the Complainant and the Appellant at his home. The Appellant did not dispute the identity; he even concedes by confirming to the Trial court that they had sex once. Clearly PW1 and PW2 knew the Appellant beforehand thus they could recognize him in broad daylight.
29. The trial court subjected the Complainant to a voir dire test. PW1 testified that she was 17 years old and trial court noted that she understood the nature of an oath and the added duty of telling the truth, she was placed under oath. As guided Section 124 of the Evidence Act allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant 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 Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth .” (Underlined for emphasis)
30. In its judgment, the trial court was persuaded that the Complainant of 15 years then identified the Appellant in broad daylight, she had an ample time to observe what was happening and she positively identified the perpetrator as the Appellant. The evidence was corroborated by PW2 and it was not controverted by the Appellant herein.
31. Pursuant to the above analysis, this court is therefore satisfied that the elements of defilement were proved beyond reasonable doubt.
Whether the sentence was harsh and excessive
32. As to whether the sentence to serve 20 years imprisonment was harsh and excessive? The Appellant states that the trial court erred for meting out a 20-year sentence yet the prosecution did not prove its case beyond any reasonable doubt and without any credible evidence from the doctor. The Appellant challenges the mandatory minimum sentence to be unconstitutional.
33. Section 8 (3) of the Sexual Offences Act provides the penal consequences of a defilement with a child between the age of twelve and fifteen years to be an imprisonment of a term not less than 20 years. The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) while cautioning the presume illegality of mandatory minimum sentences state as much:-
‘’…However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.’’
34. This court therefore finds no basis to interfere with the sentence imposed by the trial court.
Whether the Appellant’s rights to fair trial were threatened infringed and/or violated.
35. From the trial record, it is indeed clear that the Appellant abrogated his constitutional rights by absconding court for a record of 22 times over a period of 2 years. The trial court issued several warrants of arrests since September 2020, summons to surety and summons to investigation officer.
36. The Court in Regina vs Jones (2003) I ACI cited with Authority of Republic v Teteror [2023] KEHC 18592 (KLR) question itself as to the conduct of accused persons who after defence willfully abscond court and what becomes of the right the fair trial. The court held as thus:-
“…that an Accused person’s right to be present during trial can be vitiated by his own conduct especially willingly absenting oneself from trial. Counsel opined that if the trial is terminated because the Accused absconded trial, the victim will be left without remedy and this would mean that the Accused walks free simply by absenting himself. Section 206(4) of the Criminal Procedure Code is faulted for only stating that where the Accused is charged with a felony, warrant of arrest should be issued against that Accused but does not state whether the case should proceed. Reliance was placed on the case of Aggrey Mbai Injaga v Republic (2014) eKLR and Republic vs Galma Abagaro Shano(2017) eKLR where the Accused escaped when he was placed on his defence and the court held that by absenting himself, the Accused had abrogated his Constitutional right to be present during trial.”
37. Clearly the Appellant was fully aware of the proceedings against him. Upon the charges being read out, he entered a plea of not guilty. The court admitted him to bond with one surety. Thereafter, he actively participated in the trial, following the testimony of each prosecution witness and cross-examining them in turn. When called upon to enter his defence, he abrogated his constitutional rights to fair trial.
38. Or the rights to fair trial and in particular the right to be represented by Counsel, the Appellant has raised this ground of Appeal vide ground no 4. He is aggrieved that the trial court failed to consider that he was unrepresented.
39. A litigant has a right to appoint an advocate of his choice, Article 50(2)(g & h) of the Constitution provides that the Court shall appoint and an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result .
40. A careful review of the record shows that at plea, the charges were read over to the Appellant and explained in Kiswahili, which a plea of not guilty was entered, the record indicates that both English and Kiswahili were used in court. The Appellant comprehensively cross examined all the witnesses. However, when called to lodge a defence and in abrogation of his constitutional rights enshrined under Article 50 (2) of the Constitution, he willfully opted to abscond court and stall the process for a period of 4 years.
41. This court therefore finds no basis on the Appellant’s claim that his right to a fair trial was violated.
Disposition
Consequently;
a) The appeal against both conviction and sentence is hereby dismissed in its entirety.
b) The conviction is upheld and the sentence of 20 years imprisonment affirmed.
JUDGMENT DELIEVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 16TH DAY OF JULY 2026
ANNE M. OKUTOYI
JUDGE
Judgment delivered in the presence of:
Mr. Koima for the State
Dennis Sianya Mosoti -Appellant in person from Kisii Main Prison
Ruth Mokeira-Court Assistant
Introduction
1. The Appellant Dennis Sianya Mosoti was convicted on 23 rd September 2024 of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (SOA) in Kisii Sexual Offence Case No. 36 of 2016. The Particulars of the offence are that on diverse dates between 30 th January 2016 and 1 st February 2016 at Riana Location, Kisii South Sub County, within Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of NB , a child aged 15 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (SOA) . Following a full hearing the Appellant was convicted and sentenced to serve 20 years’ imprisonment. The Appellant was admitted to bail terms on 5 th April 2016.
2. Aggrieved by both the conviction and sentence, the Appellant vide a petition of Appeal dated 4 th October 2024 preferred the Appeal herein. In summary, the trial court erred in failing to consider that the prosecution did not prove its case against him beyond reasonable doubt, the sentence of 20 years’ imprisonment meted was punitive, unconstitutional and harsh in the circumstances. Lastly, he states that the trial court failed to consider that the Appellant person was not represented by a lawyer. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence. In the alternative review the excessive sentence.
3. On 21 st May 2026 parties took directions on disposal of the appeal, parties agreed to have the appeal canvassed by way of written submissions, the Appellant filed his submissions dated 12 th August 2025 . Respondent equally confirmed filing and service of its written submissions dated 5 th March 2026.
4. To begin with, this court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court.
The Prosecution Case
5. In support of its case, the prosecution called 4 witnesses at the trial court. PW1, N.B , the Complainant in this case, took oath and stated that she is 17 years old and a student in Secondary School. She recalls on 29 th January 2016 she was from school and she met the Appellant and asked him to take her home but instead he took her to his place, he forced her to have sex with him without her consent and she decided not to go back home. The Appellant forced her to stay in his home. The next day her parents came for her and they were taken to Gesonso Police station. She was taken to Iyabe hospital and she was treated. She positively identified the Accused person who was present in court, she acknowledged that she was her former boyfriend while she was in class 4 and he was in class 6.
6. On cross examination she stated that the Appellant met her on the road. It's not true that she had been chased away by her parents. She confirms that they had sex once, which the Appellant confirmed. It is her testimony that she did not consent to be defiled and that the Appellant locked her in his house. On whether she was paid she states that she does not know if her parents were compensated with ksh 15,000/=.
7. PW2 Grace Kwamboka, the complainant’s mother stated that she stays at Bombure and she is a house wife. She recalls that on 29 th January 2016 the complainant PW1 who had gone to school did not come back home and she was informed she had been seen with the Appellant. The next day she reported to the area Chief and Village Elder. Then they went to the Appellant’s home, the Appellant and complainant were arrested and taken to Gesonso Police Station. The Appellant wanted to marry PW1 yet she was a student. The Appellant had defiled the complainant. She took PW1 to hospital and it was confirmed she had been defiled. On her age, she testified that PWI was born on 11 th March 2000 and she was about 15 years old. She further testified that the Appellant is their neigbhour and she is aware they were casual friends since primary school. She produced the complainant's Birth Certificate as P Exh 3. On cross examination she denied that the Appellant had given her ksh 15,000/=. The Appellant had been warned to leave the complainant alone but he refused and that it is true that the Complainant was found at the Appellan's home and arrested.
8. PW3 Evans Mosota a Clinical Officer at Iyabe district hospital stated that on 2 nd February 2016 he filled the complainant's P3 form. There was tenderness on the linings of the vagina walls of the complainant & her hymen was torn. She had a whitish discharge. Urinalysis showed proteins and there were numerous epidermal cells. He concluded that the Complainant had been defiled. He produced the Complainant's P3 form and Treatment Notes as exhibits
9. PW4 P.C Kiprop Mercy No.102618 stated that he is attached at Gesongo police station. He took over the case from the previous Investigation Officer. She testified that the complainant aged 15 years disagreed with her parents, she went to the Appellants home who was her boyfriend and she stayed there for 2 days. The matter was reported to the police and the Appellant was arrested. The complainant was taken for treatment. She identified that the Appellant in open court
Defence Case
10. The Appellant on 28 th November 2019 was placed on his defence after the court found the Appellant had a case to answer. Section 211 of the CPC was read out and explained to the Appellant in Kiswahili. The Appellant responded that he will give sworn evidence and he intends to call witnesses.
11. This was the last day the trial court ever saw the Appellant, in an otherwise bold move the Appellant absconded court sessions for a record of 22 times, until he was arrested on 23 rd September 2024. By the time of his arrest the trial court had closed the Defence case and convicted him to 20 years imprisonment. The sentence would run from the date the Appellant person will be arrested. He was subsequently committed to serve his jail term upon his arrest on 23 rd September 2024
The Appellant's Submission
12. The Appellant, as aggrieved submits that PW1 is her girlfriend, that PW1 willingly left their home for his house, and that PW1's evidence during cross-examination was inconsistent as to whether she resisted him. He states that they are teenagers in juvenile relationship. The Appellant argues the pre-sentencing report was never formally produced. He submits that during sentencing the trial magistrate started from a 20-year mandatory minimum without properly interrogating the complainant's correct age thus ought to have benefited from the court discretion and proportionality in sentencing, citing AMO v Republic (Criminal Appeal No. 44 of 2018 eKLR). He submits that the sentence is unconstitutional for being mandatory in nature.
13. The Appellant also raises right to fair trial issue: he submits that the PW3 clinical officer's P3 form and Birth Certificate were not authentic, credible, or properly understood by the witnesses testifying to them, and that the trial court failed to interrogate the language used by witnesses, potentially compromising a fair trial. He submits that PW2 the mother gave evidence about events on 29 th January 2026 that was inconsistent with when the Appellant was actually arrested, and that PW4 the Area Chief was not properly summoned to give evidence, further undermining the credibility of the evidence relied upon for conviction. In mitigation, he submits he is a total orphan with no parents, was the only son in his family, and that the sentence of 20 years, with no possibility of review by the trial court despite its discretion. He prays that the appeal be allowed, or in the alternative, that the sentence be reviewed and reduced.
The Respondent's Submissions
14. The Respondent opposed the appeal on nine grounds, of which it specifically addressing grounds 1, 3, 5, 6, 7, and 9, submitting that the prosecution evidence met the required standard to prove defilement. On age, the Respondent relies on the complainant's Birth Certificate, showing she was born on 11 th March 2000 and was therefore 15 years old at the time of the offence, which was sufficiently proved. On penetration, invoking the statutory definition under section 2 of the Sexual Offences Act , the Respondent points to PW1's detailed account of being taken to the Appellant's house and forcefully penetrated, corroborated by the clinical officer PW3, who found tenderness on the vaginal wall, a torn hymen, and numerous epidermal cells, with lab results, treatment notes, and the P3 form confirms defilement. On identification, the Respondent submits PW1 clearly identified the Appellant as the perpetrator, describing how he took her to his house and defiled her while alone with her, and notes that he was subsequently arrested at his house in her company.
15. On grounds 2 and 8, challenging the 20-year sentence as unconstitutional and harsh, the Respondent submits the sentence was correctly imposed under the mandatory minimum in section 8(3) of the Sexual Offences Act , relying on the Supreme Court's decision in Republic v Joshua Gichuki Mwangi; ISLA & 3 others (Amicus Curiae) [2024] KESC 34, which affirmed courts' duty to impose sentences as prescribed by the Act. On ground 4, that the Appellant lacked legal representation at trial, the Respondent relies on Article 50(2)(h) of the Constitution and R v Chengo & 2 Others [2017] eKLR to argue that state funded representation is only constitutionally required where its absence would occasion substantial injustice, and submits no such injustice arose here, since the Appellant fully participated in the trial and cross-examined all prosecution witnesses. The Respondent concludes by urging the court to find the conviction safe and to dismiss the appeal in its entirety, upholding both conviction and sentence.
Analysis And Determination
16. This being a first appellate court, it has a duty to scrutinize and evaluate the evidence afresh, while cautioned enough, that it did not have the advantage of seeing or hearing the witnesses testify during trial, whilst giving due allowance for the trial court’s findings. This is well set out in decision of the Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 as follows: -
“On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanour which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
17. I have read the respective parties’ submissions, given due consideration to the trial court’s proceedings and the record of Appeal dated 24 th October, 2024 . The following are the issues that arise for the determination of this court: -
a. Whether the Prosecution proved its case beyond reasonable doubt.
b. Whether the sentence was harsh and excessive.
c. Whether the Appellant’s rights to fair trial were threatened infringed and/or violated.
Whether the Prosecution proved its case beyond reasonable doubt.
18. The Appellant was charged under Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act which provides; -
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years”
19. The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act , the main elements of the offence of defilement are that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice.
20. As to the age of the Complainant, there is no doubt and/or contestation of the age of the Complainant. the Complainant’s Birth Certificate was produced as P Exh 3, indicating she was born on 11 th March 2000 . She was aged 15 Years as at January 2016 when the offence took place, this was corroborated by PW2, the mother who confirmed she was born on 11 th March 2000 aged hence was 15 years at the date of the incident. The Treatment Notes and the P3 form captured that the complainant was 15 years then.
21. The Court of Appeal in Eliud Waweru Wambui v Republic [2019] eKLR , pronounced itself on the importance of age ascertainment in sexual offences cases that:
“There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt.”
22. The Birth Certificate, Treatment Notes, P3 Form and testimonies of PW1, PW2, PW3 and PW4 clearly demonstrated the age of the complainant removing any doubts and/or inconsistencies thereon. Therefore, the age of the Complainant was proved by the birth certificate, thus a child aged 15 years with the meaning section 2, 9 Sexual Offences Act as read with Section 2 of the Children Act 2022 to mean someone who has not attained the age of 18 years.
23. This court therefore finds that the age of the complainant as a minor of 15 years as at the time of the offence was proved beyond reasonable doubt.
24. On penetration, the Complainant testified that the Appellant forcefully had sex with her. She narrates that Appellant took her to his home after school and locked her up. She was forcefully taken to bed by the Appellant she did not consent to be defiled. She admits that the Appellant was her former boyfriend when she was at Class 4. PW2 testifies that she found the Complainant at the Appellant’s home where she took her to the hospital and upon examination she was found to have been defiled.
25. PW3 Evans Mosota testified that he examined the Complainant and he observed that there was tenderness on the linings on the vaginal walls, hymen was broken and numerous epidermal cells. He produces the Treatment Notes, and P3 Form.
26. On his defence, the Appellant did not tender any defence, he absconded court thus the defence case closed. This Court notes that the Appellant abrogated his Constitutional right to be present at trial.
27. The Appellant, however through an appeal, more so through submissions is seeking to raise a defence anchored on consensual, non-coercive, and non-exploitative sexual conduct between adolescents of close age proximity and similar developmental capacity. The same is not tenable as from the evidence adduced at the trial court, the complainant has denied consent. The age of the Appellant is unknown. This defence cannot be introduced at Appeal stage.
28. On identification of the perpetrator, the Complainant positively identified the Appellant through recognition and also she identified him in open court. The Complainant admits that they once had sex. PW2 equally confirms that she knows the Appellant and that she found the Complainant and the Appellant at his home. The Appellant did not dispute the identity; he even concedes by confirming to the Trial court that they had sex once. Clearly PW1 and PW2 knew the Appellant beforehand thus they could recognize him in broad daylight.
29. The trial court subjected the Complainant to a voir dire test. PW1 testified that she was 17 years old and trial court noted that she understood the nature of an oath and the added duty of telling the truth, she was placed under oath. As guided Section 124 of the Evidence Act allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant 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 Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth .” (Underlined for emphasis)
30. In its judgment, the trial court was persuaded that the Complainant of 15 years then identified the Appellant in broad daylight, she had an ample time to observe what was happening and she positively identified the perpetrator as the Appellant. The evidence was corroborated by PW2 and it was not controverted by the Appellant herein.
31. Pursuant to the above analysis, this court is therefore satisfied that the elements of defilement were proved beyond reasonable doubt.
Whether the sentence was harsh and excessive
32. As to whether the sentence to serve 20 years imprisonment was harsh and excessive? The Appellant states that the trial court erred for meting out a 20-year sentence yet the prosecution did not prove its case beyond any reasonable doubt and without any credible evidence from the doctor. The Appellant challenges the mandatory minimum sentence to be unconstitutional.
33. Section 8 (3) of the Sexual Offences Act provides the penal consequences of a defilement with a child between the age of twelve and fifteen years to be an imprisonment of a term not less than 20 years. The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) while cautioning the presume illegality of mandatory minimum sentences state as much:-
‘’…However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.’’
34. This court therefore finds no basis to interfere with the sentence imposed by the trial court.
Whether the Appellant’s rights to fair trial were threatened infringed and/or violated.
35. From the trial record, it is indeed clear that the Appellant abrogated his constitutional rights by absconding court for a record of 22 times over a period of 2 years. The trial court issued several warrants of arrests since September 2020, summons to surety and summons to investigation officer.
36. The Court in Regina vs Jones (2003) I ACI cited with Authority of Republic v Teteror [2023] KEHC 18592 (KLR) question itself as to the conduct of accused persons who after defence willfully abscond court and what becomes of the right the fair trial. The court held as thus:-
“…that an Accused person’s right to be present during trial can be vitiated by his own conduct especially willingly absenting oneself from trial. Counsel opined that if the trial is terminated because the Accused absconded trial, the victim will be left without remedy and this would mean that the Accused walks free simply by absenting himself. Section 206(4) of the Criminal Procedure Code is faulted for only stating that where the Accused is charged with a felony, warrant of arrest should be issued against that Accused but does not state whether the case should proceed. Reliance was placed on the case of Aggrey Mbai Injaga v Republic (2014) eKLR and Republic vs Galma Abagaro Shano(2017) eKLR where the Accused escaped when he was placed on his defence and the court held that by absenting himself, the Accused had abrogated his Constitutional right to be present during trial.”
37. Clearly the Appellant was fully aware of the proceedings against him. Upon the charges being read out, he entered a plea of not guilty. The court admitted him to bond with one surety. Thereafter, he actively participated in the trial, following the testimony of each prosecution witness and cross-examining them in turn. When called upon to enter his defence, he abrogated his constitutional rights to fair trial.
38. Or the rights to fair trial and in particular the right to be represented by Counsel, the Appellant has raised this ground of Appeal vide ground no 4. He is aggrieved that the trial court failed to consider that he was unrepresented.
39. A litigant has a right to appoint an advocate of his choice, Article 50(2)(g & h) of the Constitution provides that the Court shall appoint and an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result .
40. A careful review of the record shows that at plea, the charges were read over to the Appellant and explained in Kiswahili, which a plea of not guilty was entered, the record indicates that both English and Kiswahili were used in court. The Appellant comprehensively cross examined all the witnesses. However, when called to lodge a defence and in abrogation of his constitutional rights enshrined under Article 50 (2) of the Constitution, he willfully opted to abscond court and stall the process for a period of 4 years.
41. This court therefore finds no basis on the Appellant’s claim that his right to a fair trial was violated.
Disposition
Consequently;
a) The appeal against both conviction and sentence is hereby dismissed in its entirety.
b) The conviction is upheld and the sentence of 20 years imprisonment affirmed.
JUDGMENT DELIEVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 16TH DAY OF JULY 2026
ANNE M. OKUTOYI
JUDGE
Judgment delivered in the presence of:
Mr. Koima for the State
Dennis Sianya Mosoti -Appellant in person from Kisii Main Prison
Ruth Mokeira-Court Assistant