' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E004 OF 2025
DISMARK ETYANG…………………………………..……..……..………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….…….……….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Tobias O. Omono (RM) in Kitale CMC SO Case No. E022 of 2023)
JUDGMENT
The appellant was arraigned before the Resident Magistrate at Kitale in Sexual Offences Case No. E107 of 2023 charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 27 th January 2023 at Mitume village within Trans-nzoia County within the Republic of Kenya, the appellant intentionally caused his penis to penetrate the vagina of PN a child aged 15 years.
In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 27 th January 2023 at Mitume village within Trans-Nzoia County within the Republic of Kenya, the appellant intentionally touched the vagina of PN a child aged 15 years with his penis.
Upon entering a plea of not guilty, the appellant’s case proceeded to full trial, with the prosecution presenting a total of five (5) witnesses whose testimonies are summarized hereunder;
A voire dire examination was conducted on PW1, and upon the court being satisfied that she understood the nature of an oath and the duty to tell the truth, she testified that she was a Class Eight pupil at Makindu Primary School. She recalled that on diverse dates between December 2022 and 27 th January 2023, the appellant’s friend by the name of George who also happens to be related to her maternal grandmother came to her grandmother’s home, took her to the appellant’s home, and asked her to stay with him. The appellant gave the said George and her grandmother money and she lived with him as his wife. She stated that during their stay together, they had sex, and gave a detailed account how the appellant could undress her, remove his penis, and put it in her vagina. It was her further testimony that during their stay, the landlord became aware that she was a minor and reported the matter to the area chief. The police from Kitale subsequently investigated, and she was taken to Kitale County Hospital, where her age was assessed at 15 years.
On cross examination she stated that she was 14 years old at the time and recalled how the appellant would undress her upon his return from work at night. She added that the appellant took her to his home after giving George and her grandmother Kshs. 4,000/- and that she had consented to the arrangement of living with the appellant as his wife.
On re-examination, she stated that George had asked her to sit on his motorbike, and she later learned that she was being taken to the appellant’s home for the purpose of marriage.
PW2, a village elder and community health worker, testified that on 27 th January 2023, at around 9:00 PM, a neighbour of the appellant named Maximilla informed her that the appellant was living with an underage girl. She went to the appellant’s residence, where they found PW1 alone. When the appellant later returned, she questioned him, and he admitted that he had been living with PW1 for two months as his wife, with the consent of her grandparents. PW2 then escorted the appellant to Mitume AP Post.
On cross-examination, she stated that she knew the appellant well and that he had previously stayed near her home. She further added that the appellant had informed her that he had stayed with PW1 for two months after paying Kshs. 2,000/-.
PW3, a doctor, testified on behalf of a colleague with whom she had worked for over a year and whose signature and handwriting she was familiar with. She stated that her colleague had examined PW1 on 30 th January 2023 and observed that her hymen was broken and old looking. There was no discharge, and thus formed the opinion that PW1 had been defiled.
PW4 testified that he was an oral health officer in the Dental Department at Kitale County Hospital. He stated that he conducted an age assessment of PW1 on 30 th January 2023 and observed that her second molars had erupted, while the third molars were absent. The X-ray showed complete crown and root formation for the second molars and crown formation for the third molars. Based on these findings, he concluded that PW1 was approximately 15 years old.
PW5, the investigating officer, testified that on 27 th December 2022 she received a report from the Mitume chief and Maumau village elder that an adult male had been staying with a minor in his house as a wife for two months. The man had been taken to the chief’s office, while the minor was taken to hospital. PW1 led her to the appellant’s residence, where she interviewed the appellant. The appellant informed the witness that one George had promised him PW1 in marriage and that he had paid Kshs 4,800/- for the arrangement. Efforts to locate George were unsuccessful.
On cross-examination, PW5 stated that it was PW1 who had led them to the appellant’s house, and that the appellant had confirmed it was his residence. She further added that, according to the investigations, neighbors had corroborated seeing PW1 staying with the appellant.
The testimony of PW5 marked the close of the prosecution’s case after which the court ruled that a prima facie case had been established and accordingly called upon the accused to put forth his defense.
The defense called two witnesses; the appellant as DW1 and Kennedy Barasa as PW2. The appellant, gave sworn testimony and stated that he was 55 years old and resided in Mitume, where he worked as a security guard. He explained that he had been in a romantic relationship with a caretaker named Maximilla, whom he described as unfaithful. He testified that on 4 th November 2022, she borrowed his phone, and on 9 th December 2022, she borrowed his Sonitek radio, neither of which were returned. She later alleged that the phone had been stolen. The appellant stated that he found Maximilla on 28 th December 2022 at Mombasa Inn Bar drinking with another man, and on 13 th January 2023, he saw her leaving Africana Lodge in the company of another man. This led to the end of their relationship, during which she threatened him with dire consequences.
He further testified that on 27 th January 2023, he received a call from the caretaker claiming that thieves were breaking into his house. He took a bike and rushed home, only to find that the alarm was false. He observed the caretaker in the company of her children and another girl. She introduced the woman and the girl to him and requested that he accompany them to the police to report the incident, which he agreed to do. Before leaving, he overheard the caretaker instructing the girl to tell the police that he had been living with and defiling her for two months and that he had given money to her grandmother. The appellant stated that Maximilla reported the incident to the police due to their failed relationship. He denied the charges.
On cross-examination, the appellant denied knowing the complainant and stated that he was unaware of any relationship between PW1 and Maximilla. He added that PW1’s clothes were not found in his house and that his wife had left him in 2017. He also confirmed the statement he had recorded with the police and acknowledged that he had not mentioned the incident involving the alleged thieves.
DW2 testified that he was a neighbour of the appellant at Maumau Estate in Mitume. He confirmed that Maximilla was the caretaker at the time and that she had been in a relationship with the appellant. He further stated that the appellant had disappeared, only for him to later learn that the appellant had been arrested. On cross-examination, DW2 stated that he did not know PW1.
The evidence of DW2 marked the close of the defense case. Judgment was subsequently delivered on 21 st November 2024, and the appellant was convicted and sentenced to serve a twenty-five years’ imprisonment term, to run from the date of his arraignment in court.
Dissatisfied with the judgment of the trial court, the appellant has lodged this appeal seeking to have his conviction quashed and the sentence set aside. The appeal is premised on grounds; that the learned trial magistrate failed to note that the element of penetration was not conclusively proved, that the charge sheet was defective, that his right to legal representation under Articles 50(2)(g) and (h) of the Constitution was violated, and that the sentence imposed was excessive in the circumstances.
Appellant’s Submissions
The appellant filed three sets of submissions raising similar issues. He begins by questioning how, according to the charge sheet, he was arrested on 30 th January 2021 and arraigned in court on 31 st January 2022, apparently one year before the offence, which was said to have occurred on various dates between December 2022 and 27 th January 2023, and that the P3 form was completed on 30 th January 2023. He further challenges why the person who prepared the medical report did not testify in court as required under Section 77 of the Evidence Act and instead sent a representative. He cites the case of Juma Kalio v R CRA No. 71 of 2000 , which established that the author of a medical report should be called to produce it.
Regarding whether the element of penetration was conclusively proved, the appellant cites the decision in P.K.W v R, asserting that the hymen is not necessarily broken by penetration, as it can also rupture due to vigorous physical activity such as horseback riding, cycling, or gymnastics, and that some girls are born without one. He contends that the evidence of the doctor did not specify the object that caused the alleged penetration.
On the ground that the charge sheet was defective, the appellant submits that the particulars omitted the word “unlawfully,” which, in his view, renders the charge sheet fatally defective.
Concerning the alleged violation of his right to a fair trial under Article 50(2)(g) of the Constitution, the appellant contends that his right to legal representation was not explained to him by the trial magistrate, despite the seriousness of the offence. He refers to Section 43 of the Legal Aid Act, which imposes a duty on the court to inform an unrepresented accused of their right to legal representation. He cites Joo v R [2021] eKLR and KO v R Criminal Appeal No. E026 of 2021 [2023] KEHC 18310 , which affirmed the right to legal representation.
On the ground of excessive sentence, the appellant relies on S v Scott Crossley 2008 (1) SACR 223 (SCA) , on the need that a sentence must have a deterrent and retributive effect but should not be excessively harsh so as to sacrifice the accused to the altar of punishment. He contends that the 25-year sentence imposed on him is excessive.
The appellant prays for leniency, stating that during incarceration he has pursued theological courses. He further adds that he suffers from chronic eyesight problems, hypertension, and diabetes, and requires specialized medical treatment.
He also submits that the trial court denied him the opportunity to call all witnesses to testify in his defense. For these reasons, he prays that the appeal be allowed in its entirety.
Respondent’s Submissions
On the issue of whether the medical evidence proved penetration, the respondent submits that PW3’s evidence, on behalf of her colleague, established that the victim’s hymen was torn and appeared old. The respondent contends that this confirms penetration and corroborates the victim’s (PW1) testimony that she and the appellant engaged in sexual intercourse on multiple occasions while living together as husband and wife.
The respondent further refers the court to the decision in Erick Onyango Odeng’ v R [2014] KECA 523 (KLR) , where the Court of Appeal in rejecting contradictions regarding the hymen cited Twehangane Alfred v Uganda Criminal Appeal No. 139 of 2001 [2003] UGCA , where the court held that a torn and old-looking hymen is a clear indication of penetration.
On the ground that crucial witnesses were not called to testify, the respondent submits that Section 150 of the Criminal Procedure Code mandates the court to summon any person whose evidence appears essential for a just decision. The respondent cites JMM v R [2010] KHC 2506 (KLR), noting that the prosecution is required to establish the truth of the case. In a defilement case such as this, it submits that the evidence of the victim, the doctor who examined the victim, and the doctor who assessed the victim’s age as 15 years is sufficient to sustain the charge and satisfies the prosecution’s burden of proof.
Regarding alleged contradictions or discrepancies in the evidence, the respondent submits that the only discrepancy concerned the amount of money given, which does not affect the facts of the case.
On whether the appellant’s mitigation was considered, the respondent submits that the trial court duly recorded the appellant’s mitigation and referred to it during sentencing. They further contend that the appellant’s mitigation was not supported by evidence.
On the rejection of the appellant’s evidence, the respondent submits that the appellant’s testimony is uncorroborated and does not weaken the prosecution’s case. The minor was found in his house, and the combined evidence of the victim and other witnesses left no doubt that the offence took place. The respondent adds that the sentence of 25 years’ imprisonment imposed by the trial court was well within the law.
Accordingly, the respondent prays that the appeal be dismissed.
Issues, Analysis and Determination
This Court has carefully considered the grounds of appeal, the proceedings of the lower court, and the submissions of both the appellant and the Respondent. From the foregoing, the following issues arise for determination:
Whether the charge sheet was defective and the effect of any such defect;
Whether the element of penetration was conclusively proved;
Whether the appellant was denied the opportunity to call witnesses;
Whether the appellant’s right to legal representation was violated; and
Whether the sentence imposed on the appellant was harsh and excessive.
Whether the charge sheet was defective and its effect
The appellant contends that the charge sheet was defective, asserting that it indicated he was arrested on 30/1/2022 and presented in court on 31/1/2022, while the alleged offences occurred on various dates between December 2022 and 27/1/2023. The appellant questions the logical inconsistency of being arrested before the alleged commission of the offence. He emphasizes that such discrepancies rendered the charge sheet defective, potentially prejudicing his defense. The Respondent did not submit on this point.
The legal principle governing a defective charge is that a conviction should not be overturned on appeal unless the defect resulted in a miscarriage of justice. Section 382 of the Criminal Procedure Code provides a curative mechanism whereby irregularities in a charge, complaint, summons, or other proceedings will not vitiate a conviction unless substantial injustice is demonstrated. In JMA v Republic (2009) KLR 671 , it was held that not all errors in a charge render a conviction invalid.
The evidence reveals that the appellant was arrested on 27/1/2023 after one Maximilla lured the complainant to the police station. Further, the appellant admitted in his testimony that he was in communication with Maximilla on 4/11/2022 and 9/12/2022, including giving her a phone and a radio. These facts confirm that the arrest occurred on 27/1/2023, consistent with witness accounts, not on 30/1/2022 as indicated in the charge sheet. Consequently, the Court is satisfied that the discrepancies in dates did not prejudice the appellant or occasion a miscarriage of justice.
The appellant also argues that the charge sheet was defective for omitting the word “unlawfully.” The Court finds that for the offence of defilement, sexual intercourse with a minor is inherently unlawful. From the appellant’s cross-examination and submissions, it is evident that he understood the nature of the charge. Thus, no miscarriage of justice resulted from this omission. The inclusion of the term “unlawful” is not essential where the act itself constitutes a criminal offence.
In conclusion, the charge sheet contained sufficient information to inform the appellant of the nature of the offence and to enable him to prepare his defense. The alleged defects are therefore curable under the law and do not render the conviction unsafe.
Whether the element of penetration was conclusively proved
Penetration is defined under Section 2 of the Sexual Offences Act as the partial or complete insertion of a person’s genital organ into the genital organ of another. This element is central to the offence of defilement.
In Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995 , the Supreme Court of Uganda held that sexual intercourse or penetration may be proved by direct or circumstantial evidence. Victim testimony, corroborated by medical evidence, is sufficient to establish penetration beyond reasonable doubt. It is not necessary that medical evidence identify the precise cause of the injury, provided it is consistent with the victim’s account.
The appellant contends that the medical report produced by PW2 did not identify the cause of the torn hymen and argues that this could have resulted from other activities such as bicycle riding or masturbation. The Respondent, however, submits that the medical examination confirmed the hymen was broken and the victim testified that the appellant caused the injury through sexual intercourse.
The complainant testified that she had been married off to the appellant by her grandparents and cohabited with him as husband and wife. She described repeated acts of sexual intercourse, specifying that the appellant would undress her, remove his penis, and insert it into her vagina. This testimony was corroborated by medical evidence from PW3, whose examination of the complainant revealed a torn hymen, described as “old looking,”. The evidence indicates repeated sexual activity, consistent with the complainant’s account.
The appellant’s denial of the offence was not credible for several reasons. Firstly, he acknowledged questioning the complainant about her consent to the marriage, to which she affirmed agreement. Secondly, the appellant’s defense included the claim that he was lured to the police station by Maximilla, during which he overheard her instruct the complainant to falsely state that he had been defiling her for two months. Despite this, the appellant accompanied them to the police station. These factors undermine his credibility.
The Court concludes that the element of penetration was sufficiently established through the combined testimony of the complainant and corroborating medical evidence.
The appellant further contends that the medical report was irregularly produced by PW3, who was not the maker of the document, thereby contravening the provisions of Section 77 of the Evidence Act. It is a settled principle that documentary evidence ought, as a general rule, to be produced by its maker to ensure the authenticity and reliability of the contents. Nevertheless, the law recognizes certain exceptions under Section 33 of the Evidence Act, Cap. 80 Laws of Kenya, which permit the production of a document by a person other than its maker where it is demonstrated that the maker is deceased, cannot be traced, is incapable of giving evidence, or where securing their attendance would occasion unreasonable delay or expense in the circumstances of the case.
Regarding the production of the medical report by PW3, the Court notes that the original maker of the report had transferred to another jurisdiction. In the Court’s view, this circumstance falls within the exception contemplated under Section 33 of the Evidence Act, which permits the production of a document by a person other than its maker when the latter is unavailable or cannot reasonably be procured to testify. Accordingly, the production of the medical report by PW3 was not irregular in law.
Whether the appellant was denied the opportunity to call witnesses
A review of the record shows that on 6/11/2024, the appellant indicated that he was not ready to proceed because his witness, Kennedy Barasa, was at Kitale Main Prison. This witness later testified as DW2, demonstrating that the appellant was afforded the opportunity to call witnesses. There is no evidence to support a claim that the appellant was denied this right.
Whether the appellant’s right to legal representation was violated
The appellant alleges that his constitutional rights under Articles 50(2)(g) and 50(2)(h) of the Constitution were violated. Article 50(2)(g) guarantees every accused person the right to choose, and be represented by, an advocate and to be informed of that right promptly. Article 50(2)(h), on the other hand, secures the right to legal representation at the State’s expense where substantial injustice would otherwise result, and obliges the court to inform the accused promptly of that entitlement. These constitutional guarantees are buttressed by the Legal Aid Act, No. 6 of 2016, which establishes the National Legal Aid Service and imposes upon courts a duty to inform unrepresented accused persons of their right to legal aid.
The Supreme Court in Republic v Karisa Chengo & 2 Others [2017] eKLR underscored that, while the right to legal representation is a fundamental component of a fair trial, the right to State-funded counsel is not absolute. It arises only in circumstances where substantial injustice is likely to occur, having regard to factors such as the gravity and complexity of the offence, the severity of the potential sentence, and the accused person’s ability to effectively conduct their own defense.
Similarly, in Vincent Obulemere v Republic [2022] eKLR , the Court reiterated that trial courts bear an obligation to inform every unrepresented accused person of their right to legal representation and, where circumstances warrant, to legal aid at the State’s expense, particularly in serious or complex cases.
In the present matter, although the record does not expressly show that the appellant was formally advised of his right to legal representation, the proceedings reveal that he actively participated in cross-examination and conducted his defense with reasonable competence. In the circumstances, the Court is not persuaded that the omission occasioned any substantial injustice. Consequently, this ground of appeal is devoid of merit and fails.
Whether the sentence meted on the appellant was harsh and excessive
The victim’s age was determined to be 15 years, and the appellant did not challenge this. Section 8(3) of the Sexual Offences Act prescribes a minimum sentence of twenty years’ imprisonment for defilement of a child aged between twelve and fifteen years.
In Bernard Kimani Gacheru v Republic [2002] eKLR , the Court of Appeal held that appellate intervention on sentence is warranted only where the sentence is manifestly excessive, material factors were overlooked, or incorrect principles were applied. Even where the appellate court might have imposed a different sentence, that alone is insufficient to interfere with the trial court’s discretion.
Here, the sentence imposed was more by five years of the statutory minimum. The constitution, article 50(2)p guarantees to the appellant the least of the prescribed sentence. Because the sexual offences Act prescribe 20 years as the minimum, he was entitled to no more than that period. That the trial court imposed a longer duration is ipso fact demonstration of an excessive sentence. To that extent, the sentence is set aside and substituted with a period of 20 years to be computed from the date of his arrest, 27.01.2023.
Consequently, and for the foregoing reasons, the Court finds no merit in the appeal against conviction, but sets aside the sentence of 25 years and substitutes therefore a period of 20 years in accordance with article 50(2)p of the constitution.
The appeal succeeds to that extent only.
Dated, signed and delivered Virtually this 21 st day of November 2025
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IN THE HIGH COURT OF KENYA AT KITALE
CRIMINAL APPEAL NO. E004 OF 2025
DISMARK ETYANG…………………………………..……..……..………..APPELLANT
VERSUS
REPUBLIC....…….……………………………………….…….……….…RESPONDENT
(Being an appeal from the conviction and sentencing of Hon. Tobias O. Omono (RM) in Kitale CMC SO Case No. E022 of 2023)
JUDGMENT
The appellant was arraigned before the Resident Magistrate at Kitale in Sexual Offences Case No. E107 of 2023 charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 27 th January 2023 at Mitume village within Trans-nzoia County within the Republic of Kenya, the appellant intentionally caused his penis to penetrate the vagina of PN a child aged 15 years.
In the alternative, the appellant was charged with the offence of indecent act with a child contrary to section 11(1) of Sexual Offences Act No. 3 of 2006. The particulars of the offence were set out to be that on 27 th January 2023 at Mitume village within Trans-Nzoia County within the Republic of Kenya, the appellant intentionally touched the vagina of PN a child aged 15 years with his penis.
Upon entering a plea of not guilty, the appellant’s case proceeded to full trial, with the prosecution presenting a total of five (5) witnesses whose testimonies are summarized hereunder;
A voire dire examination was conducted on PW1, and upon the court being satisfied that she understood the nature of an oath and the duty to tell the truth, she testified that she was a Class Eight pupil at Makindu Primary School. She recalled that on diverse dates between December 2022 and 27 th January 2023, the appellant’s friend by the name of George who also happens to be related to her maternal grandmother came to her grandmother’s home, took her to the appellant’s home, and asked her to stay with him. The appellant gave the said George and her grandmother money and she lived with him as his wife. She stated that during their stay together, they had sex, and gave a detailed account how the appellant could undress her, remove his penis, and put it in her vagina. It was her further testimony that during their stay, the landlord became aware that she was a minor and reported the matter to the area chief. The police from Kitale subsequently investigated, and she was taken to Kitale County Hospital, where her age was assessed at 15 years.
On cross examination she stated that she was 14 years old at the time and recalled how the appellant would undress her upon his return from work at night. She added that the appellant took her to his home after giving George and her grandmother Kshs. 4,000/- and that she had consented to the arrangement of living with the appellant as his wife.
On re-examination, she stated that George had asked her to sit on his motorbike, and she later learned that she was being taken to the appellant’s home for the purpose of marriage.
PW2, a village elder and community health worker, testified that on 27 th January 2023, at around 9:00 PM, a neighbour of the appellant named Maximilla informed her that the appellant was living with an underage girl. She went to the appellant’s residence, where they found PW1 alone. When the appellant later returned, she questioned him, and he admitted that he had been living with PW1 for two months as his wife, with the consent of her grandparents. PW2 then escorted the appellant to Mitume AP Post.
On cross-examination, she stated that she knew the appellant well and that he had previously stayed near her home. She further added that the appellant had informed her that he had stayed with PW1 for two months after paying Kshs. 2,000/-.
PW3, a doctor, testified on behalf of a colleague with whom she had worked for over a year and whose signature and handwriting she was familiar with. She stated that her colleague had examined PW1 on 30 th January 2023 and observed that her hymen was broken and old looking. There was no discharge, and thus formed the opinion that PW1 had been defiled.
PW4 testified that he was an oral health officer in the Dental Department at Kitale County Hospital. He stated that he conducted an age assessment of PW1 on 30 th January 2023 and observed that her second molars had erupted, while the third molars were absent. The X-ray showed complete crown and root formation for the second molars and crown formation for the third molars. Based on these findings, he concluded that PW1 was approximately 15 years old.
PW5, the investigating officer, testified that on 27 th December 2022 she received a report from the Mitume chief and Maumau village elder that an adult male had been staying with a minor in his house as a wife for two months. The man had been taken to the chief’s office, while the minor was taken to hospital. PW1 led her to the appellant’s residence, where she interviewed the appellant. The appellant informed the witness that one George had promised him PW1 in marriage and that he had paid Kshs 4,800/- for the arrangement. Efforts to locate George were unsuccessful.
On cross-examination, PW5 stated that it was PW1 who had led them to the appellant’s house, and that the appellant had confirmed it was his residence. She further added that, according to the investigations, neighbors had corroborated seeing PW1 staying with the appellant.
The testimony of PW5 marked the close of the prosecution’s case after which the court ruled that a prima facie case had been established and accordingly called upon the accused to put forth his defense.
The defense called two witnesses; the appellant as DW1 and Kennedy Barasa as PW2. The appellant, gave sworn testimony and stated that he was 55 years old and resided in Mitume, where he worked as a security guard. He explained that he had been in a romantic relationship with a caretaker named Maximilla, whom he described as unfaithful. He testified that on 4 th November 2022, she borrowed his phone, and on 9 th December 2022, she borrowed his Sonitek radio, neither of which were returned. She later alleged that the phone had been stolen. The appellant stated that he found Maximilla on 28 th December 2022 at Mombasa Inn Bar drinking with another man, and on 13 th January 2023, he saw her leaving Africana Lodge in the company of another man. This led to the end of their relationship, during which she threatened him with dire consequences.
He further testified that on 27 th January 2023, he received a call from the caretaker claiming that thieves were breaking into his house. He took a bike and rushed home, only to find that the alarm was false. He observed the caretaker in the company of her children and another girl. She introduced the woman and the girl to him and requested that he accompany them to the police to report the incident, which he agreed to do. Before leaving, he overheard the caretaker instructing the girl to tell the police that he had been living with and defiling her for two months and that he had given money to her grandmother. The appellant stated that Maximilla reported the incident to the police due to their failed relationship. He denied the charges.
On cross-examination, the appellant denied knowing the complainant and stated that he was unaware of any relationship between PW1 and Maximilla. He added that PW1’s clothes were not found in his house and that his wife had left him in 2017. He also confirmed the statement he had recorded with the police and acknowledged that he had not mentioned the incident involving the alleged thieves.
DW2 testified that he was a neighbour of the appellant at Maumau Estate in Mitume. He confirmed that Maximilla was the caretaker at the time and that she had been in a relationship with the appellant. He further stated that the appellant had disappeared, only for him to later learn that the appellant had been arrested. On cross-examination, DW2 stated that he did not know PW1.
The evidence of DW2 marked the close of the defense case. Judgment was subsequently delivered on 21 st November 2024, and the appellant was convicted and sentenced to serve a twenty-five years’ imprisonment term, to run from the date of his arraignment in court.
Dissatisfied with the judgment of the trial court, the appellant has lodged this appeal seeking to have his conviction quashed and the sentence set aside. The appeal is premised on grounds; that the learned trial magistrate failed to note that the element of penetration was not conclusively proved, that the charge sheet was defective, that his right to legal representation under Articles 50(2)(g) and (h) of the Constitution was violated, and that the sentence imposed was excessive in the circumstances.
Appellant’s Submissions
The appellant filed three sets of submissions raising similar issues. He begins by questioning how, according to the charge sheet, he was arrested on 30 th January 2021 and arraigned in court on 31 st January 2022, apparently one year before the offence, which was said to have occurred on various dates between December 2022 and 27 th January 2023, and that the P3 form was completed on 30 th January 2023. He further challenges why the person who prepared the medical report did not testify in court as required under Section 77 of the Evidence Act and instead sent a representative. He cites the case of Juma Kalio v R CRA No. 71 of 2000 , which established that the author of a medical report should be called to produce it.
Regarding whether the element of penetration was conclusively proved, the appellant cites the decision in P.K.W v R, asserting that the hymen is not necessarily broken by penetration, as it can also rupture due to vigorous physical activity such as horseback riding, cycling, or gymnastics, and that some girls are born without one. He contends that the evidence of the doctor did not specify the object that caused the alleged penetration.
On the ground that the charge sheet was defective, the appellant submits that the particulars omitted the word “unlawfully,” which, in his view, renders the charge sheet fatally defective.
Concerning the alleged violation of his right to a fair trial under Article 50(2)(g) of the Constitution, the appellant contends that his right to legal representation was not explained to him by the trial magistrate, despite the seriousness of the offence. He refers to Section 43 of the Legal Aid Act, which imposes a duty on the court to inform an unrepresented accused of their right to legal representation. He cites Joo v R [2021] eKLR and KO v R Criminal Appeal No. E026 of 2021 [2023] KEHC 18310 , which affirmed the right to legal representation.
On the ground of excessive sentence, the appellant relies on S v Scott Crossley 2008 (1) SACR 223 (SCA) , on the need that a sentence must have a deterrent and retributive effect but should not be excessively harsh so as to sacrifice the accused to the altar of punishment. He contends that the 25-year sentence imposed on him is excessive.
The appellant prays for leniency, stating that during incarceration he has pursued theological courses. He further adds that he suffers from chronic eyesight problems, hypertension, and diabetes, and requires specialized medical treatment.
He also submits that the trial court denied him the opportunity to call all witnesses to testify in his defense. For these reasons, he prays that the appeal be allowed in its entirety.
Respondent’s Submissions
On the issue of whether the medical evidence proved penetration, the respondent submits that PW3’s evidence, on behalf of her colleague, established that the victim’s hymen was torn and appeared old. The respondent contends that this confirms penetration and corroborates the victim’s (PW1) testimony that she and the appellant engaged in sexual intercourse on multiple occasions while living together as husband and wife.
The respondent further refers the court to the decision in Erick Onyango Odeng’ v R [2014] KECA 523 (KLR) , where the Court of Appeal in rejecting contradictions regarding the hymen cited Twehangane Alfred v Uganda Criminal Appeal No. 139 of 2001 [2003] UGCA , where the court held that a torn and old-looking hymen is a clear indication of penetration.
On the ground that crucial witnesses were not called to testify, the respondent submits that Section 150 of the Criminal Procedure Code mandates the court to summon any person whose evidence appears essential for a just decision. The respondent cites JMM v R [2010] KHC 2506 (KLR), noting that the prosecution is required to establish the truth of the case. In a defilement case such as this, it submits that the evidence of the victim, the doctor who examined the victim, and the doctor who assessed the victim’s age as 15 years is sufficient to sustain the charge and satisfies the prosecution’s burden of proof.
Regarding alleged contradictions or discrepancies in the evidence, the respondent submits that the only discrepancy concerned the amount of money given, which does not affect the facts of the case.
On whether the appellant’s mitigation was considered, the respondent submits that the trial court duly recorded the appellant’s mitigation and referred to it during sentencing. They further contend that the appellant’s mitigation was not supported by evidence.
On the rejection of the appellant’s evidence, the respondent submits that the appellant’s testimony is uncorroborated and does not weaken the prosecution’s case. The minor was found in his house, and the combined evidence of the victim and other witnesses left no doubt that the offence took place. The respondent adds that the sentence of 25 years’ imprisonment imposed by the trial court was well within the law.
Accordingly, the respondent prays that the appeal be dismissed.
Issues, Analysis and Determination
This Court has carefully considered the grounds of appeal, the proceedings of the lower court, and the submissions of both the appellant and the Respondent. From the foregoing, the following issues arise for determination:
Whether the charge sheet was defective and the effect of any such defect;
Whether the element of penetration was conclusively proved;
Whether the appellant was denied the opportunity to call witnesses;
Whether the appellant’s right to legal representation was violated; and
Whether the sentence imposed on the appellant was harsh and excessive.
Whether the charge sheet was defective and its effect
The appellant contends that the charge sheet was defective, asserting that it indicated he was arrested on 30/1/2022 and presented in court on 31/1/2022, while the alleged offences occurred on various dates between December 2022 and 27/1/2023. The appellant questions the logical inconsistency of being arrested before the alleged commission of the offence. He emphasizes that such discrepancies rendered the charge sheet defective, potentially prejudicing his defense. The Respondent did not submit on this point.
The legal principle governing a defective charge is that a conviction should not be overturned on appeal unless the defect resulted in a miscarriage of justice. Section 382 of the Criminal Procedure Code provides a curative mechanism whereby irregularities in a charge, complaint, summons, or other proceedings will not vitiate a conviction unless substantial injustice is demonstrated. In JMA v Republic (2009) KLR 671 , it was held that not all errors in a charge render a conviction invalid.
The evidence reveals that the appellant was arrested on 27/1/2023 after one Maximilla lured the complainant to the police station. Further, the appellant admitted in his testimony that he was in communication with Maximilla on 4/11/2022 and 9/12/2022, including giving her a phone and a radio. These facts confirm that the arrest occurred on 27/1/2023, consistent with witness accounts, not on 30/1/2022 as indicated in the charge sheet. Consequently, the Court is satisfied that the discrepancies in dates did not prejudice the appellant or occasion a miscarriage of justice.
The appellant also argues that the charge sheet was defective for omitting the word “unlawfully.” The Court finds that for the offence of defilement, sexual intercourse with a minor is inherently unlawful. From the appellant’s cross-examination and submissions, it is evident that he understood the nature of the charge. Thus, no miscarriage of justice resulted from this omission. The inclusion of the term “unlawful” is not essential where the act itself constitutes a criminal offence.
In conclusion, the charge sheet contained sufficient information to inform the appellant of the nature of the offence and to enable him to prepare his defense. The alleged defects are therefore curable under the law and do not render the conviction unsafe.
Whether the element of penetration was conclusively proved
Penetration is defined under Section 2 of the Sexual Offences Act as the partial or complete insertion of a person’s genital organ into the genital organ of another. This element is central to the offence of defilement.
In Bassita v Uganda S.C. Criminal Appeal No. 35 of 1995 , the Supreme Court of Uganda held that sexual intercourse or penetration may be proved by direct or circumstantial evidence. Victim testimony, corroborated by medical evidence, is sufficient to establish penetration beyond reasonable doubt. It is not necessary that medical evidence identify the precise cause of the injury, provided it is consistent with the victim’s account.
The appellant contends that the medical report produced by PW2 did not identify the cause of the torn hymen and argues that this could have resulted from other activities such as bicycle riding or masturbation. The Respondent, however, submits that the medical examination confirmed the hymen was broken and the victim testified that the appellant caused the injury through sexual intercourse.
The complainant testified that she had been married off to the appellant by her grandparents and cohabited with him as husband and wife. She described repeated acts of sexual intercourse, specifying that the appellant would undress her, remove his penis, and insert it into her vagina. This testimony was corroborated by medical evidence from PW3, whose examination of the complainant revealed a torn hymen, described as “old looking,”. The evidence indicates repeated sexual activity, consistent with the complainant’s account.
The appellant’s denial of the offence was not credible for several reasons. Firstly, he acknowledged questioning the complainant about her consent to the marriage, to which she affirmed agreement. Secondly, the appellant’s defense included the claim that he was lured to the police station by Maximilla, during which he overheard her instruct the complainant to falsely state that he had been defiling her for two months. Despite this, the appellant accompanied them to the police station. These factors undermine his credibility.
The Court concludes that the element of penetration was sufficiently established through the combined testimony of the complainant and corroborating medical evidence.
The appellant further contends that the medical report was irregularly produced by PW3, who was not the maker of the document, thereby contravening the provisions of Section 77 of the Evidence Act. It is a settled principle that documentary evidence ought, as a general rule, to be produced by its maker to ensure the authenticity and reliability of the contents. Nevertheless, the law recognizes certain exceptions under Section 33 of the Evidence Act, Cap. 80 Laws of Kenya, which permit the production of a document by a person other than its maker where it is demonstrated that the maker is deceased, cannot be traced, is incapable of giving evidence, or where securing their attendance would occasion unreasonable delay or expense in the circumstances of the case.
Regarding the production of the medical report by PW3, the Court notes that the original maker of the report had transferred to another jurisdiction. In the Court’s view, this circumstance falls within the exception contemplated under Section 33 of the Evidence Act, which permits the production of a document by a person other than its maker when the latter is unavailable or cannot reasonably be procured to testify. Accordingly, the production of the medical report by PW3 was not irregular in law.
Whether the appellant was denied the opportunity to call witnesses
A review of the record shows that on 6/11/2024, the appellant indicated that he was not ready to proceed because his witness, Kennedy Barasa, was at Kitale Main Prison. This witness later testified as DW2, demonstrating that the appellant was afforded the opportunity to call witnesses. There is no evidence to support a claim that the appellant was denied this right.
Whether the appellant’s right to legal representation was violated
The appellant alleges that his constitutional rights under Articles 50(2)(g) and 50(2)(h) of the Constitution were violated. Article 50(2)(g) guarantees every accused person the right to choose, and be represented by, an advocate and to be informed of that right promptly. Article 50(2)(h), on the other hand, secures the right to legal representation at the State’s expense where substantial injustice would otherwise result, and obliges the court to inform the accused promptly of that entitlement. These constitutional guarantees are buttressed by the Legal Aid Act, No. 6 of 2016, which establishes the National Legal Aid Service and imposes upon courts a duty to inform unrepresented accused persons of their right to legal aid.
The Supreme Court in Republic v Karisa Chengo & 2 Others [2017] eKLR underscored that, while the right to legal representation is a fundamental component of a fair trial, the right to State-funded counsel is not absolute. It arises only in circumstances where substantial injustice is likely to occur, having regard to factors such as the gravity and complexity of the offence, the severity of the potential sentence, and the accused person’s ability to effectively conduct their own defense.
Similarly, in Vincent Obulemere v Republic [2022] eKLR , the Court reiterated that trial courts bear an obligation to inform every unrepresented accused person of their right to legal representation and, where circumstances warrant, to legal aid at the State’s expense, particularly in serious or complex cases.
In the present matter, although the record does not expressly show that the appellant was formally advised of his right to legal representation, the proceedings reveal that he actively participated in cross-examination and conducted his defense with reasonable competence. In the circumstances, the Court is not persuaded that the omission occasioned any substantial injustice. Consequently, this ground of appeal is devoid of merit and fails.
Whether the sentence meted on the appellant was harsh and excessive
The victim’s age was determined to be 15 years, and the appellant did not challenge this. Section 8(3) of the Sexual Offences Act prescribes a minimum sentence of twenty years’ imprisonment for defilement of a child aged between twelve and fifteen years.
In Bernard Kimani Gacheru v Republic [2002] eKLR , the Court of Appeal held that appellate intervention on sentence is warranted only where the sentence is manifestly excessive, material factors were overlooked, or incorrect principles were applied. Even where the appellate court might have imposed a different sentence, that alone is insufficient to interfere with the trial court’s discretion.
Here, the sentence imposed was more by five years of the statutory minimum. The constitution, article 50(2)p guarantees to the appellant the least of the prescribed sentence. Because the sexual offences Act prescribe 20 years as the minimum, he was entitled to no more than that period. That the trial court imposed a longer duration is ipso fact demonstration of an excessive sentence. To that extent, the sentence is set aside and substituted with a period of 20 years to be computed from the date of his arrest, 27.01.2023.
Consequently, and for the foregoing reasons, the Court finds no merit in the appeal against conviction, but sets aside the sentence of 25 years and substitutes therefore a period of 20 years in accordance with article 50(2)p of the constitution.
The appeal succeeds to that extent only.
Dated, signed and delivered Virtually this 21 st day of November 2025
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