REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E049 OF 2024
DOMINIC MUNIALO EZEKIEL alias TOM……………..…APPELLANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
(Being an appeal against the conviction and sentence in Sexual Offences Case No. E080 of 2022 at the Senior Principal Magistrates Court at Kimilili by Hon. W.K.Onkunya-PM delivered on 11th April 2024.)
JUDGMENT
A. BACKGROUND
1. The Appellant herein was 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 being that on 20th January 2024 at 1600hours, at (particulars withheld) area in Namubila Location, Bungoma West Sub-County within Bungoma County, he intentionally and unlawfully caused his penis to penetrate the vagina of L.W a child of 14 years.
2. The Appellant equally faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) Sexual Offences Act. No. 3 of 2006. The particulars of the offence were more less the same.
3. The Appellant pleaded not guilty to the offences. The Respondent called Six (6) witnesses in support of its case and in his defense, the Appellant gave sworn testimony and called three witnesses.
4. At the conclusion of the trial, the Court found that the Respondent had proved it’s case against the Appellant beyond reasonable doubt. The Appellant was convicted and sentenced to serve Ten (10) years in prison.
B. APPEAL
5. Aggrieved by the conviction and sentence, the Appellant filed his undated Petition of Appeal, in which he raised the following grounds of appeal:
a. That the trial Magistrate to grossly erred in law and facts by convicting the Appellant on contradictory, inconsistency and uncorroborated evidence which meant the witness was not credible.
b. That this Court didn’t highlight to the Appellant on how serious the offence is or the magnitude of the offence.
c. That the case against the Appellant was not proved beyond reasonable doubt by extraction of spermatozoa for the purposes of DNA tests as provided in Section 36 (1) of the Sexual Offences Act No. 3 of 2006.
d. That the learned trial Magistrate erred in law and facts by failing to consider that there were no reliable forensic investigations to the matter.
6. The Appellant prayed that this Honourable Court grants him another chance of exercising his constitutional enshrined rights under Article 50(2) by ordering a retrial of the case.
7. The appeal was canvassed by way of written submissions. Both parties complied with the Court directive.
8. The duty of a first appellate Court was restated in the case of David Njuguna Wairimu vs. Republic [2010] eKLR wherein the Court of Appeal cited the case of Okeno v. R [1972] EA. 32 and held thus: -
“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
C. EVIDENCE
C.1 Respondent’s case
9. The Complainant testified as PW1 had stated that she was a class 8 student at (particulars withheld) Primary School. She recalled that between 1st January 2022 and 24th October 2022, while staying with her uncle, the Appellant herein, and his wife, the Appellant’s wife eventually travelled to Saudi Arabia and she had remained with the Appellant and his children. She told the Court that she had been the one that handled all the house chores and catering to the Appellant’s children. That when it was her time to rest at night, the Appellant would go to where she slept, hold her and eventually have sexual intercourse with her. She told the Court that she had begged the Appellant to stop but he had refused and would even have sexual intercourse with her before she went to school in the mornings. She told the Court that the Appellant had started having sex with her since she was in class 6 and that the sexual acts were forced and unprotected. It was her testimony that the Appellant had sexual intercourse with her from the time when she was in class six to class seven and it had gotten to a point she had decided to share what she had been going through with her teachers who took her to the police station and the Appellant was later apprehended. She was later taken to the hospital for examination. It was her testimony that she had started staying with the Appellant since she was in class 3.
10. On cross-examination, she told the Court that she had been assaulted by CPL Chebet because the police thought she had been lying, and that she had never committed any abortion.
11. On re-examination, she told the Court that she had never gotten pregnant and had never committed any abortion.
12. PW2, Virginia Kageha Agesa, testified that she was a headteacher at (particulars withheld) Primary School and had been previously stationed at (particulars withheld) Primary School. According to her, the Complainant herein had been in class 7 the previous year and after the normal gender-based violence and guiding, and counselling sessions with students by a group of visiting officers, the Complainant had requested to speak privately with one of the officers who was part of the programme and she had divulged to the officers that she was currently residing with her father’s brother, the Appellant herein, and that he had defiled her more than once. She had requested the help of the officers who took up the case. As the officer was a police man he took the Complainant herein to Kimilili Sub-County Hospital through the children’s officer for examination. She told the Court that the Complainant had explained to them that she had conceived in June 2022 and that she had procured an abortion through a cousin of the Appellant, who had taken her to Lugulu Hospital where she learnt she was pregnant and had lost the baby.
13. On cross-examination, she told the Court that the Complainant had lodged her report with the Gender Based Violence Officers and that she had never seen the Appellant before as he had never attended meetings as a guardian and that she had never told the Complainant to lie about the defilement.
14. PW3, No. 240322 Inspector Francis Kiraithe, testified that he had been stationed at Kamukuywa Police Station at the material times. He recalled on 1st November 2022, he had been summoned by his OCS to take up investigation of two persons involved in defilement of minors. He was ordered to proceed to the station then to the scene. While in the company of 3 of his colleagues and one village administrator, they went to the scene in (particulars withheld) village Kimakwa Sub-Location and found a village elder who directed them to the relevant house, wherein they apprehended the suspect. They later on proceeded to the second house and arrested the 2nd suspect and they found a minor, girl, who he later established was the Complainant. They then proceeded to Kamukuywa Police Station where the OCS assigned two officers to escort the two suspects to Kimilili Police Station. He told the Court that he did not know the suspects names and it was at night, thus he could not identify them and that he did not know the Appellant. He told the Court that he could identify the small girl.
15. On cross-examination, he told the Court that he had arrested the suspects while they were in their houses sleeping and the minor was also sleeping on the floor at the sitting area alone.
16. PW4, No. 231114 P.C. Mark Barasa, testified that he was based at Kamukuywa Police Station and that on 1st November 2022, at around 7.00 p.m. acting on the instructions of PW3 he proceeded to the station where he found his other colleagues. The OCS briefed them that they were to go and make some arrests in (particulars withheld) area and the village administrator who was accompanying them notified them that they were to arrest of two suspects in regards to the offence of defilement. That they made the first arrest and proceeded to conduct the 2nd one who is the Appellant in this appeal. He told the Court that they took both the Complainant and Appellant herein into custody, booked the Appellant at Kimilili Police Station and the minor as she needed care and protection. He told the Court that he knew the Appellant as he was the person he had arrested but did not know his name.
17. On cross-examination, he told the Court that they apprehended the Appellant and that during the process they observed that there were children sleeping in the sitting room while the Appellant slept in the bedroom.
18. PW5, Silas Sitemu, testified that he was a Clinical Officer based at Kimilili Sub-County Hospital. He told the Court that the Complainant was brought to hospital on 30th November 2022, with a history of defilement by a person well known to her who also forced her to conduct an abortion in June 2022. According to him, the Complainant had divulged that the defilement had occurred severally and that she had informed her teachers during guidance and counselling sessions. On examination, he observed that she had been in fair general condition. On genitalia examination, he observed that the genitalia had been normal with no tear or laceration on the labia majora, minora and cervix. The hymen had not been intact and it had old margin and there had no discharge. He told the Court that the Complainant had not been given antibiotics, painkillers and PEP and he classified her injuries as harm. On laboratory examination, her urinalysis had indicated presence of epithelial and puss cells. He noted there was a positive report from the Complainant and the teacher that she had had an abortion at a facility in Lugulu and the same had been facilitated by the Appellant herein after she had tested positive for pregnancy at a dispensary in Kamukuywa. His prognosis was that the Complainant herein had been defiled. He availed the Complainant’s treatment notes and P3 form filled on 30th November 2022 as PEXH 1 and PEXH 2 respectively.
19. On cross-examination, he told the Court that it was the Complainant who had told him that she had tested positive for pregnancy and that it was the Appellant who had aided in the termination of the same at a facility in Lugulu and as the same had happened a long time ago and a test could not verify. He told the Court that as per his examination of the Complainant’s hymen was not intact.
20. PW6, Woman PC Rose Chepngetich, testified that she was attached to Kimilil Police Station performing children and gender duties. She recalled on 1st November 2022 at around 1800 hours while at the office a case of defilement was reported and her OCS instructed her to investigate the same. According to her, the Complainant was accompanied to the Station by headteacher and she recorded her statement. That the Complainant stated that she was initially residing with her grandmother prior to her demise and thereafter she was taken in by the Appellant herein, who is her paternal uncle. She established that in early January 2022, the wife of the Appellant relocated to Saudi Arabia and she remained with the Appellant and her cousins. The Complainant used to sleep in the sitting area while the others used to sleep in the bedroom. The Complainant told her that the Appellant used to defile her in the sitting room then head back to his bedroom and this happened on several occasions, and that it was during one of the school’s guiding and counselling sessions that she decided to open up to the headteacher. That a report was then lodged at the police station. She proceeded to record the headteacher’s statement and that of other witnesses and later the Appellant was apprehended. At the completion of her investigations, she proceeded to institute defilement charges against the Appellant and opened a file for child in need of care and protection for the Complainant. She told the Court that at the time of the incident the Complainant was 14 years old. She produced before this Court a letter from the School dated 2nd January 2022 as PEXH 3.
21. On cross-examination, she told the Court that the Appellant started to reside with the Complainant in January and the hospital verified that she was defiled.
22. On 27th July 2023, the Respondent availed the Complainant’s age assessment form which indicated that the minor is 16 years old. The age assessment form dated 24th July 2023 was produced in Court as PEXH 4.
23. At the close of the Respondent’s case, the Appellant was found to have a case to answer and was thus placed on his defence whereupon he tendered his sworn evidence wherein he denied committing the alleged offence and maintained that the he had never mistreated the Complainant and that she used to sleep in the sitting area with his other children. He claimed that the village administrator had requested a bribe of Kshs. 200,000/= to have the issue withdrawn from Court. He told the Court that the Complainant herein poisoned his children.
24. On cross -examination, he maintained that the offence levelled against him was false.
25. DW2, Jane Munialo, testified that the Complainant herein was her eldest granddaughter and that due to her bad behavior she had decided to send her to reside with the Appellant herein. She insisted that the charges against the Appellant, her son, were false as the Appellant was not capable of defilement.
26. On cross-examination, she told the Court that the Complainant was then 18 years old.
27. DW3, Nyongesa Gideon, testified that the Appellant was his neighbor and that the charges of defilement levelled against him were false as he had never known the Appellant to be of wayward character.
28. On cross-examination, he told the Court that on the dates between 1st January 2022 to 24th October 2022, he could not testify as to what transpired in the Appellant’s house and could not verify that the Appellant defiled the Complainant.
29. DW4, Rachel Naswa Wanyonyi, testified that the Appellant herein was her brother-in-law and that she was the mother of the Complainant. She told the Court that she had differed with the late father of the Victim and left, thereafter the Appellant had visited her parent’s home and had requested her to give him the Complainant so that he could educate her. She maintained that she had never heard of the Appellant committing such an offence and found it impossible for her in-law to defile her child and he had known him for long.
ISSUES FOR DETERMINATION
30. I have considered the proceedings before the trial Court, the rival submissions of parties and the grounds of Appeal and the issues that emerge for determination are :
a. Whether the Respondent proved its case to the desired threshold;
b. Whether the sentence meted upon the Appellant was appropriate.
ANALYSIS AND DETERMINATION
a. Whether the Respondent proved its case to the desired threshold;
31. In the case of Pandya v Republic [1957] E.A 336, the Court held that:
“14. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8 (1) of the Sexual Offences Act No.3 of 2006.”
32. Subject to the above, the ingredients which the Respondent is supposed to prove in order to secure a conviction are:-
a. Age of the victim
b. Penetration
c. Identification or recognition of the perpetrator
Proof of Age:
33. The age of the victim of a sexual offence is determined by medical evidence or any other credible evidence; it may also be proved by the evidence of the parent, birth certificate or Immunization Card.
34. In the case of Omoroni-v- Uganda, Court of Appeal No. 2/2000. It is was held that-
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from the medical evidence, age may also be proved birth certificate, the victims’ parents or guardian and by observation and common sense.”
35. In this case the Respondent discharged the burden to prove the age of the Complainant by conducting an age assessment examination on 24th July 2023. The age assessment form was produced in Court on 27th July 2023, as PEXH 4 and the proved that as at 24th July 2023, the victim was aged 16 years which means that at the time the offence was first committed on 1st January 2022, the Complainant had been 15 years old. The trial Court noted the same. This evidence must be taken to be the correct age of the Complainant. The Appellant has not disputed the age of the Complainant. I find that the Respondent established that the Complainant herein was a minora at all material times.
Penetration
36. Penetration is proved by the evidence of the Complainant corroborated by medical evidence. The twin evidence on penetration was adduced by the Complainant and the clinical officer’s evidence (PW5). The Complainant told the Court that she had been handling all the house chores and catering to the Appellant’s children and her studies and when it was her time to sleep at night the Appellant would go to where she slept, hold her and eventually have sexual intercourse with her. She told the Court that she begged the Appellant to stop but he refused and would even have sexual intercourse with her before she went to school. She told the Court that the Appellant started having sex with her since she was in class 6 and the sexual acts were forced and unprotected. She told the Court that the Appellant had sexual intercourse with her from when she was in class six to class seven and it got to a point she decided to share what she was going through with a police officer who had gone to guide and counsel studenst on gender based vilence.
37. PW5 the Clinical Officer corroborated the evidence of the victim. It was his testimony that he examined the victim on 30th November 2022, who had a history of defilement by a person well known to her who also forced her to conduct an abortion in June 2022. He had observed that the victim’s genitalia was normal, had no tear or laceration on the labia majora, minora and cervix. The hymen was not intact and it had old margin and there was no discharge. That the Complainant was given antibiotics, painkillers and PEP and he classified her injuries as harm. On laboratory examination, her urinalysis indicated presence of epithelial and puss cells. He had concluded that the victim had been defiled. He produced the victim’s treatment notes as PEX2 and the P3 form as PEX2.
38. The Appellant in his defence insisted that he did not defile the Complainant herein and based the charges against him as false. On perusing his Appeal written submissions he did not submit on this heading.
39. In the case of J.O.O. vs Republic [2015] eKLR the Court held that: -
“ There is also the presence of the epithelial cells when PW5 took a vaginal swab on the complainant. That indicated that the complainant had indeed engaged in a sexual act with a person of the opposite sex. However, it was not revealed how long such cells can remain alive upon intercourse. On a reconsideration of the evidence on this issue in totality, I have to return the finding that there was proof that the complainant had engaged in a sexual intercourse as evidenced by the presence of the epithelial cells in her vagina hence penetration was proved.”
40. I hereby find that penetration had been proved.
Identification of the Perpetrator
41. The Respondent’s case is that the Appellant was known to the Complainant as they were related, the Complainant referred to the Appellant as his paternal uncle as he was the brother to her late father. It is trite law that recognition of an offender is more reliable than identification. The Appellant has not denied that he was well known to the Complainant. The Appellant was arrested at the scene as per the testimony of the PW4 and they found the Complainant lying all by herself on a mattress in the sitting area while the others slept in the bedroom. The identification of the perpetrator was proved to the required standard. The appellant in his defence admitted that he was arrested at the scene, but maintained that the police officers had mistook him for one Tom. The Complainant had testified that the Appellant had defiled her severally and that she had resided with the Appellant ever since she was in class 3. This means that the evidence presented by the Respondent was not merely that of identification but of recognition. I find guidance in the principles set out in the English case of R. vs Turnbull (1971) QR 227.
42. It is also accepted in law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59).
43. I find that the Respondent proved all the ingredients of defilement against the Appellant beyond any reasonable doubts.
44. The record shows that the learned trial magistrate considered the defence of the Appellant at length and gave reasons for rejecting it and the fact that he made allegations that the Complainant poisoned his children but failed to avail any evidence towards the same.
45. On the issue of Article 50(2) of the Constitution of Kenya. The Appellant alleged that he was not informed on the gravity of the offence he was facing and I note that he did not proceed to submit on the same issue. Notably, Article 50(2)(h) of the Constitution of Kenya states that:-
“Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly”.
46. As can be seen hereinabove, the Appellant herein was charged with the offence of sexual assault and an alternative charge of committing an indecent act with a child. A perusal of the proceedings did not show that he requested the trial Court to be provided with any legal representation and his request had been declined or that he had demonstrated that he was likely to suffer substantial injustice if the trial proceeded without legal representation. As this issue was not raised during trial when the trial Court was expected to have pronounced itself on the same, it not be raised and considered on appeal.
47. Be that as it may, this Court found it necessary to pronounce itself on the duty of a trial Court to inform an Appellant of his or her right to legal representation. There was no indication that the trial Court informed of him right to be represented by counsel. This was a great omission on part of the trial Court as the obligation to inform him was mandated by Article 50(2)(h) of the Constitution of Kenya.
48. Having said so, it is not always that such omission must cause an accused person injustice. This is because injustice can be remedied through re-call of witnesses when an accused person subsequently becomes represented by counsel or by way of a re-trial on appeal if is demonstrated that such accused person’s right to fair trial had been infringed upon and/or breached and/or if he had suffered prejudice due to such omission by the trial Court.
49. Going further, the right to legal representation at the State’s expense under Article 50(2)(h) of the Constitution of Kenya is limited to certain categories. The said Article 50(2)(h) of the Constitution of Kenya stipulates as follows:-
“Every accused person has the right to a fair trial, which includes the right to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”
50. Legal representation at the State’s expense is currently accorded to accused persons who face capital offences where the sentence is death. This is a progressive right due to scarcity of resources by the State for funding pro bona advocates.
51. I have also considered the conduct of the trial Court and I note that the Appellant was duly informed of the charges against him in a language that he understood and was also furnished with the all the documentary evidence that the Respondent had intended to rely on. I therefore find that the Appellant was aware of the case against him as he correctly stated in his defence. I note that he also competently cross-examined all the Respondent witnesses which is an indication that he comprehended the proceedings before the trial Court.
52. Further, it is my finding that the mere failure, by the trial Court, to inform the Appellant of his right to legal representation was not fatal to the outcome of the case. This finding is fortified by the fact that the charge that the Appellant faced trial was not capital in nature so as necessitate the mandatory requirement that the Appellant be accorded legal representation. I therefore find that the test of substantial injustice fails and hold that the trial was conducted in a fair and just manner. I do not find any evidence of violation of the Appellant’s right to legal counsel or fair trial.
b. Whether the sentence meted upon the Appellant was appropriate
53. Under Section 8 (3) of the Sexual Offences Act, a person who commits an offence of defilement with a child between the age of Twelve (12) and Fifteen years (15) is liable upon conviction to imprisonment for a term of not less than Twenty (20) years. The trial Court in this instance proceeded to issue a sentence of Ten (10) years. The Respondent in its written submissions beseeched this Court to enhance the Appellant’s sentence to Thirty (30) years. The Court of Appeal in J.J.W. v Republic [2013] eKLR held as follows as to enhancement of the sentence by the High Court;
“It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.”
54. It is clear from the record that the Respondent seeks enhancement of the sentence as issued by the trial Court through its written submissions which were filed after the Appellant filed his respective written submissions. It is clear the Respondent did not file any cross-appeal. The Appellant was also not warned by this Court on probability of enhancing his sentence. In order not to prejudice the Appellant, I will be reluctant to interfere with the sentences meted save to say that the Appellant is lucky to escape the mandatory sentences that would have been applicable.
55. In conclusion I do find that this appeal is devoid of merit and I hereby dismissin it in its entirety.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 14th day of November 2025.
M.S.Shariff
Judge
In the presence of:
Appellant Apprearing Virtually
M/S Kibet For Respondent
Peter Machoni Court Assistant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CRIMINAL APPEAL NO. E049 OF 2024
DOMINIC MUNIALO EZEKIEL alias TOM……………..…APPELLANT
VERSUS
REPUBLIC……………………………………………………..RESPONDENT
(Being an appeal against the conviction and sentence in Sexual Offences Case No. E080 of 2022 at the Senior Principal Magistrates Court at Kimilili by Hon. W.K.Onkunya-PM delivered on 11th April 2024.)
JUDGMENT
A. BACKGROUND
1. The Appellant herein was 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 being that on 20th January 2024 at 1600hours, at (particulars withheld) area in Namubila Location, Bungoma West Sub-County within Bungoma County, he intentionally and unlawfully caused his penis to penetrate the vagina of L.W a child of 14 years.
2. The Appellant equally faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) Sexual Offences Act. No. 3 of 2006. The particulars of the offence were more less the same.
3. The Appellant pleaded not guilty to the offences. The Respondent called Six (6) witnesses in support of its case and in his defense, the Appellant gave sworn testimony and called three witnesses.
4. At the conclusion of the trial, the Court found that the Respondent had proved it’s case against the Appellant beyond reasonable doubt. The Appellant was convicted and sentenced to serve Ten (10) years in prison.
B. APPEAL
5. Aggrieved by the conviction and sentence, the Appellant filed his undated Petition of Appeal, in which he raised the following grounds of appeal:
a. That the trial Magistrate to grossly erred in law and facts by convicting the Appellant on contradictory, inconsistency and uncorroborated evidence which meant the witness was not credible.
b. That this Court didn’t highlight to the Appellant on how serious the offence is or the magnitude of the offence.
c. That the case against the Appellant was not proved beyond reasonable doubt by extraction of spermatozoa for the purposes of DNA tests as provided in Section 36 (1) of the Sexual Offences Act No. 3 of 2006.
d. That the learned trial Magistrate erred in law and facts by failing to consider that there were no reliable forensic investigations to the matter.
6. The Appellant prayed that this Honourable Court grants him another chance of exercising his constitutional enshrined rights under Article 50(2) by ordering a retrial of the case.
7. The appeal was canvassed by way of written submissions. Both parties complied with the Court directive.
8. The duty of a first appellate Court was restated in the case of David Njuguna Wairimu vs. Republic [2010] eKLR wherein the Court of Appeal cited the case of Okeno v. R [1972] EA. 32 and held thus: -
“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.”
C. EVIDENCE
C.1 Respondent’s case
9. The Complainant testified as PW1 had stated that she was a class 8 student at (particulars withheld) Primary School. She recalled that between 1st January 2022 and 24th October 2022, while staying with her uncle, the Appellant herein, and his wife, the Appellant’s wife eventually travelled to Saudi Arabia and she had remained with the Appellant and his children. She told the Court that she had been the one that handled all the house chores and catering to the Appellant’s children. That when it was her time to rest at night, the Appellant would go to where she slept, hold her and eventually have sexual intercourse with her. She told the Court that she had begged the Appellant to stop but he had refused and would even have sexual intercourse with her before she went to school in the mornings. She told the Court that the Appellant had started having sex with her since she was in class 6 and that the sexual acts were forced and unprotected. It was her testimony that the Appellant had sexual intercourse with her from the time when she was in class six to class seven and it had gotten to a point she had decided to share what she had been going through with her teachers who took her to the police station and the Appellant was later apprehended. She was later taken to the hospital for examination. It was her testimony that she had started staying with the Appellant since she was in class 3.
10. On cross-examination, she told the Court that she had been assaulted by CPL Chebet because the police thought she had been lying, and that she had never committed any abortion.
11. On re-examination, she told the Court that she had never gotten pregnant and had never committed any abortion.
12. PW2, Virginia Kageha Agesa, testified that she was a headteacher at (particulars withheld) Primary School and had been previously stationed at (particulars withheld) Primary School. According to her, the Complainant herein had been in class 7 the previous year and after the normal gender-based violence and guiding, and counselling sessions with students by a group of visiting officers, the Complainant had requested to speak privately with one of the officers who was part of the programme and she had divulged to the officers that she was currently residing with her father’s brother, the Appellant herein, and that he had defiled her more than once. She had requested the help of the officers who took up the case. As the officer was a police man he took the Complainant herein to Kimilili Sub-County Hospital through the children’s officer for examination. She told the Court that the Complainant had explained to them that she had conceived in June 2022 and that she had procured an abortion through a cousin of the Appellant, who had taken her to Lugulu Hospital where she learnt she was pregnant and had lost the baby.
13. On cross-examination, she told the Court that the Complainant had lodged her report with the Gender Based Violence Officers and that she had never seen the Appellant before as he had never attended meetings as a guardian and that she had never told the Complainant to lie about the defilement.
14. PW3, No. 240322 Inspector Francis Kiraithe, testified that he had been stationed at Kamukuywa Police Station at the material times. He recalled on 1st November 2022, he had been summoned by his OCS to take up investigation of two persons involved in defilement of minors. He was ordered to proceed to the station then to the scene. While in the company of 3 of his colleagues and one village administrator, they went to the scene in (particulars withheld) village Kimakwa Sub-Location and found a village elder who directed them to the relevant house, wherein they apprehended the suspect. They later on proceeded to the second house and arrested the 2nd suspect and they found a minor, girl, who he later established was the Complainant. They then proceeded to Kamukuywa Police Station where the OCS assigned two officers to escort the two suspects to Kimilili Police Station. He told the Court that he did not know the suspects names and it was at night, thus he could not identify them and that he did not know the Appellant. He told the Court that he could identify the small girl.
15. On cross-examination, he told the Court that he had arrested the suspects while they were in their houses sleeping and the minor was also sleeping on the floor at the sitting area alone.
16. PW4, No. 231114 P.C. Mark Barasa, testified that he was based at Kamukuywa Police Station and that on 1st November 2022, at around 7.00 p.m. acting on the instructions of PW3 he proceeded to the station where he found his other colleagues. The OCS briefed them that they were to go and make some arrests in (particulars withheld) area and the village administrator who was accompanying them notified them that they were to arrest of two suspects in regards to the offence of defilement. That they made the first arrest and proceeded to conduct the 2nd one who is the Appellant in this appeal. He told the Court that they took both the Complainant and Appellant herein into custody, booked the Appellant at Kimilili Police Station and the minor as she needed care and protection. He told the Court that he knew the Appellant as he was the person he had arrested but did not know his name.
17. On cross-examination, he told the Court that they apprehended the Appellant and that during the process they observed that there were children sleeping in the sitting room while the Appellant slept in the bedroom.
18. PW5, Silas Sitemu, testified that he was a Clinical Officer based at Kimilili Sub-County Hospital. He told the Court that the Complainant was brought to hospital on 30th November 2022, with a history of defilement by a person well known to her who also forced her to conduct an abortion in June 2022. According to him, the Complainant had divulged that the defilement had occurred severally and that she had informed her teachers during guidance and counselling sessions. On examination, he observed that she had been in fair general condition. On genitalia examination, he observed that the genitalia had been normal with no tear or laceration on the labia majora, minora and cervix. The hymen had not been intact and it had old margin and there had no discharge. He told the Court that the Complainant had not been given antibiotics, painkillers and PEP and he classified her injuries as harm. On laboratory examination, her urinalysis had indicated presence of epithelial and puss cells. He noted there was a positive report from the Complainant and the teacher that she had had an abortion at a facility in Lugulu and the same had been facilitated by the Appellant herein after she had tested positive for pregnancy at a dispensary in Kamukuywa. His prognosis was that the Complainant herein had been defiled. He availed the Complainant’s treatment notes and P3 form filled on 30th November 2022 as PEXH 1 and PEXH 2 respectively.
19. On cross-examination, he told the Court that it was the Complainant who had told him that she had tested positive for pregnancy and that it was the Appellant who had aided in the termination of the same at a facility in Lugulu and as the same had happened a long time ago and a test could not verify. He told the Court that as per his examination of the Complainant’s hymen was not intact.
20. PW6, Woman PC Rose Chepngetich, testified that she was attached to Kimilil Police Station performing children and gender duties. She recalled on 1st November 2022 at around 1800 hours while at the office a case of defilement was reported and her OCS instructed her to investigate the same. According to her, the Complainant was accompanied to the Station by headteacher and she recorded her statement. That the Complainant stated that she was initially residing with her grandmother prior to her demise and thereafter she was taken in by the Appellant herein, who is her paternal uncle. She established that in early January 2022, the wife of the Appellant relocated to Saudi Arabia and she remained with the Appellant and her cousins. The Complainant used to sleep in the sitting area while the others used to sleep in the bedroom. The Complainant told her that the Appellant used to defile her in the sitting room then head back to his bedroom and this happened on several occasions, and that it was during one of the school’s guiding and counselling sessions that she decided to open up to the headteacher. That a report was then lodged at the police station. She proceeded to record the headteacher’s statement and that of other witnesses and later the Appellant was apprehended. At the completion of her investigations, she proceeded to institute defilement charges against the Appellant and opened a file for child in need of care and protection for the Complainant. She told the Court that at the time of the incident the Complainant was 14 years old. She produced before this Court a letter from the School dated 2nd January 2022 as PEXH 3.
21. On cross-examination, she told the Court that the Appellant started to reside with the Complainant in January and the hospital verified that she was defiled.
22. On 27th July 2023, the Respondent availed the Complainant’s age assessment form which indicated that the minor is 16 years old. The age assessment form dated 24th July 2023 was produced in Court as PEXH 4.
23. At the close of the Respondent’s case, the Appellant was found to have a case to answer and was thus placed on his defence whereupon he tendered his sworn evidence wherein he denied committing the alleged offence and maintained that the he had never mistreated the Complainant and that she used to sleep in the sitting area with his other children. He claimed that the village administrator had requested a bribe of Kshs. 200,000/= to have the issue withdrawn from Court. He told the Court that the Complainant herein poisoned his children.
24. On cross -examination, he maintained that the offence levelled against him was false.
25. DW2, Jane Munialo, testified that the Complainant herein was her eldest granddaughter and that due to her bad behavior she had decided to send her to reside with the Appellant herein. She insisted that the charges against the Appellant, her son, were false as the Appellant was not capable of defilement.
26. On cross-examination, she told the Court that the Complainant was then 18 years old.
27. DW3, Nyongesa Gideon, testified that the Appellant was his neighbor and that the charges of defilement levelled against him were false as he had never known the Appellant to be of wayward character.
28. On cross-examination, he told the Court that on the dates between 1st January 2022 to 24th October 2022, he could not testify as to what transpired in the Appellant’s house and could not verify that the Appellant defiled the Complainant.
29. DW4, Rachel Naswa Wanyonyi, testified that the Appellant herein was her brother-in-law and that she was the mother of the Complainant. She told the Court that she had differed with the late father of the Victim and left, thereafter the Appellant had visited her parent’s home and had requested her to give him the Complainant so that he could educate her. She maintained that she had never heard of the Appellant committing such an offence and found it impossible for her in-law to defile her child and he had known him for long.
ISSUES FOR DETERMINATION
30. I have considered the proceedings before the trial Court, the rival submissions of parties and the grounds of Appeal and the issues that emerge for determination are :
a. Whether the Respondent proved its case to the desired threshold;
b. Whether the sentence meted upon the Appellant was appropriate.
ANALYSIS AND DETERMINATION
a. Whether the Respondent proved its case to the desired threshold;
31. In the case of Pandya v Republic [1957] E.A 336, the Court held that:
“14. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8 (1) of the Sexual Offences Act No.3 of 2006.”
32. Subject to the above, the ingredients which the Respondent is supposed to prove in order to secure a conviction are:-
a. Age of the victim
b. Penetration
c. Identification or recognition of the perpetrator
Proof of Age:
33. The age of the victim of a sexual offence is determined by medical evidence or any other credible evidence; it may also be proved by the evidence of the parent, birth certificate or Immunization Card.
34. In the case of Omoroni-v- Uganda, Court of Appeal No. 2/2000. It is was held that-
“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from the medical evidence, age may also be proved birth certificate, the victims’ parents or guardian and by observation and common sense.”
35. In this case the Respondent discharged the burden to prove the age of the Complainant by conducting an age assessment examination on 24th July 2023. The age assessment form was produced in Court on 27th July 2023, as PEXH 4 and the proved that as at 24th July 2023, the victim was aged 16 years which means that at the time the offence was first committed on 1st January 2022, the Complainant had been 15 years old. The trial Court noted the same. This evidence must be taken to be the correct age of the Complainant. The Appellant has not disputed the age of the Complainant. I find that the Respondent established that the Complainant herein was a minora at all material times.
Penetration
36. Penetration is proved by the evidence of the Complainant corroborated by medical evidence. The twin evidence on penetration was adduced by the Complainant and the clinical officer’s evidence (PW5). The Complainant told the Court that she had been handling all the house chores and catering to the Appellant’s children and her studies and when it was her time to sleep at night the Appellant would go to where she slept, hold her and eventually have sexual intercourse with her. She told the Court that she begged the Appellant to stop but he refused and would even have sexual intercourse with her before she went to school. She told the Court that the Appellant started having sex with her since she was in class 6 and the sexual acts were forced and unprotected. She told the Court that the Appellant had sexual intercourse with her from when she was in class six to class seven and it got to a point she decided to share what she was going through with a police officer who had gone to guide and counsel studenst on gender based vilence.
37. PW5 the Clinical Officer corroborated the evidence of the victim. It was his testimony that he examined the victim on 30th November 2022, who had a history of defilement by a person well known to her who also forced her to conduct an abortion in June 2022. He had observed that the victim’s genitalia was normal, had no tear or laceration on the labia majora, minora and cervix. The hymen was not intact and it had old margin and there was no discharge. That the Complainant was given antibiotics, painkillers and PEP and he classified her injuries as harm. On laboratory examination, her urinalysis indicated presence of epithelial and puss cells. He had concluded that the victim had been defiled. He produced the victim’s treatment notes as PEX2 and the P3 form as PEX2.
38. The Appellant in his defence insisted that he did not defile the Complainant herein and based the charges against him as false. On perusing his Appeal written submissions he did not submit on this heading.
39. In the case of J.O.O. vs Republic [2015] eKLR the Court held that: -
“ There is also the presence of the epithelial cells when PW5 took a vaginal swab on the complainant. That indicated that the complainant had indeed engaged in a sexual act with a person of the opposite sex. However, it was not revealed how long such cells can remain alive upon intercourse. On a reconsideration of the evidence on this issue in totality, I have to return the finding that there was proof that the complainant had engaged in a sexual intercourse as evidenced by the presence of the epithelial cells in her vagina hence penetration was proved.”
40. I hereby find that penetration had been proved.
Identification of the Perpetrator
41. The Respondent’s case is that the Appellant was known to the Complainant as they were related, the Complainant referred to the Appellant as his paternal uncle as he was the brother to her late father. It is trite law that recognition of an offender is more reliable than identification. The Appellant has not denied that he was well known to the Complainant. The Appellant was arrested at the scene as per the testimony of the PW4 and they found the Complainant lying all by herself on a mattress in the sitting area while the others slept in the bedroom. The identification of the perpetrator was proved to the required standard. The appellant in his defence admitted that he was arrested at the scene, but maintained that the police officers had mistook him for one Tom. The Complainant had testified that the Appellant had defiled her severally and that she had resided with the Appellant ever since she was in class 3. This means that the evidence presented by the Respondent was not merely that of identification but of recognition. I find guidance in the principles set out in the English case of R. vs Turnbull (1971) QR 227.
42. It is also accepted in law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59).
43. I find that the Respondent proved all the ingredients of defilement against the Appellant beyond any reasonable doubts.
44. The record shows that the learned trial magistrate considered the defence of the Appellant at length and gave reasons for rejecting it and the fact that he made allegations that the Complainant poisoned his children but failed to avail any evidence towards the same.
45. On the issue of Article 50(2) of the Constitution of Kenya. The Appellant alleged that he was not informed on the gravity of the offence he was facing and I note that he did not proceed to submit on the same issue. Notably, Article 50(2)(h) of the Constitution of Kenya states that:-
“Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly”.
46. As can be seen hereinabove, the Appellant herein was charged with the offence of sexual assault and an alternative charge of committing an indecent act with a child. A perusal of the proceedings did not show that he requested the trial Court to be provided with any legal representation and his request had been declined or that he had demonstrated that he was likely to suffer substantial injustice if the trial proceeded without legal representation. As this issue was not raised during trial when the trial Court was expected to have pronounced itself on the same, it not be raised and considered on appeal.
47. Be that as it may, this Court found it necessary to pronounce itself on the duty of a trial Court to inform an Appellant of his or her right to legal representation. There was no indication that the trial Court informed of him right to be represented by counsel. This was a great omission on part of the trial Court as the obligation to inform him was mandated by Article 50(2)(h) of the Constitution of Kenya.
48. Having said so, it is not always that such omission must cause an accused person injustice. This is because injustice can be remedied through re-call of witnesses when an accused person subsequently becomes represented by counsel or by way of a re-trial on appeal if is demonstrated that such accused person’s right to fair trial had been infringed upon and/or breached and/or if he had suffered prejudice due to such omission by the trial Court.
49. Going further, the right to legal representation at the State’s expense under Article 50(2)(h) of the Constitution of Kenya is limited to certain categories. The said Article 50(2)(h) of the Constitution of Kenya stipulates as follows:-
“Every accused person has the right to a fair trial, which includes the right to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”
50. Legal representation at the State’s expense is currently accorded to accused persons who face capital offences where the sentence is death. This is a progressive right due to scarcity of resources by the State for funding pro bona advocates.
51. I have also considered the conduct of the trial Court and I note that the Appellant was duly informed of the charges against him in a language that he understood and was also furnished with the all the documentary evidence that the Respondent had intended to rely on. I therefore find that the Appellant was aware of the case against him as he correctly stated in his defence. I note that he also competently cross-examined all the Respondent witnesses which is an indication that he comprehended the proceedings before the trial Court.
52. Further, it is my finding that the mere failure, by the trial Court, to inform the Appellant of his right to legal representation was not fatal to the outcome of the case. This finding is fortified by the fact that the charge that the Appellant faced trial was not capital in nature so as necessitate the mandatory requirement that the Appellant be accorded legal representation. I therefore find that the test of substantial injustice fails and hold that the trial was conducted in a fair and just manner. I do not find any evidence of violation of the Appellant’s right to legal counsel or fair trial.
b. Whether the sentence meted upon the Appellant was appropriate
53. Under Section 8 (3) of the Sexual Offences Act, a person who commits an offence of defilement with a child between the age of Twelve (12) and Fifteen years (15) is liable upon conviction to imprisonment for a term of not less than Twenty (20) years. The trial Court in this instance proceeded to issue a sentence of Ten (10) years. The Respondent in its written submissions beseeched this Court to enhance the Appellant’s sentence to Thirty (30) years. The Court of Appeal in J.J.W. v Republic [2013] eKLR held as follows as to enhancement of the sentence by the High Court;
“It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.”
54. It is clear from the record that the Respondent seeks enhancement of the sentence as issued by the trial Court through its written submissions which were filed after the Appellant filed his respective written submissions. It is clear the Respondent did not file any cross-appeal. The Appellant was also not warned by this Court on probability of enhancing his sentence. In order not to prejudice the Appellant, I will be reluctant to interfere with the sentences meted save to say that the Appellant is lucky to escape the mandatory sentences that would have been applicable.
55. In conclusion I do find that this appeal is devoid of merit and I hereby dismissin it in its entirety.
Orders accordingly.
Delivered, Signed and Dated at Bungoma this 14th day of November 2025.
M.S.Shariff
Judge
In the presence of:
Appellant Apprearing Virtually
M/S Kibet For Respondent
Peter Machoni Court Assistant