INTRODUCTION
1. The Appellant, Gabriel Chengo Ngati, was charged before the Senior Principal Magistrate’s Court at Vihiga in Sexual Offence Case No. E045 of 2023 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.
2. The particulars of the main count were that on diverse dates between the months of August 2023 and September 2023, at Ebusakami Location in Luanda Sub-County within Vihiga County, the Appellant intentionally and unlawfully caused his penis to penetrate the anus of N.E., a child aged twelve (12) years.
3. He faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that on the same diverse dates and at the same place he intentionally and unlawfully touched the anus of the said N.E. with his penis.
4. The Appellant pleaded not guilty to both counts on 18th September 2023. The Prosecution called six witnesses. At the close of its case the trial Court, by a ruling dated 20th March 2025, found a prima facie case established and placed the Appellant on his defence under Section 211 of the Criminal Procedure Code. The Appellant elected to give sworn evidence and called no witnesses, two intended witnesses being respectively deceased and unwell.
5. By a judgment delivered on 6th October 2025 the trial Court convicted the Appellant on the main count and, having done so, treated the alternative count as superfluous. On 10th November 2025, after a presentence report had been called for and considered, the Court sentenced him to ten (10) years’ imprisonment.
6. The Appellant, being dissatisfied with both conviction and sentence, lodged a Petition of Appeal dated 31st December 2025 and filed on 6th January 2026, raising five substantive grounds which may be compressed as follows:
a) That the conviction rested on evidence that did not prove the case beyond reasonable doubt;
b) That the conviction rested on uncorroborated evidence;
c) That the conviction rested on shoddy investigations;
d) That the conviction was otherwise doubtful; and
e) That he was denied a fair trial contrary to article 50 of the Constitution.
7. Written submissions were filed by the Appellant on 2nd April 2026 and by the Republic thereafter. In addition to opposing the appeal, the Republic filed a Notice of Enhancement dated 12th May 2026, giving notice that it would move this Court to enhance the sentence from ten years to twenty (20) years’ imprisonment. The Appellant was served with and appraised of that notice.
THE EVIDENCE AT THE TRIAL
8. It is convenient to set out the evidence in summary before turning to the grounds of appeal.
The Prosecution Case
9. PW1, N.E. (Nordin Echesa), was the complainant. The trial Court conducted a voire dire examination which is recorded in full at page 3 of the typed proceedings. The child gave his name, age (12), school, class and confirmed that he always spoke the truth. The Court recorded its satisfaction that he understood the reason for which he was in Court and directed that he be sworn. He testified on oath.
10. PW1 told the Court that in the month of August 2023 he was staying with the Appellant, who was his teacher at Ebusakami Primary School, his mother having asked that he stay with the teacher until he finished his examinations. He said that after dinner the Appellant would ask him to go and sleep on the bed, would ask him to remove his clothes, would force him to sleep on the bed and would penetrate him in the anus. He described the Appellant taking his “dudu” and inserting it in his anus, and said he would experience a lot of pain in the anus. He said the Appellant would ask him to put his clothes back on afterwards. He testified that the Appellant did the act on five different occasions and had warned him not to tell anyone as he would beat him.
11. PW1 further testified that he went and reported the matter to the Head Teacher because the actions had been troubling him; that he was initially sent back to class; that in the evening he was called to the office where he found the Deputy Head Teacher and two men who were Police Officers; that he was taken to Luanda Police Station and the following morning escorted to Coptic Hospital by PC Sulaiman for examination; and that he was thereafter taken to the Children’s Home at Sabatia and told to stay with Madam Beatrice.
12. In cross-examination PW1 maintained that his mother had requested the Appellant to accommodate him, that schools opened on 28th August 2023, that on a night in September the Appellant had gone to see Mr. Omoro, and that the Appellant had told him not to go to any home nearby. He stated that the Appellant used to ask him to remove his clothes and threatened to beat him, and that the Appellant made him cry many times while he was staying with him. He also stated that he had never met Mr. Omoro and had never been asked to go to his house, and that the Appellant had wanted him to accuse Mr. Omoro falsely. In re-examination he stated that Mr. Omoro was related to his father, that the Appellant penetrated his anus on five different occasions, and that Mr. Omoro had done nothing bad to him.
13. PW2, Joseph Paul Omollo, a teacher at Asiongo Junior Secondary School, testified that he knew PW1 because the child’s mother had been married to his uncle. On 13th September 2023 at about 9.00 p.m. the Appellant knocked at his door, introduced himself, and asked whether the boy had been to his house. PW2 answered in the negative. The Appellant then told him that the boy was complaining that he had been to PW2’s house and had been sodomized there. PW2 took the Appellant to his parents’ home where the Appellant repeated the account. The following morning PW2 informed his colleague PW4, and the two went to Ebusakami Primary School and reported to the Deputy Head Teacher and then to the Head Teacher.
14. PW2 testified that the Head Teacher called the boy and asked him whether he had been to PW2’s house, and he said no; that when the Head Teacher asked him whether anybody had sexually molested him, the boy started crying; that the Head Teacher comforted him and assured him of assistance; and that when he stopped crying he said he had been living with the Appellant and that the Appellant had been sleeping with him every day after supper. The matter was then reported to the Children’s Department, from where a letter was issued to the OCS Luanda Police Station.
15. PW3, Miriam Mukabi, the Head Teacher at Ebusakami Primary School, testified that on 14th September 2023 PW2 and PW4 came to the school and reported that a BOM teacher had visited PW2’s home the previous night at about 9.30 p.m. complaining that a pupil, Nordin, was alleging that he was being defiled at PW2’s house. She invited the child. When she first asked him what was happening, he did not speak, saying the teacher had warned him not to say what had happened. When she reassured him of her support, he opened up and said that Teacher Gabriel was sodomizing him.
16. PW3 also testified that she obtained the mother’s contact and spoke to her; that the mother confirmed the boy was staying with teacher Gabriel; and that the mother later told her, after speaking with the boy, that the teacher was sodomizing the child. She called the Deputy to hear what the mother was saying, and thereafter called the Appellant and, together with the Deputy, put the matter to him. A Gender-Based Violence Officer, Beatrice Otuoma, later came to the school, and during her interrogation of the Appellant Police Officers arrived and left with the child and the Appellant.
17. In cross-examination PW3 stated that she did not sit with PW2 and PW4 to agree to report the matter to the police; that they went to see the Children’s Officer about the issue; that she had told the mother’s account and relied on what the child himself said; that she did not tell the child what to say; and that she had known the Appellant as a devoted teacher in the school.
18. PW4, Thomas Amuli, a teacher at Asiongo Primary School, corroborated PW2 as to the events of the morning of 14th September 2023. He testified that they reported to the Deputy Head Teacher, who summoned the Head Teacher; that the Head Teacher asked Nordin whether the Appellant had done something bad to him and the child started crying; that on being reassured of her protection the child said the Appellant would sodomize him every night after supper; that they then left the child with the Head Teacher; that on the advice of their
own Head Teacher they reported to the Children’s Department at Luanda, obtained a letter, and reported at Luanda Police Station; and that they accompanied the Officers to Ebusakami Primary School where the Appellant was arrested. He testified that he had not known the child before that day, and that Nordin said that Omoro did not sodomize him and that it was the Appellant who did.
19. PW5, No. 256139 PC Suleiman Ali, the Investigating Officer, testified that on 14th September 2023 at about 3.40 p.m. he was at the gender desk at Luanda Police Station when he received three persons, one of them Beatrice Otuoma, a gender-based violence activist, and two teachers. They reported that a BOM teacher had allegedly defiled a young boy. He recorded the report in the OB, recorded their statements, and, treating the matter as urgent, proceeded with PC Kipchumba to Ebusakami Primary School where the Appellant was found in the Head Teacher’s Office and taken to the Station. The child was placed in a safe place. On 15th September 2023 the Officer commenced investigations, recorded statements from the child, other witnesses and the Appellant, visited the scene, and took the child to Coptic Mission Hospital where a P3 form was completed. He produced the birth certificate, Serial No. 2224237, as an exhibit.
20. PW6, Paul Muturi Ndung’o, a Clinical Officer at Coptic Hospital, Luanda, testified that on 15th September 2023 he received the complainant, a male, who reported “Teacher alinishika.” He recorded that the incident had happened on diverse dates in August and that the teacher had had penetrative anal sex with him. On examination he found a loose anal sphincter, both internal and external; physical faecal discharge; and visible healing bruises at the 11 o’clock and 4 o’clock anal areas. The child was not able to control his faecal matter. He provided a dignity pack, antibiotics, anti-tetanus and trauma counselling. HIV, syphilis and hepatitis B tests were negative. He stated that the weapon of injury was a penis and that the survivor had been sexually sodomized. He produced the PRC Form dated 15th September
2023 as Exhibit 1 and the P3 Form dated 15th September 2023 as Exhibit 2. He testified that “the injuries were more than one month in age” and, significantly, that “the sexual acts had happened over time.”
21. In cross-examination PW6 repeated that the injuries were more than one month in age; that he relied on the history of the survivor and the findings on examination; that the anal sphincter findings were caused by anal penetration; that no forensic examination was conducted; and that the survivor was unable to hold his faecal matter. He also stated that the survivor was presented after 72 hours of the act and that the bruises had healed.
The Defence Case
22. The Appellant, DW1, gave sworn evidence. He testified that he was 25 years of age, had been teaching since 2019 to fund his university studies at Maseno, and had taught at Ebusakami Primary School as a Board of Management teacher since 2022. He said that in August 2023, during the school holidays and before schools opened on 28th August 2023, he received a call from one Mwanamisi Abwere who identified herself as the mother of a pupil at the school. Owing to domestic problems she and her children had been sent away by her husband; she was relocating to Bungoma and wanted him to accommodate one of her children who was due to sit the KPSEA examinations.
23. He testified that he informed his fellow teachers, spoke to his landlord Mr. Okwiri, who agreed to provide a place for the child to stay and gave him an extra room, and that the child was brought to Ebusakami Primary School at 3.00 p.m. on 27th August 2023. His duty was to provide food as the mother never did.
24. As to 13th September 2023, he testified that he returned from school and did not find the child at home; he cooked supper and the child came shortly afterwards and did his usual chores. The child then opened up to him and said that a teacher at Asiongo Primary School had been calling him to his bedroom and defiling him, and named that person as Omoro. He consoled the child, confirmed that Omoro taught English at Asiongo, and went to Omoro’s home, where Omoro called the child’s parents and he explained what had happened. The following day Omoro and PW3 came to the school; the child was taken to the Head Teacher’s Office; a Paralegal Officer arrived in the afternoon stating that she had received a complaint about him defiling a child; and he was arrested. He denied the offence, and in cross-examination stated only that Mr. Okwiri had given him an extra room as he could not stay with the child in the same room.
The trial Court’s findings
25. The trial Court identified the elements of defilement by reference to SKM v Republic as penetration, identity of the perpetrator, age of the victim, and penetration of the victim’s private part. It found penetration proved by the direct evidence of PW1 as corroborated by PW6 and the PRC and P3 Forms, and noted that the definition of “genital organs” in Section 2 of the Sexual Offences Act includes the anus. On identity, it directed itself by reference to Anjononi-type recognition principles and found that the Appellant was well known to PW1, PW2, PW3 and PW4. On age, it relied on the birth certificate produced as an exhibit and found the complainant to have been twelve years old. It found that the evidence of the six witnesses “tallied and was not marred by any inconsistencies”, that the defence amounted to a mere denial, and convicted under Section 215 of the Criminal Procedure Code.
THE DUTY OF THIS COURT
26. This being a first appeal, the duty of this Court is settled. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa held that the first appellate Court must reconsider and re-evaluate the evidence adduced before the trial Court and draw its own conclusions, bearing always in mind that it neither saw nor heard the witnesses and must make due allowance in that respect. The same principle is captured in
Reuben Ombura Muma & Another v Republic [2018] eKLR, relied upon
by the Republic, where the Court restated its mandate as being to analyze and re-evaluate the evidence while remaining mindful that the trial Court had the advantage of seeing and assessing the demeanour of the witnesses.
27. I have accordingly read the entire record afresh, considered the written submissions of both parties, and reached my own independent conclusions, which I now set out.
ISSUES FOR DETERMINATION
28. The following issues arise:
i. Whether the Appellant ’s right to a fair trial under Article 50 of the Constitution was violated;
ii. Whether the Prosecution proved the ingredients of the offence of defilement beyond reasonable doubt;
iii. Whether the conviction was unsafe by reason of contradictions in the Prosecution case, the medical timeline, the alleged failure to call a material witness, or the alleged shoddiness of the investigations; and
iv. What orders should issue on sentence, including the Republic’s application for enhancement.
ANALYSIS AND DETERMINATION
Whether the Appellant ’s right to a fair trial was violated
29. The Appellant invokes Article 50(2)(g), (h) and (j) of the Constitution. He complains that he was not informed of his right to be represented by an advocate; that he was not assigned an advocate at State expense; that the P3 and PRC forms were not handed over to him in advance; and that his complaint regarding investigation statements was never resolved.
30. On legal representation: Article 50(2)(g) confers the right to choose, and be represented by, an advocate, and to be informed of that right promptly. Article 50(2)(h) confers the right to have an advocate assigned by the State, at State expense, “if substantial injustice would otherwise result”, and to be informed of that right promptly. The two rights are not the same, and the second is qualified.
31. The record does not disclose that the trial Court expressly informed the Appellant of his right to engage Counsel. That is a shortcoming, and trial Courts ought as a matter of routine to record such information having been given. But the question for this Court is not whether the record is immaculate; it is whether the omission occasioned a failure of justice. In David Njoroge Macharia v Republic [2011] eKLR the Court of Appeal held that State-funded legal representation should be extended beyond capital offences to cases where substantial injustice would otherwise result, and gave examples including cases of complexity, indigence coupled with incapacity, and offences attracting severe penalties.
32. Applying that test to this record, I am not persuaded that substantial injustice resulted. The Appellant is a person of considerable education: he was, at the time of trial, a serving teacher and a University student at Maseno University, and he graduated during the pendency of the proceedings. The record shows him actively and competently conducting his own defence. He cross-examined every one of the six Prosecution witnesses, and his cross-examination was pointed and purposive — it is from his own cross-examination that the very material now relied upon in this appeal (the “six months” answers, the “more than one month” answers of PW6, the “we did not sit together” answer of PW3) was extracted. He applied for and was granted adjournments to sit examinations and to attend a medical appointment. He elected to give sworn evidence. He filed written submissions, and was granted two extensions of time to do so. He has drafted and argued this appeal himself, with citation of authority.
33. The Appellant did not at any stage apply for Counsel to be assigned to him, or indicate to the trial Court that he wished to be represented and could not afford it. A complaint of this nature made for the first time on appeal, by a litigant whose conduct of his own defence was demonstrably capable, does not establish the substantial injustice that Article 50(2)(h) requires. This ground fails.
34. On access to the evidence: Article 50(2)(j) entitles an accused person to be informed in advance of the evidence the Prosecution intends to rely on, and to have reasonable access to that evidence. The record shows that the Appellant did raise a complaint at the plea stage. On 18th September 2023 the trial Court recorded: “Accused to direct complaint to ODPP on issue of investigations statements supplied in Court. Accused has a right to see Court No. 2.” Far from ignoring the complaint, the Court identified the appropriate channel for its resolution and told the Appellant of his right of recourse.
35. More importantly, the Appellant does not explain what prejudice he actually suffered. The P3 and PRC forms were produced by PW6 on 27th February 2025, more than fourteen months after the trial began. The cross-examined PW6 on the contents of those very documents, and did so effectively, extracting the concession about the age of the injuries on which his entire appeal now turns. He did not apply for an adjournment to study the documents, nor did he object to their production. Where a party has had, and has plainly exercised, a meaningful opportunity to test the evidence, a complaint of late disclosure cannot be converted into a ground for quashing a conviction. In terms of Section 382 of the Criminal Procedure Code, no failure of justice has been occasioned.
36. On delay: The Appellant complains that the delay was unexplained. The trial ran from September 2023 to November 2025. Article 50(2)(e) guarantees a trial without unreasonable delay. Having examined each adjournment on the record, I note that a substantial number were occasioned at the Appellant ’s own instance — for examinations (2nd October 2023 and 16th January 2025), for a medical appointment (8th August 2024), and for the filing of submissions (30th June 2025 and 14th July 2025). Others were occasioned by the ordinary exigencies of witness unavailability. Critically, the Appellant was on bond throughout, his cash bail being revoked only upon conviction on 6th October 2025. A delay which is in material part attributable to the accused himself, and during which he was at liberty, cannot found a complaint of unconstitutional delay.
37. I accordingly find that the Appellant received a fair trial. Ground five fails.
Whether the ingredients of the offence were proved
38. Three ingredients must be established in a charge of defilement: penetration, the age of the complainant, and the identity of the perpetrator: Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, and the authorities cited by the trial Court.
Age:
39. The Prosecution produced a birth certificate, Serial No. 2224237. The complainant himself stated on voire dire and on oath that he was twelve years old. PW5 testified that he had verified the age from the birth certificate and that the boy was twelve at the time of the offence. PW6’s clinical record entered a date of birth of 15th February 2011, which would make the complainant twelve at the material time.
40. I must, however, note a discrepancy on the face of the record. The trial Court’s judgment records the birth certificate as indicating the complainant’s date of birth as 14th March 2012. If that were the operative date, the complainant would have been eleven years and some five months old in August 2023, which would engage Section 8(2) of the Act (a child eleven years or less), and not Section 8(3). The birth certificate itself is not before me in a legible form, and the record contains two irreconcilable dates of birth.
41. This discrepancy does not assist the Appellant on conviction, since on either date the complainant was indisputably a child, and well below the age of consent. It is, however, material to sentence, and I return to it below. For present purposes I hold that the age of the complainant as a child was proved beyond reasonable doubt, and that the Appellant, having been charged, tried and convicted on the footing that the complainant was twelve years old and within the bracket in Section 8(3), is entitled to be dealt with on that footing and no other. Any ambiguity on the record must be resolved in his favour.
Penetration
42. Penetration is defined in Section 2 of the Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person, and “genital organs” is defined to include the anus.
43. The direct evidence of penetration came from PW1. He described the act with a child’s vocabulary but with unmistakable clarity: being asked after dinner to go and sleep on the bed, being made to remove his clothes, being forced onto the bed, and the Appellant inserting his “dudu” into his anus, causing him a lot of pain. He said this occurred on five different occasions and that he was warned not to tell anyone on pain of a beating.
44. That evidence is powerfully corroborated by the medical findings of PW6: a loose anal sphincter, both internal and external; physical faecal discharge; the child’s inability to control his faecal matter; and visible healing bruises at the 11 o’clock and 4 o’clock anal areas. PW6 stated in terms that the weapon of injury was a penis and that the survivor had been sexually sodomized. Those findings are documented in the PRC and P3 Forms produced as Exhibits 1 and 2.
45. The Appellant submits that the conviction rested on uncorroborated evidence. That submission is, with respect, unarguable on this record. Not only is there independent medical corroboration, there is also the recent-complaint evidence of PW2, PW3 and PW4, all of whom described
the circumstances of the child’s disclosure, and the evidence of PW3 that the child’s mother, when contacted, confirmed both that the child was living with the Appellant and, after speaking to the child, that he was being sodomized.
46. I would add that even had the complainant’s evidence stood alone, the proviso to Section 124 of the Evidence Act permits conviction on the uncorroborated evidence of a victim in a sexual offence where the Court, for reasons to be recorded, is satisfied that the victim is telling the truth: Alfayo Gombe Okello v Republic [2010] eKLR. The trial Court was so satisfied. But the point does not arise, because corroboration was abundant. The Prosecution is correct that Section 124 cannot be applicable here.
47. Penetration was proved beyond reasonable doubt.
Identity
48. This was never a case of identification in the Anjononi sense at all. The Appellant was the complainant’s own class teacher. The complainant lived in his house. The Appellant himself testified that he took the child into accommodation arranged with his landlord and that he fed the child. PW2, PW3, PW4 and PW5 all knew or came to know the Appellant, and PW3 had known him for a considerable period as a colleague.
49. The Appellant ’s submission that “identification as a key element was not proved beyond reasonable doubt” and that “there was a lot of doubt if it’s the accused or PW2 who defiled the complainant” is not, in truth, an identification argument. It is an argument that another person committed the offence. That is a different question, and I address it under the next issue. On identity properly so called, there is no room for doubt: the person the complainant accused was the person in the dock, and there was no possibility of mistaken recognition.
Issue III: Whether the conviction is otherwise unsafe
(a) The medical timeline — the Appellant ’s strongest point
50. The Appellant’s most substantial submission, and the one that requires the closest attention, is this: PW6 examined the child on 15th September 2023 and estimated the injuries at “more than one month in age”. The Appellant says he took the child in on 27th August 2023 and the child was removed on 14th September 2023 — a period of some eighteen days. If the injuries are older than one month, they must, he says, pre-date his custody of the child and must be the work of someone else.
51. The argument has a superficial arithmetical neatness and I have considered it carefully. It fails, for four reasons.
52. First, the premise that the cohabitation lasted only two to three weeks is the Appellant ’s own assertion, and it is contradicted by a body of evidence which the trial Court was entitled to accept. PW2 testified that when the child stopped crying, he confessed “that he had been living with Gabriel for about 6 months.” PW3, in cross-examination by the Appellant himself, stated: “You had been staying with the child for about six months.” PW4, also in cross-examination by the Appellant, stated: “You had been living with the child for six months.” PW2 further testified that the child’s mother had left in March 2023, having been married at their home for four years. A period running from about March 2023 to 14th September 2023 is approximately six months, and is entirely consistent with injuries more than one month old on 15th September 2023.
53. It is true that PW3 also recorded that the child told her he had started staying with the teacher on 28th August. But that was PW3’s account of what the child said, and it is not the only account in the record; the Appellant cannot simultaneously invite this Court to accept PW3’s hearsay report of the child’s words as gospel and to reject as hearsay PW2’s report of the same child’s words on the same occasion. The trial Court had the advantage of hearing all of this evidence and was entitled to prefer the version that the association was of some months’ standing.
54. Second, and independently, the Appellant’s argument mischaracterizes what PW6 actually said. PW6 did not say that all the injuries were more than a month old and that none were recent. He described healing bruises — a description connoting recent, resolving trauma — alongside a loose anal sphincter, both internal and external, with faecal incontinence, which is a chronic finding reflecting repeated dilatation over time. And he stated in terms that “the sexual acts had happened over time” and that the survivor was presented after 72 hours of the act. Read as a whole, the medical evidence describes not a single historic injury but a pattern of repeated penetration extending over a period — which is precisely the case the Prosecution brought, and precisely what the charge, laid on “diverse dates”, alleged.
55. Third, PW6 was a Clinical Officer, not a forensic pathologist, and he conceded that no forensic examination was conducted. An estimate that injuries are “more than one month in age” is, in that context, a broad clinical impression. It is not a precision instrument, and it cannot bear the weight the Appellant places on it. A Court does not allow an approximate clinical estimate to displace direct, sworn, corroborated testimony from the victim himself.
56. Fourth, even if one was to accept the Appellant’s own timeline of eighteen days without qualification, his argument still does not succeed. The complainant’s evidence was that the Appellant defiled him on five occasions. Five occasions across eighteen days is entirely feasible. That some of the anal injury may have pre-dated the Appellant’s custody of the child — a possibility which, if it existed, would be a matter of the gravest con
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1. The Appellant, Gabriel Chengo Ngati, was charged before the Senior Principal Magistrate’s Court at Vihiga in Sexual Offence Case No. E045 of 2023 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.
2. The particulars of the main count were that on diverse dates between the months of August 2023 and September 2023, at Ebusakami Location in Luanda Sub-County within Vihiga County, the Appellant intentionally and unlawfully caused his penis to penetrate the anus of N.E., a child aged twelve (12) years.
3. He faced an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, the particulars being that on the same diverse dates and at the same place he intentionally and unlawfully touched the anus of the said N.E. with his penis.
4. The Appellant pleaded not guilty to both counts on 18th September 2023. The Prosecution called six witnesses. At the close of its case the trial Court, by a ruling dated 20th March 2025, found a prima facie case established and placed the Appellant on his defence under Section 211 of the Criminal Procedure Code. The Appellant elected to give sworn evidence and called no witnesses, two intended witnesses being respectively deceased and unwell.
5. By a judgment delivered on 6th October 2025 the trial Court convicted the Appellant on the main count and, having done so, treated the alternative count as superfluous. On 10th November 2025, after a presentence report had been called for and considered, the Court sentenced him to ten (10) years’ imprisonment.
6. The Appellant, being dissatisfied with both conviction and sentence, lodged a Petition of Appeal dated 31st December 2025 and filed on 6th January 2026, raising five substantive grounds which may be compressed as follows:
a) That the conviction rested on evidence that did not prove the case beyond reasonable doubt;
b) That the conviction rested on uncorroborated evidence;
c) That the conviction rested on shoddy investigations;
d) That the conviction was otherwise doubtful; and
e) That he was denied a fair trial contrary to article 50 of the Constitution.
7. Written submissions were filed by the Appellant on 2nd April 2026 and by the Republic thereafter. In addition to opposing the appeal, the Republic filed a Notice of Enhancement dated 12th May 2026, giving notice that it would move this Court to enhance the sentence from ten years to twenty (20) years’ imprisonment. The Appellant was served with and appraised of that notice.
THE EVIDENCE AT THE TRIAL
8. It is convenient to set out the evidence in summary before turning to the grounds of appeal.
The Prosecution Case
9. PW1, N.E. (Nordin Echesa), was the complainant. The trial Court conducted a voire dire examination which is recorded in full at page 3 of the typed proceedings. The child gave his name, age (12), school, class and confirmed that he always spoke the truth. The Court recorded its satisfaction that he understood the reason for which he was in Court and directed that he be sworn. He testified on oath.
10. PW1 told the Court that in the month of August 2023 he was staying with the Appellant, who was his teacher at Ebusakami Primary School, his mother having asked that he stay with the teacher until he finished his examinations. He said that after dinner the Appellant would ask him to go and sleep on the bed, would ask him to remove his clothes, would force him to sleep on the bed and would penetrate him in the anus. He described the Appellant taking his “dudu” and inserting it in his anus, and said he would experience a lot of pain in the anus. He said the Appellant would ask him to put his clothes back on afterwards. He testified that the Appellant did the act on five different occasions and had warned him not to tell anyone as he would beat him.
11. PW1 further testified that he went and reported the matter to the Head Teacher because the actions had been troubling him; that he was initially sent back to class; that in the evening he was called to the office where he found the Deputy Head Teacher and two men who were Police Officers; that he was taken to Luanda Police Station and the following morning escorted to Coptic Hospital by PC Sulaiman for examination; and that he was thereafter taken to the Children’s Home at Sabatia and told to stay with Madam Beatrice.
12. In cross-examination PW1 maintained that his mother had requested the Appellant to accommodate him, that schools opened on 28th August 2023, that on a night in September the Appellant had gone to see Mr. Omoro, and that the Appellant had told him not to go to any home nearby. He stated that the Appellant used to ask him to remove his clothes and threatened to beat him, and that the Appellant made him cry many times while he was staying with him. He also stated that he had never met Mr. Omoro and had never been asked to go to his house, and that the Appellant had wanted him to accuse Mr. Omoro falsely. In re-examination he stated that Mr. Omoro was related to his father, that the Appellant penetrated his anus on five different occasions, and that Mr. Omoro had done nothing bad to him.
13. PW2, Joseph Paul Omollo, a teacher at Asiongo Junior Secondary School, testified that he knew PW1 because the child’s mother had been married to his uncle. On 13th September 2023 at about 9.00 p.m. the Appellant knocked at his door, introduced himself, and asked whether the boy had been to his house. PW2 answered in the negative. The Appellant then told him that the boy was complaining that he had been to PW2’s house and had been sodomized there. PW2 took the Appellant to his parents’ home where the Appellant repeated the account. The following morning PW2 informed his colleague PW4, and the two went to Ebusakami Primary School and reported to the Deputy Head Teacher and then to the Head Teacher.
14. PW2 testified that the Head Teacher called the boy and asked him whether he had been to PW2’s house, and he said no; that when the Head Teacher asked him whether anybody had sexually molested him, the boy started crying; that the Head Teacher comforted him and assured him of assistance; and that when he stopped crying he said he had been living with the Appellant and that the Appellant had been sleeping with him every day after supper. The matter was then reported to the Children’s Department, from where a letter was issued to the OCS Luanda Police Station.
15. PW3, Miriam Mukabi, the Head Teacher at Ebusakami Primary School, testified that on 14th September 2023 PW2 and PW4 came to the school and reported that a BOM teacher had visited PW2’s home the previous night at about 9.30 p.m. complaining that a pupil, Nordin, was alleging that he was being defiled at PW2’s house. She invited the child. When she first asked him what was happening, he did not speak, saying the teacher had warned him not to say what had happened. When she reassured him of her support, he opened up and said that Teacher Gabriel was sodomizing him.
16. PW3 also testified that she obtained the mother’s contact and spoke to her; that the mother confirmed the boy was staying with teacher Gabriel; and that the mother later told her, after speaking with the boy, that the teacher was sodomizing the child. She called the Deputy to hear what the mother was saying, and thereafter called the Appellant and, together with the Deputy, put the matter to him. A Gender-Based Violence Officer, Beatrice Otuoma, later came to the school, and during her interrogation of the Appellant Police Officers arrived and left with the child and the Appellant.
17. In cross-examination PW3 stated that she did not sit with PW2 and PW4 to agree to report the matter to the police; that they went to see the Children’s Officer about the issue; that she had told the mother’s account and relied on what the child himself said; that she did not tell the child what to say; and that she had known the Appellant as a devoted teacher in the school.
18. PW4, Thomas Amuli, a teacher at Asiongo Primary School, corroborated PW2 as to the events of the morning of 14th September 2023. He testified that they reported to the Deputy Head Teacher, who summoned the Head Teacher; that the Head Teacher asked Nordin whether the Appellant had done something bad to him and the child started crying; that on being reassured of her protection the child said the Appellant would sodomize him every night after supper; that they then left the child with the Head Teacher; that on the advice of their
own Head Teacher they reported to the Children’s Department at Luanda, obtained a letter, and reported at Luanda Police Station; and that they accompanied the Officers to Ebusakami Primary School where the Appellant was arrested. He testified that he had not known the child before that day, and that Nordin said that Omoro did not sodomize him and that it was the Appellant who did.
19. PW5, No. 256139 PC Suleiman Ali, the Investigating Officer, testified that on 14th September 2023 at about 3.40 p.m. he was at the gender desk at Luanda Police Station when he received three persons, one of them Beatrice Otuoma, a gender-based violence activist, and two teachers. They reported that a BOM teacher had allegedly defiled a young boy. He recorded the report in the OB, recorded their statements, and, treating the matter as urgent, proceeded with PC Kipchumba to Ebusakami Primary School where the Appellant was found in the Head Teacher’s Office and taken to the Station. The child was placed in a safe place. On 15th September 2023 the Officer commenced investigations, recorded statements from the child, other witnesses and the Appellant, visited the scene, and took the child to Coptic Mission Hospital where a P3 form was completed. He produced the birth certificate, Serial No. 2224237, as an exhibit.
20. PW6, Paul Muturi Ndung’o, a Clinical Officer at Coptic Hospital, Luanda, testified that on 15th September 2023 he received the complainant, a male, who reported “Teacher alinishika.” He recorded that the incident had happened on diverse dates in August and that the teacher had had penetrative anal sex with him. On examination he found a loose anal sphincter, both internal and external; physical faecal discharge; and visible healing bruises at the 11 o’clock and 4 o’clock anal areas. The child was not able to control his faecal matter. He provided a dignity pack, antibiotics, anti-tetanus and trauma counselling. HIV, syphilis and hepatitis B tests were negative. He stated that the weapon of injury was a penis and that the survivor had been sexually sodomized. He produced the PRC Form dated 15th September
2023 as Exhibit 1 and the P3 Form dated 15th September 2023 as Exhibit 2. He testified that “the injuries were more than one month in age” and, significantly, that “the sexual acts had happened over time.”
21. In cross-examination PW6 repeated that the injuries were more than one month in age; that he relied on the history of the survivor and the findings on examination; that the anal sphincter findings were caused by anal penetration; that no forensic examination was conducted; and that the survivor was unable to hold his faecal matter. He also stated that the survivor was presented after 72 hours of the act and that the bruises had healed.
The Defence Case
22. The Appellant, DW1, gave sworn evidence. He testified that he was 25 years of age, had been teaching since 2019 to fund his university studies at Maseno, and had taught at Ebusakami Primary School as a Board of Management teacher since 2022. He said that in August 2023, during the school holidays and before schools opened on 28th August 2023, he received a call from one Mwanamisi Abwere who identified herself as the mother of a pupil at the school. Owing to domestic problems she and her children had been sent away by her husband; she was relocating to Bungoma and wanted him to accommodate one of her children who was due to sit the KPSEA examinations.
23. He testified that he informed his fellow teachers, spoke to his landlord Mr. Okwiri, who agreed to provide a place for the child to stay and gave him an extra room, and that the child was brought to Ebusakami Primary School at 3.00 p.m. on 27th August 2023. His duty was to provide food as the mother never did.
24. As to 13th September 2023, he testified that he returned from school and did not find the child at home; he cooked supper and the child came shortly afterwards and did his usual chores. The child then opened up to him and said that a teacher at Asiongo Primary School had been calling him to his bedroom and defiling him, and named that person as Omoro. He consoled the child, confirmed that Omoro taught English at Asiongo, and went to Omoro’s home, where Omoro called the child’s parents and he explained what had happened. The following day Omoro and PW3 came to the school; the child was taken to the Head Teacher’s Office; a Paralegal Officer arrived in the afternoon stating that she had received a complaint about him defiling a child; and he was arrested. He denied the offence, and in cross-examination stated only that Mr. Okwiri had given him an extra room as he could not stay with the child in the same room.
The trial Court’s findings
25. The trial Court identified the elements of defilement by reference to SKM v Republic as penetration, identity of the perpetrator, age of the victim, and penetration of the victim’s private part. It found penetration proved by the direct evidence of PW1 as corroborated by PW6 and the PRC and P3 Forms, and noted that the definition of “genital organs” in Section 2 of the Sexual Offences Act includes the anus. On identity, it directed itself by reference to Anjononi-type recognition principles and found that the Appellant was well known to PW1, PW2, PW3 and PW4. On age, it relied on the birth certificate produced as an exhibit and found the complainant to have been twelve years old. It found that the evidence of the six witnesses “tallied and was not marred by any inconsistencies”, that the defence amounted to a mere denial, and convicted under Section 215 of the Criminal Procedure Code.
THE DUTY OF THIS COURT
26. This being a first appeal, the duty of this Court is settled. In Okeno v Republic [1972] EA 32 the Court of Appeal for East Africa held that the first appellate Court must reconsider and re-evaluate the evidence adduced before the trial Court and draw its own conclusions, bearing always in mind that it neither saw nor heard the witnesses and must make due allowance in that respect. The same principle is captured in
Reuben Ombura Muma & Another v Republic [2018] eKLR, relied upon
by the Republic, where the Court restated its mandate as being to analyze and re-evaluate the evidence while remaining mindful that the trial Court had the advantage of seeing and assessing the demeanour of the witnesses.
27. I have accordingly read the entire record afresh, considered the written submissions of both parties, and reached my own independent conclusions, which I now set out.
ISSUES FOR DETERMINATION
28. The following issues arise:
i. Whether the Appellant ’s right to a fair trial under Article 50 of the Constitution was violated;
ii. Whether the Prosecution proved the ingredients of the offence of defilement beyond reasonable doubt;
iii. Whether the conviction was unsafe by reason of contradictions in the Prosecution case, the medical timeline, the alleged failure to call a material witness, or the alleged shoddiness of the investigations; and
iv. What orders should issue on sentence, including the Republic’s application for enhancement.
ANALYSIS AND DETERMINATION
Whether the Appellant ’s right to a fair trial was violated
29. The Appellant invokes Article 50(2)(g), (h) and (j) of the Constitution. He complains that he was not informed of his right to be represented by an advocate; that he was not assigned an advocate at State expense; that the P3 and PRC forms were not handed over to him in advance; and that his complaint regarding investigation statements was never resolved.
30. On legal representation: Article 50(2)(g) confers the right to choose, and be represented by, an advocate, and to be informed of that right promptly. Article 50(2)(h) confers the right to have an advocate assigned by the State, at State expense, “if substantial injustice would otherwise result”, and to be informed of that right promptly. The two rights are not the same, and the second is qualified.
31. The record does not disclose that the trial Court expressly informed the Appellant of his right to engage Counsel. That is a shortcoming, and trial Courts ought as a matter of routine to record such information having been given. But the question for this Court is not whether the record is immaculate; it is whether the omission occasioned a failure of justice. In David Njoroge Macharia v Republic [2011] eKLR the Court of Appeal held that State-funded legal representation should be extended beyond capital offences to cases where substantial injustice would otherwise result, and gave examples including cases of complexity, indigence coupled with incapacity, and offences attracting severe penalties.
32. Applying that test to this record, I am not persuaded that substantial injustice resulted. The Appellant is a person of considerable education: he was, at the time of trial, a serving teacher and a University student at Maseno University, and he graduated during the pendency of the proceedings. The record shows him actively and competently conducting his own defence. He cross-examined every one of the six Prosecution witnesses, and his cross-examination was pointed and purposive — it is from his own cross-examination that the very material now relied upon in this appeal (the “six months” answers, the “more than one month” answers of PW6, the “we did not sit together” answer of PW3) was extracted. He applied for and was granted adjournments to sit examinations and to attend a medical appointment. He elected to give sworn evidence. He filed written submissions, and was granted two extensions of time to do so. He has drafted and argued this appeal himself, with citation of authority.
33. The Appellant did not at any stage apply for Counsel to be assigned to him, or indicate to the trial Court that he wished to be represented and could not afford it. A complaint of this nature made for the first time on appeal, by a litigant whose conduct of his own defence was demonstrably capable, does not establish the substantial injustice that Article 50(2)(h) requires. This ground fails.
34. On access to the evidence: Article 50(2)(j) entitles an accused person to be informed in advance of the evidence the Prosecution intends to rely on, and to have reasonable access to that evidence. The record shows that the Appellant did raise a complaint at the plea stage. On 18th September 2023 the trial Court recorded: “Accused to direct complaint to ODPP on issue of investigations statements supplied in Court. Accused has a right to see Court No. 2.” Far from ignoring the complaint, the Court identified the appropriate channel for its resolution and told the Appellant of his right of recourse.
35. More importantly, the Appellant does not explain what prejudice he actually suffered. The P3 and PRC forms were produced by PW6 on 27th February 2025, more than fourteen months after the trial began. The cross-examined PW6 on the contents of those very documents, and did so effectively, extracting the concession about the age of the injuries on which his entire appeal now turns. He did not apply for an adjournment to study the documents, nor did he object to their production. Where a party has had, and has plainly exercised, a meaningful opportunity to test the evidence, a complaint of late disclosure cannot be converted into a ground for quashing a conviction. In terms of Section 382 of the Criminal Procedure Code, no failure of justice has been occasioned.
36. On delay: The Appellant complains that the delay was unexplained. The trial ran from September 2023 to November 2025. Article 50(2)(e) guarantees a trial without unreasonable delay. Having examined each adjournment on the record, I note that a substantial number were occasioned at the Appellant ’s own instance — for examinations (2nd October 2023 and 16th January 2025), for a medical appointment (8th August 2024), and for the filing of submissions (30th June 2025 and 14th July 2025). Others were occasioned by the ordinary exigencies of witness unavailability. Critically, the Appellant was on bond throughout, his cash bail being revoked only upon conviction on 6th October 2025. A delay which is in material part attributable to the accused himself, and during which he was at liberty, cannot found a complaint of unconstitutional delay.
37. I accordingly find that the Appellant received a fair trial. Ground five fails.
Whether the ingredients of the offence were proved
38. Three ingredients must be established in a charge of defilement: penetration, the age of the complainant, and the identity of the perpetrator: Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, and the authorities cited by the trial Court.
Age:
39. The Prosecution produced a birth certificate, Serial No. 2224237. The complainant himself stated on voire dire and on oath that he was twelve years old. PW5 testified that he had verified the age from the birth certificate and that the boy was twelve at the time of the offence. PW6’s clinical record entered a date of birth of 15th February 2011, which would make the complainant twelve at the material time.
40. I must, however, note a discrepancy on the face of the record. The trial Court’s judgment records the birth certificate as indicating the complainant’s date of birth as 14th March 2012. If that were the operative date, the complainant would have been eleven years and some five months old in August 2023, which would engage Section 8(2) of the Act (a child eleven years or less), and not Section 8(3). The birth certificate itself is not before me in a legible form, and the record contains two irreconcilable dates of birth.
41. This discrepancy does not assist the Appellant on conviction, since on either date the complainant was indisputably a child, and well below the age of consent. It is, however, material to sentence, and I return to it below. For present purposes I hold that the age of the complainant as a child was proved beyond reasonable doubt, and that the Appellant, having been charged, tried and convicted on the footing that the complainant was twelve years old and within the bracket in Section 8(3), is entitled to be dealt with on that footing and no other. Any ambiguity on the record must be resolved in his favour.
Penetration
42. Penetration is defined in Section 2 of the Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person, and “genital organs” is defined to include the anus.
43. The direct evidence of penetration came from PW1. He described the act with a child’s vocabulary but with unmistakable clarity: being asked after dinner to go and sleep on the bed, being made to remove his clothes, being forced onto the bed, and the Appellant inserting his “dudu” into his anus, causing him a lot of pain. He said this occurred on five different occasions and that he was warned not to tell anyone on pain of a beating.
44. That evidence is powerfully corroborated by the medical findings of PW6: a loose anal sphincter, both internal and external; physical faecal discharge; the child’s inability to control his faecal matter; and visible healing bruises at the 11 o’clock and 4 o’clock anal areas. PW6 stated in terms that the weapon of injury was a penis and that the survivor had been sexually sodomized. Those findings are documented in the PRC and P3 Forms produced as Exhibits 1 and 2.
45. The Appellant submits that the conviction rested on uncorroborated evidence. That submission is, with respect, unarguable on this record. Not only is there independent medical corroboration, there is also the recent-complaint evidence of PW2, PW3 and PW4, all of whom described
the circumstances of the child’s disclosure, and the evidence of PW3 that the child’s mother, when contacted, confirmed both that the child was living with the Appellant and, after speaking to the child, that he was being sodomized.
46. I would add that even had the complainant’s evidence stood alone, the proviso to Section 124 of the Evidence Act permits conviction on the uncorroborated evidence of a victim in a sexual offence where the Court, for reasons to be recorded, is satisfied that the victim is telling the truth: Alfayo Gombe Okello v Republic [2010] eKLR. The trial Court was so satisfied. But the point does not arise, because corroboration was abundant. The Prosecution is correct that Section 124 cannot be applicable here.
47. Penetration was proved beyond reasonable doubt.
Identity
48. This was never a case of identification in the Anjononi sense at all. The Appellant was the complainant’s own class teacher. The complainant lived in his house. The Appellant himself testified that he took the child into accommodation arranged with his landlord and that he fed the child. PW2, PW3, PW4 and PW5 all knew or came to know the Appellant, and PW3 had known him for a considerable period as a colleague.
49. The Appellant ’s submission that “identification as a key element was not proved beyond reasonable doubt” and that “there was a lot of doubt if it’s the accused or PW2 who defiled the complainant” is not, in truth, an identification argument. It is an argument that another person committed the offence. That is a different question, and I address it under the next issue. On identity properly so called, there is no room for doubt: the person the complainant accused was the person in the dock, and there was no possibility of mistaken recognition.
Issue III: Whether the conviction is otherwise unsafe
(a) The medical timeline — the Appellant ’s strongest point
50. The Appellant’s most substantial submission, and the one that requires the closest attention, is this: PW6 examined the child on 15th September 2023 and estimated the injuries at “more than one month in age”. The Appellant says he took the child in on 27th August 2023 and the child was removed on 14th September 2023 — a period of some eighteen days. If the injuries are older than one month, they must, he says, pre-date his custody of the child and must be the work of someone else.
51. The argument has a superficial arithmetical neatness and I have considered it carefully. It fails, for four reasons.
52. First, the premise that the cohabitation lasted only two to three weeks is the Appellant ’s own assertion, and it is contradicted by a body of evidence which the trial Court was entitled to accept. PW2 testified that when the child stopped crying, he confessed “that he had been living with Gabriel for about 6 months.” PW3, in cross-examination by the Appellant himself, stated: “You had been staying with the child for about six months.” PW4, also in cross-examination by the Appellant, stated: “You had been living with the child for six months.” PW2 further testified that the child’s mother had left in March 2023, having been married at their home for four years. A period running from about March 2023 to 14th September 2023 is approximately six months, and is entirely consistent with injuries more than one month old on 15th September 2023.
53. It is true that PW3 also recorded that the child told her he had started staying with the teacher on 28th August. But that was PW3’s account of what the child said, and it is not the only account in the record; the Appellant cannot simultaneously invite this Court to accept PW3’s hearsay report of the child’s words as gospel and to reject as hearsay PW2’s report of the same child’s words on the same occasion. The trial Court had the advantage of hearing all of this evidence and was entitled to prefer the version that the association was of some months’ standing.
54. Second, and independently, the Appellant’s argument mischaracterizes what PW6 actually said. PW6 did not say that all the injuries were more than a month old and that none were recent. He described healing bruises — a description connoting recent, resolving trauma — alongside a loose anal sphincter, both internal and external, with faecal incontinence, which is a chronic finding reflecting repeated dilatation over time. And he stated in terms that “the sexual acts had happened over time” and that the survivor was presented after 72 hours of the act. Read as a whole, the medical evidence describes not a single historic injury but a pattern of repeated penetration extending over a period — which is precisely the case the Prosecution brought, and precisely what the charge, laid on “diverse dates”, alleged.
55. Third, PW6 was a Clinical Officer, not a forensic pathologist, and he conceded that no forensic examination was conducted. An estimate that injuries are “more than one month in age” is, in that context, a broad clinical impression. It is not a precision instrument, and it cannot bear the weight the Appellant places on it. A Court does not allow an approximate clinical estimate to displace direct, sworn, corroborated testimony from the victim himself.
56. Fourth, even if one was to accept the Appellant’s own timeline of eighteen days without qualification, his argument still does not succeed. The complainant’s evidence was that the Appellant defiled him on five occasions. Five occasions across eighteen days is entirely feasible. That some of the anal injury may have pre-dated the Appellant’s custody of the child — a possibility which, if it existed, would be a matter of the gravest con
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