A. INTRODUCTION
1. The Appellant, Humphery Juma Chenge, was convicted after a full trial of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on diverse dates between 1st and 15th November 2021 at Chemondi Village, Cheptais Sub-Location within Bungoma County, he intentionally caused his penis to penetrate the vagina of E.C., a child aged 13 years. He also faced an alternative charge 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 dates and at the same place, he rubbed his penis against the vagina of E.C.
2. On 15th May 2025, the trial court found the Appellant guilty of the main charge and sentenced him to 20 years' imprisonment, the sentence to run from 12th June 2024. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 21st May 2025, raising the following grounds: (i) that he is a first offender and remorseful for the offence committed; (ii) that the sentence of 20 years meted out on him is harsh and excessive in the circumstances, and requesting the Court to consider reducing it on humanitarian grounds; (iii) that he is a young man who still needs to do a great deal, be it raising a family responsibly or participating actively in the nation's development; and (iv) that the time spent in remand awaiting trial ought to be considered.
3. The Appellant urges this Court to allow the appeal.
B. THE DUTY OF THIS COURT
4. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
5. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
6. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
7. A good place to start is a summary of the evidence before the trial court.
C. SUMMARY OF THE PROSECUTION EVIDENCE
8. The prosecution called five witnesses. PW1, the complainant, testified that she is in class seven and stated her year of birth as 2007; the trial court noted, however, that her birth certificate recorded her date of birth as 11th July 2008. She was living with her brother's wife when the Appellant began asking her for a relationship in October 2021, which she refused. He sent her cousin, Isaac Saba, to tell her that the Appellant loved her, and in November her cousin persuaded her to accept. She went with Isaac to his house and had sexual intercourse with the Appellant there, Isaac and his own girlfriend also being present. They had intercourse again towards the end of November. She fell ill in December and was taken to Cheptais Hospital by her brother's wife, where she was found to be pregnant; she testified that the pregnancy belonged to the Appellant. She informed one of her uncles, who confronted the Appellant. At Chesikaki Hospital a P3 Form was completed, and she testified that she was, at that time, three months pregnant. She had not earlier informed the Appellant that she was pregnant, as she did not know, this being her first sexual experience.
9. On cross-examination she confirmed that she was 14 years old, could not recall the exact date of the incident, and confirmed she was three months pregnant. She confirmed being at Isaac's house with the Appellant, that there were four of them present, and that she had intercourse with the Appellant only. She confirmed being at home on 24th December 2021 and going to hospital on 25th December 2021 at around 9.00 a.m.
10. PW2, Simon Kirui, testified that the complainant is his daughter and that on 25th December 2021 he noticed she was vomiting and took her to Cheptais Sub-County Hospital, where she was found to be pregnant. She told him the Appellant was responsible, and he reported the matter to Chesikaki Police Station, following which the Appellant was arrested. He testified that the Appellant is his neighbour and is married with three children. He confirmed his daughter was about 13 to 14 years old at the time of the incident and a pupil at Kimama Primary School. On cross-examination he confirmed he was the one who took the complainant to hospital and that this occurred on 25th December 2021.
11. PW3, Robin Walieli, a clinician attached to Cheptais Sub-County Hospital, testified on behalf of his colleague Rose Ngotor, who was unavailable on study leave in Kilifi County, stating that he was familiar with her handwriting and had been briefed by her. The P3 Form, dated 30th December 2021, confirmed a positive pregnancy of approximately eight weeks' gestation, with the cause of injury noted as a blunt object; no other findings could be deduced save for the approximate age of the injuries. The complainant had a yellowish, foul-smelling vaginal discharge and was treated with antibiotics, painkillers, and analgesics. Urinalysis showed an infection, and she tested negative for syphilis. The witness produced the treatment notes and the P3 Form. On cross-examination, the witness maintained that the findings were consistent with the complainant's account.
12. PW4, No. 124694 PC Brian Kariuki, attached to Chesikaki Police Station, testified that he took over the investigation after the original investigating officer was transferred to Busia. He recounted the complainant's account and testified that, upon conclusion of investigations, the Appellant was arrested by officers from the Chemondi Anti-Stock Theft Unit camp and brought to his station. He requested PW2 to produce the complainant's birth certificate. On cross-examination he confirmed that the complainant's home and the Appellant's home were about one kilometre apart.
13. PW5, Polycarp Luita Kweyu, an assistant government chemist, testified that he received an order for DNA testing of the complainant, the Appellant, and the child born of the pregnancy, to determine parentage. He conducted the tests and concluded, to a probability of 99.99%, that the child was the biological child of the Appellant. He produced his report.
14. At the close of the prosecution's case, the Appellant was placed on his defence and elected to give unsworn evidence without calling any witnesses. He testified that he sold illicit brew together with his father, one Simon Peter, and that they had fallen out after he had spent money belonging to the business; his father threatened that he would do something that would cost him his life, following which they parted ways and the Appellant continued the business alone. On 30th December 2021 he travelled to Uganda in connection with the brew business, and on his return that evening found officers from the Anti-Stock Theft Unit at his home, who arrested him and took him to Chesikaki Police Station. He was arraigned in court on 31st December 2021 for defilement, not for selling illicit brew. He denied defiling anybody and denied knowing the complainant.
D. JUDGMENT OF THE TRIAL COURT
15. The trial court found that the prosecution had proved all the elements of defilement beyond reasonable doubt, a finding further fortified by the government chemist's DNA report confirming the Appellant as the biological father of the child born of the pregnancy. The Appellant's defence was found to be an afterthought, not raised at the earliest opportunity, and the court found no demonstrated connection between the alleged dispute with his business partner and the charge before it; even if such a dispute existed, it had no bearing on the present case. The trial court accordingly found that the Appellant had defiled the complainant and sentenced him on the main count.
E. THE APPEAL
16. In written submissions, the Appellant submitted that the trial court denied him his right to the least severe of the available sentences under Articles 25(c) and 50(2)(p) of the Constitution by failing to order that his sentence run from the date of his arrest. He relied on Ndabi v Republic (1987) KLR 304, contending that he was arrested on 30th December 2021 and released on bond on 19th May 2022, and submitted that an accused on bond pending trial saves the public purse the costs of custody, security, and transport to and from court, and that it is accordingly in the public interest for time on remand to be credited. He prayed for a reduction of his sentence by the period spent in custody.
17. He further submitted that the Constitution protects him against self-incrimination, and that the order for DNA sampling and testing violated his rights under Article 50(4), relying on what he described as Section 122D of the Penal Code. He further submitted that penetration was not proved, and that the charge of defilement could not accordingly stand.
18. The Respondent, in brief submissions, maintained that the three elements of defilement had been proved and that the sentence imposed was lawful, being in accordance with the offending section. The Respondent further submitted that, should this Court find that the Appellant was not informed of his right to legal representation, or that the trial court's failure to pronounce itself on the alternative charge was irregular, a retrial would serve the interests of justice given the seriousness of the offence and the cogency of the evidence on record, such omissions being in the Respondent's submission mere technicalities.
F. ANALYSIS AND DETERMINATION
19. Having considered the record, the rival submissions, and the applicable law, I am satisfied that the following issues arise for determination: (a) whether the age of the complainant was proved; (b) whether penetration was proved; (c) whether the DNA sampling and testing violated the Appellant's constitutional rights; (d) whether the trial court's declining to pronounce itself on the alternative charge was irregular; (e) whether a retrial ought to be ordered on account of the matters raised by the Respondent; (f) whether the ground that the Appellant is “a young man” avails him; (g) whether the sentence of 20 years is harsh and excessive; and (h) whether the time the Appellant spent in custody was properly accounted for. I take each in turn.
20. On the age of the complainant, I note the discrepancy between her own recollection of having been born in 2007 and the birth certificate produced before the trial court, which recorded her date of birth as 11th July 2008. Documentary proof of age, where available, is the best evidence of a child's age and prevails over a lay witness's own estimate or recollection, particularly that of the child herself, who cannot be expected to recall with precision a date she did not personally register. Taking 11th July 2008 as her date of birth, the complainant was 13 years and approximately 4 months old at the time of the offence in November 2021, which corresponds precisely to the particulars of the charge and places her within the 12-to-15-year bracket contemplated by Section 8(3) of the Sexual Offences Act. I find the complainant's age to have been proved to the required standard.
21. On penetration, I find the evidence overwhelming. The complainant's own direct testimony was that she had sexual intercourse with the Appellant using their respective genitalia on two occasions. That account is corroborated, first, by the medical evidence of PW3, who produced the P3 Form recording a positive pregnancy of approximately eight weeks' gestation as at 30th December 2021, together with other findings consistent with recent sexual activity; and, decisively, by the DNA evidence of PW5, whose report established to a probability of 99.99% that the child born of that pregnancy was the biological child of the Appellant. Pregnancy resulting from intercourse is, self-evidently, proof not merely of the “slightest penetration” sufficient to constitute the offence under the principles set out in Mark Oiruri Mose v Republic [2013] eKLR and Erick Onyango Odeng' v Republic [2014] eKLR, but of penetration completed to the point of conception; a DNA-confirmed pregnancy is about as cogent a form of corroboration of penetration as our courts are ever likely to encounter. The submission that penetration was not proved is, with respect, unsustainable on this record and is rejected.
22. On the Appellant's submission that the DNA sampling and testing violated his rights against self-incrimination under Article 50(4) of the Constitution, I note at the outset that there is no provision styled “Section 122D of the Penal Code”; the Penal Code contains no provisions dealing with DNA or bodily samples. The relevant framework is found in Sections 118A to 122D of the Evidence Act (dealing with the taking and use of genetic and other bodily samples for forensic purposes) and in Section 36 of the Sexual Offences Act, which empowers a court, on the application of either the prosecution or an accused person, to direct that a bodily sample be taken for forensic analysis in proceedings of this nature. The privilege against self-incrimination protects an accused from being compelled to give testimonial or communicative evidence against himself; it has never been understood, in Kenyan or comparable jurisprudence, to extend to physical or bodily evidence such as blood, saliva, or buccal swabs taken pursuant to a lawful court order, precisely because such evidence does not depend on any assertion of fact by the accused for its probative value. The DNA sample here was, on the record, obtained and analysed pursuant to a lawful order for parentage testing, a species of forensic evidence expressly contemplated by statute. I find no violation of Article 50(4), and this ground fails.
23. On the trial court's declining to pronounce itself on the alternative charge of committing an indecent act contrary to Section 11(1) of the Sexual Offences Act, I find no irregularity. Where an accused faces a main count and an alternative count arising from the same facts, and the prosecution succeeds in proving the main count beyond reasonable doubt, it is neither necessary nor useful for the trial court to also pronounce a formal verdict on the alternative count, which becomes redundant once a conviction is entered on the substantive charge; to do otherwise would, as the trial court correctly observed, amount to no more than an academic exercise. I find nothing in this course of action capable of vitiating the conviction.
24. I turn to the Respondent's own submission, made in the alternative, that a retrial should be ordered if this Court finds that the Appellant was not informed of his right to legal representation. I decline to order a retrial on this basis. The Appellant does not raise the absence of legal representation as a ground of appeal at all; he represented himself at trial, gave his own defence, and has at no stage — whether before the trial court or in this appeal — suggested that he was denied an opportunity to secure counsel, that he asked for and was refused legal aid, or that his ability to present his defence was in any way compromised by the absence of an advocate. The right under Article 50(2)(g) and (h) of the Constitution is a right to be informed of, and where appropriate to be afforded, legal representation; it is not violated merely because the record is silent on the point, in the absence of any indication that the accused was thereby prejudiced. No prejudice has been shown or is apparent on this record, and I find no basis for the retrial the Respondent cautiously proposes; in any event, having upheld the conviction on the merits below, the question of retrial does not arise.
25. On the ground that the Appellant is “a young man who still needs to do a great deal,” I find this ground to be without any evidential foundation on this record; indeed, it is contradicted by the unchallenged evidence of PW2 that the Appellant is a married man with three children. Whatever the origin of this ground, it does not correspond to any fact established at trial, and it does not avail the Appellant.
26. On the submission that the sentence of 20 years is harsh and excessive, I bear in mind that Section 8(3) of the Sexual Offences Act prescribes a sentence of not less than 20 years' imprisonment for the defilement of a child aged between 12 and 15 years, a bracket squarely applicable here. Guided by the Court of Appeal's holding in Dismas Wafula Kilwake v Republic [2018] eKLR that the sentencing provisions of Section 8 must be construed so as not to remove the trial court's sentencing discretion altogether, I have considered whether any circumstance justifies a sentence below the statutory floor. I find none. The trial court imposed precisely the minimum sentence prescribed for this age bracket; the offence involved the deliberate and calculated seduction of a 13-year-old child through an intermediary, resulted in her pregnancy at that tender age, and has been conclusively linked to the Appellant by DNA evidence. The Appellant's claimed remorse and status as a first offender, while noted, are insufficient, whether taken singly or cumulatively, to displace a sentence that already represents the legislative floor for this category of offence. This ground fails.
27. I turn finally to the time the Appellant spent in custody. I have perused the record and find the following chronology to be established: the Appellant was arrested on 30th December 2021 and released on bond on 19th May 2022, a continuous period in custody of approximately 140 days; he thereafter absconded bail from on or about 22nd April 2024, and was rearrested and arraigned under warrant on 12th June 2024, following which he remained in custody until he was convicted and sentenced on 15th May 2025. The trial court, in directing that the sentence run from 12th June 2024, gave credit for the period in custody following the Appellant's rearrest, but made no reference at all to, and gave no credit for, the earlier and distinct period of approximately 140 days the Appellant spent in custody between his initial arrest on 30th December 2021 and his release on bond on 19th May 2022.
28. Section 333(2) of the Criminal Procedure Code, by its proviso, obliges a sentencing court to take into account any period an accused has spent in custody prior to sentence. As the Court of Appeal held in Bethwel Wilson Kibor v Republic [2009] eKLR, a failure to expressly account for a period of custody is itself an error open to correction on appeal, and in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR the Court of Appeal held that “taking into account” custody must be given real, practical effect and is not satisfied by a partial or selective accounting of the periods actually served. I do not accept the Appellant's characterization of this complaint as one arising under Articles 25(c) or 50(2)(p) of the Constitution: Article 25(c) protects against torture and cruel, inhuman or degrading treatment, and a lawfully imposed custodial sentence following a fair trial does not engage that provision merely because it is lengthy; and Article 50(2)(p) concerns the retrospective benefit of a lesser prescribed penalty where the law changes between the commission of an offence and sentencing, a different question altogether from the computation of time already served. The proper vehicle for this complaint is Section 333(2) of the Criminal Procedure Code, and it is on that basis, rather than the constitutional provisions cited, that I consider it. I am not, in the circumstances, able to verify the Appellant's reliance on Ndabi v Republic (1987) KLR 304 against any citation available to this Court, and I do not rest my conclusion on that authority; the conclusion instead follows directly from Section 333(2) and the guidance in Kibor and Abolfathi Mohammed.
29. The period between 22nd April 2024, when the Appellant absconded bail, and 12th June 2024, when he was rearrested, is not a period spent in custody at all; the Appellant was at large during that interval, having jumped bail, and no credit is due in respect of it. The omitted period is confined to the approximately 140 days between 30th December 2021 and 19th May 2022, during which the Appellant was in lawful custody pending trial and which the trial court's sentencing order does not reflect. Applying the principle in Abolfathi Mohammed that a remand period must be given practical effect and not merely acknowledged in passing, I find that this additional period ought to be credited by a corresponding adjustment to the date from which the sentence is deemed to commence.
30. Accordingly, in addition to the credit already given by the trial court from 12th June 2024, the sentence shall be further credited with the 140 days spent in custody between 30th December 2021 and 19th May 2022. The precise computation of the resulting release date is left to the officer in charge of the Appellant's place of custody, to be verified against the primary custody records.
31. Save for this adjustment to the commencement date of the sentence, I find no merit in any other ground advanced against either the conviction or the sentence. The prosecution proved each element of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act to the standard of beyond reasonable doubt, the Appellant's defence was properly rejected as an afterthought bearing no relation to the charge, and the sentence of 20 years' imprisonment, being the statutory minimum for this category of offence, was lawfully and appropriately imposed.
G. DISPOSITION
32. For the foregoing reasons, I find and hold as follows:
(a) The appeal against conviction is dismissed; the conviction of the Appellant for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act is upheld and affirmed.
(b) The appeal against the length of the sentence is dismissed; the sentence of 20 years' imprisonment is upheld as lawful and appropriate.
(c) The appeal against the computation of the sentence succeeds to the limited extent set out below.
(d) The sentence of 20 years' imprisonment shall be computed to include 140 days earlier than 12th June 2024, to reflect the additional period spent in custody between 30th December 2021 and 19th May 2022, which was not otherwise credited by the trial court.
(e) Save as varied at (d) above, the judgment and sentence of the trial court are otherwise upheld.
It is so ordered.
Delivered at Kericho this 30th day of July 2026
In the presence of;
Appellant
C/A Irene Chelangat
1. The Appellant, Humphery Juma Chenge, was convicted after a full trial of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on diverse dates between 1st and 15th November 2021 at Chemondi Village, Cheptais Sub-Location within Bungoma County, he intentionally caused his penis to penetrate the vagina of E.C., a child aged 13 years. He also faced an alternative charge 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 dates and at the same place, he rubbed his penis against the vagina of E.C.
2. On 15th May 2025, the trial court found the Appellant guilty of the main charge and sentenced him to 20 years' imprisonment, the sentence to run from 12th June 2024. Dissatisfied with both the conviction and the sentence, the Appellant filed a Petition of Appeal dated 21st May 2025, raising the following grounds: (i) that he is a first offender and remorseful for the offence committed; (ii) that the sentence of 20 years meted out on him is harsh and excessive in the circumstances, and requesting the Court to consider reducing it on humanitarian grounds; (iii) that he is a young man who still needs to do a great deal, be it raising a family responsibly or participating actively in the nation's development; and (iv) that the time spent in remand awaiting trial ought to be considered.
3. The Appellant urges this Court to allow the appeal.
B. THE DUTY OF THIS COURT
4. This being the first appellate court, the duty of this Court is well settled. This Court must re-evaluate the evidence on the record afresh and arrive at its own independent conclusions, while always bearing in mind that the trial court had the distinct advantage of seeing and hearing the witnesses testify and observing their demeanour.
5. The Court of Appeal in Okeno v Republic [1972] EA 32 held that an appellant on a first appeal is entitled to a fresh and exhaustive examination of the evidence as a whole, and to the appellate court's own decision on it; the first appellate court must itself weigh conflicting evidence and draw its own conclusions, and it is not the function of a first appellate court merely to scrutinise the evidence to see if there was some evidence to support the lower court's findings, but rather to make its own findings and draw its own conclusions.
6. This principle was reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 174, and clarified further in David Njuguna Wairimu v Republic [2010] eKLR. Consistent with these principles, I have carried out an independent assessment of the entire evidence while according appropriate deference to the learned trial Magistrate, who had the distinct advantage of observing the demeanour of the witnesses.
7. A good place to start is a summary of the evidence before the trial court.
C. SUMMARY OF THE PROSECUTION EVIDENCE
8. The prosecution called five witnesses. PW1, the complainant, testified that she is in class seven and stated her year of birth as 2007; the trial court noted, however, that her birth certificate recorded her date of birth as 11th July 2008. She was living with her brother's wife when the Appellant began asking her for a relationship in October 2021, which she refused. He sent her cousin, Isaac Saba, to tell her that the Appellant loved her, and in November her cousin persuaded her to accept. She went with Isaac to his house and had sexual intercourse with the Appellant there, Isaac and his own girlfriend also being present. They had intercourse again towards the end of November. She fell ill in December and was taken to Cheptais Hospital by her brother's wife, where she was found to be pregnant; she testified that the pregnancy belonged to the Appellant. She informed one of her uncles, who confronted the Appellant. At Chesikaki Hospital a P3 Form was completed, and she testified that she was, at that time, three months pregnant. She had not earlier informed the Appellant that she was pregnant, as she did not know, this being her first sexual experience.
9. On cross-examination she confirmed that she was 14 years old, could not recall the exact date of the incident, and confirmed she was three months pregnant. She confirmed being at Isaac's house with the Appellant, that there were four of them present, and that she had intercourse with the Appellant only. She confirmed being at home on 24th December 2021 and going to hospital on 25th December 2021 at around 9.00 a.m.
10. PW2, Simon Kirui, testified that the complainant is his daughter and that on 25th December 2021 he noticed she was vomiting and took her to Cheptais Sub-County Hospital, where she was found to be pregnant. She told him the Appellant was responsible, and he reported the matter to Chesikaki Police Station, following which the Appellant was arrested. He testified that the Appellant is his neighbour and is married with three children. He confirmed his daughter was about 13 to 14 years old at the time of the incident and a pupil at Kimama Primary School. On cross-examination he confirmed he was the one who took the complainant to hospital and that this occurred on 25th December 2021.
11. PW3, Robin Walieli, a clinician attached to Cheptais Sub-County Hospital, testified on behalf of his colleague Rose Ngotor, who was unavailable on study leave in Kilifi County, stating that he was familiar with her handwriting and had been briefed by her. The P3 Form, dated 30th December 2021, confirmed a positive pregnancy of approximately eight weeks' gestation, with the cause of injury noted as a blunt object; no other findings could be deduced save for the approximate age of the injuries. The complainant had a yellowish, foul-smelling vaginal discharge and was treated with antibiotics, painkillers, and analgesics. Urinalysis showed an infection, and she tested negative for syphilis. The witness produced the treatment notes and the P3 Form. On cross-examination, the witness maintained that the findings were consistent with the complainant's account.
12. PW4, No. 124694 PC Brian Kariuki, attached to Chesikaki Police Station, testified that he took over the investigation after the original investigating officer was transferred to Busia. He recounted the complainant's account and testified that, upon conclusion of investigations, the Appellant was arrested by officers from the Chemondi Anti-Stock Theft Unit camp and brought to his station. He requested PW2 to produce the complainant's birth certificate. On cross-examination he confirmed that the complainant's home and the Appellant's home were about one kilometre apart.
13. PW5, Polycarp Luita Kweyu, an assistant government chemist, testified that he received an order for DNA testing of the complainant, the Appellant, and the child born of the pregnancy, to determine parentage. He conducted the tests and concluded, to a probability of 99.99%, that the child was the biological child of the Appellant. He produced his report.
14. At the close of the prosecution's case, the Appellant was placed on his defence and elected to give unsworn evidence without calling any witnesses. He testified that he sold illicit brew together with his father, one Simon Peter, and that they had fallen out after he had spent money belonging to the business; his father threatened that he would do something that would cost him his life, following which they parted ways and the Appellant continued the business alone. On 30th December 2021 he travelled to Uganda in connection with the brew business, and on his return that evening found officers from the Anti-Stock Theft Unit at his home, who arrested him and took him to Chesikaki Police Station. He was arraigned in court on 31st December 2021 for defilement, not for selling illicit brew. He denied defiling anybody and denied knowing the complainant.
D. JUDGMENT OF THE TRIAL COURT
15. The trial court found that the prosecution had proved all the elements of defilement beyond reasonable doubt, a finding further fortified by the government chemist's DNA report confirming the Appellant as the biological father of the child born of the pregnancy. The Appellant's defence was found to be an afterthought, not raised at the earliest opportunity, and the court found no demonstrated connection between the alleged dispute with his business partner and the charge before it; even if such a dispute existed, it had no bearing on the present case. The trial court accordingly found that the Appellant had defiled the complainant and sentenced him on the main count.
E. THE APPEAL
16. In written submissions, the Appellant submitted that the trial court denied him his right to the least severe of the available sentences under Articles 25(c) and 50(2)(p) of the Constitution by failing to order that his sentence run from the date of his arrest. He relied on Ndabi v Republic (1987) KLR 304, contending that he was arrested on 30th December 2021 and released on bond on 19th May 2022, and submitted that an accused on bond pending trial saves the public purse the costs of custody, security, and transport to and from court, and that it is accordingly in the public interest for time on remand to be credited. He prayed for a reduction of his sentence by the period spent in custody.
17. He further submitted that the Constitution protects him against self-incrimination, and that the order for DNA sampling and testing violated his rights under Article 50(4), relying on what he described as Section 122D of the Penal Code. He further submitted that penetration was not proved, and that the charge of defilement could not accordingly stand.
18. The Respondent, in brief submissions, maintained that the three elements of defilement had been proved and that the sentence imposed was lawful, being in accordance with the offending section. The Respondent further submitted that, should this Court find that the Appellant was not informed of his right to legal representation, or that the trial court's failure to pronounce itself on the alternative charge was irregular, a retrial would serve the interests of justice given the seriousness of the offence and the cogency of the evidence on record, such omissions being in the Respondent's submission mere technicalities.
F. ANALYSIS AND DETERMINATION
19. Having considered the record, the rival submissions, and the applicable law, I am satisfied that the following issues arise for determination: (a) whether the age of the complainant was proved; (b) whether penetration was proved; (c) whether the DNA sampling and testing violated the Appellant's constitutional rights; (d) whether the trial court's declining to pronounce itself on the alternative charge was irregular; (e) whether a retrial ought to be ordered on account of the matters raised by the Respondent; (f) whether the ground that the Appellant is “a young man” avails him; (g) whether the sentence of 20 years is harsh and excessive; and (h) whether the time the Appellant spent in custody was properly accounted for. I take each in turn.
20. On the age of the complainant, I note the discrepancy between her own recollection of having been born in 2007 and the birth certificate produced before the trial court, which recorded her date of birth as 11th July 2008. Documentary proof of age, where available, is the best evidence of a child's age and prevails over a lay witness's own estimate or recollection, particularly that of the child herself, who cannot be expected to recall with precision a date she did not personally register. Taking 11th July 2008 as her date of birth, the complainant was 13 years and approximately 4 months old at the time of the offence in November 2021, which corresponds precisely to the particulars of the charge and places her within the 12-to-15-year bracket contemplated by Section 8(3) of the Sexual Offences Act. I find the complainant's age to have been proved to the required standard.
21. On penetration, I find the evidence overwhelming. The complainant's own direct testimony was that she had sexual intercourse with the Appellant using their respective genitalia on two occasions. That account is corroborated, first, by the medical evidence of PW3, who produced the P3 Form recording a positive pregnancy of approximately eight weeks' gestation as at 30th December 2021, together with other findings consistent with recent sexual activity; and, decisively, by the DNA evidence of PW5, whose report established to a probability of 99.99% that the child born of that pregnancy was the biological child of the Appellant. Pregnancy resulting from intercourse is, self-evidently, proof not merely of the “slightest penetration” sufficient to constitute the offence under the principles set out in Mark Oiruri Mose v Republic [2013] eKLR and Erick Onyango Odeng' v Republic [2014] eKLR, but of penetration completed to the point of conception; a DNA-confirmed pregnancy is about as cogent a form of corroboration of penetration as our courts are ever likely to encounter. The submission that penetration was not proved is, with respect, unsustainable on this record and is rejected.
22. On the Appellant's submission that the DNA sampling and testing violated his rights against self-incrimination under Article 50(4) of the Constitution, I note at the outset that there is no provision styled “Section 122D of the Penal Code”; the Penal Code contains no provisions dealing with DNA or bodily samples. The relevant framework is found in Sections 118A to 122D of the Evidence Act (dealing with the taking and use of genetic and other bodily samples for forensic purposes) and in Section 36 of the Sexual Offences Act, which empowers a court, on the application of either the prosecution or an accused person, to direct that a bodily sample be taken for forensic analysis in proceedings of this nature. The privilege against self-incrimination protects an accused from being compelled to give testimonial or communicative evidence against himself; it has never been understood, in Kenyan or comparable jurisprudence, to extend to physical or bodily evidence such as blood, saliva, or buccal swabs taken pursuant to a lawful court order, precisely because such evidence does not depend on any assertion of fact by the accused for its probative value. The DNA sample here was, on the record, obtained and analysed pursuant to a lawful order for parentage testing, a species of forensic evidence expressly contemplated by statute. I find no violation of Article 50(4), and this ground fails.
23. On the trial court's declining to pronounce itself on the alternative charge of committing an indecent act contrary to Section 11(1) of the Sexual Offences Act, I find no irregularity. Where an accused faces a main count and an alternative count arising from the same facts, and the prosecution succeeds in proving the main count beyond reasonable doubt, it is neither necessary nor useful for the trial court to also pronounce a formal verdict on the alternative count, which becomes redundant once a conviction is entered on the substantive charge; to do otherwise would, as the trial court correctly observed, amount to no more than an academic exercise. I find nothing in this course of action capable of vitiating the conviction.
24. I turn to the Respondent's own submission, made in the alternative, that a retrial should be ordered if this Court finds that the Appellant was not informed of his right to legal representation. I decline to order a retrial on this basis. The Appellant does not raise the absence of legal representation as a ground of appeal at all; he represented himself at trial, gave his own defence, and has at no stage — whether before the trial court or in this appeal — suggested that he was denied an opportunity to secure counsel, that he asked for and was refused legal aid, or that his ability to present his defence was in any way compromised by the absence of an advocate. The right under Article 50(2)(g) and (h) of the Constitution is a right to be informed of, and where appropriate to be afforded, legal representation; it is not violated merely because the record is silent on the point, in the absence of any indication that the accused was thereby prejudiced. No prejudice has been shown or is apparent on this record, and I find no basis for the retrial the Respondent cautiously proposes; in any event, having upheld the conviction on the merits below, the question of retrial does not arise.
25. On the ground that the Appellant is “a young man who still needs to do a great deal,” I find this ground to be without any evidential foundation on this record; indeed, it is contradicted by the unchallenged evidence of PW2 that the Appellant is a married man with three children. Whatever the origin of this ground, it does not correspond to any fact established at trial, and it does not avail the Appellant.
26. On the submission that the sentence of 20 years is harsh and excessive, I bear in mind that Section 8(3) of the Sexual Offences Act prescribes a sentence of not less than 20 years' imprisonment for the defilement of a child aged between 12 and 15 years, a bracket squarely applicable here. Guided by the Court of Appeal's holding in Dismas Wafula Kilwake v Republic [2018] eKLR that the sentencing provisions of Section 8 must be construed so as not to remove the trial court's sentencing discretion altogether, I have considered whether any circumstance justifies a sentence below the statutory floor. I find none. The trial court imposed precisely the minimum sentence prescribed for this age bracket; the offence involved the deliberate and calculated seduction of a 13-year-old child through an intermediary, resulted in her pregnancy at that tender age, and has been conclusively linked to the Appellant by DNA evidence. The Appellant's claimed remorse and status as a first offender, while noted, are insufficient, whether taken singly or cumulatively, to displace a sentence that already represents the legislative floor for this category of offence. This ground fails.
27. I turn finally to the time the Appellant spent in custody. I have perused the record and find the following chronology to be established: the Appellant was arrested on 30th December 2021 and released on bond on 19th May 2022, a continuous period in custody of approximately 140 days; he thereafter absconded bail from on or about 22nd April 2024, and was rearrested and arraigned under warrant on 12th June 2024, following which he remained in custody until he was convicted and sentenced on 15th May 2025. The trial court, in directing that the sentence run from 12th June 2024, gave credit for the period in custody following the Appellant's rearrest, but made no reference at all to, and gave no credit for, the earlier and distinct period of approximately 140 days the Appellant spent in custody between his initial arrest on 30th December 2021 and his release on bond on 19th May 2022.
28. Section 333(2) of the Criminal Procedure Code, by its proviso, obliges a sentencing court to take into account any period an accused has spent in custody prior to sentence. As the Court of Appeal held in Bethwel Wilson Kibor v Republic [2009] eKLR, a failure to expressly account for a period of custody is itself an error open to correction on appeal, and in Ahamad Abolfathi Mohammed & Another v Republic [2018] eKLR the Court of Appeal held that “taking into account” custody must be given real, practical effect and is not satisfied by a partial or selective accounting of the periods actually served. I do not accept the Appellant's characterization of this complaint as one arising under Articles 25(c) or 50(2)(p) of the Constitution: Article 25(c) protects against torture and cruel, inhuman or degrading treatment, and a lawfully imposed custodial sentence following a fair trial does not engage that provision merely because it is lengthy; and Article 50(2)(p) concerns the retrospective benefit of a lesser prescribed penalty where the law changes between the commission of an offence and sentencing, a different question altogether from the computation of time already served. The proper vehicle for this complaint is Section 333(2) of the Criminal Procedure Code, and it is on that basis, rather than the constitutional provisions cited, that I consider it. I am not, in the circumstances, able to verify the Appellant's reliance on Ndabi v Republic (1987) KLR 304 against any citation available to this Court, and I do not rest my conclusion on that authority; the conclusion instead follows directly from Section 333(2) and the guidance in Kibor and Abolfathi Mohammed.
29. The period between 22nd April 2024, when the Appellant absconded bail, and 12th June 2024, when he was rearrested, is not a period spent in custody at all; the Appellant was at large during that interval, having jumped bail, and no credit is due in respect of it. The omitted period is confined to the approximately 140 days between 30th December 2021 and 19th May 2022, during which the Appellant was in lawful custody pending trial and which the trial court's sentencing order does not reflect. Applying the principle in Abolfathi Mohammed that a remand period must be given practical effect and not merely acknowledged in passing, I find that this additional period ought to be credited by a corresponding adjustment to the date from which the sentence is deemed to commence.
30. Accordingly, in addition to the credit already given by the trial court from 12th June 2024, the sentence shall be further credited with the 140 days spent in custody between 30th December 2021 and 19th May 2022. The precise computation of the resulting release date is left to the officer in charge of the Appellant's place of custody, to be verified against the primary custody records.
31. Save for this adjustment to the commencement date of the sentence, I find no merit in any other ground advanced against either the conviction or the sentence. The prosecution proved each element of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act to the standard of beyond reasonable doubt, the Appellant's defence was properly rejected as an afterthought bearing no relation to the charge, and the sentence of 20 years' imprisonment, being the statutory minimum for this category of offence, was lawfully and appropriately imposed.
G. DISPOSITION
32. For the foregoing reasons, I find and hold as follows:
(a) The appeal against conviction is dismissed; the conviction of the Appellant for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act is upheld and affirmed.
(b) The appeal against the length of the sentence is dismissed; the sentence of 20 years' imprisonment is upheld as lawful and appropriate.
(c) The appeal against the computation of the sentence succeeds to the limited extent set out below.
(d) The sentence of 20 years' imprisonment shall be computed to include 140 days earlier than 12th June 2024, to reflect the additional period spent in custody between 30th December 2021 and 19th May 2022, which was not otherwise credited by the trial court.
(e) Save as varied at (d) above, the judgment and sentence of the trial court are otherwise upheld.
It is so ordered.
Delivered at Kericho this 30th day of July 2026
In the presence of;
Appellant
C/A Irene Chelangat