The Appellant was convicted and sentenced to serve 20 years’ imprisonment for the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act.
The particulars of the offence were that the Appellant on the 27th August 2023 at about 18.30hrs at Egitugi village at Nyabera Sub-Location in Etago Sub-County in Kisii County intentionally caused his penis to penetrate the vagina of C. K. S a child aged 15 years.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal dated 7th March 2024 on the following grounds:
a. THAT, the learned Magistrate failed both in law and fact by convicting the Appellant without observing that the offence of defilement was not proved beyond reasonable doubt.
b. THAT, the learned Trial Magistrate erred in both law and fact by convicting the Appellant irrespective of the fact that there was no medical evidence linking the Appellant to the offence for which he was convicted.
c. THAT, learned the Trial Magistrate erred in law and in fact by failing to consider that the Appellant’s rights to legal representation as enshrined in Article 50(2) (g) & (h) of the Constitution.
d. THAT, the learned Magistrate erred in law by meting out a sentence that was harsh and excessive in the circumstances of the case.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Prosecution’s case was that the Complainant PW1 aged 15 years was on her way home when she met the Appellant who pulled her into the tree plantation and defiled her after covering her mouth. That when he uncovered her mouth she screamed and the Appellant escaped. That on her way home she met her mother and reported what had happened. The Complainant testified that she was taken to Etago Sub-County Hospital the following day on 28th August 2023 and she was examined, treated and P3 form duly issued at Moticho Police Station and filled. PRC form was also duly filled.PW1 identified the PRC and P3 forms. She also identified the Appellant as the person who defiled her.
In cross examination the Complainant said she did not scream because the Appellant covered her mouth when defiling her.
PW2 Anna Nyambeki the mother of the Complainant identified the Complainant’s certificate of Birth and said that the Complainant was 15 years old. She testified that on 27th August 2023 she sent the Complainant and her siblings to go and get her some money at 6.00pm. That the Complainant’s siblings returned but she was not with them. PW2 left to go and look for her. That she met her on the road and asked where she had been and she explained that on her way from Betty’s home she met Betty’s husband who forced her to have sex with him. PW2 reported the matter at Moticho Police Post and she took the Complainant to hospital. PW2 said that she sells avocado to the Appellant and his family and she knew him very well.
In cross examination she said she did not meet the Appellant on the material day. That on the following day she went for casual job with the Appellant. She said she took the Complainant to Moticho Hospital on 1.9.2023 and later to Etago Sub-County Hospital. She said the Appellant had not wronged her but the Complainant reported he had defiled her.
PW3 Abel Moturi Clinical Officer at Etago Sub-County Hospital examined the Complainant on 7th September 2023 for allegations of defilement that took place on 28th August 2023 by a person well known to the patient. He said the patient had been taken to Moticho Health Centre. He said the patient had healing lacerations on the vaginal walls but there was no bleeding or discharge. Results from laboratory tests were negative for HIV and syphilis. Pregnancy test was also negative. The urinalysis was negative and high vaginal swap was negative. P3 Form was produced, treatment notes dated 7/9/2023 and PRC Form dated 8/9/2023 as Exhibit 2 – 4. The Clinical Officer said that he could not make any conclusive finding because the minor was taken to hospital when it was late.
PW4 P. C. Jubenel Morure of Moticho Police Station was instructed on 3/9/2023 by the OCS to investigate the offence herein. PW2 reported that on 27/8/2023 the daughter had been defiled by the Appellant. PW4 then referred the Complainant and her mother to Etago Sub County Hospital where she was attended to on 7/9/2023. PW4 further stated that since the Appellant had disappeared it took them one month to arrest him. That on 6/10/2023 the Appellant surrendered himself and he was placed in the police cells. PW4 stated that the Complainant was aged 15 years and produced her birth certificate as Exhibit 1.
When the Appellant was placed on defense he gave unsworn testimony and said that on 27th August 2023 he went to church and thereafter went home. That the following day he took PW2 to Kemunto’s land where they worked and he paid her after 8 days. That after sometime he learnt that PW2 had reported him at Moticho Police Post that he had defiled her daughter and he was arrested. The Appellant said he did not defile the Complainant. He said that he was charged because of a family feud. He said the scene is near houses and he could not have committed the offence. He also said that it is not possible to have sex while standing. He said when the minor was examined after 72 hours there was no proof he committed the offence.
This Appeal was canvassed by way of written submissions.
The Appellant’s written submissions are dated 21st November 2024 and he submitted that the Complainant’s evidence was contradictory as on the one hand she said she was with her siblings and again that she was alone when she met the Appellant who defiled her. That it was not clear under what circumstances the Complainant’s siblings left her. He said that the evidence of PW1 raises doubt.
The Appellant wondered how it was possible for him to cover the Complainant’s mouth with one hand and at the same time remove his underwear and that of the Complainant at the same time and defile her. The Appellant argued that PW1’S evidence lacked merit as it is not possible that she was defiled while standing with her mouth allegedly covered.
The Appellant cited the holding in John Waweru Njoka Vs Republic where the High Court at Garissa in Criminal Case No 106 of 2014 held that where the prosecution evidence is insufficient to support conviction and a material witness is not called, the court may infer that the evidence of that witness would not have favored the prosecution.
The Appellant further cited the holding in John Mutua Musyoka Vs Republic (2017) C. A. 11, 2016 where it was held that where the court failed to evaluate the veracity of all contradictions and inconsistencies the same go to the root of the prosecution case.
The Appellant argued that the prosecution failed to adduce water tight evidence against him and he ought not have been convicted based on contradictory evidence.
Regarding whether the offence against him had been proved the Appellant submitted that the Prosecution omitted to call the Complainant’s siblings to testify because their evidence was going to be adverse to them. He cited the holdings in Micheal Kinuthia Muturi Vs Republic Appeal No 51 of 2002; Francis Obonyo Angwenyi Vs Republic HCCRA No 218 of 2004 and Bukenya & Others Vs Uganda (1972) EA 549 to support his position.
The Appellant also submitted the medical report relied upon to convict him was scanty. He said the Complainant was taken to hospital after 5 days on 9th September when the offence was committed on 27th August 2023 and apart from healing vaginal wall all other tests were negative and the Clinical Officer could not make any conclusions as to defilement. He said the Complainant and her mother gave contradictory evidence as to the date she was taken to Moticho Health Centre and it was difficult to distinguish who between the 2 was telling the truth.
The Appellant faulted the Trial Magistrate for concluding that lacerations on the vaginal wall was indication of penetration when he was not a medical officer. He argued that even where the hymen is broken it was held in Joseph Machoka Nyabwabu Vs Republic Kisii HCCRA No 126 of 2015 that a broken hymen is not conclusive evidence of penetration.
The Appellant also argued that the sentence meted against him was too harsh and excessive and not comparable to decisions rendered in respect to comparable offences. The Appellant contended that his sentence depicts that he was handled maliciously and in an unfair manner
The Appellant urged the court to quash conviction and set aside the sentence.
The Respondent’s on the other hand filed written submissions dated 14th November 2024 and opposed the appeal.
The Respondent submitted that all the ingredients of the offence of defilement had been proved beyond all reasonable doubt. It was submitted that the Complainant and her mother PW2 confirmed that she was 15 years at the time of the offence and that was sufficient proof. It was also submitted that the Complainant testified and gave detailed account of how the Appellant forcefully took her into a tree plantation and defiled her and the Clinical Officer said he observed healing lacerations on the child’s vaginal wall.
The Respondent’s Counsel submitted that Section 124 of the Evidence Act allows the court to convict solely on the evidence of the victim as long as the court believes the victim is telling the truth and records the reasons. The Respondent argued that the Trial Magistrate properly invoked the provisions of Section 124 of the Evidence Act to find that penetration had been proved. The holding in Hadson Ali Mwachongo Vs Republic Criminal Appeal No. 65 of 2015 was also relied upon by the Respondent where the court while dismissing an appeal on similar grounds stated that: -
“We are equally satisfied that the appellant’s constitutional right to a fair trial was not violated. The record does not indicate the appellant raising any issue pertaining to access to witness statements. On the contrary, he is recorded informing the court that he was ready for the hearing of the case. When he was put on his defence 18th April 2011, he informed the Court that he was ready for his defence but later stated that he needed to be provided with “the charge”. The trial court adjourned the proceedings and directed that the proceedings be typed and supplied to the appellant. On 3rd June 2011 the record shows that the court noted that the typed proceedings were ready and directed that the appellant be supplied with copies in readiness for hearing of his defence on 8th July 2011. On the latter date the appellant indicated that he was ready for the hearing of his defence. In short, the appellant’s complaint regarding denial of access to witness statements is simply not borne out by the record.”
On the issue of identification of the perpetrator it was submitted that the Appellant was recognized by the Complainant as the offence was committed at around 18.00hours in broad day light and he was known to the Complainant as a neighbor and they go to the same church.
The Respondent’s submissions in regard to the 3rd ground was that the Constitution mandates the court to appoint an advocate for the accused person at the state expense whenever the court is of the opinion that substantial injustice will be occasioned if the accused is not represented by an advocate at trial. While relying in the Supreme Court of Kenya decision in Republic Vs Chengo & 2 Others the Respondent submitted that it was evident that no substantial injustice was occasioned since the Appellant fully participated in the trial, cross examined prosecution witnesses and conducted his defense. That the Appellant did not raise the issue of legal representation before the trial court and cannot fault the trial court.
The Respondent cited the holding of the Court of Appeal in Manyeso Vs Republic (Criminal Appeal No. 12 of 2021 [2023] KECA 827 where the court stated:
“This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated.”
On ground 4 the Respondent submitted that the sentence of 20 years’ imprisonment is legal and in consonant with Section 8(3) of the Sexual Offences Act and is not excessive.
The Respondent urged the court to find the conviction safe and uphold the same and dismiss the appeal.
Analysis and Determination
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are:
(a) Whether the Trial Magistrate that the Appellant’s rights to legal representation as enshrined in Article 50(2) (g) & (h) of the Constitution was violated.
(b) Whether the ingredients of the offence of defilement were proved beyond reasonable doubt and whether the medical evidence linked the Appellant to the offence for which he was convicted.
(c) Whether the sentence that was meted against the Appellant was harsh and excessive in the circumstances of the case.
On Whether the Appellant’s rights to legal representation as enshrined in Article 50(2) (g) & (h) of the Constitution was violated it is provided that every accused person has the right to be informed promptly of the right to legal representation of their choice as per Article 50(2) (g) and where it is satisfied that substantial injustice maybe occasioned then the Court is mandated to inform the accused promptly of the right to legal representation at the expense of the state and to appoint such an advocate for the accused person.
Looking at the hand written proceedings in the Trial Court I have noticed that when the Appellant was arraigned in court the only right that was exercised in his favor was the right to interpretation. He was not informed of the rights under Article 50(2) (g) & (h) and he therefore proceeded with trial unrepresented.
In the Supreme Court of Kenya decision in Republic Vs Chengo & 2 Others (Petition No. 5 of 2015) 2017-KESC (15) KLR it was held that since the Appellant fully participated in the trial, cross examined the prosecution witnesses and conducted his defense and did not raise the issue of legal representation before the trial court it was evident that no substantial injustice was occasioned.
Further in the holding of the Court of Appeal in Manyeso Vs Republic (Criminal Appeal No. 12 of 2021 [2023] KECA 827 it was stated:
‘’This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated.’’
The Appellant herein was released on bond and his trial proceeded while he was on bond. When the matter came up for hearing on 3rd January 2024 and the Prosecution indicated there were 2 witnesses the Appellant said he was ready to take their evidence. He did cross examine the 2 witnesses and the subsequent ones without complaining that he needed legal representation. On 31st January 2024 he was also ready to proceed and he cross examined PW3 and 4 before the Prosecution case was closed and he opted to give unsworn statement.
This court therefore finds that the Appellant’s rights under Article 50(2) (g) & (h) were not violated.
On whether the ingredients of the offence of defilement were proved beyond reasonable doubt, Section 8 (1) as read with 8(3) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
From the evidence of PW1 she said she was 15 years and was in form 2. She identified and PW4 produced her Certificate of Birth as Ex P1 showing she was born on 20/07/2008. The P3 and PRC forms as well as Out Patient Attendance Card produced by PW3 the Clinical Officer also showed that the Complainant was 15 years. The Complainant’s mother also testified to the fact that the Complainant was 15 years old. The age of the Complainant was therefore proved to the required standard.
On the issue of penetration, the Complainant said that the Appellant met her on her way home and took her forcefully to a tree plantation and defiled her while she was standing and holding her mouth to prevent her from screaming. That when he released her and she screamed nobody responded but the Appellant ran away. PW1 reported to her mother what happened and they went to Moticho Health Centre where according to the Out Patient Card she was examined but there was no intervention undertaken. When the Complainant was taken to Etago Sub-County Hospital PW3 found she had healing lacerations on the vaginal wall and her hymen was broken. The Appellant in his submissions faulted the Trial Magistrate for finding that the lacerations were as a result of penetration and yet the breaking of hymen could have been by any other means other than by penetration.
In his defense the Appellant gave unsworn statement and denied having committed the offence and attributed his being charged with family feud. He however did not explain what feud he had with the Complainant and her mother and PW2 said she had never differed with the Appellant. Upon the report herein being made the Appellant went underground and it was after one month that he surfaced and surrendered himself to the police and he was arrested.
The Trial Magistrate during trial conducted voire dire examination upon the Complainant and established that she understood the nature of an oath and caused her to testify on oath. The Complainant upon giving her testimony on oath was subjected to cross examination by the Appellant and the Trial Magistrate said he did not have reasons to doubt that the Complainant’s evidence was truthful and credible. This court therefore has no reason to unsettle the finding of the Trial Magistrate that the Complainant’s genital was penetrated.
On the issue as to whether the perpetrator was positively identified the Complainant said he was known to her as a neighbor and they attended the same church. There was also evidence that even after he had defiled the Complainant he accompanied the Complainant’s mother to do some casual work and according to him he paid her after 8 days. This claim that he paid the Complainant’s mother was however not raised in cross examination and it is contradictory to PW4’s evidence that the Appellant went underground for one month after defiling the Complainant and when he resurfaced he surrendered to the police.
On whether the sentence that was meted against the Appellant was harsh and excessive in the circumstances of the case. The Appellant submitted that the sentence meted against him was not proportional to the offence and the mandatory nature of sentences under Sexual Offences Act was unconstitutional.
The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) overturned the Court of Appeal decision that mandatory minimum sentences in Sexual Offences Act are unconstitutional when it held:
Section 8(4) of the Sexual Offences Act provides for imprisonment for a term of not less than fifteen years for defilement of a child between the age of 16 and 18 and the Appellant’s sentence was therefore lawful particularly since he used force and threatened to kill the Complainant if she did not co-operate and also threatened to cause her harm if she revealed that he had defiled her. This court finds no reason to interfere with the sentence.
The Appellant was sentenced to serve 20 years’ imprisonment. Section 8(3) of the Sexual Offences Act provides:
“(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
In this case the Complainant was 15 years at the time of the incident and the sentence was therefore lawful and proportional to the offence committed. There is no reason to fault and/or unsettle the Trial Magistrate.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal lacks merit and the conviction and sentence by the Trial Court is upheld. The appeal is dismissed.
Right of Appeal 14 days.
Dated, Signed and Delivered at Kisii this 24th day of June, 2025
The particulars of the offence were that the Appellant on the 27th August 2023 at about 18.30hrs at Egitugi village at Nyabera Sub-Location in Etago Sub-County in Kisii County intentionally caused his penis to penetrate the vagina of C. K. S a child aged 15 years.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal dated 7th March 2024 on the following grounds:
a. THAT, the learned Magistrate failed both in law and fact by convicting the Appellant without observing that the offence of defilement was not proved beyond reasonable doubt.
b. THAT, the learned Trial Magistrate erred in both law and fact by convicting the Appellant irrespective of the fact that there was no medical evidence linking the Appellant to the offence for which he was convicted.
c. THAT, learned the Trial Magistrate erred in law and in fact by failing to consider that the Appellant’s rights to legal representation as enshrined in Article 50(2) (g) & (h) of the Constitution.
d. THAT, the learned Magistrate erred in law by meting out a sentence that was harsh and excessive in the circumstances of the case.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Prosecution’s case was that the Complainant PW1 aged 15 years was on her way home when she met the Appellant who pulled her into the tree plantation and defiled her after covering her mouth. That when he uncovered her mouth she screamed and the Appellant escaped. That on her way home she met her mother and reported what had happened. The Complainant testified that she was taken to Etago Sub-County Hospital the following day on 28th August 2023 and she was examined, treated and P3 form duly issued at Moticho Police Station and filled. PRC form was also duly filled.PW1 identified the PRC and P3 forms. She also identified the Appellant as the person who defiled her.
In cross examination the Complainant said she did not scream because the Appellant covered her mouth when defiling her.
PW2 Anna Nyambeki the mother of the Complainant identified the Complainant’s certificate of Birth and said that the Complainant was 15 years old. She testified that on 27th August 2023 she sent the Complainant and her siblings to go and get her some money at 6.00pm. That the Complainant’s siblings returned but she was not with them. PW2 left to go and look for her. That she met her on the road and asked where she had been and she explained that on her way from Betty’s home she met Betty’s husband who forced her to have sex with him. PW2 reported the matter at Moticho Police Post and she took the Complainant to hospital. PW2 said that she sells avocado to the Appellant and his family and she knew him very well.
In cross examination she said she did not meet the Appellant on the material day. That on the following day she went for casual job with the Appellant. She said she took the Complainant to Moticho Hospital on 1.9.2023 and later to Etago Sub-County Hospital. She said the Appellant had not wronged her but the Complainant reported he had defiled her.
PW3 Abel Moturi Clinical Officer at Etago Sub-County Hospital examined the Complainant on 7th September 2023 for allegations of defilement that took place on 28th August 2023 by a person well known to the patient. He said the patient had been taken to Moticho Health Centre. He said the patient had healing lacerations on the vaginal walls but there was no bleeding or discharge. Results from laboratory tests were negative for HIV and syphilis. Pregnancy test was also negative. The urinalysis was negative and high vaginal swap was negative. P3 Form was produced, treatment notes dated 7/9/2023 and PRC Form dated 8/9/2023 as Exhibit 2 – 4. The Clinical Officer said that he could not make any conclusive finding because the minor was taken to hospital when it was late.
PW4 P. C. Jubenel Morure of Moticho Police Station was instructed on 3/9/2023 by the OCS to investigate the offence herein. PW2 reported that on 27/8/2023 the daughter had been defiled by the Appellant. PW4 then referred the Complainant and her mother to Etago Sub County Hospital where she was attended to on 7/9/2023. PW4 further stated that since the Appellant had disappeared it took them one month to arrest him. That on 6/10/2023 the Appellant surrendered himself and he was placed in the police cells. PW4 stated that the Complainant was aged 15 years and produced her birth certificate as Exhibit 1.
When the Appellant was placed on defense he gave unsworn testimony and said that on 27th August 2023 he went to church and thereafter went home. That the following day he took PW2 to Kemunto’s land where they worked and he paid her after 8 days. That after sometime he learnt that PW2 had reported him at Moticho Police Post that he had defiled her daughter and he was arrested. The Appellant said he did not defile the Complainant. He said that he was charged because of a family feud. He said the scene is near houses and he could not have committed the offence. He also said that it is not possible to have sex while standing. He said when the minor was examined after 72 hours there was no proof he committed the offence.
This Appeal was canvassed by way of written submissions.
The Appellant’s written submissions are dated 21st November 2024 and he submitted that the Complainant’s evidence was contradictory as on the one hand she said she was with her siblings and again that she was alone when she met the Appellant who defiled her. That it was not clear under what circumstances the Complainant’s siblings left her. He said that the evidence of PW1 raises doubt.
The Appellant wondered how it was possible for him to cover the Complainant’s mouth with one hand and at the same time remove his underwear and that of the Complainant at the same time and defile her. The Appellant argued that PW1’S evidence lacked merit as it is not possible that she was defiled while standing with her mouth allegedly covered.
The Appellant cited the holding in John Waweru Njoka Vs Republic where the High Court at Garissa in Criminal Case No 106 of 2014 held that where the prosecution evidence is insufficient to support conviction and a material witness is not called, the court may infer that the evidence of that witness would not have favored the prosecution.
The Appellant further cited the holding in John Mutua Musyoka Vs Republic (2017) C. A. 11, 2016 where it was held that where the court failed to evaluate the veracity of all contradictions and inconsistencies the same go to the root of the prosecution case.
The Appellant argued that the prosecution failed to adduce water tight evidence against him and he ought not have been convicted based on contradictory evidence.
Regarding whether the offence against him had been proved the Appellant submitted that the Prosecution omitted to call the Complainant’s siblings to testify because their evidence was going to be adverse to them. He cited the holdings in Micheal Kinuthia Muturi Vs Republic Appeal No 51 of 2002; Francis Obonyo Angwenyi Vs Republic HCCRA No 218 of 2004 and Bukenya & Others Vs Uganda (1972) EA 549 to support his position.
The Appellant also submitted the medical report relied upon to convict him was scanty. He said the Complainant was taken to hospital after 5 days on 9th September when the offence was committed on 27th August 2023 and apart from healing vaginal wall all other tests were negative and the Clinical Officer could not make any conclusions as to defilement. He said the Complainant and her mother gave contradictory evidence as to the date she was taken to Moticho Health Centre and it was difficult to distinguish who between the 2 was telling the truth.
The Appellant faulted the Trial Magistrate for concluding that lacerations on the vaginal wall was indication of penetration when he was not a medical officer. He argued that even where the hymen is broken it was held in Joseph Machoka Nyabwabu Vs Republic Kisii HCCRA No 126 of 2015 that a broken hymen is not conclusive evidence of penetration.
The Appellant also argued that the sentence meted against him was too harsh and excessive and not comparable to decisions rendered in respect to comparable offences. The Appellant contended that his sentence depicts that he was handled maliciously and in an unfair manner
The Appellant urged the court to quash conviction and set aside the sentence.
The Respondent’s on the other hand filed written submissions dated 14th November 2024 and opposed the appeal.
The Respondent submitted that all the ingredients of the offence of defilement had been proved beyond all reasonable doubt. It was submitted that the Complainant and her mother PW2 confirmed that she was 15 years at the time of the offence and that was sufficient proof. It was also submitted that the Complainant testified and gave detailed account of how the Appellant forcefully took her into a tree plantation and defiled her and the Clinical Officer said he observed healing lacerations on the child’s vaginal wall.
The Respondent’s Counsel submitted that Section 124 of the Evidence Act allows the court to convict solely on the evidence of the victim as long as the court believes the victim is telling the truth and records the reasons. The Respondent argued that the Trial Magistrate properly invoked the provisions of Section 124 of the Evidence Act to find that penetration had been proved. The holding in Hadson Ali Mwachongo Vs Republic Criminal Appeal No. 65 of 2015 was also relied upon by the Respondent where the court while dismissing an appeal on similar grounds stated that: -
“We are equally satisfied that the appellant’s constitutional right to a fair trial was not violated. The record does not indicate the appellant raising any issue pertaining to access to witness statements. On the contrary, he is recorded informing the court that he was ready for the hearing of the case. When he was put on his defence 18th April 2011, he informed the Court that he was ready for his defence but later stated that he needed to be provided with “the charge”. The trial court adjourned the proceedings and directed that the proceedings be typed and supplied to the appellant. On 3rd June 2011 the record shows that the court noted that the typed proceedings were ready and directed that the appellant be supplied with copies in readiness for hearing of his defence on 8th July 2011. On the latter date the appellant indicated that he was ready for the hearing of his defence. In short, the appellant’s complaint regarding denial of access to witness statements is simply not borne out by the record.”
On the issue of identification of the perpetrator it was submitted that the Appellant was recognized by the Complainant as the offence was committed at around 18.00hours in broad day light and he was known to the Complainant as a neighbor and they go to the same church.
The Respondent’s submissions in regard to the 3rd ground was that the Constitution mandates the court to appoint an advocate for the accused person at the state expense whenever the court is of the opinion that substantial injustice will be occasioned if the accused is not represented by an advocate at trial. While relying in the Supreme Court of Kenya decision in Republic Vs Chengo & 2 Others the Respondent submitted that it was evident that no substantial injustice was occasioned since the Appellant fully participated in the trial, cross examined prosecution witnesses and conducted his defense. That the Appellant did not raise the issue of legal representation before the trial court and cannot fault the trial court.
The Respondent cited the holding of the Court of Appeal in Manyeso Vs Republic (Criminal Appeal No. 12 of 2021 [2023] KECA 827 where the court stated:
“This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated.”
On ground 4 the Respondent submitted that the sentence of 20 years’ imprisonment is legal and in consonant with Section 8(3) of the Sexual Offences Act and is not excessive.
The Respondent urged the court to find the conviction safe and uphold the same and dismiss the appeal.
Analysis and Determination
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
Having considered the grounds of Appeal, and revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are:
(a) Whether the Trial Magistrate that the Appellant’s rights to legal representation as enshrined in Article 50(2) (g) & (h) of the Constitution was violated.
(b) Whether the ingredients of the offence of defilement were proved beyond reasonable doubt and whether the medical evidence linked the Appellant to the offence for which he was convicted.
(c) Whether the sentence that was meted against the Appellant was harsh and excessive in the circumstances of the case.
On Whether the Appellant’s rights to legal representation as enshrined in Article 50(2) (g) & (h) of the Constitution was violated it is provided that every accused person has the right to be informed promptly of the right to legal representation of their choice as per Article 50(2) (g) and where it is satisfied that substantial injustice maybe occasioned then the Court is mandated to inform the accused promptly of the right to legal representation at the expense of the state and to appoint such an advocate for the accused person.
Looking at the hand written proceedings in the Trial Court I have noticed that when the Appellant was arraigned in court the only right that was exercised in his favor was the right to interpretation. He was not informed of the rights under Article 50(2) (g) & (h) and he therefore proceeded with trial unrepresented.
In the Supreme Court of Kenya decision in Republic Vs Chengo & 2 Others (Petition No. 5 of 2015) 2017-KESC (15) KLR it was held that since the Appellant fully participated in the trial, cross examined the prosecution witnesses and conducted his defense and did not raise the issue of legal representation before the trial court it was evident that no substantial injustice was occasioned.
Further in the holding of the Court of Appeal in Manyeso Vs Republic (Criminal Appeal No. 12 of 2021 [2023] KECA 827 it was stated:
‘’This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated.’’
The Appellant herein was released on bond and his trial proceeded while he was on bond. When the matter came up for hearing on 3rd January 2024 and the Prosecution indicated there were 2 witnesses the Appellant said he was ready to take their evidence. He did cross examine the 2 witnesses and the subsequent ones without complaining that he needed legal representation. On 31st January 2024 he was also ready to proceed and he cross examined PW3 and 4 before the Prosecution case was closed and he opted to give unsworn statement.
This court therefore finds that the Appellant’s rights under Article 50(2) (g) & (h) were not violated.
On whether the ingredients of the offence of defilement were proved beyond reasonable doubt, Section 8 (1) as read with 8(3) of the Sexual Offences Act provides:
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement…….
….. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
The key ingredients of the offence of defilement are age of the victim, proof of penetration and identification of the assailant.
In the Court of Appeal case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR it was stated as follows on proof of age.
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
From the evidence of PW1 she said she was 15 years and was in form 2. She identified and PW4 produced her Certificate of Birth as Ex P1 showing she was born on 20/07/2008. The P3 and PRC forms as well as Out Patient Attendance Card produced by PW3 the Clinical Officer also showed that the Complainant was 15 years. The Complainant’s mother also testified to the fact that the Complainant was 15 years old. The age of the Complainant was therefore proved to the required standard.
On the issue of penetration, the Complainant said that the Appellant met her on her way home and took her forcefully to a tree plantation and defiled her while she was standing and holding her mouth to prevent her from screaming. That when he released her and she screamed nobody responded but the Appellant ran away. PW1 reported to her mother what happened and they went to Moticho Health Centre where according to the Out Patient Card she was examined but there was no intervention undertaken. When the Complainant was taken to Etago Sub-County Hospital PW3 found she had healing lacerations on the vaginal wall and her hymen was broken. The Appellant in his submissions faulted the Trial Magistrate for finding that the lacerations were as a result of penetration and yet the breaking of hymen could have been by any other means other than by penetration.
In his defense the Appellant gave unsworn statement and denied having committed the offence and attributed his being charged with family feud. He however did not explain what feud he had with the Complainant and her mother and PW2 said she had never differed with the Appellant. Upon the report herein being made the Appellant went underground and it was after one month that he surfaced and surrendered himself to the police and he was arrested.
The Trial Magistrate during trial conducted voire dire examination upon the Complainant and established that she understood the nature of an oath and caused her to testify on oath. The Complainant upon giving her testimony on oath was subjected to cross examination by the Appellant and the Trial Magistrate said he did not have reasons to doubt that the Complainant’s evidence was truthful and credible. This court therefore has no reason to unsettle the finding of the Trial Magistrate that the Complainant’s genital was penetrated.
On the issue as to whether the perpetrator was positively identified the Complainant said he was known to her as a neighbor and they attended the same church. There was also evidence that even after he had defiled the Complainant he accompanied the Complainant’s mother to do some casual work and according to him he paid her after 8 days. This claim that he paid the Complainant’s mother was however not raised in cross examination and it is contradictory to PW4’s evidence that the Appellant went underground for one month after defiling the Complainant and when he resurfaced he surrendered to the police.
On whether the sentence that was meted against the Appellant was harsh and excessive in the circumstances of the case. The Appellant submitted that the sentence meted against him was not proportional to the offence and the mandatory nature of sentences under Sexual Offences Act was unconstitutional.
The Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) overturned the Court of Appeal decision that mandatory minimum sentences in Sexual Offences Act are unconstitutional when it held:
Section 8(4) of the Sexual Offences Act provides for imprisonment for a term of not less than fifteen years for defilement of a child between the age of 16 and 18 and the Appellant’s sentence was therefore lawful particularly since he used force and threatened to kill the Complainant if she did not co-operate and also threatened to cause her harm if she revealed that he had defiled her. This court finds no reason to interfere with the sentence.
The Appellant was sentenced to serve 20 years’ imprisonment. Section 8(3) of the Sexual Offences Act provides:
“(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”
In this case the Complainant was 15 years at the time of the incident and the sentence was therefore lawful and proportional to the offence committed. There is no reason to fault and/or unsettle the Trial Magistrate.
Based on the re-evaluation of the evidence on record in the trial Court, analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal lacks merit and the conviction and sentence by the Trial Court is upheld. The appeal is dismissed.
Right of Appeal 14 days.
Dated, Signed and Delivered at Kisii this 24th day of June, 2025