A. THE CHARGES.
1. The Appellant Isaac Mkenya Chengoli (hereinafter “the Appellant”) was charged before the trial court with the principal offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act.
2. As is instructive from the charge sheet, the particulars of the offence in the principal charge were that on the 16th June, 2024 at about 1500hrs at Barkorwa within East Katieno Sublocation in Seme within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of AMA (name withheld, hereinafter referred to as “the survivor”), a child aged 13 years.
3. The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
4. The particulars of the offence in the alternative charge were that on the 16th June, 2024 at about 1500hrs at Barkorwa within East Katieno Sublocation in Seme within Kisumu County, the Appellant intentionally and unlawfully touched the the vagina of AMA, a child aged 13 years.
5. The Appellant denied both the principal the charge and the alternative charge, which then called for a full trial.
B. THE GROUNDS OF APPEAL.
6. The prosecution case was founded on the evidence of 4 witnesses, while the defence comprised of the Appellant’s unsworn statement and the testimony of one other witness. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to serve 20 years imprisonment.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 2nd March, 2026 and supplementary petition of appeal dated 24th March, 2026. The grounds of appeal as presented substantially overlap and can be distilled into the following concise grounds:
a. The learned trial Magistrate erred in law and fact by finding that the prosecution had proved its case beyond reasonable doubt despite the evidence being insufficient, contradictory and inconsistent.
b. The learned trial Magistrate erred in law and fact by relying on medical evidence that did not establish when the alleged injuries were sustained or link them to the Appellant.
c. The learned trial Magistrate erred in law and fact by relying on the evidence of identification notwithstanding the alleged inconsistencies and unreliability of the identifying witness.
d. The learned trial Magistrate erred in law and fact by failing to properly evaluate the Appellant’s defence, by shifting the burden of proof to the Appellant and by taking into account irrelevant or extraneous matters.
e. The learned trial Magistrate erred in law and fact by failing to accord due consideration to the Appellant’s submissions and thereby reached an unsafe conviction.
f. The learned trial Magistrate erred in law and fact by failing to inform the Appellant of his right to legal representation under Article 50(2)(h) of the Constitution, thereby violating his right to a fair trial.
g. The learned trial Magistrate erred in law and fact by imposing a sentence that was harsh and excessive and by failing to exercise judicial discretion in sentencing, including by failing to adequately consider the Appellant’s mitigation.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the sentence of imprisonment of 20 years.
C. THE DUTY OF THIS COURT.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570 and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
D. THE PROSECUTION CASE.
11. The first witness that the prosecution called was AMA, the survivor, who testified as PW1. In her testimony, she stated that she was a pupil at BM School (particulars withheld), where she was in Grade 7. She produced her birth certificate as PExh1, which indicated that she was born on 21st July, 2011.
12. PW1 testified that on 16th June, 2024 at about 3.00 p.m., while she was at home studying, the Appellant, whom she knew as Isaac, went to their homestead and requested to speak with her privately. She stated that he suggested they talk as she went to collect firewood and thereafter led her to a neighbouring farm planted with maize.
13. PW1 stated that while at the farm, the Appellant made her to lie down. He removed her panty then took off his pair of long trousers and a pair of shorts. He then inserted his penis into PW1’s vagina. She felt pain and cried and he removed his penis from her vagina. He then told her in Swahili, “wewe sasa simama uende nyumbani”, following which the survivor dressed up and went back to her home.
14. It was PW1’s further testimony that upon returning home, she met her mother, who questioned her about where she had been. She stated that she initially informed her mother that she had gone to collect firewood. However, after her mother locked her inside the house, questioned her further and disciplined her with a cane, she disclosed what had transpired with the Appellant.
15. PW1 told the trial court that following the disclosure, her mother took her to the Appellant’s residence, where they found the gate locked. They thereafter proceeded to Harambee Police Station to report the matter, after which she was referred to Kombewa Hospital for medical examination. She identified the Post Rape Care (PRC) form and the Medical Examination (P3) form that were completed following the examination.
16. The survivor pointed out the Appellant in the dock as the one who had defiled her. She stated that she had known him since about October, 2023, when he worked as a cattle attendant at a neighbouring home. She further testified that prior to the incident, the Appellant had previously threatened her with a panga. According to the witness, this was the first such incident involving the accused.
17. During cross-examination, the survivor maintained that she accompanied the Appellant because she wanted to hear what he wished to tell her and denied the suggestion that she had invited him to accompany her. She testified that her younger brother XY (name withheld) had followed them towards the maize plantation but that the Appellant gave the child a mobile phone to watch cartoons, thereby distracting him.
18. The survivor further maintained that she reported the incident to her mother, was taken to hospital on the same day and that although she cried during the incident, no one went to her assistance. She also maintained that the incident occurred at about 3.00 p.m. and that when she later accompanied her mother to the Appellant’s place of work, they found the gate locked.
19. In re-examination, PW1 maintained that the Appellant was the person involved in the incident she had described before the court.
20. MB (name withheld) testified as PW2 and told the trial court that she was the mother of PW1. She testified that PW1 was 13 years old and identified the birth certificate that had been produced in evidence to establish her age.
21. PW2 told the trial court that on 16th June, 2024 at about 3.20 p.m., she returned home from church but did not find PW1 at the homestead. She stated that she went to a neighbour’s home to look for her and, shortly thereafter, saw PW1 returning in the company of her younger sibling, XY who was about four years old.
22. PW2 testified that upon asking where they had come from, the younger child informed her that they had been with the Appellant. She stated that PW1 initially told her that she had been collecting firewood, but she noticed that PW1 was not carrying any firewood. She then caned the survivor after which she questioned her further, whereupon PW1 disclosed that she had been with the Appellant and narrated to her how he had defiled her at a neighbouring maize plantation.
23. PW2 further testified that after speaking with PW1, she proceeded to the home where the Appellant worked as a caretaker but found the gate locked. She thereafter reported the matter at Harambee Police Post and, on the advice of the police, took PW1 to Kombewa County Hospital for medical examination. She identified the PRC form that was completed during the examination.
24. The witness further testified that they returned to the hospital the following day, when PW1 was given medication, after which she took the medical documents back to the police. She stated that they recorded their statements with the police on the following, a Monday, and that the Appellant was arrested on the Tuesday thereafter.
25. The witness told the trial court that the Appellant worked as a caretaker and cattle attendant at a neighbouring homestead whose owner resided in Nairobi. She identified the Appellant in court as the person she knew as Isaac and stated that they had not previously had any disagreement, their interaction having been limited to exchanging greetings since she moved into the neighbourhood in November, 2023.
26. During cross-examination, PW2 maintained that although she questioned PW1 firmly and used a cane while seeking an explanation for her whereabouts, her intention was to establish the truth after the younger child indicated that PW1 had been with the Appellant.
27. PW2 denied forcing PW1 to implicate the Appellant and stated that PW1 consistently informed her that the incident had occurred at a neighbouring maize plantation. She also confirmed that PW1 was examined at hospital on 16th June, 2024 and returned the following day for further treatment.
28. In re-examination, PW2 reiterated that she did not compel PW1 to make any allegation against the Appellant but only sought an explanation after receiving information from the younger child regarding PW1’s whereabouts.
29. The prosecution called Police Constable Simon Muigai Mbugua who testified as PW3 and who told the trial court that he was attached to Harambee Police Post and was the investigating officer in the case.
30. The witness testified that on 16th June, 2024, MB (PW2) reported at the police station in the company of PW1 and alleged that PW1 had been defiled by the Appellant. He stated that he recorded the report, issued a P3 form and referred PW1 for medical examination at Kombewa Hospital, after which the completed medical documents were returned to the police.
31. PW3 testified that he visited the alleged scene of the incident but did not recover any physical evidence connected with the offence. He further stated that on 18th June, 2024, PW2 informed him that the Appellant had returned to his place of work, whereupon he proceeded there, arrested the Appellant and escorted him to Kombewa Police Station, following which he was subsequently charged.
32. According to PW3, PW1 identified the Appellant as the person alleged to have committed the offence.
33. PW3 tfurther testified before the trial court that the Appellant and PW1 were neighbours whose homes were about 150 metres apart. He further stated that he established that there had been no prior disagreement between the Appellant and PW1’s family and that children, including PW1, used to obtain fruits from the Appellant’s place of work.
34. The witness identified the medical documents and testified that he also received PW1’s birth certificate, which indicated that she was 13 years old. He further identified the Appellant in court as the person whom he arrested and charged, adding that he had not known him before undertaking the investigations.
35. On being cross examined, PW3 testified that although the incident was reported on 16th June, 2024, the Appellant was arrested on 18th June, 2024 because PW1 had first been taken for medical examination and the Appellant could not immediately be traced. He maintained that the medical examination confirmed that the survivor had been defiled.
36. The last prosecution witness (PW4) was Kevin Odhiambo Owino, a clinical officer stationed at Kombewa County Hospital. The witness told the trial court that he had 13 years experience and had served at Kombewa County Hospital for three years.
37. PW4 testified that he examined PW1 on 17th June, 2024 at about 9.30 a.m., when she was taken to the hospital by a police officer for medical examination. He stated that he completed the P3 form on the same day and also filled the PRC form.
38. PW4 testified that, according to the history given by PW1, she had been defiled by a person who did not use a condom. He observed that the clothing she wore during the examination was neither torn nor stained. He further stated that PW1 was oriented in time, place and person and that there was no history of alcohol use.
39. The witness testified that upon examination, he noted injuries to the genitalia which included lacerations on the labia minora and that the hymen was not intact. He further stated that laboratory investigations, including a pregnancy test, urinalysis, haemoglobin estimation and screening for syphilis and hepatitis B, were conducted, all of which yielded normal or negative results.
40. The witness stated that PW1 was prescribed medication, including antibiotics and post-exposure prophylaxis (PEP) for HIV, and that counselling was recommended. He further testified that, based on the history provided and his examination findings, his medical opinion was that the findings were consistent with the alleged sexual violation. He identified and produced the PRC form and the P3 form as PExh2 and PExh3 respectively.
41. During cross-examination, PW4 testified that PW1 had been taken to the hospital by the police. He stated that the Appellant was not taken for examination and added that it was for the investigating officers to determine whether the Appellant would also be presented for medical examination.
42. The prosecution closed its case at that stage.
E. RULING ON PRIMA FACIE CASE.
43. In the trial court’s considered ruling rendered on 31st July, 2025, the trial court found that the prosecution had established a prima facie case against the Appellant and he was placed on his defence.
F. THE DEFENCE CASE.
44. The Appellant Isaac Mkenya Chengoli (DW1), told the trial court in his unsworn testimony that he hailed from Kitale, Kimilili and worked as a farmer. He stated that before his arrest, he had been employed as a farmhand at Barkorua.
45. The Appellant testified that on the day of his arrest, at about 11.00 a.m., police officers found him cleaning a cowshed at his place of work while his younger brother, Collins, (DW2) was in the kitchen preparing a meal.
46. He stated that the police arrested both of them and escorted them to Harambee Police Post. According to the Appellant, it was at the police station that he was informed he had been accused of defiling a school-going child. He denied the allegation and maintained that he had not been at the locality on the material Sunday.
47. The Appellant testified that his brother later informed him that he had found a woman reprimanding her child and asking that a message be conveyed to the Appellant not to interfere with the child.
48. The Appellant stated that upon learning this, he sought to meet the woman to inquire why she was associating him with the allegation, having heard that she had seen her daughter coming from the direction of his place of work. According to the Appellant, he was unable to find her before his arrest.
49. The Appellant further testified that after his arrest, the police later took both PW1 and the Appellant to hospital. He maintained that he was operating a motorcycle on the day in question while his younger brother attended to the cattle. He denied committing the offence, stating that the allegation led to the loss of his employment and asserted that he had been falsely implicated.
50. The Appellant called his younger brother, Collins Simiyu Mkenya, as DW2. The witness told the trial court that he was a resident of Kitale.
51. DW2 explained that on 17th June, 2024, he was residing with the Appellant at the latter’s place of work at Barkorwa. The Appellant left with DW2’s motor cycle and asked the witness to tether cattle for him.
52. The witness stated that when he took the cattle out of the compound, he met a woman who was beating up a child and sought to know what the matter was. The woman responded and told him that the child had been spoilt by Isaac, the Appellant. She did not give any further explanation. He then went to the stage and informed the Appellant what the woman had said.
53. DW2 further testified that that evening, he went with the Appellant to the woman’s home but they did not find her. Another visit to the home did not yield any fruits as the woman was again not present. On the next day, the Appellant and DW2 were arrested, beaten up by police officers and taken to Harambee Police Station. DW2 was released at the station.
54. On being cross examined, DW2 indicated that the woman – PW2 – and the child – PW1 – were neighbours to the home where the Appellant was working. He stated that he was not with the Appellant when the latter left him tethering cattle.
55. The defence case was closed at that stage.
G. THE TRIAL COURT’S FINDINGS.
56. In her judgement rendered on 22nd January, 2026, the learned trial Magistrate set out the issues for determination being: whether the survivor was defiled; if so, whether it is the Appellant who defiled her; and ultimately, whether the charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act had been proved against the Appellant beyond reasonable doubt.
57. Upon considering the record and the material before her, the learned trial Magistrate reached affirmative findings on all the issues that she set out for determination, with the result that she then proceeded to convict the Appellant on the charge that he faced in line with Section 215 of the Criminal Procedure Code. She subsequently sentenced him to serve 20 years imprisonment.
58. The instant appeal, which proceeded by way of written submissions, seeks to upset the conviction and sentence of the trial court.
H. THE APPELLANT’S SUBMISSIONS.
59. In support of his appeal, the Appellant submits that the trial was conducted in violation of his constitutional right to a fair hearing because he was never informed of his right to legal representation under Article 50(2)(g) and (h) of the Constitution. He contends that the trial court’s record is silent on whether he was informed of his right to engage an advocate of his choice or, where appropriate, to have one assigned at State expense.
60. The Appellant argues that the only explanation reflected in the proceedings relates to Section 211 of the Criminal Procedure Code, which concerns an accused person’s options upon being placed on his defence, and not the constitutional right to legal representation.
61. In support of that argument, the Appellant relies on Republic v Karisa Chengo & 2 Others [2017] eKLR, where the Supreme Court held that the right to legal representation is a fundamental component of the right to a fair trial.
62. The Appellant also relies on N.M.T alias Aunty v Republic, Migori High Court Criminal Appeal No. 44 of 2019, in which the High Court held that an accused person must be informed of the right to legal representation at the earliest opportunity and that failure to do so renders the proceedings a nullity.
63. The Appellant further cites Pett v Greyhound Racing Association (1968) 2 All ER 545, in which Lord Denning emphasized the importance of legal representation in ensuring justice for persons unable to adequately defend themselves.
64. He also relies on Sheria Mtaani na Shadrack Wambui v Office of the Chief Justice & Others, Constitutional Petition No. E385 of 2020, where the High Court held that courts have a constitutional duty to promptly inform unrepresented accused persons of their rights under Article 50(2)(g) and (h), and on Joseph Kiema Philip v Republic [2019] eKLR, where the court held that the trial record must demonstrate compliance with those constitutional requirements.
65. The Appellant further submits that the trial violated his right under Article 50(2)(m) of the Constitution to be tried in a language he understood. He argues that, apart from the plea proceedings and the explanation under Section 211 of the Criminal Procedure Code, the record does not indicate the language used during the trial or whether interpretation services were provided.
66. The Appellant maintains that the omission is particularly prejudicial because he was unrepresented and was required to cross-examine expert witnesses and engage with technical medical evidence without the record demonstrating that he understood the proceedings.
67. In support of the foregoing contention, the Appellant relies on Isaac Kithinji Nyamu & Another v Republic & Another [2010] KEHC 913 (KLR), where the High Court held that failure to record the language of the court proceedings or the interpretation provided may lead to the conclusion that an accused person’s constitutional right to interpretation was violated.
68. He also relies on Kiyato v Republic [1982–1988] KAR 418, where the Court of Appeal held that an accused person has a fundamental constitutional and statutory right to interpretation in a language he understands and that the trial court should record the language of the proceedings and the interpretation provided.
69. The Appellant further submits that the prosecution evidence was riddled with material inconsistencies and contradictions which the trial court failed to resolve. He contends that there was a contradiction regarding the date of the alleged offence, pointing out that PW1 testified that the incident occurred on 16th June, 2024 and that she was taken to hospital on the same day, whereas PW4 testified that the history recorded during the medical examination indicated that the alleged sexual assault had occurred on 17th June, 2024 in the evening.
70. The Appellant also points to what he considers to be inconsistencies concerning the circumstances under which PW1 disclosed the allegation to PW2. He notes that PW1 testified that she disclosed the incident after being locked in the house and disciplined with a cane, while PW2 acknowledged during examination-in-chief that she had used a cane to compel PW1 to tell her where she had been but, during re-examination, stated that she did not beat PW1 in order to make her admit or fabricate the allegation.
71. The Appellant further submits that PW1’s evidence regarding the presence of other persons at the scene was inconsistent. He argues that whereas PW1 initially testified that no one was present, she later stated during cross-examination that her younger sibling had accompanied them but had been distracted by a mobile phone allegedly given to him by the Appellant.
72. He also points to what he considers to be inconsistencies in the timeline of events immediately after the alleged incident, noting that PW1 and PW2 gave slightly different accounts regarding the time PW2 returned home and encountered PW1.
73. The Appellant further submits that PW1’s description of the incident was not fully borne out by the medical findings. He observes that although PW1 described a forceful encounter, PW4 testified that her clothing was neither torn nor stained and that the examination disclosed only the injuries recorded in the medical documents.
74. He also submits that the investigating officer recovered no physical evidence linking him to the offence and that no DNA analysis was undertaken.
75. The Appellant contends that, viewed cumulatively, these matters created reasonable doubt which the trial court failed to address.
76. In support of his challenge to the prosecution evidence, the Appellant relies on Joseph Ndungu Kimanyi v Republic [1979] KECA 5 (KLR), where the Court of Appeal held that a witness whose testimony raises doubts as to his or her honesty or reliability cannot safely be relied upon.
77. He further cites Republic v Kennedy Wesonga Okumbe [2019] KEHC 1886 (KLR) and Francis Kamande Ngugi v Republic [2016] KEHC 4067 (KLR) as reaffirming the need for courts to treat unreliable or inconsistent evidence with caution.
78. The Appellant also relies on Ekiru Ikul & Another v Republic [2019] KECA 531 (KLR), which cited Joseph Maina Mwangi v Republic [2000] KECA 282 (KLR) for the proposition that appellate courts should determine whether discrepancies occasion prejudice to an accused person or are merely inconsequential within the meaning of Section 382 of the Criminal Procedure Code.
79. The Appellant further submits that the prosecution failed to call a crucial witness, namely PW1’s younger sibling, who was allegedly present at or near the scene of the incident and could have shed light on the events. He argues that the prosecution’s failure to call the child or explain the omission entitled the court to draw an adverse inference against the prosecution case.
80. In support of that submission, the Appellant relies on Bukenya v Uganda [1972] EA 549, for the principle that where the prosecution fails to call material witnesses without explanation, the court may infer that their evidence would have been adverse to the prosecution.
81. He also cites Republic v Geoffrey Onyango Mukhwaya [2020] KEHC 4781 (KLR) to the same effect.
82. Further reliance is placed on Alex Lichua Lichodo v Republic [2015] KECA 445 (KLR), which reaffirmed Julius Kalewa Mutunga v Republic, Criminal Appeal No. 31 of 2005, for the proposition that although the prosecution has discretion in deciding which witnesses to call, an appellate court may interfere where that discretion is improperly exercised.
83. The Appellant additionally relies on Paul Mwakio Mwashumbe v Republic [2016] eKLR, in which the High Court held that failure to call witnesses who first received or verified a child’s complaint may fatally weaken the prosecution case.
84. The Appellant also submits that the investigating officer recovered no physical evidence linking him to the offence and that no DNA analysis was undertaken.
85. He contends that the medical evidence did not conclusively connect him to the alleged offence and that the trial court improperly resorted to speculation instead of applying the standard of proof beyond reasonable doubt.
86. On sentence, the Appellant submits that the trial court erred in imposing the minimum sentence of twenty years imprisonment under Section 8(3) of the Sexual Offences Act without properly considering his mitigation or exercising judicial discretion. He argues that although he pleaded for leniency and outlined his personal circumstances, the trial court imposed sentence without demonstrating that those factors had been taken into account.
87. In support of his challenge to sentence, the Appellant relies on Chege v Republic [2025] KEHC 501 (KLR), where the High Court held that sentencing is a judicial function requiring consideration of mitigation under Section 329 of the Criminal Procedure Code.
88. He also cites Ouma & Another v Republic [2025] KECA 1063 (KLR), where the Court of Appeal held that failure to consider mitigation deprives the court of relevant factors necessary to arrive at a proportionate and just sentence.
89. The Appellant further relies on Maingi & 5 Others v Director of Public Prosecutions & Another (Petition E017 of 2021) [2022] KEHC 13118 (KLR), where the High Court held that sentencing remains a matter of judicial discretion and expressed the view that mandatory minimum sentences under the Sexual Offences Act are inconsistent with Article 28 of the Constitution to the extent that they deprive courts of discretion.
90. Finally, the Appellant submits that, as this is a first appeal, this Court is obliged to re-evaluate the entire evidence and reach its own independent conclusions. In that regard, he relies on Erick Otieno Arum v Republic [2006] KECA 385 (KLR) for the duty of a first appellate court to reconsider and re-evaluate the evidence afresh.
91. He accordingly urges the Court to find that the trial was constitutionally defective, that the conviction was unsafe and to allow the appeal by quashing the conviction, setting aside the sentence and ordering his release unless otherwise lawfully held.
I. THE RESPONDENT’S SUBMISSIONS.
92. On its part, the Respondent contends that as this is a first appeal, this Court is under a duty to subject the entire evidence to a fresh and exhaustive re-evaluation while bearing in mind that it neither saw nor heard the witnesses testify.
93. In support of this proposition, the Respondent relies on Okeno v Republic [1972] EA 32, in which the Court of Appeal held that a first appellate court must reconsider and re-evaluate the evidence afresh and draw its own conclusions while giving due allowance to the advantage enjoyed by the trial court in seeing and hearing the witnesses.
94. The Respondent submits that upon such re-evaluation, this Court will find that the conviction and sentence were well-founded and should be upheld.
95. The Respondent submits that although the Appellant was not expressly informed of his right to legal representation under Article 50(2)(g) and (h) of the Constitution, the omission did not occasion any prejudice.
96. It argues that the record demonstrates that the substance of the charge and every element ther
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1. The Appellant Isaac Mkenya Chengoli (hereinafter “the Appellant”) was charged before the trial court with the principal offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act.
2. As is instructive from the charge sheet, the particulars of the offence in the principal charge were that on the 16th June, 2024 at about 1500hrs at Barkorwa within East Katieno Sublocation in Seme within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of AMA (name withheld, hereinafter referred to as “the survivor”), a child aged 13 years.
3. The Appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
4. The particulars of the offence in the alternative charge were that on the 16th June, 2024 at about 1500hrs at Barkorwa within East Katieno Sublocation in Seme within Kisumu County, the Appellant intentionally and unlawfully touched the the vagina of AMA, a child aged 13 years.
5. The Appellant denied both the principal the charge and the alternative charge, which then called for a full trial.
B. THE GROUNDS OF APPEAL.
6. The prosecution case was founded on the evidence of 4 witnesses, while the defence comprised of the Appellant’s unsworn statement and the testimony of one other witness. Following the conclusion of the trial, the Appellant was convicted as charged and subsequently sentenced to serve 20 years imprisonment.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 2nd March, 2026 and supplementary petition of appeal dated 24th March, 2026. The grounds of appeal as presented substantially overlap and can be distilled into the following concise grounds:
a. The learned trial Magistrate erred in law and fact by finding that the prosecution had proved its case beyond reasonable doubt despite the evidence being insufficient, contradictory and inconsistent.
b. The learned trial Magistrate erred in law and fact by relying on medical evidence that did not establish when the alleged injuries were sustained or link them to the Appellant.
c. The learned trial Magistrate erred in law and fact by relying on the evidence of identification notwithstanding the alleged inconsistencies and unreliability of the identifying witness.
d. The learned trial Magistrate erred in law and fact by failing to properly evaluate the Appellant’s defence, by shifting the burden of proof to the Appellant and by taking into account irrelevant or extraneous matters.
e. The learned trial Magistrate erred in law and fact by failing to accord due consideration to the Appellant’s submissions and thereby reached an unsafe conviction.
f. The learned trial Magistrate erred in law and fact by failing to inform the Appellant of his right to legal representation under Article 50(2)(h) of the Constitution, thereby violating his right to a fair trial.
g. The learned trial Magistrate erred in law and fact by imposing a sentence that was harsh and excessive and by failing to exercise judicial discretion in sentencing, including by failing to adequately consider the Appellant’s mitigation.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the sentence of imprisonment of 20 years.
C. THE DUTY OF THIS COURT.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570 and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
D. THE PROSECUTION CASE.
11. The first witness that the prosecution called was AMA, the survivor, who testified as PW1. In her testimony, she stated that she was a pupil at BM School (particulars withheld), where she was in Grade 7. She produced her birth certificate as PExh1, which indicated that she was born on 21st July, 2011.
12. PW1 testified that on 16th June, 2024 at about 3.00 p.m., while she was at home studying, the Appellant, whom she knew as Isaac, went to their homestead and requested to speak with her privately. She stated that he suggested they talk as she went to collect firewood and thereafter led her to a neighbouring farm planted with maize.
13. PW1 stated that while at the farm, the Appellant made her to lie down. He removed her panty then took off his pair of long trousers and a pair of shorts. He then inserted his penis into PW1’s vagina. She felt pain and cried and he removed his penis from her vagina. He then told her in Swahili, “wewe sasa simama uende nyumbani”, following which the survivor dressed up and went back to her home.
14. It was PW1’s further testimony that upon returning home, she met her mother, who questioned her about where she had been. She stated that she initially informed her mother that she had gone to collect firewood. However, after her mother locked her inside the house, questioned her further and disciplined her with a cane, she disclosed what had transpired with the Appellant.
15. PW1 told the trial court that following the disclosure, her mother took her to the Appellant’s residence, where they found the gate locked. They thereafter proceeded to Harambee Police Station to report the matter, after which she was referred to Kombewa Hospital for medical examination. She identified the Post Rape Care (PRC) form and the Medical Examination (P3) form that were completed following the examination.
16. The survivor pointed out the Appellant in the dock as the one who had defiled her. She stated that she had known him since about October, 2023, when he worked as a cattle attendant at a neighbouring home. She further testified that prior to the incident, the Appellant had previously threatened her with a panga. According to the witness, this was the first such incident involving the accused.
17. During cross-examination, the survivor maintained that she accompanied the Appellant because she wanted to hear what he wished to tell her and denied the suggestion that she had invited him to accompany her. She testified that her younger brother XY (name withheld) had followed them towards the maize plantation but that the Appellant gave the child a mobile phone to watch cartoons, thereby distracting him.
18. The survivor further maintained that she reported the incident to her mother, was taken to hospital on the same day and that although she cried during the incident, no one went to her assistance. She also maintained that the incident occurred at about 3.00 p.m. and that when she later accompanied her mother to the Appellant’s place of work, they found the gate locked.
19. In re-examination, PW1 maintained that the Appellant was the person involved in the incident she had described before the court.
20. MB (name withheld) testified as PW2 and told the trial court that she was the mother of PW1. She testified that PW1 was 13 years old and identified the birth certificate that had been produced in evidence to establish her age.
21. PW2 told the trial court that on 16th June, 2024 at about 3.20 p.m., she returned home from church but did not find PW1 at the homestead. She stated that she went to a neighbour’s home to look for her and, shortly thereafter, saw PW1 returning in the company of her younger sibling, XY who was about four years old.
22. PW2 testified that upon asking where they had come from, the younger child informed her that they had been with the Appellant. She stated that PW1 initially told her that she had been collecting firewood, but she noticed that PW1 was not carrying any firewood. She then caned the survivor after which she questioned her further, whereupon PW1 disclosed that she had been with the Appellant and narrated to her how he had defiled her at a neighbouring maize plantation.
23. PW2 further testified that after speaking with PW1, she proceeded to the home where the Appellant worked as a caretaker but found the gate locked. She thereafter reported the matter at Harambee Police Post and, on the advice of the police, took PW1 to Kombewa County Hospital for medical examination. She identified the PRC form that was completed during the examination.
24. The witness further testified that they returned to the hospital the following day, when PW1 was given medication, after which she took the medical documents back to the police. She stated that they recorded their statements with the police on the following, a Monday, and that the Appellant was arrested on the Tuesday thereafter.
25. The witness told the trial court that the Appellant worked as a caretaker and cattle attendant at a neighbouring homestead whose owner resided in Nairobi. She identified the Appellant in court as the person she knew as Isaac and stated that they had not previously had any disagreement, their interaction having been limited to exchanging greetings since she moved into the neighbourhood in November, 2023.
26. During cross-examination, PW2 maintained that although she questioned PW1 firmly and used a cane while seeking an explanation for her whereabouts, her intention was to establish the truth after the younger child indicated that PW1 had been with the Appellant.
27. PW2 denied forcing PW1 to implicate the Appellant and stated that PW1 consistently informed her that the incident had occurred at a neighbouring maize plantation. She also confirmed that PW1 was examined at hospital on 16th June, 2024 and returned the following day for further treatment.
28. In re-examination, PW2 reiterated that she did not compel PW1 to make any allegation against the Appellant but only sought an explanation after receiving information from the younger child regarding PW1’s whereabouts.
29. The prosecution called Police Constable Simon Muigai Mbugua who testified as PW3 and who told the trial court that he was attached to Harambee Police Post and was the investigating officer in the case.
30. The witness testified that on 16th June, 2024, MB (PW2) reported at the police station in the company of PW1 and alleged that PW1 had been defiled by the Appellant. He stated that he recorded the report, issued a P3 form and referred PW1 for medical examination at Kombewa Hospital, after which the completed medical documents were returned to the police.
31. PW3 testified that he visited the alleged scene of the incident but did not recover any physical evidence connected with the offence. He further stated that on 18th June, 2024, PW2 informed him that the Appellant had returned to his place of work, whereupon he proceeded there, arrested the Appellant and escorted him to Kombewa Police Station, following which he was subsequently charged.
32. According to PW3, PW1 identified the Appellant as the person alleged to have committed the offence.
33. PW3 tfurther testified before the trial court that the Appellant and PW1 were neighbours whose homes were about 150 metres apart. He further stated that he established that there had been no prior disagreement between the Appellant and PW1’s family and that children, including PW1, used to obtain fruits from the Appellant’s place of work.
34. The witness identified the medical documents and testified that he also received PW1’s birth certificate, which indicated that she was 13 years old. He further identified the Appellant in court as the person whom he arrested and charged, adding that he had not known him before undertaking the investigations.
35. On being cross examined, PW3 testified that although the incident was reported on 16th June, 2024, the Appellant was arrested on 18th June, 2024 because PW1 had first been taken for medical examination and the Appellant could not immediately be traced. He maintained that the medical examination confirmed that the survivor had been defiled.
36. The last prosecution witness (PW4) was Kevin Odhiambo Owino, a clinical officer stationed at Kombewa County Hospital. The witness told the trial court that he had 13 years experience and had served at Kombewa County Hospital for three years.
37. PW4 testified that he examined PW1 on 17th June, 2024 at about 9.30 a.m., when she was taken to the hospital by a police officer for medical examination. He stated that he completed the P3 form on the same day and also filled the PRC form.
38. PW4 testified that, according to the history given by PW1, she had been defiled by a person who did not use a condom. He observed that the clothing she wore during the examination was neither torn nor stained. He further stated that PW1 was oriented in time, place and person and that there was no history of alcohol use.
39. The witness testified that upon examination, he noted injuries to the genitalia which included lacerations on the labia minora and that the hymen was not intact. He further stated that laboratory investigations, including a pregnancy test, urinalysis, haemoglobin estimation and screening for syphilis and hepatitis B, were conducted, all of which yielded normal or negative results.
40. The witness stated that PW1 was prescribed medication, including antibiotics and post-exposure prophylaxis (PEP) for HIV, and that counselling was recommended. He further testified that, based on the history provided and his examination findings, his medical opinion was that the findings were consistent with the alleged sexual violation. He identified and produced the PRC form and the P3 form as PExh2 and PExh3 respectively.
41. During cross-examination, PW4 testified that PW1 had been taken to the hospital by the police. He stated that the Appellant was not taken for examination and added that it was for the investigating officers to determine whether the Appellant would also be presented for medical examination.
42. The prosecution closed its case at that stage.
E. RULING ON PRIMA FACIE CASE.
43. In the trial court’s considered ruling rendered on 31st July, 2025, the trial court found that the prosecution had established a prima facie case against the Appellant and he was placed on his defence.
F. THE DEFENCE CASE.
44. The Appellant Isaac Mkenya Chengoli (DW1), told the trial court in his unsworn testimony that he hailed from Kitale, Kimilili and worked as a farmer. He stated that before his arrest, he had been employed as a farmhand at Barkorua.
45. The Appellant testified that on the day of his arrest, at about 11.00 a.m., police officers found him cleaning a cowshed at his place of work while his younger brother, Collins, (DW2) was in the kitchen preparing a meal.
46. He stated that the police arrested both of them and escorted them to Harambee Police Post. According to the Appellant, it was at the police station that he was informed he had been accused of defiling a school-going child. He denied the allegation and maintained that he had not been at the locality on the material Sunday.
47. The Appellant testified that his brother later informed him that he had found a woman reprimanding her child and asking that a message be conveyed to the Appellant not to interfere with the child.
48. The Appellant stated that upon learning this, he sought to meet the woman to inquire why she was associating him with the allegation, having heard that she had seen her daughter coming from the direction of his place of work. According to the Appellant, he was unable to find her before his arrest.
49. The Appellant further testified that after his arrest, the police later took both PW1 and the Appellant to hospital. He maintained that he was operating a motorcycle on the day in question while his younger brother attended to the cattle. He denied committing the offence, stating that the allegation led to the loss of his employment and asserted that he had been falsely implicated.
50. The Appellant called his younger brother, Collins Simiyu Mkenya, as DW2. The witness told the trial court that he was a resident of Kitale.
51. DW2 explained that on 17th June, 2024, he was residing with the Appellant at the latter’s place of work at Barkorwa. The Appellant left with DW2’s motor cycle and asked the witness to tether cattle for him.
52. The witness stated that when he took the cattle out of the compound, he met a woman who was beating up a child and sought to know what the matter was. The woman responded and told him that the child had been spoilt by Isaac, the Appellant. She did not give any further explanation. He then went to the stage and informed the Appellant what the woman had said.
53. DW2 further testified that that evening, he went with the Appellant to the woman’s home but they did not find her. Another visit to the home did not yield any fruits as the woman was again not present. On the next day, the Appellant and DW2 were arrested, beaten up by police officers and taken to Harambee Police Station. DW2 was released at the station.
54. On being cross examined, DW2 indicated that the woman – PW2 – and the child – PW1 – were neighbours to the home where the Appellant was working. He stated that he was not with the Appellant when the latter left him tethering cattle.
55. The defence case was closed at that stage.
G. THE TRIAL COURT’S FINDINGS.
56. In her judgement rendered on 22nd January, 2026, the learned trial Magistrate set out the issues for determination being: whether the survivor was defiled; if so, whether it is the Appellant who defiled her; and ultimately, whether the charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act had been proved against the Appellant beyond reasonable doubt.
57. Upon considering the record and the material before her, the learned trial Magistrate reached affirmative findings on all the issues that she set out for determination, with the result that she then proceeded to convict the Appellant on the charge that he faced in line with Section 215 of the Criminal Procedure Code. She subsequently sentenced him to serve 20 years imprisonment.
58. The instant appeal, which proceeded by way of written submissions, seeks to upset the conviction and sentence of the trial court.
H. THE APPELLANT’S SUBMISSIONS.
59. In support of his appeal, the Appellant submits that the trial was conducted in violation of his constitutional right to a fair hearing because he was never informed of his right to legal representation under Article 50(2)(g) and (h) of the Constitution. He contends that the trial court’s record is silent on whether he was informed of his right to engage an advocate of his choice or, where appropriate, to have one assigned at State expense.
60. The Appellant argues that the only explanation reflected in the proceedings relates to Section 211 of the Criminal Procedure Code, which concerns an accused person’s options upon being placed on his defence, and not the constitutional right to legal representation.
61. In support of that argument, the Appellant relies on Republic v Karisa Chengo & 2 Others [2017] eKLR, where the Supreme Court held that the right to legal representation is a fundamental component of the right to a fair trial.
62. The Appellant also relies on N.M.T alias Aunty v Republic, Migori High Court Criminal Appeal No. 44 of 2019, in which the High Court held that an accused person must be informed of the right to legal representation at the earliest opportunity and that failure to do so renders the proceedings a nullity.
63. The Appellant further cites Pett v Greyhound Racing Association (1968) 2 All ER 545, in which Lord Denning emphasized the importance of legal representation in ensuring justice for persons unable to adequately defend themselves.
64. He also relies on Sheria Mtaani na Shadrack Wambui v Office of the Chief Justice & Others, Constitutional Petition No. E385 of 2020, where the High Court held that courts have a constitutional duty to promptly inform unrepresented accused persons of their rights under Article 50(2)(g) and (h), and on Joseph Kiema Philip v Republic [2019] eKLR, where the court held that the trial record must demonstrate compliance with those constitutional requirements.
65. The Appellant further submits that the trial violated his right under Article 50(2)(m) of the Constitution to be tried in a language he understood. He argues that, apart from the plea proceedings and the explanation under Section 211 of the Criminal Procedure Code, the record does not indicate the language used during the trial or whether interpretation services were provided.
66. The Appellant maintains that the omission is particularly prejudicial because he was unrepresented and was required to cross-examine expert witnesses and engage with technical medical evidence without the record demonstrating that he understood the proceedings.
67. In support of the foregoing contention, the Appellant relies on Isaac Kithinji Nyamu & Another v Republic & Another [2010] KEHC 913 (KLR), where the High Court held that failure to record the language of the court proceedings or the interpretation provided may lead to the conclusion that an accused person’s constitutional right to interpretation was violated.
68. He also relies on Kiyato v Republic [1982–1988] KAR 418, where the Court of Appeal held that an accused person has a fundamental constitutional and statutory right to interpretation in a language he understands and that the trial court should record the language of the proceedings and the interpretation provided.
69. The Appellant further submits that the prosecution evidence was riddled with material inconsistencies and contradictions which the trial court failed to resolve. He contends that there was a contradiction regarding the date of the alleged offence, pointing out that PW1 testified that the incident occurred on 16th June, 2024 and that she was taken to hospital on the same day, whereas PW4 testified that the history recorded during the medical examination indicated that the alleged sexual assault had occurred on 17th June, 2024 in the evening.
70. The Appellant also points to what he considers to be inconsistencies concerning the circumstances under which PW1 disclosed the allegation to PW2. He notes that PW1 testified that she disclosed the incident after being locked in the house and disciplined with a cane, while PW2 acknowledged during examination-in-chief that she had used a cane to compel PW1 to tell her where she had been but, during re-examination, stated that she did not beat PW1 in order to make her admit or fabricate the allegation.
71. The Appellant further submits that PW1’s evidence regarding the presence of other persons at the scene was inconsistent. He argues that whereas PW1 initially testified that no one was present, she later stated during cross-examination that her younger sibling had accompanied them but had been distracted by a mobile phone allegedly given to him by the Appellant.
72. He also points to what he considers to be inconsistencies in the timeline of events immediately after the alleged incident, noting that PW1 and PW2 gave slightly different accounts regarding the time PW2 returned home and encountered PW1.
73. The Appellant further submits that PW1’s description of the incident was not fully borne out by the medical findings. He observes that although PW1 described a forceful encounter, PW4 testified that her clothing was neither torn nor stained and that the examination disclosed only the injuries recorded in the medical documents.
74. He also submits that the investigating officer recovered no physical evidence linking him to the offence and that no DNA analysis was undertaken.
75. The Appellant contends that, viewed cumulatively, these matters created reasonable doubt which the trial court failed to address.
76. In support of his challenge to the prosecution evidence, the Appellant relies on Joseph Ndungu Kimanyi v Republic [1979] KECA 5 (KLR), where the Court of Appeal held that a witness whose testimony raises doubts as to his or her honesty or reliability cannot safely be relied upon.
77. He further cites Republic v Kennedy Wesonga Okumbe [2019] KEHC 1886 (KLR) and Francis Kamande Ngugi v Republic [2016] KEHC 4067 (KLR) as reaffirming the need for courts to treat unreliable or inconsistent evidence with caution.
78. The Appellant also relies on Ekiru Ikul & Another v Republic [2019] KECA 531 (KLR), which cited Joseph Maina Mwangi v Republic [2000] KECA 282 (KLR) for the proposition that appellate courts should determine whether discrepancies occasion prejudice to an accused person or are merely inconsequential within the meaning of Section 382 of the Criminal Procedure Code.
79. The Appellant further submits that the prosecution failed to call a crucial witness, namely PW1’s younger sibling, who was allegedly present at or near the scene of the incident and could have shed light on the events. He argues that the prosecution’s failure to call the child or explain the omission entitled the court to draw an adverse inference against the prosecution case.
80. In support of that submission, the Appellant relies on Bukenya v Uganda [1972] EA 549, for the principle that where the prosecution fails to call material witnesses without explanation, the court may infer that their evidence would have been adverse to the prosecution.
81. He also cites Republic v Geoffrey Onyango Mukhwaya [2020] KEHC 4781 (KLR) to the same effect.
82. Further reliance is placed on Alex Lichua Lichodo v Republic [2015] KECA 445 (KLR), which reaffirmed Julius Kalewa Mutunga v Republic, Criminal Appeal No. 31 of 2005, for the proposition that although the prosecution has discretion in deciding which witnesses to call, an appellate court may interfere where that discretion is improperly exercised.
83. The Appellant additionally relies on Paul Mwakio Mwashumbe v Republic [2016] eKLR, in which the High Court held that failure to call witnesses who first received or verified a child’s complaint may fatally weaken the prosecution case.
84. The Appellant also submits that the investigating officer recovered no physical evidence linking him to the offence and that no DNA analysis was undertaken.
85. He contends that the medical evidence did not conclusively connect him to the alleged offence and that the trial court improperly resorted to speculation instead of applying the standard of proof beyond reasonable doubt.
86. On sentence, the Appellant submits that the trial court erred in imposing the minimum sentence of twenty years imprisonment under Section 8(3) of the Sexual Offences Act without properly considering his mitigation or exercising judicial discretion. He argues that although he pleaded for leniency and outlined his personal circumstances, the trial court imposed sentence without demonstrating that those factors had been taken into account.
87. In support of his challenge to sentence, the Appellant relies on Chege v Republic [2025] KEHC 501 (KLR), where the High Court held that sentencing is a judicial function requiring consideration of mitigation under Section 329 of the Criminal Procedure Code.
88. He also cites Ouma & Another v Republic [2025] KECA 1063 (KLR), where the Court of Appeal held that failure to consider mitigation deprives the court of relevant factors necessary to arrive at a proportionate and just sentence.
89. The Appellant further relies on Maingi & 5 Others v Director of Public Prosecutions & Another (Petition E017 of 2021) [2022] KEHC 13118 (KLR), where the High Court held that sentencing remains a matter of judicial discretion and expressed the view that mandatory minimum sentences under the Sexual Offences Act are inconsistent with Article 28 of the Constitution to the extent that they deprive courts of discretion.
90. Finally, the Appellant submits that, as this is a first appeal, this Court is obliged to re-evaluate the entire evidence and reach its own independent conclusions. In that regard, he relies on Erick Otieno Arum v Republic [2006] KECA 385 (KLR) for the duty of a first appellate court to reconsider and re-evaluate the evidence afresh.
91. He accordingly urges the Court to find that the trial was constitutionally defective, that the conviction was unsafe and to allow the appeal by quashing the conviction, setting aside the sentence and ordering his release unless otherwise lawfully held.
I. THE RESPONDENT’S SUBMISSIONS.
92. On its part, the Respondent contends that as this is a first appeal, this Court is under a duty to subject the entire evidence to a fresh and exhaustive re-evaluation while bearing in mind that it neither saw nor heard the witnesses testify.
93. In support of this proposition, the Respondent relies on Okeno v Republic [1972] EA 32, in which the Court of Appeal held that a first appellate court must reconsider and re-evaluate the evidence afresh and draw its own conclusions while giving due allowance to the advantage enjoyed by the trial court in seeing and hearing the witnesses.
94. The Respondent submits that upon such re-evaluation, this Court will find that the conviction and sentence were well-founded and should be upheld.
95. The Respondent submits that although the Appellant was not expressly informed of his right to legal representation under Article 50(2)(g) and (h) of the Constitution, the omission did not occasion any prejudice.
96. It argues that the record demonstrates that the substance of the charge and every element ther
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