The Appellant was convicted and sentenced to serve 15 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 to the offence were that the Appellant on 19th day of August 2021 at Komotobo Location in Kuria East within Migori County intentionally and unlawfully caused his penis to penetrate the vagina of N. G. J. a child age 15 years.
In the alternative the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal dated 28th December 2022 and filed on 29th December 2022 the following grounds:-
(a) That the Trial Court erred in both law and fact by failing to comply with Article 50(2) (g) & (h) of the Constitution of Kenya 2010.
(b) That the Learned Trial Magistrate erred both in law and facts by not observing that the ingredients of the offence herein were not proved as required in law.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Appellant prayed for leave to file amended grounds at a later date upon being supplied with proceedings of the lower court.
In the amended grounds dated 19th June 2024 filed together with submissions the Appellant added the following grounds:
(a). THAT the Learned Trial Magistrate erred in both law and in facts by admitting the identification of the Appellant at the alleged scene of crime without putting in his mind that the said complainant did not disclose and give the name or description to the school girls nor testified in court.
(b). THAT the Learned Trial Magistrate erred in both law and in facts by convicting the Appellant on the evidence of recovery without seeing that the said sweater was not in possession of the Appellant during the arrest.
(c). THAT the Learned Trial Magistrate erred in both law and in fact by not considering that the Appellant’s defense and cross examination disclosed the fabrication to the Appellant by Prosecution witnesses.
(d). THAT the Learned Trial Magistrate erred in both law and in facts by relying on the evidence which is full of contradictions and which are not safe to convict hence prejudice.
(e). THAT the Learned Trial Magistrate erred in both law and in facts by sentencing the Appellant herein basing on the case whereby the crucial witness was not called or testified in court.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside and Appellant be set at liberty.
The Prosecution’s case was that the Complainant PW1 was a student at Komotobo Primary School in Grade 8. She testified that she was born on 28th April 2006. She said that on 19. 8.2021 she was heading to school in company of her sister L. R. and her brother V. M. when the Appellant followed them from behind around the river. She said she used to see the Appellant around the river. That the Appellant who wore a black sweater and covered his face with a white cloth passed them and stood on their way and that he unleashed a knife and dragged them into the bush near the main road and covered the mouth of PW1’S sister using a cloth he got from his pocket.PW1 said that her brother managed to flee after the Appellant told him to run off. She said the Appellant removed the biker she was wearing and after unzipping his trouser he defiled her using the ’thing’ he uses to urinate, She said that at that time her sister was seated next to her after she had also been ordered to remove her panty. That at that time they heard screams of school girls from the Secondary school and the Appellant zipped up and escaped from the scene. That the students arrived at the scene and escorted them to the secondary school after she put on her panty. That at the Secondary School the Head Teacher escorted her to the Primary section and her father escorted her to Kehancha Hospital and later to Kegonga Police Station where they reported that she had been defiled.
The Complainant testified that the Appellant was arrested by a Pastor who took him to the Complainant’s father and police were called to arrest him.
PW2 L. R. also testified and said she was with PW1 who is her sister and their brother going to school on 19th August 2021 at 6.00am and after they had crossed the river the Appellant whom they had seen at the river followed them and stopped ahead them grabbed PW1 and threw her to the ground. That the Appellant turned on PW2 ans also threw her to the ground.PW2 said the Appellant had a bottle of energy drink on one hand and miraa in his pocket. That he also had a knife tucked on his trouser. That their brother ran away and went to tell other students.
PW2 testified that the Appellant led them to a nearby bush where he lowered his trouser and ordered PW1 to the ground and defiled her.PW2 said the Appellant used his ‘thing used to impregnate women’ and put it in PW1’s ‘thing for urinating’.
PW2 further said that the Appellant had also ordered her to remove her panty and she did. She said the Appellant wore a green trouser and black sweater and he had covered his mouth. She said it was not the 1st time they were seeing the Appellant and even on the material day they saw him with a bottle and miraa and he used to have rasta hair. She said that their brother brought school students who came screaming and when the Appellant heard them he fled. She said the students escorted them to school from where their father and the Chief came and took them to hospital and later to the Police Station.
PW2 testified that the Appellant was later arrested by a Pastor along the road near the river and taken to their home where police went and arrested him. That the police visited the Appellant’s house and the sweater he was wearing at the time of the incident and cloth were recovered. PW2 identified them in court.
In cross examination PW2 said that they used to meet the Appellant along the road near the river on their way to school. She said they could find him seated on the rocks. She said she had severally seen the Appellant wear the same sweater he was wearing when he attacked them and defiled PW1. She said sh did not know the Appellant by name but knew him physically.
PW3 the mother of the Complainant, PW2 and PW5 testified that on 19th August 2021her children left at 6.00am to go to school but on the way they were attacked. That as a result of the attack students from Komotobo Secondary School went on the road screaming. That when the chief inquired what the problem was he was told that the children of the driver had been attacked. That because the Chief was her neighbor she overhead him being told it was the children of the driver who had been attacked. She said it is her husband who was a matatu driver in the area and she called her husband and informed him. That she headed to school and found the boy okay but the girls said they had been attacked. That she escorted the 2 girls t Kehancha hospital and they were treated and PRC form filled. That they later went to Kegonga Police Station and they were referred to Kegonga Hospital where the Doctor confirmed that PW1 had been defiled. She said that the Appellant was arrestedand police called and they re-arrested him. She said she had severally seen the Appellant along the road in rasta hair style. PW 3 said her children identified the Appellant as the perpetrator.
PW4 P. C. Roselyne Onyango of Isebania Police Station carried out investigations of the offence herein. She said that the Complainant and her siblings told her they knew the perpetrator physically and that he was wearing a black sweater and covered her mouth with a white scarf and also had rasta on his head..
PW3 issued P3 form which was duly filled and the Appellant subsequently arrested by the Chief upon being identified by the Complainant, PW2 and PW5 and he was charged.
PW4 also testified that when they proceeded to the Appellant’s house they recovered the black sweater and white scarf that the children said he was wearing at the time of committing the offence. The sweater and scarf were produced as exhibits PEX 3 and PEX 2. PW4 said the Appellant led them to his house where the exhibits were recovered.
PW5 the brother to the Complainant and PW2 reiterated what they said in evidence as to how the Appellant accosted them when they were going to school in the morning. He said that when the Appellant told them ‘kuja hapa’ he feared and ran towards the school but his sisters remained behind. That when he looked back he saw the Appellant had grabbed PW1 and tied her hands behind with a rope. That he also grabbed PW2 and covered her mouth using a red cloth. PW5 ran to school and reported to the watchman who told the Secondary School Students and they went to rescue his sisters. He said he learnt the Appellant fled from the scene and his sisters were taken to hospital. PW5 identified the Appellant as the one who attacked his sisters. He also identified the sweater the Appellant was wearing at the time of the attack.
PW6 John Marwa testified that PW1, 2 and 5 were his children. He said that on 19th August 2021 his children left for school at 6.00am and he also left to go to work. That 30 minutes thereafter his wife called to inform him his children had been attacked on the way to school and the girls raped. That he rushed t school and found his daughter could not walk. The daughter told him she knew the assailant as she had seen him severally in th area. That he escorted PW1 to hospital and later reported the matter at Kegonga Police Station. That they were referred to Kegonga Hospital where P3 was duly filled. PW6 said that the Appellant was later arrested after the children identified him.
In cross examination PW6 said the Appellant had fled the area but when the children saw him and reported he quickly called the Chief and he was arrested.
PW7 Senior Chief Komotobo Location testified that on 4/9/2021 at around 5,15 pm he received a call from PW6 informing him that a suspect had been arrested in Kebarisia town by members of public who were beating him. That he rushed to the scene and found the Appellant surrounded by people. He said he knew the Appellant as he had been Assistant Chief of his area of domicile. That he called the OCS Kegonga Police Station to the scene and Appellant was re-arrested for the offence of defiling the Complainant. PW 7 said that the Complainant identified the Appellant as the person who defiled her. He said he was not aware of any report by the Appellant against the Complainant’s family.
PW8 Geoffrey Mogire Clinical Officer at Kegonga Sub-County Hospital testified that his colleague who had since been transferred filled P3 form in respect of the Complainant herein on allegations of defilement by a person known to the patient who was on her way to school. Laboratory examination revealed epithelial cells, spermatozoa and pus cells. The Clinical Officer was the opinion injury was caused by penile penetration and hymen was freshly broken with bruises on the labia minora and whitish discharge from the vagina. PW8 produced the P3 and PRC forms as exhibits.
When the Appellant was placed on his defense he gave unsworn statement and said that he did not know the Complainant. He said that when he arrived in Kebarisia he heard 2 people calling him and when he went to where they were they made him sit on the ground and told him he had defiled their daughter. That when the Chief went to the scene he slapped him and forced him to admit the offence. That boda boda men implored the Chief to call the police to solve the matter. He said the father of the Complainant had a grudge with him for a long time. That while he was studying in 2006 the brother to the Complainant’s father who was operating a shop near his village claimed that he stole from the said shop when another boy is the one who stole from therein. That the suspect who was arrested while stealing mentioned him as an accomplice when interrogated. He said the case was brought due to malice. He added further that the Complainant’s father at one time took his bicycle and that they had tormented him.
This Appeal was canvassed by way of written submissions.
In the Appellant’s written submissions dated 20th June 2024 he submitted that the Trial Magistrate admitted contradictory and unsupported evidence and relied on the same to convict him. He submitted that the girls who went to rescue the Complainant did not testify and the Complainant in her first report said she was defiled by someone who was not well known to her and she did not describe the physical appearance of the perpetrator.
The Appellant submitted that the sweater and the white cloth that was allegedly recovered from him were also not produced in court. He also questioned how the Complainant knew his house if she did not know him very well.
The Appellant submitted further that it took the Complainant from 19th August 2021 when she was defiled to 4th September 2021 to report the offence and sought treatment after he had been arrested. He said that there was contradiction between the evidence of PW4 as to when the P3 was filled whether on 4.9.2021 or 19.8.2021.
The Appellant also argued that the age of the Complainant was not proved to the required standard of beyond reasonable doubt. On the ingredient of penetration, the Appellant submitted that the prosecution witnesses gave contradictory evidence which could not sustain a conviction and the same should be quashed.
The Appellant further submitted that the Trial Magistrate rejected his defense in which he raised the issue of grudge between his family and that of the Complainant. He said if it is true that he committed the offence he should have been arrested on the same day as he was known to the prosecution witnesses as a drunkard in the area. The Appellant further argued that he was mistakenly identified as the offender and he should be acquitted.
The Respondent’s on the other hand filed written submissions dated 22nd February 2024 and opposed the appeal on conviction and sentence.
It was submitted that the Court complied with the provisions of Article 50(2)(g) when the Appellant was informed of the right to an advocate at his expense on 6th September 2021 on the day he took plea and was therefore promptly done.
On the claim that Article 50(2)(h) was infringed the Respondent argued that same was not absolute and is dependent on the court being satisfied that substantial injustice will be occasioned if an advocate is not given to the Accused at the expense of the state.
It was submitted that from the proceedings it was clear that the Appellant understood the charges against him and actually followed the proceedings and was able to defend himself. That the Appellant was an adult and was not mentally incapacitated during trial.
It was also submitted that all the ingredients of the offence of defilement were proved by the prosecution. On identification of the perpetrator it was submitted that the Complainant knew the Appellant before and recognized him at the time of the incident which happened at 6.00am and PW2 and 5 who were with the Complainant also identified the perpetrator as the Appellant. That they further managed to identify what he was wearing.
The court was urged to dismiss the appeal as it lacked merit and uphold the conviction and sentence by the Trial Court.
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 Court complied with the provisions of Article 50(2) (g) & (h) of the Constitution of Kenya.
(b). Whether the Appellant was properly identified as the assailant.
(c). Whether the Trial Court relied on contradictory and inconsistent evidence to convict the Appellant.
(d). Whether the Prosecution failed to avail crucial witness and if so whether the alleged failure prejudiced the Appellant.
(e). Whether the Trial Court considered the Appellant’s defense.
On whether the Trial Court complied with the provisions of Article 50(2) (g) & (h) of the Constitution of Kenya, the said Article provides:
(2) Every accused person has the right to a fair trial, which includes the right—
() …
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
In Francis Macharia Gichungi & 3 Others V Republic Cr. App. No 11 of 2004 the court stated that it is to be reasonably expected that an accused person who claims that his or her rights have been violated will at the very least raise the issue with the Trial Court.
The Appellant was informed by the Trial Court of his right to legal representation at his own expense on the day that plea was taken on 13th September 2021. When matter came up for hearing on 1st February 2021 and the prosecution indicated it had 4 witnesses the Appellant confirmed he was ready to proceed. He did not make any complaint that would have made the court know he was not ready to proceed or he had any impediment to proceed with trial.
Regarding the Appellants contention that he was not assigned legal representation, Article 50(2) (h) of the Constitution mandates the court to appoint an advocate for an accused person at state expense whenever the court is of the opinion that substantial injustice would otherwise result if the accused is not represented by an advocate at the trial.
The Supreme Court in R v Chengo & 2 Others (Petition No 3 of 2015) held: -
‘’…We must however emphasize the fact that in accordance with the language of the Constitution this particular right is not open ended. It only becomes available if substantial injustice would otherwise result’’.
In the case of Manyeso V Republic (Criminal Appeal No 12 of 2021[2023] KECA 827 the court in dealing with the issue of legal representation stated that:-
‘’…However, in the present appeal, the Appellant did not raise the issue of legal representation either in the trial court or in the High Court, and the record of the trial court shows that the appellant participated in the trial and cross examined 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 Appellant’s arguments that their rights to fair trial under Article 50(2) (g) and (h) of the Constitution were violated.’’
This court finds that the Appellant’s ground that his right to fair trial was violated cannot stand as he did not raise the issue with the trial court and he effectively participated in the trial by cross examining all the prosecution witnesses and mounted his defense.
On whether the Appellant was properly identified as the assailant the Appellant claimed he was mistakenly identified as the perpetrator for reasons that the Complainant and her siblings did not know him by name and that if indeed they knew him even physically as they claimed that they used to see him near the river, he ought to have been arrested the same day the offence was committed.
The offence herein was committed in the morning at day break and 3 children aged 15, 13 and 11 years old respectively whom the court examined and found to be of sufficient intelligence said the Appellant confronted them and attacked them and defiled PW1 while PW2 was watching with the Appellant’s intention of defiling her too after finishing with PW1 as he had already ordered her to remove her pant. The 3 children said the Appellant used to have rasta hair and he did not dispute it. This court therefore finds that there was nothing to hinder the 3 children from identifying their attacker and they gave sufficient and satisfactory description of the person who attacked them and on arrest they confirmed that indeed he was the one.
When the Appellant was arrested he led police to his house and the black sweater the children said he was wearing at the time he committed the offence and the white cloth he had used to tie his mouth were recovered and identified.
This court finds that the Appellant was therefore properly identified by the 3 children as the person who committed the heinous act in a very barbaric manner against innocent children who were on their way to school to seek knowledge.
On whether the Trial Court relied on contradictory and inconsistent evidence to convict the Appellant.
The Appellant claimed that the Trial Magistrate relied on contradictory evidence to convict him. He submitted that the investigating officer did not indicate the exact place in his house where the sweater was recovered and that PW1 did not also indicate if the Appellant accompanied them to his house when recovery was made. He also questioned how PW1 knew his house if she did not know him.
A re-evaluation of the evidence on record shows that the Investigating Officer and her colleagues were led by the Appellant to his house where a search was conducted and a black sweater and a white cloth that were positively identified by the Complainant and PW2 and PW5 were recovered. There is no material contradiction shown in this particular evidence that can make this court find that the Appellant was wrongly found guilty.
On whether the Prosecution failed to avail crucial witnesses and if so whether the alleged failure prejudiced the Appellant
In the case of Nundu v Republic (Criminal Appeal E055 of 2023) [2024] KEHC 925 (KLR) R.E. ABURILI J held that:
“I am however alive to the fact that there is no legal requirement in law on the number of witnesses to prove a fact. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides that:
“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”
The Appellant did not give particulars of the witnesses he said were not called and the nature of evidence he claimed was not tendered by the said alleged witnesses. In any case the mandate to call witnesses lie with the Prosecution and there is no law requiring that a specific number of witnesses must testify to prove particular facts.
On whether the Trial Court considered the Appellant’s defense. The Appellant gave an unsworn statement and from the judgement of the Trial Magistrate it is clear that the unsworn statement by the Appellant was considered. The Trial Magistrate said the Appellant failed to raise the issue of grudge with the Complainant’s father during cross examination and he did not deny ownership of the black sweater that was recovered from his house after he led police to the said house.
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 same is dismissed save that the Appellant’s sentence should factor in the 7 months he spent in remand custody before he was released on bond between 6th September 2021 to 12th April 2022.
Right of Appeal 14 days.
Dated, signed and delivered this 12th day of June, 2025
The particulars to the offence were that the Appellant on 19th day of August 2021 at Komotobo Location in Kuria East within Migori County intentionally and unlawfully caused his penis to penetrate the vagina of N. G. J. a child age 15 years.
In the alternative the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The Appellant was aggrieved by the conviction and sentence and he preferred the appeal herein vide Petition of Appeal dated 28th December 2022 and filed on 29th December 2022 the following grounds:-
(a) That the Trial Court erred in both law and fact by failing to comply with Article 50(2) (g) & (h) of the Constitution of Kenya 2010.
(b) That the Learned Trial Magistrate erred both in law and facts by not observing that the ingredients of the offence herein were not proved as required in law.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside.
The Appellant prayed for leave to file amended grounds at a later date upon being supplied with proceedings of the lower court.
In the amended grounds dated 19th June 2024 filed together with submissions the Appellant added the following grounds:
(a). THAT the Learned Trial Magistrate erred in both law and in facts by admitting the identification of the Appellant at the alleged scene of crime without putting in his mind that the said complainant did not disclose and give the name or description to the school girls nor testified in court.
(b). THAT the Learned Trial Magistrate erred in both law and in facts by convicting the Appellant on the evidence of recovery without seeing that the said sweater was not in possession of the Appellant during the arrest.
(c). THAT the Learned Trial Magistrate erred in both law and in fact by not considering that the Appellant’s defense and cross examination disclosed the fabrication to the Appellant by Prosecution witnesses.
(d). THAT the Learned Trial Magistrate erred in both law and in facts by relying on the evidence which is full of contradictions and which are not safe to convict hence prejudice.
(e). THAT the Learned Trial Magistrate erred in both law and in facts by sentencing the Appellant herein basing on the case whereby the crucial witness was not called or testified in court.
Reasons wherefore the Appellant prayed that the appeal be allowed, conviction quashed and sentence set aside and Appellant be set at liberty.
The Prosecution’s case was that the Complainant PW1 was a student at Komotobo Primary School in Grade 8. She testified that she was born on 28th April 2006. She said that on 19. 8.2021 she was heading to school in company of her sister L. R. and her brother V. M. when the Appellant followed them from behind around the river. She said she used to see the Appellant around the river. That the Appellant who wore a black sweater and covered his face with a white cloth passed them and stood on their way and that he unleashed a knife and dragged them into the bush near the main road and covered the mouth of PW1’S sister using a cloth he got from his pocket.PW1 said that her brother managed to flee after the Appellant told him to run off. She said the Appellant removed the biker she was wearing and after unzipping his trouser he defiled her using the ’thing’ he uses to urinate, She said that at that time her sister was seated next to her after she had also been ordered to remove her panty. That at that time they heard screams of school girls from the Secondary school and the Appellant zipped up and escaped from the scene. That the students arrived at the scene and escorted them to the secondary school after she put on her panty. That at the Secondary School the Head Teacher escorted her to the Primary section and her father escorted her to Kehancha Hospital and later to Kegonga Police Station where they reported that she had been defiled.
The Complainant testified that the Appellant was arrested by a Pastor who took him to the Complainant’s father and police were called to arrest him.
PW2 L. R. also testified and said she was with PW1 who is her sister and their brother going to school on 19th August 2021 at 6.00am and after they had crossed the river the Appellant whom they had seen at the river followed them and stopped ahead them grabbed PW1 and threw her to the ground. That the Appellant turned on PW2 ans also threw her to the ground.PW2 said the Appellant had a bottle of energy drink on one hand and miraa in his pocket. That he also had a knife tucked on his trouser. That their brother ran away and went to tell other students.
PW2 testified that the Appellant led them to a nearby bush where he lowered his trouser and ordered PW1 to the ground and defiled her.PW2 said the Appellant used his ‘thing used to impregnate women’ and put it in PW1’s ‘thing for urinating’.
PW2 further said that the Appellant had also ordered her to remove her panty and she did. She said the Appellant wore a green trouser and black sweater and he had covered his mouth. She said it was not the 1st time they were seeing the Appellant and even on the material day they saw him with a bottle and miraa and he used to have rasta hair. She said that their brother brought school students who came screaming and when the Appellant heard them he fled. She said the students escorted them to school from where their father and the Chief came and took them to hospital and later to the Police Station.
PW2 testified that the Appellant was later arrested by a Pastor along the road near the river and taken to their home where police went and arrested him. That the police visited the Appellant’s house and the sweater he was wearing at the time of the incident and cloth were recovered. PW2 identified them in court.
In cross examination PW2 said that they used to meet the Appellant along the road near the river on their way to school. She said they could find him seated on the rocks. She said she had severally seen the Appellant wear the same sweater he was wearing when he attacked them and defiled PW1. She said sh did not know the Appellant by name but knew him physically.
PW3 the mother of the Complainant, PW2 and PW5 testified that on 19th August 2021her children left at 6.00am to go to school but on the way they were attacked. That as a result of the attack students from Komotobo Secondary School went on the road screaming. That when the chief inquired what the problem was he was told that the children of the driver had been attacked. That because the Chief was her neighbor she overhead him being told it was the children of the driver who had been attacked. She said it is her husband who was a matatu driver in the area and she called her husband and informed him. That she headed to school and found the boy okay but the girls said they had been attacked. That she escorted the 2 girls t Kehancha hospital and they were treated and PRC form filled. That they later went to Kegonga Police Station and they were referred to Kegonga Hospital where the Doctor confirmed that PW1 had been defiled. She said that the Appellant was arrestedand police called and they re-arrested him. She said she had severally seen the Appellant along the road in rasta hair style. PW 3 said her children identified the Appellant as the perpetrator.
PW4 P. C. Roselyne Onyango of Isebania Police Station carried out investigations of the offence herein. She said that the Complainant and her siblings told her they knew the perpetrator physically and that he was wearing a black sweater and covered her mouth with a white scarf and also had rasta on his head..
PW3 issued P3 form which was duly filled and the Appellant subsequently arrested by the Chief upon being identified by the Complainant, PW2 and PW5 and he was charged.
PW4 also testified that when they proceeded to the Appellant’s house they recovered the black sweater and white scarf that the children said he was wearing at the time of committing the offence. The sweater and scarf were produced as exhibits PEX 3 and PEX 2. PW4 said the Appellant led them to his house where the exhibits were recovered.
PW5 the brother to the Complainant and PW2 reiterated what they said in evidence as to how the Appellant accosted them when they were going to school in the morning. He said that when the Appellant told them ‘kuja hapa’ he feared and ran towards the school but his sisters remained behind. That when he looked back he saw the Appellant had grabbed PW1 and tied her hands behind with a rope. That he also grabbed PW2 and covered her mouth using a red cloth. PW5 ran to school and reported to the watchman who told the Secondary School Students and they went to rescue his sisters. He said he learnt the Appellant fled from the scene and his sisters were taken to hospital. PW5 identified the Appellant as the one who attacked his sisters. He also identified the sweater the Appellant was wearing at the time of the attack.
PW6 John Marwa testified that PW1, 2 and 5 were his children. He said that on 19th August 2021 his children left for school at 6.00am and he also left to go to work. That 30 minutes thereafter his wife called to inform him his children had been attacked on the way to school and the girls raped. That he rushed t school and found his daughter could not walk. The daughter told him she knew the assailant as she had seen him severally in th area. That he escorted PW1 to hospital and later reported the matter at Kegonga Police Station. That they were referred to Kegonga Hospital where P3 was duly filled. PW6 said that the Appellant was later arrested after the children identified him.
In cross examination PW6 said the Appellant had fled the area but when the children saw him and reported he quickly called the Chief and he was arrested.
PW7 Senior Chief Komotobo Location testified that on 4/9/2021 at around 5,15 pm he received a call from PW6 informing him that a suspect had been arrested in Kebarisia town by members of public who were beating him. That he rushed to the scene and found the Appellant surrounded by people. He said he knew the Appellant as he had been Assistant Chief of his area of domicile. That he called the OCS Kegonga Police Station to the scene and Appellant was re-arrested for the offence of defiling the Complainant. PW 7 said that the Complainant identified the Appellant as the person who defiled her. He said he was not aware of any report by the Appellant against the Complainant’s family.
PW8 Geoffrey Mogire Clinical Officer at Kegonga Sub-County Hospital testified that his colleague who had since been transferred filled P3 form in respect of the Complainant herein on allegations of defilement by a person known to the patient who was on her way to school. Laboratory examination revealed epithelial cells, spermatozoa and pus cells. The Clinical Officer was the opinion injury was caused by penile penetration and hymen was freshly broken with bruises on the labia minora and whitish discharge from the vagina. PW8 produced the P3 and PRC forms as exhibits.
When the Appellant was placed on his defense he gave unsworn statement and said that he did not know the Complainant. He said that when he arrived in Kebarisia he heard 2 people calling him and when he went to where they were they made him sit on the ground and told him he had defiled their daughter. That when the Chief went to the scene he slapped him and forced him to admit the offence. That boda boda men implored the Chief to call the police to solve the matter. He said the father of the Complainant had a grudge with him for a long time. That while he was studying in 2006 the brother to the Complainant’s father who was operating a shop near his village claimed that he stole from the said shop when another boy is the one who stole from therein. That the suspect who was arrested while stealing mentioned him as an accomplice when interrogated. He said the case was brought due to malice. He added further that the Complainant’s father at one time took his bicycle and that they had tormented him.
This Appeal was canvassed by way of written submissions.
In the Appellant’s written submissions dated 20th June 2024 he submitted that the Trial Magistrate admitted contradictory and unsupported evidence and relied on the same to convict him. He submitted that the girls who went to rescue the Complainant did not testify and the Complainant in her first report said she was defiled by someone who was not well known to her and she did not describe the physical appearance of the perpetrator.
The Appellant submitted that the sweater and the white cloth that was allegedly recovered from him were also not produced in court. He also questioned how the Complainant knew his house if she did not know him very well.
The Appellant submitted further that it took the Complainant from 19th August 2021 when she was defiled to 4th September 2021 to report the offence and sought treatment after he had been arrested. He said that there was contradiction between the evidence of PW4 as to when the P3 was filled whether on 4.9.2021 or 19.8.2021.
The Appellant also argued that the age of the Complainant was not proved to the required standard of beyond reasonable doubt. On the ingredient of penetration, the Appellant submitted that the prosecution witnesses gave contradictory evidence which could not sustain a conviction and the same should be quashed.
The Appellant further submitted that the Trial Magistrate rejected his defense in which he raised the issue of grudge between his family and that of the Complainant. He said if it is true that he committed the offence he should have been arrested on the same day as he was known to the prosecution witnesses as a drunkard in the area. The Appellant further argued that he was mistakenly identified as the offender and he should be acquitted.
The Respondent’s on the other hand filed written submissions dated 22nd February 2024 and opposed the appeal on conviction and sentence.
It was submitted that the Court complied with the provisions of Article 50(2)(g) when the Appellant was informed of the right to an advocate at his expense on 6th September 2021 on the day he took plea and was therefore promptly done.
On the claim that Article 50(2)(h) was infringed the Respondent argued that same was not absolute and is dependent on the court being satisfied that substantial injustice will be occasioned if an advocate is not given to the Accused at the expense of the state.
It was submitted that from the proceedings it was clear that the Appellant understood the charges against him and actually followed the proceedings and was able to defend himself. That the Appellant was an adult and was not mentally incapacitated during trial.
It was also submitted that all the ingredients of the offence of defilement were proved by the prosecution. On identification of the perpetrator it was submitted that the Complainant knew the Appellant before and recognized him at the time of the incident which happened at 6.00am and PW2 and 5 who were with the Complainant also identified the perpetrator as the Appellant. That they further managed to identify what he was wearing.
The court was urged to dismiss the appeal as it lacked merit and uphold the conviction and sentence by the Trial Court.
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 Court complied with the provisions of Article 50(2) (g) & (h) of the Constitution of Kenya.
(b). Whether the Appellant was properly identified as the assailant.
(c). Whether the Trial Court relied on contradictory and inconsistent evidence to convict the Appellant.
(d). Whether the Prosecution failed to avail crucial witness and if so whether the alleged failure prejudiced the Appellant.
(e). Whether the Trial Court considered the Appellant’s defense.
On whether the Trial Court complied with the provisions of Article 50(2) (g) & (h) of the Constitution of Kenya, the said Article provides:
(2) Every accused person has the right to a fair trial, which includes the right—
() …
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;
In Francis Macharia Gichungi & 3 Others V Republic Cr. App. No 11 of 2004 the court stated that it is to be reasonably expected that an accused person who claims that his or her rights have been violated will at the very least raise the issue with the Trial Court.
The Appellant was informed by the Trial Court of his right to legal representation at his own expense on the day that plea was taken on 13th September 2021. When matter came up for hearing on 1st February 2021 and the prosecution indicated it had 4 witnesses the Appellant confirmed he was ready to proceed. He did not make any complaint that would have made the court know he was not ready to proceed or he had any impediment to proceed with trial.
Regarding the Appellants contention that he was not assigned legal representation, Article 50(2) (h) of the Constitution mandates the court to appoint an advocate for an accused person at state expense whenever the court is of the opinion that substantial injustice would otherwise result if the accused is not represented by an advocate at the trial.
The Supreme Court in R v Chengo & 2 Others (Petition No 3 of 2015) held: -
‘’…We must however emphasize the fact that in accordance with the language of the Constitution this particular right is not open ended. It only becomes available if substantial injustice would otherwise result’’.
In the case of Manyeso V Republic (Criminal Appeal No 12 of 2021[2023] KECA 827 the court in dealing with the issue of legal representation stated that:-
‘’…However, in the present appeal, the Appellant did not raise the issue of legal representation either in the trial court or in the High Court, and the record of the trial court shows that the appellant participated in the trial and cross examined 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 Appellant’s arguments that their rights to fair trial under Article 50(2) (g) and (h) of the Constitution were violated.’’
This court finds that the Appellant’s ground that his right to fair trial was violated cannot stand as he did not raise the issue with the trial court and he effectively participated in the trial by cross examining all the prosecution witnesses and mounted his defense.
On whether the Appellant was properly identified as the assailant the Appellant claimed he was mistakenly identified as the perpetrator for reasons that the Complainant and her siblings did not know him by name and that if indeed they knew him even physically as they claimed that they used to see him near the river, he ought to have been arrested the same day the offence was committed.
The offence herein was committed in the morning at day break and 3 children aged 15, 13 and 11 years old respectively whom the court examined and found to be of sufficient intelligence said the Appellant confronted them and attacked them and defiled PW1 while PW2 was watching with the Appellant’s intention of defiling her too after finishing with PW1 as he had already ordered her to remove her pant. The 3 children said the Appellant used to have rasta hair and he did not dispute it. This court therefore finds that there was nothing to hinder the 3 children from identifying their attacker and they gave sufficient and satisfactory description of the person who attacked them and on arrest they confirmed that indeed he was the one.
When the Appellant was arrested he led police to his house and the black sweater the children said he was wearing at the time he committed the offence and the white cloth he had used to tie his mouth were recovered and identified.
This court finds that the Appellant was therefore properly identified by the 3 children as the person who committed the heinous act in a very barbaric manner against innocent children who were on their way to school to seek knowledge.
On whether the Trial Court relied on contradictory and inconsistent evidence to convict the Appellant.
The Appellant claimed that the Trial Magistrate relied on contradictory evidence to convict him. He submitted that the investigating officer did not indicate the exact place in his house where the sweater was recovered and that PW1 did not also indicate if the Appellant accompanied them to his house when recovery was made. He also questioned how PW1 knew his house if she did not know him.
A re-evaluation of the evidence on record shows that the Investigating Officer and her colleagues were led by the Appellant to his house where a search was conducted and a black sweater and a white cloth that were positively identified by the Complainant and PW2 and PW5 were recovered. There is no material contradiction shown in this particular evidence that can make this court find that the Appellant was wrongly found guilty.
On whether the Prosecution failed to avail crucial witnesses and if so whether the alleged failure prejudiced the Appellant
In the case of Nundu v Republic (Criminal Appeal E055 of 2023) [2024] KEHC 925 (KLR) R.E. ABURILI J held that:
“I am however alive to the fact that there is no legal requirement in law on the number of witnesses to prove a fact. Section 143 of Evidence Act (Cap 80) Laws of Kenya provides that:
“143. No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”
The Appellant did not give particulars of the witnesses he said were not called and the nature of evidence he claimed was not tendered by the said alleged witnesses. In any case the mandate to call witnesses lie with the Prosecution and there is no law requiring that a specific number of witnesses must testify to prove particular facts.
On whether the Trial Court considered the Appellant’s defense. The Appellant gave an unsworn statement and from the judgement of the Trial Magistrate it is clear that the unsworn statement by the Appellant was considered. The Trial Magistrate said the Appellant failed to raise the issue of grudge with the Complainant’s father during cross examination and he did not deny ownership of the black sweater that was recovered from his house after he led police to the said house.
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 same is dismissed save that the Appellant’s sentence should factor in the 7 months he spent in remand custody before he was released on bond between 6th September 2021 to 12th April 2022.
Right of Appeal 14 days.
Dated, signed and delivered this 12th day of June, 2025