1. The appellant was charged with the offence of defilement in SO case No. 9 of 2020 after which he was convicted and sentenced to serve a term of 20 years imprisonment in line with Section 8(1) as read with 8 (2) that was delivered on 14th September, 2022.
2. He argues that his right to fair hearing under Article 50 (2) (h) was violated given that he was not assigned an advocate, and that the offense of defilement was not proved.
3. He also raised the ground that the trial Court failed to take into account the appellant's plausible defense and by convicting him solely on uncorroborated evidence.
4. He raises the ground that the evidence adduced by the prosecution was contradictory and unsafe to base the conviction.
5. He argues that the sentence meted out on him was harsh and excessive.
6. He is asking this court to set aside the conviction and the sentence and set him at liberty.
The Respondent's submissions;
7. The appeal is opposed by the respondent who submits that on 14/09/2022, the appellant herein was found guilty and convicted of the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He was sentenced to 20 years' imprisonment.
8. Reliance is placed in the case of Okeno v Republic [1972] EA 32 thus:
"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424."
9. In compliance with the above duty, it looks at all the ingredients of the offence before embarking on the appellant's grounds and submissions.
10. It submits that the offence of defilement is rooted on three main ingredients being the age of the victim, penetration and the proper identification of the perpetrator.
11. Under section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 all the ingredients must each be proven for a conviction to ensue.
12. Reliance on the gradients of the offence is placed in (George Opondo Olunga vs. Republic [2016] eKLR).
13. It is the respondent's submission that these ingredients were sufficiently proved, beyond a reasonable doubt.
14. The Appellant faults the court for erring by convicting him on the basis of scanty/insufficient evidence and for disregarding the defence evidence.
15. It submits that the prosecution proved the age of the complainant.PW1 the victim, stated during her testimony that she was born on 24th November 2008.
16. This establishes that at the time of the incident on 2nd February 2020, she was 11 years old,and therefore a child under section 2 of the Sexual Offences Act.
17. The prosecution produced a birth certificate showing she was born on 24/11/2008.
18. On the proof of penetration, PW1 was clear and categorical in her evidence that on the material day at around 11.00 hours, when she was washing clothes.
19. He threw his hat to the minor and told her to wash it. It was her case that when she refused to wash it, the accused undressed her and defiled her, referring to it as “tabia Mbaya”.
20. It was her evidence that the accused person visited their home from time to time. He was known at their trading center as 'Fundi'.
21. Further the minor stated that at some time he escorted her to the shamba and undressed her and did tabia mbaya.
22. Her testimony on the sequence of events was consistent and unshaken throughout.
23. PW3, the clinical officer, produced the treatment notes and confirmed that the complainant's hymen was broken, though with old hymeneal tears. He nonetheless concluded that the girl had been defiled. This corroboration meets the evidentiary threshold under section 124 of the Evidence Act.
24. The reporting timeline further supports the credibility of PWI's narrative. She testified as she was crying in the old man's rented house and when her mother moved toward and picked her up and they went to the village elder who advised to report the matter at Makuyu Police Station.
25. PW2, her mother, testified that upon returning to her house, she did not find her daughter.
26. Upon pushing the door of her immediate neighbor she found the accused with her daughter (PW1).
27. The prosecution submits that proof of penetration has been conclusively established.
28. On identification of the perpetrator, PW1 was categorical that she knew the accused person, as he was her neighbor. She saw him clearly before the attack when he approached her and threw his hat for her to wash.
29. The interaction occurred in daylight at around 11.00 hours, giving her sufficient opportunity to identify him.
30. During the assault itself, she was in close physical proximity to him, making mistaken identity impossible.
31. PW2 confirmed in her testimony that the child reported being defiled by a neighbor they all knew.
32. PW4, the investigating officer, stated that after receiving the complaint, she visited the scene and recorded witness statements.
33. She further testified that after the incident, investigations were done and upon completion, the accused was arrested on 04/02/2020 after which he was charged in court.
34. The Appellant argues that the court disregarded the defence of alibi tendered.
35. Indeed, when a defense of alibi is tendered, the prosecution has a duty to disprove it.
36. In affirming the decision of the court, the prosecution pointed out that the court indeed considered the same in judgment.
37. The court considered the same in extensor. The appellant alleged that on the material day, the mother of the complainant on returning threw her towards the appellant and claimed that he defiled her.
38. According to the prosecution, the Court appropriately applied the law and sentencing guidelines.
39. The Sexual Offences, at Section 8(3) prescribe a minimum of 20 years imprisonment. The 15 years meted out were proportional to the offence.
40. The accused was allowed to mitigate, and a pre-sentencing report was availed.
41. The court considered the mitigation and indeed reduced the sentence beyond the statutory minimum and sentenced him to 20 years imprisonment.
Analysis and Determination;
42. The issue for determination is whether the appeal has merit.
43. The court is guided by the principles as enunciated in the case of Kiilu & Another v Republic [2005]1 KLR 174, where the Court of Appeal stated thus:
“1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
44. Section 8 of the Sexual Offences Act provides as follows:-
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
45. In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013,it was held that:-
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
46. In the case of Okeno V Republic (1972) EA 32, pandyaV Republic (1957) E.A 336, Shantialal M Ruwala V R (1957) EA 570 the court held that a court sitting on
Appeal has to relook at the evidence afresh.
47. Section 348 of the Criminal Procedure Code provides that no appeal shall lie as of right to the High court, if an accused person has been convicted on a plea of guilt except as to the extent or legality of sentence.
48. This Court has addressed its mind to the issue of identification.
49. I find that the appellant was the victim's neighbour and he was well known to her as their frequent visitor.
50. She testified that he threw a hat at her to wash for him when he found her washing clothes.
51. The victim’s mother testified that when she returned home she found the victim at his place.
52. In his defence the appellant argued that when the mother returned, she threw the victim at him.
53. This shows that the appellant was known to the victim and her family.
54. The court further notes that all this happened in broad daylight and the child could see and recognise him.
55. She further testified that they used to call him Fundi, confirming that he wasn't a stranger to her.
56. In the case of MW v Republic [2019] eKLR the High Court at Kajiado stated as follows regarding recognition,"The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity”
57. From the foregoing evidence, this court is satisfied that the appellant was positively identified.
58. The same proof goes a long way to deal a blow to the Appellant’s belated defence of alibi. He was at the scene of crime when the victim was defiled and I so hold.
59. The next ingredient of the offense is age. The court is satisfied that the prosecution proved the age of the child through her birth certificate.
60. On the last issue, The appellant argued that the prosecution did not prove penetration.
61. Section 2(1) of the Sexual Offences Act, 2006 provides the following definition:
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
62. The victim testified that the appellant undressed her and defiled her and referred to it as 'tabia mbaya'. She stated that at some time he escorted her to the shamba and undressed her and did tabia mbaya.Then P3 form confirms this.
63. I have looked at the evidence and I am satisfied that the victim told the trial Court exactly what happened and that the appellant defiled her.
64. I have been further guided by the case of Under Section 124 of the Evidence Act, corroboration is not necessary In sexual offences.
65. The section provides as follows:
“Notwithstanding the provisions of section 19 of the oaths and statutory declaration Act, where the evidence of an alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence; the accused shall not be liable to be convicted on such evidence unless it is corroborated by other Material Evidence in support thereof implicating him provided that wherein a criminal case involving a Sexual Offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reasons to be recorded, in the proceedings, the court is satisfied that the alleged victim is telling the truth”.
66. The ground that the learned trial magistrate erred on both law and facts by basing my conviction solely on uncorroborated evidence fails.
67. The appellant was given an opportunity to mitigate which he did.
68. The court is satisfied that the conviction and the sentencing were within Section 8 of The Sexual Offences Act.
69. The appellant also advanced an argument that his right to fair hearing was violated since he was not given an advocate to represent him.
70. In Republic vs Karisa Chengo and 2 others [2017] eKLR, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but 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”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”.
71. In the present case, it is unclear from the record whether the trial court made the Appellant aware of these rights.
72. This issue was not addressed in the trial court, the way the Appellant cross-examined the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution.
73. I am convinced that the conviction and sentencing were legal and justified, and I see no reason to set them aside.
74. The right to counsel is not an automatic entitlement to persons charged with the offence of defilement.
75. In any event the appellant fails to demonstrate the prejudice that he suffered if any.
Determination:
76. The appeal lacks merit.
Order:
The appeal is dismissed.
Dated, signed and delivered virtually at Eldoret this 26th day of June 2026.
2. He argues that his right to fair hearing under Article 50 (2) (h) was violated given that he was not assigned an advocate, and that the offense of defilement was not proved.
3. He also raised the ground that the trial Court failed to take into account the appellant's plausible defense and by convicting him solely on uncorroborated evidence.
4. He raises the ground that the evidence adduced by the prosecution was contradictory and unsafe to base the conviction.
5. He argues that the sentence meted out on him was harsh and excessive.
6. He is asking this court to set aside the conviction and the sentence and set him at liberty.
The Respondent's submissions;
7. The appeal is opposed by the respondent who submits that on 14/09/2022, the appellant herein was found guilty and convicted of the offence of Defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act. He was sentenced to 20 years' imprisonment.
8. Reliance is placed in the case of Okeno v Republic [1972] EA 32 thus:
"An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs. Republic (1957) EA. (336) and the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. (Shantilal M. Ruwala vs. R. (1957) EA. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters vs. Sunday Post [1958] E.A 424."
9. In compliance with the above duty, it looks at all the ingredients of the offence before embarking on the appellant's grounds and submissions.
10. It submits that the offence of defilement is rooted on three main ingredients being the age of the victim, penetration and the proper identification of the perpetrator.
11. Under section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 all the ingredients must each be proven for a conviction to ensue.
12. Reliance on the gradients of the offence is placed in (George Opondo Olunga vs. Republic [2016] eKLR).
13. It is the respondent's submission that these ingredients were sufficiently proved, beyond a reasonable doubt.
14. The Appellant faults the court for erring by convicting him on the basis of scanty/insufficient evidence and for disregarding the defence evidence.
15. It submits that the prosecution proved the age of the complainant.PW1 the victim, stated during her testimony that she was born on 24th November 2008.
16. This establishes that at the time of the incident on 2nd February 2020, she was 11 years old,and therefore a child under section 2 of the Sexual Offences Act.
17. The prosecution produced a birth certificate showing she was born on 24/11/2008.
18. On the proof of penetration, PW1 was clear and categorical in her evidence that on the material day at around 11.00 hours, when she was washing clothes.
19. He threw his hat to the minor and told her to wash it. It was her case that when she refused to wash it, the accused undressed her and defiled her, referring to it as “tabia Mbaya”.
20. It was her evidence that the accused person visited their home from time to time. He was known at their trading center as 'Fundi'.
21. Further the minor stated that at some time he escorted her to the shamba and undressed her and did tabia mbaya.
22. Her testimony on the sequence of events was consistent and unshaken throughout.
23. PW3, the clinical officer, produced the treatment notes and confirmed that the complainant's hymen was broken, though with old hymeneal tears. He nonetheless concluded that the girl had been defiled. This corroboration meets the evidentiary threshold under section 124 of the Evidence Act.
24. The reporting timeline further supports the credibility of PWI's narrative. She testified as she was crying in the old man's rented house and when her mother moved toward and picked her up and they went to the village elder who advised to report the matter at Makuyu Police Station.
25. PW2, her mother, testified that upon returning to her house, she did not find her daughter.
26. Upon pushing the door of her immediate neighbor she found the accused with her daughter (PW1).
27. The prosecution submits that proof of penetration has been conclusively established.
28. On identification of the perpetrator, PW1 was categorical that she knew the accused person, as he was her neighbor. She saw him clearly before the attack when he approached her and threw his hat for her to wash.
29. The interaction occurred in daylight at around 11.00 hours, giving her sufficient opportunity to identify him.
30. During the assault itself, she was in close physical proximity to him, making mistaken identity impossible.
31. PW2 confirmed in her testimony that the child reported being defiled by a neighbor they all knew.
32. PW4, the investigating officer, stated that after receiving the complaint, she visited the scene and recorded witness statements.
33. She further testified that after the incident, investigations were done and upon completion, the accused was arrested on 04/02/2020 after which he was charged in court.
34. The Appellant argues that the court disregarded the defence of alibi tendered.
35. Indeed, when a defense of alibi is tendered, the prosecution has a duty to disprove it.
36. In affirming the decision of the court, the prosecution pointed out that the court indeed considered the same in judgment.
37. The court considered the same in extensor. The appellant alleged that on the material day, the mother of the complainant on returning threw her towards the appellant and claimed that he defiled her.
38. According to the prosecution, the Court appropriately applied the law and sentencing guidelines.
39. The Sexual Offences, at Section 8(3) prescribe a minimum of 20 years imprisonment. The 15 years meted out were proportional to the offence.
40. The accused was allowed to mitigate, and a pre-sentencing report was availed.
41. The court considered the mitigation and indeed reduced the sentence beyond the statutory minimum and sentenced him to 20 years imprisonment.
Analysis and Determination;
42. The issue for determination is whether the appeal has merit.
43. The court is guided by the principles as enunciated in the case of Kiilu & Another v Republic [2005]1 KLR 174, where the Court of Appeal stated thus:
“1. An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.
2. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
44. Section 8 of the Sexual Offences Act provides as follows:-
(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
(4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
45. In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013,it was held that:-
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
46. In the case of Okeno V Republic (1972) EA 32, pandyaV Republic (1957) E.A 336, Shantialal M Ruwala V R (1957) EA 570 the court held that a court sitting on
Appeal has to relook at the evidence afresh.
47. Section 348 of the Criminal Procedure Code provides that no appeal shall lie as of right to the High court, if an accused person has been convicted on a plea of guilt except as to the extent or legality of sentence.
48. This Court has addressed its mind to the issue of identification.
49. I find that the appellant was the victim's neighbour and he was well known to her as their frequent visitor.
50. She testified that he threw a hat at her to wash for him when he found her washing clothes.
51. The victim’s mother testified that when she returned home she found the victim at his place.
52. In his defence the appellant argued that when the mother returned, she threw the victim at him.
53. This shows that the appellant was known to the victim and her family.
54. The court further notes that all this happened in broad daylight and the child could see and recognise him.
55. She further testified that they used to call him Fundi, confirming that he wasn't a stranger to her.
56. In the case of MW v Republic [2019] eKLR the High Court at Kajiado stated as follows regarding recognition,"The effect of recognition as opposed to the identification of a stranger is that it drastically reduces the possibility of mistaken identity”
57. From the foregoing evidence, this court is satisfied that the appellant was positively identified.
58. The same proof goes a long way to deal a blow to the Appellant’s belated defence of alibi. He was at the scene of crime when the victim was defiled and I so hold.
59. The next ingredient of the offense is age. The court is satisfied that the prosecution proved the age of the child through her birth certificate.
60. On the last issue, The appellant argued that the prosecution did not prove penetration.
61. Section 2(1) of the Sexual Offences Act, 2006 provides the following definition:
"penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;
62. The victim testified that the appellant undressed her and defiled her and referred to it as 'tabia mbaya'. She stated that at some time he escorted her to the shamba and undressed her and did tabia mbaya.Then P3 form confirms this.
63. I have looked at the evidence and I am satisfied that the victim told the trial Court exactly what happened and that the appellant defiled her.
64. I have been further guided by the case of Under Section 124 of the Evidence Act, corroboration is not necessary In sexual offences.
65. The section provides as follows:
“Notwithstanding the provisions of section 19 of the oaths and statutory declaration Act, where the evidence of an alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence; the accused shall not be liable to be convicted on such evidence unless it is corroborated by other Material Evidence in support thereof implicating him provided that wherein a criminal case involving a Sexual Offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if for reasons to be recorded, in the proceedings, the court is satisfied that the alleged victim is telling the truth”.
66. The ground that the learned trial magistrate erred on both law and facts by basing my conviction solely on uncorroborated evidence fails.
67. The appellant was given an opportunity to mitigate which he did.
68. The court is satisfied that the conviction and the sentencing were within Section 8 of The Sexual Offences Act.
69. The appellant also advanced an argument that his right to fair hearing was violated since he was not given an advocate to represent him.
70. In Republic vs Karisa Chengo and 2 others [2017] eKLR, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but 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”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”.
71. In the present case, it is unclear from the record whether the trial court made the Appellant aware of these rights.
72. This issue was not addressed in the trial court, the way the Appellant cross-examined the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution.
73. I am convinced that the conviction and sentencing were legal and justified, and I see no reason to set them aside.
74. The right to counsel is not an automatic entitlement to persons charged with the offence of defilement.
75. In any event the appellant fails to demonstrate the prejudice that he suffered if any.
Determination:
76. The appeal lacks merit.
Order:
The appeal is dismissed.
Dated, signed and delivered virtually at Eldoret this 26th day of June 2026.