( Being an appeal from the Judgment and sentence of the magistrate’s court at Shanzu in MCSO No. 9 of 2020 delivered on 13 th January 2025 by Hon Leah Juma (PM))
BACKGROUND
1. The Appellant herein was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the offence were that the accused Julius Muendo Kyengo on the 15/1/2020 at VOK area Nyali sub-county in Mombasa County intentionally and unlawfully touched the vagina of HB a girl aged 9 years with his hands.
2. The appellant was convicted and sentenced to serve ten years’ imprisonment.
3. The appellant was not satisfied with the judgement of Hon Leah Juma (PM) in the Magistrate Court at Mombasa S.O Case 9 of 2020 and thus sought this appeal.
4. The appellants’ grounds of appeal are summarized as follows;
i. That the Hon trial magistrate erred in both law and fact by subjecting the appellant to an unfair trial/hearing despite the complexities in law involved, having failed to promptly inform him of his right to engage Counsel (legal representation) or to have a counsel assigned to him at the state expense, hence resulting into a mistrial.
ii. The learned Hon trial magistrate erred in both law and fact in basing her judgement/conviction on uncorroborated evidence of a minor and on shaky circumstantial evidence, while the case was not proven beyond reasonable doubt.
iii. The learned Hon trial magistrate erred in both law and fact for having failed the appellant to get his justice despite having been subjected to mob injustice at the time of his arrest, which was engineered by PW2.
iv. The learned Hon trial magistrate erred in both law and fact by shifting the burden of proof to the appellant and in dismissing his defense evidence which was cogent and firm in exposing PW2 as the mastermind behind the false accusations of a jilted lover.
v. The learned Hon trial magistrate erred in both law and fact in preferring a harsh and excessive sentence despite the overwhelming mitigating circumstances.
Prosecution’s case
5. PW1 HB (minor) the complainant herein testified that she is aged 10 years. She stated that the accused person was her neighbor. On 15/1/2020 she had come from school and went to pick up the house keys from her grandmother’s place. Her mother was there. She took the keys and went home so as to change her clothes and go back to her grandmother. PW1 stated that she found the accused person seated at the veranda. He held her hand and pulled her towards him. He started to touch her private parts. He was inserting his fingers in her vagina.
6. PW1 stated that she started asking him why he was having bad manners. He told her to shut up or he would do something bad to her. People came to her rescue. She told them what he has done to her. Her mother also came. The police were called. They went to the police station and to the hospital. The accused person was arrested.
7. During cross examination pw1 stated that the accused person held her hand and pulled her towards him and he started to touch her private parts. That is why she shouted. She stated that the accused person used to tell her that he would buy anything for her. During re-examination she stated that the accused person had ksh. 10 and told her not to tell anyone what had happened and she threw it away.
8. PW2 Evelyn Christine stated that the complainant is her daughter and the accused is her neighbor. Her daughter was born on 23/12/2010 and she is in class 6. She stated that her daughter came for the house keys and she went home to change her uniform. She returned and she appeared restless. They went back home. She could not go near Julius. Pw2 asked her why she was afraid of him. She started to say that Julius had pulled her and touched her private parts. People gathered to listen to what PW1 was saying. She repeated the same story. The matter was reported to police. They took PW1 to hospital where she was examined. The doctor confirmed that she had been touched in her private parts. MFI 1 [a and b] treatment notes and PRC form.
9. During cross examination she stated that when the police came, the accused person ran to his house. The accused person was even offering that they settle the matter as parents. The accused person was assaulted by members of the public. It’s not true that they had an affair with her.
10. PW3 Doctor Julius Milano from Coast General Hospital told the court that he has a PRC form filled by nurse Saida of GBU centre who works alone and could not come to court. He stated that he has worked with nurse Saida for 14 years. He stated that the PRC form was filledd on 16/1/2020. It’s for HB. A female minor born on 23/12/2009. Her story is that she was at the plot when the perpetrator forcefully grabbed her hand and touched her vagina. He also threatened to harm her. The offence took place on 15/1/2020.
11. PW3 stated that upon that upon examination the clothes were already changed. It was noted that there was redness on the vagina. Her hymen was intact. The treatment notes show that the minor was counselled three times. He then produced the PRC form (PEX-1A) and treatment notes as (PEX-1B).
12. The trial was transferred and on 5/12/2023 Hon Leah Juma took conduct of the same. She complied with Section 200 of the CPC where the accused person opted that the matter to proceed from where it had stopped.
13. PW4 PC Florence Ngina told the court that she took over the matter from PC Wilfred Nyange who was transferred to Kitui. On 15/1/20 she was the one on standby when the case was reported. The accused person was arrested by members of the public and they went to pick him at VOK. They took the accused into custody and sent the victim’s mother to the hospital.
14. PW4 stated that when they were recording the minor’s statement she stated that she had come from school and passed by her grandmother’s place. She found her mother and grandmother were not present. She went into their house to change clothes. As she went to the house, she found the accused person outside playing with a dog. She finished changing her clothes and left to go outside where she found the accused who lifted her clothes and touched her vagina when he touched her hand. He then let her go and gave her ksh.10/-. The accused cautioned her from telling anyone. On interrogation the accused admitted to have given the child ksh. 10/-. She produced the birth certificate as PEX-2.
Defence case
15. DWI Julius Mwendo Chengo the accused person testified under oath that the victim had come to that place around 4.00pm and left but later on at 4.00am people came and attacked him while he was sleeping. When he asked them why they were beating him yet he is playing with a dog and the child had asked him for potatoes. They took him to the police station.
16. DW1 stated that he did not give the victim’s mother money when she requested for it because as he had given his wife the money to go home. On cross examination he stated that he knows the complainant as she was his neighbor for two months. He stated that it is the mother who was borrowing him money. She borrowed him the money on 15/1/2020 in the morning at around 8.00am. It was just the two of them. The child came from school at 8.00pm. He was alone playing with a dog outside when the child came. His son Emmanuel Musau witnessed him giving the child the money.
17. DW2 Emmanuel Musau took oath and told the court that the accused person is his father. He said that at 8.00pm they ate with his father and he left. The next day he was informed that his father has been arrested because of touching a child of madam Everline. Madam Everline had a relationship with his father and they spent time at local brew den. They day of the incident he was there and the boda boda riders were also there.
18. On cross examination he stated that in 2020 he used to stay with his father. On 15/1/2020 he was not with his father and his mother had travelled to upcountry. His father and Eva had a relationship. They had an affair since 2016. If his father says that he had known the her for two months only as a neighbor, he would be lying to court. On 15/1/2020 he found his father outside playing with a dog. When he came in, he saw the child dashing. She was alone. She ran towards the stores. He stated when he saw the child, she was rushing but when he came the child was outside with his father at the tyres. He found the child with his father outside. He was not home when the child came from school.
19. DW3 Evans Kahindi Katana stated under oath that the accused person is his neighbor. In 2020, he got home from work at 7.00pm. at around 9.30pm he heard screams and he saw a group of people pulling the accused while beating him. They said the accused had touched a girl. On cross examination he stated that on 15/1/2020 at 5.00pm he was at work. He met Emmanuel the next day. Julius was taken at around 9.30pm – 10pm. They said they were taking him because he had touched a girl. The woman was a neighbor for not more than three months.
20. DW4 Isaac Sifuna Wechuli took oath and said that on 15/1/2020 at 9.00pm he came from work and found people assaulting Julius. They said he had been found touching a girl. He was then take to the police station. On cross examination he stated that at 5.00pm he was at home and if something occurred at 5.00pm he cannot tell.
Analysis and Determination
21. This being the first appellate court, it is imperative that I must examine and analyze all the evidence adduced in the trial court afresh and arrive at my own independent finding and conclusions on both the facts and the law. This is the principle espoused in a plethora of cases including the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….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 v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding 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 witnesses, See Peters v Sunday [1958] E.A 424 .”
22. I have considered the record of appeal and the submissions by Counsel and the issues that arise for determination by this court are as follows: -
i. Whether the Appellant’s right to legal representation was violated.
ii. Whether the prosecution proved its case beyond reasonable doubt.
i. Whether the Appellant’s right to legal representation was violated
23. Article 50(2)(g) of the Constitution provides that every accused person has the right to fair trial, which includes the right to choose, and be represented by an advocate, and to be informed of this right promptly. Under Article 50(2)(h) of the Constitution the right to a fair trial, also includes the right…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 David Njoroge Macharia vs. Republic [2011] eKLR, this Courtstated that:
“Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.
We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided. The reasons are that, firstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission.”
24. 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”. The Supreme Court then went on to say that:
“…it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act , various other factors which include:(i)the seriousness of the offence;(ii)the severity of the sentence;(iii)the ability of the accused person to pay for his own legal representation;(iv)whether the accused is a minor;(v)the literacy of the accused;(vi)the complexity of the charge against the accused;”
25. It should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation. The Constitution demands it. In the present case, the record does not show that the appellant was informed by the trial court of those rights.
26. However, quite apart from the fact that these matters were not raised before the trial court, from the way the appellant cross examined the prosecution witnesses and from his general conduct during the trial, it is not evident an injustice, nay substantial injustice, resulted from the omission by the trial court to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution. The failure by the trial court to inform the appellant of his rights in this case should not therefore be a basis for vitiating his trial. All in all, we are satisfied that the conviction is well founded, and we have no basis for interfering with the same.
ii. Whether the prosecution proved its case beyond reasonable doubt.
27. The appellant herein was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The
Indecent act is defined under Section 2 of the Sexual Offences Act as follows: -
“Indecent act” means an unlawful intentional act which causes-
(a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.
(b) Exposure or display of any pornographic material to any person against his or her will.”
28. The above section shows that what is key for the act complained of to be proved, is that it must be shown that it was intentional and indecent in nature. In this case, the birth certificate on record indicates that the minor was born on 23/12/2008 thus she was 12 years old when the incident occurred.
29. From the evidence on record, it is not in dispute that the appellant and the victim are neighbors and they know each other well. The appellant testified and confirmed that on the material day he was with the minor. The minor asked him for potatoes. The appellant confirmed in his evidence that he gave her the money. DW2 Emmanuel Musau, the appellant’s son, during cross-examination stated that when he came the child was outside with his father (the appellant) at the tyres.
30. DW3 produced the PRC form and treatment notes for the victim. The PRC shows that the minor was examined on 16/1/2020. The incident occurred on 15/1/2020. The same indicates that there was redness on the vagina and her hymen was intact. Based on this evidence it is clear that the appellant was with the minor and the doctor confirmed that there was redness on the victim’s vagina.
31. As regards the issue od PW2 having fabricated the case and subjecting the appellant to mob injustice, I find that she was not even present when the offence occurred and when the beating started. She was called to the scene after the fact. She was not the instigator of the report and the mob beat up the appellant who was more or less caught in the act.
32. In the above foregoing, I find that the prosecution has proved their case beyond reasonable doubt. None of the grounds of appeal succeed .The appeal is therefore dismissed.
33. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 5 TH DAY OF MARCH 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE of:
THE APPELLANT in person
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT
BACKGROUND
1. The Appellant herein was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The particulars of the offence were that the accused Julius Muendo Kyengo on the 15/1/2020 at VOK area Nyali sub-county in Mombasa County intentionally and unlawfully touched the vagina of HB a girl aged 9 years with his hands.
2. The appellant was convicted and sentenced to serve ten years’ imprisonment.
3. The appellant was not satisfied with the judgement of Hon Leah Juma (PM) in the Magistrate Court at Mombasa S.O Case 9 of 2020 and thus sought this appeal.
4. The appellants’ grounds of appeal are summarized as follows;
i. That the Hon trial magistrate erred in both law and fact by subjecting the appellant to an unfair trial/hearing despite the complexities in law involved, having failed to promptly inform him of his right to engage Counsel (legal representation) or to have a counsel assigned to him at the state expense, hence resulting into a mistrial.
ii. The learned Hon trial magistrate erred in both law and fact in basing her judgement/conviction on uncorroborated evidence of a minor and on shaky circumstantial evidence, while the case was not proven beyond reasonable doubt.
iii. The learned Hon trial magistrate erred in both law and fact for having failed the appellant to get his justice despite having been subjected to mob injustice at the time of his arrest, which was engineered by PW2.
iv. The learned Hon trial magistrate erred in both law and fact by shifting the burden of proof to the appellant and in dismissing his defense evidence which was cogent and firm in exposing PW2 as the mastermind behind the false accusations of a jilted lover.
v. The learned Hon trial magistrate erred in both law and fact in preferring a harsh and excessive sentence despite the overwhelming mitigating circumstances.
Prosecution’s case
5. PW1 HB (minor) the complainant herein testified that she is aged 10 years. She stated that the accused person was her neighbor. On 15/1/2020 she had come from school and went to pick up the house keys from her grandmother’s place. Her mother was there. She took the keys and went home so as to change her clothes and go back to her grandmother. PW1 stated that she found the accused person seated at the veranda. He held her hand and pulled her towards him. He started to touch her private parts. He was inserting his fingers in her vagina.
6. PW1 stated that she started asking him why he was having bad manners. He told her to shut up or he would do something bad to her. People came to her rescue. She told them what he has done to her. Her mother also came. The police were called. They went to the police station and to the hospital. The accused person was arrested.
7. During cross examination pw1 stated that the accused person held her hand and pulled her towards him and he started to touch her private parts. That is why she shouted. She stated that the accused person used to tell her that he would buy anything for her. During re-examination she stated that the accused person had ksh. 10 and told her not to tell anyone what had happened and she threw it away.
8. PW2 Evelyn Christine stated that the complainant is her daughter and the accused is her neighbor. Her daughter was born on 23/12/2010 and she is in class 6. She stated that her daughter came for the house keys and she went home to change her uniform. She returned and she appeared restless. They went back home. She could not go near Julius. Pw2 asked her why she was afraid of him. She started to say that Julius had pulled her and touched her private parts. People gathered to listen to what PW1 was saying. She repeated the same story. The matter was reported to police. They took PW1 to hospital where she was examined. The doctor confirmed that she had been touched in her private parts. MFI 1 [a and b] treatment notes and PRC form.
9. During cross examination she stated that when the police came, the accused person ran to his house. The accused person was even offering that they settle the matter as parents. The accused person was assaulted by members of the public. It’s not true that they had an affair with her.
10. PW3 Doctor Julius Milano from Coast General Hospital told the court that he has a PRC form filled by nurse Saida of GBU centre who works alone and could not come to court. He stated that he has worked with nurse Saida for 14 years. He stated that the PRC form was filledd on 16/1/2020. It’s for HB. A female minor born on 23/12/2009. Her story is that she was at the plot when the perpetrator forcefully grabbed her hand and touched her vagina. He also threatened to harm her. The offence took place on 15/1/2020.
11. PW3 stated that upon that upon examination the clothes were already changed. It was noted that there was redness on the vagina. Her hymen was intact. The treatment notes show that the minor was counselled three times. He then produced the PRC form (PEX-1A) and treatment notes as (PEX-1B).
12. The trial was transferred and on 5/12/2023 Hon Leah Juma took conduct of the same. She complied with Section 200 of the CPC where the accused person opted that the matter to proceed from where it had stopped.
13. PW4 PC Florence Ngina told the court that she took over the matter from PC Wilfred Nyange who was transferred to Kitui. On 15/1/20 she was the one on standby when the case was reported. The accused person was arrested by members of the public and they went to pick him at VOK. They took the accused into custody and sent the victim’s mother to the hospital.
14. PW4 stated that when they were recording the minor’s statement she stated that she had come from school and passed by her grandmother’s place. She found her mother and grandmother were not present. She went into their house to change clothes. As she went to the house, she found the accused person outside playing with a dog. She finished changing her clothes and left to go outside where she found the accused who lifted her clothes and touched her vagina when he touched her hand. He then let her go and gave her ksh.10/-. The accused cautioned her from telling anyone. On interrogation the accused admitted to have given the child ksh. 10/-. She produced the birth certificate as PEX-2.
Defence case
15. DWI Julius Mwendo Chengo the accused person testified under oath that the victim had come to that place around 4.00pm and left but later on at 4.00am people came and attacked him while he was sleeping. When he asked them why they were beating him yet he is playing with a dog and the child had asked him for potatoes. They took him to the police station.
16. DW1 stated that he did not give the victim’s mother money when she requested for it because as he had given his wife the money to go home. On cross examination he stated that he knows the complainant as she was his neighbor for two months. He stated that it is the mother who was borrowing him money. She borrowed him the money on 15/1/2020 in the morning at around 8.00am. It was just the two of them. The child came from school at 8.00pm. He was alone playing with a dog outside when the child came. His son Emmanuel Musau witnessed him giving the child the money.
17. DW2 Emmanuel Musau took oath and told the court that the accused person is his father. He said that at 8.00pm they ate with his father and he left. The next day he was informed that his father has been arrested because of touching a child of madam Everline. Madam Everline had a relationship with his father and they spent time at local brew den. They day of the incident he was there and the boda boda riders were also there.
18. On cross examination he stated that in 2020 he used to stay with his father. On 15/1/2020 he was not with his father and his mother had travelled to upcountry. His father and Eva had a relationship. They had an affair since 2016. If his father says that he had known the her for two months only as a neighbor, he would be lying to court. On 15/1/2020 he found his father outside playing with a dog. When he came in, he saw the child dashing. She was alone. She ran towards the stores. He stated when he saw the child, she was rushing but when he came the child was outside with his father at the tyres. He found the child with his father outside. He was not home when the child came from school.
19. DW3 Evans Kahindi Katana stated under oath that the accused person is his neighbor. In 2020, he got home from work at 7.00pm. at around 9.30pm he heard screams and he saw a group of people pulling the accused while beating him. They said the accused had touched a girl. On cross examination he stated that on 15/1/2020 at 5.00pm he was at work. He met Emmanuel the next day. Julius was taken at around 9.30pm – 10pm. They said they were taking him because he had touched a girl. The woman was a neighbor for not more than three months.
20. DW4 Isaac Sifuna Wechuli took oath and said that on 15/1/2020 at 9.00pm he came from work and found people assaulting Julius. They said he had been found touching a girl. He was then take to the police station. On cross examination he stated that at 5.00pm he was at home and if something occurred at 5.00pm he cannot tell.
Analysis and Determination
21. This being the first appellate court, it is imperative that I must examine and analyze all the evidence adduced in the trial court afresh and arrive at my own independent finding and conclusions on both the facts and the law. This is the principle espoused in a plethora of cases including the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: -
“….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 v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570 . It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding 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 witnesses, See Peters v Sunday [1958] E.A 424 .”
22. I have considered the record of appeal and the submissions by Counsel and the issues that arise for determination by this court are as follows: -
i. Whether the Appellant’s right to legal representation was violated.
ii. Whether the prosecution proved its case beyond reasonable doubt.
i. Whether the Appellant’s right to legal representation was violated
23. Article 50(2)(g) of the Constitution provides that every accused person has the right to fair trial, which includes the right to choose, and be represented by an advocate, and to be informed of this right promptly. Under Article 50(2)(h) of the Constitution the right to a fair trial, also includes the right…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 David Njoroge Macharia vs. Republic [2011] eKLR, this Courtstated that:
“Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory.
We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided. The reasons are that, firstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission.”
24. 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”. The Supreme Court then went on to say that:
“…it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act , various other factors which include:(i)the seriousness of the offence;(ii)the severity of the sentence;(iii)the ability of the accused person to pay for his own legal representation;(iv)whether the accused is a minor;(v)the literacy of the accused;(vi)the complexity of the charge against the accused;”
25. It should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation. The Constitution demands it. In the present case, the record does not show that the appellant was informed by the trial court of those rights.
26. However, quite apart from the fact that these matters were not raised before the trial court, from the way the appellant cross examined the prosecution witnesses and from his general conduct during the trial, it is not evident an injustice, nay substantial injustice, resulted from the omission by the trial court to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution. The failure by the trial court to inform the appellant of his rights in this case should not therefore be a basis for vitiating his trial. All in all, we are satisfied that the conviction is well founded, and we have no basis for interfering with the same.
ii. Whether the prosecution proved its case beyond reasonable doubt.
27. The appellant herein was charged with the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act. The
Indecent act is defined under Section 2 of the Sexual Offences Act as follows: -
“Indecent act” means an unlawful intentional act which causes-
(a) Any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration.
(b) Exposure or display of any pornographic material to any person against his or her will.”
28. The above section shows that what is key for the act complained of to be proved, is that it must be shown that it was intentional and indecent in nature. In this case, the birth certificate on record indicates that the minor was born on 23/12/2008 thus she was 12 years old when the incident occurred.
29. From the evidence on record, it is not in dispute that the appellant and the victim are neighbors and they know each other well. The appellant testified and confirmed that on the material day he was with the minor. The minor asked him for potatoes. The appellant confirmed in his evidence that he gave her the money. DW2 Emmanuel Musau, the appellant’s son, during cross-examination stated that when he came the child was outside with his father (the appellant) at the tyres.
30. DW3 produced the PRC form and treatment notes for the victim. The PRC shows that the minor was examined on 16/1/2020. The incident occurred on 15/1/2020. The same indicates that there was redness on the vagina and her hymen was intact. Based on this evidence it is clear that the appellant was with the minor and the doctor confirmed that there was redness on the victim’s vagina.
31. As regards the issue od PW2 having fabricated the case and subjecting the appellant to mob injustice, I find that she was not even present when the offence occurred and when the beating started. She was called to the scene after the fact. She was not the instigator of the report and the mob beat up the appellant who was more or less caught in the act.
32. In the above foregoing, I find that the prosecution has proved their case beyond reasonable doubt. None of the grounds of appeal succeed .The appeal is therefore dismissed.
33. It is so ordered.
DATED SIGNED AND DELIVERED VIRTUALLY THIS 5 TH DAY OF MARCH 2026.
WENDY KAGENDO
JUDGE
IN THE PRESENCE of:
THE APPELLANT in person
MR SIRIMA FOR THE STATE
BEBORA COURT ASSISTANT