[1] The appellant, Kevin Omondi , was arraigned before the lower court on 9 th May 2024 in Oyugis Magistrate’s Court Sexual Offence Case No. E032 of 2024: Republic v Kevin Omondi , charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on diverse dates between the 5 th day of May 2024 and the 7 th day of May 2024 at Kasewe Location in Rachuonyo East Sub-County within Homa Bay County he intentionally caused his penis to penetrate the vagina of M.A.O., a child aged 16 years.
[2] In the alternative, the appellant was charged with committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on diverse dates between the 5 th day of May 2024 and 7 th May 2024 at Kasewe Location in Rachuonyo East Sub County within Homa Bay County he intentionally touched the vagina of M.A.O., a child aged 16 years with his penis.
[3] The appellant denied the allegations and the matter was accordingly heard to conclusion. In her judgment dated 4 th December 2024, the learned trial magistrate found the appellant guilty and convicted him of the substantive charge of defilement. The appellant was consequently sentenced to 15 years’ imprisonment on 18 th December 2024.
[4] Being aggrieved by the decision of the trial court, the appellant filed the instant appeal on 20 th January 2025 contending that:
[a] The offence of defilement was not proved beyond reasonable doubt.
[b] The learned magistrate acted on the wrong principles and did not appreciate that minimum mandatory sentences were declared unconstitutional.
[c] The learned magistrate erred in fact and in law by overlooking the fact that the appellant was unrepresented, and therefore his rights under Article 50(2)(h) of the Constitution were violated.
[d] The learned magistrate erred in law and fact by convicting the appellant on the basis of the evidence of a single witness.
[e] That the judgment of the trial court was full of errors/omissions and therefore amounted to a miscarriage of justice.
[f] The learned magistrate erred in fact and in law by failing to comply with Article 50(2)(g) and (h) of the Constitution, thereby denying him the right to fair trial.
[g] The learned magistrate erred in law and fact by relying on the prosecution evidence notwithstanding that it was riddled with glaring contradictions.
[h] The trial court did not indicate which language was used in the interpretation, which amounted to a gross violation of the appellant’s rights.
[5] Accordingly, the appellant prayed that his appeal be allowed, the conviction quashed and the sentence of 15 years’ imprisonment set aside.
[6] The appeal was canvassed by way of written submissions. To that end, the appellant relied on his written submissions dated 26 th May 2025 in which he pointed out what he perceived to be inconsistencies in the evidence of the prosecution. For instance, he contended that that:
[a] In her evidence before the lower court, the complainant stated that she was 17 years old when the offence occurred, yet in the particulars of the charge, her age was given as 16 years.
[b] That it was incredible that PW1 who had gone to visit her sister could be left in her sister’s matrimonial home with her brother in law after the couple quarreled.
[c] That the evidence of PW1 was contradictory as to whether the appellant engaged her in sexual intercourse forcefully or whether she initiated the engagement and forced the appellant into the act.
[d] That the evidence of the complaint and that of her father (PW3) and the investigating officer (PW4) was at variance as to the date when she went missing from home.
[7] Accordingly, the appellant urged the Court to analyze the evidence on record and find merit in his appeal.
[8] The respondent relied on written submissions dated 27 th March 2025. In the submission of counsel for the respondent, the Prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt. On the age of the minor, counsel referred the Court to the evidence of the minor as to her age, as well as the evidence of her father to the effect that the minor is their third born child; and that she was born on 12 th June 2007. Counsel further pointed out that a Certificate of Birth was also produced before the lower court as the Prosecution’s Exhibit 1 confirming that the minor was born on 12 th June 2007.
[9] On penetration the respondent submitted that credible evidence was adduced by the complainant that she went to visit her sister and found that she had had an argument with her husband, the appellant herein; that her sister left for their parents’ home, leaving her alone with her husband in her house; and that the appellant took advantage of that situation to defile her. The respondent also relied on the evidence of the clinical officer, PW5, who examined the complainant and noted that the hymen was perforated and that there were bruises in her labia minora . Hence, the respondent urged the Court to find that penetration was proved to the requisite standard.
[10] On identification, the respondent pointed out that the appellant is the complainant’s brother in law. The complainant’s father, PW3, also confirmed that the appellant is his son in law. Thus, the respondent submitted that the appellant was not a stranger to the complainant and therefore her evidence of identification is credible. The respondent also relied on Section 124 of the Sexual Offences Act to counter the contention by the appellant that he was wrongly convicted on the basis of the evidence of a single witness.
[11] On the alleged contradictions in the prosecution evidence, the respondent submitted that, to the contrary, the evidence of the prosecution witnesses was credible, consistent and well corroborated; and that the statement of PW1 was supported by the evidence of PW2, PW3 and by medical report produced by PW5. On the contention by the appellant that there was gross violation of his fair trial rights in that the language employed by the court was not indicated in the court record, the respondent submitted that from the proceedings all witnesses testified after which the appellant cross examined all of them in person. The respondent posited that he could not have done so unless he was able to follow the proceedings. The respondent added that the appellant also addressed the lower court in mitigation before sentencing; an indication that the appellant understood the language of the court.
[12] The respondent further urged the Court to note that throughout the proceedings the appellant never complained or indicated that he did not understand the language of the court. Thus according to the respondent, no miscarriage of justice occurred.
[13] On the sentence imposed on the appellant by the learned magistrate, the respondent made reference to Section 8(4) of the Sexual Offences Act and urged the Court to find that the sentence of 15 years was lawful. The respondent urged the Court to take into consideration that the appellant abused the trust bestowed on him as the complainant’s brother in law and to find that it mattered not that the complainant consented to the sexual act complained of. Thus, the respondent invited the Court to uphold the sentence and disallow the appellant's appeal.
[14] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. This being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that the Court did not have the opportunity to see or hear the witnesses testify. (See Okeno v Republic [1972] EA 32 )
[15] The prosecution called five witnesses before the lower court. The minor was the first witness. Her testimony was that she had gone to visit her sister on the 6 th May 2024 and that while there, a disagreement ensued between her sister and her husband, the appellant. She further stated that as a result, her sister went to their parents’ home, leaving her (PW1) in the house alone with the appellant. She added that it was already 6.00 p.m. and therefore she could not return home.
[16] PW1 further stated that she spent two days alone with the appellant and that they engaged in sexual intercourse on the first night. She testified that she was the one who put pressure on the appellant to engage in sexual intercourse with her. She explained that she was still in her sister’s house with the appellant when the police went there on the third day and arrested both of them. They were taken to Othoro Police Station.
[17] Fredrick Oyoo Tabu testified as PW2. He stated that he was at home at around 9.00 p.m. on the 7 th May 2024 when the area chief called him and informed him of the report he had received, namely, that there was a certain person named Kevin who was cohabiting with a school girl, having chased away his wife. As the village elder of the area, he immediately proceeded to the man’s house in the company of police officers and found him with the girl. He identified the man as the accused before the lower court and explained that they found him hiding at his father’s home. The two were accordingly arrested.
[18] The complainant’s father, Lucas Odhiambo , testified before the lower court as PW3. His evidence was that the complainant left home on the 5 th May 2024 saying that she was going to Ringa and never came back. The following day, her sister, who was married to the appellant, called and said the appellant and her sister, the complainant, had spent the previous night together outside their home. He brought the matter to the attention of the area chief and the appellant was arrested on 7 th May 2024 and taken to Othoro Police Station. He confirmed that the complainant is her third born. PW3 produced the Certificate of Birth for the complainant as an exhibit before the Court. He also confirmed that the appellant is his son in law and added that he had similarly lured his other daughter who left school in Form I to cohabit with him. PW3 further stated that for the appellant to again defile the complainant was a show of lack of respect, not only to his daughters but also to him as their father.
[19] PC Robert Cheruiyot (PW4) was then attached to Senta Sori Police Post on general duties. He testified that Lucas Odhiambo (PW3) conveyed information to them on the 7 th May 2024 at around 11.00 p.m. that his child was missing and that he had reported the same to the area chief of Kasewe. He further stated that information from his eldest daughter, Sophy Odhiambo , was that the girl was in hiding with her husband, the appellant. PW4 further testified that, together with his colleagues and village elder Fredrick Oyoo (PW2) they proceeded to the home of the appellant and found him hiding in a deserted house in Kasewe location.
[20] PW4 further stated that the appellant was arrested and taken to Othoro Police Station along with the complainant; and that while the appellant was placed in custody pending investigations, the complainant was treated as a child in need of care and protection. They were escorted to Othoro Level 4 Hospital for medical examination.
[21] The last prosecution witness was the Clinical Officer, Michael Ogallo (PW5). He stated that he was then attached to Othoro Level 4 Hospital; and that he examined the complainant herein following allegations of defilement. He further testified that the minor was then aged 17 years and was under the escort of police officers. On examining the minor, he noted that her genitalia were normal with no bleeding; but her hymen had been perforated and there were bruises on her labia minora . He further stated that laboratory investigations were conducted for pregnancy and HIV infection and the examination revealed the existence of multiple epithelial cells; which indicated forceful penetration. It was therefore the evidence of PW5 that, from the examination and findings, he formed the opinion that the minor had been defiled.
[22] On being placed on his defence, the appellant denied the allegations of defilement in a sworn statement made on the 20 th November 2024. He confirmed that he is married to S A , but did not know she had sisters. According to him, he saw the complainant for the first time at the police station. He further stated that his father in law went to his place with four people, including the complainant and demanded for the immediate payment of dowry. He later learnt the other 3 were police officers. He further stated that his father in law threatened him with dire consequences if his demand was not complied with. He therefore denied having defiled PW1.
[23] In the light of the foregoing the issues for consideration are:
[a] Whether the Prosecution proved the elements of the charge of defilement beyond reasonable doubt:
[b] Whether the appellant’s fair trial rights were violated with particular regard to legal representation and the need for interpretation.
[c] Whether the sentence imposed by the lower court was excessive.
A. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[24] For purposes of the substantive charge, Section 8 of the Sexual Offences Act states 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.
[25] The ingredients of defilement are now well settled, namely, the age of the victim, the identity of the perpetrator and whether penetration occurred. I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of Section 8(4) of the Sexual Offences Act:
[26] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[27] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[28] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Hence, in P.M.M. v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[29] The complainant testified before the lower court and stated that she was 17 years and was a class 8 pupil at Ayiengo Primary School. She testified on 7 th June 2024 about one month after the alleged incident. Her father, PW3, corroborated her evidence in this regard and produced the complainant’s Certificate of Birth as an exhibit before the lower court. The document gives the complainant’s date of birth as 12 th June 2007. Therefore, the prosecution adduced credible evidence to prove that the minor was almost 17 years old at the time of the offence.
[30] The appellant took issue with the variance between the evidence of the complainant as per the above evidence and as shown in the particulars of the main count, where the age was given as 16 years. This is understandable because the incident took place in May 2024, a few days before the complainant’s 17 th birthday. The Court of Appeal explained in Hadson Ali Mwachongo v Republic [2016] eKLR that:
"Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year."
[31] Therefore, the perceived discrepancy as to whether the complainant was 16 or 17 is inconsequential. Moreover, Section 8(4) of the Sexual Offences Act provides for the age bracket between 16 and 18 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration of the complainant:
[32] The complainant testified that after her sister had a disagreement with the appellant, she left in a huff and went to their parents’ home. She was explicit that she spent that night in her sister’s matrimonial house alone with the appellant and that they engaged in sexual intercourse. Although the appellant denied any prior knowledge of the complainant, the prosecution adduced evidence to show that she was found in the company of the appellant at the time of his arrest. She was immediately taken for medical examination and it was ascertained that she had engaged in sexual activity.
[33] In one of his grounds of appeal, the appellant impugned the decision of the lower court, contending that the learned magistrate erred in law and fact by convicting him on the basis of the evidence of a single witness. However, as pointed out by counsel for the respondent, it was permissible for the lower court to rely on the evidence of PW1 if she was satisfied that she was a credible witness. The proviso to Section 124 of the Evidence Act is explicit that:
“…where in 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.
[34] Further to the foregoing, PW5 confirmed that he examined the complainant and observed that her hymen was torn and that she had bruises in her labia minora along with the presence of numerous epithelial cells which, in his opinion, were in themselves proof of penetration. He produced the P3 form the he filled and signed along with the PCR Form as exhibits. I am therefore satisfied that the evidence presented by the prosecution proved penetration beyond reasonable doubt.
[35] Regarding the appellant’s submissions that the Prosecution case was riddled with contradictions and inconsistencies, the key consideration in such instances is whether the alleged contradictions are of are material. In this case, the appellant contended that the Prosecution’s evidence as to the age of the complainant and whether she consented to the act complained of as the contradictions. I have already ruled that for all intents and purposes, minor was 16 years old. The offence occurred only a few days before her 17 th birthday; and whereas in the eyes of the law she was deemed to be 16 years in May 2024, by the time she testified in she was already 17 years old.
[36] On the contention by the appellant that the evidence of PW1 was contradictory to the evidence of the other prosecution witnesses, particularly regarding her assertion that she consented to and initiated the sexual activity, it is trite that, for purposes of the Sexual Offences Act , for a person to give consent, that person must have both the freedom and capacity to make that choice. It is for this reason that a person under 18 years is presumed by law to be incapable of giving consent. Hence, Section 43(4)(f) of the Sexual Offences Act stipulates that:
“The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act … a child.”
[37] Accordingly, I am in complete agreement with the position taken by Hon. Korir-Lagat, J. in Luka Waithaka Ndegwa v Republic [2017] eKLR, that:
“In the offence of defilement, the law presumes that a child being one who is below the age of 18 years is incapable of giving consent to sex. I do not agree with the Martin Charo case that the conduct of the child is relevant to the offence of defilement. Children are among the vulnerable members of our society by reason of their age, their inability to protect and provide for themselves and also are unable to appreciate dangerous situations. It is for these reasons that the law presumes that they are incapable of consenting to sexual intercourse. In enacting this provision, the legislature was only discharging its duty to act in the best interest of the child.”
[38] A similar stance was taken by Hon. Mwongo, J. in Peter Charago v Republic [2019] eKLR, that:
“Unless there is proof that the complainant deceived the appellant, any sexual act between the two is treated as non-consensual sex and therefore amounted to defilement, as the complainant was a child under the age of 18 years and incapable of giving consent in law. Even where a minor behaves like an adult, the law still recognizes that person as a child.”
[39] Therefore, it is immaterial that the act in question was initiated by the complainant or that she consented thereto. The appellant’s argument that there was a contradiction in the prosecution case in this respect is consequently not a tenable argument. I similarly find no merit in the appellant’s submission that the evidence of the complaint, that of her father, PW3, and the investigating officer (PW4) was at variance as to the date when she went missing from home. It is plain that these perceived contradictions were not of the kind that would materially impact on the prosecution case. In John Nyaga Njuki & 4 Others v Republic , Cr. App. No. 160 of 2000, the Court of Appeal explained that:
“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”
[40] Likewise, in Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal acknowledged that human recollection is not infallible. Here is what it had to say in this regard:
“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[41] The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[42] Although the appellant denied any prior knowledge of the complainant, she adduced credible evidence that he is her brother in law; and this evidence was supported by the evidence of her father PW3. PW2 and PW4 also confirmed that the report made to the police and to the area chief was specific and linked the appellant with the crime. The prosecution version is more credible than the appellant’s plain denial of any knowledge of his own sister in law. The court takes judicial notice that dowry payment is often an intricate affair among the people of the appellant’s community, this being a matter of general notoriety; and it is rare that a father in law would go to the home of the son in law to demand for immediate payment of dowry as if it was some casual debt. Therefore, the appellant’s defence was justifiably rejected by the learned magistrate.
[43] In the premises, it is my finding that the offence of defilement under Section 8(1) as read with Section 8(4) of the Sexual Offences Act was proved by the Prosecution beyond reasonable doubt and therefore the appellant was rightly convicted thereof.
B. Whether the appellant’s rights under Article 50(2) (g) and (h) of the Constitution were violated:
[44] The appellant complained that the trial court did not uphold his trial rights, and in particular, his right to legal representation, given the gravity of the offence. Article 50 (2) (g) and (h) of the Constitution provides: -
(2) Every accused person has the right to a fair trial, which includes the right—
(a)….
(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;
[45] Hence, Section 43 of the Legal Aid Act provides: -
(1) A court before which an unrepresented accused person is presented shall—
(a) promptly inform the accused of his or her right to legal representation;
(b) if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and
(c) inform the Service to provide legal aid to the accused person.
(1A) In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration—
(a) the severity of the charge and sentence;
(b) the complexity of the case; and
(c) the capacity of the accused to defend themselves.
(2) The Service shall provide legal aid to the accused person in accordance with this Act.
(3) Where a child is brought before a court in proceedings under the Children Act (Cap. 141) or any other written law, the court may where the child is unrepresented, order the Service to provide legal representation for the child.
(4) Where an accused person is brought before the court and is charged with an offence punishable by death, the court shall, where the accused is unrepresented, order the Service to provide legal representation for the accused.
(5) The provision of legal representation under sub-section (4) shall be subject to the criteria for eligibility for legal aid under this Act.
(6) Despite the provisions of this section, lack of legal representation shall not be a bar to the continuation of proceedings against a person.
[46] The duty of the court is to promptly inform the accused of the right to be represented by an advocate of their choice and, where substantial injustice is likely to occur, to have an advocate assigned to the case at the State’s expense. As was acknowledged by Lord Denning in Pett v Greyhound Racing Association [1968] 2 ALL E. R 545 , at 549:
“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favor or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it everyday. A magistrate says to a man: ‘you can ask any questions you like;’ whereupon the man immediately stars to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task.”
[47] The Court of Appeal in the case of David Njoroge Macharia v Republic [2011] KECA 406 (KLR) , held: -
“Under the n
[...truncated]
[2] In the alternative, the appellant was charged with committing an indecent act with a child, contrary to Section 11(1) of the Sexual Offences Act. It was alleged that on diverse dates between the 5 th day of May 2024 and 7 th May 2024 at Kasewe Location in Rachuonyo East Sub County within Homa Bay County he intentionally touched the vagina of M.A.O., a child aged 16 years with his penis.
[3] The appellant denied the allegations and the matter was accordingly heard to conclusion. In her judgment dated 4 th December 2024, the learned trial magistrate found the appellant guilty and convicted him of the substantive charge of defilement. The appellant was consequently sentenced to 15 years’ imprisonment on 18 th December 2024.
[4] Being aggrieved by the decision of the trial court, the appellant filed the instant appeal on 20 th January 2025 contending that:
[a] The offence of defilement was not proved beyond reasonable doubt.
[b] The learned magistrate acted on the wrong principles and did not appreciate that minimum mandatory sentences were declared unconstitutional.
[c] The learned magistrate erred in fact and in law by overlooking the fact that the appellant was unrepresented, and therefore his rights under Article 50(2)(h) of the Constitution were violated.
[d] The learned magistrate erred in law and fact by convicting the appellant on the basis of the evidence of a single witness.
[e] That the judgment of the trial court was full of errors/omissions and therefore amounted to a miscarriage of justice.
[f] The learned magistrate erred in fact and in law by failing to comply with Article 50(2)(g) and (h) of the Constitution, thereby denying him the right to fair trial.
[g] The learned magistrate erred in law and fact by relying on the prosecution evidence notwithstanding that it was riddled with glaring contradictions.
[h] The trial court did not indicate which language was used in the interpretation, which amounted to a gross violation of the appellant’s rights.
[5] Accordingly, the appellant prayed that his appeal be allowed, the conviction quashed and the sentence of 15 years’ imprisonment set aside.
[6] The appeal was canvassed by way of written submissions. To that end, the appellant relied on his written submissions dated 26 th May 2025 in which he pointed out what he perceived to be inconsistencies in the evidence of the prosecution. For instance, he contended that that:
[a] In her evidence before the lower court, the complainant stated that she was 17 years old when the offence occurred, yet in the particulars of the charge, her age was given as 16 years.
[b] That it was incredible that PW1 who had gone to visit her sister could be left in her sister’s matrimonial home with her brother in law after the couple quarreled.
[c] That the evidence of PW1 was contradictory as to whether the appellant engaged her in sexual intercourse forcefully or whether she initiated the engagement and forced the appellant into the act.
[d] That the evidence of the complaint and that of her father (PW3) and the investigating officer (PW4) was at variance as to the date when she went missing from home.
[7] Accordingly, the appellant urged the Court to analyze the evidence on record and find merit in his appeal.
[8] The respondent relied on written submissions dated 27 th March 2025. In the submission of counsel for the respondent, the Prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt. On the age of the minor, counsel referred the Court to the evidence of the minor as to her age, as well as the evidence of her father to the effect that the minor is their third born child; and that she was born on 12 th June 2007. Counsel further pointed out that a Certificate of Birth was also produced before the lower court as the Prosecution’s Exhibit 1 confirming that the minor was born on 12 th June 2007.
[9] On penetration the respondent submitted that credible evidence was adduced by the complainant that she went to visit her sister and found that she had had an argument with her husband, the appellant herein; that her sister left for their parents’ home, leaving her alone with her husband in her house; and that the appellant took advantage of that situation to defile her. The respondent also relied on the evidence of the clinical officer, PW5, who examined the complainant and noted that the hymen was perforated and that there were bruises in her labia minora . Hence, the respondent urged the Court to find that penetration was proved to the requisite standard.
[10] On identification, the respondent pointed out that the appellant is the complainant’s brother in law. The complainant’s father, PW3, also confirmed that the appellant is his son in law. Thus, the respondent submitted that the appellant was not a stranger to the complainant and therefore her evidence of identification is credible. The respondent also relied on Section 124 of the Sexual Offences Act to counter the contention by the appellant that he was wrongly convicted on the basis of the evidence of a single witness.
[11] On the alleged contradictions in the prosecution evidence, the respondent submitted that, to the contrary, the evidence of the prosecution witnesses was credible, consistent and well corroborated; and that the statement of PW1 was supported by the evidence of PW2, PW3 and by medical report produced by PW5. On the contention by the appellant that there was gross violation of his fair trial rights in that the language employed by the court was not indicated in the court record, the respondent submitted that from the proceedings all witnesses testified after which the appellant cross examined all of them in person. The respondent posited that he could not have done so unless he was able to follow the proceedings. The respondent added that the appellant also addressed the lower court in mitigation before sentencing; an indication that the appellant understood the language of the court.
[12] The respondent further urged the Court to note that throughout the proceedings the appellant never complained or indicated that he did not understand the language of the court. Thus according to the respondent, no miscarriage of justice occurred.
[13] On the sentence imposed on the appellant by the learned magistrate, the respondent made reference to Section 8(4) of the Sexual Offences Act and urged the Court to find that the sentence of 15 years was lawful. The respondent urged the Court to take into consideration that the appellant abused the trust bestowed on him as the complainant’s brother in law and to find that it mattered not that the complainant consented to the sexual act complained of. Thus, the respondent invited the Court to uphold the sentence and disallow the appellant's appeal.
[14] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. This being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that the Court did not have the opportunity to see or hear the witnesses testify. (See Okeno v Republic [1972] EA 32 )
[15] The prosecution called five witnesses before the lower court. The minor was the first witness. Her testimony was that she had gone to visit her sister on the 6 th May 2024 and that while there, a disagreement ensued between her sister and her husband, the appellant. She further stated that as a result, her sister went to their parents’ home, leaving her (PW1) in the house alone with the appellant. She added that it was already 6.00 p.m. and therefore she could not return home.
[16] PW1 further stated that she spent two days alone with the appellant and that they engaged in sexual intercourse on the first night. She testified that she was the one who put pressure on the appellant to engage in sexual intercourse with her. She explained that she was still in her sister’s house with the appellant when the police went there on the third day and arrested both of them. They were taken to Othoro Police Station.
[17] Fredrick Oyoo Tabu testified as PW2. He stated that he was at home at around 9.00 p.m. on the 7 th May 2024 when the area chief called him and informed him of the report he had received, namely, that there was a certain person named Kevin who was cohabiting with a school girl, having chased away his wife. As the village elder of the area, he immediately proceeded to the man’s house in the company of police officers and found him with the girl. He identified the man as the accused before the lower court and explained that they found him hiding at his father’s home. The two were accordingly arrested.
[18] The complainant’s father, Lucas Odhiambo , testified before the lower court as PW3. His evidence was that the complainant left home on the 5 th May 2024 saying that she was going to Ringa and never came back. The following day, her sister, who was married to the appellant, called and said the appellant and her sister, the complainant, had spent the previous night together outside their home. He brought the matter to the attention of the area chief and the appellant was arrested on 7 th May 2024 and taken to Othoro Police Station. He confirmed that the complainant is her third born. PW3 produced the Certificate of Birth for the complainant as an exhibit before the Court. He also confirmed that the appellant is his son in law and added that he had similarly lured his other daughter who left school in Form I to cohabit with him. PW3 further stated that for the appellant to again defile the complainant was a show of lack of respect, not only to his daughters but also to him as their father.
[19] PC Robert Cheruiyot (PW4) was then attached to Senta Sori Police Post on general duties. He testified that Lucas Odhiambo (PW3) conveyed information to them on the 7 th May 2024 at around 11.00 p.m. that his child was missing and that he had reported the same to the area chief of Kasewe. He further stated that information from his eldest daughter, Sophy Odhiambo , was that the girl was in hiding with her husband, the appellant. PW4 further testified that, together with his colleagues and village elder Fredrick Oyoo (PW2) they proceeded to the home of the appellant and found him hiding in a deserted house in Kasewe location.
[20] PW4 further stated that the appellant was arrested and taken to Othoro Police Station along with the complainant; and that while the appellant was placed in custody pending investigations, the complainant was treated as a child in need of care and protection. They were escorted to Othoro Level 4 Hospital for medical examination.
[21] The last prosecution witness was the Clinical Officer, Michael Ogallo (PW5). He stated that he was then attached to Othoro Level 4 Hospital; and that he examined the complainant herein following allegations of defilement. He further testified that the minor was then aged 17 years and was under the escort of police officers. On examining the minor, he noted that her genitalia were normal with no bleeding; but her hymen had been perforated and there were bruises on her labia minora . He further stated that laboratory investigations were conducted for pregnancy and HIV infection and the examination revealed the existence of multiple epithelial cells; which indicated forceful penetration. It was therefore the evidence of PW5 that, from the examination and findings, he formed the opinion that the minor had been defiled.
[22] On being placed on his defence, the appellant denied the allegations of defilement in a sworn statement made on the 20 th November 2024. He confirmed that he is married to S A , but did not know she had sisters. According to him, he saw the complainant for the first time at the police station. He further stated that his father in law went to his place with four people, including the complainant and demanded for the immediate payment of dowry. He later learnt the other 3 were police officers. He further stated that his father in law threatened him with dire consequences if his demand was not complied with. He therefore denied having defiled PW1.
[23] In the light of the foregoing the issues for consideration are:
[a] Whether the Prosecution proved the elements of the charge of defilement beyond reasonable doubt:
[b] Whether the appellant’s fair trial rights were violated with particular regard to legal representation and the need for interpretation.
[c] Whether the sentence imposed by the lower court was excessive.
A. Whether the Prosecution proved its case against the appellant beyond reasonable doubt:
[24] For purposes of the substantive charge, Section 8 of the Sexual Offences Act states 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.
[25] The ingredients of defilement are now well settled, namely, the age of the victim, the identity of the perpetrator and whether penetration occurred. I have therefore proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows:
[a] On whether the complainant was, at the material time, a child for purposes of Section 8(4) of the Sexual Offences Act:
[26] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.
[27] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:
"When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
[28] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Hence, in P.M.M. v Republic [2018] eKLR, it was held thus:
“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…”
[29] The complainant testified before the lower court and stated that she was 17 years and was a class 8 pupil at Ayiengo Primary School. She testified on 7 th June 2024 about one month after the alleged incident. Her father, PW3, corroborated her evidence in this regard and produced the complainant’s Certificate of Birth as an exhibit before the lower court. The document gives the complainant’s date of birth as 12 th June 2007. Therefore, the prosecution adduced credible evidence to prove that the minor was almost 17 years old at the time of the offence.
[30] The appellant took issue with the variance between the evidence of the complainant as per the above evidence and as shown in the particulars of the main count, where the age was given as 16 years. This is understandable because the incident took place in May 2024, a few days before the complainant’s 17 th birthday. The Court of Appeal explained in Hadson Ali Mwachongo v Republic [2016] eKLR that:
"Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year."
[31] Therefore, the perceived discrepancy as to whether the complainant was 16 or 17 is inconsequential. Moreover, Section 8(4) of the Sexual Offences Act provides for the age bracket between 16 and 18 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act , as read with Section 2 of the Children Act, No. 8 of 2001 .
[b] On Penetration of the complainant:
[32] The complainant testified that after her sister had a disagreement with the appellant, she left in a huff and went to their parents’ home. She was explicit that she spent that night in her sister’s matrimonial house alone with the appellant and that they engaged in sexual intercourse. Although the appellant denied any prior knowledge of the complainant, the prosecution adduced evidence to show that she was found in the company of the appellant at the time of his arrest. She was immediately taken for medical examination and it was ascertained that she had engaged in sexual activity.
[33] In one of his grounds of appeal, the appellant impugned the decision of the lower court, contending that the learned magistrate erred in law and fact by convicting him on the basis of the evidence of a single witness. However, as pointed out by counsel for the respondent, it was permissible for the lower court to rely on the evidence of PW1 if she was satisfied that she was a credible witness. The proviso to Section 124 of the Evidence Act is explicit that:
“…where in 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.
[34] Further to the foregoing, PW5 confirmed that he examined the complainant and observed that her hymen was torn and that she had bruises in her labia minora along with the presence of numerous epithelial cells which, in his opinion, were in themselves proof of penetration. He produced the P3 form the he filled and signed along with the PCR Form as exhibits. I am therefore satisfied that the evidence presented by the prosecution proved penetration beyond reasonable doubt.
[35] Regarding the appellant’s submissions that the Prosecution case was riddled with contradictions and inconsistencies, the key consideration in such instances is whether the alleged contradictions are of are material. In this case, the appellant contended that the Prosecution’s evidence as to the age of the complainant and whether she consented to the act complained of as the contradictions. I have already ruled that for all intents and purposes, minor was 16 years old. The offence occurred only a few days before her 17 th birthday; and whereas in the eyes of the law she was deemed to be 16 years in May 2024, by the time she testified in she was already 17 years old.
[36] On the contention by the appellant that the evidence of PW1 was contradictory to the evidence of the other prosecution witnesses, particularly regarding her assertion that she consented to and initiated the sexual activity, it is trite that, for purposes of the Sexual Offences Act , for a person to give consent, that person must have both the freedom and capacity to make that choice. It is for this reason that a person under 18 years is presumed by law to be incapable of giving consent. Hence, Section 43(4)(f) of the Sexual Offences Act stipulates that:
“The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act … a child.”
[37] Accordingly, I am in complete agreement with the position taken by Hon. Korir-Lagat, J. in Luka Waithaka Ndegwa v Republic [2017] eKLR, that:
“In the offence of defilement, the law presumes that a child being one who is below the age of 18 years is incapable of giving consent to sex. I do not agree with the Martin Charo case that the conduct of the child is relevant to the offence of defilement. Children are among the vulnerable members of our society by reason of their age, their inability to protect and provide for themselves and also are unable to appreciate dangerous situations. It is for these reasons that the law presumes that they are incapable of consenting to sexual intercourse. In enacting this provision, the legislature was only discharging its duty to act in the best interest of the child.”
[38] A similar stance was taken by Hon. Mwongo, J. in Peter Charago v Republic [2019] eKLR, that:
“Unless there is proof that the complainant deceived the appellant, any sexual act between the two is treated as non-consensual sex and therefore amounted to defilement, as the complainant was a child under the age of 18 years and incapable of giving consent in law. Even where a minor behaves like an adult, the law still recognizes that person as a child.”
[39] Therefore, it is immaterial that the act in question was initiated by the complainant or that she consented thereto. The appellant’s argument that there was a contradiction in the prosecution case in this respect is consequently not a tenable argument. I similarly find no merit in the appellant’s submission that the evidence of the complaint, that of her father, PW3, and the investigating officer (PW4) was at variance as to the date when she went missing from home. It is plain that these perceived contradictions were not of the kind that would materially impact on the prosecution case. In John Nyaga Njuki & 4 Others v Republic , Cr. App. No. 160 of 2000, the Court of Appeal explained that:
“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.”
[40] Likewise, in Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal acknowledged that human recollection is not infallible. Here is what it had to say in this regard:
“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.”
[c] On whether the penetration of the complainant was perpetrated by the appellant :
[41] The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held:
“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…”
[42] Although the appellant denied any prior knowledge of the complainant, she adduced credible evidence that he is her brother in law; and this evidence was supported by the evidence of her father PW3. PW2 and PW4 also confirmed that the report made to the police and to the area chief was specific and linked the appellant with the crime. The prosecution version is more credible than the appellant’s plain denial of any knowledge of his own sister in law. The court takes judicial notice that dowry payment is often an intricate affair among the people of the appellant’s community, this being a matter of general notoriety; and it is rare that a father in law would go to the home of the son in law to demand for immediate payment of dowry as if it was some casual debt. Therefore, the appellant’s defence was justifiably rejected by the learned magistrate.
[43] In the premises, it is my finding that the offence of defilement under Section 8(1) as read with Section 8(4) of the Sexual Offences Act was proved by the Prosecution beyond reasonable doubt and therefore the appellant was rightly convicted thereof.
B. Whether the appellant’s rights under Article 50(2) (g) and (h) of the Constitution were violated:
[44] The appellant complained that the trial court did not uphold his trial rights, and in particular, his right to legal representation, given the gravity of the offence. Article 50 (2) (g) and (h) of the Constitution provides: -
(2) Every accused person has the right to a fair trial, which includes the right—
(a)….
(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;
[45] Hence, Section 43 of the Legal Aid Act provides: -
(1) A court before which an unrepresented accused person is presented shall—
(a) promptly inform the accused of his or her right to legal representation;
(b) if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and
(c) inform the Service to provide legal aid to the accused person.
(1A) In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration—
(a) the severity of the charge and sentence;
(b) the complexity of the case; and
(c) the capacity of the accused to defend themselves.
(2) The Service shall provide legal aid to the accused person in accordance with this Act.
(3) Where a child is brought before a court in proceedings under the Children Act (Cap. 141) or any other written law, the court may where the child is unrepresented, order the Service to provide legal representation for the child.
(4) Where an accused person is brought before the court and is charged with an offence punishable by death, the court shall, where the accused is unrepresented, order the Service to provide legal representation for the accused.
(5) The provision of legal representation under sub-section (4) shall be subject to the criteria for eligibility for legal aid under this Act.
(6) Despite the provisions of this section, lack of legal representation shall not be a bar to the continuation of proceedings against a person.
[46] The duty of the court is to promptly inform the accused of the right to be represented by an advocate of their choice and, where substantial injustice is likely to occur, to have an advocate assigned to the case at the State’s expense. As was acknowledged by Lord Denning in Pett v Greyhound Racing Association [1968] 2 ALL E. R 545 , at 549:
“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favor or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it everyday. A magistrate says to a man: ‘you can ask any questions you like;’ whereupon the man immediately stars to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task.”
[47] The Court of Appeal in the case of David Njoroge Macharia v Republic [2011] KECA 406 (KLR) , held: -
“Under the n
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