1. The Appellant, Michael Mulwa Ngii, was charged before the trial court with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on 23rd September 2019 at about 1730 hours at Kyamathyaka Village, Kyangwithya West Location, Kitui Central Sub-County within Kitui County, he intentionally caused his penis to penetrate the vagina of Catherine Mali Yohana, a child then aged ten years. An alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act was also preferred.
2. The prosecution called four witnesses. The trial court conducted a voir dire examination of PW1, CMY, the minor complainant and having satisfied itself that she possessed sufficient intelligence to give sworn evidence and understood the nature of an oath, proceeded to receive her evidence on oath.
3. The prosecution called four witnesses. PW1 was the minor complainant, CMY. The trial court conducted a voir dire examination and, having satisfied itself that she possessed sufficient intelligence to give sworn evidence and understood the nature of an oath, proceeded to receive her evidence on oath.
4. Complainant testified that she was born on 07th October 2008 and was a Class Five pupil at Kwakunua Primary School in Kyamathyaka. She recalled that on 23rd September 2019, after school, she left for home with her friends Michelle and Kanyithia. As they passed through the school gate, she saw the Appellant, whom she knew as Mulwa Ngii, crossing the road in the same direction. She stated that he followed them as they proceeded home, taking the same turns and slowing down whenever they slowed. She recalled that her friends eventually reached their respective homes, leaving her to continue alone. She proceeded downhill towards the river and crossed it, where she saw the Appellant behind her. When she attempted to run, he caught up with her, pulled her into a valley and removed her skintight garment and underwear, leaving her in her school skirt and uniform. He then removed his trousers and sexually assaulted her. In describing the act, she stated that he “aliniweka kitu” while pointing to her genital area. She recalled that he threatened to strangle her and throw her into the valley if she disclosed what had occurred, following which she experienced pain in her genital area. Complainant stated that it was still sunny when the incident happened and she was able to recognize the Appellant clearly having seen him on three previous occasions and known him before the incident.
5. Complainant stated that upon arriving home, she found her mother and complained of pain “huku chini”. She bathed, ate and slept. The following morning, at about 6.30 a.m., she remained in pain and did not attend school.
6. Her mother PW2 stated that complainant was born on 07th October 2008 as shown on her certificate of birth PEXH. 3. She stated that upon receiving complainant’s report, she reported the matter to the Sub-Chief and was subsequently directed to Kitui Police Station. Police referred her complainant to Kitui General Hospital where she was examined and the relevant medical forms completed. PW2 stated that she had known the Appellant since about 2008 and knew him as a person who lived on the other side of the river. She stated that the complainant had never previously reported a sexual assault and maintained that what the child had told her was truthful.
7. PW3 was Bonface Muthui, a Clinical Officer at Kitui County Referral Hospital testified that she examined the complainant on 27th September 2019 and filled a PRC form, PEXH. 1 on same date which shows that complainant’s genitalia was tender and erythematous and hymen was broken. He also tendered a P3 form PEXH. 2 filed on 13th July 2020 by Caroline Bangula, a Clinical Officer which confirmed that complainant’s genitalia was tender and erythematous and hymen was broken
8. PW4 was No. 243590 Police Constable Musili Christopher, took over the case long after Appellant was arrested and charged. He produced as PEXH 3 the complainant’s certificate of birth which shows she was born on 07th October 2008.
9. The Appellant gave sworn evidence and denied committing the offence. He told the court that he had previously worked for the complainant's mother who had refused to pay him Kshs. 6,000 for work he had undertaken, including fencing and digging terraces. His mother, DW2 Beatrice Ngii, stated that the allegation against her son was false and that on the material occasion he had gone to Kikuyu to transport cabbages. She further alleged that the complainant had been defiled by her grandfather and had been given Kshs. 1,500 to implicate the Appellant falsely.
10. Upon consideration of the evidence, the trial court convicted the Appellant on 18th October 2021 and on 08th November 2021 sentenced him to imprisonment for life.
11. The Appellant challenges both conviction and sentence. His written submissions dated 03rd January 2025 are framed around six principal complaints: that the prosecution failed to prove the essential ingredients of defilement beyond reasonable doubt; that his identification was not sufficiently established; that there was insufficient corroborative and medical evidence; that crucial witnesses were not called; that his right to legal representation was violated; that his mental fitness was not properly considered; that his alibi and defence generally were not adequately evaluated; and that the life sentence was excessive given his status as a first offender.
12. The Respondent opposed the appeal by way of written submission dated 07th August 2026 submitting that the prosecution proved the complainant's age, penetration and identification of the Appellant.
13. As a first appellate court, I am required to reconsider and re-evaluate the evidence afresh and reach my own independent conclusion, while bearing in mind that I did not see or hear the witnesses testify. That duty was settled in Okeno v Republic [1972] EA 32, where the Court of Appeal held that an appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination, and that the first appellate court must itself weigh the evidence and draw its own conclusions, making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
14. Having reconsidered and re-evaluated the evidence on record, the judgment of the trial court, the grounds of appeal and the submissions of the parties, I identify the following issues for determination:
1) Whether the age of the complainant was proved;
2) Whether penetration was proved;
3) Whether the appellant was positively identified as the perpetrator;
4) Whether the prosecution evidence required further corroboration and whether the medical evidence supported the charge;
5) Whether the failure to call certain witnesses rendered the prosecution case unsafe;
6) Whether the appellant’s right to legal representation was violated;
7) Whether his mental fitness to stand trial was properly addressed;
8) Whether his defence, including the alleged alibi, was properly considered; and
9) Whether the sentence of life imprisonment was lawful and ought to be interfered with.
15. On the first issue, the prosecution was required to prove the complainant’s age as an essential ingredient of the offence. The age was also material to the applicable sentence under section 8 of the Sexual Offences Act. The birth certificate produced by PW4 as PExh. 3 records the complainant’s date of birth as 07th October 2008. The offence was alleged to have occurred on 23rd September 2019. She was therefore ten years old at the material time, having not yet attained the age of eleven. The description of her age as eleven years in the charge sheet does not accord with the date of birth appearing in the birth certificate. That discrepancy does not, in my view, create doubt as to her actual age where the documentary evidence establishes the date of birth. PW2 also confirmed the same date of birth. I therefore find that the prosecution proved beyond reasonable doubt that the complainant was ten years old at the time of the offence and consequently fell within the age bracket contemplated under section 8(2) of the Act.
16. This conclusion is consistent with the principle stated in Mwachongo v Republic [2016] KECA 521 (KLR), relied upon by the Respondent, that proof of the complainant’s age is an essential ingredient of defilement because the sentence is dependent upon the age of the child. The evidence before the trial court in the present case was stronger than a mere estimate of age, since it included the birth certificate and the evidence of the complainant’s mother.
17. The second issue is whether penetration was proved. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The Appellant relied on Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) in submitting that penetration is an essential ingredient and that the absence of spermatozoa or other forensic material may weaken the prosecution case. The Court of Appeal in that case made clear that penetration need not be deep or result in ejaculation; what must be established is penetration itself.
18. The complainant gave direct evidence of what occurred. She stated that the Appellant removed her skintight garment and underwear, removed his trousers and thereafter “aliniweka kitu”, while pointing to her genital area. She experienced pain thereafter. Her account was supported by the medical evidence. PW3 examined her on 27th September 2019 and found the genitalia tender and erythematous and the hymen broken. The PRC form was produced as PExh. 1. The evidence, taken as a whole, establishes penetration within the meaning of section 2 of the Act. I therefore find this ingredient proved beyond reasonable doubt.
19. The third issue is whether the Appellant was positively identified as the perpetrator. The prosecution case was one of recognition. The complainant testified that she knew the Appellant as Mulwa Ngii before the incident and had seen him on three previous occasions. She encountered him as she left school with her friends and observed him following them as they proceeded home. He took the same turns and slowed down whenever they slowed. After her friends had separated from her, she proceeded towards the river and again saw him behind her. She stated that it was still sunny and that she was able to see him clearly.
20. The Appellant relied, among other authorities, on Jasvir Singh v Republic [2023] eKLR and Chalen Ochieng v Republic [2024] eKLR to challenge the sufficiency of the identification evidence. The Respondent relied on Anjononi & Others v Republic [1980] KLR 59, where the Court of Appeal recognised the distinction between recognition of a person already known to a witness and the identification of a stranger.
21. I have considered the circumstances in which the complainant observed the Appellant. This was not a fleeting encounter with a stranger. She knew him beforehand, saw him in daylight near the school and observed him following her and her companions along the route home. She subsequently encountered him again after her friends had left her. The evidence was therefore founded upon prior familiarity and repeated observation. I find the circumstances favourable to accurate recognition and am satisfied beyond reasonable doubt that the Appellant was the person identified by the complainant as her assailant.
22. The fourth issue concerns the need for corroboration and the significance of the medical evidence. The Appellant relied on David Kipchirchir Too v Republic [2023] eKLR, Stephen Gicharu v Republic [2023] eKLR and R v K.N. [2023] eKLR in submitting that the complainant’s evidence required support from independent evidence. He further pointed to the absence of the complainant’s clothing, DNA evidence and other physical evidence.
23. The proviso to section 124 of the Evidence Act permits a court, in a sexual offence, to convict on the evidence of the victim alone where it records its reasons for believing the victim to be telling the truth. The prosecution was therefore not required as a matter of law to produce every category of physical or forensic evidence suggested by the Appellant. In this case, in any event, the complainant’s evidence did not stand alone. PW3 found the genitalia tender and erythematous and the hymen broken. The PRC form dated 27th September 2019 recorded those findings, while the P3 form completed by Caroline Bangula also recorded the genital findings. The medical evidence therefore provided independent support for the complainant’s account.
24. The fact that the medical examination occurred four days after the alleged incident does not, without more, render the findings incapable of supporting the prosecution case. The evidence of PW3 was that he examined the complainant and recorded the findings reflected in PExh. 1. I find that the medical evidence was consistent with the complainant’s account and that the absence of DNA evidence or the complainant’s clothing does not create a reasonable doubt in the circumstances of this case.
25. The fifth issue is whether the failure to call certain witnesses, including the original investigating officer, rendered the prosecution case unsafe. The Appellant relied on David Kipchirchir Too and other authorities in submitting that the failure to call witnesses who could have provided corroboration or explained aspects of the investigation created gaps in the prosecution case.
26. I have considered the evidence that was actually placed before the trial court. PW1 gave direct evidence concerning the assault and the identity of the Appellant. PW2 testified concerning the complainant’s condition, her subsequent disclosure and the steps taken after the report. PW3 gave evidence concerning the medical examination, while PW4 produced the birth certificate. The Appellant has not demonstrated what material evidence the witnesses who were not called would have provided which was unavailable from the evidence adduced. Their absence therefore did not, on the evidence before me, create a material gap in the prosecution case.
27. The sixth issue is whether the Appellant’s right to legal representation was violated. Article 50(2)(h) of the Constitution guarantees an accused person the right to have an advocate assigned at State expense where substantial injustice would otherwise result.
28. The record shows that the Appellant participated in the proceedings, cross-examined the prosecution witnesses and subsequently gave sworn evidence in his defence. There is no indication that he made a request for State-funded legal representation which was declined. More importantly, he has not identified any particular stage of the proceedings at which the absence of counsel resulted in substantial injustice. The constitutional threshold is therefore not established. I find no violation of Article 50(2)(h).
29. The seventh issue concerns the Appellant’s mental fitness to stand trial. The Appellant submitted that the trial court did not sufficiently consider his mental condition. The Respondent relied on the medical assessment report dated 30th July 2020, which found the Appellant fit to stand trial. There is no subsequent medical evidence demonstrating that his mental condition deteriorated or that he became incapable of understanding the proceedings or participating in his defence. The record also demonstrates that he actively participated in the trial, cross-examined the prosecution witnesses and gave sworn evidence. I find no evidential basis for concluding that he was mentally unfit to stand trial or that the trial court proceeded in disregard of a demonstrated incapacity.
30. The eighth issue concerns the two matters raised in the defence, namely the alleged indebtedness of Kshs. 6,000 and the alibi advanced by DW2. During her evidence, PW2 denied owing the Appellant the alleged sum. The Appellant subsequently maintained in his sworn defence that the complaint arose from that dispute, alleging that PW2 had failed to pay him for fencing and digging terraces. There was no evidence to establish that the alleged debt provided a basis for the complainant to falsely implicate him. I therefore find no merit in that aspect of the defence.
31. The alibi was that the Appellant had gone to Kikuyu to transport cabbages on the material day. It was advanced by DW2, his mother, and was not corroborated by him. I therefore reject it.
32. The final issue is whether the sentence of life imprisonment was lawful and ought to be interfered with. The Appellant submitted that the sentence was excessive and disproportionate and urged the Court to take into account that he was a first offender, his mitigation and his prospects of rehabilitation.
33. Section 8(2) of the Sexual Offences Act provides that a person who commits defilement with a child aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life. The complainant was ten years old on 23rd September 2019 and therefore fell within that provision. The sentence imposed by the trial court was accordingly lawful.
34. The authorities relied upon by the Appellant on interference with sentence do not warrant a different conclusion, as they concerned different sentencing provisions or circumstances in which the court retained discretion. In the present case, the prescribed sentence left no discretion to impose a lesser term on account of the Appellant’s status as a first offender or the mitigation advanced. I therefore find no basis for interference.
35. Having reconsidered the evidence in its entirety, this court finds that the prosecution proved the charge beyond reasonable doubt. The conviction was therefore safe and the sentence lawful.
36. From the foregoing, the appeal against conviction and sentence is dismissed. The conviction is upheld and the sentence of imprisonment for life is affirmed.
2. The prosecution called four witnesses. The trial court conducted a voir dire examination of PW1, CMY, the minor complainant and having satisfied itself that she possessed sufficient intelligence to give sworn evidence and understood the nature of an oath, proceeded to receive her evidence on oath.
3. The prosecution called four witnesses. PW1 was the minor complainant, CMY. The trial court conducted a voir dire examination and, having satisfied itself that she possessed sufficient intelligence to give sworn evidence and understood the nature of an oath, proceeded to receive her evidence on oath.
4. Complainant testified that she was born on 07th October 2008 and was a Class Five pupil at Kwakunua Primary School in Kyamathyaka. She recalled that on 23rd September 2019, after school, she left for home with her friends Michelle and Kanyithia. As they passed through the school gate, she saw the Appellant, whom she knew as Mulwa Ngii, crossing the road in the same direction. She stated that he followed them as they proceeded home, taking the same turns and slowing down whenever they slowed. She recalled that her friends eventually reached their respective homes, leaving her to continue alone. She proceeded downhill towards the river and crossed it, where she saw the Appellant behind her. When she attempted to run, he caught up with her, pulled her into a valley and removed her skintight garment and underwear, leaving her in her school skirt and uniform. He then removed his trousers and sexually assaulted her. In describing the act, she stated that he “aliniweka kitu” while pointing to her genital area. She recalled that he threatened to strangle her and throw her into the valley if she disclosed what had occurred, following which she experienced pain in her genital area. Complainant stated that it was still sunny when the incident happened and she was able to recognize the Appellant clearly having seen him on three previous occasions and known him before the incident.
5. Complainant stated that upon arriving home, she found her mother and complained of pain “huku chini”. She bathed, ate and slept. The following morning, at about 6.30 a.m., she remained in pain and did not attend school.
6. Her mother PW2 stated that complainant was born on 07th October 2008 as shown on her certificate of birth PEXH. 3. She stated that upon receiving complainant’s report, she reported the matter to the Sub-Chief and was subsequently directed to Kitui Police Station. Police referred her complainant to Kitui General Hospital where she was examined and the relevant medical forms completed. PW2 stated that she had known the Appellant since about 2008 and knew him as a person who lived on the other side of the river. She stated that the complainant had never previously reported a sexual assault and maintained that what the child had told her was truthful.
7. PW3 was Bonface Muthui, a Clinical Officer at Kitui County Referral Hospital testified that she examined the complainant on 27th September 2019 and filled a PRC form, PEXH. 1 on same date which shows that complainant’s genitalia was tender and erythematous and hymen was broken. He also tendered a P3 form PEXH. 2 filed on 13th July 2020 by Caroline Bangula, a Clinical Officer which confirmed that complainant’s genitalia was tender and erythematous and hymen was broken
8. PW4 was No. 243590 Police Constable Musili Christopher, took over the case long after Appellant was arrested and charged. He produced as PEXH 3 the complainant’s certificate of birth which shows she was born on 07th October 2008.
9. The Appellant gave sworn evidence and denied committing the offence. He told the court that he had previously worked for the complainant's mother who had refused to pay him Kshs. 6,000 for work he had undertaken, including fencing and digging terraces. His mother, DW2 Beatrice Ngii, stated that the allegation against her son was false and that on the material occasion he had gone to Kikuyu to transport cabbages. She further alleged that the complainant had been defiled by her grandfather and had been given Kshs. 1,500 to implicate the Appellant falsely.
10. Upon consideration of the evidence, the trial court convicted the Appellant on 18th October 2021 and on 08th November 2021 sentenced him to imprisonment for life.
11. The Appellant challenges both conviction and sentence. His written submissions dated 03rd January 2025 are framed around six principal complaints: that the prosecution failed to prove the essential ingredients of defilement beyond reasonable doubt; that his identification was not sufficiently established; that there was insufficient corroborative and medical evidence; that crucial witnesses were not called; that his right to legal representation was violated; that his mental fitness was not properly considered; that his alibi and defence generally were not adequately evaluated; and that the life sentence was excessive given his status as a first offender.
12. The Respondent opposed the appeal by way of written submission dated 07th August 2026 submitting that the prosecution proved the complainant's age, penetration and identification of the Appellant.
13. As a first appellate court, I am required to reconsider and re-evaluate the evidence afresh and reach my own independent conclusion, while bearing in mind that I did not see or hear the witnesses testify. That duty was settled in Okeno v Republic [1972] EA 32, where the Court of Appeal held that an appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination, and that the first appellate court must itself weigh the evidence and draw its own conclusions, making due allowance for the fact that the trial court had the advantage of seeing and hearing the witnesses.
14. Having reconsidered and re-evaluated the evidence on record, the judgment of the trial court, the grounds of appeal and the submissions of the parties, I identify the following issues for determination:
1) Whether the age of the complainant was proved;
2) Whether penetration was proved;
3) Whether the appellant was positively identified as the perpetrator;
4) Whether the prosecution evidence required further corroboration and whether the medical evidence supported the charge;
5) Whether the failure to call certain witnesses rendered the prosecution case unsafe;
6) Whether the appellant’s right to legal representation was violated;
7) Whether his mental fitness to stand trial was properly addressed;
8) Whether his defence, including the alleged alibi, was properly considered; and
9) Whether the sentence of life imprisonment was lawful and ought to be interfered with.
15. On the first issue, the prosecution was required to prove the complainant’s age as an essential ingredient of the offence. The age was also material to the applicable sentence under section 8 of the Sexual Offences Act. The birth certificate produced by PW4 as PExh. 3 records the complainant’s date of birth as 07th October 2008. The offence was alleged to have occurred on 23rd September 2019. She was therefore ten years old at the material time, having not yet attained the age of eleven. The description of her age as eleven years in the charge sheet does not accord with the date of birth appearing in the birth certificate. That discrepancy does not, in my view, create doubt as to her actual age where the documentary evidence establishes the date of birth. PW2 also confirmed the same date of birth. I therefore find that the prosecution proved beyond reasonable doubt that the complainant was ten years old at the time of the offence and consequently fell within the age bracket contemplated under section 8(2) of the Act.
16. This conclusion is consistent with the principle stated in Mwachongo v Republic [2016] KECA 521 (KLR), relied upon by the Respondent, that proof of the complainant’s age is an essential ingredient of defilement because the sentence is dependent upon the age of the child. The evidence before the trial court in the present case was stronger than a mere estimate of age, since it included the birth certificate and the evidence of the complainant’s mother.
17. The second issue is whether penetration was proved. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The Appellant relied on Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) in submitting that penetration is an essential ingredient and that the absence of spermatozoa or other forensic material may weaken the prosecution case. The Court of Appeal in that case made clear that penetration need not be deep or result in ejaculation; what must be established is penetration itself.
18. The complainant gave direct evidence of what occurred. She stated that the Appellant removed her skintight garment and underwear, removed his trousers and thereafter “aliniweka kitu”, while pointing to her genital area. She experienced pain thereafter. Her account was supported by the medical evidence. PW3 examined her on 27th September 2019 and found the genitalia tender and erythematous and the hymen broken. The PRC form was produced as PExh. 1. The evidence, taken as a whole, establishes penetration within the meaning of section 2 of the Act. I therefore find this ingredient proved beyond reasonable doubt.
19. The third issue is whether the Appellant was positively identified as the perpetrator. The prosecution case was one of recognition. The complainant testified that she knew the Appellant as Mulwa Ngii before the incident and had seen him on three previous occasions. She encountered him as she left school with her friends and observed him following them as they proceeded home. He took the same turns and slowed down whenever they slowed. After her friends had separated from her, she proceeded towards the river and again saw him behind her. She stated that it was still sunny and that she was able to see him clearly.
20. The Appellant relied, among other authorities, on Jasvir Singh v Republic [2023] eKLR and Chalen Ochieng v Republic [2024] eKLR to challenge the sufficiency of the identification evidence. The Respondent relied on Anjononi & Others v Republic [1980] KLR 59, where the Court of Appeal recognised the distinction between recognition of a person already known to a witness and the identification of a stranger.
21. I have considered the circumstances in which the complainant observed the Appellant. This was not a fleeting encounter with a stranger. She knew him beforehand, saw him in daylight near the school and observed him following her and her companions along the route home. She subsequently encountered him again after her friends had left her. The evidence was therefore founded upon prior familiarity and repeated observation. I find the circumstances favourable to accurate recognition and am satisfied beyond reasonable doubt that the Appellant was the person identified by the complainant as her assailant.
22. The fourth issue concerns the need for corroboration and the significance of the medical evidence. The Appellant relied on David Kipchirchir Too v Republic [2023] eKLR, Stephen Gicharu v Republic [2023] eKLR and R v K.N. [2023] eKLR in submitting that the complainant’s evidence required support from independent evidence. He further pointed to the absence of the complainant’s clothing, DNA evidence and other physical evidence.
23. The proviso to section 124 of the Evidence Act permits a court, in a sexual offence, to convict on the evidence of the victim alone where it records its reasons for believing the victim to be telling the truth. The prosecution was therefore not required as a matter of law to produce every category of physical or forensic evidence suggested by the Appellant. In this case, in any event, the complainant’s evidence did not stand alone. PW3 found the genitalia tender and erythematous and the hymen broken. The PRC form dated 27th September 2019 recorded those findings, while the P3 form completed by Caroline Bangula also recorded the genital findings. The medical evidence therefore provided independent support for the complainant’s account.
24. The fact that the medical examination occurred four days after the alleged incident does not, without more, render the findings incapable of supporting the prosecution case. The evidence of PW3 was that he examined the complainant and recorded the findings reflected in PExh. 1. I find that the medical evidence was consistent with the complainant’s account and that the absence of DNA evidence or the complainant’s clothing does not create a reasonable doubt in the circumstances of this case.
25. The fifth issue is whether the failure to call certain witnesses, including the original investigating officer, rendered the prosecution case unsafe. The Appellant relied on David Kipchirchir Too and other authorities in submitting that the failure to call witnesses who could have provided corroboration or explained aspects of the investigation created gaps in the prosecution case.
26. I have considered the evidence that was actually placed before the trial court. PW1 gave direct evidence concerning the assault and the identity of the Appellant. PW2 testified concerning the complainant’s condition, her subsequent disclosure and the steps taken after the report. PW3 gave evidence concerning the medical examination, while PW4 produced the birth certificate. The Appellant has not demonstrated what material evidence the witnesses who were not called would have provided which was unavailable from the evidence adduced. Their absence therefore did not, on the evidence before me, create a material gap in the prosecution case.
27. The sixth issue is whether the Appellant’s right to legal representation was violated. Article 50(2)(h) of the Constitution guarantees an accused person the right to have an advocate assigned at State expense where substantial injustice would otherwise result.
28. The record shows that the Appellant participated in the proceedings, cross-examined the prosecution witnesses and subsequently gave sworn evidence in his defence. There is no indication that he made a request for State-funded legal representation which was declined. More importantly, he has not identified any particular stage of the proceedings at which the absence of counsel resulted in substantial injustice. The constitutional threshold is therefore not established. I find no violation of Article 50(2)(h).
29. The seventh issue concerns the Appellant’s mental fitness to stand trial. The Appellant submitted that the trial court did not sufficiently consider his mental condition. The Respondent relied on the medical assessment report dated 30th July 2020, which found the Appellant fit to stand trial. There is no subsequent medical evidence demonstrating that his mental condition deteriorated or that he became incapable of understanding the proceedings or participating in his defence. The record also demonstrates that he actively participated in the trial, cross-examined the prosecution witnesses and gave sworn evidence. I find no evidential basis for concluding that he was mentally unfit to stand trial or that the trial court proceeded in disregard of a demonstrated incapacity.
30. The eighth issue concerns the two matters raised in the defence, namely the alleged indebtedness of Kshs. 6,000 and the alibi advanced by DW2. During her evidence, PW2 denied owing the Appellant the alleged sum. The Appellant subsequently maintained in his sworn defence that the complaint arose from that dispute, alleging that PW2 had failed to pay him for fencing and digging terraces. There was no evidence to establish that the alleged debt provided a basis for the complainant to falsely implicate him. I therefore find no merit in that aspect of the defence.
31. The alibi was that the Appellant had gone to Kikuyu to transport cabbages on the material day. It was advanced by DW2, his mother, and was not corroborated by him. I therefore reject it.
32. The final issue is whether the sentence of life imprisonment was lawful and ought to be interfered with. The Appellant submitted that the sentence was excessive and disproportionate and urged the Court to take into account that he was a first offender, his mitigation and his prospects of rehabilitation.
33. Section 8(2) of the Sexual Offences Act provides that a person who commits defilement with a child aged eleven years or less shall, upon conviction, be sentenced to imprisonment for life. The complainant was ten years old on 23rd September 2019 and therefore fell within that provision. The sentence imposed by the trial court was accordingly lawful.
34. The authorities relied upon by the Appellant on interference with sentence do not warrant a different conclusion, as they concerned different sentencing provisions or circumstances in which the court retained discretion. In the present case, the prescribed sentence left no discretion to impose a lesser term on account of the Appellant’s status as a first offender or the mitigation advanced. I therefore find no basis for interference.
35. Having reconsidered the evidence in its entirety, this court finds that the prosecution proved the charge beyond reasonable doubt. The conviction was therefore safe and the sentence lawful.
36. From the foregoing, the appeal against conviction and sentence is dismissed. The conviction is upheld and the sentence of imprisonment for life is affirmed.