1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. The Appellant was tried and convicted of the offence of defilement and was sentenced to twenty (20) years imprisonment.
3. Being dissatisfied with the said Judgement delivered on 28th April 2025, the Appellant lodged the Appeal herein. The Appellant filed the Petition of
Appeal dated 23rd July 2025 based on 3 grounds as follows: -
a. That the Learned Trial Magistrate erred in law and fact by failing to consider that the ingredient forming the offence were not proved to the required standard.
b. That the trial Court erred in law and facts by convicting and sentencing the Appellant in reliance to medical evidence which was unsatisfactorily in law.
c. That the Learned Trial Magistrate erred in law and facts by failing to deal with contradictions and inconsistencies in Prosecution evidence.
4. The Appellant also filed Amended Grounds of Appeal dated 22nd December
2025 which can be summarised as follows: -
a. That the Trial Court erred in law and fact by failing to accord the Appellant fair trial under Article 50(2)(g) and (h) of the Constitution.
b. That the Trial Court erred in law and fact in arriving at a decision while basing on evidences that were full of contradictions and without analyzing the nature.
c. That the Learned Trial Magistrate erred in law and fact in relying on evidence of a single witness (uncorroborated evidence).
d. That the Trial Court erred in law and fact in rejecting the appellant’s defense adduced by the Appellant.
5. The Appellant sought the following orders from the Amended Grounds of
Appeal: -
a. Amended Grounds of Appeal be admitted.
b. Conviction be quashed.
c. Sentence be set aside
d. Appellant be set at liberty.
6. The Appeal was canvassed by way of written submissions.
Appellant’s Written Submissions
7. The Appellant filed its written submissions dated 22nd December 2025. On this issue, the Appellant submitted that he was first arraigned in Court on 30th November 2022 for plea taking and that he was not informed by the trial Court of his right to legal representation, thus occasioning him a miscarriage of justice. In the premises, he sought for an acquittal. He invoked Article 50(2)(g) and (h) of the Constitution and placed reliance on the case of Lima & Another Vs Republic [1991] eKLR where it was held that every accused had the undoubted right to be defended by Counsel and that if an accused is deprived of that right and a conviction follows, the conviction would be quashed on appeal.
8. On whether the Prosecution had proved its case beyond reasonable doubt, the Appellant did not submit on the issue of age. On the issue of identification, the Appellant submitted that PW1 contradicted himself when he said it was dark and later said there was a lamp which he used to see the Appellant. He invoked Section 124 of the Evidence Act and faulted the Trial Court for relying on the evidence of a single witness which was uncorroborated. He placed reliance on the case of Maitanyi Vs Republic (1986) KLR where it was held that in determining the quality of identification using light at night, it was at least essential to ascertain the nature of the light available, what sort of light, its size and its position relative to the suspect.
9. On the issue of penetration, the Appellant submitted that the evidence of the Prosecution witnesses was full of inconsistencies. He placed reliance on the case of Paul Kanja Gitau Vs Republic [2016] eKLR where it was held that the first appellate Court seemed not to have dealt with the inconsistencies in the Prosecution evidence. To buttress his point, he also cited the case of Ndungu Kimanyi Vs Republic (1979) KLR 283 where it was held that the witness in a criminal case upon whose evidence is proposed to rely on should not create an impression in the mind of the Court that he is not a straight forward person or raises suspicion about his trustworthiness or do or say something which makes it unsafe to accept his evidence.
10. He further faulted the Trial Court for failing to avail key witnesses to testify.
In this regard, he relied in the cases of Ng’ang’a Vs Republic Appeal No 50 of 1981 and Wendoh Vs Republic (1953) 20EA 166 where the common thread was that the Prosecution must make available all witnesses to establish the truth even if their evidence may be inconsistent.
He faulted the Trial Court for rejecting his defence.
Respondent’s Written Submissions
11. The Respondent filed its written submissions dated 19th February 2026 through the Learned Prosecution Counsel, Mr. Leina Davies. On the issue of age, the Respondent submitted that the Charge Sheet indicated that the Complainant, CR (hereinafter referred to as “PW1”) was twelve (12) years of age at the time of the commission of the offence. It relied in the case of Musyoki Mwakavi Vs Republic [2014] eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense. It contended that PW1 also testified that she was twelve (12) years old at the time of the commission of the offence and that the Prosecution produced a Birth Certificate indicating his date of birth as 22nd October 2011, thus, his age was adequately proved.
12. On the issue of identification, the Respondent submitted that PW1 positively identified the Appellant as their neighbour and that PW1’s grandmother, Grace Eregwa (hereinafter referred to as “PW2” also confirmed that the Appellant was a person well known to them, thus, evidenced that he could not have been mistaken as to his identity. It contended that the Appellant was, therefore, someone well known to PW1 and could not have been mistaken as to his identity. It pointed out that that was evidence of recognition which was held by Courts to be more reliable and weightier than that of identification of a stranger as was held in the case of Anjononi & Others Vs Republic (1976-80) 1 KLR 1566, 1568. It was emphatic that there was proper identification as there was prior knowledge of the Appellant. It submitted that there was proper identification as PW1 had prior knowledge of the Appellant.
13. On the element of penetration, the Respondent cited Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed Vs Republic [2020] eKLR where it was held that the key evidence relied upon by the Courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. It submitted that the evidence of Clinical Officer, Boaz Alisha (hereinafter referred to as “PW3”) corroborated that of PW 1 and PW 2 and that penetration was, therefore, proved.
14. It further asserted that the inconsistencies and contradictions did not go into the core of the case and that the variance in itself did not in any manner distort or dislodge the commission of the offense as was held in the case of S.O.O Vs Republic [2018] eKLR which cited the Tanzanian case of Dickson Elia Nsamba Shapwata & Another Vs The Republic Criminal App No 92 of 2007.
Analysis and Determination
15. It is settled law that the duty of a first appellate Court is to evaluate afresh the evidence adduced before the trial Court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
16. This was aptly stated in the case of Selle & Another Vs Associated Motor
Boat Co Ltd &Others [1968] EA 123 where the Court therein held that: -
“The appellate Court was not bound by the findings of fact of the trial Court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect.
17. The Supreme Court of India also explained the duty of a first appellate Court in K. Anbazhagan Vs State of Karnataka and Others Criminal
Appeal No. 637 of 2015 as follows: -
“The appellate Court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely...The appellate Court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”
18. Having looked at the Appellant’s Petition of Appeal, the Amended Grounds of Appeal and the rival written submissions, there are three (3) issues for determination as follows: -
a. Whether the Appellant was accorded a fair trial under Article 50(2)(g) and (h) of the Constitution of Kenya, 2010
b. Whether or not the Prosecution proved its case beyond reasonable doubt
c. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
Whether the Appellant was accorded a fair trial under Article 50(2)(g) and (h) of the Constitution of Kenya, 2010
19. Legal representation is to be provided to an accused person who is likely to suffer substantial injustice if an advocate is not assigned to him by the State irrespective of the offence he is charged with. Article 50(1) of the Constitution of Kenya, 2010 states that: - “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.”
20. Article 50(2)(h) of the Constitution of Kenya further provides as follows: - “Every accused person has the right to a fair trial which includes the right to have an advocate assigned to the accused person by the State and at State expense if substantial injustice would otherwise result, and to be informed of this right promptly.”
21. Notably, Article 50(2)(g) of the Constitution of Kenya provides as follows: - “Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly.”
22. Article 50(2)(j) of Constitution of Kenya states that: -
“Every accused person has the right to a fair trial which includes the right to be informed in advance of the evidence the Prosecution intends to rely on, and to have reasonable access to that evidence.”
23. The right under Article 50(2)(g) of the Constitution must be distinguished from the right under Article 50(2)(h) of the Constitution given that in many instances the rights under Article 50(2)(g) and (h) of the Constitution are dealt with contemporaneously. The right under Article 50(2)(h) of the Constitution on one hand places a duty on the State to assign an Advocate to an accused person at its own expense if substantial injustice will otherwise result. The right under Article 50(2)(g) of the Constitution on the other hand deals with informing an accused person of his/her right to be represented by an Advocate of one’s choice further to giving necessary information to the accused person and calling him/her to make a choice on his/her legal representation. Put differently, the right under Article 50(2)(h) of the Constitution deals with instances where the State must assign an Advocate to an accused person. Suffice to say that the right to a fair trial under Article 50 of the Constitution is among those rights that cannot be limited in any way whatsoever Courtesy of Article 25 of the Constitution.
24. Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett Vs Greyhound Racing Association (1968) 2 All ER 545 Lord Denning presented himself thus: -
“It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or crossexamine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts 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 trained for the task.”
25. In South Africa in Fraser Vs ABSA Bank Limited (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the Constitutional Court had the following to say: -
“Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied in POCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any Counsel he or she chooses, regardless of his or her financial situation….”
26. In the case of Joseph Kiema Philip Vs Republic (2019) eKLR, the Court stated as follows: -
“……it is paramount that the record of the trial Court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate; one may be appointed at the expense of the state. It [the Court record] must show that the Court did take the profile of the accused person before the trial commenced……”
27. A perusal of the proceedings of the Lower Court showed that the Appellant informed the Trial Court that he was ready to proceed with the case on several occasions. He was able to cross-examine three (3) witnesses before his Advocate Wekesa took over from the fourth witness. At no point before that in the proceedings did the Appellant request for legal representation or for time to instruct a Counsel to represent him during trial. The limitation of the right to be assigned legal representation by the State was addressed by the Court of Appeal in the case of Karisa Chengo, Jefferson Kalama Kengha & Kitsao Charo Ngati Vs Republic [2015] eKLR when it stated as follows: -
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.
28. Be that as it may, this Court finds that the Trial Court was under an obligation to have informed him of his right to be represented by Counsel as was mandated by Article 50(2)(g) of the Constitution of Kenya, 2010, right from the beginning of taking plea. Failure by the Trial Court to have informed the Appellant of this right was a great omission. Having said so, it was not always that such omission had to cause an accused person injustice as it could be remedied by way of a retrial if such accused person had completely been prejudiced.
29. In this particular case, the Appellant proceeded with the trial without ever having asked that the Trial Court to give him time to instruct Counsel to represent him during trial. Provision of legal representation at the State expense was a progressive right which was currently accorded to persons who had been charged with capital offences only. This Court thus comes to the firm conclusion that the Appellant’s constitutional and fundamental right to fair trial had not been breached merely because the Trial Court did not inform of his right of legal representation under Article 50(2)(g) of the Constitution of Kenya.
30. In view of the delays that would be occasioned by recalling witnesses due to failure by trial Courts to promptly inform accused persons of their right to choose and be represented by an advocate and to be informed of this right promptly under Article 50(2)(g) of the Constitution of Kenya and the right to have an advocate assigned to the accused person by the State and at State expense and bearing in mind substantial injustice that would otherwise result as provided in Article 50(2)(h) of the Constitution of Kenya, trial Courts were called upon to comply with these provisions of the law when an accused person was first presented to Court and before taking the plea as this was indeed the best practice besides being mandated by the law.
31. In the absence of proof of violation of the Appellant’s right to fair trial, this Court is not persuaded that it should find that the trial should be rendered a nullity necessitating a retrial. In the premises, Amended Ground of Appeal No (1) is not merited and the same be and is hereby dismissed.
Whether or not the Prosecution proved its case beyond reasonable doubt?
32. The issue in this case is whether the Prosecution proved its case to the required standards. Most of quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington Vs DPP [1935] A.C 462 pp 481, comes in handy in describing the legal burden of proof in criminal matters, that: -
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the Prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the Prosecution or the prisoner, as to whether [the offence was committed by him], the Prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the Prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
33. In the case of Charles Wamukoya Karani Vs Republic, Criminal Appeal
No. 72 of 2013 the Court stated as follows: -
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
34. Based on the above dictum, it is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator. This Court will deal with the same under the following distinct and separate heads.
Age
35. I take note that the Appellant did not submit on this issue. This Court has had due regard to the case of Kaingu Elias Kasomo Vs Republic Criminal
Case No. 504 of 2010 (unreported) where the Court of Appeal stated that; The age of a minor in a charge of defilement could be proved by medical evidence and documents such as baptism cards, school leaving certificates. It can also be proved by the victim’s parents or guardian and observation or common sense as was held in the case of Musyoki Mwakavi Vs Republic(Supra).
36. In the instant case, PW1’s mother, Norah Moraa Molenya (hereinafter referred to as “PW 4”) tendered in evidence the aforesaid Birth Certificate which indicated that PW 1 was born on 22nd October 2011. The incident happened on 25th November 2022, which meant that he was approximately twelve (12) years of age. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut this evidence by adducing evidence to the contrary, this Court was satisfied that PW1’s age was proven and that she was a child at all material times.
Identification
37. A perusal of the proceedings showed that PW1 testified that on the material day of 25th November 2022, he had gone to watch a soccer match at school and as it rained while he was coming back, he sheltered at the house of the Appellant. He said that he found the Appellant seated in the house and there was nobody outside. As it stopped raining, the Appellant covered his mouth with a bedsheet and carried him to the bed. It was his evidence that the Appellant touched his buttocks using his hands and told him to give him his buttocks
38. PW1 further testified that he tried to scream and the Appellant removed his underpants and trouser and inserted his urinating part of the body in his anus which he uses for long call. He further explained that he went to his bed and the Appellant laid his chest against the bed and that for the second time he inserted his penis and did that for an hour.
39. This Court noted that PW1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial Court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth. Notably, the provision of Section 124 of the Evidence Act states that: -
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the Prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that 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 (emphasis).”
40. Even so, a trial Court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence such as proof of penetration could assist the trial or appellate Court to come with a determination as to who between the opposing witnesses was being truthful. PW1 positively identified the Appellant as the perpetrator of the offence. He was emphatic that it was him who was their neighbor that sodomised him. He said that they usually passed the Appellant’s compound while going to the shop and that they would always greet him.
He added that the Appellant used to pick milk from their home and that they had never differed. Identification was by way of recognition. The Courts have held that evidence of recognition is far much more reliable than mere identification alone. This was well enunciated in the case of Anjoroni Vs Republic 1980 KLR 59 to deal with the issue of identification of a stranger. The Court of Appeal observed that;
“Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or the other.”
41. Although, the incident happened at night, PW 1 testified that there was a lamp that he used to see the Appellant. There could not, therefore, have been any possibility of a mistaken identity of the Appellant. This Court thus concludes that the Prosecution proved the ingredient of identification which was by recognition.
Penetration
42. In this instant case, PW3 testified that on examining PW1, he had lacerations on the anal area and scabies on the penis. He opined that he was sodomised. He produced the treatment notes, P3 Form and the Post Rape Care (PRC) Form as exhibits during trial.
43. In his defence, the Appellant denied the charges. He did not deny having been with PW 1 on the material night but that he was given food and went to sleep and that he did not touch him sexually as alleged. His daughter,
Lorna Minayo (hereinafter referred to as “DW 1”) corroborated his evidence.
44. Weighed against the evidence that was adduced by the Prosecution witnesses, this Court did not find the Appellant’s defence evidence to have been watertight enough to have weakened the inference of guilt on his part. It was simply a denial. This is because the Prosecution had demonstrated the elements of the offence of defilement. Notably, PW 1’s evidence was corroborated by the scientific evidence of PW 3. This Court, therefore, finds that the Prosecution had proven its case to the required standard, which in criminal cases, was proof beyond reasonable doubt.
45. In view of the foregoing, Amended Grounds of Appeal No (2), (3) and (4) are not merited and the same be and are hereby dismissed.
Whether sentence meted was harsh and excessive?
46. The Appellant did not raise the issue of sentence as a ground of appeal herein. For completeness of record, this Court deemed it prudent to consider the legality or otherwise of his sentence. On its part, the Respondent made reference to section 8(3) of the Sexual Offences Act and placed reliance on the case of Supreme Court Petition No E018 of 2023 Republic Vs Joshua Gichuki Mwangi. It further relied in the case of Shadrack Kipchoge Kogo vs Republic Criminal Appeal No 253 of 2003 (Eldoret) where it was held that sentence was essentially an exercise of the trial Court and for this Court to interfere, it must be shown that in passing the sentence, the Court took into account an irrelevant factor or that a wrong principle was applied.
47. It cited Section 329 of the Criminal Procedure Code and submitted that the trial Court took into account the evidence, the nature of the offence and the circumstances of the case in arriving at the appropriate sentence. It urged the Court to uphold the sentence herein as it was safe.
48. It bears repeating that, the High Court has the mandate under Article 165 (3) of the Constitution to hear and determine matters on enforcement of rights and fundamental freedoms enshrined in the constitution ,A further leapfrog development; under article 50(2)(p) of the Constitution: -
50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing
49. In Philip Mueke Maingi & Others Vs Rep, Petition No E17 of 2021 specifically outlawed mandatory minimum sentence. It stated;
There is nothing which prevents the Court from applying decisional law and ordering sentence review in cases where the penalty imposed was mandatory penalty in law even if the cases are finalized. To me, denying an accused the benefit of Court’s discretion to impose appropriate sentence is inconsistent with the right to fair trial. Fair trial includes sentencing. On that basis this Court has jurisdiction to determine and/or review sentence’s where appropriate.
50. The Appellant herein was sentenced under Section 8(3) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: - “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”
51. This Court could not fault the trial Court for sentencing the Appellant to twenty (20) years imprisonment as that was lawful. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that: - “Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
52. The Judiciary Sentencing Policy Guidelines provides that: -
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: …Time already spent i
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2. The Appellant was tried and convicted of the offence of defilement and was sentenced to twenty (20) years imprisonment.
3. Being dissatisfied with the said Judgement delivered on 28th April 2025, the Appellant lodged the Appeal herein. The Appellant filed the Petition of
Appeal dated 23rd July 2025 based on 3 grounds as follows: -
a. That the Learned Trial Magistrate erred in law and fact by failing to consider that the ingredient forming the offence were not proved to the required standard.
b. That the trial Court erred in law and facts by convicting and sentencing the Appellant in reliance to medical evidence which was unsatisfactorily in law.
c. That the Learned Trial Magistrate erred in law and facts by failing to deal with contradictions and inconsistencies in Prosecution evidence.
4. The Appellant also filed Amended Grounds of Appeal dated 22nd December
2025 which can be summarised as follows: -
a. That the Trial Court erred in law and fact by failing to accord the Appellant fair trial under Article 50(2)(g) and (h) of the Constitution.
b. That the Trial Court erred in law and fact in arriving at a decision while basing on evidences that were full of contradictions and without analyzing the nature.
c. That the Learned Trial Magistrate erred in law and fact in relying on evidence of a single witness (uncorroborated evidence).
d. That the Trial Court erred in law and fact in rejecting the appellant’s defense adduced by the Appellant.
5. The Appellant sought the following orders from the Amended Grounds of
Appeal: -
a. Amended Grounds of Appeal be admitted.
b. Conviction be quashed.
c. Sentence be set aside
d. Appellant be set at liberty.
6. The Appeal was canvassed by way of written submissions.
Appellant’s Written Submissions
7. The Appellant filed its written submissions dated 22nd December 2025. On this issue, the Appellant submitted that he was first arraigned in Court on 30th November 2022 for plea taking and that he was not informed by the trial Court of his right to legal representation, thus occasioning him a miscarriage of justice. In the premises, he sought for an acquittal. He invoked Article 50(2)(g) and (h) of the Constitution and placed reliance on the case of Lima & Another Vs Republic [1991] eKLR where it was held that every accused had the undoubted right to be defended by Counsel and that if an accused is deprived of that right and a conviction follows, the conviction would be quashed on appeal.
8. On whether the Prosecution had proved its case beyond reasonable doubt, the Appellant did not submit on the issue of age. On the issue of identification, the Appellant submitted that PW1 contradicted himself when he said it was dark and later said there was a lamp which he used to see the Appellant. He invoked Section 124 of the Evidence Act and faulted the Trial Court for relying on the evidence of a single witness which was uncorroborated. He placed reliance on the case of Maitanyi Vs Republic (1986) KLR where it was held that in determining the quality of identification using light at night, it was at least essential to ascertain the nature of the light available, what sort of light, its size and its position relative to the suspect.
9. On the issue of penetration, the Appellant submitted that the evidence of the Prosecution witnesses was full of inconsistencies. He placed reliance on the case of Paul Kanja Gitau Vs Republic [2016] eKLR where it was held that the first appellate Court seemed not to have dealt with the inconsistencies in the Prosecution evidence. To buttress his point, he also cited the case of Ndungu Kimanyi Vs Republic (1979) KLR 283 where it was held that the witness in a criminal case upon whose evidence is proposed to rely on should not create an impression in the mind of the Court that he is not a straight forward person or raises suspicion about his trustworthiness or do or say something which makes it unsafe to accept his evidence.
10. He further faulted the Trial Court for failing to avail key witnesses to testify.
In this regard, he relied in the cases of Ng’ang’a Vs Republic Appeal No 50 of 1981 and Wendoh Vs Republic (1953) 20EA 166 where the common thread was that the Prosecution must make available all witnesses to establish the truth even if their evidence may be inconsistent.
He faulted the Trial Court for rejecting his defence.
Respondent’s Written Submissions
11. The Respondent filed its written submissions dated 19th February 2026 through the Learned Prosecution Counsel, Mr. Leina Davies. On the issue of age, the Respondent submitted that the Charge Sheet indicated that the Complainant, CR (hereinafter referred to as “PW1”) was twelve (12) years of age at the time of the commission of the offence. It relied in the case of Musyoki Mwakavi Vs Republic [2014] eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense. It contended that PW1 also testified that she was twelve (12) years old at the time of the commission of the offence and that the Prosecution produced a Birth Certificate indicating his date of birth as 22nd October 2011, thus, his age was adequately proved.
12. On the issue of identification, the Respondent submitted that PW1 positively identified the Appellant as their neighbour and that PW1’s grandmother, Grace Eregwa (hereinafter referred to as “PW2” also confirmed that the Appellant was a person well known to them, thus, evidenced that he could not have been mistaken as to his identity. It contended that the Appellant was, therefore, someone well known to PW1 and could not have been mistaken as to his identity. It pointed out that that was evidence of recognition which was held by Courts to be more reliable and weightier than that of identification of a stranger as was held in the case of Anjononi & Others Vs Republic (1976-80) 1 KLR 1566, 1568. It was emphatic that there was proper identification as there was prior knowledge of the Appellant. It submitted that there was proper identification as PW1 had prior knowledge of the Appellant.
13. On the element of penetration, the Respondent cited Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed Vs Republic [2020] eKLR where it was held that the key evidence relied upon by the Courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. It submitted that the evidence of Clinical Officer, Boaz Alisha (hereinafter referred to as “PW3”) corroborated that of PW 1 and PW 2 and that penetration was, therefore, proved.
14. It further asserted that the inconsistencies and contradictions did not go into the core of the case and that the variance in itself did not in any manner distort or dislodge the commission of the offense as was held in the case of S.O.O Vs Republic [2018] eKLR which cited the Tanzanian case of Dickson Elia Nsamba Shapwata & Another Vs The Republic Criminal App No 92 of 2007.
Analysis and Determination
15. It is settled law that the duty of a first appellate Court is to evaluate afresh the evidence adduced before the trial Court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
16. This was aptly stated in the case of Selle & Another Vs Associated Motor
Boat Co Ltd &Others [1968] EA 123 where the Court therein held that: -
“The appellate Court was not bound by the findings of fact of the trial Court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify and thus make due allowance in that respect.
17. The Supreme Court of India also explained the duty of a first appellate Court in K. Anbazhagan Vs State of Karnataka and Others Criminal
Appeal No. 637 of 2015 as follows: -
“The appellate Court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely...The appellate Court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”
18. Having looked at the Appellant’s Petition of Appeal, the Amended Grounds of Appeal and the rival written submissions, there are three (3) issues for determination as follows: -
a. Whether the Appellant was accorded a fair trial under Article 50(2)(g) and (h) of the Constitution of Kenya, 2010
b. Whether or not the Prosecution proved its case beyond reasonable doubt
c. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
Whether the Appellant was accorded a fair trial under Article 50(2)(g) and (h) of the Constitution of Kenya, 2010
19. Legal representation is to be provided to an accused person who is likely to suffer substantial injustice if an advocate is not assigned to him by the State irrespective of the offence he is charged with. Article 50(1) of the Constitution of Kenya, 2010 states that: - “Every person has the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a Court or, if appropriate, another independent and impartial tribunal or body.”
20. Article 50(2)(h) of the Constitution of Kenya further provides as follows: - “Every accused person has the right to a fair trial which includes the right to have an advocate assigned to the accused person by the State and at State expense if substantial injustice would otherwise result, and to be informed of this right promptly.”
21. Notably, Article 50(2)(g) of the Constitution of Kenya provides as follows: - “Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly.”
22. Article 50(2)(j) of Constitution of Kenya states that: -
“Every accused person has the right to a fair trial which includes the right to be informed in advance of the evidence the Prosecution intends to rely on, and to have reasonable access to that evidence.”
23. The right under Article 50(2)(g) of the Constitution must be distinguished from the right under Article 50(2)(h) of the Constitution given that in many instances the rights under Article 50(2)(g) and (h) of the Constitution are dealt with contemporaneously. The right under Article 50(2)(h) of the Constitution on one hand places a duty on the State to assign an Advocate to an accused person at its own expense if substantial injustice will otherwise result. The right under Article 50(2)(g) of the Constitution on the other hand deals with informing an accused person of his/her right to be represented by an Advocate of one’s choice further to giving necessary information to the accused person and calling him/her to make a choice on his/her legal representation. Put differently, the right under Article 50(2)(h) of the Constitution deals with instances where the State must assign an Advocate to an accused person. Suffice to say that the right to a fair trial under Article 50 of the Constitution is among those rights that cannot be limited in any way whatsoever Courtesy of Article 25 of the Constitution.
24. Courts have dealt with the need to avail such information to an accused person to enable him/her make a choice on legal representation. In Pett Vs Greyhound Racing Association (1968) 2 All ER 545 Lord Denning presented himself thus: -
“It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or crossexamine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts 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 trained for the task.”
25. In South Africa in Fraser Vs ABSA Bank Limited (66/05) (2006) ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) the Constitutional Court had the following to say: -
“Without the recognition of the right to legal representation in section 26(6), the scheme of restraint embodied in POCA might well have been unconstitutional. However, the right embodied in section 35(3)(f) of the Constitution does not mean that an accused is entitled to the legal services of any Counsel he or she chooses, regardless of his or her financial situation….”
26. In the case of Joseph Kiema Philip Vs Republic (2019) eKLR, the Court stated as follows: -
“……it is paramount that the record of the trial Court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate; one may be appointed at the expense of the state. It [the Court record] must show that the Court did take the profile of the accused person before the trial commenced……”
27. A perusal of the proceedings of the Lower Court showed that the Appellant informed the Trial Court that he was ready to proceed with the case on several occasions. He was able to cross-examine three (3) witnesses before his Advocate Wekesa took over from the fourth witness. At no point before that in the proceedings did the Appellant request for legal representation or for time to instruct a Counsel to represent him during trial. The limitation of the right to be assigned legal representation by the State was addressed by the Court of Appeal in the case of Karisa Chengo, Jefferson Kalama Kengha & Kitsao Charo Ngati Vs Republic [2015] eKLR when it stated as follows: -
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.
28. Be that as it may, this Court finds that the Trial Court was under an obligation to have informed him of his right to be represented by Counsel as was mandated by Article 50(2)(g) of the Constitution of Kenya, 2010, right from the beginning of taking plea. Failure by the Trial Court to have informed the Appellant of this right was a great omission. Having said so, it was not always that such omission had to cause an accused person injustice as it could be remedied by way of a retrial if such accused person had completely been prejudiced.
29. In this particular case, the Appellant proceeded with the trial without ever having asked that the Trial Court to give him time to instruct Counsel to represent him during trial. Provision of legal representation at the State expense was a progressive right which was currently accorded to persons who had been charged with capital offences only. This Court thus comes to the firm conclusion that the Appellant’s constitutional and fundamental right to fair trial had not been breached merely because the Trial Court did not inform of his right of legal representation under Article 50(2)(g) of the Constitution of Kenya.
30. In view of the delays that would be occasioned by recalling witnesses due to failure by trial Courts to promptly inform accused persons of their right to choose and be represented by an advocate and to be informed of this right promptly under Article 50(2)(g) of the Constitution of Kenya and the right to have an advocate assigned to the accused person by the State and at State expense and bearing in mind substantial injustice that would otherwise result as provided in Article 50(2)(h) of the Constitution of Kenya, trial Courts were called upon to comply with these provisions of the law when an accused person was first presented to Court and before taking the plea as this was indeed the best practice besides being mandated by the law.
31. In the absence of proof of violation of the Appellant’s right to fair trial, this Court is not persuaded that it should find that the trial should be rendered a nullity necessitating a retrial. In the premises, Amended Ground of Appeal No (1) is not merited and the same be and is hereby dismissed.
Whether or not the Prosecution proved its case beyond reasonable doubt?
32. The issue in this case is whether the Prosecution proved its case to the required standards. Most of quoted English decision of by Viscount Sankey L.C in the case of H.L. (E) Woolmington Vs DPP [1935] A.C 462 pp 481, comes in handy in describing the legal burden of proof in criminal matters, that: -
“Throughout the web of the English Criminal Law one golden thread is always to be seen, that it is the duty of the Prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the Prosecution or the prisoner, as to whether [the offence was committed by him], the Prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the Prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.’’
33. In the case of Charles Wamukoya Karani Vs Republic, Criminal Appeal
No. 72 of 2013 the Court stated as follows: -
“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”
34. Based on the above dictum, it is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator. This Court will deal with the same under the following distinct and separate heads.
Age
35. I take note that the Appellant did not submit on this issue. This Court has had due regard to the case of Kaingu Elias Kasomo Vs Republic Criminal
Case No. 504 of 2010 (unreported) where the Court of Appeal stated that; The age of a minor in a charge of defilement could be proved by medical evidence and documents such as baptism cards, school leaving certificates. It can also be proved by the victim’s parents or guardian and observation or common sense as was held in the case of Musyoki Mwakavi Vs Republic(Supra).
36. In the instant case, PW1’s mother, Norah Moraa Molenya (hereinafter referred to as “PW 4”) tendered in evidence the aforesaid Birth Certificate which indicated that PW 1 was born on 22nd October 2011. The incident happened on 25th November 2022, which meant that he was approximately twelve (12) years of age. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut this evidence by adducing evidence to the contrary, this Court was satisfied that PW1’s age was proven and that she was a child at all material times.
Identification
37. A perusal of the proceedings showed that PW1 testified that on the material day of 25th November 2022, he had gone to watch a soccer match at school and as it rained while he was coming back, he sheltered at the house of the Appellant. He said that he found the Appellant seated in the house and there was nobody outside. As it stopped raining, the Appellant covered his mouth with a bedsheet and carried him to the bed. It was his evidence that the Appellant touched his buttocks using his hands and told him to give him his buttocks
38. PW1 further testified that he tried to scream and the Appellant removed his underpants and trouser and inserted his urinating part of the body in his anus which he uses for long call. He further explained that he went to his bed and the Appellant laid his chest against the bed and that for the second time he inserted his penis and did that for an hour.
39. This Court noted that PW1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial Court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth. Notably, the provision of Section 124 of the Evidence Act states that: -
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the Prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that 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 (emphasis).”
40. Even so, a trial Court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence such as proof of penetration could assist the trial or appellate Court to come with a determination as to who between the opposing witnesses was being truthful. PW1 positively identified the Appellant as the perpetrator of the offence. He was emphatic that it was him who was their neighbor that sodomised him. He said that they usually passed the Appellant’s compound while going to the shop and that they would always greet him.
He added that the Appellant used to pick milk from their home and that they had never differed. Identification was by way of recognition. The Courts have held that evidence of recognition is far much more reliable than mere identification alone. This was well enunciated in the case of Anjoroni Vs Republic 1980 KLR 59 to deal with the issue of identification of a stranger. The Court of Appeal observed that;
“Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or the other.”
41. Although, the incident happened at night, PW 1 testified that there was a lamp that he used to see the Appellant. There could not, therefore, have been any possibility of a mistaken identity of the Appellant. This Court thus concludes that the Prosecution proved the ingredient of identification which was by recognition.
Penetration
42. In this instant case, PW3 testified that on examining PW1, he had lacerations on the anal area and scabies on the penis. He opined that he was sodomised. He produced the treatment notes, P3 Form and the Post Rape Care (PRC) Form as exhibits during trial.
43. In his defence, the Appellant denied the charges. He did not deny having been with PW 1 on the material night but that he was given food and went to sleep and that he did not touch him sexually as alleged. His daughter,
Lorna Minayo (hereinafter referred to as “DW 1”) corroborated his evidence.
44. Weighed against the evidence that was adduced by the Prosecution witnesses, this Court did not find the Appellant’s defence evidence to have been watertight enough to have weakened the inference of guilt on his part. It was simply a denial. This is because the Prosecution had demonstrated the elements of the offence of defilement. Notably, PW 1’s evidence was corroborated by the scientific evidence of PW 3. This Court, therefore, finds that the Prosecution had proven its case to the required standard, which in criminal cases, was proof beyond reasonable doubt.
45. In view of the foregoing, Amended Grounds of Appeal No (2), (3) and (4) are not merited and the same be and are hereby dismissed.
Whether sentence meted was harsh and excessive?
46. The Appellant did not raise the issue of sentence as a ground of appeal herein. For completeness of record, this Court deemed it prudent to consider the legality or otherwise of his sentence. On its part, the Respondent made reference to section 8(3) of the Sexual Offences Act and placed reliance on the case of Supreme Court Petition No E018 of 2023 Republic Vs Joshua Gichuki Mwangi. It further relied in the case of Shadrack Kipchoge Kogo vs Republic Criminal Appeal No 253 of 2003 (Eldoret) where it was held that sentence was essentially an exercise of the trial Court and for this Court to interfere, it must be shown that in passing the sentence, the Court took into account an irrelevant factor or that a wrong principle was applied.
47. It cited Section 329 of the Criminal Procedure Code and submitted that the trial Court took into account the evidence, the nature of the offence and the circumstances of the case in arriving at the appropriate sentence. It urged the Court to uphold the sentence herein as it was safe.
48. It bears repeating that, the High Court has the mandate under Article 165 (3) of the Constitution to hear and determine matters on enforcement of rights and fundamental freedoms enshrined in the constitution ,A further leapfrog development; under article 50(2)(p) of the Constitution: -
50(2) Every accused person has the right to a fair trial, which includes the right—(p)to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing
49. In Philip Mueke Maingi & Others Vs Rep, Petition No E17 of 2021 specifically outlawed mandatory minimum sentence. It stated;
There is nothing which prevents the Court from applying decisional law and ordering sentence review in cases where the penalty imposed was mandatory penalty in law even if the cases are finalized. To me, denying an accused the benefit of Court’s discretion to impose appropriate sentence is inconsistent with the right to fair trial. Fair trial includes sentencing. On that basis this Court has jurisdiction to determine and/or review sentence’s where appropriate.
50. The Appellant herein was sentenced under Section 8(3) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: - “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”
51. This Court could not fault the trial Court for sentencing the Appellant to twenty (20) years imprisonment as that was lawful. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that: - “Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
52. The Judiciary Sentencing Policy Guidelines provides that: -
“The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: …Time already spent i
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