The Appellant Nicholas Otieno was charged with the offence of Defilement Contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006.
Particulars of the offence are that on the 9th April, 2022 at about 03.00hours at Okenge Village in Nyatike Sub-County within Migori County in the Republic of Kenya unlawfully and intentionally caused his penis to penetrate the vagina of N. A. R. a child aged 16 years.
In the alternative the Appellant was also charged with the offence of committing an indecent Act with a child Contrary to section 11(1) of the Sexual Offences Act no.3 of 2006.
Particulars to the alternative count are that on the 9th April, 2022 at about 03.00hours at Okenge Village in Nyatike Sub-County within Migori County in the Republic of Kenya the Appellant intentionally touched the vagina of N. A. R. a child aged 16 years.
In the second count the Appellant was charged with the offence of kidnapping from lawful custody of the guardian contrary to Section 255 of the Penal Code.
Particulars of the 2 nd count are that on the 9th April, 2022 at about 03.00hours at Okenge Village in Nyatike Sub-County within Migori County in the Republic of Kenya the accused unlawfully kidnapped N. A. R. from the lawful custody of her guardian.
Based on the evidence of six (6) Prosecution witnesses and the Appellant’s sworn testimony the trial Magistrate convicted the Appellant for the offence of defilement contrary to Section 8(4) of the Sexual Offences Act No. 3 of 2006 and was sentenced him to serve 15 years imprisonment.
For the offence of kidnapping under Section 255 of the Penal Code the Appellant was acquitted as the prosecution did not prove as provided that the Complainant was under 16 years.
The Appellant was aggrieved by the conviction and sentence. He lodged an appeal through a petition of appeal dated 9 th August 2024 on the following grounds:
1. That I pleaded not guilty to the charge.
2. That the Trial Court erred in both law and fact by not complying with Articles 50(2) (g) and (h) of the Constitution 2010
3. That the Trial Court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the required standards in law.
4. That the Trial Court erred in both law and facts by meting a harsh and excessive sentence in the circumstances.
REASONS WHEREFORE the Appellant prayed that the conviction be quashed and sentence set aside.
He also prayed for reduction of the sentence.
PW1 was subjected to voire dire examination and the Trial Magistrate found she was possessed of sufficient intelligence to give sworn statement. She testified and said that she was 15 years old and Grade 8 learner at Owiro Primary School. She identified her birth Certificate to the court.
She said that the Appellant was her boyfriend from May 2020 and she had been having sexual intercourse with him in his rental house at the Okenge Trading center. She said they used to have sex every day at 10.00pm and the Appellant could escort her back home at 4.00am. That when her mother inquired about the relationship she denied. That on 8 th April 2022, her mother went to the Appellant’s house and found her with the Appellant. She said they were listening to music before having sex when they were found. PW1 said that the Appellant used to run pool table at the trading center and he knew she was a student.
That when the mother found them, they were taken to Nyatike Police Station where they were locked up and later taken to Macalder Sub-County Hospital. She identified treatment notes - MFI P2 and P3 form MFI P3 which was duly filled. She said that the Appellant used to live alone and she loved him so much.
In cross examination she said she met the Appellant at Okenge Shopping Center and she told him she was 13 years old. She also said that she told the Appellant that she was a student.
She said she used to spend the night with her very young brothers who did not realize her activities.
PW2 Daniel Thoroa the Complainant’s father testified that there were rumours that the Appellant had an affair with his daughter. That while asleep on 8 th April 2022 his wife heard some noise of a door and suspected that their daughter had left. That he gathered family members and then called the Chief. He said there was a time he caught his daughter with the Appellant and he warned him to keep off
That the area Chief came and ordered the Appellant to open the door and he refused from 11.00pm to 3.00am when the Chief broke the door and on entering the Appellant had locked himself inside the bedroom.
That when he confronted his daughter, she admitted that she had been having sex with the Appellant. She said that the Complainant was 17 years as at the time he was testifying in court.
When cross examined by the Appellant PW2 said that he did not see the Appellant come to collect the Complainant but they found him with the Complainant in his house. He said he had complained to the Assistant Chief, Chief and the police.
PW3 John Volta Akar testified that he was Chief of North East Kadem Location. That on 9 th April 2022, he received a call from a resident that there was a young girl who was sleeping at a man’s house within the trading center. He was told the residence had been besieged. He reported to the OCS and DC and requested for assistance. He also called the village elder of Dete village to proceed to the scene and establish what was going on.
That on arrival at the scene he found a large crowd surrounding the Appellant’s house. PW3 said that he knew the Appellant who refused to open the door and the Chief was forced to forcefully gain entry.
That inside the house they found the Appellant and the Complainant who were standing near the door. That he escorted the Appellant and the Complainant to the Police Station.
She said that the girl was a student at Owiro Primary School and she confessed that they had sex before sleeping.
PW3 identified the Appellant as the person he found with the minor in his house.
PW4 Caroline Akinyi Tito testified that she was mother to the Complainant and operated a hotel. She said that on 8 th April 2022 the Appellant went to her home at night and picked her daughter who used to spend the night in the kitchen.
She said that her daughter was aged 16 years. That when she learnt that the Appellant used to pick her daughter at night, she called him and asked why he was having a relationship with her daughter and he knew she was a student. PW4 said she knew the Appellant was married but had separated from his wife.
That when she inquired from her daughter about the relationship she denied. That the Appellant told PW4 to report to the authorities if she thought he had an affair with her daughter.
That on 8 th April 2022 his wife heard the door to the kitchen being opened and the Complainant left. That in company of PW2 the father of the Complainant they followed to Okenge Center where the Appellant was residing. That she peeped through and saw their daughter sleeping on the mattress with the Appellant. That they called the Village Elder and Chief. That the Appellant shifted his position to a corner and refused to open the door. That the wall was drilled to create a hole which was used to access the latch and the door was opened. That the Appellant and the Complainant were arrested and taken to the police station.
That the Complainant was taken to Macalder Dispensary on 9 th April 2022 and she was treated.
PW 4 said that the Complainant was born in 2006 and she identified her birth Certificate.
She identified the Appellant as the person she found sleeping on a mattress with her daughter.
She said that she did not fabricate the Appellant because of a food debt. She said the Appellant did not owe her any money. She said the Appellant used to eat in her hotel and pay. She said that the Appellant was a tenant in a plot with other tenants.
She said that it is when the Complainant was examined that it was found she was sick.
PW5 Bernard Okenge Ouma testified that he was a village elder and that on 8 th April 2022 the parents of the Complainant called him and reported that they wanted him to assist them arrest the Appellant after they found him with their daughter.
PW5 said that the Appellant had locked himself in the house and refused to open. He said that he was with the Chief and they drilled the wall to the house to access the lock in the house and managed to open. That upon gaining entry they found the Appellant and the Complainant. They were arrested, tied and escorted to Nyatike Police Station.
PW5 said he had known both the Appellant and the Complainant from birth.
He identified the Appellant in the dock as the one they arrested. He said that he had never handled any case involving the Appellant and the Complainant previously.
In cross examination, PW5 said that he had known the Appellant since childhood. He said that the parents of the Complainant called him and also called the Chief. He also said that the Chief also called him and he found the Chief already at the scene. He said the family members of the Complainant’s father were at scene.
In re-examination he said he and the Chief were not related to the Complainant’s family. He said that the Appellant stayed in a plot occupied by other tenants.
PW6 Joshua Moseti Clinical Officer at Macalder Sub-County Hospital in Nyatike testified that he examined the Complainant and the Appellant on 9 th April 2022 when they were presented with history of defilement.
PW6 said that on examination the Complainant had foul smelling discharge on external genitalia and valva extending to the vaginal orifice. He said that the Complainants hymen was missing and she was not bleeding. That Laboratory tests revealed pus cells and epithelial cells. He said the Complainant was HIV -ve. He said epithelial cells was an indication of infection or injuries.
That examination of the Appellant did not reveal any injuries in the genitalia and laboratory tests were also negative.
PW6 said he filled PRC form, P3 for both the Appellant and the Complainant. He produced the exhibits.
The investigating Officer did not attend to testify and the Prosecution closed their case.
When the Appellant was placed on his defence he gave sworn statement and said that he did not commit the offence. He said that the Complainant was found in his barber shop and not at his residence and he did not know how she got to his place of business. He said that the Chief went to his place and called him and when he opened he found a crowd of people who entered his house and conducted search and asked where she was but he did not know whom they were asking for. That the Chief called the youth who tied him and he was taken to the shopping center where he was doing business and the padlock to his shop was broken and the Complainant was found therein.
The Appellant said further that he did not know the Complainant. He was then taken to Nyatike Police Station together with the Complainant.
That a lady who was among the crowd asked if he could remember about the 50,000/=and when he confirmed in the affirmative, she told him that she had warned him the issue of the money would put him in trouble.
That at 3.00am he was taken to the police station in a taxi. That at the Police Station he heard those who had arrested him say he was found with the girl in his house. That the girl was forced to say that she was found in the Appellant’s house.
That when they were both taken to hospital the doctor said he was not sick. He said he was not on any medication.
The Appellant said that on 11 th April 2022 he was arraigned in court and charges read to him and he denied.
In cross examination the Appellant said that the Complainant was found in his business premises. He said he did not know the Complainant before.
He said he knew Caroline who operated a hotel at the shopping center. He said they were neighbours at the shopping center for 2 years. He said he had never seen the Complainant.
He also said that the welder who was his next neighbor at the shopping center was not at work.
He also said the Chief went to his house and his parents were not at home.
He said he heard the Complainant testify but it was not true that they knew each other. He said she was forced to say she was his girlfriend.
The appeal herein was canvassed by way of written submissions.
In the Appellant’s undated submissions, he said that the Trial Court did not comply with the provisions of Article 50(2)(g) and (h) of he Constitution of Kenya 2010.
He said that it is only at the time the charge sheet was amended that the Trial Court talked about the provision under Article 50(2) of the Constitution but did not go further to elaborate to him the meaning of the provision to enable him make a stand as it was the first time, he was attending court and because he was confused, he proceeded without an advocate.
The Appellant further complained that the Trial Court erred in subjecting the Complainant to voire dire examination against the provisions of Section 19 of the oaths and Statutory Declarations Act.
The Appellant further submitted that the Complainant’s age was not ascertained as required by the law as the Complainant said she was 13 years old whereas PW2 said the Complainant was 17 years old and PW4 said the Complainant was 16 years. He said that the P3 form indicated that the Complainant was 15 years.
The Appellant further said that when the charge was amended, he was not supplied with the copy of the charge sheet and he did not ask for it as he was not aware he was entitled to a copy of the amended charge sheet and this was against provisions of Article 50(2) (j0 of the Constitution.
Further the Appellant submitted that when the case was taken over by another magistrate, he asked that the Complainant’s mother be recalled but his prayer was not allowed.
The Appellant said that when he was examined his results showed he had no infection whereas the Complainant was found to be having epithelial cells and this shows that there was no penetration proved by the prosecution.
Finally, the Appellant submitted that the investigating Officer did not testify to confirm circumstances under which he was arrested. He said the rest of the witnesses gave evidence with bad motive to fix him for reasons he raised in cross examination of PW4
Mr. Oimbo Counsel for the Respondent also confirmed having filed submissions in the CTS dated 12 th March 2025.
The Respondent submitted that under Section 107 of the Evidence Act, the prosecution bears the burden of proof on every element in a criminal charge. The prosecution must discharge this burden beyond reasonable doubt.
The Appellant herein was charged with the offence of defilement contrary to section 8(1)
(4) of the sexual offences act which provides, "A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. ".
It was submitted that to prove the offence, the following ingredients ought to have been proved in order to sustain a conviction against the appellant.
a) Proof of penetration
b) Age of the victim
c) Positive identification of the assailant
The Respondent drew the court’s attention to the definition of penetration_under Section 2 (1) of the Sexual Offences Act No.3 of 2006 as follows: -
“penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;" Under the same section, Genital Organs are defined as follows: "includes the whole or part of male or female genital organs and for purposes of this Act includes the anus.
It was submitted that the testimony of the victim is corroborated by Pw6 who examined her and produced the PRC form and treatment notes and indicated that on external genitalia her valva was extending to the vaginal orifice, she had no hymen page 25 line 6-8.
It was the Respondent’s submission that with regard to Penetration, the testimony of the victim was cogent. Her testimony is corroborated by the testimony of PW6 who examined her.
On the issue of age the Respondent submitted that PW4 testified that the minor was born in 2006 and she identified the minor's birth certificate marked as MFI 2. The court was urged to take into account the testimony of PW1l, who indicated to the court that she was 13 years old and had disclosed it to the Appellant and a student when she and the Appellant started the relationship as shown at page 8 line 26 and page 9 line 1.
It was submited that Section 2 of the Children Act 2001 defines a child as any human being under the age of eighteen years and that the victim was below 18 years during the incident. The prosecution therefore proved beyond any reasonable doubt that the victim was 16 years old at the time of the incident.
On identification of the perpetrator, it was submitted that t he victim testified that the Appellant was her boyfriend and that the relationship started in May 2020. It was her testimony that they used to have sex every day at 10.00pm and the Appellant would escort her back at 4.00am. It is in no doubt that she could identify the Appellant and therefore proof of identification of the perpetrator was met.
In regards to the Appellant's submissions that his constitutional rights were violated, it was submitted that as much as information of the right under Article 50(2) (g) and (h) of the Constitution was not recorded, it is criminal practice and procedure that all accused persons are normally asked and if they need an advocate or if they can afford one. Further he was informed of the said right once the charge sheet was amended. He was therefore not prejudiced.
On the submission that the court erred in law by conducting voire dire examination on the complainant thereby against section 19 of the Oaths and Statutory Declarations Act,it was submitted thatbon page 7 line 24 the complainant was assessed by the trial court after which she gave her testimony. The Appellant equally exercised his right to cross examine her.
The Respondent invited the court to dismiss the Appeal, because the prosecution sufficiently proved the offence of defilement.
ANALYSIS AND DETERMINATION
As a first appellate court, the duty of this court is to re-evaluate the entire evidence afresh, draw its own conclusions, and bear in mind that it neither saw nor heard the witnesses testify. This principles was set in the case of Okeno v Republic [1972] EA 32 . Having reconsidered the record of the trial court, the grounds of appeal and the rival submissions the issues for determination are:-
whether the Appellant's right to a fair trial under Article 50(2)(g) and (h) of the Constitution was violated;
ii. whether the alleged failure to supply the amended charge sheet occasioned prejudice;
iii. whether the complainant's evidence was properly received following the voire dire examination;
iv. whether the age of the complainant was proved beyond reasonable doubt;
v. whether penetration was proved;
vi. whether the Appellant was positively identified as the person who committed the offence; and
viii. whether the sentence is excessive and harsh in the circumstances
On alleged violation of Article 50(2)(g) and (h) of the Constitution, the same guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. Article 50(2)(h) guarantees the right to have an advocate assigned by the State at State expense where substantial injustice would otherwise result. The duty of the court to inform an unrepresented accused person of these rights is further recognized in section 43 of the Legal Aid Act. In determining whether substantial injustice is likely to result, the court is required to consider, among other matters, the severity of the charge and sentence, the complexity of the case and the accused person's capacity to defend himself.
The Supreme Court in Republic v Karisa Chengo & 2 Others [2017] eKLR made it clear that the right to State-funded legal representation is not an automatic right in every criminal case. The critical question is whether substantial injustice would otherwise result. Relevant considerations include the seriousness of the offence, severity of the sentence, ability to pay for representation, literacy, complexity of the charge and other circumstances of the accused.
The Appellant contends that the trial court only referred to Article 50(2) when the charge was amended and did not adequately explain the right to him. He submits that he was appearing in court for the first time, was confused and proceeded without an advocate.
This court has carefully considered this complaint. There is an important distinction between the right to be informed of the right to counsel under Article 50(2)(g), which applies to every accused person, and the right to State-funded counsel under Article 50(2)(h), which arises where substantial injustice would otherwise result.
The record as presented to this Court does not demonstrate that the Appellant was informed promptly, at the commencement of the proceedings, of his right to choose and be represented by an advocate. That was an omission on the part of the trial court. The obligation is placed upon the court and cannot simply be left to the accused to discover for himself.
However, a breach of the duty to inform does not, in every case, automatically lead to an acquittal. The Court must examine the circumstances and determine whether the omission resulted in substantial injustice or actual prejudice to the accused. The current jurisprudence recognizes that an accused who understood the charge, effectively cross-examined witnesses and mounted a coherent defence may not necessarily have suffered substantial injustice merely because the record did not demonstrate that he was informed of the right to counsel.
In the present case, the Appellant participated actively in the proceedings. He cross-examined the prosecution witnesses, challenged their evidence on material aspects, and subsequently gave sworn testimony in which he set out his version of events. His defence was not shut out. He has also not identified any particular aspect of the trial which he was unable to conduct because of the absence of counsel.
The charge was serious and attracted a substantial custodial sentence. Consequently, the trial court ought to have undertaken the necessary inquiry concerning legal representation. Nevertheless, having considered the entire proceedings, it is noted and the Appellant confirmed that when the charge was amended the Trial court informed him of the right to legal representation of his choice under Article 50(2) and from the record it is indicated he opted to proceed without Counsel. This court is not persuaded that the Appellant has demonstrated that the failure occasioned substantial injustice of such magnitude as to render the entire trial a nullity.
On alleged failure to be supplied with the amended charge sheet, t he Appellant submits that following amendment of the charge, he was not supplied with a copy of the amended charge sheet and did not know that he was entitled to one. Section 214 of the Criminal Procedure Code governs alteration of charges. Where a charge is altered, the accused must be called upon to plead to the altered charge. Further, the accused may demand that witnesses, or any of them, be recalled for purposes of giving evidence afresh or further cross-examination.
The constitutional purpose of these safeguards is obvious: an accused person must know precisely the case he is required to meet and must have an opportunity to respond to any material alteration.
In the present case, the Appellant states that the charge was amended and that the court discussed Article 50 rights. However, from the material placed before this Court, it is not demonstrated that the amendment changed the substance of the allegation in a manner that prejudiced the Appellant's defence. Nor has the Appellant identified any prosecution witness whose evidence he was unable effectively to challenge as a consequence of the amendment.
The Appellant in fact participated in the proceedings after the amendment, cross-examined the witnesses and ultimately defended himself.
In the circumstances, and in the absence of demonstrated prejudice, this court finds that this complaint does not warrant quashing the conviction.
The court subjected the Complainant to voire dire examination before she testified and the Appellant faulted that procedure as it was contrary to provisions of Section 19 of the Oaths and Statutory Declarations Act.
Section 19 concerns the reception of evidence of a child of tender years who does not understand the nature of an oath. The traditional threshold applied by the courts for purposes of Section 19 has been fourteen years, although the Children Act contains a different statutory definition for other purposes.
The Complainant's evidence, however, was that she was aged fifteen years. The charge stated that she was sixteen years old. In either event, if the complainant was fifteen or sixteen years old at the time she testified, she was not a child of tender years requiring a voire dire examination.
The mere fact that the trial court subjected her to an examination before receiving her evidence cannot, however, prejudice the Appellant. The relevant question is whether her evidence was lawfully received and whether it was tested through cross-examination.
The record shows that the trial magistrate conducted the examination, formed the view that the witness possessed sufficient intelligence to give sworn evidence, and thereafter received her evidence on oath. The Appellant was given an opportunity to cross-examine her. This court therefore finds no prejudice arising from the fact that the trial court conducted a voire dire examination. This ground fails.
On whether the age of the Complainant was proved, proof of the age of a complainant is a critical ingredient in a charge of defilement because the age determines the applicable statutory provision and sentence. Age may be proved by a birth certificate, age assessment, medical evidence, or credible oral evidence from the complainant, parent or guardian, provided that the evidence relied upon is credible and reliable.
In the present case, there is apparent inconsistency in the evidence. The charge sheet stated that the complainant was sixteen years old. PW1 stated at one point that she was fifteen years old. PW2 stated that she was seventeen years old when he testified. PW4 stated that she was sixteen years old. The P3 form, according to the Appellant, recorded her age as fifteen years.
PW1 also testified that she was born in 2006 and produced her birth certificate. PW4 similarly identified the birth certificate.
The apparent discrepancy must be considered against the actual date of birth recorded in the birth certificate. The mere fact that different witnesses used different ages does not necessarily destroy the prosecution case if a reliable primary document establishes the complainant's actual date of birth.
The Court of Appeal has recently reaffirmed that age is a question of fact and may be proved through different forms of credible evidence. What matters is that the evidence ultimately establishes the complainant's age at the time of the alleged offence with sufficient reliability.
The Trial Magistrate upon evaluation of the evidence regarding the Complainant’s age made a finding that the Complainant was 16 years old at the time of the alleged offence and thus found the Appellant guilty of the offence of defilement under Section 8(4) of the Act. The discrepancy in age is therefore a matter which the trial court addressed expressly because it had a direct bearing upon the conviction provision and sentence.
Nevertheless, the evidence of PW1, PW2 and PW4 consistently establishes one material fact beyond reasonable doubt: the Complainant was below eighteen years of age at the material time. The dispute is between the sixteen-year and fifteen-year categories, not between a child and an adult.
For purposes of determining whether the offence of defilement was committed, the evidence establishes that the complainant was a child within the meaning of the Sexual Offences Act. The age discrepancy, by itself, does not therefore negate the offence of defilement. It is principally relevant to the proper sub-section and sentence.
On whether penetration was proved, PW1 gave direct evidence that the Appellant was her boyfriend and that they had repeatedly engaged in sexual intercourse at his house since May 2020. More specifically, she stated that on the material occasion they were together at his premises and that they had sexual intercourse.
Her evidence concerning the sexual relationship was not an isolated allegation. PW2 and PW4 testified that there had previously been rumours concerning the relationship and that they had on an earlier occasion found the complainant with the Appellant. PW3, the area Chief, and PW5, the village elder, testified that upon gaining entry into the Appellant's house they found the Appellant and the complainant together.
The Appellant's principal answer was that he did not know the complainant and that she was found at his business premises rather than his residence. That version was materially contradicted by PW1, PW2, PW3, PW4 and PW5.
The medical evidence provided further corroboration. PW6 examined the complainant on 9th April 2022 and observed foul-smellin
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Particulars of the offence are that on the 9th April, 2022 at about 03.00hours at Okenge Village in Nyatike Sub-County within Migori County in the Republic of Kenya unlawfully and intentionally caused his penis to penetrate the vagina of N. A. R. a child aged 16 years.
In the alternative the Appellant was also charged with the offence of committing an indecent Act with a child Contrary to section 11(1) of the Sexual Offences Act no.3 of 2006.
Particulars to the alternative count are that on the 9th April, 2022 at about 03.00hours at Okenge Village in Nyatike Sub-County within Migori County in the Republic of Kenya the Appellant intentionally touched the vagina of N. A. R. a child aged 16 years.
In the second count the Appellant was charged with the offence of kidnapping from lawful custody of the guardian contrary to Section 255 of the Penal Code.
Particulars of the 2 nd count are that on the 9th April, 2022 at about 03.00hours at Okenge Village in Nyatike Sub-County within Migori County in the Republic of Kenya the accused unlawfully kidnapped N. A. R. from the lawful custody of her guardian.
Based on the evidence of six (6) Prosecution witnesses and the Appellant’s sworn testimony the trial Magistrate convicted the Appellant for the offence of defilement contrary to Section 8(4) of the Sexual Offences Act No. 3 of 2006 and was sentenced him to serve 15 years imprisonment.
For the offence of kidnapping under Section 255 of the Penal Code the Appellant was acquitted as the prosecution did not prove as provided that the Complainant was under 16 years.
The Appellant was aggrieved by the conviction and sentence. He lodged an appeal through a petition of appeal dated 9 th August 2024 on the following grounds:
1. That I pleaded not guilty to the charge.
2. That the Trial Court erred in both law and fact by not complying with Articles 50(2) (g) and (h) of the Constitution 2010
3. That the Trial Court erred in both law and facts by not considering that the ingredients of the offence herein were not proved to the required standards in law.
4. That the Trial Court erred in both law and facts by meting a harsh and excessive sentence in the circumstances.
REASONS WHEREFORE the Appellant prayed that the conviction be quashed and sentence set aside.
He also prayed for reduction of the sentence.
PW1 was subjected to voire dire examination and the Trial Magistrate found she was possessed of sufficient intelligence to give sworn statement. She testified and said that she was 15 years old and Grade 8 learner at Owiro Primary School. She identified her birth Certificate to the court.
She said that the Appellant was her boyfriend from May 2020 and she had been having sexual intercourse with him in his rental house at the Okenge Trading center. She said they used to have sex every day at 10.00pm and the Appellant could escort her back home at 4.00am. That when her mother inquired about the relationship she denied. That on 8 th April 2022, her mother went to the Appellant’s house and found her with the Appellant. She said they were listening to music before having sex when they were found. PW1 said that the Appellant used to run pool table at the trading center and he knew she was a student.
That when the mother found them, they were taken to Nyatike Police Station where they were locked up and later taken to Macalder Sub-County Hospital. She identified treatment notes - MFI P2 and P3 form MFI P3 which was duly filled. She said that the Appellant used to live alone and she loved him so much.
In cross examination she said she met the Appellant at Okenge Shopping Center and she told him she was 13 years old. She also said that she told the Appellant that she was a student.
She said she used to spend the night with her very young brothers who did not realize her activities.
PW2 Daniel Thoroa the Complainant’s father testified that there were rumours that the Appellant had an affair with his daughter. That while asleep on 8 th April 2022 his wife heard some noise of a door and suspected that their daughter had left. That he gathered family members and then called the Chief. He said there was a time he caught his daughter with the Appellant and he warned him to keep off
That the area Chief came and ordered the Appellant to open the door and he refused from 11.00pm to 3.00am when the Chief broke the door and on entering the Appellant had locked himself inside the bedroom.
That when he confronted his daughter, she admitted that she had been having sex with the Appellant. She said that the Complainant was 17 years as at the time he was testifying in court.
When cross examined by the Appellant PW2 said that he did not see the Appellant come to collect the Complainant but they found him with the Complainant in his house. He said he had complained to the Assistant Chief, Chief and the police.
PW3 John Volta Akar testified that he was Chief of North East Kadem Location. That on 9 th April 2022, he received a call from a resident that there was a young girl who was sleeping at a man’s house within the trading center. He was told the residence had been besieged. He reported to the OCS and DC and requested for assistance. He also called the village elder of Dete village to proceed to the scene and establish what was going on.
That on arrival at the scene he found a large crowd surrounding the Appellant’s house. PW3 said that he knew the Appellant who refused to open the door and the Chief was forced to forcefully gain entry.
That inside the house they found the Appellant and the Complainant who were standing near the door. That he escorted the Appellant and the Complainant to the Police Station.
She said that the girl was a student at Owiro Primary School and she confessed that they had sex before sleeping.
PW3 identified the Appellant as the person he found with the minor in his house.
PW4 Caroline Akinyi Tito testified that she was mother to the Complainant and operated a hotel. She said that on 8 th April 2022 the Appellant went to her home at night and picked her daughter who used to spend the night in the kitchen.
She said that her daughter was aged 16 years. That when she learnt that the Appellant used to pick her daughter at night, she called him and asked why he was having a relationship with her daughter and he knew she was a student. PW4 said she knew the Appellant was married but had separated from his wife.
That when she inquired from her daughter about the relationship she denied. That the Appellant told PW4 to report to the authorities if she thought he had an affair with her daughter.
That on 8 th April 2022 his wife heard the door to the kitchen being opened and the Complainant left. That in company of PW2 the father of the Complainant they followed to Okenge Center where the Appellant was residing. That she peeped through and saw their daughter sleeping on the mattress with the Appellant. That they called the Village Elder and Chief. That the Appellant shifted his position to a corner and refused to open the door. That the wall was drilled to create a hole which was used to access the latch and the door was opened. That the Appellant and the Complainant were arrested and taken to the police station.
That the Complainant was taken to Macalder Dispensary on 9 th April 2022 and she was treated.
PW 4 said that the Complainant was born in 2006 and she identified her birth Certificate.
She identified the Appellant as the person she found sleeping on a mattress with her daughter.
She said that she did not fabricate the Appellant because of a food debt. She said the Appellant did not owe her any money. She said the Appellant used to eat in her hotel and pay. She said that the Appellant was a tenant in a plot with other tenants.
She said that it is when the Complainant was examined that it was found she was sick.
PW5 Bernard Okenge Ouma testified that he was a village elder and that on 8 th April 2022 the parents of the Complainant called him and reported that they wanted him to assist them arrest the Appellant after they found him with their daughter.
PW5 said that the Appellant had locked himself in the house and refused to open. He said that he was with the Chief and they drilled the wall to the house to access the lock in the house and managed to open. That upon gaining entry they found the Appellant and the Complainant. They were arrested, tied and escorted to Nyatike Police Station.
PW5 said he had known both the Appellant and the Complainant from birth.
He identified the Appellant in the dock as the one they arrested. He said that he had never handled any case involving the Appellant and the Complainant previously.
In cross examination, PW5 said that he had known the Appellant since childhood. He said that the parents of the Complainant called him and also called the Chief. He also said that the Chief also called him and he found the Chief already at the scene. He said the family members of the Complainant’s father were at scene.
In re-examination he said he and the Chief were not related to the Complainant’s family. He said that the Appellant stayed in a plot occupied by other tenants.
PW6 Joshua Moseti Clinical Officer at Macalder Sub-County Hospital in Nyatike testified that he examined the Complainant and the Appellant on 9 th April 2022 when they were presented with history of defilement.
PW6 said that on examination the Complainant had foul smelling discharge on external genitalia and valva extending to the vaginal orifice. He said that the Complainants hymen was missing and she was not bleeding. That Laboratory tests revealed pus cells and epithelial cells. He said the Complainant was HIV -ve. He said epithelial cells was an indication of infection or injuries.
That examination of the Appellant did not reveal any injuries in the genitalia and laboratory tests were also negative.
PW6 said he filled PRC form, P3 for both the Appellant and the Complainant. He produced the exhibits.
The investigating Officer did not attend to testify and the Prosecution closed their case.
When the Appellant was placed on his defence he gave sworn statement and said that he did not commit the offence. He said that the Complainant was found in his barber shop and not at his residence and he did not know how she got to his place of business. He said that the Chief went to his place and called him and when he opened he found a crowd of people who entered his house and conducted search and asked where she was but he did not know whom they were asking for. That the Chief called the youth who tied him and he was taken to the shopping center where he was doing business and the padlock to his shop was broken and the Complainant was found therein.
The Appellant said further that he did not know the Complainant. He was then taken to Nyatike Police Station together with the Complainant.
That a lady who was among the crowd asked if he could remember about the 50,000/=and when he confirmed in the affirmative, she told him that she had warned him the issue of the money would put him in trouble.
That at 3.00am he was taken to the police station in a taxi. That at the Police Station he heard those who had arrested him say he was found with the girl in his house. That the girl was forced to say that she was found in the Appellant’s house.
That when they were both taken to hospital the doctor said he was not sick. He said he was not on any medication.
The Appellant said that on 11 th April 2022 he was arraigned in court and charges read to him and he denied.
In cross examination the Appellant said that the Complainant was found in his business premises. He said he did not know the Complainant before.
He said he knew Caroline who operated a hotel at the shopping center. He said they were neighbours at the shopping center for 2 years. He said he had never seen the Complainant.
He also said that the welder who was his next neighbor at the shopping center was not at work.
He also said the Chief went to his house and his parents were not at home.
He said he heard the Complainant testify but it was not true that they knew each other. He said she was forced to say she was his girlfriend.
The appeal herein was canvassed by way of written submissions.
In the Appellant’s undated submissions, he said that the Trial Court did not comply with the provisions of Article 50(2)(g) and (h) of he Constitution of Kenya 2010.
He said that it is only at the time the charge sheet was amended that the Trial Court talked about the provision under Article 50(2) of the Constitution but did not go further to elaborate to him the meaning of the provision to enable him make a stand as it was the first time, he was attending court and because he was confused, he proceeded without an advocate.
The Appellant further complained that the Trial Court erred in subjecting the Complainant to voire dire examination against the provisions of Section 19 of the oaths and Statutory Declarations Act.
The Appellant further submitted that the Complainant’s age was not ascertained as required by the law as the Complainant said she was 13 years old whereas PW2 said the Complainant was 17 years old and PW4 said the Complainant was 16 years. He said that the P3 form indicated that the Complainant was 15 years.
The Appellant further said that when the charge was amended, he was not supplied with the copy of the charge sheet and he did not ask for it as he was not aware he was entitled to a copy of the amended charge sheet and this was against provisions of Article 50(2) (j0 of the Constitution.
Further the Appellant submitted that when the case was taken over by another magistrate, he asked that the Complainant’s mother be recalled but his prayer was not allowed.
The Appellant said that when he was examined his results showed he had no infection whereas the Complainant was found to be having epithelial cells and this shows that there was no penetration proved by the prosecution.
Finally, the Appellant submitted that the investigating Officer did not testify to confirm circumstances under which he was arrested. He said the rest of the witnesses gave evidence with bad motive to fix him for reasons he raised in cross examination of PW4
Mr. Oimbo Counsel for the Respondent also confirmed having filed submissions in the CTS dated 12 th March 2025.
The Respondent submitted that under Section 107 of the Evidence Act, the prosecution bears the burden of proof on every element in a criminal charge. The prosecution must discharge this burden beyond reasonable doubt.
The Appellant herein was charged with the offence of defilement contrary to section 8(1)
(4) of the sexual offences act which provides, "A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. ".
It was submitted that to prove the offence, the following ingredients ought to have been proved in order to sustain a conviction against the appellant.
a) Proof of penetration
b) Age of the victim
c) Positive identification of the assailant
The Respondent drew the court’s attention to the definition of penetration_under Section 2 (1) of the Sexual Offences Act No.3 of 2006 as follows: -
“penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;" Under the same section, Genital Organs are defined as follows: "includes the whole or part of male or female genital organs and for purposes of this Act includes the anus.
It was submitted that the testimony of the victim is corroborated by Pw6 who examined her and produced the PRC form and treatment notes and indicated that on external genitalia her valva was extending to the vaginal orifice, she had no hymen page 25 line 6-8.
It was the Respondent’s submission that with regard to Penetration, the testimony of the victim was cogent. Her testimony is corroborated by the testimony of PW6 who examined her.
On the issue of age the Respondent submitted that PW4 testified that the minor was born in 2006 and she identified the minor's birth certificate marked as MFI 2. The court was urged to take into account the testimony of PW1l, who indicated to the court that she was 13 years old and had disclosed it to the Appellant and a student when she and the Appellant started the relationship as shown at page 8 line 26 and page 9 line 1.
It was submited that Section 2 of the Children Act 2001 defines a child as any human being under the age of eighteen years and that the victim was below 18 years during the incident. The prosecution therefore proved beyond any reasonable doubt that the victim was 16 years old at the time of the incident.
On identification of the perpetrator, it was submitted that t he victim testified that the Appellant was her boyfriend and that the relationship started in May 2020. It was her testimony that they used to have sex every day at 10.00pm and the Appellant would escort her back at 4.00am. It is in no doubt that she could identify the Appellant and therefore proof of identification of the perpetrator was met.
In regards to the Appellant's submissions that his constitutional rights were violated, it was submitted that as much as information of the right under Article 50(2) (g) and (h) of the Constitution was not recorded, it is criminal practice and procedure that all accused persons are normally asked and if they need an advocate or if they can afford one. Further he was informed of the said right once the charge sheet was amended. He was therefore not prejudiced.
On the submission that the court erred in law by conducting voire dire examination on the complainant thereby against section 19 of the Oaths and Statutory Declarations Act,it was submitted thatbon page 7 line 24 the complainant was assessed by the trial court after which she gave her testimony. The Appellant equally exercised his right to cross examine her.
The Respondent invited the court to dismiss the Appeal, because the prosecution sufficiently proved the offence of defilement.
ANALYSIS AND DETERMINATION
As a first appellate court, the duty of this court is to re-evaluate the entire evidence afresh, draw its own conclusions, and bear in mind that it neither saw nor heard the witnesses testify. This principles was set in the case of Okeno v Republic [1972] EA 32 . Having reconsidered the record of the trial court, the grounds of appeal and the rival submissions the issues for determination are:-
whether the Appellant's right to a fair trial under Article 50(2)(g) and (h) of the Constitution was violated;
ii. whether the alleged failure to supply the amended charge sheet occasioned prejudice;
iii. whether the complainant's evidence was properly received following the voire dire examination;
iv. whether the age of the complainant was proved beyond reasonable doubt;
v. whether penetration was proved;
vi. whether the Appellant was positively identified as the person who committed the offence; and
viii. whether the sentence is excessive and harsh in the circumstances
On alleged violation of Article 50(2)(g) and (h) of the Constitution, the same guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. Article 50(2)(h) guarantees the right to have an advocate assigned by the State at State expense where substantial injustice would otherwise result. The duty of the court to inform an unrepresented accused person of these rights is further recognized in section 43 of the Legal Aid Act. In determining whether substantial injustice is likely to result, the court is required to consider, among other matters, the severity of the charge and sentence, the complexity of the case and the accused person's capacity to defend himself.
The Supreme Court in Republic v Karisa Chengo & 2 Others [2017] eKLR made it clear that the right to State-funded legal representation is not an automatic right in every criminal case. The critical question is whether substantial injustice would otherwise result. Relevant considerations include the seriousness of the offence, severity of the sentence, ability to pay for representation, literacy, complexity of the charge and other circumstances of the accused.
The Appellant contends that the trial court only referred to Article 50(2) when the charge was amended and did not adequately explain the right to him. He submits that he was appearing in court for the first time, was confused and proceeded without an advocate.
This court has carefully considered this complaint. There is an important distinction between the right to be informed of the right to counsel under Article 50(2)(g), which applies to every accused person, and the right to State-funded counsel under Article 50(2)(h), which arises where substantial injustice would otherwise result.
The record as presented to this Court does not demonstrate that the Appellant was informed promptly, at the commencement of the proceedings, of his right to choose and be represented by an advocate. That was an omission on the part of the trial court. The obligation is placed upon the court and cannot simply be left to the accused to discover for himself.
However, a breach of the duty to inform does not, in every case, automatically lead to an acquittal. The Court must examine the circumstances and determine whether the omission resulted in substantial injustice or actual prejudice to the accused. The current jurisprudence recognizes that an accused who understood the charge, effectively cross-examined witnesses and mounted a coherent defence may not necessarily have suffered substantial injustice merely because the record did not demonstrate that he was informed of the right to counsel.
In the present case, the Appellant participated actively in the proceedings. He cross-examined the prosecution witnesses, challenged their evidence on material aspects, and subsequently gave sworn testimony in which he set out his version of events. His defence was not shut out. He has also not identified any particular aspect of the trial which he was unable to conduct because of the absence of counsel.
The charge was serious and attracted a substantial custodial sentence. Consequently, the trial court ought to have undertaken the necessary inquiry concerning legal representation. Nevertheless, having considered the entire proceedings, it is noted and the Appellant confirmed that when the charge was amended the Trial court informed him of the right to legal representation of his choice under Article 50(2) and from the record it is indicated he opted to proceed without Counsel. This court is not persuaded that the Appellant has demonstrated that the failure occasioned substantial injustice of such magnitude as to render the entire trial a nullity.
On alleged failure to be supplied with the amended charge sheet, t he Appellant submits that following amendment of the charge, he was not supplied with a copy of the amended charge sheet and did not know that he was entitled to one. Section 214 of the Criminal Procedure Code governs alteration of charges. Where a charge is altered, the accused must be called upon to plead to the altered charge. Further, the accused may demand that witnesses, or any of them, be recalled for purposes of giving evidence afresh or further cross-examination.
The constitutional purpose of these safeguards is obvious: an accused person must know precisely the case he is required to meet and must have an opportunity to respond to any material alteration.
In the present case, the Appellant states that the charge was amended and that the court discussed Article 50 rights. However, from the material placed before this Court, it is not demonstrated that the amendment changed the substance of the allegation in a manner that prejudiced the Appellant's defence. Nor has the Appellant identified any prosecution witness whose evidence he was unable effectively to challenge as a consequence of the amendment.
The Appellant in fact participated in the proceedings after the amendment, cross-examined the witnesses and ultimately defended himself.
In the circumstances, and in the absence of demonstrated prejudice, this court finds that this complaint does not warrant quashing the conviction.
The court subjected the Complainant to voire dire examination before she testified and the Appellant faulted that procedure as it was contrary to provisions of Section 19 of the Oaths and Statutory Declarations Act.
Section 19 concerns the reception of evidence of a child of tender years who does not understand the nature of an oath. The traditional threshold applied by the courts for purposes of Section 19 has been fourteen years, although the Children Act contains a different statutory definition for other purposes.
The Complainant's evidence, however, was that she was aged fifteen years. The charge stated that she was sixteen years old. In either event, if the complainant was fifteen or sixteen years old at the time she testified, she was not a child of tender years requiring a voire dire examination.
The mere fact that the trial court subjected her to an examination before receiving her evidence cannot, however, prejudice the Appellant. The relevant question is whether her evidence was lawfully received and whether it was tested through cross-examination.
The record shows that the trial magistrate conducted the examination, formed the view that the witness possessed sufficient intelligence to give sworn evidence, and thereafter received her evidence on oath. The Appellant was given an opportunity to cross-examine her. This court therefore finds no prejudice arising from the fact that the trial court conducted a voire dire examination. This ground fails.
On whether the age of the Complainant was proved, proof of the age of a complainant is a critical ingredient in a charge of defilement because the age determines the applicable statutory provision and sentence. Age may be proved by a birth certificate, age assessment, medical evidence, or credible oral evidence from the complainant, parent or guardian, provided that the evidence relied upon is credible and reliable.
In the present case, there is apparent inconsistency in the evidence. The charge sheet stated that the complainant was sixteen years old. PW1 stated at one point that she was fifteen years old. PW2 stated that she was seventeen years old when he testified. PW4 stated that she was sixteen years old. The P3 form, according to the Appellant, recorded her age as fifteen years.
PW1 also testified that she was born in 2006 and produced her birth certificate. PW4 similarly identified the birth certificate.
The apparent discrepancy must be considered against the actual date of birth recorded in the birth certificate. The mere fact that different witnesses used different ages does not necessarily destroy the prosecution case if a reliable primary document establishes the complainant's actual date of birth.
The Court of Appeal has recently reaffirmed that age is a question of fact and may be proved through different forms of credible evidence. What matters is that the evidence ultimately establishes the complainant's age at the time of the alleged offence with sufficient reliability.
The Trial Magistrate upon evaluation of the evidence regarding the Complainant’s age made a finding that the Complainant was 16 years old at the time of the alleged offence and thus found the Appellant guilty of the offence of defilement under Section 8(4) of the Act. The discrepancy in age is therefore a matter which the trial court addressed expressly because it had a direct bearing upon the conviction provision and sentence.
Nevertheless, the evidence of PW1, PW2 and PW4 consistently establishes one material fact beyond reasonable doubt: the Complainant was below eighteen years of age at the material time. The dispute is between the sixteen-year and fifteen-year categories, not between a child and an adult.
For purposes of determining whether the offence of defilement was committed, the evidence establishes that the complainant was a child within the meaning of the Sexual Offences Act. The age discrepancy, by itself, does not therefore negate the offence of defilement. It is principally relevant to the proper sub-section and sentence.
On whether penetration was proved, PW1 gave direct evidence that the Appellant was her boyfriend and that they had repeatedly engaged in sexual intercourse at his house since May 2020. More specifically, she stated that on the material occasion they were together at his premises and that they had sexual intercourse.
Her evidence concerning the sexual relationship was not an isolated allegation. PW2 and PW4 testified that there had previously been rumours concerning the relationship and that they had on an earlier occasion found the complainant with the Appellant. PW3, the area Chief, and PW5, the village elder, testified that upon gaining entry into the Appellant's house they found the Appellant and the complainant together.
The Appellant's principal answer was that he did not know the complainant and that she was found at his business premises rather than his residence. That version was materially contradicted by PW1, PW2, PW3, PW4 and PW5.
The medical evidence provided further corroboration. PW6 examined the complainant on 9th April 2022 and observed foul-smellin
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