(Being an Appeal against the judgment by Hon. C.M. Maundu (CM) in Chief Magistrate’s Court at Bungoma, Case No E026 of 2022, Delivered on 7 th February, 2024)
Introduction:
1. Many are the decisions on the mandate of the First Appellate Court and whereas I may not be able to sample all of them here, it perhaps fits this case, to drop an anchor, even as I delve into the grounds of appeal and the responses, together with the written submissions, so that when I come back to the surface, I do not lose my footing.
2. The Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 held 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.”
3. In Pandya Vs. Republic (1957) EA. (336), the Court of Appeal stated thus: - “On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
4. In Okeno Vs. Republic [1972] EA 32, the Court of Appeal stated: “An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination ( Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see ( Peters V Sunday Post 1978) E.A. 424.”
5. In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
Prosecution Case:
6. PW1 Elias Adoka told court that he is attached to Bungoma county Referral Hospital and he filled a P3 Form for the victim aged 15 years and upon examination, she had a freshly broken hymen, tender swollen vulva and whitish bloody vaginal discharge. He formed an opinion that she was defiled and there was full retraction. The witness produced the P3 Form as Exhibit 1, treatment booklet from the hospital as Exhibit 2 and Age assessment report as Exhibit 3.
7. S.N.(PW2 ) told court that on 2oth February, 2022, the appellant who is her step father did stupefy her with a drug and defiled her that night, an act that was repeated on two consecutive days. The matter was reported to teacher at school and she was taken to Chemwa Dispensary and thereafter to Sikata Patrol Police. The victim said that the appellant is a lion in the village and that she was a virgin at the commission of the offence.
8. Mary Saasita (PW3) told court that the victim was her student and the victim narrated how father defiled her three consecutive days. The teacher talked to her mother who was in Nairobi who in turn informed the victim’s grandmother and the due process of law, ensued.
9. PC Woman Simiyu Christabel (PW4) told court that the matter was reported to the police station on 24 th February, 2022 and upon taking the statements, she referred the victim to the hospital. She was examined and found to have been defiled. The victim confirmed that the perpetrator was her father. The witness went with the appellant to the hospital but he was not examined.
10. Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the main count, with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2026. Particulars of the offence were; on the 20 th February, 2022 at Nangwe Sub- Location within Bungoma Central Sub-County in Bungoma County, intentionally and unlawfully, caused his penis to penetrate the vagina of S.N. a child aged 15 years”
11. In the alternative count, the Appellant was charged with the offence of committing indecent act with a child contrary to section11(1) of the Sexual Offences Act No. 3 of 2006 and particulars of the offence are that on the 20 th February, 2022 at Nangwe Sub-Location within Bungoma Central Sub-County in Bungoma County, intentionally and unlawfully, caused his penis to come into contact with the vagina of S.N. a child aged 15 years.
12. The Appellant Oscar Wekesa Wanjala in his sworn testimony told court that he operates a motor cycle and tuk tuk at Bungoma Town and that prior to the alleged offence, he had issues with the mother to the victim and they separated. She went back for sometimes and she left the home and promised to teach him a lesson.
13. In the judgement delivered by the learned Magistrate, the appellant was aggrieved with the findings and proffered an appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;
a. That the learned trial Magistrate erred in law and fact because did not plead guilty.
b. That the learned trial Magistrate erred in law and fact by entering a conviction despite the contradicting evidence on the prosecution side.
c. That the learned trial Magistrate erred in law and fact to consider that there was no independent witness.
d. That the learned trial Magistrate erred in law and fact by failing to consider forensic evidence.
e. That the learned trial Magistrate erred in law and fact by convicting appellant on the weaknesses of his defence.
f. That the trial court erred in law and fact in not making a finding that the appellant was delayed in custody for more than 24 hours.
g. That the trial court errored in law and fact in failing to interrogate the reliability of the evidence and reached a wrong decision.
h. That the trial court errored in law and fact in failure to give credit the time spent in custody.
i. That the trial court erred in law and fact in not making a finding that the appellant’s right to a fair hearing pursuant to article 50 of te Constitution was contravened.
14. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
15. I have carefully considered the submissions made by the Appellants and the Respondents. I have also reviewed the evidence on record and the relevant law. I propose at this stage to examine the ingredients of the offence of defilement so as to link it up with the evidence adduced and determine whether indeed the offence was proved beyond reasonable doubt.
16. In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed as follows: “In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”
17. In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu), the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).
18. In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the court held: “The critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant.
19. In the case of Kaingu K. Kasamo Vs R CR Appeal No. 504 of 2010 where the Court of Appeal stated: “Age of the victim of the sexual assault under the Sexual Offences act is a critical component. It forms part of the charge which must be proved the same way as penetration in the case of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will depend on the age of the victim. It is legally permissible that age is proved by medical evidence, birth certificate, guardian or parents and by observation or common sense.
20. These are just but a few of the decisions which sets the tempo of my analysis in an offence of defilement. Clearly, three ingredients that must be proved by the prosecution are; age, penetration and positive identification of the assailant. Consequently, the court is obligated to sieve the evidence on record and particularly, on the part of the prosecution and find, if, the three ingredients have been proved beyond reasonable doubt.
21. The first lamentation by the Appellant was on alleged error on the part of the learned magistrate’s finding, that he did not plead guilty. I have perused the primary file and note that the plea was read to the appellant in Kiswahili, a language he understood to which he replied that it was not true and accordingly, plea of not guilty was entered. Consequently, the case proceeded to full trial and the appellant participated fully to its conclusion and even cross examined the witnesses.
22. The 2 nd lamentation was that on contradictions. I have perused the Petition of Appeal, supplementary grounds of appeal and written submissions and note that the appellant has failed to demonstrate and or single instances of contradictions in the proceedings. It is important to remember that Section 107 enjoins he who alleges to prove the facts alleged. It was not enough to throw the petition onto the court without proof thereof.
23. The 3 rd lamentation is that the trial magistrate failed to consider that there was no independent witness. Equally on this ground, the Appellant has not expounded on what he meant by independent witness. I am not able to gather the basis of this ground from the Petition as well as from supplementary or written submissions. To the contrary, I see independent witnesses including PW1- A clinical officer who attended the victim, PW3, a teacher at Nangwe RC Primary School and PC Woman Simiyu Christabel. Having perused the cross examination of the victim and PC Woman Simiyu Christabel, it is clear that the siblings to the victim were asleep when the offence was committed. A 13-year-old was fearful of the appellant.
24. The 4 th lamentation was on failure by the learned Magistrate to consider forensic evidence. The appellant does not expound on what he refers to forensic evidence. The only issue in the proceedings relating to forensic evidence, are the victim’s patient medical notes, age assessment report and the P3 Form which the prosecution witness produced to confirm the commission of the offence, the age of the victim and the degree of the injuries sustained during the ordeal.
25. The 5 th lamentation relates to the violation of the Appellant’s right to be produced in court within 24 hours. He alleges that he was arrested on the 24 th of February 2022 and arraigned on 28 th February, 2022. The appellant referred to various decisions to buttress the complaint herein. I have perused the proceedings of 28 th February, 2022 when the plea was taken and the appellant did not raise any complaint that he has been custody for more than 24 hours in contravention of Article 49(1)(f)(i)(ii). Instead, I gather from the charge sheet, that the accused was arrested on 28 th February, 2022 even though the date appears to have been amended. However, according to PW4 PC Woman Simiyu Christabel, the appellant was arrested on 24 th February, 2022. It is therefore, clear without a doubt that the appellant after his arrest on 24 th February, 2022, he was not arraigned in any other court till 28 th February, 2022.
26. Having perused the proceedings, I note that the Appellant did not raise this issue before the trial court nor was there any demonstration that a four days delay impacted on the fair trial process to the Appellant. In any case, a grievance of such nature has been distilled by the precedents in the case of Julius Kamau Mbugua Vs. Republic Criminal Appeal No. 50 of 2008 where the Court of Appeal, while deliberating on section 72(6) of the former Constitution which is Article 49 in the 2010 Constitution, rendered itself thus: “Moreover, it was not shown that the alleged unlawful detention had any link or effect on the trial process itself or that it caused trial related prejudice to the appellant which affected the validity of the trial. The alleged unlawful detention does not exonerate the appellant from the serious crime he is alleged to have committed. The breach could logically give rise to a civil remedy – money compensation as stipulated in section 72(6). That is the appropriate remedy which the appellant should have sought in a different form.”
27. Equally, the Court of Appeal in Evans Wamalwa Simiyu Vs. Republic Criminal Appeal 118 of 2013 [2016] eKLR the court stated that where an Appellant is not produced in court within twenty-four hours , it would not automatically result in his acquittal. Instead, the Appellant would be at liberty to seek remedy, in damages, for the violation of his constitutional rights. In the premise therefore, I find no basis to consider the issue fatal to the prosecution’s case.
28. The 6 th lamentation is on failure to be supplied with witness statements by the State. The Appellant is basically faulting a violation of the principle of Fair Hearing as set out under Article 50(2) (j) of the Constitution. It is critical to keep in mind that the right to fair hearing is one of the unlimited right to the accused. The Supreme Court of India in Rattiram Vs State of M.P. {2012} 4 SCC 516 , a three-Judge Bench ruled thus: - “Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism.” And again: - “Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused…."
29. In Thomas Patrick Gilbert Cholmondeley Vs Republic, Criminal Appeal No. 116 of 2007 , though decided before the promulgation of the 2010 Constitution this Court aptly expressed itself as follows : “We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under section 77 of our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items. If for any reason the prosecution thinks it ought not to disclose any piece of evidence in its possession, for example, on the basis of public interest immunity, they must put their case before the trial judge or magistrate who will then decide whether the claim by the prosecution not to disclose is or is not justified.” Additionally, in Simon Githaka Malombe Vs R, Criminal Appeal No. 314 of 2010 that; “…. Indeed, the availability of witness statements to the defense has always been a fundamental facet of this guarantee and avoids the spectre of trial by ambush especially in a criminal case. The High Court, sitting as a Constitutional Court had in the case of JUMA Vs REPUBLIC [2007] EA 461 reasoned as follows, and we agree; ‘We hold that the state is obliged to provide an accused person with copies of witness statements and relevant documents. This is included in the package of giving and affording adequate facilities to a person charged with a criminal offence…”
30. In R Vs Ward {1993} 2 ALL ER 557 the Court of Appeal in England was unanimous that:- “The prosecution’s duty at common law is to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. Furthermore, the prosecution were under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure. Pursuant to that duty the prosecution were required to make available the records of all relevant experiments and tests carried out by expert witnesses”
31. I have sampled these decisions, to buttress, the Constitutional imperatives in respect to the unlimited principle of Fair hearing under Article 50 of the Constitution of Kenya.
32. Back to this case, I have perused the primary court file proceedings, and nowhere, did the Appellant lament or raise the issue of witness statements and or other documents. Equally, I note that the Appellant participated in the entire trial by cross examining each and every witness, who testified. The fact that the appellant did not raise the issue at the outset, and or at the pre-trial directions stage, it cannot be raised at the appellate stage. Had he raised it at any time, even after the judgement stage, that error would have been addressed, as by the law established. As it were then, in as much as the appellant is a favourite child of the court, this fact alone, does not enjoin a court to baby sit the appellant in his space.
33. In an orbiter, I may say, that despite heavy load that the Learned Magistrates carry every day, they need to innovate a way to cushion themselves against this technicality, in their proceedings. A repeated sentence in the proceedings in every file handled, in respect to compliance of this imperative, before the trial commences, is not harmful to their health.
34. The 7 th lamentation is that the prosecution case was wanting. I have set the law on defilement in the previous paragraphs of this judgement and upon perusal of the proceedings as well as the judgement, I note that, on age of the victim, the law is now established that it can be proved by medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. The trial Magistrate in this case settled on the Age Assessment Report produced as exhibit 3, which show, that the victim was at the commission of the offence, was aged 14 years old.
35. In respect to penetration, the law is equally distilled that penetration can be partial or full. PW2 told court that the appellant defiled her three times and she lost her virginity. The appellant and the victim stayed in the same house and it was her testimony that the appellant used to put some concoction in the stew to stupefy and defile her. Additionally, upon examination by the Clinical Officer who filled the P3 Form, testified that the victim suffered full penetration as she had fresh injuries on her genetalia. I am convinced beyond doubt, that this element was conclusively, proved.
36. In respect to positive identification by the assailant , the victim’s testimony was clear that the appellant is her step father who defiled her, on three consecutive days. The two and her siblings stay in one house and so there was no evidence that a third person ever committed the offence in the same house apart from the appellant. More significantly, the appellant does not dispute being a step father to the victim. Therefore, on positive identification, it is with no doubt, conclusively proved.
37. The last complaint by the appellant is in respect to Section 333(2) of the Criminal Procedure Code which enacts; A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death. (2) 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 .
38. The provision of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR where the Court of Appeal held that: - “The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19 th June 2012.”
39. It is clear from the provisions that a Judge or a Magistrate in sentencing, is obligated to compute the term in a manner skewed to benefit the convictee with a lesser sentence by giving credit to the period spent in pre-trial detention. The proceedings herein, do not disclose whether the Appellant was released from police custody and indeed from remand the entire period he was arrested to conviction and sentence. The charge sheet show that the appellant was arrested on 24 th August 2022 and spent in custody till 7 th February, 2024. Consequently, t he appellant has a valid complaint in respect to his credit entitlement for the term spent in custody.
Disposal:
a. The Appeal lacks merit and is hereby, dismissed.
b. The committal warrant shall be amended for the time spent in custody computed as One (1) year, Five (5) months and 14 days be credited as a remission for him to have an early release custody.
Delivered virtually this 21 st May, 2026 in the presence of the Appellant, Ms Matere for ODPP and Court Assistant, Aziza Abdi.
Orders Accordingly.
In presence of:
Miss Matere for the ODPPAppellant in personC/A: Aziza Abdi.
2 | Page
Introduction:
1. Many are the decisions on the mandate of the First Appellate Court and whereas I may not be able to sample all of them here, it perhaps fits this case, to drop an anchor, even as I delve into the grounds of appeal and the responses, together with the written submissions, so that when I come back to the surface, I do not lose my footing.
2. The Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 held 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.”
3. In Pandya Vs. Republic (1957) EA. (336), the Court of Appeal stated thus: - “On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
4. In Okeno Vs. Republic [1972] EA 32, the Court of Appeal stated: “An appellant on a first appeal is entitled to expect the evidence as a whole to be subjected to a fresh and exhaustive examination ( Pandya V R 1975) E.A. 336 and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions ( Shantilal M. Ruwala V. R [1957] E.A. 570. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see ( Peters V Sunday Post 1978) E.A. 424.”
5. In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal stated thus: “An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.”
Prosecution Case:
6. PW1 Elias Adoka told court that he is attached to Bungoma county Referral Hospital and he filled a P3 Form for the victim aged 15 years and upon examination, she had a freshly broken hymen, tender swollen vulva and whitish bloody vaginal discharge. He formed an opinion that she was defiled and there was full retraction. The witness produced the P3 Form as Exhibit 1, treatment booklet from the hospital as Exhibit 2 and Age assessment report as Exhibit 3.
7. S.N.(PW2 ) told court that on 2oth February, 2022, the appellant who is her step father did stupefy her with a drug and defiled her that night, an act that was repeated on two consecutive days. The matter was reported to teacher at school and she was taken to Chemwa Dispensary and thereafter to Sikata Patrol Police. The victim said that the appellant is a lion in the village and that she was a virgin at the commission of the offence.
8. Mary Saasita (PW3) told court that the victim was her student and the victim narrated how father defiled her three consecutive days. The teacher talked to her mother who was in Nairobi who in turn informed the victim’s grandmother and the due process of law, ensued.
9. PC Woman Simiyu Christabel (PW4) told court that the matter was reported to the police station on 24 th February, 2022 and upon taking the statements, she referred the victim to the hospital. She was examined and found to have been defiled. The victim confirmed that the perpetrator was her father. The witness went with the appellant to the hospital but he was not examined.
10. Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the main count, with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2026. Particulars of the offence were; on the 20 th February, 2022 at Nangwe Sub- Location within Bungoma Central Sub-County in Bungoma County, intentionally and unlawfully, caused his penis to penetrate the vagina of S.N. a child aged 15 years”
11. In the alternative count, the Appellant was charged with the offence of committing indecent act with a child contrary to section11(1) of the Sexual Offences Act No. 3 of 2006 and particulars of the offence are that on the 20 th February, 2022 at Nangwe Sub-Location within Bungoma Central Sub-County in Bungoma County, intentionally and unlawfully, caused his penis to come into contact with the vagina of S.N. a child aged 15 years.
12. The Appellant Oscar Wekesa Wanjala in his sworn testimony told court that he operates a motor cycle and tuk tuk at Bungoma Town and that prior to the alleged offence, he had issues with the mother to the victim and they separated. She went back for sometimes and she left the home and promised to teach him a lesson.
13. In the judgement delivered by the learned Magistrate, the appellant was aggrieved with the findings and proffered an appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;
a. That the learned trial Magistrate erred in law and fact because did not plead guilty.
b. That the learned trial Magistrate erred in law and fact by entering a conviction despite the contradicting evidence on the prosecution side.
c. That the learned trial Magistrate erred in law and fact to consider that there was no independent witness.
d. That the learned trial Magistrate erred in law and fact by failing to consider forensic evidence.
e. That the learned trial Magistrate erred in law and fact by convicting appellant on the weaknesses of his defence.
f. That the trial court erred in law and fact in not making a finding that the appellant was delayed in custody for more than 24 hours.
g. That the trial court errored in law and fact in failing to interrogate the reliability of the evidence and reached a wrong decision.
h. That the trial court errored in law and fact in failure to give credit the time spent in custody.
i. That the trial court erred in law and fact in not making a finding that the appellant’s right to a fair hearing pursuant to article 50 of te Constitution was contravened.
14. The Respondent and the Appellants filed written submissions and relied on them.
Analysis and Determination:
15. I have carefully considered the submissions made by the Appellants and the Respondents. I have also reviewed the evidence on record and the relevant law. I propose at this stage to examine the ingredients of the offence of defilement so as to link it up with the evidence adduced and determine whether indeed the offence was proved beyond reasonable doubt.
16. In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed as follows: “In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”
17. In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu), the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).
18. In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the court held: “The critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant.
19. In the case of Kaingu K. Kasamo Vs R CR Appeal No. 504 of 2010 where the Court of Appeal stated: “Age of the victim of the sexual assault under the Sexual Offences act is a critical component. It forms part of the charge which must be proved the same way as penetration in the case of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will depend on the age of the victim. It is legally permissible that age is proved by medical evidence, birth certificate, guardian or parents and by observation or common sense.
20. These are just but a few of the decisions which sets the tempo of my analysis in an offence of defilement. Clearly, three ingredients that must be proved by the prosecution are; age, penetration and positive identification of the assailant. Consequently, the court is obligated to sieve the evidence on record and particularly, on the part of the prosecution and find, if, the three ingredients have been proved beyond reasonable doubt.
21. The first lamentation by the Appellant was on alleged error on the part of the learned magistrate’s finding, that he did not plead guilty. I have perused the primary file and note that the plea was read to the appellant in Kiswahili, a language he understood to which he replied that it was not true and accordingly, plea of not guilty was entered. Consequently, the case proceeded to full trial and the appellant participated fully to its conclusion and even cross examined the witnesses.
22. The 2 nd lamentation was that on contradictions. I have perused the Petition of Appeal, supplementary grounds of appeal and written submissions and note that the appellant has failed to demonstrate and or single instances of contradictions in the proceedings. It is important to remember that Section 107 enjoins he who alleges to prove the facts alleged. It was not enough to throw the petition onto the court without proof thereof.
23. The 3 rd lamentation is that the trial magistrate failed to consider that there was no independent witness. Equally on this ground, the Appellant has not expounded on what he meant by independent witness. I am not able to gather the basis of this ground from the Petition as well as from supplementary or written submissions. To the contrary, I see independent witnesses including PW1- A clinical officer who attended the victim, PW3, a teacher at Nangwe RC Primary School and PC Woman Simiyu Christabel. Having perused the cross examination of the victim and PC Woman Simiyu Christabel, it is clear that the siblings to the victim were asleep when the offence was committed. A 13-year-old was fearful of the appellant.
24. The 4 th lamentation was on failure by the learned Magistrate to consider forensic evidence. The appellant does not expound on what he refers to forensic evidence. The only issue in the proceedings relating to forensic evidence, are the victim’s patient medical notes, age assessment report and the P3 Form which the prosecution witness produced to confirm the commission of the offence, the age of the victim and the degree of the injuries sustained during the ordeal.
25. The 5 th lamentation relates to the violation of the Appellant’s right to be produced in court within 24 hours. He alleges that he was arrested on the 24 th of February 2022 and arraigned on 28 th February, 2022. The appellant referred to various decisions to buttress the complaint herein. I have perused the proceedings of 28 th February, 2022 when the plea was taken and the appellant did not raise any complaint that he has been custody for more than 24 hours in contravention of Article 49(1)(f)(i)(ii). Instead, I gather from the charge sheet, that the accused was arrested on 28 th February, 2022 even though the date appears to have been amended. However, according to PW4 PC Woman Simiyu Christabel, the appellant was arrested on 24 th February, 2022. It is therefore, clear without a doubt that the appellant after his arrest on 24 th February, 2022, he was not arraigned in any other court till 28 th February, 2022.
26. Having perused the proceedings, I note that the Appellant did not raise this issue before the trial court nor was there any demonstration that a four days delay impacted on the fair trial process to the Appellant. In any case, a grievance of such nature has been distilled by the precedents in the case of Julius Kamau Mbugua Vs. Republic Criminal Appeal No. 50 of 2008 where the Court of Appeal, while deliberating on section 72(6) of the former Constitution which is Article 49 in the 2010 Constitution, rendered itself thus: “Moreover, it was not shown that the alleged unlawful detention had any link or effect on the trial process itself or that it caused trial related prejudice to the appellant which affected the validity of the trial. The alleged unlawful detention does not exonerate the appellant from the serious crime he is alleged to have committed. The breach could logically give rise to a civil remedy – money compensation as stipulated in section 72(6). That is the appropriate remedy which the appellant should have sought in a different form.”
27. Equally, the Court of Appeal in Evans Wamalwa Simiyu Vs. Republic Criminal Appeal 118 of 2013 [2016] eKLR the court stated that where an Appellant is not produced in court within twenty-four hours , it would not automatically result in his acquittal. Instead, the Appellant would be at liberty to seek remedy, in damages, for the violation of his constitutional rights. In the premise therefore, I find no basis to consider the issue fatal to the prosecution’s case.
28. The 6 th lamentation is on failure to be supplied with witness statements by the State. The Appellant is basically faulting a violation of the principle of Fair Hearing as set out under Article 50(2) (j) of the Constitution. It is critical to keep in mind that the right to fair hearing is one of the unlimited right to the accused. The Supreme Court of India in Rattiram Vs State of M.P. {2012} 4 SCC 516 , a three-Judge Bench ruled thus: - “Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced. A fair trial is required to be conducted in such a manner which would totally ostracize injustice, prejudice, dishonesty and favoritism.” And again: - “Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused…."
29. In Thomas Patrick Gilbert Cholmondeley Vs Republic, Criminal Appeal No. 116 of 2007 , though decided before the promulgation of the 2010 Constitution this Court aptly expressed itself as follows : “We think it is now established and accepted that to satisfy the requirements of a fair trial guaranteed under section 77 of our Constitution, the prosecution is now under a duty to provide an accused person with, and to do so in advance of the trial, all the relevant material such as copies of statements of witnesses who will testify at the trial, copies of documentary exhibits to be produced at the trial and such like items. If for any reason the prosecution thinks it ought not to disclose any piece of evidence in its possession, for example, on the basis of public interest immunity, they must put their case before the trial judge or magistrate who will then decide whether the claim by the prosecution not to disclose is or is not justified.” Additionally, in Simon Githaka Malombe Vs R, Criminal Appeal No. 314 of 2010 that; “…. Indeed, the availability of witness statements to the defense has always been a fundamental facet of this guarantee and avoids the spectre of trial by ambush especially in a criminal case. The High Court, sitting as a Constitutional Court had in the case of JUMA Vs REPUBLIC [2007] EA 461 reasoned as follows, and we agree; ‘We hold that the state is obliged to provide an accused person with copies of witness statements and relevant documents. This is included in the package of giving and affording adequate facilities to a person charged with a criminal offence…”
30. In R Vs Ward {1993} 2 ALL ER 557 the Court of Appeal in England was unanimous that:- “The prosecution’s duty at common law is to disclose to the defence all relevant material, i.e. evidence which tended either to weaken the prosecution case or to strengthen the defence, required the police to disclose to the prosecution all witness statements and the prosecution to supply copies of such witness statements to the defence or to allow them to inspect the statements and make copies unless there were good reasons for not doing so. Furthermore, the prosecution were under a duty, which continued during the pre-trial period and throughout the trial to disclose to the defence all relevant scientific material, whether it strengthened or weakened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure. Pursuant to that duty the prosecution were required to make available the records of all relevant experiments and tests carried out by expert witnesses”
31. I have sampled these decisions, to buttress, the Constitutional imperatives in respect to the unlimited principle of Fair hearing under Article 50 of the Constitution of Kenya.
32. Back to this case, I have perused the primary court file proceedings, and nowhere, did the Appellant lament or raise the issue of witness statements and or other documents. Equally, I note that the Appellant participated in the entire trial by cross examining each and every witness, who testified. The fact that the appellant did not raise the issue at the outset, and or at the pre-trial directions stage, it cannot be raised at the appellate stage. Had he raised it at any time, even after the judgement stage, that error would have been addressed, as by the law established. As it were then, in as much as the appellant is a favourite child of the court, this fact alone, does not enjoin a court to baby sit the appellant in his space.
33. In an orbiter, I may say, that despite heavy load that the Learned Magistrates carry every day, they need to innovate a way to cushion themselves against this technicality, in their proceedings. A repeated sentence in the proceedings in every file handled, in respect to compliance of this imperative, before the trial commences, is not harmful to their health.
34. The 7 th lamentation is that the prosecution case was wanting. I have set the law on defilement in the previous paragraphs of this judgement and upon perusal of the proceedings as well as the judgement, I note that, on age of the victim, the law is now established that it can be proved by medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. The trial Magistrate in this case settled on the Age Assessment Report produced as exhibit 3, which show, that the victim was at the commission of the offence, was aged 14 years old.
35. In respect to penetration, the law is equally distilled that penetration can be partial or full. PW2 told court that the appellant defiled her three times and she lost her virginity. The appellant and the victim stayed in the same house and it was her testimony that the appellant used to put some concoction in the stew to stupefy and defile her. Additionally, upon examination by the Clinical Officer who filled the P3 Form, testified that the victim suffered full penetration as she had fresh injuries on her genetalia. I am convinced beyond doubt, that this element was conclusively, proved.
36. In respect to positive identification by the assailant , the victim’s testimony was clear that the appellant is her step father who defiled her, on three consecutive days. The two and her siblings stay in one house and so there was no evidence that a third person ever committed the offence in the same house apart from the appellant. More significantly, the appellant does not dispute being a step father to the victim. Therefore, on positive identification, it is with no doubt, conclusively proved.
37. The last complaint by the appellant is in respect to Section 333(2) of the Criminal Procedure Code which enacts; A warrant under the hand of the judge or magistrate by whom a person is sentenced to imprisonment, ordering that the sentence shall be carried out in any prison within Kenya, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of the prison and to all other persons for carrying into effect the sentence described in the warrant, not being a sentence of death. (2) 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 .
38. The provision of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR where the Court of Appeal held that: - “The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19 th June 2012.”
39. It is clear from the provisions that a Judge or a Magistrate in sentencing, is obligated to compute the term in a manner skewed to benefit the convictee with a lesser sentence by giving credit to the period spent in pre-trial detention. The proceedings herein, do not disclose whether the Appellant was released from police custody and indeed from remand the entire period he was arrested to conviction and sentence. The charge sheet show that the appellant was arrested on 24 th August 2022 and spent in custody till 7 th February, 2024. Consequently, t he appellant has a valid complaint in respect to his credit entitlement for the term spent in custody.
Disposal:
a. The Appeal lacks merit and is hereby, dismissed.
b. The committal warrant shall be amended for the time spent in custody computed as One (1) year, Five (5) months and 14 days be credited as a remission for him to have an early release custody.
Delivered virtually this 21 st May, 2026 in the presence of the Appellant, Ms Matere for ODPP and Court Assistant, Aziza Abdi.
Orders Accordingly.
In presence of:
Miss Matere for the ODPPAppellant in personC/A: Aziza Abdi.
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