REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRA NO. E021 OF 2024
PETER MUIA KISYILI …………………….………………..……APPELLANT
VERSUS
REPUBLIC ……………………………………………………..RESPONDENT
(Appeal from the conviction and sentence of life imprisonment in TAWA SO (MOB) CR Case no E002 of 2022 (Hon LK Mwendwa PM)
JUDGMENT
1. The appellant was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006. In the alternative he was charged with committing an indecent Act with a child contrary to section 11(1) of the same Act.
2. The particulars were that he committed the offences on 4/2/2022 at Tulimani Location, Iiani Sub-Location in Mbooni West Sub-County within Makueni County he either intentionally caused his penis to penetrate the anus of BKM, a boy aged 3 years old or that he caused his penis to touch the anus of BKM, a boy aged 3 years.
3. He denied both charges on 8/2/2022.
4. The trial court conducted a full trial where the prosecution heard 5 witnesses.
5. The appellant was found to have a case to answer.
6. He was put on his defence but opted to remain silent.
7. The case for the prosecution was that on 4/2/2022 the child went to visit his aunt Faith not far away from his mother’s house – when the mother (Pw1) came back home from fetching water. She went to fetch her child from her aunties place. She found him lying down, he could not walk when he got up he walked with difficulty – on being asked what was wrong he said that Muia had taken him to the toilet, removed his dudu from his trouser, and put it in his anus.
8. The mother checked the child and saw that his pants were wet, she said she saw sperm and could smell that it was sperms. She saw the boy’s anus was wet with sperms – and that there were sperms on the floor in the toilet. She called Pw2 who also saw the mucus like substance on the victim’s anus and shorts.
9. They reported at Iiani police station, were escorted by police to Iiani dispensary and later to Tawa Hospital where the child was treated. The mother identified the P3, the Post Rape Care Form and Treatment notes.
10. the child was 4 years old at the time of trial . After a few questions , whether he knew where he was, whether he knew the day of the week,( he kept quiet) whether he knew why he was in court( to tell the truth) whether he knew after taking the oath he should tell the truth ( yes) The court drew the conclusion that he was intelligent enough to give evidence on oath.
11. He was sworn, testified in Kikamba and pointing at the appellant told the court that he had wronged him by taking him into the toilet and putting his dudu into his anus. The court record shows that he said accused put his penis into his anus
12. The Clinical Officer came to testify on 31/8/2022. The appellant told the court that he did not have witness statement. The court stated that it noted that the accused had been supplied with witness statements in “October 2022.
13. Faith Mbinya was the Clinical Officer at Tawa Sub-County Hospital – that on 6/2/2022 she received the 3 years old child. The mother reported that the child had been locked in a toilet for about 72 hours. On examination the anus had no injuries but had a whitish discharge on the patients trousers. The boys urine was normal and no blood or sperms. She said she made findings of attempted defilement. She said the child was seen at Iiani dispensary before coming to Tawa and that at Iiani dispensary there were deposits of sperms on the thighs and clothing.
14. The parents had reported that the boy was locked in a toilet for 72 hours. She said there was no information that the child was defiled ; She said that at Iiani it was reported that the child was sodomised.
15. Pw5 No. 247519 PC Geoffrey Maina was stationed at Kalawani police station at the time he testified. On 4/2/2022 he was at the report office at Iiani Police Post around 1:00 pm when he heard noises outside. Some people arrived with a person they had tied up. They handed over the person to him, and reported that he had been arrested at Angela’s place where “he admitted to defile (sic) her son”. He booked the report in the OB, then took the boy to Iiani dispensary for medication. He said the boy had a milk like substance on his trouser, and between the thighs. That accused confirmed that he had done it but had not penetrated the boy.
16. The matter was referred to Kikima police station, and Tawa Hospital for Post Rape Care where the form was filled as well as the P3. That the boy told him that the accused took him to the toilet and put his penis from behind in his anus.
17. The accused person did not cross examine any of the prosecution witnesses.
18. The accused was found to have a case to answer.
19. Accused chose to remain silent.
20. After analyzing the evidence, the Learned Trial Magistrate Hon. L.K. Mwendwa, PM found that all the ingredients of defilement were established. He found the accused guilty of defilement contrary to section 8(1)(2 ) (sic) of the SOA No. 3/2006 and convicted him accordingly. He made no findings on the alternative charge of indecent act contrary to section 11(1) of the SOA, Act 3/2006 . Guided by Mangeli v R Criminal Appeal 103/2020 [2023] KECA where Court of Appeal sentenced the appellant to life imprisonment for defilement of a 6 year old – he sentenced the accused to life imprisonment.
21. Aggrieved, the appellant filed this appeal.
The Appeal
22. The appellant raised the following grounds:- that the Trial Magistrate erred due to;
1) Unfairness, unlawful detention, denial of prompt information/Legal Aid Services/ grave violation of the appellants Fundamental Constitutional Rights.
2) Unproportional sentence that does not achieve the objectives of sentencing against Sentencing Guidelines.
3) Rejection of the appellants plausible defence.
The Submissions
23. From the charge sheet the appellant was arrested on 4/2/2022 and arraigned in court on 8/2/2022. The appellant argued that the said holding in custody beyond the 24 hours period before being arraigned in court was unconstitutional and violated his fundamental rights.
24. Relying on a string of cases whose common thread was that at the 60 th minute of the 24th hour delay – every minute thereafter was of detention was an unmitigated illegality because it was a violation of fundamental and constitutional rights of the applicants – (Prof. Mutunga J in Ann Njogu & 5 others vs R Misc. Cr. Appl. 551/2007 ) as cited in Charles Gitari Gatembe & Others v R Cr, Appl. 180/2007, the Court of Appeal in Richard Kamau & Anor v [2009] eKLR , Albanus Mwanzia Mutua v R Cr. Appeal 120/2004; Paul Mwangi Murunga v R Cr. App. 35/ 2006 – The appellant argues his holding beyond the 24 hour window was illegal, that there was an unexplained violation of a Constitutional Rights and he ought to have been acquitted.
25. In response to this submission the Respondent submitted that the “appellant can file a Constitutional Petition before the High Court seeking redress for violation of his rights, if at all those allegations are founded”.
26. At this preliminary stage – I must state that I was taken aback by that submission. The Director of Public Prosecutions – cannot stand aside – at the allegation that an accused person was held beyond the 24 hours Constitutional time before being presented court – and tell that person – against whom the DPP has exercised his constitutional decision to charge – to go file a petition in the High Court for redress.
27. The DPP exercises Constitutional power – power that is donated by the people – the DPP is the gate keeper between the people and any prosecution that has violated the Constitution – the DPP must be the first agency to question whether that person has been brought to court within the requisite time – and has an obligation in the public interest to raise the issue in court where applicable.
28. The Appellant was unrepresented – and the charge sheet clearly stated date of arrest as 4/2/2022. Date brought to court 8/2/2022. A prosecutor signed the charge sheet before presenting it to court. That query ought to have arisen.
29. Of course, the trial court still bore the duty to seek an explanation for the delay in presenting the appellant to court, for the record, as to why an accused person was not presented to court within the Constitutional time as laid down by the Constitution.
30. I have checked the calendar for 2022 – 4/2/2022 was a Friday – so up to 7/2/2022 the accused was held over a weekend – why was he not brought to court on the Monday of 7/2/2022?.There is no explanation for that, and the DPP owes the accused person on explanation why they signed the charge sheet without asking – why the same was presented without an explanation before.
31. Article 157(11) of the Constitution says this:-
“In exercising the powers conferred by this article the DPP shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process”
32. By not holding police officers to account while presenting suspects held beyond the constitutional threshold of Article 49(1) f (i)(ii) ,that is encouraging abuse of the legal process. The accused is owed an explanation long before he goes to the constitutional court for redress.
Right to Legal Representation .
33. The appellant lodged a spirited attack on the fact that he proceeded with the trial without legal representation and that this violated his right to a fair trial. Citing Article 50(2) of the Constitution –
(g) – the right to counsel, the right to be informed of the right promptly.
(h) – the right to be assigned counsel at the expense of the state if substantial injustice would otherwise result – and to be informed if this right promptly and the Legal Aid Act No 6 of 2016 – the appellant argues these provisions ought to be read together with Article 10, Article 27 and Article 159 of the Constitution as these provisions provide for the protection of the marginalized and vulnerable persons, and access to justice for all irrespective of status.
34. He submits that the trial court failed in its duty as required by section 43(1) of the Legal Aid – by failing to promptly inform him of his right to counsel. He cited the Court of Appeal in Evans Wanjala Siibi v R Cr Appeal No. 314/2018 i n the Court of Appeal at Eldoret (Coram: Asike Makhandia, Kiage & Odek, JJ.A) Cr. App. No. 314 of 2018 in where the court
“More concerning is the fact that the appellant was not provided with legal assistance at Government expense. There is no indication even that he was asked whether he could afford a lawyer. He had to defend himself against a charge carrying a lengthy jail term in case of conviction. We think, with respect, that this was such a fundamental omission it went to the very core of the fairness of the appellant’s trial, and vitiated it. The ensuing conviction and sentence were thus null and void for violation of the appellant’s right to a fair trial which , by virtue of Article 25(c) of the Constitution, is non-derogable and not subject to limitation.”
35. He relies on this case for the preposition that failure to inform the appellant of this right was a breach of his fundamental right to fair trial and his trail was null and void.
36. On the circumstance requiring the assignment of counsel at state expense he submitted that courts have stated.
“The gravity of the offence, the nature of the reality/severity of the sentence… whether the accused is a minor or illiterate and not able to understand court proceeding…”
37. He cited Z.W.O v R [2019] eKLR stating that the court opined as:
“Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence… We are of the considered view that in addition to situation where ‘substantial injuries would otherwise result:…”
38. and that in R v. Karisa Chengo & Others (2017) eKLR the Supreme Court held that:
“It is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense of the State will not be accorded in criminal proceedings.
Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:
a) The seriousness of the offence;
b) The severity of the sentence;
c) The ability of the accused person to pay for his own legal representation;
d) …;
e) The literacy of the accused;
f) The complexity of the charge against the accused;”
39. I note from the submissions that the respondent did not respond to this issue yet it is a crucial matter in the case. The record will show that the appellant did not cross-examine, and when put on his defence – he chose to remain silent. The question that begs is, did he understand the proceedings? Did he understand the consequences of his actions?. The record of the trial court is sans any evidence that the appellant was informed of his right to counsel of his choice and if he could not afford one – there is no assessment on record to determine whether or not – substantial injustice would result if he proceeded without legal counsel. Even the time when he pleaded guilty to the charge, the record does not show that there was an explanation from the court to him , of the consequences of such a plea.
40. The charge of defilement of a minor carry with it certain legal complexities, - the voire dire process, the issue of evidence of a minor, the route of the ingredients, and ultimately in this case, the risk of spending the rest of his life in prison –
41. the appellant referred the court to Vincent Macharia v R [2019] eKLR submitting that the Appellant was charged with defilement whose penalty if found guilty was 20 years imprisonment, was informed of his right to legal representation and had difficulties in representing himself in the case and that the court held : “The trial court DID NOT accord the Appellant a fair hearing as the offence the Appellant was facing was serious, the sentence severe and the charge was complex in nature.”
42. He also cited Joseph Kiema Philip v. R, [2019] EKLR stating that the court that ; “There was substantial injustice for the appellant not having been accorded legal representation as he was charged with an offence which carried a severe sentence of life imprisonment .”
43. From the foregoing – it is evident that the appellant found a charge that was complex, whose penalty was a mandatory life sentence – he was entitled to the information about counsel, as of right and if he would not afford one – to be assigned one.
44. That failure rendered his trial unfair. That omission violated a fundamental canon of the criminal trial the right to legal representation. It vitiated the trial.
45. On the ground that the court ignored the appellant’s defence , the record speaks for itself that the accused person opted to keep quiet and hence preferred no defence – there was none to consider – hence trial court cannot be faulted for not considering a defence that was not tendered.
46. On whether or not the prosecution proved their case beyond a reasonable doubt – the appellant argued that the trial was a nullity and urged the court to declare it as such.
47. However, the respondent submitted that the prosecution had proved the ingredients of the charge.
-that the age of the minor was established as having been born on 5/11/18; That considering the definition of penetration under section 2 of the SOA – the accused inserted his penis into the anus of the boy and ejaculated there – that the medical examination found no injuries on the anus – but whitish discharge on the boys trousers – that the medical officer drew conclusion of sodomy
-that the accused was positively identified.
48. I have carefully considered the evidence on record it was very clear from the medical examination that there was no penetration to the anus. There were no injuries/signs of attempt to penetrate the minor – the visible evidence was the whitish discharge which everyone said was sperms/semen of the accused – it appeared to me the evidence that presented was that of an indecent act – where the accused touched the anus of the child with his penis and ejaculated there –
49. The appellant argues that having had an unfair trial the court ought not to consider a retrial. However, as was held in David Musenge v R Cr. Appeal No. 161/2016 a retrial will not be ordered where it will prejudice the accused – it will be ordered where the original trial was illegal/defective, not to give prosecution a chance to fill in gaps – in this case – the trial was defective – because the court failed to comply with both constitutional and statutory commands with regard to legal representation – which is a cornerstone of a fair trial.
On Sentence
50. The appellant argued that the sentence of life imprisonment as set out in the SOA Act No. 3/2006 is unconstitutional. He argued that –
Article 27 of the Constitution as read together with Clause 7 of the Transitional and Consequential Provisions which provides that: “All law in force immediately before the effective date continues in force and shall be construed with the attractions, adaptions, qualifications and exceptions necessary to bring it into conformity with this Constitution.”
That since the provisions of the Sexual Offences Act came into force earlier than the Constitution, the prima facie mandatory sentences must now be construed with the said adaptations, qualifications and exceptions when it comes to the mandatory-minimum sentences and particularly where the said sentences do not take into account the dignity of the individuals and the circumstances of the case as mandated under Section 33 of the Sexual Offences Act and so can also be subject to Section 4 of the Probation of Offender Act
51. I agree with the appellant that the SOA carries within itself an internal contradiction – it carries section 33 which states:-
Evidence of surrounding circumstances and impact of sexual offence
Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove
(a) whether a sexual offence is likely to have been committed—
(i) towards or in connection with the person concerned
(ii); under coercive circumstances referred to in section 43 ; and
(b) for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned
52. It means that the court is to be guided by the circumstances of the case to determine whether and offence was committed, the impact of the offence on the victim and the amount , type etc. of sentence.; yet the law – provides mandatory minimum sentences – denying the court the discretion set out by section 33 – to only increasing the sentence.
53. I also agree, that in my view any sentence – must give room for the eventual rehabilitation of the accused person, and reintegration – the holding of people until death this appears to contradict the purpose for which we set up the Kenya Prison Service:– Kurekebisha na Haki - That explains why courts were quick to take the Muruatetu 1 reasoning to exercise discretion in sentencing sexual offenders.
54. The appellant cites those cases – where courts for a short time applied s. 33 of the SOA and Muruatetu 1 in support of his argument that the existence of the mandatory life imprisonment in the SOA is unconstitutional.
55. The respondent has responded to this submission by citing the Supreme Court in R vs Evans Nyamari Ayako (Petition E002/2024) where it was stated
“In the foregoing we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution of a life sentence, as the effect would create a provision with the force of law while no such jurisdiction is granted…In consequence we find that the Court of Appeal ventured outside its mandate and powers .”
In R vs Joshua Gichuki Mwangi and Others (Petition E018/2023 where the Republic through the Office of the Director of Public Prosecutions filed a petition before the Supreme Court challenging the Court of Appeal’s decision in which it held that, the imposition of mandatory minimum sentences under the Sexual Offences Act Cap 63A Laws of Kenya is unconstitutional. The Supreme Court held;
“ We must also reaffirm that, although sentencing is an exercise of judicial discretion. It is Parliament and not the Judiciary that sets the parameter of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law… However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional based on sound principles and clear guidelines, upon which the Legislature should then act Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law ………However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
56. Let me say this – the Supreme Court put it clearly – the appellant has a point but this point must be made within a constitutional petition challenging the legality of those provisions.
57. So, as much as I agree that there are problems with the SOA – the appellant is seeking a declaration of unconstitutionally. Going by the Supreme Court in R vs Joshua Gichuki Mwangi and Others (Petition E018/2023 he must approach the court in the appropriate manner, bring the appropriate parties where he can seek the appropriate declarations. But as it stands now the sentence of life imprisonment remains a legal sentence – as it sits in statute – hence the trial court did not error to that extent.
Disposition
58. Having considered the appeal – and the submission by both appellant and respondent – It is evident that the appellant challenged his trial in the subordinate court on account of violation of his right to a fair trial. On that ground I am in agreement as demonstrated herein above. I find that the appeal has merit to the extent that the trial court did not accord the appellant a fair trial for failure to comply with Article 50 (2) (f) of the Constitution and section 43(1) of the Legal Aid Act and the trial was defective to that extent.
59. The appellant did not attack the trial on its merits . However, exercising the duty of a 1 st appellate court, I saw that the evidence could not have supported a charge of defilement and there was no penetration. It may however support the one of indecent act with a child.
60. The trial was vitiated and is hereby declared null and void. Considering that there was evidence of commission of an offence the appellant is not entitled to an acquittal .
61. In the circumstances the conviction is quashed . The sentence is set aside. The appellant is to be accorded a fresh trial before a different magistrate other than Hon L. Mwendwa PM.
62. That matter be returned to Tawa Law Courts for hearing and determination and to be given priority considering the nature of the offence.
63. The appellant be presented before the Magistrate in Charge Tawa law courts not later than 7 days hereof for mention, and directions on hearing and determination of the matter .
64. Orders accordingly
JUDGMENT dated signed and delivered virtually at Kabarnet this 12 th June 2026
HON MUMBUA T MATHEKA
JUDGE
In the presence of :-
Chrispol/Dan
Appellant
Mr. Musyoki for State
Judgment HCCRA E021 of 2024 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCRA NO. E021 OF 2024
PETER MUIA KISYILI …………………….………………..……APPELLANT
VERSUS
REPUBLIC ……………………………………………………..RESPONDENT
(Appeal from the conviction and sentence of life imprisonment in TAWA SO (MOB) CR Case no E002 of 2022 (Hon LK Mwendwa PM)
JUDGMENT
1. The appellant was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006. In the alternative he was charged with committing an indecent Act with a child contrary to section 11(1) of the same Act.
2. The particulars were that he committed the offences on 4/2/2022 at Tulimani Location, Iiani Sub-Location in Mbooni West Sub-County within Makueni County he either intentionally caused his penis to penetrate the anus of BKM, a boy aged 3 years old or that he caused his penis to touch the anus of BKM, a boy aged 3 years.
3. He denied both charges on 8/2/2022.
4. The trial court conducted a full trial where the prosecution heard 5 witnesses.
5. The appellant was found to have a case to answer.
6. He was put on his defence but opted to remain silent.
7. The case for the prosecution was that on 4/2/2022 the child went to visit his aunt Faith not far away from his mother’s house – when the mother (Pw1) came back home from fetching water. She went to fetch her child from her aunties place. She found him lying down, he could not walk when he got up he walked with difficulty – on being asked what was wrong he said that Muia had taken him to the toilet, removed his dudu from his trouser, and put it in his anus.
8. The mother checked the child and saw that his pants were wet, she said she saw sperm and could smell that it was sperms. She saw the boy’s anus was wet with sperms – and that there were sperms on the floor in the toilet. She called Pw2 who also saw the mucus like substance on the victim’s anus and shorts.
9. They reported at Iiani police station, were escorted by police to Iiani dispensary and later to Tawa Hospital where the child was treated. The mother identified the P3, the Post Rape Care Form and Treatment notes.
10. the child was 4 years old at the time of trial . After a few questions , whether he knew where he was, whether he knew the day of the week,( he kept quiet) whether he knew why he was in court( to tell the truth) whether he knew after taking the oath he should tell the truth ( yes) The court drew the conclusion that he was intelligent enough to give evidence on oath.
11. He was sworn, testified in Kikamba and pointing at the appellant told the court that he had wronged him by taking him into the toilet and putting his dudu into his anus. The court record shows that he said accused put his penis into his anus
12. The Clinical Officer came to testify on 31/8/2022. The appellant told the court that he did not have witness statement. The court stated that it noted that the accused had been supplied with witness statements in “October 2022.
13. Faith Mbinya was the Clinical Officer at Tawa Sub-County Hospital – that on 6/2/2022 she received the 3 years old child. The mother reported that the child had been locked in a toilet for about 72 hours. On examination the anus had no injuries but had a whitish discharge on the patients trousers. The boys urine was normal and no blood or sperms. She said she made findings of attempted defilement. She said the child was seen at Iiani dispensary before coming to Tawa and that at Iiani dispensary there were deposits of sperms on the thighs and clothing.
14. The parents had reported that the boy was locked in a toilet for 72 hours. She said there was no information that the child was defiled ; She said that at Iiani it was reported that the child was sodomised.
15. Pw5 No. 247519 PC Geoffrey Maina was stationed at Kalawani police station at the time he testified. On 4/2/2022 he was at the report office at Iiani Police Post around 1:00 pm when he heard noises outside. Some people arrived with a person they had tied up. They handed over the person to him, and reported that he had been arrested at Angela’s place where “he admitted to defile (sic) her son”. He booked the report in the OB, then took the boy to Iiani dispensary for medication. He said the boy had a milk like substance on his trouser, and between the thighs. That accused confirmed that he had done it but had not penetrated the boy.
16. The matter was referred to Kikima police station, and Tawa Hospital for Post Rape Care where the form was filled as well as the P3. That the boy told him that the accused took him to the toilet and put his penis from behind in his anus.
17. The accused person did not cross examine any of the prosecution witnesses.
18. The accused was found to have a case to answer.
19. Accused chose to remain silent.
20. After analyzing the evidence, the Learned Trial Magistrate Hon. L.K. Mwendwa, PM found that all the ingredients of defilement were established. He found the accused guilty of defilement contrary to section 8(1)(2 ) (sic) of the SOA No. 3/2006 and convicted him accordingly. He made no findings on the alternative charge of indecent act contrary to section 11(1) of the SOA, Act 3/2006 . Guided by Mangeli v R Criminal Appeal 103/2020 [2023] KECA where Court of Appeal sentenced the appellant to life imprisonment for defilement of a 6 year old – he sentenced the accused to life imprisonment.
21. Aggrieved, the appellant filed this appeal.
The Appeal
22. The appellant raised the following grounds:- that the Trial Magistrate erred due to;
1) Unfairness, unlawful detention, denial of prompt information/Legal Aid Services/ grave violation of the appellants Fundamental Constitutional Rights.
2) Unproportional sentence that does not achieve the objectives of sentencing against Sentencing Guidelines.
3) Rejection of the appellants plausible defence.
The Submissions
23. From the charge sheet the appellant was arrested on 4/2/2022 and arraigned in court on 8/2/2022. The appellant argued that the said holding in custody beyond the 24 hours period before being arraigned in court was unconstitutional and violated his fundamental rights.
24. Relying on a string of cases whose common thread was that at the 60 th minute of the 24th hour delay – every minute thereafter was of detention was an unmitigated illegality because it was a violation of fundamental and constitutional rights of the applicants – (Prof. Mutunga J in Ann Njogu & 5 others vs R Misc. Cr. Appl. 551/2007 ) as cited in Charles Gitari Gatembe & Others v R Cr, Appl. 180/2007, the Court of Appeal in Richard Kamau & Anor v [2009] eKLR , Albanus Mwanzia Mutua v R Cr. Appeal 120/2004; Paul Mwangi Murunga v R Cr. App. 35/ 2006 – The appellant argues his holding beyond the 24 hour window was illegal, that there was an unexplained violation of a Constitutional Rights and he ought to have been acquitted.
25. In response to this submission the Respondent submitted that the “appellant can file a Constitutional Petition before the High Court seeking redress for violation of his rights, if at all those allegations are founded”.
26. At this preliminary stage – I must state that I was taken aback by that submission. The Director of Public Prosecutions – cannot stand aside – at the allegation that an accused person was held beyond the 24 hours Constitutional time before being presented court – and tell that person – against whom the DPP has exercised his constitutional decision to charge – to go file a petition in the High Court for redress.
27. The DPP exercises Constitutional power – power that is donated by the people – the DPP is the gate keeper between the people and any prosecution that has violated the Constitution – the DPP must be the first agency to question whether that person has been brought to court within the requisite time – and has an obligation in the public interest to raise the issue in court where applicable.
28. The Appellant was unrepresented – and the charge sheet clearly stated date of arrest as 4/2/2022. Date brought to court 8/2/2022. A prosecutor signed the charge sheet before presenting it to court. That query ought to have arisen.
29. Of course, the trial court still bore the duty to seek an explanation for the delay in presenting the appellant to court, for the record, as to why an accused person was not presented to court within the Constitutional time as laid down by the Constitution.
30. I have checked the calendar for 2022 – 4/2/2022 was a Friday – so up to 7/2/2022 the accused was held over a weekend – why was he not brought to court on the Monday of 7/2/2022?.There is no explanation for that, and the DPP owes the accused person on explanation why they signed the charge sheet without asking – why the same was presented without an explanation before.
31. Article 157(11) of the Constitution says this:-
“In exercising the powers conferred by this article the DPP shall have regard to the public interest, the interests of the administration of justice and the need to prevent and avoid abuse of the legal process”
32. By not holding police officers to account while presenting suspects held beyond the constitutional threshold of Article 49(1) f (i)(ii) ,that is encouraging abuse of the legal process. The accused is owed an explanation long before he goes to the constitutional court for redress.
Right to Legal Representation .
33. The appellant lodged a spirited attack on the fact that he proceeded with the trial without legal representation and that this violated his right to a fair trial. Citing Article 50(2) of the Constitution –
(g) – the right to counsel, the right to be informed of the right promptly.
(h) – the right to be assigned counsel at the expense of the state if substantial injustice would otherwise result – and to be informed if this right promptly and the Legal Aid Act No 6 of 2016 – the appellant argues these provisions ought to be read together with Article 10, Article 27 and Article 159 of the Constitution as these provisions provide for the protection of the marginalized and vulnerable persons, and access to justice for all irrespective of status.
34. He submits that the trial court failed in its duty as required by section 43(1) of the Legal Aid – by failing to promptly inform him of his right to counsel. He cited the Court of Appeal in Evans Wanjala Siibi v R Cr Appeal No. 314/2018 i n the Court of Appeal at Eldoret (Coram: Asike Makhandia, Kiage & Odek, JJ.A) Cr. App. No. 314 of 2018 in where the court
“More concerning is the fact that the appellant was not provided with legal assistance at Government expense. There is no indication even that he was asked whether he could afford a lawyer. He had to defend himself against a charge carrying a lengthy jail term in case of conviction. We think, with respect, that this was such a fundamental omission it went to the very core of the fairness of the appellant’s trial, and vitiated it. The ensuing conviction and sentence were thus null and void for violation of the appellant’s right to a fair trial which , by virtue of Article 25(c) of the Constitution, is non-derogable and not subject to limitation.”
35. He relies on this case for the preposition that failure to inform the appellant of this right was a breach of his fundamental right to fair trial and his trail was null and void.
36. On the circumstance requiring the assignment of counsel at state expense he submitted that courts have stated.
“The gravity of the offence, the nature of the reality/severity of the sentence… whether the accused is a minor or illiterate and not able to understand court proceeding…”
37. He cited Z.W.O v R [2019] eKLR stating that the court opined as:
“Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence… We are of the considered view that in addition to situation where ‘substantial injuries would otherwise result:…”
38. and that in R v. Karisa Chengo & Others (2017) eKLR the Supreme Court held that:
“It is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense of the State will not be accorded in criminal proceedings.
Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:
a) The seriousness of the offence;
b) The severity of the sentence;
c) The ability of the accused person to pay for his own legal representation;
d) …;
e) The literacy of the accused;
f) The complexity of the charge against the accused;”
39. I note from the submissions that the respondent did not respond to this issue yet it is a crucial matter in the case. The record will show that the appellant did not cross-examine, and when put on his defence – he chose to remain silent. The question that begs is, did he understand the proceedings? Did he understand the consequences of his actions?. The record of the trial court is sans any evidence that the appellant was informed of his right to counsel of his choice and if he could not afford one – there is no assessment on record to determine whether or not – substantial injustice would result if he proceeded without legal counsel. Even the time when he pleaded guilty to the charge, the record does not show that there was an explanation from the court to him , of the consequences of such a plea.
40. The charge of defilement of a minor carry with it certain legal complexities, - the voire dire process, the issue of evidence of a minor, the route of the ingredients, and ultimately in this case, the risk of spending the rest of his life in prison –
41. the appellant referred the court to Vincent Macharia v R [2019] eKLR submitting that the Appellant was charged with defilement whose penalty if found guilty was 20 years imprisonment, was informed of his right to legal representation and had difficulties in representing himself in the case and that the court held : “The trial court DID NOT accord the Appellant a fair hearing as the offence the Appellant was facing was serious, the sentence severe and the charge was complex in nature.”
42. He also cited Joseph Kiema Philip v. R, [2019] EKLR stating that the court that ; “There was substantial injustice for the appellant not having been accorded legal representation as he was charged with an offence which carried a severe sentence of life imprisonment .”
43. From the foregoing – it is evident that the appellant found a charge that was complex, whose penalty was a mandatory life sentence – he was entitled to the information about counsel, as of right and if he would not afford one – to be assigned one.
44. That failure rendered his trial unfair. That omission violated a fundamental canon of the criminal trial the right to legal representation. It vitiated the trial.
45. On the ground that the court ignored the appellant’s defence , the record speaks for itself that the accused person opted to keep quiet and hence preferred no defence – there was none to consider – hence trial court cannot be faulted for not considering a defence that was not tendered.
46. On whether or not the prosecution proved their case beyond a reasonable doubt – the appellant argued that the trial was a nullity and urged the court to declare it as such.
47. However, the respondent submitted that the prosecution had proved the ingredients of the charge.
-that the age of the minor was established as having been born on 5/11/18; That considering the definition of penetration under section 2 of the SOA – the accused inserted his penis into the anus of the boy and ejaculated there – that the medical examination found no injuries on the anus – but whitish discharge on the boys trousers – that the medical officer drew conclusion of sodomy
-that the accused was positively identified.
48. I have carefully considered the evidence on record it was very clear from the medical examination that there was no penetration to the anus. There were no injuries/signs of attempt to penetrate the minor – the visible evidence was the whitish discharge which everyone said was sperms/semen of the accused – it appeared to me the evidence that presented was that of an indecent act – where the accused touched the anus of the child with his penis and ejaculated there –
49. The appellant argues that having had an unfair trial the court ought not to consider a retrial. However, as was held in David Musenge v R Cr. Appeal No. 161/2016 a retrial will not be ordered where it will prejudice the accused – it will be ordered where the original trial was illegal/defective, not to give prosecution a chance to fill in gaps – in this case – the trial was defective – because the court failed to comply with both constitutional and statutory commands with regard to legal representation – which is a cornerstone of a fair trial.
On Sentence
50. The appellant argued that the sentence of life imprisonment as set out in the SOA Act No. 3/2006 is unconstitutional. He argued that –
Article 27 of the Constitution as read together with Clause 7 of the Transitional and Consequential Provisions which provides that: “All law in force immediately before the effective date continues in force and shall be construed with the attractions, adaptions, qualifications and exceptions necessary to bring it into conformity with this Constitution.”
That since the provisions of the Sexual Offences Act came into force earlier than the Constitution, the prima facie mandatory sentences must now be construed with the said adaptations, qualifications and exceptions when it comes to the mandatory-minimum sentences and particularly where the said sentences do not take into account the dignity of the individuals and the circumstances of the case as mandated under Section 33 of the Sexual Offences Act and so can also be subject to Section 4 of the Probation of Offender Act
51. I agree with the appellant that the SOA carries within itself an internal contradiction – it carries section 33 which states:-
Evidence of surrounding circumstances and impact of sexual offence
Evidence of the surrounding circumstances and impact of any sexual offence upon a complainant may be adduced in criminal proceedings involving the alleged commission of a sexual offence where such offence is tried in order to prove
(a) whether a sexual offence is likely to have been committed—
(i) towards or in connection with the person concerned
(ii); under coercive circumstances referred to in section 43 ; and
(b) for purposes of imposing an appropriate sentence, the extent of the harm suffered by the person concerned
52. It means that the court is to be guided by the circumstances of the case to determine whether and offence was committed, the impact of the offence on the victim and the amount , type etc. of sentence.; yet the law – provides mandatory minimum sentences – denying the court the discretion set out by section 33 – to only increasing the sentence.
53. I also agree, that in my view any sentence – must give room for the eventual rehabilitation of the accused person, and reintegration – the holding of people until death this appears to contradict the purpose for which we set up the Kenya Prison Service:– Kurekebisha na Haki - That explains why courts were quick to take the Muruatetu 1 reasoning to exercise discretion in sentencing sexual offenders.
54. The appellant cites those cases – where courts for a short time applied s. 33 of the SOA and Muruatetu 1 in support of his argument that the existence of the mandatory life imprisonment in the SOA is unconstitutional.
55. The respondent has responded to this submission by citing the Supreme Court in R vs Evans Nyamari Ayako (Petition E002/2024) where it was stated
“In the foregoing we find that the Court of Appeal ought not to have proceeded to set a term sentence of thirty (30) years as a substitution of a life sentence, as the effect would create a provision with the force of law while no such jurisdiction is granted…In consequence we find that the Court of Appeal ventured outside its mandate and powers .”
In R vs Joshua Gichuki Mwangi and Others (Petition E018/2023 where the Republic through the Office of the Director of Public Prosecutions filed a petition before the Supreme Court challenging the Court of Appeal’s decision in which it held that, the imposition of mandatory minimum sentences under the Sexual Offences Act Cap 63A Laws of Kenya is unconstitutional. The Supreme Court held;
“ We must also reaffirm that, although sentencing is an exercise of judicial discretion. It is Parliament and not the Judiciary that sets the parameter of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law… However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional based on sound principles and clear guidelines, upon which the Legislature should then act Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law ………However, in the special circumstances of a declaration of unconstitutionality, the process is reversed.
56. Let me say this – the Supreme Court put it clearly – the appellant has a point but this point must be made within a constitutional petition challenging the legality of those provisions.
57. So, as much as I agree that there are problems with the SOA – the appellant is seeking a declaration of unconstitutionally. Going by the Supreme Court in R vs Joshua Gichuki Mwangi and Others (Petition E018/2023 he must approach the court in the appropriate manner, bring the appropriate parties where he can seek the appropriate declarations. But as it stands now the sentence of life imprisonment remains a legal sentence – as it sits in statute – hence the trial court did not error to that extent.
Disposition
58. Having considered the appeal – and the submission by both appellant and respondent – It is evident that the appellant challenged his trial in the subordinate court on account of violation of his right to a fair trial. On that ground I am in agreement as demonstrated herein above. I find that the appeal has merit to the extent that the trial court did not accord the appellant a fair trial for failure to comply with Article 50 (2) (f) of the Constitution and section 43(1) of the Legal Aid Act and the trial was defective to that extent.
59. The appellant did not attack the trial on its merits . However, exercising the duty of a 1 st appellate court, I saw that the evidence could not have supported a charge of defilement and there was no penetration. It may however support the one of indecent act with a child.
60. The trial was vitiated and is hereby declared null and void. Considering that there was evidence of commission of an offence the appellant is not entitled to an acquittal .
61. In the circumstances the conviction is quashed . The sentence is set aside. The appellant is to be accorded a fresh trial before a different magistrate other than Hon L. Mwendwa PM.
62. That matter be returned to Tawa Law Courts for hearing and determination and to be given priority considering the nature of the offence.
63. The appellant be presented before the Magistrate in Charge Tawa law courts not later than 7 days hereof for mention, and directions on hearing and determination of the matter .
64. Orders accordingly
JUDGMENT dated signed and delivered virtually at Kabarnet this 12 th June 2026
HON MUMBUA T MATHEKA
JUDGE
In the presence of :-
Chrispol/Dan
Appellant
Mr. Musyoki for State
Judgment HCCRA E021 of 2024 Page 2 of 2