A. Background
1. The appellant, Stephen Kilei Nyumu, was charged before the Senior Principal Magistrate's Court at Tawa with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars alleged that on 29 September 2024 at Ngaaka Village, Nduluku Location in Mbooni East Sub-County within Makueni County, he intentionally and unlawfully caused his penis to penetrate the vagina of CNM, a child aged thirteen years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, founded upon the same date and circumstances.
3. The appellant denied the charges. The prosecution called four witnesses. At the close of the prosecution case, the trial court found that he had a case to answer. He elected to give sworn evidence and did not call any witness. In a judgment delivered on 1 July 2025, Hon. S. Jalang'o, Senior Principal Magistrate, convicted him of defilement under section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced him to twenty years' imprisonment.
4. Aggrieved by the conviction, the appellant lodged a petition of appeal dated 8 July 2025. He complained that the prosecution evidence was marred by material contradictions; that the essential ingredients of defilement were not proved beyond reasonable doubt; and that his rights under Article 50(2)(g) and (h) of the Constitution were violated. He also reserved a general ground to be urged at the hearing.
B. Evidence before the trial court
5. CNM (PW1) testified on oath after a voir dire examination. She stated that she was born on 11 November 2011 and knew the appellant as her neighbour and a regular visitor to her grandmother's home. On 29 September 2024, while collecting firewood with her brother Brian, they encountered the appellant. He was armed with a panga and told her brother to leave. Her brother ran away and hid in a nearby bush.
6. PW1 testified that the appellant held her hand, threatened to harm her if she made noise, led her into the bush, removed her underwear, placed her on the ground and had sex with her. He threatened her against disclosure and left. On reaching home, she noticed bloodstains on her underwear, washed it and bathed. She stated that her teacher subsequently noticed that she had difficulty walking, called her grandmother, and she disclosed the assault. She was taken for medical examination and the matter was reported to the police.
7. Veronica Mutungi (PW2), PW1's grandmother, testified that on 4 October 2024 she received a call from PW1's teacher. She observed that PW1 was walking abnormally. Upon speaking to her, PW1 disclosed that the appellant had defiled her. PW2 reported the matter to the local administration and took PW1 for medical examination. She knew the appellant as a neighbour.
8. No. 239807 PC Vincent Chitemi (PW3), the investigating officer, testified that PW1 reported the matter at Mbumbuni Police Station on 7 October 2024. She narrated that the appellant had chased away her brother while they were collecting firewood, taken her into a bush and sexually assaulted her. PW3 issued a P3 form, visited the scene and caused the appellant to be arrested. He produced PW1's birth notification, showing that she was born on 11 November 2011, as Exhibit 1.
9. Francis Kilonzo (PW4), a clinical officer at Kisau Sub-County Hospital, produced the medical documents prepared by his colleague, whose handwriting and signature he knew. The history recorded was that PW1 had been defiled by a person well known to her. Genital examination revealed that the hymen was broken but not freshly so; the labia had bruises and lacerations; and there was a brownish and whitish foul-smelling discharge. He produced the P3 form and treatment notes.
10. In his sworn defence, the appellant denied the offence. He challenged the prosecution's failure to call PW1's brother and teacher, maintained that no witness had connected him to the offence and asserted that the prosecution case was composed of lies. In cross-examination, however, he acknowledged that PW1 knew him and that he had cross-examined her and the medical witness.
C. Submissions on appeal
11. On 25 May 2026, the appellant was granted seven days within which to file and serve written submissions. Despite that opportunity, he had not filed submissions by the time the Court retired to prepare this judgment.
12. The respondent filed written submissions opposing the appeal. It submitted that PW1's account was consistent and supported by PW2, PW3 and PW4; that age was proved by the birth notification; that penetration was established by PW1's testimony and the medical findings; and that the appellant was recognized as a neighbour well known to PW1.
13. On the alleged violation of Article 50(2)(g) and (h), the respondent argued that the appellant was aware of his right to legal representation, was at liberty to retain counsel or seek legal aid, and effectively represented himself by cross-examining witnesses and presenting a sworn defence. It urged the Court to dismiss the appeal.
14. The appellant's failure to file submissions does not amount to abandonment of the appeal. This Court must determine it on the petition, the trial record and the respondent's submissions, and must independently test the safety of the conviction.
D. Duty of the first appellate court
15. This being a first appeal, the Court is obliged to reconsider and independently evaluate the entire evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. The duty was stated in Okeno v Republic [1972] EA 32 and reiterated in Kiilu & another v Republic [2005] 1 KLR 174.
16. The grounds of appeal raise the following issues: whether age, penetration and the appellant's identity as the perpetrator were proved beyond reasonable doubt; whether contradictions or the failure to call certain witnesses weakened the prosecution case; whether the citation of section 8(2) in the charge sheet, followed by conviction under section 8(3), occasioned prejudice; whether the appellant's rights under Article 50(2)(g) and (h) were violated; whether his defence was properly evaluated; and whether the sentence was lawful.
E. Analysis and determination
Proof of age
17. Age is an essential ingredient of defilement because it establishes that the complainant was a child and determines the applicable punishment. It may be proved by a birth certificate or notification, medical evidence, or credible oral evidence from the child, parent or guardian. See Mwalango Chichoro Mwanjembe v Republic [2016] eKLR.
18. PW1 testified that she was born on 11 November 2011. PW3 produced her birth notification bearing the same date. The offence occurred on 29 September 2024. PW1 was therefore approximately twelve years and ten months old. Although the witnesses variously described her as thirteen or fourteen years old, the documentary evidence established her date of birth. She fell within the twelve-to-fifteen-year bracket under section 8(3) of the Sexual Offences Act.
19. The trial court referred to an immunization card and stated that PW1 was fourteen years old. The proceedings, however, show that the document produced was a birth notification. The misdesc ription and arithmetical error did not alter the applicable statutory age bracket. This Court finds that age was proved beyond reasonable doubt.
Variance between sections 8(2) and 8(3)
20. The charge sheet cited section 8(2), which applies to a child aged eleven years or less, even though its particulars expressly described PW1 as thirteen. The trial court convicted the appellant under section 8(3). A defective statutory citation is not invariably fatal. The controlling question is whether the charge disclosed the factual accusation and whether the defect misled the accused or prejudiced his defence. See Jason Akumu Yongo v Republic [1983] eKLR and Sigilani v Republic [2004] 2 KLR 480.
21. The particulars clearly informed the appellant that the complainant was alleged to be thirteen and described the specific act, date and place. He cross-examined the witnesses on that case and, in his sworn defence, acknowledged that PW1 was a child aged fourteen. The error related to the penalty subsection and did not change the conduct alleged. Conviction under section 8(3) also attracted a lesser punishment than the erroneously cited section 8(2).
22. The appellant was neither misled nor prejudiced. The erroneous citation was curable under section 382 of the Criminal Procedure Code and does not vitiate the conviction.
Proof of penetration
23. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of one person's genital organs into another person's genital organs. It need not be complete and is not invariably dependent upon medical evidence. The Court of Appeal in IAE v Republic [2023] KECA 127 (KLR) affirmed that penetration may be established notwithstanding that the hymen is intact; partial insertion is sufficient.
24. PW1 gave direct evidence that the appellant removed her underwear, placed her on the ground and had sex with her. She noticed bloodstains on her underwear afterward. The medical examination revealed bruises and lacerations on the labia and an abnormal discharge. These findings provided objective support for her account.
25. The trial magistrate stated that a broken hymen was clear proof of penetration and suggested that the complainant's testimony had to be corroborated by medical evidence. Those propositions were expressed too broadly. A broken hymen, particularly one described as not fresh, does not by itself establish when penetration occurred or identify its perpetrator. Conversely, medical corroboration is not an inflexible legal requirement in view of the proviso to section 124 of the Evidence Act.
26. The examination occurred several days after the alleged offence. The non-fresh hymenal break could not, standing alone, prove the incident of 29 September 2024. Nevertheless, PW1's direct account, evaluated together with the recorded bruises and lacerations, proved penetration beyond reasonable doubt.
Recognition of the appellant
27. PW1 knew the appellant as her neighbour and as a regular visitor to her grandmother's home. The appellant similarly acknowledged that PW1 knew him. The case therefore involved recognition, which is ordinarily more reliable than identification of a stranger, although even recognition evidence must be tested carefully. See Anjononi & others v Republic [1980] KLR 59 and Wamunga v Republic [1989] KLR 424.
28. PW1 was with the appellant at close quarters when he held her hand, threatened her, led her into the bush and assaulted her. No fleeting encounter or difficult visual conditions were suggested. An identification parade was unnecessary where the suspect was already well known to the identifying witness.
29. PW2 and PW3 did not witness the act and their evidence could not independently establish the offender's identity. It nevertheless confirmed that PW1 named the appellant in her disclosure and report. The medical history similarly recorded that the assailant was well known to her. The appellant did not establish a grudge or other plausible motive for false implication. His reference during mitigation to a development project or trust fund was neither developed in evidence nor supported.
30. Upon careful evaluation, the Court is satisfied that the evidence of recognition was free from the possibility of honest error and established the appellant as the perpetrator.
Contradictions and uncalled witnesses
31. Not every discrepancy destroys a prosecution case. The question is whether a contradiction concerns a material element and whether, viewed in the whole evidential context, it creates a reasonable doubt. In Erick Onyango Ondeng' v Republic [2014] eKLR, the Court of Appeal emphasized that contradictions warrant rejection only where they are grave and affect the substance of the case.
32. There were variations in the chronology of disclosure. PW1 suggested that her teacher noticed her difficulty walking on the day after the incident; PW2 stated that the teacher called her on 4 October 2024; and the police report was made on 7 October 2024. PW1 also stated in re-examination that the appellant had previously had sex with her several times, although the charge concerned the incident of 29 September 2024.
33. The reference to other incidents was extraneous and could not prove the charged act. The variations concerning the date of disclosure called for caution. They did not, however, alter PW1's core account that on 29 September 2024 the appellant separated her from her brother, took her into a bush and penetrated her. That central account remained consistent in her testimony and in the reports received by PW2 and PW3. The discrepancies did not affect age, penetration or recognition and were not sufficient to raise a reasonable doubt.
34. Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. Under Bukenya & others v Uganda [1972] EA 549, an adverse inference may arise where the prosecution withholds a material witness and the evidence presented is barely adequate. The principle was applied by the Court of Appeal in Kyalo Mwangangi & 2 others v Republic [2019] KECA 611 (KLR). See also Keter v Republic [2007] 1 EA 135.
35. PW1's brother was present at the initial encounter but, according to PW1, ran away and hid before the sexual act. The teacher observed difficulty in PW1's walking and facilitated disclosure but did not witness the offence. Their evidence might have clarified the chronology; neither was indispensable to proof of penetration or identity. The prosecution called the complainant, her grandmother, the investigating officer and a clinical officer. Its evidence was not barely adequate. No adverse inference therefore arises from the failure to call the brother and teacher.
Right to legal representation
36. Article 50(2)(g) guarantees every accused person the right to choose and be represented by an advocate and to be informed of that right promptly. Article 50(2)(h) guarantees representation at State expense where substantial injustice would otherwise result and the right to be promptly informed of that entitlement. The provisions confer related but distinct rights. In David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal explained that State-funded representation depends upon the likelihood of substantial injustice, assessed from such factors as the seriousness and complexity of the case and the accused person's capacity to conduct the defence.
37. The respondent's submission that the appellant could retain counsel or apply for legal aid does not wholly answer Article 50(2)(g). The duty to promptly inform an accused person of the right to counsel rests upon the trial court and is not dependent upon a prior application. The record placed before this Court does not expressly demonstrate that the appellant was promptly informed of that right. That omission is regrettable.
38. The omission does not automatically invalidate the trial. The Court must consider whether it caused actual prejudice or substantial injustice. The appellant understood the charge, followed the evidence, cross-examined all prosecution witnesses on relevant matters, elected to testify on oath and presented his defence. He has not identified any evidence, defence or line of cross-examination that he was unable to pursue because he lacked counsel. Although the charge was serious, the evidential and legal issues were not unusually complex, and the record demonstrates meaningful participation by the appellant.
39. The appellant merely invoked Article 50(2)(g) and (h) in the petition and filed no submissions identifying resulting prejudice. Considering the proceedings as a whole, the Court is not satisfied that the absence of representation prevented him from understanding or answering the case, or that substantial injustice resulted. This ground fails.
Evaluation of the defence
40. The appellant gave sworn evidence denying the offence and challenged the absence of the brother and teacher. The trial magistrate described his evidence as a mere denial. While that treatment was brief, a denial must still be weighed against the prosecution case. The burden of proof remains throughout upon the prosecution and never shifts to the accused: Woolmington v Director of Public Prosecutions [1935] AC 462.
41. On independent reconsideration, the defence did not displace PW1's direct account, the cogent recognition evidence or the medical findings. The Court has not used the weakness of the defence to fill any gap in the prosecution case. The prosecution independently proved every ingredient beyond reasonable doubt. The complaint concerning the defence is therefore without merit.
Sentence
42. Section 8(3) of the Sexual Offences Act prescribes imprisonment for a term of not less than twenty years where the child is between twelve and fifteen years. The twenty-year sentence imposed was lawful. In Republic v Manyeso [2025] KESC 16 (KLR), the Supreme Court affirmed that courts may not substitute sentences prescribed under section 8 with alternatives lacking a legislative foundation. There is no basis for reducing the sentence below the statutory term.
43. The appellant was arrested on 9 October 2024 and remained in custody during the trial. Section 333(2) of the Criminal Procedure Code required that period to be accounted for. In Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, the Court of Appeal explained that taking pre-sentence custody into account requires the sentence to run from the date of arrest where the offender remained in custody.
44. The sentencing remarks do not demonstrate that the trial court accounted for that period. The sentence shall therefore run from 9 October 2024.
F. Disposition
45. Upon independently reconsidering the evidence, the Court finds that the complainant's age, penetration and recognition of the appellant were proved beyond reasonable doubt. The discrepancies and absence of the two uncalled witnesses did not undermine the essential prosecution case. The erroneous citation of section 8(2) was curable and caused no prejudice. The fair-trial complaint did not establish actual prejudice or substantial injustice, and the defence raised no reasonable doubt.
46. The appeal against conviction consequently fails. The twenty-year sentence is lawful, subject only to compliance with section 333(2) of the Criminal Procedure Code.
47. The final orders are:
(a) The appeal against conviction is dismissed.
(b) The appellant's conviction for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act is upheld.
(c) The sentence of twenty years' imprisonment is upheld.
(d) Pursuant to section 333(2) of the Criminal Procedure Code, the sentence shall run from 9 October 2024, being the date on which the appellant was arrested and placed in custody.
It is so ordered.
DELIVERED, DATED AND SIGNED ON THIS 17 TH SEPTEMBER, 2026.
JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-
JUDGE
In the presence of: -
Miss Omol for the State.
Appellant in person.
Court Assistant – Mr. Kibet.
1 | Page MAKUENI CRIMINAL APPEAL NO.E056 OF 2025
1. The appellant, Stephen Kilei Nyumu, was charged before the Senior Principal Magistrate's Court at Tawa with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars alleged that on 29 September 2024 at Ngaaka Village, Nduluku Location in Mbooni East Sub-County within Makueni County, he intentionally and unlawfully caused his penis to penetrate the vagina of CNM, a child aged thirteen years.
2. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, founded upon the same date and circumstances.
3. The appellant denied the charges. The prosecution called four witnesses. At the close of the prosecution case, the trial court found that he had a case to answer. He elected to give sworn evidence and did not call any witness. In a judgment delivered on 1 July 2025, Hon. S. Jalang'o, Senior Principal Magistrate, convicted him of defilement under section 8(1) as read with section 8(3) of the Sexual Offences Act and sentenced him to twenty years' imprisonment.
4. Aggrieved by the conviction, the appellant lodged a petition of appeal dated 8 July 2025. He complained that the prosecution evidence was marred by material contradictions; that the essential ingredients of defilement were not proved beyond reasonable doubt; and that his rights under Article 50(2)(g) and (h) of the Constitution were violated. He also reserved a general ground to be urged at the hearing.
B. Evidence before the trial court
5. CNM (PW1) testified on oath after a voir dire examination. She stated that she was born on 11 November 2011 and knew the appellant as her neighbour and a regular visitor to her grandmother's home. On 29 September 2024, while collecting firewood with her brother Brian, they encountered the appellant. He was armed with a panga and told her brother to leave. Her brother ran away and hid in a nearby bush.
6. PW1 testified that the appellant held her hand, threatened to harm her if she made noise, led her into the bush, removed her underwear, placed her on the ground and had sex with her. He threatened her against disclosure and left. On reaching home, she noticed bloodstains on her underwear, washed it and bathed. She stated that her teacher subsequently noticed that she had difficulty walking, called her grandmother, and she disclosed the assault. She was taken for medical examination and the matter was reported to the police.
7. Veronica Mutungi (PW2), PW1's grandmother, testified that on 4 October 2024 she received a call from PW1's teacher. She observed that PW1 was walking abnormally. Upon speaking to her, PW1 disclosed that the appellant had defiled her. PW2 reported the matter to the local administration and took PW1 for medical examination. She knew the appellant as a neighbour.
8. No. 239807 PC Vincent Chitemi (PW3), the investigating officer, testified that PW1 reported the matter at Mbumbuni Police Station on 7 October 2024. She narrated that the appellant had chased away her brother while they were collecting firewood, taken her into a bush and sexually assaulted her. PW3 issued a P3 form, visited the scene and caused the appellant to be arrested. He produced PW1's birth notification, showing that she was born on 11 November 2011, as Exhibit 1.
9. Francis Kilonzo (PW4), a clinical officer at Kisau Sub-County Hospital, produced the medical documents prepared by his colleague, whose handwriting and signature he knew. The history recorded was that PW1 had been defiled by a person well known to her. Genital examination revealed that the hymen was broken but not freshly so; the labia had bruises and lacerations; and there was a brownish and whitish foul-smelling discharge. He produced the P3 form and treatment notes.
10. In his sworn defence, the appellant denied the offence. He challenged the prosecution's failure to call PW1's brother and teacher, maintained that no witness had connected him to the offence and asserted that the prosecution case was composed of lies. In cross-examination, however, he acknowledged that PW1 knew him and that he had cross-examined her and the medical witness.
C. Submissions on appeal
11. On 25 May 2026, the appellant was granted seven days within which to file and serve written submissions. Despite that opportunity, he had not filed submissions by the time the Court retired to prepare this judgment.
12. The respondent filed written submissions opposing the appeal. It submitted that PW1's account was consistent and supported by PW2, PW3 and PW4; that age was proved by the birth notification; that penetration was established by PW1's testimony and the medical findings; and that the appellant was recognized as a neighbour well known to PW1.
13. On the alleged violation of Article 50(2)(g) and (h), the respondent argued that the appellant was aware of his right to legal representation, was at liberty to retain counsel or seek legal aid, and effectively represented himself by cross-examining witnesses and presenting a sworn defence. It urged the Court to dismiss the appeal.
14. The appellant's failure to file submissions does not amount to abandonment of the appeal. This Court must determine it on the petition, the trial record and the respondent's submissions, and must independently test the safety of the conviction.
D. Duty of the first appellate court
15. This being a first appeal, the Court is obliged to reconsider and independently evaluate the entire evidence and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. The duty was stated in Okeno v Republic [1972] EA 32 and reiterated in Kiilu & another v Republic [2005] 1 KLR 174.
16. The grounds of appeal raise the following issues: whether age, penetration and the appellant's identity as the perpetrator were proved beyond reasonable doubt; whether contradictions or the failure to call certain witnesses weakened the prosecution case; whether the citation of section 8(2) in the charge sheet, followed by conviction under section 8(3), occasioned prejudice; whether the appellant's rights under Article 50(2)(g) and (h) were violated; whether his defence was properly evaluated; and whether the sentence was lawful.
E. Analysis and determination
Proof of age
17. Age is an essential ingredient of defilement because it establishes that the complainant was a child and determines the applicable punishment. It may be proved by a birth certificate or notification, medical evidence, or credible oral evidence from the child, parent or guardian. See Mwalango Chichoro Mwanjembe v Republic [2016] eKLR.
18. PW1 testified that she was born on 11 November 2011. PW3 produced her birth notification bearing the same date. The offence occurred on 29 September 2024. PW1 was therefore approximately twelve years and ten months old. Although the witnesses variously described her as thirteen or fourteen years old, the documentary evidence established her date of birth. She fell within the twelve-to-fifteen-year bracket under section 8(3) of the Sexual Offences Act.
19. The trial court referred to an immunization card and stated that PW1 was fourteen years old. The proceedings, however, show that the document produced was a birth notification. The misdesc ription and arithmetical error did not alter the applicable statutory age bracket. This Court finds that age was proved beyond reasonable doubt.
Variance between sections 8(2) and 8(3)
20. The charge sheet cited section 8(2), which applies to a child aged eleven years or less, even though its particulars expressly described PW1 as thirteen. The trial court convicted the appellant under section 8(3). A defective statutory citation is not invariably fatal. The controlling question is whether the charge disclosed the factual accusation and whether the defect misled the accused or prejudiced his defence. See Jason Akumu Yongo v Republic [1983] eKLR and Sigilani v Republic [2004] 2 KLR 480.
21. The particulars clearly informed the appellant that the complainant was alleged to be thirteen and described the specific act, date and place. He cross-examined the witnesses on that case and, in his sworn defence, acknowledged that PW1 was a child aged fourteen. The error related to the penalty subsection and did not change the conduct alleged. Conviction under section 8(3) also attracted a lesser punishment than the erroneously cited section 8(2).
22. The appellant was neither misled nor prejudiced. The erroneous citation was curable under section 382 of the Criminal Procedure Code and does not vitiate the conviction.
Proof of penetration
23. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of one person's genital organs into another person's genital organs. It need not be complete and is not invariably dependent upon medical evidence. The Court of Appeal in IAE v Republic [2023] KECA 127 (KLR) affirmed that penetration may be established notwithstanding that the hymen is intact; partial insertion is sufficient.
24. PW1 gave direct evidence that the appellant removed her underwear, placed her on the ground and had sex with her. She noticed bloodstains on her underwear afterward. The medical examination revealed bruises and lacerations on the labia and an abnormal discharge. These findings provided objective support for her account.
25. The trial magistrate stated that a broken hymen was clear proof of penetration and suggested that the complainant's testimony had to be corroborated by medical evidence. Those propositions were expressed too broadly. A broken hymen, particularly one described as not fresh, does not by itself establish when penetration occurred or identify its perpetrator. Conversely, medical corroboration is not an inflexible legal requirement in view of the proviso to section 124 of the Evidence Act.
26. The examination occurred several days after the alleged offence. The non-fresh hymenal break could not, standing alone, prove the incident of 29 September 2024. Nevertheless, PW1's direct account, evaluated together with the recorded bruises and lacerations, proved penetration beyond reasonable doubt.
Recognition of the appellant
27. PW1 knew the appellant as her neighbour and as a regular visitor to her grandmother's home. The appellant similarly acknowledged that PW1 knew him. The case therefore involved recognition, which is ordinarily more reliable than identification of a stranger, although even recognition evidence must be tested carefully. See Anjononi & others v Republic [1980] KLR 59 and Wamunga v Republic [1989] KLR 424.
28. PW1 was with the appellant at close quarters when he held her hand, threatened her, led her into the bush and assaulted her. No fleeting encounter or difficult visual conditions were suggested. An identification parade was unnecessary where the suspect was already well known to the identifying witness.
29. PW2 and PW3 did not witness the act and their evidence could not independently establish the offender's identity. It nevertheless confirmed that PW1 named the appellant in her disclosure and report. The medical history similarly recorded that the assailant was well known to her. The appellant did not establish a grudge or other plausible motive for false implication. His reference during mitigation to a development project or trust fund was neither developed in evidence nor supported.
30. Upon careful evaluation, the Court is satisfied that the evidence of recognition was free from the possibility of honest error and established the appellant as the perpetrator.
Contradictions and uncalled witnesses
31. Not every discrepancy destroys a prosecution case. The question is whether a contradiction concerns a material element and whether, viewed in the whole evidential context, it creates a reasonable doubt. In Erick Onyango Ondeng' v Republic [2014] eKLR, the Court of Appeal emphasized that contradictions warrant rejection only where they are grave and affect the substance of the case.
32. There were variations in the chronology of disclosure. PW1 suggested that her teacher noticed her difficulty walking on the day after the incident; PW2 stated that the teacher called her on 4 October 2024; and the police report was made on 7 October 2024. PW1 also stated in re-examination that the appellant had previously had sex with her several times, although the charge concerned the incident of 29 September 2024.
33. The reference to other incidents was extraneous and could not prove the charged act. The variations concerning the date of disclosure called for caution. They did not, however, alter PW1's core account that on 29 September 2024 the appellant separated her from her brother, took her into a bush and penetrated her. That central account remained consistent in her testimony and in the reports received by PW2 and PW3. The discrepancies did not affect age, penetration or recognition and were not sufficient to raise a reasonable doubt.
34. Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. Under Bukenya & others v Uganda [1972] EA 549, an adverse inference may arise where the prosecution withholds a material witness and the evidence presented is barely adequate. The principle was applied by the Court of Appeal in Kyalo Mwangangi & 2 others v Republic [2019] KECA 611 (KLR). See also Keter v Republic [2007] 1 EA 135.
35. PW1's brother was present at the initial encounter but, according to PW1, ran away and hid before the sexual act. The teacher observed difficulty in PW1's walking and facilitated disclosure but did not witness the offence. Their evidence might have clarified the chronology; neither was indispensable to proof of penetration or identity. The prosecution called the complainant, her grandmother, the investigating officer and a clinical officer. Its evidence was not barely adequate. No adverse inference therefore arises from the failure to call the brother and teacher.
Right to legal representation
36. Article 50(2)(g) guarantees every accused person the right to choose and be represented by an advocate and to be informed of that right promptly. Article 50(2)(h) guarantees representation at State expense where substantial injustice would otherwise result and the right to be promptly informed of that entitlement. The provisions confer related but distinct rights. In David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal explained that State-funded representation depends upon the likelihood of substantial injustice, assessed from such factors as the seriousness and complexity of the case and the accused person's capacity to conduct the defence.
37. The respondent's submission that the appellant could retain counsel or apply for legal aid does not wholly answer Article 50(2)(g). The duty to promptly inform an accused person of the right to counsel rests upon the trial court and is not dependent upon a prior application. The record placed before this Court does not expressly demonstrate that the appellant was promptly informed of that right. That omission is regrettable.
38. The omission does not automatically invalidate the trial. The Court must consider whether it caused actual prejudice or substantial injustice. The appellant understood the charge, followed the evidence, cross-examined all prosecution witnesses on relevant matters, elected to testify on oath and presented his defence. He has not identified any evidence, defence or line of cross-examination that he was unable to pursue because he lacked counsel. Although the charge was serious, the evidential and legal issues were not unusually complex, and the record demonstrates meaningful participation by the appellant.
39. The appellant merely invoked Article 50(2)(g) and (h) in the petition and filed no submissions identifying resulting prejudice. Considering the proceedings as a whole, the Court is not satisfied that the absence of representation prevented him from understanding or answering the case, or that substantial injustice resulted. This ground fails.
Evaluation of the defence
40. The appellant gave sworn evidence denying the offence and challenged the absence of the brother and teacher. The trial magistrate described his evidence as a mere denial. While that treatment was brief, a denial must still be weighed against the prosecution case. The burden of proof remains throughout upon the prosecution and never shifts to the accused: Woolmington v Director of Public Prosecutions [1935] AC 462.
41. On independent reconsideration, the defence did not displace PW1's direct account, the cogent recognition evidence or the medical findings. The Court has not used the weakness of the defence to fill any gap in the prosecution case. The prosecution independently proved every ingredient beyond reasonable doubt. The complaint concerning the defence is therefore without merit.
Sentence
42. Section 8(3) of the Sexual Offences Act prescribes imprisonment for a term of not less than twenty years where the child is between twelve and fifteen years. The twenty-year sentence imposed was lawful. In Republic v Manyeso [2025] KESC 16 (KLR), the Supreme Court affirmed that courts may not substitute sentences prescribed under section 8 with alternatives lacking a legislative foundation. There is no basis for reducing the sentence below the statutory term.
43. The appellant was arrested on 9 October 2024 and remained in custody during the trial. Section 333(2) of the Criminal Procedure Code required that period to be accounted for. In Ahamad Abolfathi Mohammed & another v Republic [2018] eKLR, the Court of Appeal explained that taking pre-sentence custody into account requires the sentence to run from the date of arrest where the offender remained in custody.
44. The sentencing remarks do not demonstrate that the trial court accounted for that period. The sentence shall therefore run from 9 October 2024.
F. Disposition
45. Upon independently reconsidering the evidence, the Court finds that the complainant's age, penetration and recognition of the appellant were proved beyond reasonable doubt. The discrepancies and absence of the two uncalled witnesses did not undermine the essential prosecution case. The erroneous citation of section 8(2) was curable and caused no prejudice. The fair-trial complaint did not establish actual prejudice or substantial injustice, and the defence raised no reasonable doubt.
46. The appeal against conviction consequently fails. The twenty-year sentence is lawful, subject only to compliance with section 333(2) of the Criminal Procedure Code.
47. The final orders are:
(a) The appeal against conviction is dismissed.
(b) The appellant's conviction for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act is upheld.
(c) The sentence of twenty years' imprisonment is upheld.
(d) Pursuant to section 333(2) of the Criminal Procedure Code, the sentence shall run from 9 October 2024, being the date on which the appellant was arrested and placed in custody.
It is so ordered.
DELIVERED, DATED AND SIGNED ON THIS 17 TH SEPTEMBER, 2026.
JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.
MARTHA MUTUKU-
JUDGE
In the presence of: -
Miss Omol for the State.
Appellant in person.
Court Assistant – Mr. Kibet.
1 | Page MAKUENI CRIMINAL APPEAL NO.E056 OF 2025