The Appellant George Ochieng Mboya was charged with the offence of defilement contrary to Section 8(1) and (3) of the Sexual Offences Act No. 3 of 2006.
Particulars are that on the 18th day of June 2022 at Kanyingombe area in Rongo Sub-County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of V.A.O a child aged 14 years.
In the alternative charge, the Appellant was also charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars of the alternative are that on the 18th day of June 2022 at Kanyingombe area in Rongo Sub-County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully touched the vagina of V.A.O a child aged 14 years with his penis.
Based on the evidence of five (5) prosecution witnesses and the Appellant’s sworn testimony the trial magistrate convicted him and sentenced him to serve 20 years’ imprisonment.
The Appellant was dissatisfied with the whole decision and sentence of the Trial Magistrate and he filed his Memorandum of Appeal dated 19th December 2023 on the following grounds:
1. The Learned Trial Magistrate erred in law and fact by failing to comply with Article 50 (2) (g) (h) of the Constitution 2010.
2. The Learned Trial Magistrate erred in law and fact by failing to consider the defense of the Appellant.
3. The Learned Trial Magistrate erred in law and fact by failing to consider whether the Appellant was properly identified.
4. That the Learned Trial Magistrate erred in law and fact by giving excessive sentence of twenty years in the circumstances considering that the Appellant was first offender.
Reasons wherefore the Appellant prayed that the conviction be quashed and sentence set aside, and any other order the court deems fit be granted.
Prosecution’s case was supported by five (5) witnesses who testified as follows;
PW1 – V.A.O the complainant herein testified that she was 14 years and was born on 13th May 2008. That on 18th June 2022 in the evening at around 4-5:00PM she was sent to buy vegetables in Rongo by her mother and that on her way back someone appeared and offered to help her carry her luggage. PW1 stated that the person grabbed her by the neck into the nearby maize plantation and covered her mouth. That he then forced her to remove her panty and clothes and threatened to stab her if she resisted. It was PW1’s testimony that the person who grabbed her removed his clothes too and placed her on the ground and did “tabia mbaya” to her by inserting his penis into her vagina. She testified that the perpetrator did not take long in the process and narrated that there were no people nearby.
PW1 testified that when her perpetrator was done he left the maize plantation and told her to leave after him. She stated that she went home and reported the matter to her mother who took her to Rongo Sub-county hospital for treatment and reported the incident on 19th of June 2022 and she was issued with a P3 form. PW1 further stated that she was able to identify the face of her perpetrator as she was together with him in the maize plantation for about 15 minutes and he defiled her for around 20 minutes. That the whole interaction took approximately 25 minutes. She stated that she saw the Appellant five days later and he had the same green T-shirt he wore when defiling her.
In cross-examination PW1 stated that she saw and identified the Appellant as the perpetrator and told her father the same. That she had never seen, met nor had any relationship with the Appellant prior to the incidence. She reiterated that it was the Appellant who defiled her and she could confirm the same.
PW2 LYNET ACHIENG OBOTE the mother to PW1, the complainant herein stated that her daughter was 14 years old. She testified that on 18th June 2022 she sent PW1 to buy vegetables from the market in Rongo. That PW1 returned home crying and reported that she met someone who grabbed her by the neck and dragged her into the maize plantation, threatened and defiled her. It was her testimony that PW1 stated that she did not know the perpetrator but could identify him. PW2 stated that the incident occurred close to their home at around 4:30PM and stated that when her husband returned home she notified him of the incident and he went searching for the perpetrator with no success. It was PW2’s testimony that she took PW1 for treatment and examination at Rongo Sub County Hospital and later reported the incident to the Police station where statements were recorded. It was her further testimony that she did not know the Appellant before and that it was her daughter who identified him as her perpetrator and he was later arrested.
In cross examination, she stated that she never saw the Accused person on the incident date. That it was PW1 who identified him by physical appearance and clothes.
PW3 MILTON OBOTE AYIEKO the father to the complainant testified that on 25th June 2022 he came from Rongo at around 2:00pm and that he had already learnt that his daughter had been defiled on 18th June 2022. He stated that that while at his home grazing his cattle, he saw the Appellant who was not known to him then and tried to interrogate him on the incident that took place on 18th June 2022. That when V.A.O brought him his phone and saw the Appellant she screamed raising alarm that the Appellant was the one who defiled her on 18th June 2022. He stated that he got hold of the Appellant and took him to the Police station where he handed him to the Investigating Officer and the Appellant was arrested. It was PW3’s testimony that his daughter V.A.O was the one who identified the Appellant as her perpetrator.
In cross examination PW3 stated that he arrested the Appellant since V.A.O identified him. That on the date of the incident he never saw the Appellant but on the day he arrested the Appellant, he saw him at Rongo but could not arrest him until V.A.O identified the Appellant while at home.
PW4 LILIAN NYABOKE a Clinical Officer from Rongo sub County Hospital testified that she filled the P.3 form for V.A.O who was presented to her with a history of being sexually assaulted on 18th June 2022. That on examination she was in fair general condition and her head, neck, abdomen and limbs were normal. That on examination of her genitalia she had a freshly broken hymen, tears on the labia majora and the anus region, and a bloody vaginal discharge. That the offence was classified as defilement and the cause of penetration was penile penetration. She testified that the laboratory examination revealed that; the pregnancy test and VDRL were negative, urine analysis showed RBC, sperm cells and epithelial cells present. She produced the P.3 and P.R.C forms and the filter clinical attendance card as exhibits 2, 4 and 3.
She also produced the P.3 form for the Appellant dated 26th June 2022 filled by her colleague Clifford Mboya as an exhibit. That the Appellant had no physical injuries and the genitalia examination revealed the penis and anus were normal.
PW5 CPL JOSEPH TOROTICH the Investigating Officer attached at Kamagambo Police Station testified that on 19th June 2022 while at the station, PW2 went to the station accompanied by V.A.O and recorded a Complaint of defilement. That he interrogated V.A.O who reported that she had been defiled the previous day on a maize plantation when she came from the market in Rongo. He recorded her statement and that of her mother and the minor told him that she could identify her perpetrator. PW5 stated that he visited the scene of the incident which was a few meters from the complainant’s home and noted there were signs of struggle and maize broken on the ground.
It was PW5’s testimony that on 25th June 2022 the Appellant was arrested by members of the public and that the Complainant identified him as the perpetrator on the date of the incident. He stated that the complainant was 15 years old and he produced a copy of the Birth certificate as PEX No.1 showing that the Complainant was born on 13th May 2008.
In cross examination, he stated that the minor physically identified the Appellant as her perpetrator when he passed close to their home and he was arrested by members of the public. That the date of the incident was 18th June 2022 after which the minor was taken to the hospital and the same reported on 19th June 2022. That the Appellant was arrested on the 25th June 2022.
At the close of the Prosecution's case the Appellant was placed on his defense and he elected to give sworn evidence.
In his defense the Appellant denied the charges and stated that on the date of the incident he met V.A.O on the road and that she did not know him. He stated that PW1’s father arrested him without any proof as the father did not witness him defile the minor and that he was arrested and charged with an offence he knew nothing of.
In cross examination the Appellant stated that on the 15th June 2022 he was at Kanyingombe and that he is employed by Dick Ouma. He stated that he saw the complainant in court for the first time and only saw her birth certificate but not the medical notes. It was his testimony that Milton Obote arrested him during the day at 2pm and he did not know him before. He further stated that the minor told her father that he defiled her but it was not true as he was at work on the very same day and his boss knew he had left work on that day.
This appeal was canvassed by way of written Submissions.
The Appellant’s counsel filed submissions on behalf of the Appellant dated 13th March 2025 and submitted on 3 grounds of appeal. The Appellant’s Counsel abandoned the first ground of Appeal that “The Learned Trial Magistrate erred in law and fact by failing to comply with Article 50 (2) (g) (h) of the Constitution 2010” and confirmed that the Learned Trial Magistrate complied with Article 50 (2) (g) (h) of the Constitution.
The Appellant’s Counsel Submitted that the Learned Trial Magistrate erred in law and fact by failing to consider the defense of the appellant. That the appellant gave sworn statement of defense and the trial court only alluded to the defense of the accused at page 24 of the record of appeal in a two-line statement. It was submitted that the accused had stated that he was at work at the time of the incident.
The Appellant’s Counsel also submitted that the Learned Trial Magistrate erred in law and fact by failing to consider whether the appellant was properly identified on identification when the complainant who is PW1 said the following at page 7 of the record of appeal.
"When I saw the accused after 5 days he was alone, accused was putting on a green T-shirt and a pair of jeans when he defiled me. On the day he was arrested he was putting on the same T-shirt."
It was submitted that from the foregoing, the Appellant was identified on the basis of the green T- shirt. That it would appear that any person in such a color of green T-shirt would be mistaken as the perpetrator of the alleged offence. The Appellant’s counsel submitted that the identification was not safe and not free from error.
He cited the case of Peter Mwangi Mungai -vs- Republic- Criminal Appeal No. 140 of 2000 where it was held that;
"If one is to test the evidence with the greatest care this was the way that Court of Appeal in England in R. v. Turnbull [1976]3 ALL ER 549 saw the examination. The Judge... examines closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, e.g by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and the accused's actual appearance?"
Finally, the Appellant’s counsel submitted that the Learned Trial Magistrate erred in law and fact by giving excessive sentence of 20 years considering that the Appellant was 1st time offender. That the evidence on record shows that the appellant was a 1st time offender and he mitigated and sought leniency. That although the appellant was given bond of Kshs. 200,000/= with one surety,
he never managed to secure the bond terms and he remained in custody throughout the trial and No pre-sentence report was sought even after he stated that he is an orphan.
It was thus submitted that the Appellant finds favor before this court.
The Respondent’s submissions are dated 23rd January 2025.
On whether the trial court erred in court and law by not complying with article 50 (2) (g) (h) of the Kenyan constitution 2010. It was submitted that Article 50 (2) (g) (h) of the Kenyan constitution 2010 provides for the right to representation of the accused person by an advocate of the high court of Kenya. That in the case of Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) W.A okwany, J stated that;
"In the instant case, I note that even though the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant's case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution witnesses. It is also noteworthy that the Appellant was not charged with a capital offence whose penalty is death so as to necessitate the mandatory requirement for legal representation. I find that the trial court conducted a fair trial and that the Appellant did not suffer r any injustice due to lack of legal representation."
It was submitted that the right to free legal representation by the state is not an absolute right and is only mandatory if the accused person is charged with an offence whose penalty is death, and substantial injustice will arise if such person is unable to afford legal representation. That in this particular matter the Appellant was not charged with a capital offence and at the time of trial he demonstrated that he clearly understood the chargers laid against him. It was further submitted that he was also able to cross examine the prosecution witnesses as well as mount his defense therefore, the trial court did not infringe Article 50 (2) (g) (h) of the Kenyan constitution 2010 during its conduct of the trial.
On whether or not the trial court considered the defense of the appellant it was submitted that Page 11 of the record of appeal indicates that the Appellant was put on his defense where he stated that he did not know the complainant and that the first time he saw her was when he was arrested. That on Page 6, paragraph 1 of the judgement indicates that the Trial Magistrate took into consideration the Appellant's defense in coming up with the final verdict.
On whether the trial court erred in law and fact by failing to consider whether the Appellant was properly identified it was submitted that the Appellant was positively identified by the Complainant as the one who defiled her. That she was able to identify him in the dock as the perpetrator and stated that on the day of the incident she spent approximately 25 minutes with the appellant and was able to remember the color of the clothes he was wearing. It was thus submitted that the Appellant was properly identified by the complainant.
The respondent cited the case of R Vs. Karioki S/O Rushashio and another (1948 23 K.L.R (I) 21 where the courts settled the issue of lack of an identification parade it stated follows:
"Failure to make identification at a parade is not necessarily fatal, as in Karioki's case, where identification was not made at the parade, but only in court, the court held that the evidence was in the circumstances sufficient to establish beyond all reasonable doubts that the accused was one of the group present at the relevant time and a participant in the crime."
The Respondent also cited the case of John Njagi Kadogo and 2 Others V. R 2006 E.K. L. R. where the court stated that:
"A court might base conviction on the evidence of dock identification if it is satisfied that on the facts and circumstances of the case. The evidence must be true and if prior thereto, the court warns itself of possible dangers of mistaken identities we have."
It was thus submitted that the Complainant was able to positively identify the Appellant as the perpetrator and the trial court did not err in law or fact by taking into consideration the dock identification of the appellant in the absence of identification parade.
On whether or not the sentence was excessive the Respondent cited the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where the Court of Appeal stated that:
"It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist."
It was thus submitted that the sentence issued by the trial court in this matter was sufficient given the circumstances of the case.
In conclusion the Respondent submitted that this Appeal lacks merit as the Trial Court complied with article 50 (2) (g) (h) of the constitution of Kenya during the trial, took into consideration the defense raised by the Appellant during the trial and the sentence given was sufficient given the circumstances of the case. The Respondents prayed that the Court dismisses the Appeal.
Analysis and Determination
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
1. Whether the Trial Court Considered the defense of the Appellant.
2. Whether the Appellant was properly identified on the identification element of defilement.
3. Whether the Sentence given by the Trial Court was excessive.
On whether the Trial Court Considered the defense of the Appellant This court has reviewed the trial court’s proceedings and the Judgment delivered on 6th December 2023 and find that the Appellant’s defense was exhaustively considered by the Trial Magistrate at page 10 of the judgement and found it was not convincing. The Appellant committed the offence during day time and the Complainant identified him and led to his arrest by members of the public.
On whether the Appellant was properly identified as the perpetrator,
PW1 stated that she did not know the Appellant before the date of the incident but she was able to identify him physically as she was together with him in the maize plantation for a span of approximately 25 minutes. She stated that when she saw the Appellant five days later she raised alarm and told her father who apprehended the Appellant and took him to their home and later to the police station. She also stated that the Appellant had the same green T-shirt he was wearing when defiling her.
PW2 and PW3 the parents of the Complainant testified that it was PW1 who identified the Appellant by physical appearance and dressing and raised alarm that to PW3 apprehending the Appellant and escorting him to the police station where PW5 conducted investigations and charged the Appellant.
I therefore find that the Appellant was positively identified by the Complainant herein as the incident took place at around 4:55 pm in broad daylight and the Complainant had close interaction with the Appellant for about 25 minutes. The identification of the Appellant was therefore not merely on the basis of the green T-Shirt he was wearing during the incident and on his arrest but it is clear that he was identified by physical appearance.
On whether the Sentence given by the Trial Court was excessive Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides;
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
In the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) where the Supreme Court of Kenya held:
“… Section 8 of the Sexual Offences Act remains valid........ We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters 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………...Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence…...”
The Appellant was sentenced to serve 20 years’ imprisonment which is the minimum sentence prescribed for the offence under section 8(3) of the Sexual Offences Act No. 3 of 2006 and it was therefore lawful in the circumstances.
Based on the re-evaluation of the evidence on record in the Trial Court, the judgement of the Trial Court and analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal lacks merit and the same is dismissed. The Appellant’s remand period from 27th June 2022 to 7th September 2022 ( 2 months and 10 days ) should be factored in the sentence pursuant to the mandatory provisions of Section 333(2) of the Criminal Procedure Code.
Right of Appeal within 14 days explained.
Dated, Signed and Delivered at Migori This 12th Day of June, 2025.
Particulars are that on the 18th day of June 2022 at Kanyingombe area in Rongo Sub-County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of V.A.O a child aged 14 years.
In the alternative charge, the Appellant was also charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
The particulars of the alternative are that on the 18th day of June 2022 at Kanyingombe area in Rongo Sub-County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully touched the vagina of V.A.O a child aged 14 years with his penis.
Based on the evidence of five (5) prosecution witnesses and the Appellant’s sworn testimony the trial magistrate convicted him and sentenced him to serve 20 years’ imprisonment.
The Appellant was dissatisfied with the whole decision and sentence of the Trial Magistrate and he filed his Memorandum of Appeal dated 19th December 2023 on the following grounds:
1. The Learned Trial Magistrate erred in law and fact by failing to comply with Article 50 (2) (g) (h) of the Constitution 2010.
2. The Learned Trial Magistrate erred in law and fact by failing to consider the defense of the Appellant.
3. The Learned Trial Magistrate erred in law and fact by failing to consider whether the Appellant was properly identified.
4. That the Learned Trial Magistrate erred in law and fact by giving excessive sentence of twenty years in the circumstances considering that the Appellant was first offender.
Reasons wherefore the Appellant prayed that the conviction be quashed and sentence set aside, and any other order the court deems fit be granted.
Prosecution’s case was supported by five (5) witnesses who testified as follows;
PW1 – V.A.O the complainant herein testified that she was 14 years and was born on 13th May 2008. That on 18th June 2022 in the evening at around 4-5:00PM she was sent to buy vegetables in Rongo by her mother and that on her way back someone appeared and offered to help her carry her luggage. PW1 stated that the person grabbed her by the neck into the nearby maize plantation and covered her mouth. That he then forced her to remove her panty and clothes and threatened to stab her if she resisted. It was PW1’s testimony that the person who grabbed her removed his clothes too and placed her on the ground and did “tabia mbaya” to her by inserting his penis into her vagina. She testified that the perpetrator did not take long in the process and narrated that there were no people nearby.
PW1 testified that when her perpetrator was done he left the maize plantation and told her to leave after him. She stated that she went home and reported the matter to her mother who took her to Rongo Sub-county hospital for treatment and reported the incident on 19th of June 2022 and she was issued with a P3 form. PW1 further stated that she was able to identify the face of her perpetrator as she was together with him in the maize plantation for about 15 minutes and he defiled her for around 20 minutes. That the whole interaction took approximately 25 minutes. She stated that she saw the Appellant five days later and he had the same green T-shirt he wore when defiling her.
In cross-examination PW1 stated that she saw and identified the Appellant as the perpetrator and told her father the same. That she had never seen, met nor had any relationship with the Appellant prior to the incidence. She reiterated that it was the Appellant who defiled her and she could confirm the same.
PW2 LYNET ACHIENG OBOTE the mother to PW1, the complainant herein stated that her daughter was 14 years old. She testified that on 18th June 2022 she sent PW1 to buy vegetables from the market in Rongo. That PW1 returned home crying and reported that she met someone who grabbed her by the neck and dragged her into the maize plantation, threatened and defiled her. It was her testimony that PW1 stated that she did not know the perpetrator but could identify him. PW2 stated that the incident occurred close to their home at around 4:30PM and stated that when her husband returned home she notified him of the incident and he went searching for the perpetrator with no success. It was PW2’s testimony that she took PW1 for treatment and examination at Rongo Sub County Hospital and later reported the incident to the Police station where statements were recorded. It was her further testimony that she did not know the Appellant before and that it was her daughter who identified him as her perpetrator and he was later arrested.
In cross examination, she stated that she never saw the Accused person on the incident date. That it was PW1 who identified him by physical appearance and clothes.
PW3 MILTON OBOTE AYIEKO the father to the complainant testified that on 25th June 2022 he came from Rongo at around 2:00pm and that he had already learnt that his daughter had been defiled on 18th June 2022. He stated that that while at his home grazing his cattle, he saw the Appellant who was not known to him then and tried to interrogate him on the incident that took place on 18th June 2022. That when V.A.O brought him his phone and saw the Appellant she screamed raising alarm that the Appellant was the one who defiled her on 18th June 2022. He stated that he got hold of the Appellant and took him to the Police station where he handed him to the Investigating Officer and the Appellant was arrested. It was PW3’s testimony that his daughter V.A.O was the one who identified the Appellant as her perpetrator.
In cross examination PW3 stated that he arrested the Appellant since V.A.O identified him. That on the date of the incident he never saw the Appellant but on the day he arrested the Appellant, he saw him at Rongo but could not arrest him until V.A.O identified the Appellant while at home.
PW4 LILIAN NYABOKE a Clinical Officer from Rongo sub County Hospital testified that she filled the P.3 form for V.A.O who was presented to her with a history of being sexually assaulted on 18th June 2022. That on examination she was in fair general condition and her head, neck, abdomen and limbs were normal. That on examination of her genitalia she had a freshly broken hymen, tears on the labia majora and the anus region, and a bloody vaginal discharge. That the offence was classified as defilement and the cause of penetration was penile penetration. She testified that the laboratory examination revealed that; the pregnancy test and VDRL were negative, urine analysis showed RBC, sperm cells and epithelial cells present. She produced the P.3 and P.R.C forms and the filter clinical attendance card as exhibits 2, 4 and 3.
She also produced the P.3 form for the Appellant dated 26th June 2022 filled by her colleague Clifford Mboya as an exhibit. That the Appellant had no physical injuries and the genitalia examination revealed the penis and anus were normal.
PW5 CPL JOSEPH TOROTICH the Investigating Officer attached at Kamagambo Police Station testified that on 19th June 2022 while at the station, PW2 went to the station accompanied by V.A.O and recorded a Complaint of defilement. That he interrogated V.A.O who reported that she had been defiled the previous day on a maize plantation when she came from the market in Rongo. He recorded her statement and that of her mother and the minor told him that she could identify her perpetrator. PW5 stated that he visited the scene of the incident which was a few meters from the complainant’s home and noted there were signs of struggle and maize broken on the ground.
It was PW5’s testimony that on 25th June 2022 the Appellant was arrested by members of the public and that the Complainant identified him as the perpetrator on the date of the incident. He stated that the complainant was 15 years old and he produced a copy of the Birth certificate as PEX No.1 showing that the Complainant was born on 13th May 2008.
In cross examination, he stated that the minor physically identified the Appellant as her perpetrator when he passed close to their home and he was arrested by members of the public. That the date of the incident was 18th June 2022 after which the minor was taken to the hospital and the same reported on 19th June 2022. That the Appellant was arrested on the 25th June 2022.
At the close of the Prosecution's case the Appellant was placed on his defense and he elected to give sworn evidence.
In his defense the Appellant denied the charges and stated that on the date of the incident he met V.A.O on the road and that she did not know him. He stated that PW1’s father arrested him without any proof as the father did not witness him defile the minor and that he was arrested and charged with an offence he knew nothing of.
In cross examination the Appellant stated that on the 15th June 2022 he was at Kanyingombe and that he is employed by Dick Ouma. He stated that he saw the complainant in court for the first time and only saw her birth certificate but not the medical notes. It was his testimony that Milton Obote arrested him during the day at 2pm and he did not know him before. He further stated that the minor told her father that he defiled her but it was not true as he was at work on the very same day and his boss knew he had left work on that day.
This appeal was canvassed by way of written Submissions.
The Appellant’s counsel filed submissions on behalf of the Appellant dated 13th March 2025 and submitted on 3 grounds of appeal. The Appellant’s Counsel abandoned the first ground of Appeal that “The Learned Trial Magistrate erred in law and fact by failing to comply with Article 50 (2) (g) (h) of the Constitution 2010” and confirmed that the Learned Trial Magistrate complied with Article 50 (2) (g) (h) of the Constitution.
The Appellant’s Counsel Submitted that the Learned Trial Magistrate erred in law and fact by failing to consider the defense of the appellant. That the appellant gave sworn statement of defense and the trial court only alluded to the defense of the accused at page 24 of the record of appeal in a two-line statement. It was submitted that the accused had stated that he was at work at the time of the incident.
The Appellant’s Counsel also submitted that the Learned Trial Magistrate erred in law and fact by failing to consider whether the appellant was properly identified on identification when the complainant who is PW1 said the following at page 7 of the record of appeal.
"When I saw the accused after 5 days he was alone, accused was putting on a green T-shirt and a pair of jeans when he defiled me. On the day he was arrested he was putting on the same T-shirt."
It was submitted that from the foregoing, the Appellant was identified on the basis of the green T- shirt. That it would appear that any person in such a color of green T-shirt would be mistaken as the perpetrator of the alleged offence. The Appellant’s counsel submitted that the identification was not safe and not free from error.
He cited the case of Peter Mwangi Mungai -vs- Republic- Criminal Appeal No. 140 of 2000 where it was held that;
"If one is to test the evidence with the greatest care this was the way that Court of Appeal in England in R. v. Turnbull [1976]3 ALL ER 549 saw the examination. The Judge... examines closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, e.g by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by him and the accused's actual appearance?"
Finally, the Appellant’s counsel submitted that the Learned Trial Magistrate erred in law and fact by giving excessive sentence of 20 years considering that the Appellant was 1st time offender. That the evidence on record shows that the appellant was a 1st time offender and he mitigated and sought leniency. That although the appellant was given bond of Kshs. 200,000/= with one surety,
he never managed to secure the bond terms and he remained in custody throughout the trial and No pre-sentence report was sought even after he stated that he is an orphan.
It was thus submitted that the Appellant finds favor before this court.
The Respondent’s submissions are dated 23rd January 2025.
On whether the trial court erred in court and law by not complying with article 50 (2) (g) (h) of the Kenyan constitution 2010. It was submitted that Article 50 (2) (g) (h) of the Kenyan constitution 2010 provides for the right to representation of the accused person by an advocate of the high court of Kenya. That in the case of Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) W.A okwany, J stated that;
"In the instant case, I note that even though the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant's case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution witnesses. It is also noteworthy that the Appellant was not charged with a capital offence whose penalty is death so as to necessitate the mandatory requirement for legal representation. I find that the trial court conducted a fair trial and that the Appellant did not suffer r any injustice due to lack of legal representation."
It was submitted that the right to free legal representation by the state is not an absolute right and is only mandatory if the accused person is charged with an offence whose penalty is death, and substantial injustice will arise if such person is unable to afford legal representation. That in this particular matter the Appellant was not charged with a capital offence and at the time of trial he demonstrated that he clearly understood the chargers laid against him. It was further submitted that he was also able to cross examine the prosecution witnesses as well as mount his defense therefore, the trial court did not infringe Article 50 (2) (g) (h) of the Kenyan constitution 2010 during its conduct of the trial.
On whether or not the trial court considered the defense of the appellant it was submitted that Page 11 of the record of appeal indicates that the Appellant was put on his defense where he stated that he did not know the complainant and that the first time he saw her was when he was arrested. That on Page 6, paragraph 1 of the judgement indicates that the Trial Magistrate took into consideration the Appellant's defense in coming up with the final verdict.
On whether the trial court erred in law and fact by failing to consider whether the Appellant was properly identified it was submitted that the Appellant was positively identified by the Complainant as the one who defiled her. That she was able to identify him in the dock as the perpetrator and stated that on the day of the incident she spent approximately 25 minutes with the appellant and was able to remember the color of the clothes he was wearing. It was thus submitted that the Appellant was properly identified by the complainant.
The respondent cited the case of R Vs. Karioki S/O Rushashio and another (1948 23 K.L.R (I) 21 where the courts settled the issue of lack of an identification parade it stated follows:
"Failure to make identification at a parade is not necessarily fatal, as in Karioki's case, where identification was not made at the parade, but only in court, the court held that the evidence was in the circumstances sufficient to establish beyond all reasonable doubts that the accused was one of the group present at the relevant time and a participant in the crime."
The Respondent also cited the case of John Njagi Kadogo and 2 Others V. R 2006 E.K. L. R. where the court stated that:
"A court might base conviction on the evidence of dock identification if it is satisfied that on the facts and circumstances of the case. The evidence must be true and if prior thereto, the court warns itself of possible dangers of mistaken identities we have."
It was thus submitted that the Complainant was able to positively identify the Appellant as the perpetrator and the trial court did not err in law or fact by taking into consideration the dock identification of the appellant in the absence of identification parade.
On whether or not the sentence was excessive the Respondent cited the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where the Court of Appeal stated that:
"It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist."
It was thus submitted that the sentence issued by the trial court in this matter was sufficient given the circumstances of the case.
In conclusion the Respondent submitted that this Appeal lacks merit as the Trial Court complied with article 50 (2) (g) (h) of the constitution of Kenya during the trial, took into consideration the defense raised by the Appellant during the trial and the sentence given was sufficient given the circumstances of the case. The Respondents prayed that the Court dismisses the Appeal.
Analysis and Determination
This being the first appellate court, my duty is well spelt out namely; to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. In the often cited case of Okeno v Republic [1972] EA 32, the East Africa Court of Appeal stated on the duty of the court on first appeal that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
1. Whether the Trial Court Considered the defense of the Appellant.
2. Whether the Appellant was properly identified on the identification element of defilement.
3. Whether the Sentence given by the Trial Court was excessive.
On whether the Trial Court Considered the defense of the Appellant This court has reviewed the trial court’s proceedings and the Judgment delivered on 6th December 2023 and find that the Appellant’s defense was exhaustively considered by the Trial Magistrate at page 10 of the judgement and found it was not convincing. The Appellant committed the offence during day time and the Complainant identified him and led to his arrest by members of the public.
On whether the Appellant was properly identified as the perpetrator,
PW1 stated that she did not know the Appellant before the date of the incident but she was able to identify him physically as she was together with him in the maize plantation for a span of approximately 25 minutes. She stated that when she saw the Appellant five days later she raised alarm and told her father who apprehended the Appellant and took him to their home and later to the police station. She also stated that the Appellant had the same green T-shirt he was wearing when defiling her.
PW2 and PW3 the parents of the Complainant testified that it was PW1 who identified the Appellant by physical appearance and dressing and raised alarm that to PW3 apprehending the Appellant and escorting him to the police station where PW5 conducted investigations and charged the Appellant.
I therefore find that the Appellant was positively identified by the Complainant herein as the incident took place at around 4:55 pm in broad daylight and the Complainant had close interaction with the Appellant for about 25 minutes. The identification of the Appellant was therefore not merely on the basis of the green T-Shirt he was wearing during the incident and on his arrest but it is clear that he was identified by physical appearance.
On whether the Sentence given by the Trial Court was excessive Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides;
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
In the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) where the Supreme Court of Kenya held:
“… Section 8 of the Sexual Offences Act remains valid........ We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters 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………...Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence…...”
The Appellant was sentenced to serve 20 years’ imprisonment which is the minimum sentence prescribed for the offence under section 8(3) of the Sexual Offences Act No. 3 of 2006 and it was therefore lawful in the circumstances.
Based on the re-evaluation of the evidence on record in the Trial Court, the judgement of the Trial Court and analysis of the grounds of appeal as against the submissions of the rival parties this court finds that this appeal lacks merit and the same is dismissed. The Appellant’s remand period from 27th June 2022 to 7th September 2022 ( 2 months and 10 days ) should be factored in the sentence pursuant to the mandatory provisions of Section 333(2) of the Criminal Procedure Code.
Right of Appeal within 14 days explained.
Dated, Signed and Delivered at Migori This 12th Day of June, 2025.