The Appellant Silas Odiwuor Odero was charged with the offence of defilement contrary to section 8(1) as read with section (2) of the Sexual Offences Act No. 3 of 2006.
The particulars of the offence are that on the 10th Day of November 2020 at around 1400hrs at Mahena village Awendo Sub-County in Migori County the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.A.O a child aged 10 years.
The Trial Magistrate considered the evidence of 5prosecution witnesses and the Appellant’s sworn testimony and found him guilty for the principal charge and he was convicted and sentenced to serve life imprisonment.
The Appellant was aggrieved by the conviction and sentence of the trial court and he lodged Petition of Appeal dated 9th December 2021 on the following grounds:
1. That he pleaded not guilty to the charge herein
2. That the Trial Magistrate erred both in law and facts by failing to comply with Article 50(2)(g) of the Constitution of Kenya 2010
3. THAT the trial court erred in both law and facts by failing to observe that the ingredients of the offence herein were not proved as required in law.
4. THAT the Trial Court erred in both law and facts by not considering the Appellant’s defence and mitigation.
REASONS WHEREFORE the Appellant prayed that this appeal be allowed, conviction quashed and sentence set aside or any other order deemed fit be granted.
PW1 M.A.O the Complainant herein gave evidence after the Trial Court conducted a voire dire examination and established that she was intelligent enough to give evidence. She stated that she resided at Malera with her parents and schooled at Malera primary school in class 3. It was here testimony that on 10/11/2020 at around 10am, she was at home when her father arrived home accompanied by the Appellant who resided at her grandmother’s home. That the Appellant requested her mother that she accompanies the him to his house so that she could prepare porridge for him. She stated that her mother agreed to the request and PW1 went with the Appellant to his house whereupon she prepared porridge for him.
It was PW1’s testimony that the Appellant chased away her younger siblings and locked the door. That he then undressed her, tore her pant and also removed his clothes (trouser, shirt and pant) placed them on the table then inserted his penis on her vagina. She stated that the Appellant laid her on a seat facing upwards and lay on top of her while holding her neck and threatened to kill her if she screamed. That he then used his “dudu” for urinating and inserted into her vagina she uses to pee. She stated that after the act, she left for home where she met her parents and disclosed to him what the Appellant had done to her. It was her testimony that her father took her to her Grandmother who examined her and then she was taken to Malera health centre and later to Awendo police station.
PW2- David Otieno the Complainant’s father gave evidence that the Appellant was his neighbor who had inherited one of his mothers. He recalled that on the material day at around 2pm he was at home when the complainant arrived home from the Appellant’s house while crying. That the complainant told him that she had been defiled by the Appellant at his house. PW2 stated that he took the minor to his mother (Josephine) and together they examined her genitalia and saw that she had been defiled. He stated that he took the child to Malera Health Centre where she was examined and treated then reported the issue to Awendo Police station where he was issued with a P3 form and the Appellant was arrested at his home. He then produced the P3 form, Treatment Notes, PCR form and Age Assessment report as PMFI 1-4.
In cross-examination he said that the Appellant visited his house at 10Am and was accompanied by him and that the Appellant left for his home with the complainant. He stated that the Complainant came home crying and that the Appellant never informed him that he had disciplined his daughter.
PW3 Rose Otieno and the Complainant’s mother herein recalled that on the material day at around 10Am the Appellant who was with her husband at home requested that the Complainant accompanies him to his house so that she could prepare porridge for him. That she accepted and the Appellant went with the Complainant to his house. PW3 stated that she left home came back at 8Pm where she was informed that the Complainant had been taken to the hospital by her husband PW2. That when they came back at around 8:30Pm she was informed that Silas had defiled the Complainant hence they had gone to the hospital.
In cross-examination she stated that the Appellant visited her home at 10Am in the company of her husband. That she was not at home when the Complainant came back hence the minor did not inform her of what had happened.
PW4 Caleb Okeyo the clinical officer attached to Malera health center testified that he saw the complainant on 10.11.2020 who was brought in with a history of sexual assault, was sick looking and crying. That upon examination he noted the following:
• Bruises on both the Labia minora and Labia Majora
• Hymen not intact
• Penetration took place
He stated that they did lab investigations and the HIV test turned negative but the vaginal swab showed Red blood cells indicating mild bleedings and the epithelial cells showed signs of friction which indicated penetration. He stated that the patient was put on antibiotics.
PW4 testified that he filled the P3 form the following day detailing the same injuries noted in the treatment notes. That the Age assessment dated 15/11/2020 was done by his colleague whom he had worked with for 4 years and his colleague assessed the minor as 10 years old. He stated that his colleague also examined the Appellant and filled his P3 form and nothing significant was noted from him.
PW4 produced the Treatment Notes, P3 form and Age Assessment Report as PEX 2-4 in respect of the Complainant and Treatment Notes and P3 form as PEX 5-6 in respect of the Appellant.
PW5 PC Sarah the Investigating Officer recalled that on 11/11/2020 at 11Am she got a report from the Complainant who reported that on 10/11/2020 at around 9Am the Appellant went home and asked for her to go cook porridge for him. That she was released to go do the same and upon arrival at the Appellant’s home he chased away the other children and defiled the Complainant. That the Complainant reported the matter to her father who took her to Malera Health Centre and she recorded the Complainant’s statement and gave her a P3 form. She stated that Penetration was confirmed as per the treatment notes and the child had bruises. PW5 further testified that on 14/11/2020 she arrested the Appellant after being identified by the minor and charged him with the offence then took the girl to Awendo Sub-County for an Age Assessment.
In cross-examination she stated that the report was made after the child had been treated and that she spoke with the officer from Malera police post. She stated that she did her investigations and confirmed that the Appellant defiled the Minor in his house and the Minor identified him hence he was not framed. That she did not receive any money from the minor’s family and she did not even know them.
The Trial Court ruled that the prosecution had established a case against the appellant and he was put on his defense.
DW1 The Appellant gave sworn evidence and testified that he was arrested for the offence of defilement which he never committed. That he had earlier testified against the father of the Complainant at a chief's baraza and the father of the minor had threatened him thus the fabrication of the charges to frame him. He further testified that he disciplined the Complainant because he had found her picking his vegetables without his consent and the father had threatened to evict him from that homestead.
He recalled that on the incident day the minor was sent to cook porridge for him. That he took the porridge and told the Complainant to clean the utensil only to realize that his radio had been damaged upon going to the bedroom. He stated that he beat the Complainant and the following day he was told that he had defiled the girl and was arrested on a Saturday.
On cross-examination, he stated he did not report that the Minor was picking his vegetables and that that he had beat the complainant in his house and the Complainant did not scream.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 15th August 2024 and he adduced two grounds of Appeal as follows:
1. That the Trial Court erred in both law and in fact by not making a finding that life sentence is unconstitutional.
2. That the Trial Court erred in law and in fact in appreciating the evidence of a sole identifying witness (PW1) uncorroborated.
On the first adduced ground the Appellant relied on the cases of VINTER AND OTHERS -VS THE UNITED KINGDOM (APPLICATION NO(s) 66069/09 130/10 AND 3896/10, R.V S BEIBER (2009)1 WLR 223 and Criminal Appeal no.12 of 202 JULIUS KITSAO MANYESO -VS- REPUBLIC (2023) and submitted that in general all the above cases held that life sentence denies a convict facing life imprisonment the opportunity to be heard on mitigation when those facing lesser sentences are allowed to be heard on mitigation.
He further submitted that it was an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the constitution 2010. The said Article states that:
“(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) …”
He submitted that the indeterminate life sentence is also inhuman treatment and violates the right to dignity under Article 28 C.O.K 2010 Since it does not leave a margin for rehabilitation and re-adaption. The Article referred to above states:
“Every person has inherent dignity and the right to have that dignity respected and protected.”
It was Submitted that Life sentence ought not to be equated to the natural life of the convicted person and that the appellant was entitled by law to a fair trial right Article 25(C) which provides:
“Despite any other provision in this Constitution, the following rights and
fundamental freedoms shall not be limited—
(c) the right to a fair trial; and…”
It was also submitted that the Appellant was entitled to a least prescribed sentence pursuant to Article 50(2) (p) COK 2010 which provides:
“(2) Every accused person has the right to a fair trial, which includes the right—
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; …”
The Appellant submitted that the Court to prescribe a least severe sentence factoring in provision of Section 333(2) CPC. The said Section states:
“(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
On the Second Adduced ground, the Appellant submitted that no other direct or circumstantial evidence was availed during trial to support the evidence of PW1 i.e. DNA forensic test. That the Trial Magistrate did not point out or indicate the demeanor which he noted and which he relied upon as a basis of accepting the evidence of PW1. The Appellant mentioned the case of WARSAME (J) in JOHN CARDON WAYNER -VS- REPUBLIC & 2 OTHERS (2001) eKLR and section 191 CPC but did not extract nor state what the said authorities held or state.
It was submitted that the Appellant’s defense mentioned that there were a lot of squabble in the victim's family where the Appellant inherited a grandmother and there was repetitive framing in order to evict him out of this family hence the Defilement incident. He further submitted that there were high chances of these family members inventing the Defilement, and bribing the clinical officer and with their combination framings to convict the appellant through the Court so that he be sentenced for life
In conclusion the Appellant urged this court to fully embrace his submission and submitted that the Conviction be quashed, sentence set aside and he be set free or the Court to make such other lenient orders as it may be deemed fit.
The Appellant did not submit on the other grounds in his Petition of Appeal dated 9th December 2021.
The Respondents opposed the Appeal and filed their Submissions dated 13th March 2025.
On whether the trial court erred in court and law by not complying with Article 50 (2) (g) (h) of the Kenyan constitution, 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 the Accused person was well informed of his right to legal representation under Article 50 (2)(g)(h) of the constitution of Kenya during plea taking.
The Respondent cited the case of Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) where 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 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 his chargers laid against him and was also able to cross examine the prosecution witnesses as well as mount his defense. That therefore, the Trial Court did not infringe Article 50 (2) (g) (h) of the Kenyan constitution 2010 during its conduct of the trial.
On the ground that the Trial Magistrate erred in both law and fact by not observing the ingredients of the offense it was submitted that the offence of defilement is rooted on three main elements, age of the victim (must be a minor), penetration and proper identification of the perpetrator which are provided for under Section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue as held in the case of George Opondo Olunga vs. Republic [2016] eKLR.
On the element of age, the Respondent cited the case of Edwin Nyambogo Onsongo vs. Republic (2016) eKLR where the Court of Appeal stated that:
"... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable. "
It was submitted that PW3 the Complainant's mother testified that the minor was 10 years during the incident and PW4 the Clinical Officer produced an age assessment report as exhibit number 4 which proved that the minor was indeed 10 years old at the time, hence proving the element of age.
It was further submitted that The Sexual Offences Rules of Court, 2014 under Rule 4 provides that; -
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
On the Second element of defilement, penetration the Respondent cited the case of Alex Chemwotei Sakong v Republic (2108] eKLR which outlined what penetration entails in a sexual offence as follows; -
"Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organ of a person into the genital organs of another person. This position was explained by the court of appeal (Onyango Otieno, Azangalala & Kantai JJ A) in the case of Mark Oiruri vs Republic Criminal Appeal 295 of 2012 [2013] eKLR in which they opined thus: "...Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ..."
That PW1 testified that the accused person was a person well known to her as he worked at her grandmother's home. It was submitted that She stated that on the fateful day the accused person lured her to his house where he defiled her and the medical evidence produced by the clinical officer PW4 corroborates the minor's testimony. That the Clinical Officer testified that he observed the minor and that the hymen was broken and formed a professional opinion that penetration occurred.
On the element of positive identification, it was submitted that PW1 testified that the accused was well known to her as he lived with her grandmother and she identified him as the one who defiled her on the day of the incident.
In conclusion the Respondent submitted that the Trial Court did not infringe the Appellant’s right to representation during the trial and that the Trial Magistrate took into consideration the elements of the offence in the judgement. The Respondent prayed that the court dismisses this appeal as it lacked merit.
ANALYSIS AND DETERMINATION
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze 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 give allowance for that.”
Having considered the grounds of Appeal, and 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 Magistrate failed to comply with Article 50(2)(g) of the Constitution of Kenya 2010
2. Whether the trial court failed to observe that the ingredients of the offence herein were not proved as required in law.
3. Whether the Trial Court failed to consider the Appellant’s defence and mitigation.
4. Whether the Trial Court relied solely on the evidence of PW1 and whether it was uncorroborated.
5. Whether the Trial Court erred by not making a finding that life sentence is unconstitutional.
Whether the Trial Magistrate failed to comply with Article 50(2)(g) of the Constitution of Kenya 2010
In Republic v Karissa Chengo and 2 others [2015] eKLR the Court of Appeal stated that:
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arise in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”
“(2) Every accused person has the right to a fair trial, which includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;”
From the proceedings of 16/11/2020, it is evident that the Trial Court informed the Appellant of his right to legal representation of his choice and encouraged him to exercise the said right. Furthermore, the Trial Court informed the Appellant of his entitlement to apply to the Legal Aid Board for assistance if he desired and the Appellant responded that he was informed. State funded counsel is not mandatory unless the accused faces a charge whose penalty is death or where substantial injustice would arise
A further review of the Trial Court’s proceedings shows that the Appellant did follow the proceedings, demonstrated that he clearly understood the charges laid against him, and was also able to cross examine the prosecution witnesses as well as mount his defense. It is therefore the finding of this court that the Trial Court did comply with Article 50 (2) (g) (h) of the Kenyan constitution 2010 and the Appellant’s his claim that his right was violated is unfounded.
Whether the trial court failed to observe that the ingredients of the offence herein were not proved as required in law, Section 8(1) of the Sexual Offence Act No. 3 of 2006 provides that:
“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”
In this regard, the offence of defilement is anchored on three (3) main ingredients namely; (1) The Age of the victim, (2) Penetration, and (3) The Proper Identification of the Perpetrator as was established in George Opondo Olunga v Republic [2016] eKLR.
On proof of age the Court of Appeal in Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) stated that:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
Likewise, the Court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
PW2 and PW3 testified that the child was 10 years old.
PW4 the Clinical Officer who examined the child and treated her also assessed her age and produced an Age Assessment Report indicating the minor was 10 years. The evidence adduced was adequate proof of the victim’s age.
On proof of Penetration, Section 2 of the Sexual Offences Act defines penetration as-
"the partial or complete insertion of the genital organs of a person into the genital organs of another person."
This definition has been given judicial interpretation in the case of Mark Oiruri Moses V R [2013] eKLR when the Court of Appeal stated thus:
Many times the attacker does not fully complete the sexual act during commission of the sexual act. That is the reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ.
This position was fortified by the same court, differently constituted, in Erick Onyango Ondeng v Republic [2014] eKLR where it was held: -
In sexual offences, the slightest penetration of female sex organ is sufficient by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen is raptured.
PW1 the Complainant herein testified that after preparing Porridge for the Appellant, he chased her other siblings away and locked the door to his house. That the Appellant then undressed her, tore her pant and also removed his clothes (trouser, shirt and pant) placed them on the table and inserted his penis into her vagina. She stated that the Appellant laid her on a seat facing upwards and lay on top of her while holding her neck and threatened to kill her if she screamed. That he then used his “dudu” for urinating and inserted into her vagina which she uses to pee.
PW4 the Clinical Officer testified that he examined and treated the Complainant who was brought in with a history of sexual assault on 10.11.2020. It was his evidence that she was sick looking and crying and that upon examination he noted the following: -
• Bruises on both the Labia minora and Labia Majora
• Hymen not intact
• Penetration took place
He also gave testimony that upon carrying out laboratory analysis the vaginal swab showed red blood cells indicating mild bleedings and the epithelial cells showed signs of friction which indicated penetration and the patient was put on antibiotics. He produced the Treatment Notes, P3 form and Age Assessment Report as exhibits 2 to 4.
Based on the above, this court finds that the prosecution proved the element of penetration beyond reasonable doubt.
On Identification of the perpetrator the court in Stephen Kimari Gathano v Republic [2022] eKLR observed as follows:
“It bears repeating that the Appellant was a person known to the complainant. I do not find any element of mistaken identity of the Appellant as the person who penetrated her genitalia. She was categorical it was Mzee was Purity- She knew the accused as such.”.
PW1 said that it was the Appellant who committed the heinous act herein. She stated that she knew the Appellant who resided at her grandmother’s home and that the Appellant requested for the Complainant to accompany him to his house so that she could prepare porridge for him and the Complainant’s mother agreed to the request. That after the Complainant prepared porridge for him, the Appellant chased away her other siblings, locked the door and proceeded to defile her while threatening to kill her if she screamed.
When PW1 went back home after the act she reported the Appellant’s actions to her father who took her to the hospital and then to the Police Station where she reported the incident and the Appellant was arrested after she identified him as the perpetrator.
PW5 the Investigating Officer stated that the Complainant identified the Appellant as the perpetrator and she arrested him on the same day the report was made.
Based on the above, this Court finds that the Appellant was properly identified as the perpetrator of the offence herein. The incident occurred in daylight within the Appellant’s house. This was recognition, which is stronger than identification of a stranger. Identification was positive and reliable
Whether the Trial Court failed to consider the Appellant’s defence and mitigation,
The trial court addressed the defense of alleged frame-up. The Appellant claimed that he was framed because he testified against the Complainant’s father in a Chief’s baraza and the father threatened him. He stated that the Complainant’s father abused him every time and that he was framed for defilement.
The court also considered his allegations that he was disciplining the child on the material day for throwing away his radio.
On allegations of land disputes, the court found that the Appellant did not question threats of eviction that he claimed PW2 had threatened him with when cross-examining him. The prosecution’s evidence overwhelmingly disproved allegations of fabrication. The medical evidence aligned with PW1’s narrative and not with the Appellant’s allegations of disciplinary beating. The defence was considered and properly rejected.
The Appellant also claimed that his mitigat
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The particulars of the offence are that on the 10th Day of November 2020 at around 1400hrs at Mahena village Awendo Sub-County in Migori County the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.A.O a child aged 10 years.
The Trial Magistrate considered the evidence of 5prosecution witnesses and the Appellant’s sworn testimony and found him guilty for the principal charge and he was convicted and sentenced to serve life imprisonment.
The Appellant was aggrieved by the conviction and sentence of the trial court and he lodged Petition of Appeal dated 9th December 2021 on the following grounds:
1. That he pleaded not guilty to the charge herein
2. That the Trial Magistrate erred both in law and facts by failing to comply with Article 50(2)(g) of the Constitution of Kenya 2010
3. THAT the trial court erred in both law and facts by failing to observe that the ingredients of the offence herein were not proved as required in law.
4. THAT the Trial Court erred in both law and facts by not considering the Appellant’s defence and mitigation.
REASONS WHEREFORE the Appellant prayed that this appeal be allowed, conviction quashed and sentence set aside or any other order deemed fit be granted.
PW1 M.A.O the Complainant herein gave evidence after the Trial Court conducted a voire dire examination and established that she was intelligent enough to give evidence. She stated that she resided at Malera with her parents and schooled at Malera primary school in class 3. It was here testimony that on 10/11/2020 at around 10am, she was at home when her father arrived home accompanied by the Appellant who resided at her grandmother’s home. That the Appellant requested her mother that she accompanies the him to his house so that she could prepare porridge for him. She stated that her mother agreed to the request and PW1 went with the Appellant to his house whereupon she prepared porridge for him.
It was PW1’s testimony that the Appellant chased away her younger siblings and locked the door. That he then undressed her, tore her pant and also removed his clothes (trouser, shirt and pant) placed them on the table then inserted his penis on her vagina. She stated that the Appellant laid her on a seat facing upwards and lay on top of her while holding her neck and threatened to kill her if she screamed. That he then used his “dudu” for urinating and inserted into her vagina she uses to pee. She stated that after the act, she left for home where she met her parents and disclosed to him what the Appellant had done to her. It was her testimony that her father took her to her Grandmother who examined her and then she was taken to Malera health centre and later to Awendo police station.
PW2- David Otieno the Complainant’s father gave evidence that the Appellant was his neighbor who had inherited one of his mothers. He recalled that on the material day at around 2pm he was at home when the complainant arrived home from the Appellant’s house while crying. That the complainant told him that she had been defiled by the Appellant at his house. PW2 stated that he took the minor to his mother (Josephine) and together they examined her genitalia and saw that she had been defiled. He stated that he took the child to Malera Health Centre where she was examined and treated then reported the issue to Awendo Police station where he was issued with a P3 form and the Appellant was arrested at his home. He then produced the P3 form, Treatment Notes, PCR form and Age Assessment report as PMFI 1-4.
In cross-examination he said that the Appellant visited his house at 10Am and was accompanied by him and that the Appellant left for his home with the complainant. He stated that the Complainant came home crying and that the Appellant never informed him that he had disciplined his daughter.
PW3 Rose Otieno and the Complainant’s mother herein recalled that on the material day at around 10Am the Appellant who was with her husband at home requested that the Complainant accompanies him to his house so that she could prepare porridge for him. That she accepted and the Appellant went with the Complainant to his house. PW3 stated that she left home came back at 8Pm where she was informed that the Complainant had been taken to the hospital by her husband PW2. That when they came back at around 8:30Pm she was informed that Silas had defiled the Complainant hence they had gone to the hospital.
In cross-examination she stated that the Appellant visited her home at 10Am in the company of her husband. That she was not at home when the Complainant came back hence the minor did not inform her of what had happened.
PW4 Caleb Okeyo the clinical officer attached to Malera health center testified that he saw the complainant on 10.11.2020 who was brought in with a history of sexual assault, was sick looking and crying. That upon examination he noted the following:
• Bruises on both the Labia minora and Labia Majora
• Hymen not intact
• Penetration took place
He stated that they did lab investigations and the HIV test turned negative but the vaginal swab showed Red blood cells indicating mild bleedings and the epithelial cells showed signs of friction which indicated penetration. He stated that the patient was put on antibiotics.
PW4 testified that he filled the P3 form the following day detailing the same injuries noted in the treatment notes. That the Age assessment dated 15/11/2020 was done by his colleague whom he had worked with for 4 years and his colleague assessed the minor as 10 years old. He stated that his colleague also examined the Appellant and filled his P3 form and nothing significant was noted from him.
PW4 produced the Treatment Notes, P3 form and Age Assessment Report as PEX 2-4 in respect of the Complainant and Treatment Notes and P3 form as PEX 5-6 in respect of the Appellant.
PW5 PC Sarah the Investigating Officer recalled that on 11/11/2020 at 11Am she got a report from the Complainant who reported that on 10/11/2020 at around 9Am the Appellant went home and asked for her to go cook porridge for him. That she was released to go do the same and upon arrival at the Appellant’s home he chased away the other children and defiled the Complainant. That the Complainant reported the matter to her father who took her to Malera Health Centre and she recorded the Complainant’s statement and gave her a P3 form. She stated that Penetration was confirmed as per the treatment notes and the child had bruises. PW5 further testified that on 14/11/2020 she arrested the Appellant after being identified by the minor and charged him with the offence then took the girl to Awendo Sub-County for an Age Assessment.
In cross-examination she stated that the report was made after the child had been treated and that she spoke with the officer from Malera police post. She stated that she did her investigations and confirmed that the Appellant defiled the Minor in his house and the Minor identified him hence he was not framed. That she did not receive any money from the minor’s family and she did not even know them.
The Trial Court ruled that the prosecution had established a case against the appellant and he was put on his defense.
DW1 The Appellant gave sworn evidence and testified that he was arrested for the offence of defilement which he never committed. That he had earlier testified against the father of the Complainant at a chief's baraza and the father of the minor had threatened him thus the fabrication of the charges to frame him. He further testified that he disciplined the Complainant because he had found her picking his vegetables without his consent and the father had threatened to evict him from that homestead.
He recalled that on the incident day the minor was sent to cook porridge for him. That he took the porridge and told the Complainant to clean the utensil only to realize that his radio had been damaged upon going to the bedroom. He stated that he beat the Complainant and the following day he was told that he had defiled the girl and was arrested on a Saturday.
On cross-examination, he stated he did not report that the Minor was picking his vegetables and that that he had beat the complainant in his house and the Complainant did not scream.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 15th August 2024 and he adduced two grounds of Appeal as follows:
1. That the Trial Court erred in both law and in fact by not making a finding that life sentence is unconstitutional.
2. That the Trial Court erred in law and in fact in appreciating the evidence of a sole identifying witness (PW1) uncorroborated.
On the first adduced ground the Appellant relied on the cases of VINTER AND OTHERS -VS THE UNITED KINGDOM (APPLICATION NO(s) 66069/09 130/10 AND 3896/10, R.V S BEIBER (2009)1 WLR 223 and Criminal Appeal no.12 of 202 JULIUS KITSAO MANYESO -VS- REPUBLIC (2023) and submitted that in general all the above cases held that life sentence denies a convict facing life imprisonment the opportunity to be heard on mitigation when those facing lesser sentences are allowed to be heard on mitigation.
He further submitted that it was an unjustifiable discrimination, unfair and repugnant to the principle of equality before the law under Article 27 of the constitution 2010. The said Article states that:
“(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
(3) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural and social spheres.
(4) The State shall not discriminate directly or indirectly against any person on any ground, including race, sex, pregnancy, marital status, health status, ethnic or social origin, color, age, disability, religion, conscience, belief, culture, dress, language or birth.
(5) …”
He submitted that the indeterminate life sentence is also inhuman treatment and violates the right to dignity under Article 28 C.O.K 2010 Since it does not leave a margin for rehabilitation and re-adaption. The Article referred to above states:
“Every person has inherent dignity and the right to have that dignity respected and protected.”
It was Submitted that Life sentence ought not to be equated to the natural life of the convicted person and that the appellant was entitled by law to a fair trial right Article 25(C) which provides:
“Despite any other provision in this Constitution, the following rights and
fundamental freedoms shall not be limited—
(c) the right to a fair trial; and…”
It was also submitted that the Appellant was entitled to a least prescribed sentence pursuant to Article 50(2) (p) COK 2010 which provides:
“(2) Every accused person has the right to a fair trial, which includes the right—
(p) to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing; …”
The Appellant submitted that the Court to prescribe a least severe sentence factoring in provision of Section 333(2) CPC. The said Section states:
“(2) Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.”
On the Second Adduced ground, the Appellant submitted that no other direct or circumstantial evidence was availed during trial to support the evidence of PW1 i.e. DNA forensic test. That the Trial Magistrate did not point out or indicate the demeanor which he noted and which he relied upon as a basis of accepting the evidence of PW1. The Appellant mentioned the case of WARSAME (J) in JOHN CARDON WAYNER -VS- REPUBLIC & 2 OTHERS (2001) eKLR and section 191 CPC but did not extract nor state what the said authorities held or state.
It was submitted that the Appellant’s defense mentioned that there were a lot of squabble in the victim's family where the Appellant inherited a grandmother and there was repetitive framing in order to evict him out of this family hence the Defilement incident. He further submitted that there were high chances of these family members inventing the Defilement, and bribing the clinical officer and with their combination framings to convict the appellant through the Court so that he be sentenced for life
In conclusion the Appellant urged this court to fully embrace his submission and submitted that the Conviction be quashed, sentence set aside and he be set free or the Court to make such other lenient orders as it may be deemed fit.
The Appellant did not submit on the other grounds in his Petition of Appeal dated 9th December 2021.
The Respondents opposed the Appeal and filed their Submissions dated 13th March 2025.
On whether the trial court erred in court and law by not complying with Article 50 (2) (g) (h) of the Kenyan constitution, 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 the Accused person was well informed of his right to legal representation under Article 50 (2)(g)(h) of the constitution of Kenya during plea taking.
The Respondent cited the case of Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) where 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 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 his chargers laid against him and was also able to cross examine the prosecution witnesses as well as mount his defense. That therefore, the Trial Court did not infringe Article 50 (2) (g) (h) of the Kenyan constitution 2010 during its conduct of the trial.
On the ground that the Trial Magistrate erred in both law and fact by not observing the ingredients of the offense it was submitted that the offence of defilement is rooted on three main elements, age of the victim (must be a minor), penetration and proper identification of the perpetrator which are provided for under Section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue as held in the case of George Opondo Olunga vs. Republic [2016] eKLR.
On the element of age, the Respondent cited the case of Edwin Nyambogo Onsongo vs. Republic (2016) eKLR where the Court of Appeal stated that:
"... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable. "
It was submitted that PW3 the Complainant's mother testified that the minor was 10 years during the incident and PW4 the Clinical Officer produced an age assessment report as exhibit number 4 which proved that the minor was indeed 10 years old at the time, hence proving the element of age.
It was further submitted that The Sexual Offences Rules of Court, 2014 under Rule 4 provides that; -
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."
On the Second element of defilement, penetration the Respondent cited the case of Alex Chemwotei Sakong v Republic (2108] eKLR which outlined what penetration entails in a sexual offence as follows; -
"Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organ of a person into the genital organs of another person. This position was explained by the court of appeal (Onyango Otieno, Azangalala & Kantai JJ A) in the case of Mark Oiruri vs Republic Criminal Appeal 295 of 2012 [2013] eKLR in which they opined thus: "...Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ..."
That PW1 testified that the accused person was a person well known to her as he worked at her grandmother's home. It was submitted that She stated that on the fateful day the accused person lured her to his house where he defiled her and the medical evidence produced by the clinical officer PW4 corroborates the minor's testimony. That the Clinical Officer testified that he observed the minor and that the hymen was broken and formed a professional opinion that penetration occurred.
On the element of positive identification, it was submitted that PW1 testified that the accused was well known to her as he lived with her grandmother and she identified him as the one who defiled her on the day of the incident.
In conclusion the Respondent submitted that the Trial Court did not infringe the Appellant’s right to representation during the trial and that the Trial Magistrate took into consideration the elements of the offence in the judgement. The Respondent prayed that the court dismisses this appeal as it lacked merit.
ANALYSIS AND DETERMINATION
In a first appeal, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;
“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze 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 give allowance for that.”
Having considered the grounds of Appeal, and 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 Magistrate failed to comply with Article 50(2)(g) of the Constitution of Kenya 2010
2. Whether the trial court failed to observe that the ingredients of the offence herein were not proved as required in law.
3. Whether the Trial Court failed to consider the Appellant’s defence and mitigation.
4. Whether the Trial Court relied solely on the evidence of PW1 and whether it was uncorroborated.
5. Whether the Trial Court erred by not making a finding that life sentence is unconstitutional.
Whether the Trial Magistrate failed to comply with Article 50(2)(g) of the Constitution of Kenya 2010
In Republic v Karissa Chengo and 2 others [2015] eKLR the Court of Appeal stated that:
“It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This Court in the David Njoroge Macharia case (supra) seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result’ and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arise in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.”
“(2) Every accused person has the right to a fair trial, which includes the right—
(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;”
From the proceedings of 16/11/2020, it is evident that the Trial Court informed the Appellant of his right to legal representation of his choice and encouraged him to exercise the said right. Furthermore, the Trial Court informed the Appellant of his entitlement to apply to the Legal Aid Board for assistance if he desired and the Appellant responded that he was informed. State funded counsel is not mandatory unless the accused faces a charge whose penalty is death or where substantial injustice would arise
A further review of the Trial Court’s proceedings shows that the Appellant did follow the proceedings, demonstrated that he clearly understood the charges laid against him, and was also able to cross examine the prosecution witnesses as well as mount his defense. It is therefore the finding of this court that the Trial Court did comply with Article 50 (2) (g) (h) of the Kenyan constitution 2010 and the Appellant’s his claim that his right was violated is unfounded.
Whether the trial court failed to observe that the ingredients of the offence herein were not proved as required in law, Section 8(1) of the Sexual Offence Act No. 3 of 2006 provides that:
“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”
In this regard, the offence of defilement is anchored on three (3) main ingredients namely; (1) The Age of the victim, (2) Penetration, and (3) The Proper Identification of the Perpetrator as was established in George Opondo Olunga v Republic [2016] eKLR.
On proof of age the Court of Appeal in Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR) stated that:
“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.”
Likewise, the Court of Appeal in Edwin Nyambogo Onsongo vs Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:
“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”
PW2 and PW3 testified that the child was 10 years old.
PW4 the Clinical Officer who examined the child and treated her also assessed her age and produced an Age Assessment Report indicating the minor was 10 years. The evidence adduced was adequate proof of the victim’s age.
On proof of Penetration, Section 2 of the Sexual Offences Act defines penetration as-
"the partial or complete insertion of the genital organs of a person into the genital organs of another person."
This definition has been given judicial interpretation in the case of Mark Oiruri Moses V R [2013] eKLR when the Court of Appeal stated thus:
Many times the attacker does not fully complete the sexual act during commission of the sexual act. That is the reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ.
This position was fortified by the same court, differently constituted, in Erick Onyango Ondeng v Republic [2014] eKLR where it was held: -
In sexual offences, the slightest penetration of female sex organ is sufficient by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen is raptured.
PW1 the Complainant herein testified that after preparing Porridge for the Appellant, he chased her other siblings away and locked the door to his house. That the Appellant then undressed her, tore her pant and also removed his clothes (trouser, shirt and pant) placed them on the table and inserted his penis into her vagina. She stated that the Appellant laid her on a seat facing upwards and lay on top of her while holding her neck and threatened to kill her if she screamed. That he then used his “dudu” for urinating and inserted into her vagina which she uses to pee.
PW4 the Clinical Officer testified that he examined and treated the Complainant who was brought in with a history of sexual assault on 10.11.2020. It was his evidence that she was sick looking and crying and that upon examination he noted the following: -
• Bruises on both the Labia minora and Labia Majora
• Hymen not intact
• Penetration took place
He also gave testimony that upon carrying out laboratory analysis the vaginal swab showed red blood cells indicating mild bleedings and the epithelial cells showed signs of friction which indicated penetration and the patient was put on antibiotics. He produced the Treatment Notes, P3 form and Age Assessment Report as exhibits 2 to 4.
Based on the above, this court finds that the prosecution proved the element of penetration beyond reasonable doubt.
On Identification of the perpetrator the court in Stephen Kimari Gathano v Republic [2022] eKLR observed as follows:
“It bears repeating that the Appellant was a person known to the complainant. I do not find any element of mistaken identity of the Appellant as the person who penetrated her genitalia. She was categorical it was Mzee was Purity- She knew the accused as such.”.
PW1 said that it was the Appellant who committed the heinous act herein. She stated that she knew the Appellant who resided at her grandmother’s home and that the Appellant requested for the Complainant to accompany him to his house so that she could prepare porridge for him and the Complainant’s mother agreed to the request. That after the Complainant prepared porridge for him, the Appellant chased away her other siblings, locked the door and proceeded to defile her while threatening to kill her if she screamed.
When PW1 went back home after the act she reported the Appellant’s actions to her father who took her to the hospital and then to the Police Station where she reported the incident and the Appellant was arrested after she identified him as the perpetrator.
PW5 the Investigating Officer stated that the Complainant identified the Appellant as the perpetrator and she arrested him on the same day the report was made.
Based on the above, this Court finds that the Appellant was properly identified as the perpetrator of the offence herein. The incident occurred in daylight within the Appellant’s house. This was recognition, which is stronger than identification of a stranger. Identification was positive and reliable
Whether the Trial Court failed to consider the Appellant’s defence and mitigation,
The trial court addressed the defense of alleged frame-up. The Appellant claimed that he was framed because he testified against the Complainant’s father in a Chief’s baraza and the father threatened him. He stated that the Complainant’s father abused him every time and that he was framed for defilement.
The court also considered his allegations that he was disciplining the child on the material day for throwing away his radio.
On allegations of land disputes, the court found that the Appellant did not question threats of eviction that he claimed PW2 had threatened him with when cross-examining him. The prosecution’s evidence overwhelmingly disproved allegations of fabrication. The medical evidence aligned with PW1’s narrative and not with the Appellant’s allegations of disciplinary beating. The defence was considered and properly rejected.
The Appellant also claimed that his mitigat
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