1. The Appellant Geoffrey Ngetich was in the first count charged before the trial court with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
2. As is instructive from the charge sheet, the particulars of the principal count were that on the 16th day of July, 2024 at Kokwet area, Kipkelion West Sublocation, Subcounty within Kericho County, the Appellant intentionally caused his penis to penetrate the vagina of M.C. (name withheld), a child aged 6 years.
3. In the alternative count to the first count, the Appellant was 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.
4. The particulars of the alternative count to the first count were that on the 16th day of July, 2024 at about 1630hrs Kokwet area, Kipkelion West Sublocation, Subcounty within Kericho County, the Appellant intentionally touched the vagina, buttocks and breasts of M.C., a child aged 6 years.
5. In the second count, the Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
6. The particulars of the offence in the second count were that on the 16th day of July, 2024 at Kokwet area, Kipkelion West Sublocation, Subcounty within Kericho County, the Appellant intentionally caused his penis to penetrate the vagina of I.C. (name withheld) a child aged 7 years.
7. In the alternative count to the second count, the Appellant was 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.
8. The particulars of the alternative count to the second count were that on the 16th day of July, 2024 at about 1630hrs Kokwet area, Kipkelion West Sublocation, Subcounty within Kericho County, the Appellant intentionally touched the vagina, buttocks and breasts of I.C., a child aged 7 years.
9. The Appellant denied all the counts, which then called for a full trial.
10. The prosecution case was founded on the evidence of seven witnesses while the defence comprised of the Appellant’s sworn testimony and the evidence of his witness.
11. Following the conclusion of the trial, the Appellant was convicted on the two principal counts (the first and the second count) and subsequently sentenced to serve life imprisonment on both counts, with the trial court ordering that the sentence in respect of the second count be held in abeyance.
12. Aggrieved by the convictions and sentences, the Appellant lodged the present appeal vide the petition of appeal (wrongly titled as memorandum of appeal) dated 31st December, 2024 in which he raised the following grounds of appeal:
a. That the learned trial Magistrate erred in law and in fact in finding the Appellant guilty as charged where the evidence was insufficient to warrant such findings and conclusions.
b. That the learned trial Magistrate erred in law and in fact by failing to consider the probation report in its eternity (sic) and only looked at the recommendation.
c. That the learned trial Magistrate erred in law and in fact by finding or concluding that there was penetration where the medical report was that hymen was intact, hence failing to factor in medical evidence.
d. That the learned trial Magistrate erred in law and in fact by admitting the charges which were defective in nature and law and making a finding upon such charges.
e. That the learned trial Magistrate erred in law and in fact by failing to call for and factor in medical examination of the Appellant where probation officers report showed the Appellant was of mild mental conditions.
f. That the learned trial Magistrate erred in law and in fact by passing a harsh sentence without considering the mitigating circumstances during the trial process.
g. That the learned trial Magistrate erred in law and in fact in that knowingly the matter is of grave nature, if one is found guilty, to make orders for appointment of an advocate on pro bono to represent the interests of the Appellant.
h. That the learned trial Magistrate erred in law and in fact by being emotional while conducting trial and in passing sentence.
13. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction on both counts and acquit him and set aside the life sentences.
14. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
15. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the convictions and sentences.
16. Now to the record of the trial court, the same bears it that the learned trial Magistrate separately conducted voir dire examinations in respect of M.C. and I.C., both children of tender years to determine or establish whether the children possessed sufficient intelligence and understood the duty of speaking the truth and whether they were capable of giving rational testimony.
17. The trial court observed as follows with respect to M.C.:
“I have listened to the answers given by the minor. She appears intelligent enough to understand and respond to the questions put forth to her but does not understand the relevance of oath. Under the circumstances, the minor will give unsworn evidence, and the accused will have a right to cross-examine her.”
18. The learned trial Magistrate reached the same finding with respect to I.C.
19. With that, M.C. proceeded to testify as PW1 and told the trial court that she was 7 years old and a grade 1 learner. She told the court that on a day that she did not specify at about 1600hrs, she was in the company of her friend and neighbour I.C., whom she met on her way home, when the two girls met the Appellant, who then dragged them from the road and took them to his house and that the Appellant did “tabia mbaya” to the two girls, beginning with I.C. following which he did the same to PW1.
20. PW1 told the trial court that before proceeding to sexually violate the two minors, the Appellant took them to a room where he put them on a bed where they lay. She stated that the Appellant undressed her by taking off her clothes and panty, rendering her completely naked. She explained that after violating I.C., the Appellant did “tabia mbaya” on her private parts, where she used to “poop” using his penis and that she experienced a lot of pain and bled. He then asked the two girls to leave and warned them that he would beat them up if they told anyone what he had done to them.
21. M.C. explained to the trial court that the Appellant’s house was located at a place on the way from her school to her home. She stated that the Appellant was a neighbour and one she knew well, having seen him in the village previously severally, adding that she knew his name as Geoffrey Ngetich. She pointed at the accused person in the dock as the assailant.
22. The witness told the trial court that she was later taken to Fort Ternan Hospital where she was examined and treated. She stated that that was not the first time that the accused person had done “tabia mbaya” to her, that he had done to her the same before.
23. On being cross examined by the Appellant, PW1 told the trial court that the Appellant forcefully pulled her and I.C. to his house, where he left his daughter outside and that he then proceeded to defile the two girls. She stated that she bled from her private parts and walked home with difficulty and in pain, where she then showed her mother where she had been injured by the Appellant.
24. The second prosecution witness was I.C. (PW2), who told the court that she was 8 years old and that on the fateful day (no specific details given) at about 1600hrs, she and PW1 were leaving their respective schools when they met the Appellant, who was well known to PW2, and whose name she said was Geoffrey Ngetich, who then called the two girls and took them to his house.
25. PW2 explained to the trial court that the Appellant took the minors and his daughter to the bedroom, whereafter the Appellant’s daughter went out of the house, leaving him, PW1 and PW2 in the bedroom, on the bed.
26. PW2 further told the trial court that the Appellant proceeded to undress both minors and took off his pair of long trousers and inner wear. That he then removed his “dudu” and did “tabia mbaya” to both herself and M.C. PW2 explained that the Appellant inserted his penis inside her “ass and vagina” and the part where she uses to pee. She stated that the Appellant told the minors that he would beat them up if they screamed. The Appellant then asked the two girls to leave. PW2 stated that it was the first time that the Appellant defiled her.
27. In her further evidence before the trial court, PW2 stated that the two girls proceeded to PW1’s home where she told PW1’s mother what had transpired. She also informed her own mother when she got to her home. She was taken to Rosy Hospital where she was examined and treated. She pointed out the Appellant in the dock as the assailant.
28. The third prosecution witness (PW3) was J.K. (name withheld), who told the trial court that she was PW1’s mother and PW2’s aunt. She produced her daughter’s certificate of birth (PExh1) that indicated her date of birth as 29th June, 2017.
29. The witness recalled the events of 17th July, 2024 and told the trial court that on that day, she was called by J.M. (name withheld), who was PW2’s mother, who told her to find out from her daughter and PW2 what had happened to them. When she inquired from the two children, they told her that nothing had happened.
30. PW3 explained to the trial court that later that evening, she prepared dinner and the two children ate. She then noticed that PW2 was limping or walking with an unusual gait but did not take it seriously. The children retired to bed that evening and woke up the next morning and left for school. Again, PW3 noticed that PW2 had a limp.
31. The witness told the court that when the children returned in the evening, she learnt from PW2’s mother that the child had told her that the Appellant had defiled both PW1 and PW2 on 16th July, 2024. PW1 was taken to hospital by her (PW1’s) father. The witness stated that the Appellant was well known to her.
32. Upon being cross examined, PW3 told the court that although PW1 walked with a limp, she did not see blood in her daughter’s genitalia but added that the doctor who examined her found that she had indeed been defiled.
33. The fourth prosecution witness (PW4) was C.K.K. (name withheld), a farmer and a resident of Kokwet village. The witness told the trial court that he was PW1’s father and that he learnt that his daughter and niece (PW2) had both been defiled by the Appellant, who was a neighbour, on 16th July, 2024. The matter was reported to the police and Pw4 and PW2’s mother then took the two children to Fort Ternan Hospital, under the escort of a police officer, where they were examined and treated. The witness stated that the doctor at the hospital confirmed that the two minors had been defiled.
34. The witness identified the following documents before the trial court:
- Treatment notes for PW1 – PExh2.
- Medical examination report (P3) form for PW1 – PExh3.
- Post rape care (PRC) form for PW1 – PExh4.
35. On being cross-examined, PW4 told the trial court that her daughter was in pain after the ordeal.
36. The prosecution called J.M. (name withheld) as the fifth witness (PW5), who told the court that PW2 was her daughter. The witness narrated the events of 16th July, 2024 and told the court that on that day at about 1700hrs, PW2 returned home from school and was limping and appeared to be in pain. The minor declined to disclose what had happened to her.
37. The witness noticed that PW1, who was in the company of PW2, was also limping and in pain. The witness told the trial court that her younger sister disclosed to her that she had seen the two minors going into the Appellant’s house, whereafter it was locked, and had then heard the Appellant asking “nani ataanza?”
38. PW5 testified further that on 17th July, 2024, her daughter returned home after school and took a bath. On questioning her, PW2 told her that she and PW1 had indeed gone to the Appellant’s house the previous day and that the Appellant had defiled both minors. PW5 immediately informed PW5 and arrangements were made and the two minors taken to Fort Ternan Hospital for treatment. The witness identified her daughter’s certificate of birth that bore her date of birth as 14th October, 2016 (PExh5).
39. PW5 explained to the trial court, on being cross-examined that the examination of the two minors at Fort Ternan confirmed that they had indeed been defiled.
40. Kipyegon Alex Ngetich, a clinical officer at Fort Ternan Subcounty Hospital testified as PW6 told the trial court that he examined and treated PW1 and PW2 on 17th July, 2024 at about 1930hrs. The two minors were presented to the facility by their parents, who were accompanied by a police officer. The two minors presented history of having been defiled.
41. The witness told the trial court that on examining PW1, he noticed that she had difficulty in walking and walked with her legs apart. There was no laceration noted on her labia majora. Her labia minora had a bilateral and teary cogent laceration. The clitoris and urethral area were reddish in colour and inflamed and other parts pinkish. The minor’s hymen was freshly torn and had blood spots on the surface. There was a smelly, clear discharge from the vagina. Urinalysis test disclosed leucocytes, of three pluses, signifying an infection.
42. PW6 further told the trial court that on examining PW2, he noted that she walked with a limp. Her labia majora was intact. Her labia minora had bilateral lacerations. No spermatozoa was seen in her genitalia. There were numerous epithelial and pus cells.
43. The witness reached the conclusion that there had been penetration into the genitalia of both PW1 and PW2.
44. PW6 produced the following documents that were later filled at the hospital after the two minors were examined and the matter reported to the police:
- Treatment notes/clinical attendance card for PW1 – PExh2.
- Medical examination report (P3) form for PW1 – PExh3.
- Post rape care (PRC) form for PW1 – PExh4a.
- Treatment notes/clinical attendance card for PW2 – PExh6.
- Medical examination report (P3) form for PW2 – PExh7.
- Post rape care (PRC) form for PW2 – PExh4b.
45. On being cross-examined, PW6 told the trial court that the minors were escorted to the hospital by their parents.
46. The last witness that the prosecution called was Police Constable Diana Ouko, the investigating officer, who testified as PW7.
47. In her evidence, PW7 told the trial court that the matter was reported to Fort Ternan Police Station on 16th July, 2024 by PW4, PW5 and PW6, who presented PW1 and PW2 to the station.
48. The witness then recorded the report and witness statements and issued P3 forms to the two minors, which were later completed, together with the two minors’ PRC forms, at Fort Ternan Hospital. The witness apprehended the Appellant on 18th July, 2024 and visited the locus on 20th July, 2024, where he saw the Appellant’s one-bedroomed mabati house. The bedroom had one bed and one blanket.
49. Upon concluding her investigations, the witness presented the Appellant before the trial court for plea.
50. The witness produced the following documents:
- PW1’s certificate of birth – PExh1.
- PW2’s certificate of birth – PEhx5.
51. The prosecution closed its case at that stage and in its considered ruling that was rendered on 29th October, 2024, the trial court found that a prima facie case had been established against the Appellant and he was placed on his defence.
52. The learned trial Magistrate complied with the provisions of Section 211 of the Criminal Procedure Code and the Appellant elected to tender a sworn testimony and call one witness.
53. The Appellant testified as DW1 and told the trial court that he resided at Fort Ternan and was a farmer by occupation.
54. In his defence, the Appellant told the trial court that on the material day, PW1 and PW2 were with his children at his home while he and his witness (DW2) were at a nearby farm weeding for beans. He explained that DW2 was his neighbour and being a casual labourer, he had requested her to help him in weeding and that he would pay her Ksh.200/-, which he did, in cash. The two then left the farm at about 1300hrs.
55. The Appellant stated that he could not comprehend how the allegations against him came to be, adding that he had a dispute with PW2’s mother.
56. The Appellant was cross-examined and told the trial court that the dispute pitting him and PW2’s mother involved land. He stated that he had no differences with PW1’s parents. He denied defiling the two minors and stated that had he done so, they would have screamed. He stated that his wife was also at home on the date that he was accused of sexually violating the two minors.
57. The Appellant called J.C. (name withheld) (DW2) as his witness. In her evidence in chief, DW2 told the trial court that she was a casual worker and a resident of Kokwet. She stated that the Appellant was her husband.
58. DW2 explained that on 16th July, 2024, she was with the Appellant at their farm, where the two worked and planted beans from 0800hrs to 1600hrs. She was not paid any money as the farm belonged to her and the Appellant.
59. DW2 told the trial court that PW1 and PW2 went to her house at about 1730hrs when she and the Appellant had already left the farm. She then went to look for onions as the Appellant went to untether cows that were grazing by the roadside. On returning, DW2 found that the children had poured githeri that was cooking and the two minors told DW2 that it is her child who had done so. The two minors then left.
60. It was DW2’s further testimony that moments later, PW1’s mother called her and informed her that there was a person who was selling maize. DW1 proceeded to PW3’s home while carrying a sack. PW3 told her to wait for the person who was selling maize. Shortly thereafter, PW2’s mother arrived and asked DW2 to join her for a meeting at a pastor’s place. DW2 did not attend the meeting but left for her home where she found her husband – the Appellant – by the roadside, who cautioned her against going to the pastor’s place.
61. Dw2 stated that on 17th July, 2024, she went to PW3’s place and PW3 gave her maize. It is then that PW3 told DW2 that PW1 and PW2 had been defiled by her husband. She stated that when she confronted the Appellant on the issue, he denied having violated the two minors.
62. On being cross-examined, the witness denied that the Appellant had requested her to help him to weed for beans for a wage of Ksh.200/- and stated that she was his spouse and not a neighbour or worker. She stated that she left the farm with the Appellant, who went straight home as she went elsewhere to look for vegetables and that the two minors were at her home at the time. She did not know what transpired at home when she went to look for vegetables.
63. The Appellant closed the defence case at that stage.
64. In her judgement rendered on 26th November, 2024. the learned trial Magistrate reached the finding that the prosecution had proved the principal charges in the first and second counts against the Appellant beyond reasonable doubt and proceeded to convict him on the same in line with Section 215 of the Criminal Procedure Code. The Appellant was subsequently sentenced.
65. The instant appeal proceeded by way of written submissions. I have perused and carefully considered the grounds raised in the petition of appeal, the submissions by the two sides and the record in its entirety. From the grounds of appeal, the record and the submissions, the following issues arise for determination:
a. Whether the charge sheet was defective for indicating in the particulars under count I and II that the Appellant defiled both complainants at 1630hrs, which the Appellant contends was not possible.
b. Whether the trial court fell into error in failing to consider and appropriately act on the pre sentence report, particularly the apparent indication that the Appellant suffered from a mild mental condition.
c. Whether the trial court erred in failing to provide the Appellant with a pro bono Advocate despite facing serious charges.
d. Whether the ingredients of the offence of defilement under Section 8(1) as read with Section 8(2) were proved in respect of both complainants (PW1 and PW2) against the Appellant beyond reasonable doubt, the same being:
i. Whether the ages of the two complainants (PW1 and PW2) were sufficiently established to meet the statutory threshold for the offence of defilement.
ii. Whether the prosecution proved penetration of the two complainants beyond reasonable doubt.
iii. Whether the identification and/or recognition of the Appellant by the two complainants was reliable and free from error.
e. Whether the evidence as a whole proved the Appellant’s guilt beyond reasonable doubt.
f. Whether the defence was adequately considered and properly rejected by the trial court.
g. Whether the sentences imposed by the trial court, including the order holding one life sentence in abeyance, were lawful, proper and in accordance with established principles of sentencing.
66. I will proceed to address the issues seriatim.
67. On the first issue, the Appellant contends that the charge sheet was defective on the basis that both count I and count II purportedly indicated that the offences were committed at 1630 hours, which he alleges was impossible. This complaint, however, misapprehends the structure of the charge sheet.
68. A careful examination of the record shows that the principal counts for which the Appellant was convicted – count I and count II – did not specify the exact time of commission of the offences. The mention of 1630 hours appeared only in the alternative counts, which related to indecent acts under Section 11(1) of the Sexual Offences Act and on which the Appellant was not convicted.
69. Be that as it may, the law is settled that the particulars of an offence, particularly in sexual offences involving children, must convey sufficient information to inform the accused of the nature of the charge to enable a proper defence, but need not specify the exact hour unless time is an element of the offence.
70. In the present case, the principal counts clearly identified the dates, location, names and ages of the complainants and the acts constituting defilement. The fact that the alternative counts indicated a specific time does not translate into a defect in the charges that formed the basis of conviction on the principal counts.
71. Minor discrepancies between the time stated in the charge sheet and the evidence adduced at trial do not render a charge defective. In Republic v Omondi [2002] KLR 1017, the ourt held that:
“A charge is not fatally defective merely because the particulars of time or place do not exactly correspond with the evidence, so long as the accused is sufficiently informed of the nature of the allegations to enable a proper defence.”
72. Similarly, in R v. Njenga [1980] KLR 292, it was emphasized that the essence of the charge is to inform the accused of the act alleged, and minor variances in time are not material where they do not mislead or prejudice the defence.
73. In the circumstances, the Appellant’s challenge to the validity of the charge sheet is without merit. The principal counts, on which the convictions were based, did not specify the 1630 hours, and therefore the trial court correctly proceeded to determine the case on the basis of the evidence adduced.
74. The reference to a specific time in the alternative counts, which were not the subject of conviction, cannot render the convictions on the principal counts invalid. There is no defect in the charge sheet that would warrant quashing the convictions.
75. The second issue for me to determine is whether the trial court fell into error in failing to consider and appropriately act on the pre sentence report, particularly the apparent indication that the Appellant suffered from a mild mental condition.
76. A critical legal issue raised by the Appellant is the contention that the trial court erred by not calling for and adequately considering the full pre sentence report, particularly the apparent indication that he suffered from a mild mental condition. This challenges both the fairness of the trial and the appropriateness of the sentence imposed.
77. To address this complaint, it is necessary to examine the legal principles concerning mental capacity in criminal responsibility, the presumption of sanity under the law and the role and purpose of a pre sentence report.
78. Under our jurisdiction, every person charged with a criminal offence is presumed to be of sound mind until the contrary is proved. Section 11 of the Penal Code provides that:
“11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”
79. This statutory presumption is a foundational principle of criminal responsibility that applies at all stages of the criminal process.
80. In Hirbo v Republic [2023] KECA 249 (KLR), the Court of Appeal reaffirmed that the presumption of sanity attaches to all accused persons and that sanity is the normal and usual condition of mankind unless evidence to the contrary is brought before the court.
81. The law further recognizes that an accused who seeks to rebut the presumption of sound mind must bring clear and credible evidence that at the time of the alleged offence they were incapable of understanding the nature of their actions or discerning that the act was wrong or unlawful. Section 12 of the Penal Code codifies the defence of insanity, which, if proved, results in a person being found not criminally responsible for the act or omission.
82. In the present matter, the pre sentence report, prepared after conviction, is a tool primarily used to assist the sentencing court in understanding the background, character, social circumstances and any mitigating or aggravating factors relating to the convicted person. Such reports offer guidance on rehabilitation prospects, community ties and risk factors relevant to tailoring a just sentence. The report is not a substitute for evidence admissible at the trial stage nor does it, by itself, displace the statutory presumption of sanity unless it contains clear expert findings on mental incapacity relevant to criminal responsibility.
83. In the case of Republic v Lewis [2021] KEHC 272 (KLR), the High Court emphasized that while mental assessment reports may inform issues such as fitness to stand trial or understanding of the charges, the presumption of sanity remains intact unless disproved by cogent evidence.
84. On the facts of this appeal, there is no evidence that the Appellant’s mental condition was raised at the trial stage as a matter bearing on his criminal responsibility. The trial court record shows that the Appellant engaged with the trial process, cross-examined prosecution witnesses in detail, testified on oath and was cross examined without objection as to his understanding or capacity. The Appellant did not, at any stage prior to or during the trial, request a mental assessment under Section 162 of the Criminal Procedure Code or otherwise bring evidence to rebut the statutory presumption of sanity.
85. In Wangui v Republic [2022] KEHC 17017 (KLR), the High Court reiterated that where there is no timely application for a mental assessment and no evidence rebutting the presumption of sanity, the trial court is entitled to proceed on the basis that the accused was of sound mind at the time of the offence and throughout the proceedings.
86. Furthermore, the pre sentence report indicating a mild mental condition does not, in itself, prove that the Appellant was unsound of mind at the time of the alleged offences or that he was incapable of understanding the nature and quality of his acts or engage in the trial. The presumption of sanity remains operative and the onus was on the Appellant to adduce evidence to the contrary. Because no such evidence was placed before the trial court at the appropriate stage, the trial court was under no obligation to treat the report as establishing a legal incapacity affecting criminal responsibility.
87. Accordingly, this court finds that the trial court did not err in declining to act upon the pre sentence report as though it raised a substantive issue of mental incapacity affecting guilt or sentencing.
88. The pre sentence report’s role in informing mitigation or other circumstances relevant to sentencing does not override the statutory presumption of sanity nor substitute for admissible evidence relevant to the foundational issue of criminal responsibility. Consequently, the Appellant’s complaint on this ground fails.
89. The third issue for determination is whether the trial court erred in failing to provide the Appellant with a pro bono Advocate despite facing serious charges.
90. In considering the Appellant’s complaint that he was not provided with a pro bono Advocate despite facing serious ch
[...truncated]
2. As is instructive from the charge sheet, the particulars of the principal count were that on the 16th day of July, 2024 at Kokwet area, Kipkelion West Sublocation, Subcounty within Kericho County, the Appellant intentionally caused his penis to penetrate the vagina of M.C. (name withheld), a child aged 6 years.
3. In the alternative count to the first count, the Appellant was 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.
4. The particulars of the alternative count to the first count were that on the 16th day of July, 2024 at about 1630hrs Kokwet area, Kipkelion West Sublocation, Subcounty within Kericho County, the Appellant intentionally touched the vagina, buttocks and breasts of M.C., a child aged 6 years.
5. In the second count, the Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
6. The particulars of the offence in the second count were that on the 16th day of July, 2024 at Kokwet area, Kipkelion West Sublocation, Subcounty within Kericho County, the Appellant intentionally caused his penis to penetrate the vagina of I.C. (name withheld) a child aged 7 years.
7. In the alternative count to the second count, the Appellant was 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.
8. The particulars of the alternative count to the second count were that on the 16th day of July, 2024 at about 1630hrs Kokwet area, Kipkelion West Sublocation, Subcounty within Kericho County, the Appellant intentionally touched the vagina, buttocks and breasts of I.C., a child aged 7 years.
9. The Appellant denied all the counts, which then called for a full trial.
10. The prosecution case was founded on the evidence of seven witnesses while the defence comprised of the Appellant’s sworn testimony and the evidence of his witness.
11. Following the conclusion of the trial, the Appellant was convicted on the two principal counts (the first and the second count) and subsequently sentenced to serve life imprisonment on both counts, with the trial court ordering that the sentence in respect of the second count be held in abeyance.
12. Aggrieved by the convictions and sentences, the Appellant lodged the present appeal vide the petition of appeal (wrongly titled as memorandum of appeal) dated 31st December, 2024 in which he raised the following grounds of appeal:
a. That the learned trial Magistrate erred in law and in fact in finding the Appellant guilty as charged where the evidence was insufficient to warrant such findings and conclusions.
b. That the learned trial Magistrate erred in law and in fact by failing to consider the probation report in its eternity (sic) and only looked at the recommendation.
c. That the learned trial Magistrate erred in law and in fact by finding or concluding that there was penetration where the medical report was that hymen was intact, hence failing to factor in medical evidence.
d. That the learned trial Magistrate erred in law and in fact by admitting the charges which were defective in nature and law and making a finding upon such charges.
e. That the learned trial Magistrate erred in law and in fact by failing to call for and factor in medical examination of the Appellant where probation officers report showed the Appellant was of mild mental conditions.
f. That the learned trial Magistrate erred in law and in fact by passing a harsh sentence without considering the mitigating circumstances during the trial process.
g. That the learned trial Magistrate erred in law and in fact in that knowingly the matter is of grave nature, if one is found guilty, to make orders for appointment of an advocate on pro bono to represent the interests of the Appellant.
h. That the learned trial Magistrate erred in law and in fact by being emotional while conducting trial and in passing sentence.
13. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction on both counts and acquit him and set aside the life sentences.
14. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
15. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the convictions and sentences.
16. Now to the record of the trial court, the same bears it that the learned trial Magistrate separately conducted voir dire examinations in respect of M.C. and I.C., both children of tender years to determine or establish whether the children possessed sufficient intelligence and understood the duty of speaking the truth and whether they were capable of giving rational testimony.
17. The trial court observed as follows with respect to M.C.:
“I have listened to the answers given by the minor. She appears intelligent enough to understand and respond to the questions put forth to her but does not understand the relevance of oath. Under the circumstances, the minor will give unsworn evidence, and the accused will have a right to cross-examine her.”
18. The learned trial Magistrate reached the same finding with respect to I.C.
19. With that, M.C. proceeded to testify as PW1 and told the trial court that she was 7 years old and a grade 1 learner. She told the court that on a day that she did not specify at about 1600hrs, she was in the company of her friend and neighbour I.C., whom she met on her way home, when the two girls met the Appellant, who then dragged them from the road and took them to his house and that the Appellant did “tabia mbaya” to the two girls, beginning with I.C. following which he did the same to PW1.
20. PW1 told the trial court that before proceeding to sexually violate the two minors, the Appellant took them to a room where he put them on a bed where they lay. She stated that the Appellant undressed her by taking off her clothes and panty, rendering her completely naked. She explained that after violating I.C., the Appellant did “tabia mbaya” on her private parts, where she used to “poop” using his penis and that she experienced a lot of pain and bled. He then asked the two girls to leave and warned them that he would beat them up if they told anyone what he had done to them.
21. M.C. explained to the trial court that the Appellant’s house was located at a place on the way from her school to her home. She stated that the Appellant was a neighbour and one she knew well, having seen him in the village previously severally, adding that she knew his name as Geoffrey Ngetich. She pointed at the accused person in the dock as the assailant.
22. The witness told the trial court that she was later taken to Fort Ternan Hospital where she was examined and treated. She stated that that was not the first time that the accused person had done “tabia mbaya” to her, that he had done to her the same before.
23. On being cross examined by the Appellant, PW1 told the trial court that the Appellant forcefully pulled her and I.C. to his house, where he left his daughter outside and that he then proceeded to defile the two girls. She stated that she bled from her private parts and walked home with difficulty and in pain, where she then showed her mother where she had been injured by the Appellant.
24. The second prosecution witness was I.C. (PW2), who told the court that she was 8 years old and that on the fateful day (no specific details given) at about 1600hrs, she and PW1 were leaving their respective schools when they met the Appellant, who was well known to PW2, and whose name she said was Geoffrey Ngetich, who then called the two girls and took them to his house.
25. PW2 explained to the trial court that the Appellant took the minors and his daughter to the bedroom, whereafter the Appellant’s daughter went out of the house, leaving him, PW1 and PW2 in the bedroom, on the bed.
26. PW2 further told the trial court that the Appellant proceeded to undress both minors and took off his pair of long trousers and inner wear. That he then removed his “dudu” and did “tabia mbaya” to both herself and M.C. PW2 explained that the Appellant inserted his penis inside her “ass and vagina” and the part where she uses to pee. She stated that the Appellant told the minors that he would beat them up if they screamed. The Appellant then asked the two girls to leave. PW2 stated that it was the first time that the Appellant defiled her.
27. In her further evidence before the trial court, PW2 stated that the two girls proceeded to PW1’s home where she told PW1’s mother what had transpired. She also informed her own mother when she got to her home. She was taken to Rosy Hospital where she was examined and treated. She pointed out the Appellant in the dock as the assailant.
28. The third prosecution witness (PW3) was J.K. (name withheld), who told the trial court that she was PW1’s mother and PW2’s aunt. She produced her daughter’s certificate of birth (PExh1) that indicated her date of birth as 29th June, 2017.
29. The witness recalled the events of 17th July, 2024 and told the trial court that on that day, she was called by J.M. (name withheld), who was PW2’s mother, who told her to find out from her daughter and PW2 what had happened to them. When she inquired from the two children, they told her that nothing had happened.
30. PW3 explained to the trial court that later that evening, she prepared dinner and the two children ate. She then noticed that PW2 was limping or walking with an unusual gait but did not take it seriously. The children retired to bed that evening and woke up the next morning and left for school. Again, PW3 noticed that PW2 had a limp.
31. The witness told the court that when the children returned in the evening, she learnt from PW2’s mother that the child had told her that the Appellant had defiled both PW1 and PW2 on 16th July, 2024. PW1 was taken to hospital by her (PW1’s) father. The witness stated that the Appellant was well known to her.
32. Upon being cross examined, PW3 told the court that although PW1 walked with a limp, she did not see blood in her daughter’s genitalia but added that the doctor who examined her found that she had indeed been defiled.
33. The fourth prosecution witness (PW4) was C.K.K. (name withheld), a farmer and a resident of Kokwet village. The witness told the trial court that he was PW1’s father and that he learnt that his daughter and niece (PW2) had both been defiled by the Appellant, who was a neighbour, on 16th July, 2024. The matter was reported to the police and Pw4 and PW2’s mother then took the two children to Fort Ternan Hospital, under the escort of a police officer, where they were examined and treated. The witness stated that the doctor at the hospital confirmed that the two minors had been defiled.
34. The witness identified the following documents before the trial court:
- Treatment notes for PW1 – PExh2.
- Medical examination report (P3) form for PW1 – PExh3.
- Post rape care (PRC) form for PW1 – PExh4.
35. On being cross-examined, PW4 told the trial court that her daughter was in pain after the ordeal.
36. The prosecution called J.M. (name withheld) as the fifth witness (PW5), who told the court that PW2 was her daughter. The witness narrated the events of 16th July, 2024 and told the court that on that day at about 1700hrs, PW2 returned home from school and was limping and appeared to be in pain. The minor declined to disclose what had happened to her.
37. The witness noticed that PW1, who was in the company of PW2, was also limping and in pain. The witness told the trial court that her younger sister disclosed to her that she had seen the two minors going into the Appellant’s house, whereafter it was locked, and had then heard the Appellant asking “nani ataanza?”
38. PW5 testified further that on 17th July, 2024, her daughter returned home after school and took a bath. On questioning her, PW2 told her that she and PW1 had indeed gone to the Appellant’s house the previous day and that the Appellant had defiled both minors. PW5 immediately informed PW5 and arrangements were made and the two minors taken to Fort Ternan Hospital for treatment. The witness identified her daughter’s certificate of birth that bore her date of birth as 14th October, 2016 (PExh5).
39. PW5 explained to the trial court, on being cross-examined that the examination of the two minors at Fort Ternan confirmed that they had indeed been defiled.
40. Kipyegon Alex Ngetich, a clinical officer at Fort Ternan Subcounty Hospital testified as PW6 told the trial court that he examined and treated PW1 and PW2 on 17th July, 2024 at about 1930hrs. The two minors were presented to the facility by their parents, who were accompanied by a police officer. The two minors presented history of having been defiled.
41. The witness told the trial court that on examining PW1, he noticed that she had difficulty in walking and walked with her legs apart. There was no laceration noted on her labia majora. Her labia minora had a bilateral and teary cogent laceration. The clitoris and urethral area were reddish in colour and inflamed and other parts pinkish. The minor’s hymen was freshly torn and had blood spots on the surface. There was a smelly, clear discharge from the vagina. Urinalysis test disclosed leucocytes, of three pluses, signifying an infection.
42. PW6 further told the trial court that on examining PW2, he noted that she walked with a limp. Her labia majora was intact. Her labia minora had bilateral lacerations. No spermatozoa was seen in her genitalia. There were numerous epithelial and pus cells.
43. The witness reached the conclusion that there had been penetration into the genitalia of both PW1 and PW2.
44. PW6 produced the following documents that were later filled at the hospital after the two minors were examined and the matter reported to the police:
- Treatment notes/clinical attendance card for PW1 – PExh2.
- Medical examination report (P3) form for PW1 – PExh3.
- Post rape care (PRC) form for PW1 – PExh4a.
- Treatment notes/clinical attendance card for PW2 – PExh6.
- Medical examination report (P3) form for PW2 – PExh7.
- Post rape care (PRC) form for PW2 – PExh4b.
45. On being cross-examined, PW6 told the trial court that the minors were escorted to the hospital by their parents.
46. The last witness that the prosecution called was Police Constable Diana Ouko, the investigating officer, who testified as PW7.
47. In her evidence, PW7 told the trial court that the matter was reported to Fort Ternan Police Station on 16th July, 2024 by PW4, PW5 and PW6, who presented PW1 and PW2 to the station.
48. The witness then recorded the report and witness statements and issued P3 forms to the two minors, which were later completed, together with the two minors’ PRC forms, at Fort Ternan Hospital. The witness apprehended the Appellant on 18th July, 2024 and visited the locus on 20th July, 2024, where he saw the Appellant’s one-bedroomed mabati house. The bedroom had one bed and one blanket.
49. Upon concluding her investigations, the witness presented the Appellant before the trial court for plea.
50. The witness produced the following documents:
- PW1’s certificate of birth – PExh1.
- PW2’s certificate of birth – PEhx5.
51. The prosecution closed its case at that stage and in its considered ruling that was rendered on 29th October, 2024, the trial court found that a prima facie case had been established against the Appellant and he was placed on his defence.
52. The learned trial Magistrate complied with the provisions of Section 211 of the Criminal Procedure Code and the Appellant elected to tender a sworn testimony and call one witness.
53. The Appellant testified as DW1 and told the trial court that he resided at Fort Ternan and was a farmer by occupation.
54. In his defence, the Appellant told the trial court that on the material day, PW1 and PW2 were with his children at his home while he and his witness (DW2) were at a nearby farm weeding for beans. He explained that DW2 was his neighbour and being a casual labourer, he had requested her to help him in weeding and that he would pay her Ksh.200/-, which he did, in cash. The two then left the farm at about 1300hrs.
55. The Appellant stated that he could not comprehend how the allegations against him came to be, adding that he had a dispute with PW2’s mother.
56. The Appellant was cross-examined and told the trial court that the dispute pitting him and PW2’s mother involved land. He stated that he had no differences with PW1’s parents. He denied defiling the two minors and stated that had he done so, they would have screamed. He stated that his wife was also at home on the date that he was accused of sexually violating the two minors.
57. The Appellant called J.C. (name withheld) (DW2) as his witness. In her evidence in chief, DW2 told the trial court that she was a casual worker and a resident of Kokwet. She stated that the Appellant was her husband.
58. DW2 explained that on 16th July, 2024, she was with the Appellant at their farm, where the two worked and planted beans from 0800hrs to 1600hrs. She was not paid any money as the farm belonged to her and the Appellant.
59. DW2 told the trial court that PW1 and PW2 went to her house at about 1730hrs when she and the Appellant had already left the farm. She then went to look for onions as the Appellant went to untether cows that were grazing by the roadside. On returning, DW2 found that the children had poured githeri that was cooking and the two minors told DW2 that it is her child who had done so. The two minors then left.
60. It was DW2’s further testimony that moments later, PW1’s mother called her and informed her that there was a person who was selling maize. DW1 proceeded to PW3’s home while carrying a sack. PW3 told her to wait for the person who was selling maize. Shortly thereafter, PW2’s mother arrived and asked DW2 to join her for a meeting at a pastor’s place. DW2 did not attend the meeting but left for her home where she found her husband – the Appellant – by the roadside, who cautioned her against going to the pastor’s place.
61. Dw2 stated that on 17th July, 2024, she went to PW3’s place and PW3 gave her maize. It is then that PW3 told DW2 that PW1 and PW2 had been defiled by her husband. She stated that when she confronted the Appellant on the issue, he denied having violated the two minors.
62. On being cross-examined, the witness denied that the Appellant had requested her to help him to weed for beans for a wage of Ksh.200/- and stated that she was his spouse and not a neighbour or worker. She stated that she left the farm with the Appellant, who went straight home as she went elsewhere to look for vegetables and that the two minors were at her home at the time. She did not know what transpired at home when she went to look for vegetables.
63. The Appellant closed the defence case at that stage.
64. In her judgement rendered on 26th November, 2024. the learned trial Magistrate reached the finding that the prosecution had proved the principal charges in the first and second counts against the Appellant beyond reasonable doubt and proceeded to convict him on the same in line with Section 215 of the Criminal Procedure Code. The Appellant was subsequently sentenced.
65. The instant appeal proceeded by way of written submissions. I have perused and carefully considered the grounds raised in the petition of appeal, the submissions by the two sides and the record in its entirety. From the grounds of appeal, the record and the submissions, the following issues arise for determination:
a. Whether the charge sheet was defective for indicating in the particulars under count I and II that the Appellant defiled both complainants at 1630hrs, which the Appellant contends was not possible.
b. Whether the trial court fell into error in failing to consider and appropriately act on the pre sentence report, particularly the apparent indication that the Appellant suffered from a mild mental condition.
c. Whether the trial court erred in failing to provide the Appellant with a pro bono Advocate despite facing serious charges.
d. Whether the ingredients of the offence of defilement under Section 8(1) as read with Section 8(2) were proved in respect of both complainants (PW1 and PW2) against the Appellant beyond reasonable doubt, the same being:
i. Whether the ages of the two complainants (PW1 and PW2) were sufficiently established to meet the statutory threshold for the offence of defilement.
ii. Whether the prosecution proved penetration of the two complainants beyond reasonable doubt.
iii. Whether the identification and/or recognition of the Appellant by the two complainants was reliable and free from error.
e. Whether the evidence as a whole proved the Appellant’s guilt beyond reasonable doubt.
f. Whether the defence was adequately considered and properly rejected by the trial court.
g. Whether the sentences imposed by the trial court, including the order holding one life sentence in abeyance, were lawful, proper and in accordance with established principles of sentencing.
66. I will proceed to address the issues seriatim.
67. On the first issue, the Appellant contends that the charge sheet was defective on the basis that both count I and count II purportedly indicated that the offences were committed at 1630 hours, which he alleges was impossible. This complaint, however, misapprehends the structure of the charge sheet.
68. A careful examination of the record shows that the principal counts for which the Appellant was convicted – count I and count II – did not specify the exact time of commission of the offences. The mention of 1630 hours appeared only in the alternative counts, which related to indecent acts under Section 11(1) of the Sexual Offences Act and on which the Appellant was not convicted.
69. Be that as it may, the law is settled that the particulars of an offence, particularly in sexual offences involving children, must convey sufficient information to inform the accused of the nature of the charge to enable a proper defence, but need not specify the exact hour unless time is an element of the offence.
70. In the present case, the principal counts clearly identified the dates, location, names and ages of the complainants and the acts constituting defilement. The fact that the alternative counts indicated a specific time does not translate into a defect in the charges that formed the basis of conviction on the principal counts.
71. Minor discrepancies between the time stated in the charge sheet and the evidence adduced at trial do not render a charge defective. In Republic v Omondi [2002] KLR 1017, the ourt held that:
“A charge is not fatally defective merely because the particulars of time or place do not exactly correspond with the evidence, so long as the accused is sufficiently informed of the nature of the allegations to enable a proper defence.”
72. Similarly, in R v. Njenga [1980] KLR 292, it was emphasized that the essence of the charge is to inform the accused of the act alleged, and minor variances in time are not material where they do not mislead or prejudice the defence.
73. In the circumstances, the Appellant’s challenge to the validity of the charge sheet is without merit. The principal counts, on which the convictions were based, did not specify the 1630 hours, and therefore the trial court correctly proceeded to determine the case on the basis of the evidence adduced.
74. The reference to a specific time in the alternative counts, which were not the subject of conviction, cannot render the convictions on the principal counts invalid. There is no defect in the charge sheet that would warrant quashing the convictions.
75. The second issue for me to determine is whether the trial court fell into error in failing to consider and appropriately act on the pre sentence report, particularly the apparent indication that the Appellant suffered from a mild mental condition.
76. A critical legal issue raised by the Appellant is the contention that the trial court erred by not calling for and adequately considering the full pre sentence report, particularly the apparent indication that he suffered from a mild mental condition. This challenges both the fairness of the trial and the appropriateness of the sentence imposed.
77. To address this complaint, it is necessary to examine the legal principles concerning mental capacity in criminal responsibility, the presumption of sanity under the law and the role and purpose of a pre sentence report.
78. Under our jurisdiction, every person charged with a criminal offence is presumed to be of sound mind until the contrary is proved. Section 11 of the Penal Code provides that:
“11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.”
79. This statutory presumption is a foundational principle of criminal responsibility that applies at all stages of the criminal process.
80. In Hirbo v Republic [2023] KECA 249 (KLR), the Court of Appeal reaffirmed that the presumption of sanity attaches to all accused persons and that sanity is the normal and usual condition of mankind unless evidence to the contrary is brought before the court.
81. The law further recognizes that an accused who seeks to rebut the presumption of sound mind must bring clear and credible evidence that at the time of the alleged offence they were incapable of understanding the nature of their actions or discerning that the act was wrong or unlawful. Section 12 of the Penal Code codifies the defence of insanity, which, if proved, results in a person being found not criminally responsible for the act or omission.
82. In the present matter, the pre sentence report, prepared after conviction, is a tool primarily used to assist the sentencing court in understanding the background, character, social circumstances and any mitigating or aggravating factors relating to the convicted person. Such reports offer guidance on rehabilitation prospects, community ties and risk factors relevant to tailoring a just sentence. The report is not a substitute for evidence admissible at the trial stage nor does it, by itself, displace the statutory presumption of sanity unless it contains clear expert findings on mental incapacity relevant to criminal responsibility.
83. In the case of Republic v Lewis [2021] KEHC 272 (KLR), the High Court emphasized that while mental assessment reports may inform issues such as fitness to stand trial or understanding of the charges, the presumption of sanity remains intact unless disproved by cogent evidence.
84. On the facts of this appeal, there is no evidence that the Appellant’s mental condition was raised at the trial stage as a matter bearing on his criminal responsibility. The trial court record shows that the Appellant engaged with the trial process, cross-examined prosecution witnesses in detail, testified on oath and was cross examined without objection as to his understanding or capacity. The Appellant did not, at any stage prior to or during the trial, request a mental assessment under Section 162 of the Criminal Procedure Code or otherwise bring evidence to rebut the statutory presumption of sanity.
85. In Wangui v Republic [2022] KEHC 17017 (KLR), the High Court reiterated that where there is no timely application for a mental assessment and no evidence rebutting the presumption of sanity, the trial court is entitled to proceed on the basis that the accused was of sound mind at the time of the offence and throughout the proceedings.
86. Furthermore, the pre sentence report indicating a mild mental condition does not, in itself, prove that the Appellant was unsound of mind at the time of the alleged offences or that he was incapable of understanding the nature and quality of his acts or engage in the trial. The presumption of sanity remains operative and the onus was on the Appellant to adduce evidence to the contrary. Because no such evidence was placed before the trial court at the appropriate stage, the trial court was under no obligation to treat the report as establishing a legal incapacity affecting criminal responsibility.
87. Accordingly, this court finds that the trial court did not err in declining to act upon the pre sentence report as though it raised a substantive issue of mental incapacity affecting guilt or sentencing.
88. The pre sentence report’s role in informing mitigation or other circumstances relevant to sentencing does not override the statutory presumption of sanity nor substitute for admissible evidence relevant to the foundational issue of criminal responsibility. Consequently, the Appellant’s complaint on this ground fails.
89. The third issue for determination is whether the trial court erred in failing to provide the Appellant with a pro bono Advocate despite facing serious charges.
90. In considering the Appellant’s complaint that he was not provided with a pro bono Advocate despite facing serious ch
[...truncated]