REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E002 OF 2025
WILSON BENDE……………….…………………………………………..APPELLANT VERSUS REPUBLIC……………………….……………..…………………………RESPONDENT
(Being an Appeal from the Judgment of Hon R.M. Ndombi (PM) delivered at Vihiga in the Principal Magistrate’s Court in Sexual Offence Case No E033 of 2021 on 11 th July 2023)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. The Learned Trial Magistrate, Hon R. M. Ndombi (PM) convicted him of the main charge and sentenced him to fifteen (15) years imprisonment.
3. Being dissatisfied with the said Judgement, on 31 st January 2025, he lodged an appeal herein. His Petition of Appeal was dated 28 th January 2025. He set out four (4) grounds of appeal. On 24 th July 2025, he filed Supplementary Grounds of Appeal dated 21 st July 2025. He listed six (6) Supplementary Grounds of Appeal.
4. His Written Submissions were dated 21 st July 2025 and filed on 24 th July 2025 while his additional submissions were dated 17 th December 2025 and filed on 28 th December 2025. Those of the Respondent were dated and filed on 18 th August 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal and Supplementary Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Appellant’s right to legal representation was infringed upon;
b. Whether or not the Prosecution proved its case beyond reasonable doubt;
c. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. RIGHT TO LEGAL REPRESENTATION
9. The Respondent did not submit on this issue. In his additional submissions, the Appellant submitted that he was not informed of his right to legal representation since he had no ability to defend himself and, therefore, it resulted in a miscarriage of justice. He cited the case of Lima & another vs Republic (1991) eKLR CRA No 110 of 1991 where the court stated that an accused had a right to be defended by a counsel and if he was deprived of that right, the conviction would be quashed.
10. He also relied on the case of Pett vs Greyhound Racing Association (1968) 2 ALL ER 595 where the court therein observed that not every person had the ability to represent himself as he could get tongue-tied, nervous or confused and hence required representation by a lawyer who was trained for the task.
11. The proceedings showed that the Appellant did not at any given time request the court to give him time to instruct a counsel to represent him during trial. Be that as it may, this court found and held that the Trial Court was under an obligation to have informed him of his right to be represented by counsel as was mandated by Article 50(2)(g) of the Constitution of Kenya, 2010.
12. Notably, Article 50(2)(g) of the Constitution of Kenya provides as follows:
“Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly.”
13. Failure by the Trial Court to have informed the Appellant of this right was a great omission. Having said so, it was not always that such omission had to cause an accused person injustice as it could be remedied by way of a retrial if such accused person had completely been prejudiced.
14. In this particular case, the Appellant proceeded with the trial without ever having asked the Trial Court to give him time to instruct counsel to represent him during trial.
15. This court thus came to the firm conclusion that the Appellant’s constitutional and fundamental right to fair trial had not been breached merely because the Trial Court did not inform him of his right to legal representation under Article 50(2)(g) of the Constitution of Kenya.
16. In view of the delays that would be occasioned by recalling witnesses due to failure by trial courts to promptly inform accused persons of their right to choose and be represented by an advocate and to be informed of this right promptly under Article 50(2)(g) of the Constitution of Kenya and bearing in mind substantial injustice that would otherwise result as provided in Article 50(2)(h) of the Constitution of Kenya, trial courts were called upon to comply with these provisions of the law when an accused person was first presented to court and before taking the plea as this was indeed the best practice besides being mandated by the law.
17. Indeed, Article 50(2)(h) of the Constitution of Kenya,2010 also provides as follows:-
“ Every accused person has the right to a fair trial, which includes the right 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.”
18. The right under Article 50(20(h) of the Constitution of Kenya is progressive and was currently being provided to those who were facing capital offences.
19. In the premises foregoing, this court found and held the additional Ground of Appeal No (1) was not merited and the same be and is hereby dismissed.
III. PROOF OF PROSECUTION’S CASE
20. Ground of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal No (1), (2), (4), (5) and (6) were dealt with under this head as they were all related.
21. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
22. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
23. The Appellant placed reliance on the case of Ali Mwachongo vs Republic (2016) eKLR C.A (Mombasa) where the court rounded of the complainant’s age from fifteen (15) years and two (2) months to sixteen (16) years and sentenced the accused person to fifteen (15) years pursuant to Section 8(4) of the Sexual Offences Act.
24. Pursuant to the above authority, the Appellant argued that since the Birth Certificate that was produced showed that the Complainant (hereinafter referred to as “PW 1”) was seventeen (17) years and six (6) months old, the benefit of doubt should be resolved in his favour.
25. On its part, the Respondent submitted that the Charge Sheet indicated that PW 1 was seventeen (17) years of age at the time of the commission of the offence as the Birth Certificate No 113961 PC Grace Nasimuyu Wafula (hereinafter referred to as “PW5”) indicated that she was born on 27 th October 2003 and, therefore, a minor at the time of the commission of the offence.
26. It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense.
27. PW1 testified that she was seventeen (17) years old which the Clinical Officer, Evans Karega (hereinafter referred to as “PW 3”) also alluded to. A perusal of the Birth Certificate showed PW 1 was born on 27 th October 2003. The incident took place on 23 rd April 2021. She was about seventeen (17) years and about five (5) months old (almost six (6) months old) at the material time of the incident.
28. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut the said evidence by adducing evidence to the contrary, this court was satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at all material times.
B. IDENTIFICATION
29. In his submissions, the Appellant submitted that PW I never expressed the manner she was positioned when she identified the perpetrator, how she laid when the perpetrator inserted his penis to her vagina and also the intensity of the light available. She never disclosed to court on how the perpetrator entered the house and whether she used to stay with the perpetrator in the same house or not.
30. He argued that from PW1’s testimony, some questions left unanswered for example whether she had enough time to identify the perpetrator, how she knew that it was the penis which penetrated her vagina and how he entered the house.
31. He cited the case of Joseph Leboi vs Republic CA NO. 70 OF 1987 where it was held that it was possible for a witness to believe that she had been attacked by someone known to him or her but be mistaken irrespective of whether it was a case of recognition or identification and the court, therefore, had to warn itself of the danger of convicting a person on the evidence of a single witness.
32. On its part, the Respondent submitted that the Appellant was well known to PW1 as her cousin and they lived in the same homestead. She stated that there was light from a solar lamp and was able to identify him as he flee after she screamed. She knew his name and identified him in court therefore, there was no mistake on identity. It stated that this was evidence of recognition which has previously been held by courts to be more reliable and weightier than that of identification of a stranger in the case of Anjononi & Others vs Republic (1976-80)1 KLR 1566, 1568 .
33. When he was cross-examined, the Appellant admitted that PW 1 was his neighbour. He added that her mother had given him work but he refused to pay him Kshs 150/=.
34. PW 1 stated that she recognised the Appellant because the solar light was on. As she and the Appellant were knew each other, this court was satisfied that there could not be any mistaken identity as they were both known to each other. Identification was by way of recognition.
C. PENETRATION
35. The Appellant did not submit on this issue. On its part, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed vs Republic[2020]eKLR where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. It submitted that the evidence of PW 1 was corroborated by PW 3 who testified that her hymen was freshly torn which proved penetration.
36. According to PW 1, on the night of 23 rd April 2021, her mother left her with her younger siblings. She stated that that after studying in the sitting room, they went to sleep and that in the middle of the night, somebody laid on top of her and raped her. She said that at the time, she was sleeping with the youngest child in her mother’s room.
37. She said that she was able to see the perpetrator, the Appellant herein, as the solar lamp was on. Her evidence was that she screamed and he ran away. She added that she went to call her grandmother and together they went to the Appellant’s grandmother to report the incident. Her evidence was that her mother came in the morning and they went and reported the incident to Mudete Police Station and obtained treatment from Mbale Hospital. She was emphatic that she did not consent to sleep with the Appellant herein.
38. The Assistant Chief, David Ojango (hereinafter referred to as “PW 2”) that he got the report about the defilement and he assisted in tracing and arresting the Appellant at his maternal grandmother’s home and escorting him to the Police Station.
39. PW 3 confirmed that the defilement was within twenty four (24) hours. He said that he observed a freshly torn hymen, gaping of the vaginal wall with lacerations on the inner wall with redness and a bad odour with whitish discharge. He stated that that was proof of penetration. He produced P3 Form, PRC Form and treatment notes as exhibits in the matter.
40. PW 1’s grandmother, Priscilla Mbone Mugossa (hereinafter referred to as “PW4”), confirmed that PW 1 woke her up at 2.00 am and she informed her that the Appellant raped her. She said that she had a torn dress and she told her that they struggled.
41. The Appellant’s grandmother(hereinafter referred to as “DW 2”) told the Trial Court that the Appellant was arrested on the day he arrived at her home on the date he was arrested at 8.00 am. She asked the Trial Court to forgive him in the event he had committed the offence.
42. Notably, the proviso of Section 124 of the Evidence Act states that:-
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth ( emphasis) .”
43. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other.
44. The Appellant placed reliance on the case of Wendoh vs Republic (1953) 20 EA 166 where it was held that the prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. He submitted that PW1’s siblings who were in the same house with her were not called to testify to shed more light or to confirm if PW 1 raised an alarm.
45. On its part, the Respondent referred to Section 143 of the Evidence Act Cap 80 (Laws of Kenya) which provides that no particular number of witnesses shall, in the absence of any provision of the law to the contrary, be required for the proof of any fact. It placed reliance on the case of Keter vs Republic (2007) E.A 135 where it was held that the prosecution was not obliged to call superfluity of witnesses, but only such witnesses as were sufficient to establish the charge beyond any reasonable doubt.
46. It submitted that the prosecution had the discretion to determine the witnesses it wished to call and could only be faulted if it failed to call crucial witnesses. It was emphatic that it called all crucial witnesses including the clinical officer who corroborated PW1’s evidence.
47. Section 143 of the Evidence Act provides as provides as follows:-
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. “
48. Indeed, there was no requirement that the prosecution to call a particular number of witnesses to prove a fact. However, despite having this liberty, failure to call witnesses to fill gaps in its case was detrimental to its case. In other words, where the prosecution failed to call crucial witnesses, an inference could be made that their evidence would have been in adverse to its case. Even so, the inference could only be made where the evidence was not adequate.
49. The Appellant’s submissions that the prosecution’s case had conflicting evidence was neither here nor there as PW1 testified that the incident happened on 23 rd April 2021. The PS Form had a stamp for 24 th April 2021 and not 23 rd April 2020 as Appellant alleged in his submissions. How PW 1 knew it was a penis that penetrated her or how she knew if he released sperms in her or how he entered the house were also immaterial.
50. Although the denied committing the offence and stated that he was framed, it was evident that PW1’s evidence that she was defiled on the material night was corroborated by PW 3’s medical evidence and that of PW 4 who corroborated her evidence that she went to her house and informed her of the rape by the Appellant. The evidence that was adduced by the Prosecution outweighed the evidence that he tendered in court.
51. It was the view of this court that the evidence before the trial court was sufficient to have formed a basis for conviction as the Prosecution proved their case to the required standard, which in criminal cases, was prove beyond reasonable doubt.
52. In the premises foregoing, Ground of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal No (1), (2), (4), (5) and (6) were not merited and the same be and are hereby dismissed.
IV. SENTENCE
53. Ground of Appeal No (3) of Supplementary Ground of Appeal was dealt with under this head.
54. The Appellant submitted that he was arrested on 23 rd April 2021 and was convicted and sentenced on 18 th August 2023. He argued that the sentence of fifteen (15) years ought to have run from the date when he was arrested.
55. On its part, the Respondent cited Section 8(3) of the Sexual Offences Act and made reference to Section 333(2) of the Criminal Procedure Code and relied on the case of Ahamad Abolfathi Mohammed & Another vs Republic[2018]eKLR where it was held that courts must take into account the period which the accused spent in custody during trial while sentencing them. It submitted that during sentencing, the Trial Court directed that the Appellant’s sentence run from the date of the inception of the case, being 26 th April 2021.
56. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that:-
“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 (emphasis court) ” .
57. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
58. The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
59. The Charge Sheet showed that the Applicant was arrested on 15 th September 2018. The surety was approved on 20 th September 2018. He was convicted on 9 th September 2020 when the bond was cancelled and he was sentenced on 21 st September 2020.
60. Notably, the Appellant was charged under Section 8(4) of the Sexual Offences Act Cap 63A (Laws of Kenya). The same provides as follows:-
“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
61. The sentence of fifteen (15) years was the minimum mandatory sentence. A perusal of the Trial Court proceedings indicated that the Trial Court directed that the sentence would run from the date of inception of the case. This meant that the Appellant was sentenced to more than the minimum mandatory sentence. The Trial Court was required to justify why the two (2) years the Appellant spent in remand ought to have being part of his sentence.
62. This is because the Appellant herein had a right under Article 50(2)(p) of the Constitution of Kenya which provides as follows:-
“Every accused person has the right to a fair trial, which includes the right 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.”
63. In the absence of any justification or demonstration of aggravating circumstances, the Appellant ought to have been sentenced to fifteen (15) years imprisonment and granted the period that he spent in remand while his trial was ongoing.
64. The Appellant was arrested on 23 rd April 2021 and was sentenced on 18 th August 2023. Although it is not clear when he was released on bail/bond, his bond/bail was approved on 15 th July 2021. He did not appear in court on 21 st July 2021 when a warrant of arrest was issued. The said warrant of arrest was lifted when he appeared in court on 11 th August 2021.
65. He did not appear in court again and on 1 st November 2021, another warrant of arrest was issued. He was brought to court under arrest on 25 th November 2021 when the surety sought to withdraw the security, which the Trial Court granted. The Appellant, therefore, remained in custody from that time until he was sentence,
66. The periods that he remained in custody between 23 rd April 2021when he was arrested and 15 th July 2021 when he was released on bail/bond and 25 th November 2021 when he was brought to court under arrest and 17 th August 2023 ought to have been taken into account at the time the Trial Court sentenced him in line with Section 333(2) of the Criminal Procedure Code.
67. In the premises foregoing, Ground of Appeal No (3) of Supplementary Ground of Appeal was merited and the same be and is hereby allowed.
DISPOSITION
68. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 28 th January 2025 and filed on 31 st January 2025 and Supplementary Grounds of Appeal dated 21 st July 2025 and filed on 24 th July 2025 was partially successful. His conviction and his sentence of fifteen (15) years be and are hereby upheld as they were both safe.
69. However, for the avoidance of doubt, t he periods that the Appellant remained in custody between 23 rd April 2021 and 15 th July 2021 and between 25 th November 2021 and 17 th August 2023 be and are hereby taken into account while computing his sentence pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
70. It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of April 2026
J. KAMAU
JUDGE
HCCRA E002 OF 20252
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E002 OF 2025
WILSON BENDE……………….…………………………………………..APPELLANT VERSUS REPUBLIC……………………….……………..…………………………RESPONDENT
(Being an Appeal from the Judgment of Hon R.M. Ndombi (PM) delivered at Vihiga in the Principal Magistrate’s Court in Sexual Offence Case No E033 of 2021 on 11 th July 2023)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act.
2. The Learned Trial Magistrate, Hon R. M. Ndombi (PM) convicted him of the main charge and sentenced him to fifteen (15) years imprisonment.
3. Being dissatisfied with the said Judgement, on 31 st January 2025, he lodged an appeal herein. His Petition of Appeal was dated 28 th January 2025. He set out four (4) grounds of appeal. On 24 th July 2025, he filed Supplementary Grounds of Appeal dated 21 st July 2025. He listed six (6) Supplementary Grounds of Appeal.
4. His Written Submissions were dated 21 st July 2025 and filed on 24 th July 2025 while his additional submissions were dated 17 th December 2025 and filed on 28 th December 2025. Those of the Respondent were dated and filed on 18 th August 2025. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect.
7. Having looked at the Appellant’s Petition of Appeal and Supplementary Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:-
a. Whether or not the Appellant’s right to legal representation was infringed upon;
b. Whether or not the Prosecution proved its case beyond reasonable doubt;
c. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.
8. The court therefore dealt with the said issues under the following distinct and separate heads.
I. RIGHT TO LEGAL REPRESENTATION
9. The Respondent did not submit on this issue. In his additional submissions, the Appellant submitted that he was not informed of his right to legal representation since he had no ability to defend himself and, therefore, it resulted in a miscarriage of justice. He cited the case of Lima & another vs Republic (1991) eKLR CRA No 110 of 1991 where the court stated that an accused had a right to be defended by a counsel and if he was deprived of that right, the conviction would be quashed.
10. He also relied on the case of Pett vs Greyhound Racing Association (1968) 2 ALL ER 595 where the court therein observed that not every person had the ability to represent himself as he could get tongue-tied, nervous or confused and hence required representation by a lawyer who was trained for the task.
11. The proceedings showed that the Appellant did not at any given time request the court to give him time to instruct a counsel to represent him during trial. Be that as it may, this court found and held that the Trial Court was under an obligation to have informed him of his right to be represented by counsel as was mandated by Article 50(2)(g) of the Constitution of Kenya, 2010.
12. Notably, Article 50(2)(g) of the Constitution of Kenya provides as follows:
“Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly.”
13. Failure by the Trial Court to have informed the Appellant of this right was a great omission. Having said so, it was not always that such omission had to cause an accused person injustice as it could be remedied by way of a retrial if such accused person had completely been prejudiced.
14. In this particular case, the Appellant proceeded with the trial without ever having asked the Trial Court to give him time to instruct counsel to represent him during trial.
15. This court thus came to the firm conclusion that the Appellant’s constitutional and fundamental right to fair trial had not been breached merely because the Trial Court did not inform him of his right to legal representation under Article 50(2)(g) of the Constitution of Kenya.
16. In view of the delays that would be occasioned by recalling witnesses due to failure by trial courts to promptly inform accused persons of their right to choose and be represented by an advocate and to be informed of this right promptly under Article 50(2)(g) of the Constitution of Kenya and bearing in mind substantial injustice that would otherwise result as provided in Article 50(2)(h) of the Constitution of Kenya, trial courts were called upon to comply with these provisions of the law when an accused person was first presented to court and before taking the plea as this was indeed the best practice besides being mandated by the law.
17. Indeed, Article 50(2)(h) of the Constitution of Kenya,2010 also provides as follows:-
“ Every accused person has the right to a fair trial, which includes the right 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.”
18. The right under Article 50(20(h) of the Constitution of Kenya is progressive and was currently being provided to those who were facing capital offences.
19. In the premises foregoing, this court found and held the additional Ground of Appeal No (1) was not merited and the same be and is hereby dismissed.
III. PROOF OF PROSECUTION’S CASE
20. Ground of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal No (1), (2), (4), (5) and (6) were dealt with under this head as they were all related.
21. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
22. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court dealt with the same under the following distinct and separate heads.
A. AGE
23. The Appellant placed reliance on the case of Ali Mwachongo vs Republic (2016) eKLR C.A (Mombasa) where the court rounded of the complainant’s age from fifteen (15) years and two (2) months to sixteen (16) years and sentenced the accused person to fifteen (15) years pursuant to Section 8(4) of the Sexual Offences Act.
24. Pursuant to the above authority, the Appellant argued that since the Birth Certificate that was produced showed that the Complainant (hereinafter referred to as “PW 1”) was seventeen (17) years and six (6) months old, the benefit of doubt should be resolved in his favour.
25. On its part, the Respondent submitted that the Charge Sheet indicated that PW 1 was seventeen (17) years of age at the time of the commission of the offence as the Birth Certificate No 113961 PC Grace Nasimuyu Wafula (hereinafter referred to as “PW5”) indicated that she was born on 27 th October 2003 and, therefore, a minor at the time of the commission of the offence.
26. It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense.
27. PW1 testified that she was seventeen (17) years old which the Clinical Officer, Evans Karega (hereinafter referred to as “PW 3”) also alluded to. A perusal of the Birth Certificate showed PW 1 was born on 27 th October 2003. The incident took place on 23 rd April 2021. She was about seventeen (17) years and about five (5) months old (almost six (6) months old) at the material time of the incident.
28. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut the said evidence by adducing evidence to the contrary, this court was satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at all material times.
B. IDENTIFICATION
29. In his submissions, the Appellant submitted that PW I never expressed the manner she was positioned when she identified the perpetrator, how she laid when the perpetrator inserted his penis to her vagina and also the intensity of the light available. She never disclosed to court on how the perpetrator entered the house and whether she used to stay with the perpetrator in the same house or not.
30. He argued that from PW1’s testimony, some questions left unanswered for example whether she had enough time to identify the perpetrator, how she knew that it was the penis which penetrated her vagina and how he entered the house.
31. He cited the case of Joseph Leboi vs Republic CA NO. 70 OF 1987 where it was held that it was possible for a witness to believe that she had been attacked by someone known to him or her but be mistaken irrespective of whether it was a case of recognition or identification and the court, therefore, had to warn itself of the danger of convicting a person on the evidence of a single witness.
32. On its part, the Respondent submitted that the Appellant was well known to PW1 as her cousin and they lived in the same homestead. She stated that there was light from a solar lamp and was able to identify him as he flee after she screamed. She knew his name and identified him in court therefore, there was no mistake on identity. It stated that this was evidence of recognition which has previously been held by courts to be more reliable and weightier than that of identification of a stranger in the case of Anjononi & Others vs Republic (1976-80)1 KLR 1566, 1568 .
33. When he was cross-examined, the Appellant admitted that PW 1 was his neighbour. He added that her mother had given him work but he refused to pay him Kshs 150/=.
34. PW 1 stated that she recognised the Appellant because the solar light was on. As she and the Appellant were knew each other, this court was satisfied that there could not be any mistaken identity as they were both known to each other. Identification was by way of recognition.
C. PENETRATION
35. The Appellant did not submit on this issue. On its part, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed vs Republic[2020]eKLR where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. It submitted that the evidence of PW 1 was corroborated by PW 3 who testified that her hymen was freshly torn which proved penetration.
36. According to PW 1, on the night of 23 rd April 2021, her mother left her with her younger siblings. She stated that that after studying in the sitting room, they went to sleep and that in the middle of the night, somebody laid on top of her and raped her. She said that at the time, she was sleeping with the youngest child in her mother’s room.
37. She said that she was able to see the perpetrator, the Appellant herein, as the solar lamp was on. Her evidence was that she screamed and he ran away. She added that she went to call her grandmother and together they went to the Appellant’s grandmother to report the incident. Her evidence was that her mother came in the morning and they went and reported the incident to Mudete Police Station and obtained treatment from Mbale Hospital. She was emphatic that she did not consent to sleep with the Appellant herein.
38. The Assistant Chief, David Ojango (hereinafter referred to as “PW 2”) that he got the report about the defilement and he assisted in tracing and arresting the Appellant at his maternal grandmother’s home and escorting him to the Police Station.
39. PW 3 confirmed that the defilement was within twenty four (24) hours. He said that he observed a freshly torn hymen, gaping of the vaginal wall with lacerations on the inner wall with redness and a bad odour with whitish discharge. He stated that that was proof of penetration. He produced P3 Form, PRC Form and treatment notes as exhibits in the matter.
40. PW 1’s grandmother, Priscilla Mbone Mugossa (hereinafter referred to as “PW4”), confirmed that PW 1 woke her up at 2.00 am and she informed her that the Appellant raped her. She said that she had a torn dress and she told her that they struggled.
41. The Appellant’s grandmother(hereinafter referred to as “DW 2”) told the Trial Court that the Appellant was arrested on the day he arrived at her home on the date he was arrested at 8.00 am. She asked the Trial Court to forgive him in the event he had committed the offence.
42. Notably, the proviso of Section 124 of the Evidence Act states that:-
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth ( emphasis) .”
43. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other.
44. The Appellant placed reliance on the case of Wendoh vs Republic (1953) 20 EA 166 where it was held that the prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. He submitted that PW1’s siblings who were in the same house with her were not called to testify to shed more light or to confirm if PW 1 raised an alarm.
45. On its part, the Respondent referred to Section 143 of the Evidence Act Cap 80 (Laws of Kenya) which provides that no particular number of witnesses shall, in the absence of any provision of the law to the contrary, be required for the proof of any fact. It placed reliance on the case of Keter vs Republic (2007) E.A 135 where it was held that the prosecution was not obliged to call superfluity of witnesses, but only such witnesses as were sufficient to establish the charge beyond any reasonable doubt.
46. It submitted that the prosecution had the discretion to determine the witnesses it wished to call and could only be faulted if it failed to call crucial witnesses. It was emphatic that it called all crucial witnesses including the clinical officer who corroborated PW1’s evidence.
47. Section 143 of the Evidence Act provides as provides as follows:-
“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact. “
48. Indeed, there was no requirement that the prosecution to call a particular number of witnesses to prove a fact. However, despite having this liberty, failure to call witnesses to fill gaps in its case was detrimental to its case. In other words, where the prosecution failed to call crucial witnesses, an inference could be made that their evidence would have been in adverse to its case. Even so, the inference could only be made where the evidence was not adequate.
49. The Appellant’s submissions that the prosecution’s case had conflicting evidence was neither here nor there as PW1 testified that the incident happened on 23 rd April 2021. The PS Form had a stamp for 24 th April 2021 and not 23 rd April 2020 as Appellant alleged in his submissions. How PW 1 knew it was a penis that penetrated her or how she knew if he released sperms in her or how he entered the house were also immaterial.
50. Although the denied committing the offence and stated that he was framed, it was evident that PW1’s evidence that she was defiled on the material night was corroborated by PW 3’s medical evidence and that of PW 4 who corroborated her evidence that she went to her house and informed her of the rape by the Appellant. The evidence that was adduced by the Prosecution outweighed the evidence that he tendered in court.
51. It was the view of this court that the evidence before the trial court was sufficient to have formed a basis for conviction as the Prosecution proved their case to the required standard, which in criminal cases, was prove beyond reasonable doubt.
52. In the premises foregoing, Ground of Appeal No (1), (2), (3) and (4) of the Petition of Appeal and Supplementary Grounds of Appeal No (1), (2), (4), (5) and (6) were not merited and the same be and are hereby dismissed.
IV. SENTENCE
53. Ground of Appeal No (3) of Supplementary Ground of Appeal was dealt with under this head.
54. The Appellant submitted that he was arrested on 23 rd April 2021 and was convicted and sentenced on 18 th August 2023. He argued that the sentence of fifteen (15) years ought to have run from the date when he was arrested.
55. On its part, the Respondent cited Section 8(3) of the Sexual Offences Act and made reference to Section 333(2) of the Criminal Procedure Code and relied on the case of Ahamad Abolfathi Mohammed & Another vs Republic[2018]eKLR where it was held that courts must take into account the period which the accused spent in custody during trial while sentencing them. It submitted that during sentencing, the Trial Court directed that the Appellant’s sentence run from the date of the inception of the case, being 26 th April 2021.
56. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that:-
“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 (emphasis court) ” .
57. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:-
“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:…
Time already spent in prison by the convict…”
58. The duty to take into account the period an accused person had remained in custody before sentencing pursuant to Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
59. The Charge Sheet showed that the Applicant was arrested on 15 th September 2018. The surety was approved on 20 th September 2018. He was convicted on 9 th September 2020 when the bond was cancelled and he was sentenced on 21 st September 2020.
60. Notably, the Appellant was charged under Section 8(4) of the Sexual Offences Act Cap 63A (Laws of Kenya). The same provides as follows:-
“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.”
61. The sentence of fifteen (15) years was the minimum mandatory sentence. A perusal of the Trial Court proceedings indicated that the Trial Court directed that the sentence would run from the date of inception of the case. This meant that the Appellant was sentenced to more than the minimum mandatory sentence. The Trial Court was required to justify why the two (2) years the Appellant spent in remand ought to have being part of his sentence.
62. This is because the Appellant herein had a right under Article 50(2)(p) of the Constitution of Kenya which provides as follows:-
“Every accused person has the right to a fair trial, which includes the right 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.”
63. In the absence of any justification or demonstration of aggravating circumstances, the Appellant ought to have been sentenced to fifteen (15) years imprisonment and granted the period that he spent in remand while his trial was ongoing.
64. The Appellant was arrested on 23 rd April 2021 and was sentenced on 18 th August 2023. Although it is not clear when he was released on bail/bond, his bond/bail was approved on 15 th July 2021. He did not appear in court on 21 st July 2021 when a warrant of arrest was issued. The said warrant of arrest was lifted when he appeared in court on 11 th August 2021.
65. He did not appear in court again and on 1 st November 2021, another warrant of arrest was issued. He was brought to court under arrest on 25 th November 2021 when the surety sought to withdraw the security, which the Trial Court granted. The Appellant, therefore, remained in custody from that time until he was sentence,
66. The periods that he remained in custody between 23 rd April 2021when he was arrested and 15 th July 2021 when he was released on bail/bond and 25 th November 2021 when he was brought to court under arrest and 17 th August 2023 ought to have been taken into account at the time the Trial Court sentenced him in line with Section 333(2) of the Criminal Procedure Code.
67. In the premises foregoing, Ground of Appeal No (3) of Supplementary Ground of Appeal was merited and the same be and is hereby allowed.
DISPOSITION
68. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 28 th January 2025 and filed on 31 st January 2025 and Supplementary Grounds of Appeal dated 21 st July 2025 and filed on 24 th July 2025 was partially successful. His conviction and his sentence of fifteen (15) years be and are hereby upheld as they were both safe.
69. However, for the avoidance of doubt, t he periods that the Appellant remained in custody between 23 rd April 2021 and 15 th July 2021 and between 25 th November 2021 and 17 th August 2023 be and are hereby taken into account while computing his sentence pursuant to Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya).
70. It is so ordered.
DATED and DELIVERED at VIHIGA this 29 th day of April 2026
J. KAMAU
JUDGE
HCCRA E002 OF 20252