Willy v Republic (Criminal Appeal 91 of 2020) [2023] KECA 864 (KLR)

Article 50(2)(h) requires that an advocate be assigned at State expense only where substantial injustice would otherwise result, and the accused must be informed of the right promptly. Relying on Charles Maina Gitonga v Republic, the court held the accused must first establish entitlement, including inability to meet trial expenses. The record showed the appellant ably cross-examined each prosecution witness and gave his defence, demonstrating no prejudice or substantial injustice.

Citing Johnson Nyoike Muiruri v Republic and Peter Kiriga Kiune, the court restated that a court must form an opinion whether a child of tender years understands the nature of an oath; if not, unsworn evidence may be received if the child has sufficient intelligence and understands the duty to speak the truth. Here the child answered questions intelligently and said she would tell the truth; the court properly opted for affirmation given her stated lack of Sunday School attendance.

Age was proved by the Health Card showing the complainant was born on May 24, 2007 (8 years old). Penetration was established by medical evidence of an anal tear and bleeding, with the clinical officer concluding she had been sodomized. Identity was established by the complainant's prompt, uncoached identification in broad daylight, footprints leading to the appellant's homestead, and the appellant's failure to explain his father's testimony about his whereabouts.

Although the sentencing proceedings were not on record, the High Court judgment showed the appellant pleaded remorse and was a first offender. The court held the two courts below exercised sentencing discretion properly. Given the gravity of the offence - sodomizing an 8-year-old child leaving physical scars and permanent psychological trauma - a deterrent and denunciatory sentence was warranted. The court declined to find the Sexual Offences Act incompatible with the Constitution on the facts.