Robinson Kipngetich Korir v Republic

5. Being aggrieved with the Judgment of the trial court, Robinson Kipngetich Korir through a homemade Petition of Appeal filed on 28th April 2023 and an Amended Petition of Appeal dated 22nd May 2024 appealed against his conviction and sentence. 6. This being the first appellate court, I have a duty to re-evaluate the evidence on record afresh and come to my own independent findings. See Mark Ouiruri Mose vs Republic (2013) eKLR. 7. I now proceed to consider the case before the trial court in summary and the parties’ submissions of the Appeal in the succeeding paragraphs. The Respondent/ Prosecution’s Case. 8. It was the Prosecution’s case that the Appellant defiled AC (PW1) on diverse dates between 28th September 2022 to 18th October 2022. PW1 testified that on 18th October 2022, she was in the company of her brother K (PW3) when the Appellant accosted them and chased away PW3. PW1 further testified that the Appellant dragged her to the nearby bushes and defiled her in her vagina and anus. It was PW1’s testimony that the Appellant had defiled her before. 9. Geoffrey Kirui (PW4) who was the clinical officer from Bomet Health Centre testified that he examined PW1 and found lacerations and inflammation on her labia majora and minora. PW4 further testified that upon conducting a HVS swab, he found plenty of red blood cells on PW1’s anus and vagina. It was PW4’s conclusion that there was vaginal and anal penetration. The Accused/Appellant’s case 10. The Appellant (DW1) gave unsworn testimony and denied committing the offence. The Appellant testified that before he was arrested, Michael had come to see him demanding payment of a debt over some potatoes and hat Michael hit him. The Appellant further testified that he reported the matter to the Chief and tried resolving the issue with him but nothing was done. 11. It was the Appellant’s testimony that on the material day, he was surrounded by his family members and later arrested without being informed what he was being charged with. 12. Hassan Korir (DW2) testified that he was with the Appellant on 15th October 2022 at work until the evening when he was arrested. 13. Leonard Kipkoskey Langat (DW3) testified that he worked with the Appellant on 15th October 2022 to 18th October 2022 from 6 a.m. to 7 a.m. 14. Wesley Kiplangat Rono (DW4) testified that he worked with the Appellant from 7 a.m. to 7 p.m. 15. By the time of writing this Judgement, both the Appellant and the Respondent had not filed their written submissions. I shall consider the grounds raised by the Appellant in both his Petition of Appeal filed on 28th April 2023 and Amended Petition of Appeal dated 22nd May 2022. 16. I have gone through and given due consideration to the trial court’s proceedings, the home-made Petition of Appeal filed on 28th April 2023 and the Amended Petition of Appeal dated 22nd May 2024. The following issues arise for my determination: i. Whether there were procedural issues affecting a fair trial. ii. Whether the Prosecution proved its case beyond reasonable doubt. iii. Whether the Appellant’s defence placed doubt on the Prosecution case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12781/eng@2025-09-18 2

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iv. Whether the sentence preferred against the Appellant was harsh. i. Whether there were procedural issues affecting a fair trial. 17. It was a ground of the Appeal that the Appellant was not provided for an advocate by the trial court and hence his rights to a fair trial as envisaged under Article 50 of the Constitution were infringed and he suffered prejudice. Article 50(2) (h) of the Constitution of Kenya 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. However, such right to have an advocate assigned to an Accused was not absolute and had limitations. The Court of Appeal in David Njoroge Macharia v Republic [2011] KECA 406 (KLR) held: “ Article 50 sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a court appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence.” (Emphasis mine) 19. I have carefully gone through the trial court proceedings and I have noted that the Appellant was not provided for an advocate by the trial court and neither was he informed of his right to have an advocate bearing in mind the nature of the offence and the sentence it carried. In my view, this was a great omission on part of the trial court as such obligation was enshrined in Article 50(2) (h) of the Constitution of Kenya. 20. Having said that, the sole question that now arose was whether or not the Appellant suffered any injustice or prejudice. Having gone through the trial court proceedings, I have noted that the Appellant participated in his trial from the onset to its conclusion. He was present in court when all five prosecution witnesses testified and he cross examined all of them. In his defence, the Appellant gave unsworn testimony and called three witnesses. There is nothing in the trial court record that indicated that the Appellant suffered prejudice as a result of not being represented by an Advocate, He understood the charge he faced and fully participated in his trial and tendered his defence. This ground of Appeal was an afterthought and I dismiss it. I concur with Kamau J. in Okudo v Republic [2023] KEHC 22873 (KLR), where she held: “ Having said so, the question that now arose was whether or not he suffered any injustice and/or there was an infringement on his right to fair trial. It must be appreciated that it not always that such omission must cause an accused person injustice as it can be remedied.” 21. It was a further ground of the Appeal that the trial court failed to properly conduct the a voire dire examination on the minors. That the trial Magistrate did not comply with the provisions of section 19 of the Oaths and Statutory Declarations Act. 22. Section 19 of the Oaths and Statutory Declarations Act provides: (1) Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12781/eng@2025-09-18 3

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opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section. (2) 23. If any child whose evidence is received under subsection (1) wilfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be guilty of an offence and liable to be dealt with as if he had been guilty of an offence punishable in the case of an adult with imprisonment. Voire dire was explained in the case of John Mwangi Macharia & another v Republic [1976] KEHC 14 (KLR), as follows: “ It [voir dire] must be a preliminary examination of a witness by the magistrate in which the witness is required “to speak the truth” with respect to questions put to him, or her, so that the magistrate can discover if he, or she, is competent (e.g. she is not too young, or she is not insane) to give evidence and should be sworn or affirmed (according to whether or not she is a Christian, or of any other, or no, faith, and understands the nature and obligation of an oath to tell only the truth)…..” 24. In the present case, the court record shows that on 15th December 2022 the trial court conduced a voire dire examination on the victim, PW1 and recorded as follows: “ The child is posed with sufficient intelligence to testify under oath as she understands the duty of speaking the truth and can therefore be sworn.” 25. The conventional method of conducting a voire dire examination is for the court to interrogate the minor and record the questions asked and the answers given by the minor. However, courts have allowed the procedure in conducting voire dire to be varied. In Maripett Loonkomok v Republic [2016] KECA 520 (KLR), the Court of Appeal held that: “ Although this decision, through section 19 of Oaths and Statutory Declarations Act underpinned the legal practice in relation to children’s testimony in Kenya, we reiterate that the format and procedure of testing the intelligence, and sufficient knowledge and nature of the oath has been varied. For instance, in the past the courts insisted that voir dire examination must be in the form of a dialogue, with the trial court recording questions posed to the child and the child’s answers nearly verbatim in the first person before drawing its conclusion on the question of suitability of the child. See Johnson Muiruri v R (1983) KLR 447. The courts today accept both the question and answer format and the recording of the child’s answers only. See James Mwangi Muriithi (supra). What is constant is that, whatever format the court adopts it must be on record. It is equally settled that by dint of sections 208 and 302 of the Criminal Procedure Code, the law allows cross-examination of a witness who does not give evidence on oath. 26. Flowing from the above, it is my finding that the trial court conducted a proper voire dire examination on the victim (PW1) and recorded the same. Accordingly, this ground of appeal is dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12781/eng@2025-09-18 4

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ii. Whether the Prosecution proved its case beyond reasonable doubt. 27. It is trite law that for the offence of defilement to be established, the age of the victim, penetration and positive identification or recognition of the offender have to be proved. 28. Regarding the age of the victim, Rule 4 of the Sexual Offences Rules of Court 2014 provides that: When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document. 29. No. 79xxx Cpl Neilius Wanjohi (PW5) produced a Birth Certificate as P. Exh 1. I have looked at the Birth Certificate and it indicated that the victim (PW1) was born on 21st May 2011. Based on the contents of the Birth Certificate, it is my finding that PW1 was aged 11 years old at the time of the commission of the offence. 30. On the issue of identification, the victim (PW1) testified that she knew the Appellant. She further testified that the Appellant had on two occasions defiled he before and that on the material day, the Appellant found her with PW3 before he chased PW3 away. MC (PW2) testified that she was PW1’s aunt and she lived with PW1. PW2 further testified that the Appellant was their neighbour and when PW2 was cross examined, she testified that the Appellant was her brother-in-law. 31. Kevin Kiprop Rotich (PW3) testified that the victim (PW1) and the Appellant were neighbours and on the material day, the Appellant found him in the company of the victim before he chased him away. 32. The victim (PW1) identified the Appellant in court. In the case of Muiruri & Others vs Republic (2002) KLR 274, the court held that: “ …………….We do not think that evidence will be rejected merely because it is dock identification evidence. The court might base a conviction on such evidence if satisfied that on the facts and circumstances of the case the evidence must be true and if prior thereto the court duly warns itself of the possible danger of mistaken identification.” 33. Flowing from the above, it is clear to me that the Appellant and the victim were not strangers to each other. The victim’s uncontroverted testimony was that the Appellant had defiled her before. PW2 and PW3 also identified the Appellant as their neighbour. In light of these circumstances, there was no possibility of mistaken identity. Therefore, it is my finding that the Appellant was positively identified as the perpetrator of the offence by the victim. 34. With regards to penetration, Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of genital organs into the genital organs of another person. The Prosecution has to prove penetration or act of sexual intercourse to sustain a charge of defilement. 35. Penetration can be proved through the evidence of the victim corroborated by medical evidence. It should however be noted that if the medical evidence is insufficient, courts can convict solely on the evidence of a victim provided they believe the testimony of the victim and record such reasons. 36. In the instant case, I shall carefully evaluate the victim’s testimony and the medical evidence tendered. 37. AC (PW1) testified that on the material day, the Appellant dragged her to a bush, removed his trouser and defiled her. The victim testified that the Appellant penetrated both her anus and vagina and threatened her if she told anyone. When PW1was cross examined, she reiterated that the Appellant defiled her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12781/eng@2025-09-18 5

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38. Geoffrey Kirui (PW4) who was the clinical officer testified that he examined the victim and found that the victim had lacerations and inflammation on her labia majora and minora. PW4 further testified that there were numerous epithelial cells upon a laboratory examination. It was PW4’s testimony that a HVS swab on the victim’s vagina and anus confirmed the presence of numerous red blood cells. PW4 produced treatment notes, a P3 Form and a PRC Form treatment notes and lab results as P. Exh 2, P. Exh 3 and P. Exh 4 respectively. I have looked at the exhibits and the findings corroborate PW4’s testimony. 39. The medical evidence corroborated the victim’s testimony. I am inclined to accept the medical evidence and PW4’s professional opinion that there had been penetration. 40. It was a ground of the Appeal that the trial court had erroneously made a finding on the presence of spermatozoa whereas the clinical officer (PW4) did not testify as to the presence of spermatozoa. The Court of Appeal in the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR) expressed itself on this matter as follows: “ …… and the effect that the medical examination was carried out on her on 16th November 2008, five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and the penetration need not be deep inside the girl’s organ….” 41. As guided by the authority above, the law does not require the presence of spermatozoa as proof of penetration. What is important is that the ingredient of penetration is proved beyond reasonable doubt which I have found sufficiently proved by the Prosecution. 42. Based on the totality of the evidence before me, it is my finding that the Prosecution proved the age of the victim (PW1), the Appellant’s positive identification and the victim’s penetration. It is also my finding that Prosecution proved its case against the Appellant beyond reasonable doubt. iii. Whether the Appellant’s defence placed doubt on the Prosecution’s case. 43. The Appellant (DW1) denied committing the offence. He testified that before he was arrested, he had a debt problem with a certain Michael. DW1 testified that the said Michael hit me and he reported the matter to the Chief. 44. The Appellant raised an alibi defence through the testimonies of Hassan Korir (DW2), Leonard Kipkoskey Langat (DW3) and Wesley Kiplangat Rono (DW4), who all testified to being in the work place with the Appellant on the material day. In the case of R vs Sukha Sign S/O Wazir Singh & 7 Others (1939) 6 EACA 145, the former Court of Appeal for Eastern Africa held that: “ If a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there is naturally a doubt as to whether he has not been preparing it in the interval, secondly, if he brings it forward at the earliest possible moment, it will give prosecution an opportunity of inquiring into the alibi and if they are satisfied as to its genuineness, proceedings will be stopped”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12781/eng@2025-09-18 6

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45. It is trite that once the Appellant raised an alibi defence, the onus was on the Prosecution to displace the defence of alibi after the defence raises it at the trial. The Court of Appeal in the case of Wangombe Vs Republic (1980) KLR 149 held as follows: “ ……. In Ssentale vs. Uganda (1968) EA 365, 368 (Sir Udo Udoma CJ)…. said that a prisoner who puts forward an alibi as an answer to a charge does not thereby assume any burden of proving that answer; it is a misdirection to refer to any burden as resting on the prisoner in such a case; for the burden of proving his guilt remains throughout the prosecution. We agree, we have ourselves said so on more than one occasion. The defence of alibi was put forward for the first time some four months after the robbery when the appellant made his unsworn statement in court. Even in such circumstances the prosecution or the police ought to check and test the alibi wherever possible”. 46. In the present case, the Appellant’s defence of alibi was raised at the defence hearing and not at the beginning of the trial thus denying the Prosecution an opportunity to verify the alibi. I have also noted that the issue of the alibi was not put across the Prosecution witnesses during cross examination. This in my view was an afterthought by the Appellant. 47. Having gone through the Appellant’s defence as a whole, it is my finding that it was a mere denial, shallow and an afterthought. In summary, the Appellant’s defence did not cast any doubt on the Prosecution’s case which I have already found proven. iv. Whether the sentence preferred against the Appellant was harsh. 48. The penal section for this offence is found in section 8(2) of the Sexual Offences Act which states that: A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life 49. Having gone through the trial court record and bore in mind the circumstances of the case, there is no reason exhibited for this court to interfere with the trial court’s sentence. The sentence was lawful and commensurate to the offence. 50. In the end, I uphold both the conviction and the sentence as passed by the trial court. The Appeal is dismissed. JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 18TH DAY OF SEPTEMBER, 2025. ................................ Hon. JULIUS K. NG’ARNG’AR JUDGE Judgement delivered in the presence of: Siele/Susan (Court Assistants) Appellant present in person Koech for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12781/eng@2025-09-18 7

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