Erick Novala Matala v Republic

Appeal 5. Aggrieved by the conviction and sentence, the Appellant filed instant appeal raising the following grounds: a. That, the learned trial magistrate erred in law and fact in conduction of proceedings that viol of the positions of the law of Kenya hence null and void. b. That, the learned trial magistrate erred in law and fact in arriving at a decision basing on evidence that were full of contradictions and without analyzing the same. c. That, the learned trial magistrate erred in law and fact in convicting me basing on extraneous factors. d. That, the learned trial magistrate erred in law and fact in acting biasedly by favouring the Prosecution in the decision making. e. That, the learned trial magistrate erred in law and fact in the decision making by failing to analyze the Prosecution case that was not proved to the required standards as required by law. f. That, I wish to adduce more grounds of appeal when the same comes up for hearing. 6. The Appellant prayed that this Court allows his appeal in its entirety, quash his conviction and the trial Court sentence be set aside, and he be set at liberty. 7. The appeal was canvassed by way of written submissions. Both parties complied. 8. The Appellant filed his amended grounds of appeal with his written submissions pursuant to Section 350(2) of the Criminal Procedure Code, and preferred the following grounds: a. That, the learned trial magistrate erred in both law and fact when he convicted the Appellant in this instate case, yet failed to note that the trial was unfair: i. Article 50 (2) (h), Article 50 (2) (j) and Article 50 (2) (c), Sections 213 and 310 of the C.P.C (final submissions). The Appellant was not given witness statements prior to the hearing. ii. Neema Ruth, a crucial witness, was not called to give evidence, denying the Court the opportunity to know the truth, thereby flouting Section 150 of the C.P.C under the right to a fair hearing. b. That, the learned trial magistrate erred in both law and fact when he convicted and sentenced the Appellant herein to Thirty (30) years of imprisonment and failed to note that the witnesses were incredible and their evidence unreliable. c. That, the learned trial magistrate erred in both law and fact, when he convicted the Appellant and failed to that the penetration of vagina of the Complainant was not proved against the Appellant herein. d. That, the learned trial magistrate erred in both law and fact, when he convicted the Appellant in this instant case and failed to note that defilement was not conclusively proved against the Appellant herein in this case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 2

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9. e. That, the learned trial magistrate erred in both law and fact, when he meted out Thirty (30) years of imprisonment to the Appellant herein which is inhuman, degrading, oppressive and a torturous punishment. f. That, other grounds may be orally submitted during the hearing of this appeal. g. That, I wish to be present in person during the hearing of this appeal. The duty of a first appellate Court was restated in the case of David Njuguna Wairimu v. Republic [2010] eKLR wherein the Court of Appeal cited the case of Okeno v. R [1972] EA. 32 and held thus: “ The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellant court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions.” Evidence 10. After a brief voire dire examination, the trial magistrate established that the minor was intelligent, but did not understand what an oath is and its sanctions. He deduced that it was best she gave an unsworn statement. 11. It was the Respondent’s case that the minor in this matter who gave evidence as PW1, was a student at (particulars withheld) Primary School and that she had known the Appellant for a long time (pointed at the Appellant in the dock). That the Appellant was a boda boda rider who used to assist her mother in cleaning dishes, and also carried her to school. She told the Court that, on the day of the incident while her mother had gone to work, the Appellant brought milk, in the evening. 12. That the Appellant knocked on the door, which she opened and he came on to her and asked her to sleep on her mother’s bed. She told the Court that she clearly mentioned it to the Appellant that, she only sleeps with her sister in the sitting room. Upon her refusal, the Appellant pulled her forcefully into the room and pushed her on her mother’s bed where he proceeded to remove her clothes, his trouser and under pant and asked her to suck on his thing, in between his legs (the thing he uses to urinate with). She told the Court that on her refusal, the Appellant forced himself on her and proceeded to put his thing in between her legs, where she urinates from. 13. She told the Court that she resisted his actions as her mother had told her it was bad manners but the Appellant forcefully proceeded to do bad manners on her, prompting her to scream from pain. She told the Court that her screams also prompted her sister to scream and woke up neighbours. It was her testimony that the Appellant quickly covered her mouth and proceeded to defile her. After the incident, the Appellant told her to go and sleep as he remained on her mother’s bed. According to her, the Appellant slept on her mother’s bed until the time her mother came back home from work, in the morning, and he opened the door for her. She testified that as soon as the Appellant left the house, she told her mother what transpired and she rushed her to the hospital and reported the incident to the police. 14. On cross-examination, she told the Court that she knew the Appellant and her testimony is nothing but the truth. She told the Court that the Appellant had taken her to school before and that the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 3

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Appellant even promised to buy her school books if she performed well. She insisted that nobody asked her to state what she said in Court. 15. PW2, Elias Adoka, a Clinical Officer based at Bungoma County Referral Hospital stated that he was before the Court to present the P3 form of the minor herein filled on 2nd April 2017. He told the Court that at the time he examined the minor, she had changed her clothes, and her mother came along with a white blue stripped pant alleging that it was stained with semen. That the minor visited the facility with a history of defilement and that he examined her 3 days after the incident. 16. He stated that on vaginal examination, he observed the hymen was partially torn with presence of redness and discharge in the vaginal opening. On laboratory examination, VDRL test was negative, the urinalysis test indicated presence of pus cells and blood discharge. His prognosis was that the minor was defiled. 17. On cross-examination, he the minor was accompanied by her mother and it was after tests that he opined she had been defiled. He told the Court that he did not know who defiled her. 18. PW3, Samson Otieno Oduor, testified that he knew the minor and her mother as they were neighbours. He recalled that on 31st March 2017, he was at his house when he heard screams from the minor’s home and deduced that a child was crying. He quickly reduced the volume of his radio and then heard someone say “pea mtoto chai” and a response stating “amekataa”. The child continued crying and this prompted him to go and investigate the issue. He told the Court that the child later stopped crying and he went back to his house. The next day in the evening he was informed by the minor’s mother that her child was allegedly defiled by bodaboda rider. 19. On cross-examination, he told the Court that he knew the Appellant herein as he had seen him on several occasions in town, but did not see him that night and that the moment he heard the child crying her mother was not around, He testified that he did not see the person who was speaking. 20. PW4, GWC, testified that she was the minor’s mother and that she works in the Hotel and Bar Industry. She stated that she knew the Appellant prior to the incident. It was her testimony that the Appellant would transport her child and he later became her boyfriend. She told the Court that the minor was born on 15th March 2010 as per the availed Birth Certificate, PEXH3, and that on 31st March 2017, she was on night duty at Drips Club Kanduyi where she worked. 21. It was her testimony that she lived with her two daughters and that when she left for work she had instructed the minor to lock the door from the inside and the Appellant dropped her at the stage where she took a tuktuk to her place of work. She told the Court that she had given the Appellant money to purchase milk and take it to her children and as the children knew him very well she was not worried. It was her testimony that, she clocked out of work at 6.00 a.m. and on arriving at her house she met the Appellant who was equally surprised to see her. The Appellant appeared as if he was about to leave her house when she got home and encountered him. That when she called out to the minor who was sleeping on the mattress in the sitting room, the minor started crying. Her neighbours including PW3 informed her that the children were crying a lot during the night. She testified that, the minor woke up from where she was sleeping and, on her observation, she noted that she was not walking steadily. 22. With her neighbor, Doreen, she placed the minor on the mattress and on inspecting her she noted the minor did not have any under pant and saw blood spots and discharges on her private part, thighs and skirt, which was torn. On inquiry, the minor told her what happened. She rushed her to Bungoma County Referral Hospital and later lodged a report at Bungoma Police Station. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 4

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23. On cross-examination, she told the Court that the Appellant was no longer her lover and she did not hold any grudge against him. She stated that when she arrived at her house that early morning she found the Appellant in her house. 24. PW5, C.P Everlyne Okello, testified that on 1st April 2017 while at her duty post, the minor in the company of PW4 lodged a defilement report against the Appellant. On interrogating the her, she established that the incident occurred on 31st March 2017, when PW4 had gone to work. She produced before the Court the Complainant’s Birth Certificate as PEXH3 which indicated at the time of the incident the minor was Seven (7) years old. She recorded the Complainant’s, PW4’s and one Doreen Nafula’s statements, but she was unable to trace Doreen Nafula as she moved houses. She told the Court that she established that the Appellant and PW4 had a love relationship. It was her testimony that, based on the recorded statements, she was satisfied that the Appellant defiled that minor and proceeded to charge the Appellant. 25. On cross-examination, she told the Court that she did visit the scene of the crime and established that when the incident occurred there were no eye witnesses. She testified that the Complainant told her she only opened the door to their house for the Appellant as the Appellant had told her PW4 had left him some money to buy and take to them milk. Further, she told the Court that the clothes the minor wore on the day of the incident were collected as exhibits, and as soon as she concluded her investigations she apprehended the Appellant. 26. At the close of the Prosecution’s case, the Appellant was placed on his defence whereupon he tendered his sworn evidence denying committing the alleged offence and insisted that the Complainant knew him very well as his step-father and that he was living with them. His testimony alluded to situations of him tolerating PW4’s drunken and whorish nature and that the charges against him are a frame up. He insisted that on the date of the incident he was in the house with PW4 and that each of them slept separately. Issues For Determination 27. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the submissions and the applicable law. The issues for determination are as follows: a. Whether the Appellant’s right to fair trial was violated. b. Whether the Respondent proved its case to the desired threshold; c. Whether the sentence meted upon the Appellant was appropriate. Analysis And Determination a. Whether the Appellant’s right to fair trial was violated. 28. 29. The right of an Accused person to fair trial are provided for under Article 50 of the Constitution of Kenya which stipulates as follows: (2) an accused person has a right - (g) to choose, and be represented by an advocate and to be informed of this right promptly. Article 50 of the Constitution imposes a fundamental duty on the Court to promptly inform an accused person of his right to be represented by legal counsel. Indeed, it is only after being informed of the right https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 5

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to legal representation that an accused person can decide whether he will be represented by counsel or not. 30. The legal framework for implementing the requirements under Article 50 is contained in the Legal Aid Act, No. 6 of 2016 which, at Section 43 thereof, outlines the duty of the Court as follows: Duties of the Court (1) A court before which an unrepresented accused person is presented shall— (1A) 31. a. promptly inform the accused of his or her right to legal representation; b. if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and c. inform the Service to provide legal aid to the accused person. In determining whether substantial injustice referred to in paragraph (1) (b) likely to occur, the court shall take into consideration— a. the severity of the charge and sentence; b. the complexity of the case; and c. the capacity of the accused to defend themselves. (2) The Service shall provide legal aid to the accused person in accordance with this Act. (3) Where a child is brought before a court in proceedings under the Children Act (No. 8 of 2001) or any other written law, the court may where the child is unrepresented, order the Service to provide legal representation for the child. (4) Where an accused person is brought before the court and is charged with an offence punishable by death, the court shall, where the accused is unrepresented, order the Service to provide legal representation for the accused. (5) The provision of legal representation under sub-section (4) shall be subject to the criteria for eligibility for legal aid under this Act. (6) Despite the provisions of this section, lack of legal representation shall not be a bar to the continuation of proceedings against a person. The right to legal representation, as a prerequisite to fair trial, was aptly explained by the African Commission in Avocats Sans Frontiers (on Behalf of Bwampanye) v. Burundi, African Commission on Human Rights, Comm. No. 213/99 (2000) thus: “ …Legal assistance is a fundamental element of the right to fair trial. More so where the interests of justice demand it. It holds the view that in the case under consideration, considering the gravity of the allegations brought against the accused and the nature of the penalty he faced, it was in the interest of justice for him to have the benefit of the assistance of a lawyer at each stage of the case…the right to equal treatment by a jurisdiction, especially in criminal matters, means, in the first place, that both the defence and the public prosecutor shall have equal opportunity to prepare and present their pleas and indictment during the trial. They must in other words, be able to argue their cases …on an equal footing.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 6

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32. Courts have however held that the right to legal representation is not absolute and may be subjected to specific limitations. In S v. Halgryn 2002, (2) SACR 211 (SCA) para 11, Harms JA stated as follows: “ Although the right to choose a legal representative is a fundamental one and one to be zealously protected by the courts, it is not an absolute right and is subject to reasonable limitations.” 33. Similarly, in Karisa Chengo & 2 Others v. R, Cr Nos. 44, 45 & 76 of 2014, the Court of Appeal held thus: “ It is obvious that the right to legal representation is essential to the realization of a fair trial more so in capital offences. The Constitution is crystal clear that an accused person is entitled to legal representation at the State’s expense where substantial injustice would otherwise be occasioned in the absence of such legal representation. This court in the David Njoroge Macharia case (2011) eKLR seems to have expanded the constitutional requirement that legal representation be provided at state expense in cases where substantial injustice might otherwise result and to include all situations where an accused person is charged with an offence whose penalty is death. This may be misunderstood to mean that all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death. However, substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state obligation to provide legal representation arise.” (emphasis added) 34. From the above decision, it is clear that the main consideration in according an accused person the right to legal representation is whether substantive injustice will occur. In determining whether substantial injustice may occur, the Court must subject the circumstances of the case to a three-fold test, namely; it must consider the gravity of the offence which means that an Accused person must be facing a serious charge whose punishment is death, the complexity of the case and whether such a person is capable of affording legal representation. 35. In the present case, the trial record does not indicate whether the Appellant was informed of his right to legal representation. I have however considered the circumstances of the case which are that the Appellant was charged with the offence of defilement and the alternative charge of committing an indecent act with a child. 36. I have also considered the conduct of the trial Court and I note that the Appellant was duly informed of the charges against him in a language that he understood and was also furnished with all the documentary evidence that the Respondent intended to rely on. I therefore find that the Appellant was aware of the case against him as he correctly stated in his defence. I note that he also competently cross-examined all the witnesses which is an indication that he comprehended the proceedings before the trial Court. 37. Further, it is my finding that the mere failure, by the trial Court, to inform the Appellant of his right to legal representation was not fatal to the outcome of the case. This finding is fortified by the fact that the charge that the Appellant faced trial was not capital in nature so as necessitate the mandatory requirement that the Appellant be accorded legal representation. I therefore find that the test of substantial injustice fails and hold that the trial was conducted in a fair and just manner. I do not find any evidence of violation of the Appellant’s right to legal counsel or fair trial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 7

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b. Whether the Respondent proved its case to the desired threshold; 38. 39. 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 which provides: 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement 8(2) 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. The offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under Section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to issue. (see George Opondo Olunga v. Republic [2016] eKLR.) Proof of age of the Complainant. 40. A child is defined as a person under the age of eighteen years. 41. In the case of Hilary Nyongesa v Republic Eldoret Criminal Appeal, No. 123 of 2009 the Court stated that: “ Age is such a critical aspect in Sexual Offences that it has to be conclusively proved…. And this becomes more important because punishment (sentence) under the Sexual Offences Act is determined by the age of the victim.” 42. In Musyoki Mwakavi v Republic Machakos High Court Criminal Appeal No. 172 of 2012, the court was of the view that:“ …apart from medical evidence, the age of the complainant may also be proved by birth certificate, the victim’s parents or guardian and observation or common sense…”. 43. It was the evidence of PW4 that the minor was her daughter and that at the time of her rendering her testimony in Court she was 9 years old as she was born on 15th March 2010 and she proceeded to avail the Complainant’s Birth Certificate in Court as PEXH3. I believe the Birth Certificate is sufficient proof to establish the age of the minor. The trial Court found that the minor was 7 years at the time of the incident. 44. Based on my calculations, if the minor herein was born on 15th March 2010 as per her availed Birth Certificate (PEXH3) and the incident occurred on 31st March 2017, this simply means that at the time of the incident the minor was 8 years 6 months 12 days and the age as quoted in the charge sheet, 7 years, did not prejudice the Appellant as 7 years or 8 years still fall within a similar age bracket when considering the aspect of sentence. It is therefore sufficient to say that the age of the minor was proved beyond any reasonable doubt. Proof of penetration 45. Penetration is proved through the evidence of the victim corroborated by medical evidence. The testimony of the minor in this case coupled with a medical examination must be sufficient to determine whether penetration occurred. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 8

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46. Section 2 of the Sexual Offences Act provides that: “ Penetration” means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 47. In George Owiti Raya v Republic [2013] eKLR it was held that: “ There was superficial penetration because there was injury on the vaginal opening as the medical evidence has indicated and further there was a whitish-yellow foul-smelling discharge seen on the genitalia... it remains therefore that there can be penetration without going past the hymen membrane.” 48. Also, In the case of Erick Onyango Ondeng V. Republic (2014) eKLR the Court of Appeal held as follows on the aspect of penetration: “ In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured." 49. Similarly, in the case of The Supreme Court of Uganda held in the case of Bassita v. Uganda S.C. Criminal Appeal Number 35 of 1995, that: “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not a hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that it is sufficient to prove the case beyond reasonable doubt”. 50. The minor told the Court that, on the day of the incident, while her mother had gone to work at her hotel, the Appellant therein brought milk, in the evening. That, the Appellant pulled her forcefully into the room and pushed her on her mother’s bed where he proceeded to remove her clothes, his trouser and under pant and asked her to suck on his thing, in between his legs (the thing he uses to urinate with). She told the Court that on her refusal, the Appellant forced himself on her and proceeded to put his thing in between her legs, where she urinates from. She told the Court that she resisted his actions as her mother had told her it was bad manners but the Appellant forcefully proceeded to do bad manners on her, prompting her to scream from pain. She told the Court that her screams also prompted her sister to scream and make the neighbours wake up. It was her testimony that the Appellant quickly covered her mouth and proceeded to defile her. After the incident, the Appellant told her to go and sleep as he remained on her mother’s bed. 51. PW2, testified that at the time he examined the minor, she had changed clothes, and her mother came along with a white blue stripped pant alleging that it was stained with semen. He examined her 3 days after the incident, to be precise on 1st April 2017, as per the treatment notes which he availed in Court as PEXH2. On vaginal examination, he noted a partially torn hymen with presence of redness and discharge in the vaginal opening. On laboratory examination, VDRL test was negative, the urinalysis test indicated presence of puss cells and blood and his prognosis was that the Complainant herein was defiled. 52. On cross-examination, he stated that he opined she had been defiled as her hymen was partially torn. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 9

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53. From the above, it is clear that the Complainant had been defiled and that the clinical officer (PW2) confirmed the same. I am thus satisfied that penetration was proved by the Respondent to the required standard. Whether the Appellant was positivity identiffed by the minor. 54. The minor told the Court that the Appellant herein was the bodaboda man who used to carry her to school, assist her mother (PW4) clean their dishes and is well known to her. PW4 testified that the Appellant herein was her lover. It was the evidence of the minor that on the day of the incident she only opened the door for the Appellant as he told her that her mother (PW4) had given him money to buy some milk for them and take it to them. PW4 in her testimony confirmed that she had given the Appellant money to purchase milk for them and take the same to the house. She also stated that after clocking out of work and reaching home, she was surprised when she met the Appellant walking out of her house. 55. At the trial Court, the Appellant did not deny the fact that the minor knew him well and he even told the Court that the minor knew him very well as his step-father and that he was living with them. 56. This means that the evidence presented by the Respondent was not merely that of identification but recognition. I find guidance in the principles set out in the English case of R. v Turnbull (1971) QR 227 where it was held as follows: “ ... The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way....? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?.... Recognition may be more reliable than identification of a stranger but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.” (Emphasis added) 57. It is also accepted in law that evidence of recognition is stronger than that of identification because recognition of someone known to one is more reliable and assuring than the identification of a stranger (see Anjononi & Others v Republic [1980] KLR 59). 58. The evidence by the Respondent leaves no doubt that the Appellant is the one who penetrated the minor. Accordingly, I find that the elements of defilement namely, penetration and minority age of the victim were proved beyond doubt. The conviction was therefore proper. 59. The Appellant’s ground that the trial magistrate considered unreliable evidence from incredible witnesses must fail as the evidence tendered by the Respondent herein clearly placed him at the scene of crime. It is important to reiterate that, the Appellant’s conviction by the trial Court was based on the medical evidence of PW2 and the minor’s evidence. The minor was able to reiterate the events that occurred on that fateful day and identified the Appellant before the lower Court. Her chronology of events in describing the acts were in tandem with the evidence availed by PW2 which did confirm that the victim bore injuries that was a result of defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 10

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60. PW4 and PW5 may have had different accounts as regards the exact place of occurrence of the incident but the same did not extinguish the fact that the minor was defiled and did not vitiate the credibility of the Respondents witnesses. 61. In Erick Onyango Ondeng’ v Republic [2014] eKLR the Court stated as follows with regard to the duty of a Court when considering contradictory evidence. “ The primary duty of the trial court is to carefully analyze that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that timehonoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyze the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See Okeno v Republic (1972) EA 32).” 62. The way to treat contradictions in a case was stated by the Court of Appeal in Jackson Mwanzia Musembi v Republic (2017) eKLR where the Court cited with approval the Ugandan case of Twahangane Alfred v Uganda CR. Appeal No. 139 of 2002 (2003) UGCA,6 where it was held that: “ with regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 63. It is trite law that not all discrepancies and inconsistencies are fatal to the Prosecution case. The discrepancies must be of such gravity that they prejudice the Accused. In Mwangi v Republic [2021] KECA 345 (KLR) it was held: “ 34. On the alleged failure of the first appellate court to address inconsistencies, glaring gaps and extenuating gaps, the position in law and which we fully adopt is as was stated, inter alia by the court in Joseph Maina Mwangi v. Republic Criminal Appeal No. 73 of 1993, that: “In any trial, there are bound to be discrepancies and any appellate court in considering those discrepancies must be guided by the wording of section 382 of the Criminal Procedure Code to determine whether such discrepancies are so fundamental as to cause prejudice to the appellant or they are inconsequential to the conviction and sentences…” 64. Upon examination of the evidence, I find that the small contradictions did not affect the substance of the Respondent’s case. According to the minor, the incident occurred at her home in their mother’s room. The said contradictions did not cause any prejudice to the Appellant in any way as the key evidence was that of the victim who was alone with the Appellant in the room and the evidence of PW2 corroborated that. In all these, she mentioned the Appellant as the perpetrator. 65. On the failure by the Respondent to call crucial witness to tender in her evidence, the Appellant failed to submit on this ground. I note that the investigating officer stated that the other witness, Doreen Nafula, had recorded her statement, but she was unable to trace her as she had moved houses. Secondly, there is no law compelling the Respondent to avail a certain number of witnesses in order to prove its https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 11

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case. The Respondent is at liberty to avail the number of witnesses it believes will prove its case. In any case, I am satisfied that the witnesses who testified sufficiently proved the case against the Appellant and corroborated each other. 66. There was thus sufficient evidence to support the conviction of the Appellant. I find the conviction arrived at by the trial Court was sound and I see no reason to interfere with it. The appeal on conviction therefore lacks merit. c. Whether the sentence meted upon the Appellant was appropriate 67. The Appellant prayed that the sentence meted be set aside alleging that the same is inhumane degrading, oppressive and torturous. 68. This Court bears in mind that one of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the crime and the manner in which the crime is done and that there is no straightjacket formula for sentencing an accused upon proof of commission of a crime. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the Court must keep in mind the gravity of the crime, motive for the crime, nature of the offence and all other attendant circumstances. (See Charles Ndirangu Kibue v Republic [2016] eKLR). Further, the Court ought to bear in mind the obligation imposed on it by the Judiciary Sentencing Policy Guidelines to take into account the aggravating and mitigating circumstances and their effects on the sentence in determining the most suitable sentence. 69. The guiding principles upon which a Court may interfere with a sentence imposed by a lower Court were stated in the case of Ogalo S/O Owuor Versus Republic 1954 24 EACA where it was held that: “ an appellate court has the power to interfere with the sentence passed by the trial court if there is evidence that the learned magistrate or Judge acted on wrong principles, overlooked some relevant material or factors or that the sentence passed is illegal or manifestly excessive or punitive or too low as to occasion a miscarriage of justice.” 70. I note that Section 8 (2) of the Sexual Offences Act to convict provides as follows: “ 8(2) 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.” 71. Opposing the appeal, the Respondent filed its written submissions invoking Section 354(3)(b) of the Criminal Procedure Code wherein the Prosecution Counsel urged this Court to enhance sentence of 30 years as meted out by the lower Court to life imprisonment. The Court of Appeal in J.J.W. v Republic [2013] eKLR held as follows as to enhancement of the sentence by the High Court; “ It is correct that when the High Court is hearing an appeal in a criminal case, it has powers to enhance sentence or alter the nature of the sentence. That is provided for under Section 354 (3) (ii) and (iii) of the Criminal Procedure Code. However, sentencing an appellant is a matter that cannot be treated lightly. The court in enhancing the sentence already awarded must be aware that its action in so doing may have serious effects on the appellant. Because of such a situation, it is a requirement that the appellant be made aware before the hearing or at the commencement of the hearing of his appeal that the sentence is likely to be enhanced. Often times this information is conveyed by the prosecution filing a cross appeal in which it seeks enhancement of the sentence and that cross appeal is served upon the appellant in https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 12

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good time to enable him prepare for that eventuality. The second way of conveying that information is by the court warning the appellant or informing the appellant that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal.” 72. It is clear from the record that the cross-appeal on sentence was raised by the Respondent in its written submissions. This simply means that the Appellant was not properly informed of the cross-appeal on sentence as the same was not served upon the Appellant in good time to enable him prepare for that eventuality nor did the Respondent allow the Court to properly warn the Appellant or inform him at the appropriate time that if his appeal does not succeed on conviction, the sentence may be enhanced or if the appeal is on sentence only, by warning him that he risks an enhanced sentence at the end of the hearing of his appeal. It is clear that the Respondent failed to adhere to the requisite procedure with regard to filing of its notice of enhancement of sentence. 73. In the result, I will be reluctant to interfere with the sentence as meted for the above reasons. 74. Consequently, the appeal is devoid of any merit. It is dismissed in its entirety. Orders accordingly. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 14TH DAY OF NOVEMBER 2025. M.S.SHARIFF JUDGE In the presence of: Appellant Ms Kibet for the Respondent Peter Machoni – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18147/eng@2025-11-14 13

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