Benson Nyongesa Wanjala v Republic

Appeal 5. Aggrieved by both the conviction and sentence, the Appellant filed his undated Petition of Appeal, in which he premised upon the following grounds: i. That, the trial magistrate erred in law and facts to convict the Appellant on evidence adduced which didn’t meet the threshold for the safe conviction ii. That, the trial magistrate erred in law and facts that the witnesses’ evidence was contradictory. iii. That, the trial magistrate erred in law and facts that the medical report was not conclusive nor support conviction. iv. That, the trial magistrate erred in law and facts in toto ignore and reject my defense which shaded light on truth. v. That, I pray to be served with trial records and be present during the hearing of this appeal. 6. The Appellant prayed that this Court allows his appeal in its entirety, quash his conviction and the trial Court sentence be set aside. 7. The appeal was canvassed by way of written submissions. Both parties complied with the Court directions. 8. The duty of a first appellate Court was restated in the case of David Njuguna Wairimu vs. 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 9. The victim testified as PW1 stated that she was a grade 7 student at (particulars withheld) Primary School. It was her testimony that she was 15 years old and was born on 3rd August 2009. According to her, she was well versed with the Appellant and that on 26th March 2023, at around 9 a.m. she had been sent to buy food items for breakfast at Sirisia Technical Institute. She met the Appellant who was a security officer of the institution at the gate and she request to be allowed in for purposes of going to make some purchases at the shop. The Appellant volunteered to escort her to the shop and on her way back, the Appellant decided to show her a shorter route back to her home. It was her testimony that the Appellant offered her Kshs. 200/= and promised to marry her, but she declined his proposal. The Appellant then forcefully took her into an abandoned building within the Institute and defiled her. That she had worn a dotted skirt and red blouse while the Appellant had worn a long trouser. The Appellant pulled up her skirt, removed her panty, pulled out his penis and inserted it into her vagina (pointed at her groin). She told the Court that the sordid ordeal occurred while they were standing and that the Appellant did not wear any protection. After the grotesque act, the Appellant gave her Kshs. 200/= and told her to keep the ordeal a secret. He then directed her to the short route to her home. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18245/eng@2025-11-14 2

page 2 of 12

That on 6th April 2023 PW1visited the Appellant again at 6 p.m for purposes of collecting some money that he had promised her. She found him in a storey building within the Institute and he took her to one of the rooms which was completely empty, took out a condom, placed it on his penis, asked her to lie down and he inserted his penis in her vagina, but this this time he defiled her twice unlike on 26th March 2023 when he defiled her once. She told the Court that after the ordeal, the Appellant refused to give her the money and told her that he would give it to her the next day, which he still refused to give her. She told the Court that one uncle of hers who was within the Institution learned of what was happening between Appellant and her and when the Appellant discovered that his sordid acts were out in the open he ran away. Her uncle and father accompanied her to the Police Station where she lodged a report and was later taken to Sirisia Sub-County Hospital. She told the Court that the Appellant before the Court was the one who had defiled her. 10. On cross-examination, he told the Court that she had known the Appellant very well as he was a security guard at Sirisia Technical Institute and she was not alone when she met him at the gate as there were students there. She insisted that the abandoned house where the Appellant defiled her were the houses still under construction within the Institute and no one saw them there. 11. On re-examination, she confirmed that she knew the Appellant very well as he was the one who defiled her twice and that he was a security guard at Sirisia Technical Institute. She reiterated that the incident occurred when the students were in class. 12. PW2, Owen Wambete Nyongesa, testified that he was the father of the 14 years old victim who was born on 3rd August 2009. He produced her Birth Certificate as PEXH1. It was his evidence that on 10th April 2023, he had sent the victim to sell some charcoal at Sirisia market, but she had returned home with Kshs. 150/= only and on inquiry she told him that she had managed to sell the charcoal to a teacher at Sirisia Technical Institute who had assured her that she would pay the balance later. On 11th April 2023, PW1 woke up at 9.a.m and went to the Institute to collect the alleged balance, only for his brother, Silalai Wambete, to call him to and notify him that he had met with the PW1 at the Institute’s gate waiting for one Benson Nyongesa, the Appellant herein. He told the Court that his brother notified him that victim had told him that she had habitually been visiting the Appellant and that they had been engaging in sexual intercourse. 13. On cross-examination, PW2 told the Court that it was the victim who had told him that the Appellant had defiled her. 14. On re-examination, he confirmed that it was the Appellant who was found with the Complainant herein and that he was the one who had defiled her. 15. PW3, No. 256598 P.C Daniel Okalele, testified that he was the investigating officer then attached to Sirisia Police Station. He recalled on 11th April 2023, PW2 visited the station while in the company of the victim to lodge a defilement report against the Appellant herein. The victim stated that she had met the Appellant at the Institute’s gate where she had been sent to purchase bread from the Institute’s bakery which had fair prices. This witness’s testimony was a replica of the testimony of PW1 in reported form. PW3 testified that he then proceeded to record their statements and referred them to the hospital for medical attention. That he visited the scene while in the company of his colleagues. The Appellant had already fled only to return on 25th April 2024. That while acting on a tip off were tipped off he quickly proceeded to apprehend the Appellant and charge him with the offence of defilement. 16. On cross-examination, he told the Court that it was the Institute’s Principal and Administrator who had confirmed to him that the Appellant had run off and that they had visited the scene of the crime on 19th April 2023 at 1000hrs. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18245/eng@2025-11-14 3

page 3 of 12

17. PW4, Ambrose Muholi Wanyonyi, testified that he was a Clinical Officer attached to Sirisia SubCounty Hospital and that he was before the Court to produce the P3 form and treatment notes of the victim. He told the Court that the victim had been taken to the hospital on 11th April 2023, with a history of defilement by a person well known to her. It was his testimony that, on examination of the victim, he had observed that she had been in fair general condition. On vaginal examination, the victim’s vagina walls had been normal and there were no lacerations, bleeding, discharge bruises and tears, and that the victim’s hymen had been broken. On laboratory examination, the high vaginal swab had indicated presence of epithelial cells found in the urine indicating presence of an infection, with no spermatozoa or pus cells noted and she was placed on antibiotics. His prognosis was that the victim had been defiled. He told the Court that he had filled the victim’s P3 form on 11th April 2023 (PEXH3), which he produced in Court. He also produced the victim’s treatment notes dated 11th April 2023 (PEXH5), age assessment report dated 11th April 2023 (PEXH2), PRC form dated 11th April 2023 (PEXH4). 18. At the close of the Respondent’s case, the Appellant was placed on his defence whereupon he tendered his unsworn evidence as DW1. He denied committing the alleged offence and maintained that he did not know the victim and that he had only seen her for the first time in Court. He told the Court that at the time of his arrest he was not informed of the exact offence he had committed. Issues For Determination 19. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court as well as the rival submissions of parties and the applicable law. In the circumstances, it is my view that the issues for determination emanating therein 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 a voir dire examination was necessary in this case; d. Whether the sentence meted upon the Appellant was appropriate. Analysis And Determination Whether the Appellant’s right to fair trial was violated. 20. 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 SUBPARA (g) to choose, and be represented by an advocate and to be informed of this right promptly. 21. 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 to legal representation that an accused person can decide whether he will be represented by counsel or not. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18245/eng@2025-11-14 4

page 4 of 12

22. 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) 23. 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/2025/18245/eng@2025-11-14 5

page 5 of 12

24. 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.” 25. 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) 26. The main consideration in deciding whether to provide an accused person with legal representation is whether substantive injustice will occur if he stands trial without legal representation. 27. 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. 28. 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 committing an indecent act with a child aged 13 years. 29. 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 the all the documentary evidence that the Respondent had 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 Respondent witnesses which is an indication that he comprehended the proceedings before the trial Court. 30. 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/2025/18245/eng@2025-11-14 6

page 6 of 12

Whether the Respondent proved its case to the desired threshold; 31. In the case of Pandya v Republic [1957] E.A 336, the Court held that: “ 14. 32. 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.” Subject to the above, the ingredients which the Respondent is supposed to prove in order to secure a conviction are:a. Age of the victim b. Penetration c. Identification or recognition of the perpetrator Proof of Age: 33. The age of the victim of a sexual offence is determined by medical evidence or any other credible evidence it may also be proved by the evidence of the parent, birth certificate or Immunization Card. 34. In the case of Omoroni-v- Uganda, Court of Appeal No. 2/2000. It is was held that“ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from the medical evidence, age may also be proved birth certificate, the victims’ parents or guardian and by observation and common sense.” 35. In this case the Respondent discharged the burden to prove the age of the victim by conducting an age assessment examination on 11th April 2023. The age assessment form was produced in Court on 18th September, as PEXH 2 and also the availed victim’s Birth Certificate bearing serial number 868064, indicating her dated of birth as 3rd August 2009. According to the availed Birth Certificate on 26th March 2023, the time the offence was first committed the victim was 14 years. The age assessment report dated 11th April 2023 placed the victim’s age at 14. Having been 14 years old at the time of the alleged offence, it’s no doubt that the victim was a child or a minor below the age of 18 years. Section 2 of the children Act 2022 defines a child as any one who is below 18 years. 36. The Appellant has not disputed the age of the Complainant. I find that the Respondent established that the Complainant herein was a minor aged 14. Proof of penetration 37. Penetration is proved through the evidence of the victim and corroborated by medical evidence. The testimony of the victim in this case coupled with a medical report must be sufficient to determine whether penetration occurred. 38. 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; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18245/eng@2025-11-14 7

page 7 of 12

39. In George Owiti Raya Vs 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.” 40. It was the PW1’s evidence that the Appellant herein defiled her on two different dates. First, on 26th March 2023, at around 0900 hours when she was sent on an errand to the shop, to purchase breakfast food items at Sirisia Technical Institute and on 6th April 2023 when he had promised to give her money. 41. The key evidence relied by the Courts in rape cases and defilement in order to prove penetration is the victim’s own testimony which is usually corroborated by the medical report presented by the medical officer. PW4, the Clinical Officer who examined the victim at Webuye Sub-County Hospital observed that her vagina was normal, there was presence of epithelial cells indicating presence of an infection that was treated with antibiotics and the hymen was broken. PW4 was of the opinion that the absence of hymen shows penetration could have occurred. 42. The mere fact that no spermatozoa are found does not necessarily mean that there was no penetration though its presence may well prove that there was penetration; this is not conclusive proof. In Mwangi vs. Republic [1984] KLR 595 at 603, the Court rendered itself thus: “ The presence of spermatozoa alone in a woman’s vagina is not conclusive proof that she has had sexual intercourse nor is absence of spermatozoa in her vagina proof of the contrary. What is required to prove that sexual intercourse has taken place is proof of penetration, an essential fact of the offence of rape.” 43. On the issue of penetration, the trial court held as follows “ …………From Section C of the P3 form, it is clear that whereas the Complainant had no bruises or lacerations, her hymen was missing. In this respect, the medical evidence by PW7, the Clinical Officer, that the Complainant’s hymen was broken at the time of her medical examination was corroboration of the evidence of PW1 that there was penetration.” 44. 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." 45. Similarly, in the case of The Supreme Court of Uganda held in the case of Bassita vs. 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”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18245/eng@2025-11-14 8

page 8 of 12

46. The Appellant denied having defiled the victim and insisted that the charges levelled against him were trumped up. 47. My re-analysis of the record reveals that the victim gave chronology of the events leading to her defilement by the appellant who even enticed her with money. When confronted by her uncle who stumble upon her at the gate of the Institute, the victim readily disclosed that she was awaiting the Appellant, with whom she had been engaging in sexual intercourse. I find her evidence credible and consistent. The Clinical Officer (PW4) confirmed that penetration had occured. I am thus satisfied that penetration was proved by the Respondent to the required standard. Identiffcation of the Perpetrator 48. The Respondent’s case was that the Appellant was known to the victim as they had constantly met on diverse dates between 26th March 2023 and 14th April 2023. 49. The Appellant had stated in his defence that he had seen the victim for the first time in Court. The Appellant categorically stated that due to the lack of eye witnesses, the Respondent’s case had not passed the test of circumstantial evidence. The victim testified on how she was defiled, it is unlikely that in defilement cases which are committed in privacy there would be an eyewitness. The victim met the Appellant on diverse dates and she knew him well as a security guard at Sirisia Technical Institute where the bakery with affordable bread was located. She even referred to him by the name as the person whom she went back in search for as she intended to collected Ksh 200/- that the Appellant had promised her after defiling her the second time. It was the evidence of PW2 that on 11th April 2023, his brother spotted his daughter (PW1) and the Institute’s gate and alerted him that his daughter was looking for the Appellant at the Institute’s gate and that she normally visited him. The victim was acquainted to the Appellant, hence her identification of him was by way of recognition as envisaged in Republic Vs. Turnbull’s case. 50. It is trite 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). 51. The evidence by the Respondent leaves no doubt that the Appellant is the one who caused penetration of the Complainant. 52. As regards to the alleged inconsistencies and contradictions in the evidence of the Respondent’s witnesses, the general rule is that a court will consider the nature of the discrepancies; whether or not the discrepancies are trifling, substantial or deliberate and whether they are so fundamental as to cause prejudice to the accused person. See Law of Evidence (10th Ed) Vol. 1 at 46. 53. On the above issue, the Court of appeal of Uganda rendered itself in the case of Twehangane Alfred vs. Uganda, Crim App. No. 139 of 2001, [2003] UGCA, 6, as follows :“ 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18245/eng@2025-11-14 9

page 9 of 12

54. Similarly, in the case of Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) Tunoi, Lakha & Bosire JJA held: “ In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the wording of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence.” 55. Differences in the narration of events by the Respondent witnesses, especially as to recounting or recollecting the dates of the events, are mere discrepancies that would naturally occur given that every individual had his own way of narrating past events and such discrepancies would not occasion any injustice on the accused person,(The State vs. Sunday Dio Dogo (Alias Sunday Idogo) HSO/3C/2012, Oboh J in the High Court of Nigeria). It was therefore held in Njuki vs. Rep 2002 1 KLR 77, that: “ In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. About what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused… however, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused”. 56. The manner of dealing with discrepancies and inconsistencies was stated in Dickson Elia Nsamba Shapwata & Another vs. The Republic, Cr. App. No. 92 of 2007 where the Court of Appeal of Tanzania concluded that: “ In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 57. I find the contradictions, if any, did not affect the weight of the Respondent’s case as the same is curable under Section 382 of the Criminal Procedure Code which provides as follows: “ Subject to the provisions hereinabove contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission, summons, warrant, charge, proclamation, order, judgement or other proceedings under this code, unless the error, omission, irregularity has occasioned a failure of justice.” 58. Accordingly, I find that the elements of defilement namely, identification, penetration and minority age of the victim were proved beyond reasonable doubt. The trial Court’s conviction was therefore proper. I am hereby obliged to correct the error and convict him of the main count. He is therefore found guilty of the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No.3 of 2006. Whether a voir dire examination was necessary in this case; 59. According to the Appellant’s written submissions, the Court kicked off the trial proceedings immediately after placing the victim on the stand and without conducting the requisite voir dire examination. The Respondent did not address this issue in its submissions. The record of the trial https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18245/eng@2025-11-14 10

page 10 of 12

Court reveals that the Respondent’s key witness was a minor aged 4 years. A voir dire examination was not conducted prior to her testimony. 60. A voir dire examination is a preliminary examination done to test the competence of a witness of tender age. (See Blacks Law Dictionary 8th Edition.) With specific regard to the testimony of children, voir dire examination is essential to enable the court satisfy itself that the child is conscious of the truth and she/he understands the purpose of oathtaking. 61. The pertinent question to ask is whether it was necessary for a voire dire examination to be conducted in this case? The Complainant in this case at the time of her examination in chief on 16th April 2024, indicated that she was 15 years old. The respondent relied on the age assessment report dated 11th April 2023 produced by PW4, PEXH2, which indicated that she was aged 14 years old. In Maripett Loonkomok v Republic [2016] eKLR the Court of Appeal cited the case of “Kibageny Arap Kolil v Republic 1959 EA 92 in upholding the position that "a child of tender years' meant a child "under the age of 14 years". Moreover, in Odhiambo v Republic (criminal appeal 85 of 2016) [2022] KECA 1082 (KLR) (7 October 2022) the Court of Appeal dispelled the notion that voir dire examination is required for witnesses under the age of 18. The Court stated: ""the trial magistrate decided to conduct a voir dire examination of the complainant "because she appeared to be below 18 years old.? This was a misapprehension of the law, as voir dire is required only when the proposed witness is a child of tender years so as to establish the competence of the witness' to testify intelligibly and to establish whether she understands the nature of an oath and the obligation to tell the truth. A child of tender years is, in the absence of special circumstances, one of an age or apparent age of 14 years and below.” 62. The legal position is that voire dire examination is required only for children who are below the age or apparent age of 14 years. The Complainant in this case was above 14 years at the time of her examination in chief, on 16th April 2024, and the learned trial magistrate was right in deciding not to carry out a voire dire examination, save for satisfying himself that the child was intelligent and capable of giving evidence. Whether the sentence meted upon the Appellant was appropriate 63. Under Section 8 (3) of the Sexual Offences Act, a person who commits an offence of defilement with a child between the age of Twelve (12) and Fifteen years (15) is liable upon conviction to imprisonment for a term of not less than Twenty (20) years. 64. The Complainant herein was found to be aged 14 years old and hence the sentence imposed fell within the age bracket. It is noted that the trial Court duly considered the Appellant’s mitigation before sentencing him. I find the sentence to be proper and lawful given that it is the statutory prescribed minimum sentence. 65. There is evidence that the Appellant was released on bond pending trial and his bond terms were cancelled immediately after he was put on his defence. The trial Court considered his mitigation and duly applied the provisions of section 333(2) of the Criminal Procedure Code. 66. In the result, this appeal against conviction and sentence lacks merit and the same is dismissed. 67. I hereby uphold the conviction and confirm the sentence. Orders accordingly. DATED AND DELIVERED AT BUNGOMA THIS 14 TH DAY OF NOVEMBER 2025. M.S.SHARIFF https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18245/eng@2025-11-14 11

page 11 of 12

JUDGE In the presence of: Appellant M/S Kibet For Respondent Peter Machoni Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18245/eng@2025-11-14 12

page 12 of 12