Awk v Republic

Appeal 5. Aggrieved by the conviction and sentence, the Appellant filed his undated Petition of Appeal, in which he raised the following grounds of appeal: a. That he did not plead guilty to the charges. b. That the learned trial Magistrate erred in law and facts by convicting the Appellant based on contradictions and uncorroborated evidence from the Prosecution side. c. That the learned trial Magistrate erred in law and fact by failing to observe forensic investigations as stipulated under Section 36 of the Sexual Offences Act No. 2006. d. That the learned trial Magistrate erred in law and fact by rejecting the Appellant’s alibi defense that was sufficient enough to overturn the decision of the lower Court. e. That he wishes to adduce more grounds at the hearing of this appeal. 6. He prayed that this Court allows his appeal in its entirety, quash his conviction and the trial Court sentence be set aside. 7. Subsequently, the Appellant filed supplementary grounds of appeal and preferred the following grounds: a. That this Court be pleased to consider him a pauper and layman in law. b. That the he was not allocated a pro bono lawyer for legal representation. c. That other facts will be adduced during the hearing of his appeal. d. That his conviction and sentence of Twenty (20) years is harsh and punitive in nature. 8. He prayed that this Court quashes his conviction, set aside his sentence and set him free. Also, that this Court makes any other justifiable order that it deems fit. 9. The appeal was canvassed by way of written submissions. Both parties complied. 10. As a first appellate Court; I shall re-evaluate and reassess the evidence afresh and arrive at my own independent conclusions. I am however reminded that unlike the trial Court, I neither saw nor heard the witnesses and give due regard for that. See Okeno v R. (1972) E.A. 32. Evidence 11. PW1, J N W, testified that the victim was her daughter and that at the time she was tendering her evidence she was 10 years old as she was born on 12th November 2012 and she produced a clinical card as PEXH 1. to confirm the same. It was her testimony that on 24th May 2021, she had left her house in the morning for a meeting at Chwele Girls Primary and she had left all her four children at home. Two of her children had gone to fetch water while the victim and her sibling had remained inside the house doing their normal chores. She told the Court that prior to leaving for her meeting, the Appellant herein who was her brother-in-law had been at her house inquiring of the whereabout of her co-wife’s son to which she had told him that it was a Monday so the son was in School. She told the Court that the Appellant resided nearby. That when she returned home at 5 p.m, she sent the victim and her sibling who had remained home to go buy her some paraffin at the shop. She noticed that some bananas that she had sealed to ripen had been opened, she inquired from her son, Dennis, as to who had opened the seal and he retorted that it was his brother, Brighton, who had given them each a banana. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 2

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The other children told her that they had eaten the bananas that the Appellant herein had given them and not the ones she had sealed. On following up, the victim told her that the Appellant herein had called her and gone with her to his house wherein he carried her to his bed, covered her with a leso on the face, removed her pants and defiled her. After the ordeal, he threatened her to stab her with a knife if she had dared to tell anyone what he had done. She told the Court that she then went to relay this information to the Appellant’s mother but she had dismissed her. That she then proceeded to report the same to the village elder who called the sub-chief. The latter then advised them to rush the victim to hospital which she did and she later lodged a report with the police at Sirisia Police Station. She told the Court that she had checked the victim’s private parts and established that the she had showered after the ordeal. She told the Court that her house was 30 Meters from that of the Appellant. 12. On cross-examination, she told the Court that the victim had showered after the incident and had even washed her inner wears plus the clothes she had worn on that day and that the victim had been able to walk after the ordeal. 13. PW2, the victim, testified via a children’s officer. After a brief voire dire examination, she gave unsworn evidence. She told the Court that she was 10 years old and that the Appellant herein was her uncle. She recalled on 24th May 2021, as she was sweeping the house with her sibling, the Appellant herein came, called her and asked her to proceed to his house and he then followed her. He asked her to get inside the house and nobody else was inside. The Appellant proceeded to close the windows, raised her skirt, removed her pants and defiled her. She told the Court that the Appellant took out his penis and placed it inside her vagina. (She told the Court that she did not know the name of the penis and vagina, directed the Court through pointing). She told the Court that the Appellant did not remove his clothes as he had only opened the buttons on his trousers and proceeded to lay her on his bed and that she did not feel any pain and that she lay on that bed for 5 minutes. She told the Court after the ordeal, the Appellant gave her 3 bananas and told her not to tell anyone because if she did so he would stab her. She told the Court that the Appellant had done the same thing to her before in his house, but she could not remember when exactly. She told the Court that the previous time he did it she had gone to pick up her uniform from his house and that he had defiled her before giving her the uniform and the incident had occurred on his bed in the afternoon when nobody else was in the house. She told the Court that she had left her uniform at the Appellant’s place. She did a dock identification of the perpetrator. On cross-examination, she told the Court that nobody had asked her to testify against the Appellant. 14. PW3, H.M, testified through a children’s officer. After a brief voire dire examination, PW3 rendered evidence under oath. She told the Court that she did not know how old she was; the victim was her sister; she knew the Appellant herein as he was her uncle. According to her, the Appellant had come to their house and called the victim and gave her 3 bananas to eat and she ate all of them. She told the Court that the Appellant took the victim to his house and she did not know what had transpired thereafter and that the victim later returned home. 15. PW4, Nicholas Khatete Kutolo, testified that he was a Clinical Officer based at Sirisia Sub-County Hospital. He testified that he was before the Court to produce the Complainant’s treatment notes dated 25th May 2021 and a P3 form dated 2nd June 2021. That on 25th May 2021, while on duty the victim visited the facility for treatment while in the in the company of PW1; she had a history of defilement by a male person well known to her and that the same incident had occurred twice, but on different dates. Upon examination, he observed that the victim had been in fair general condition. On genital examination, he observed that the same had been normal, with an absent hymen and the scar had been healed. He noted that there had been no visible discharge or evidence of bleeding. On laboratory examination, he observed a presence of red blood cells in the urine. That a high vaginal https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 3

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swab had revealed presence of red blood cells and epithelial cells. He observed that after the laboratory examinations, it was clear that the victim had contracted an unspecified STD and was immediately placed on antibiotics and post exposure prophylaxis. His prognosis was that the victim had been defiled. He availed before the trial Court the victim’s medical treatment notes as PEXH 2 and the P3 form as PEXH 3. 16. On cross-examination, he told the Court that the victim told him it was the 2nd time that the Appellant herein had defiled her and that immediately after the 2nd incident she had bathed and changed her clothes. 17. PW5, No. 43062 CPI Joab Lemerige, testified he was the investigating officer then attached to Sirisia Police Station. That on 25th May 2021, a defilement report had been lodged at the station and that it was under the stewardship of another investigating officer who was later transferred. He established that the Appellant had fled wherefore the commencement of the case was delayed. He testified that on 25th September 2021, he had received a call from PW1 herein who confirmed to him that the Appellant had been spotted around his house and while in the company of his fellow police officers, he proceeded to the Appellant’s house, apprehended him and took him to the station. He visited the scene and recorded statements of the Complainant and other witnesses. He established that on 24th May 2021, the Complainant herein had been at home with her other sibling (PW3), when the Appellant herein had gone to their house and taken the Complainant to his house wherein he had defiled her. He had established that the Complainant’s house was 80 to 100 meters from the Appellant’s house. He testified that during his investigations, he had established that after the ordeal the Appellant had given the Complainant 3 bananas and threatened to stab her with a knife if she revealed to anyone what had transpired. That upon learning of the incident PW1 had rushed the Complainant to Sirisia SubCounty Hospital and proceeded to lodge a complaint at Sirisia Police Station. 18. On cross-examination, he told the Court that it was the Complainant who had identified the Appellant herein. 19. In his defense, the Appellant denied committing the offence, he testified that his was a case of vengeance by PW1 since she had approached him seeking a romantic relationship but he had declined whereafter sha had warned him of dire consequences. He told the Court that the Complainant was the daughter of his cousin and that on that fateful day he had gone to work in Sibumba in the company of Wekesa and that the said work was concluded at 6 p.m. He told the Court that he had not availed Wekesa as a witness before the Court because he had left Menu for Kitale the following day after the incident due to noises and issues and that he did not run away. Issues For Determination 20. I have considered the Appellant’s grounds of appeal, the evidence adduced before the trial Court, the rival submissions of parties and the applicable law and issues for determination emanating therein are as follows: a. Whether the Appellant’s right to fair trial was violated. b. Whether the Respondent’s evidence was marred with contradictions and/or whether the Respondent proved its case to the desired threshold; c. Whether the sentence meted upon the Appellant was appropriate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 4

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a. Whether the Appellant’s right to fair trial was violated. 21. 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. 22. 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. 23. 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) (1A) A court before which an unrepresented accused person is presented shall— 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 5

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24. 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.” 25. 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.” 26. 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) 27. 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. 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 8 years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 6

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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 Prosecution 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 crossexamined all the Prosecution witnesses which is an indication that he comprehended the proceedings before the trial Court. 30. It is my further 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. b. Whether the Respondent’s evidence was marred with contradictions or whether the Respondent proved its case to the desired threshold 31. 32. 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 vs. Republic [2016] eKLR.) Proof of age 33. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 34. In a charge of defilement, the age of the victim is important for two reasons: i) defilement is a sexual offence against a child; and ii) age of the child is a statutory prescribed aggravating factor for purposes of determining the sentence to be imposed; the younger the child the more severe the sentence. 35. A child is defined as a person under the age of eighteen years. Is the victim herein a child? 36. PW1 testified that the Complainant herein was her daughter and she was 10 years old as she was born on 12th November 2012 and she proceeded to avail a clinical card to confirm the same. The clinical card https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 7

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was produced in Court as PEXH 1. I believe the clinical card is sufficient proof to establish the age of the minor. The trial Court rightly found that the Complainant was 8 years at the time of the incident. Penetration 37. Section 2(1) of the Sexual Offences Act defines penetration as: “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 38. Penetration is proved through the evidence of the Complainant as corroborated by medical evidence. The testimony of the Complainant in this case coupled with a medical evidence must be sufficient to determine whether penetration occurred. 39. PW2 testified that she was 10 years old and that the Appellant herein was her uncle. She recalled on 24th May 2021, as she was sweeping the house with her sibling, the Appellant herein came to call her asking her to proceed to his house and then he followed. He asked her to get inside the house and nobody else was inside. The Appellant proceeded to close the windows, raised her skirt, removed her pants and defiled her. She told the Court that the Appellant took out his penis and placed it inside her vagina. (She told the Court that she did not know the name of the penis and vagina, directed the Court through pointing). (The victim broke down in tears as she testified). She told the Court that the Appellant did not remove his clothes as he only opened the buttons on his trousers and proceeded to lay her on his bed and that she did not feel any pain as that was not the first time that the appellant had defiled her. She told the Court after the ordeal, the Appellant gave her 3 bananas and told her not to tell anyone because if she did so he would stab her. She told the Court that the previous time he did it she had gone to pick up her uniform from his house and that he defiled her before giving her the uniform and the incident occurred on his bed and it was in the afternoon when nobody else was in the house. 40. PW1 testified that the Complainant told her that the Appellant herein called her and went with her to his house wherein he carried her to his bed, covered her with a “leso” on the face, removed her pants and defiled her. After the ordeal he threatened to stab her with a knife if she made any disclosures. 41. PW4 testified that he was based at Sirisia Sub-County Hospital on 25th May 2021, when the Complainant, who was bearing a history of defilement by a person known to her, went to the facility for treatment, while accompanied PW1. 42. The witness stated that upon general examination, he observed that the Complainant was in fair general condition. On genital examination, he observed that the same was normal, with an absent hymen and a healed scar. He noted that there was no visible discharge or evidence of bleeding. On laboratory examination, he observed that there was presence of red blood cells in the urine and a high vaginal swab revealed the presence of red blood cells and epithelial cells. He observed that after the laboratory examinations, it was clear that the Complainant had contracted an unspecified Sexual transmitted disease (STD)and she was immediately placed on antibiotics and post exposure prophylaxis. His prognosis was that the Complainant had been defiled. 43. The witness told the Court that the Complainant told him it was the 2nd time the Appellant herein was defiled and immediately after the 2nd incident she bathed and changed her clothes. 44. Having considered and analyzed the evidence of the witnesses above, I come to the conclusion that there is ample evidence that penetration did occur. The medical evidence produced (PEXH 2 and PEXH 3) supports penetration of the minor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 8

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Identiffcation of the perpetrator 45. PW1 testified that the Appellant herein was her brother-in-law and is well known to her, PW2 testified that the Appellant herein was her uncle and PW3 testified how the Appellant herein came to their house to take the Complainant to his house. 46. At the trial Court, the Appellant did not deny the fact that the Complainant knew him well and even confirmed that the Complainant was his cousin’s daughter. With this background, the trial Court safely concluded that indeed the Complainant knew the Appellant well. 47. 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. vs Turnbull (1971) QR 227. 48. 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). 49. The evidence by the Respondent leaves no doubt that the Appellant is the one who caused penetration of the Complainant. Accordingly, I find that the elements of defilement namely, penetration, minority age of the victim and positive identification of the appellant were proved beyond doubt. The conviction was therefore proper. 50. On the issue ofRespondent’s evidence being marred with contradictions and in consistencies, in the case of Philip Nzaka Watu v. Republic [2016] eKLR, the Court of Appeal held: “ However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomenon exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question”. 51. 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 vs. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 9

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cause prejudice to the appellant or they are inconsequential to the conviction and sentences…” 52. Consequently, the issue is whether there were indeed contradictions and inconsistencies in the respondent’s case and whether the said inconsistencies and contradictions were of such a degree that they prejudiced the Appellant. 53. The Appellant did not specifically point out for this Court the alleged contradictions and inconsistencies alluded to. From the evidence on record, I did find minor inconsistencies or contradiction in the evidence as alleged, but the same did not necessarily create some doubt in the mind of this Court that the Appellant is entitled to benefit there from. The Appellant’s attempt to discredit the Complainant’s evidence citing inconsistencies does not pass the tests in the above cases. The issues raised are trivial and, in a way, misguided. It did not call for rejection of evidence adduced. c. Whether the sentence meted upon the Appellant was appropriate 54. The Appellant prayed that the sentence meted be set aside. 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.” 55. The Respondent had in opposition to this appeal filed its written submissions urging this Court to enhance the Sentence meted out by the lower Court to 30 years. 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 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.” 56. It is not clear from the record whether the Appellant was served with the cross-appeal by the Respondent. The Appellant was also not warned by this Court on the probability of enhancement of his sentences. In order not to prejudice the Appellant who has had no chance to defend the cross appeal sneaked in by the Respondent in its written submissions, I will be reluctant to interfere with the sentence as meted save to say that the Appellant is lucky to escape the mandatory sentences that would have been applicable. 57. In the result, the appeal is devoid of any merit. It is dismissed.in its entirety. I uphold both the conviction and sentence. Orders accordingly. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 10

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DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 14TH DAY OF NOVEMBER 2025. M.S.SHARIFF JUDGE In the presence of: Appellant M/S Kibet For Respondent Peter Machoni Court Assistant Bungoma HCCRA E075/24 – Judgment M.S.Shariff J https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18246/eng@2025-11-14 11

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