Felix Birundu Abere v Republic

7. PW4 (Assistant Chief) testified that the Appellant acknowledged impregnating the minor. 8. PW5 (Investigating Officer) confirmed the investigations, medical evidence, and that the Appellant admitted responsibility for the pregnancy. Defence Case 9. The Appellant denied the allegations, asserting that he was at his farm and later at Birongo on the material day. He denied ever being intimate with the complainant or fathering her child. Trial Court’s Determination 10. The trial court convicted the Appellant under Section 8(2) of the Sexual Offences Act and sentenced him to 20 years’ imprisonment. Grounds of Appeal 11. The Appellant’s Petition of Appeal dated 8th July 2024 faulted the trial court for: i. Disregarding his defence; ii. Relying on insufficient and influenced evidence; iii. Failing to advise him on the right to legal representation; and iv. Imposing a harsh sentence. Duty of the First Appellate Court 12. The duty of a first appellate court, as enunciated in John Oketch Abongo vs. Republic [2000] eKLR, is to re-evaluate the evidence presented in the lower court and draw its own conclusions while bearing in mind that it did not see or hear the witnesses. Issues for Determination 13. I have re-evaluated the entire record and I find that the following issues arise for my determination: a. Whether the essential ingredients of the offence namely: age of the complainant; proof of penetration; and positive identification of the perpetrator of defilement were proved beyond reasonable doubt. b. Whether the trial met the requirements of fairness and due process, including the handling of amendment of the charge, admissibility and weight of any alleged confession/admission, treatment of a child witness, and the Appellant’s right to legal representation. c. Whether the conviction was safe. d. Whether the sentence imposed was lawful. Analysis and Determination 14. Section 8 of the Sexual Offences Act (the Act) provides as follows: 8. Defilement (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19386/eng@2025-10-30 2

page 2 of 7

15. (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. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. (4) …… The Prosecution was required to tender evidence to prove the minority age of the victim, penetration and identification of the perpetrator. (See Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013 [2015] eKLR). Age of the Complainant 16. Age is a critical element in a charge under Section 8 of the Act as it determines both guilt and the applicable sentence. In the present case, the record contains materially inconsistent evidence on age as while PW2 testified that the complainant was “born in 2007,” aligning with PW3’s testimony that she was 13 years at the material time, PW5 produced a Birth Certificate (marked P.Exh1) showing a 2012 date of birth. PW5 invited the court to amend the charge accordingly, which invitation the trial court acted upon by directing that the amendment be effected. 17. I find that the effect of the said amendment of the charge is profound since if the complainant was born in 2012, it means that she was 8 years old on 25th May 2020 when the offence was allegedly committed thus bringing the case under Section 8(2) of the Act (child aged eleven years or less) which attracts a mandatory life sentence upon conviction. The trial court however ultimately sentenced the Appellant to 20 years’ imprisonment, the minimum under Section 8(3) for a child aged between twelve and fifteen years. My finding is that this mismatch between the amended particulars of the charge and sentence signals that the trial proceeded on uncertain and unresolved proof of age. 18. Age is ordinarily proved by documentary evidence through birth certificate, baptismal card, clinic card or credible oral testimony. In JOA vs. Republic (2019) eKLR it was held thus: “ It is equally trite law that proof of age or apparent age can be done by other means other than documentary evidence in the form of birth certificate, birth notification, baptismal card or the child Health or Immunization Card. In addition, proof of age can be by observation by the court, or testimony by the parent or guardian as long as the court believes that they are saying the truth and makes such observations on the apparent age of a victim.” 19. In this case, I note that the prosecution used two irreconcilable birth years (2007 and 2012). The trial court noted the inconsistency but did not reconcile it by a clear, reasoned finding. I find that the omission is material and prejudicial. Having regard to the record before the court, I find that age was not proved beyond reasonable doubt. 20. My finding on the issue of the age of the complainant would have been sufficient to determine this appeal but I am still minded to consider the other ingredients of the offence of defilement. Penetration 21. PW1 gave a detailed account of penile-vaginal penetration. PW3, the clinical officer, confirmed pregnancy and delivery on 16th February 2021, and stated that they “confirmed that she was indeed defiled and became pregnant as a result.” While medical evidence may corroborate penetration, the https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19386/eng@2025-10-30 3

page 3 of 7

same is not mandatory if the complainant’s evidence is found to be credible. On this element alone, the prosecution case was prima facie sufficient. 22. I however find that the medical evidence did not disclose the identity of the perpetrator as PW3 expressly stated that they could not tell whether the Appellant was responsible for the pregnancy. I therefore find that while penetration was supported, it does not resolve the issue of the identity of the perpetrator. Identiffcation/Linkage to the Appellant 23. This case turned on the testimony of PW1 who stated that it was the Appellant who had sexual intercourse with her, allegedly in his house at 2.00 p.m and who was therefore responsible for her pregancy. There was however no DNA analysis to attribute paternity of the child to the Appellant. My finding is that while DNA is not a statutory requirement, where, as was the case herein, the report on pregnancy was delayed for months and the defence squarely put identity in issue, failure to pursue DNA or otherwise present strong independent evidence linking the Appellant to the offence, weakened the case. 24. The prosecution however relied on alleged admissions. PW4, the Assistant Chief testified that the Appellant “acknowledged that he had impregnated the minor” while PW5 claimed that the Appellant “acknowledged having committed the offence and was ready to take responsibility.” The prosecution did not produce any recorded confession compliant with the Evidence Act and the Confessions Rules. I find that in the absence of compliance with the statutory framework and safeguards governing confessions, the alleged off-record admissions before a local administrator or at the police station carry limited probative value and are unsafe to anchor a conviction, particularly where age is contested on account of date inconsistencies. 25. Compounding the matters on inconsistencies were the internal contradictions on dates. PW4 placed the initial report to him on 5th September 2022, yet PW5 stated they received the report on 6th September 2021 and escorted the parties to Keroka Police Station that same day. My finding is that such discrepancies were not trivial as they bear on the reliability of the investigative narrative and the alleged admission timeline. Procedural Safeguards and the Child Witness 26. The charge sheet was amended in the course of the trial by changing the victim’s age from 13 to 8 years after all prosecution witnesses had testified. Section 214 of the Criminal Procedure Code provides as follows: 214. Variance between charge and evidence, and amendment of charge 1. Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case: Provided that— i. where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge; https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19386/eng@2025-10-30 4

page 4 of 7

ii. 2. where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination. Variance between the charge and the evidence adduced in support of it with respect to the time at which the alleged offence was committed is not material and the charge need not be amended for the variance if it is proved that the proceedings were in fact instituted within the time (if any) limited by law for the institution thereof. Where an alteration of a charge is made under subsection (1) and there is a variance between the charge and the evidence as described in subsection (2), the court shall, if it is of the opinion that the accused has been thereby misled or deceived, adjourn the trial for such period as may be reasonably necessary. Section 214 of the Criminal Procedure Code provides that when a charge is amended, the accused must be called upon to plead afresh and may recall witnesses for further cross-examination. 27. In Harrison Mirungu Njuguna vs. Republic, Criminal Appeal No. 90 of 2004, the Court of Appeal held that: “ the right to hear the witnesses give evidence afresh on the amended charge or to crossexamine the witnesses further is a basic right going to the root of a fair trial…” 28. Similarly, in Joseph Kamau Gichuki vs. Republic [2013] KECA 448 (KLR) it was held: “ The Code requires that once a charge is amended, the accused person should be called upon to plead to the amended charge and further entitles him to demand the recall of witnesses who have already testified to give their evidence afresh or to be further cross examined. In that case the charge was amended but the accused person was not called upon to plead to the amended charge. This Court held, correctly in our view, that the trial was substantially defective. The effect of amending the charge was to alter the case that the accused person had to meet. Hence, he had to plead to the amended charge afresh and had to be informed of the right to re-call witnesses to testify on the charge as amended and to be cross-examined…” 29. My finding is that the Appellant, having been unrepresented, was never informed of his right to plead afresh or recall witnesses. He was therefore prejudiced by being called to answer a more serious charge under Section 8(2) instead of Section 8(3). 30. Consequently, I find that the trial court’s amendment of the charge without compliance with Section 214 CPC vitiated the entire trial. 31. My view further finding is that once the charge was amended to reflect 2012 as the birth year, the complainant became a child of tender years at the time of the offence. The record does not show if the trial court conducted and recorded a voir dire examination to determine competence and the taking of oath/affirmation for a child of tender years. While PW1 had by the time of trial already delivered a child, competence is judged against age and understanding. Where the child is of tender years at the material time, courts insist on a recorded voir dire or, at minimum, a reasoned finding on competence. I find that the omission to carry out the voir dire examination was fatal to the Prosecution’s case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19386/eng@2025-10-30 5

page 5 of 7

32. The Appellant also faulted the trial court for failing to advise him on his rights to legal counsel under Article 50(2)(h) of the Constitution which guarantees legal representation at the State’s expense where substantial injustice would otherwise result. The trial court however explained the provisions of Section 211 Criminal Procedure Code after which the Appellant elected to tender a sworn defence. I find that there is no automatic nullity on the issue of right to legal representation complaint alone. I however find that given the severity of potential punishment (life imprisonment) once the age of the victim was amended, the trial court ought to have more carefully addressed the Appellant’s fair-trial safeguards. I find that this failure to inform the Appellant of his right to legal counsel alone may not vitiate the proceedings, but in the circumstances of this case, adds to the cumulative prejudice already noted. Whether the Conviction was Safe? 33. The conviction rested on the complainant’s account given months after the event, the medical confirmation of pregnancy and delivery (supporting penetration), and the un-recorded alleged admissions. Against the above points are material inconsistencies on age and key dates, non-compliant confession evidence, absence of DNA or other strong linkage, and a sentencing outcome inconsistent with the amended charge. 34. Considering the foregoing cumulatively, I am not satisfied that the prosecution proved the charge beyond reasonable doubt. It is my finding that the unresolved contradictions on age alone are sufficient to render the conviction unsafe; when combined with the weaknesses on identity and the procedural lapses identified, the conviction cannot stand. Sentence 35. Having regard to my finding on conviction, I find that the sentence passed by the trial court cannot be sustained. I note, additionally, that once the charge was amended to reflect a child aged 8 years, the applicable sentence under Section 8(2) would have been life imprisonment, not 20 years. The disparity underscores the uncertainty that pervaded the trial court’s core findings. Disposition 36. For the reasons stated in this judgment, I find that the instant appeal is merited and I therefore allow it, quash the conviction and set aside the sentence. Whether to Order a Retrial 37. The principles governing circumstances under which a court may order a retrial were stated in the case of Ahmedi Ali Dharamsi Sumar vs. Republic 1964 E.A. 481 and restated in Fatehali Manji vs. The Republic 1966 E.A. 343 where the Court of Appeal held:“ In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause an injustice to the accused person”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19386/eng@2025-10-30 6

page 6 of 7

38. Applying the above principles to this appeal, and considering the evidence on record, I am of the view that a retrial will not suffice. I say so because not only was the offence committed way back in 2020 therefore making the recalling of the witnesses a laborious exercise of recollection of the facts, but will also subject the victim to a traumatic experience of reliving her ordeal. I also find that a retrial will afford the Prosecution an opportunity to fill in the glaring gaps in their case to the detriment of the Appellant. 39. For the above reasons, and having allowed the appeal and quashed the conviction and set aside the sentence, I direct that the Appellant be set at liberty forthwith unless he is otherwise lawfully held. 40. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 30TH DAY OF OCTOBER, 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19386/eng@2025-10-30 7

page 7 of 7