Francis Mwakirenge v Republic

8. PW3 Doctor Joto Nyawa a Medical Officer at Moi Referral Hospital who examined the complainant on 23rd June 2022 said the complainant’s hymen was torn at 2 O’clock and painful and her labia minora was tender and perianal bridge was also tender and painful which were signs of defilement. 9. On high vagina swab test, there was no spermatozoa but there were blood cells demonstrating trauma. 10. The Appellant elected to remain silent in his defence. 11. The trial court found the Appellant guilty as charged and convicted him and sentenced him to life imprisonment. 12. The Appellant filed this appeal against both conviction and sentence on the following grounds:i. That the copy of the Appellant’s birth certificate serial number 6XXXXX16 indicates that the Appellant was born on 5th November 2004. ii. That at the time of the commission of the offence the Appellant was seventeen (17) years old and hence a minor. iii. That the learned trial Magistrate erred in both law and fact in failing to appreciate the fact that the Appellant was at the time of plea taking and also prior to arrest suffering from mental illness. iv. That the Appellant’s right to a fair trial was violated since being a minor he ought to have been provided with an advocate at the state’s expense in addition to his request that the witness statements be translated to Kiswahili, the language that he understood. v. That the learned trial Magistrate erred in law and fact by convicting the Appellant yet failed to appreciate that penetration had not been proved. vi. That the learned trial Magistrate erred in law and fact by convicting the Appellant yet failed to appreciate that the complaint herein was raised by the Appellant’s stepmother out of an existing grudge between her and the Appellant’s mother who was her co-wife. vii. That the sentence imposed was both harsh and excessive since it was applied in mandatory terms without consideration of the unique facts and circumstances unique to the case. 13. The parties filed submissions in the appeal as follows:- That the appellant’s case is founded on several critical grounds that collectively demonstrate a miscarriage of justice at the trial court level. 14. First, that it is undisputed that the appellant was a minor at the time of the alleged offence, as evidenced by his birth certificate (Serial No. 6XXXXX16), which confirms he was born on 5th November 2004, making him 17 years old when the offence was committed. 15. That despite this, the trial court failed to apply the requisite protections under the Children’s Act and Article 53 of the Constitution, which mandate that minors in conflict with the law be treated with special consideration for their age and best interests. Instead, the court proceeded as though he were an adult, disregarding the express provision of Section 8(7) of the Sexual Offences Act, which requires that child offenders be sentenced under the Borstal Institutions Act or the Children’s Act, not subjected to adult penalties. 16. Further compounding this error, the prosecution itself acknowledged that the appellant suffered from mental illness, yet the trial court failed to conduct a proper inquiry into whether he was of sound mind at the time of the offence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19649/eng@2025-05-02 2

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17. The High Court in Hassan Hussein Yusuf v Republic (2016) set a clear precedent that trying and convicting a mentally unfit person violates fundamental justice, as punishment loses its deterrent and rehabilitative purpose when the accused lacks capacity to understand his actions. 18. The also submitted that his right to a fair trial under Article 50(2)(h) of the Constitution was also violated. That despite being a minor, he was denied state-funded legal representation, severely prejudicing his ability to mount a proper defence. Additionally, his request for witness statements to be translated into Kiswahili, a language he understood, was ignored, further undermining his right to a fair hearing. The U.S. Supreme Court in Gideon v Wainwright (1963) and the African Commission in Advocats Sans Frontiers v Burundi have long affirmed that legal representation is indispensable to justice, particularly for vulnerable accused persons. 19. On the merits of the case, the prosecution failed to prove penetration—a key element of defilement —beyond reasonable doubt. The complainant (PW1) initially testified that the appellant "did not do anything" to her, only to later change her account after being stood down for two months, raising serious doubts about the credibility of her testimony. 20. Moreover, that the trial court overlooked the existence of a grudge between the appellant’s mother and the complainant’s grandmother (PW3), who were co-wives, suggesting a possible motive for false accusations. 21. Lastly, the appellant submitted that the imposition of a mandatory life sentence was not only excessive but also unconstitutional, as recently affirmed by the Court of Appeal in Manyeso v Republic (2023) and the High Court in Boniface Keya v Republic. 22. That the appellant was a first-time offender and a minor at the time of the offence and the trial court ought to have considered rehabilitative measures under Section 191 of the Children’s Act, as demonstrated in DKL v Republic (2019), where probation was deemed appropriate for a minor in similar circumstances. 23. For the above reasons, the appellant seeks the quashing of his conviction, setting aside of the sentence, and immediate release. Alternatively, he prays for a non-custodial sentence that aligns with the principles of juvenile justice and rehabilitation. The cumulative failures in his trial demand intervention to rectify the grave injustices suffered. 24. The respondent opposed the appeal, urging the court to uphold both the conviction and sentence imposed by the trial court. The appellant was convicted of defilement under Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to life imprisonment. The prosecution called five witnesses, while the appellant declined to present a defense. 25. The respondent emphasized that this court, as the first appellate court, has a duty to independently evaluate the evidence while giving due regard to the trial court’s findings, as established in Okeno v Republic [1972] EA 32. The key issues for determination are whether the conviction was sound and whether the sentence should be set aside. 26. Regarding the conviction, the respondent submitted that the appellant’s belated claim of being a minor lacks merit, as a birth certificate confirmed he was 18 years old at the time of plea. 27. That the trial court ensured he understood the charges, and the absence of legal representation did not prejudice him, as affirmed in Thomas Alugha Ndegwa v Republic [2016] eKLR and Mokaya v Republic [2024] KEHC 4607. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19649/eng@2025-05-02 3

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28. That the appellant’s assertion of mental illness is unsupported, as a medical report confirmed his fitness to plead. Similarly, his allegation of a grudge was never raised during trial and is thus an afterthought, contrary to the principles in Karanja v Republic (1983) eKLR. 29. The respondent further submitted that the prosecution proved all elements of defilement beyond reasonable doubt, as outlined in GOO v Republic [2016] eKLR as follows; i. The victim’s age (6 years) was confirmed by a birth certificate (Edwin Nyambogo Onsongo v Republic [2016] eKLR); ii. Penetration was established through the victim’s testimony and medical evidence (Samwel Ndubi v Republic [2016] eKLR); and iii. That the appellant was positively identified by the victim, her grandmother, and a neighbor. 30. Further that under Section 124 of the Evidence Act, corroboration is unnecessary in sexual offenses if the victim’s testimony is credible. 31. Concerning the sentence, the respondent contended that life imprisonment was lawful under Section 8(2) of the Sexual Offences Act and appropriate given the appellant’s lack of remorse. As held in Bernard Kimani Gacheru v Republic [2002] eKLR, appellate courts should not interfere with sentencing unless it was manifestly excessive or based on erroneous principles. 32. In conclusion, the respondent submitted that the appeal lacks merit and should be dismissed in its entirety, with the conviction and sentence upheld. 33. The first appellate court acts as the last court of facts and must ensure a proper re-evaluation of the evidence while correcting any errors in the trial court’s judgment. The first appellate court must reexamine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law. It cannot simply rely on the trial court’s findings but must apply its own mind. 34. The issues for determination in this appeal are as follows:i. Whether the Appellant was positively identified. ii. Whether the penetration was proved. iii. Whether the age of the complainant was proved. iv. Whether the sentence was excessive. 35. The prosecution's case was that on 23rd June 2022, the Appellant visited the complainant's grandmother's home in Voi, took advantage of the grandmother's absence to assault the child, and was caught in the act. Medical evidence confirmed injuries consistent with defilement, though no spermatozoa were found. The Appellant maintained his innocence but offered no defense during trial. 36. In challenging the conviction and sentence, the Appellant raises several key arguments. 37. First, he contends that his birth certificate proves he was only 17 years old at the time of the offence, meaning he should have been treated as a minor under the Children’s Act rather than sentenced as an adult. 38. Second, he claims his right to a fair trial was violated because he was denied state-funded legal representation despite being a minor and was not provided with Kiswahili translations of witness statements as requested. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19649/eng@2025-05-02 4

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39. Third, he questions the proof of penetration, citing inconsistencies in the complainant’s testimony and the absence of spermatozoa in medical tests. Additionally, he alleges that the complaint was motivated by a grudge between his mother and the complainant’s grandmother, who were co-wives, though this claim was not raised during trial. 40. Finally, he argued that the mandatory life sentence was excessive, unconstitutional, and failed to account for his status as a first-time offender and minor. 41. The Respondent opposed the appeal, maintaining that the conviction was sound. The prosecution proved the child’s age through a birth certificate, established penetration through medical and eyewitness testimony, and positively identified the Appellant as the perpetrator. 42. The Respondent submitted that the belated claim of minority is unsupported, as the birth certificate presented during trial indicated the Appellant was 18 at the time of plea. 43. The Respondent further submitted that the allegation of mental illness should be dismissed for lack of evidence, and the supposed grudge be deemed an afterthought since it was not raised during the trial. 44. On sentencing, the Respondent insisted that life imprisonment was lawful under the Sexual Offences Act and appropriate given the gravity of the offence. 45. Upon review, the court finds that the prosecution sufficiently proved the elements of defilement. 46. On the issue of identification of the Appellant, there is evidence that he was a regular visitor to the home of the complainant’s grandmother where he lived. 47. The complainant’s grandmother found the Appellant on the act of defiling the minor upon return from the bathroom. 48. The incident occurred outside the house of the complainant’s grandmother under a tree in broad daylight and I find that the Appellant was positively identified as the perpetrator. 49. On the issue of penetration, the testimony of the complainant was corroborated by that of her grandmother who was an eye witness and also by medical evidence which confirmed the defilement. 50. The complainant’s hymen at a tear at the 2 O’clock and the labia minor was tender and painful. 51. The perianal bridge was also tender and painful and there were blood cells demonstrating trauma. 52. On the issue of the age of the complainant, her dedication certificate was produced which clearly showed she was born on 20th May 2016 indicating that she was six (6) years on 23rd June 2022. 53. The Appellant’s birth certificate was never availed at the time of the trial and the same is an attempt to adduce new evidence at appeal stage and I find that the medical and eyewitness evidence leaves no reasonable doubt as to his guilt. 54. Accordingly, the court upholds the conviction. 55. On the issue of sentence, I find that the same is legal. The Appellant deserves the sentence of life imprisonment in view of the aggravating circumstances of this case. 56. I find that this appeal has no merit and I dismiss it. 57. I uphold both the conviction and sentence. DATED, SIGNED AND DELIVERED THIS 2ND DAY OF MAY 2025 VIRTUALLY VIA MT AT VOI HIGH COURT. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19649/eng@2025-05-02 5

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ASENATH ONGERI JUDGE In the presence of:Court Assistants: Maina/Millicent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19649/eng@2025-05-02 6

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