Paul Ekuchoi Illete v Republic

Summary of the Trial Proceedings 4. The prosecution case at the trial court was premised and advanced through the testimonies of five witnesses. PW1 confirmed that the complainant, JIA, was her daughter, aged two years, having been born on 26th March 2021, as evidenced by the birth notification. It was her case that she returned from her domestic work on the incident day at around 1600hrs and found the minor crying. The discovery of the injury occurred the next morning, 8th April 2024, when the child cried upon attempting to relieve herself. PW1 observed bleeding from the vagina, blood-stained clothes, an expanded anal opening, with faeces stained with blood. She then informed by her mother, (PW2), that the accused, a neighbour frequently visiting their home, had been left with the children the previous day. Upon calling the police, the Appellant was found hiding inside a cupboard at his home. 5. PW2, the complainant’s grandmother confirmed that she stayed with the children while PW1 worked. That on 7th April 2024, the Appellant came to their home, appearing drunk, and insisted on resting inside PW1’s house, claiming illness. She then spread a sack for him and left him with the two young children. She instructing the appellant to ensure the children were safe if it rained and left for the farm. When PW2 returned and subsequently left to borrow sugar, the Appellant left the house. The following day, she was summoned and observed that the child’s vaginal and anal walls had been ruptured, leading her to conclude that the Appellant, being the sole adult left with the children the following day, was the perpetrator. She confirmed the Appellant was arrested after he was found hiding in a cupboard. 6. PW3, the complainant’s uncle, aged 13, stated that the Appellant was his friend. He stated that on 7th April 2024, the Appellant insisted he had a headache and went to sleep in his sister’s house. He testified to have left the Appellant at home, initially stating he was left with his mother, but later clarifying under re-examination that his mother (PW2) had already left for the farm, thus leaving the Appellant alone with the children when he left with his father to get bursary forms. PW3 confirmed the Appellant was the one left at home during the critical period. 7. PW4, the clinical officer, examined the 2-year-old complainant on 8th April 2024 at Lopiding SubCounty Hospital. He noted a history of alleged defilement and sodomy. He observed injuries on the anal orifice and a perforated hymen with a marked laceration of the vaginal wall. The probable cause of the injuries was concluded to be a penile penetration. PW4 assessed the degree of injury as harm and tendered the P3 form (PEX2) and the lab report (PEX3). 8. The Investigating Officer, PW5, reiterated the timeline, the report made by PW1, and the medical findings. He confirmed that the P3 form indicated penetration of the genitals and a perforated hymen. He further detailed that the Appellant was arrested at 6 pm after identification by witnesses, confirming he was found hiding. 9. After the close of the prosecutions case and upon appraisal of the evidence by the court, it was adjudged that a prima facie case had been made out hence the appellant was placed on his defence. 10. The Appellant chose to give sworn testimony, maintaining a plea of not guilty to both counts. He denied being present at PW1’s homestead on 7th April 2024. He claimed that PW1 confronted him at his own home, accusing him of cutting the child’s genitals with a razor blade, which he denied. He disputed the circumstances of his arrest, claiming he was buying sugar when police initially came at 10 am, and was later arrested near his father’s house around 3 pm. He asserted that the police charged him alongside a friend, Emmanuel Nanyamier, and that he was coerced into admitting guilt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/772/eng@2026-01-23 2

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11. On being cross examined, the appellant reiterated that he was never at the home of PW2 as alleged and further that he never hid for he had done no wrong to merit that. 12. DW2 was the father to the appellant who was then the area chief but had since retired. His evidence was largely that PW1 had come to his home and accused the appellant of having wronged her but left home for work during his absence the appellant was arrested by the police. 13. He said that the appellant had dropped out of school despite all support by the father, that he had never been charged of defilement before and lastly that he was not at home at the time the incident was alleged to have occurred. 14. The third defence was Boniface Lubenyoi Ilete, a brother to the accused. He said that on the material day he heard a neighbour shouting that her child had been cut with a razor by the appellant, the previous day. The lady neighbour was saying that she had left the child in the company of the appellant when the assault took place. He denied that the accused had tried to escape to evade arrest, repeated that the accused never attended school while was attending but was always at home when not on attachment. He allayed any existence of grudge between the two families save that the grandmother to the victim was always abusive when drunk. 15. On cross examination, the witness told the court that he was not at home at the time the incidence is alleged to have occurred and was thus unable to know what happened. 16. The 4th and last witness was the mother to the appellant. Her evidence was that she was called by the mother to the victim with a complaint that the appellant had cut the victim with a razer. The witness then called the father to the victim who also insisted that they had established the truth. The witness was back home in the evening, found the victim playing in her compound, checked her and found no stitches. On cross examination, she told the court that on the material day she was far away from home and came after two days hence was not even aware of the date of the incident. He equally conceded that she isn’t a doctor to establish injuries. 17. The appeal was directed to be canvassed by way of written submissions which directions both parties complied with. The Appellant submitted that the conviction was based solely on bare circumstantial evidence that was insufficient to sustain the finding of guilt. Further, the Appellant asserted that the trial court erred by failing to address the absence of a key witness who could have justified the Appellant’s purported alibi, thereby prejudicing his right to justice. 18. Procedurally, the Appellant raised the issue of a defective charge sheet under Section 214(1) of the Criminal Procedure Code, alleging that the charge sheet was marred by contradictory statements and was potentially twisted to fit the prosecution target. Finally, the Appellant submitted that the prosecution evidence was inconsistent and contradicted, questioning the integrity of the factual basis for the conviction. 19. The Respondent opposed the appeal, submitting that the three key ingredients of the ofience; age of minority, penetration, and identification of the Appellant, were proved to the required standard. The Respondent maintained that the circumstantial evidence presented met the threshold required for conviction, as established in Sawe vs Republic Criminal Appeal E067 of 2022 {2024} KECA. On the 50-year sentence by the trial court, the appellant submitted that it was contrary to the mandatory requirement of life imprisonment under Section 8(2) of the SOA and sought enhancement of the sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/772/eng@2026-01-23 3

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Issues, Analysis and Determination 20. Based on the re-evaluation of the trial record and the submissions made by both parties, this Court frames the only issue for determination to be whether the prosecution proved its case to beyond reasonable doubt. However, the respondent filed a Notice of Enhancement of the sentence and therefore the other issue, if the first be resolved in the affirmative, whether the sentence of fifty (50) years imprisonment was legal and appropriate in light of Section 8(2) of the SOA and constitutional precedent? 21. The starting point is the appellant’s concern regarding the defect in the charge sheet which the court will first be address on preliminary basis. It is contended that the charge sheet was fatally defective under Section 214(1) of the CPC while relying heavily on the fact that the prosecutor sought to amend the charge sheet, coupled with wide-ranging accusations of conspiracy and corruption. 22. It is settled principle that a procedural defect in a charge sheet is only fatal if it prejudices the accused person to the extent that he or she is rendered unaware of the nature of the charges preferred and is consequently unable to mount an appropriate defence. The jurisdiction on how to approach an allegation of a defective charge was addressed in Peter Ngure Mwangi v Republic [2014] eKLR, where the Court of Appeal held: “ On the issue of a defective charge sheet, there are two limbs to it. The first one deals with the issue as to whether the charge sheet is indeed defective, whereas the second one deals with the issue as to whether even if a charge sheet is defective, that defect is curable or not.” 23. Further guidance on determining whether a defect in a charge is fatal in Benard Ombuna v Republic [2019] eKLR where the Appellate court stated as follows: “ In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” 24. The record confirms that the prosecution sought to amend the charge sheet specifically on the names. The correction was necessitated by minor variations in identity documentation and is thusdistinct from a substantive flaw that would mislead the accused regarding the nature, date, or location of the ofience. The charge sheet clearly cited the correct statutory provisions, section 8(1)(2) of the Sexual Offences Act, the victim’s age of 2 years, the time of the incidence (1300 hrs), and the incidence having occurred in [Particulars Withheld]. 25. For a defect to warrant overturning a conviction on appeal, the Appellant must demonstrate that the irregularity prejudiced or misled him, thereby occasioning a miscarriage of justice. The Appellant understood the case against him, as he pleaded sio ukweli (not true) to both counts and presented a defence of denial and alibi. There is no demonstration that the Appellant was misled or that the alleged defect impeded his ability to conduct a comprehensive defence. 26. The court finds and holds that the allegations by the Appellant that the charge sheet was twisted to fit the prosecution’s narrative is unsubstantiated by the record. The Appellant failed to demonstrate both at the trial and herein that the charge sheet was fatally defective or that any minor formal inconsistency regarding names resulted in a miscarriage of justice. That ground of appeal related to the defective charge sheet is consequently rejected. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/772/eng@2026-01-23 4

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27. Having held as above, the court proceeds into the substance of the appeal, first ascertaining whether the prosecution met the legal threshold required in prove of the charge. 28. It is notable that the fact that the victim herein, aged 2 years old, was penetrated has not been disputed. The evidence of PW1 and 2 and corroborated by the medical evidence presented by PW4 confirmed the state of the minor’s perforated hymen and a marked laceration of the vaginal wall leading to a conclusion of penile penetration. The court in upholding this position affirms that these medical findings of a perforated hymen and vaginal wall laceration are incompatible with the Appellant’s purported alternative explanation that the injury was caused by a razor blade. 29. On identification of the Appellant, the court notes that being the victim was too young to testify and there was no direct eyewitness, the identification of the Appellant rested entirely on circumstantial evidence. The established principles for assessing circumstantial evidence were explicitly elucidated in Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR where the Court of Appeal stated as follows: “ However, it is a truism that the guilt of an accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: “It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.” 30. In the same case, the Court of Appeal set out the test to be applied in considering whether circumstantial evidence placed before a court can support a conviction. The court stated: “ Before circumstantial evidence can form the basis of a conviction however, it must satisfy several conditions, which are designed to ensure that it unerringly points to the Subject person, and to no other person, as the perpetrator of the ofience. In Abanga alias Onyango v R Cr. App. No 32 of 1990, this court set out the conditions as follows: “It is settled law that when a case rests entirely on circumstantial evidence, such evidence must satisfy three tests: (i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; (ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Subject; 9iii) the circumstances taken cumulatively, should from a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.” 31. In the circumstances, the identification evidence hinged on the testimonies of PW2 and PW3. Both the witnesses placed the Appellant, a neighbour who appeared drunk and insisted on sleeping in the house used by PW1 and where the two children were. The child was later found crying uncontrollably upon the return of PW2, immediately before the Appellant had left the scene. The court notes that the subsequent discovery of severe genital and anal lacerations consistent with penile penetration is an injury that cannot be attributed to natural causes, accident, or self-infliction in a child of two years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/772/eng@2026-01-23 5

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32. The evidence placed the Appellant in exclusive charge of the vulnerable victim during the period. The Appellant merely denied being present at the scene on the material without accounting for his whereabouts on the date of the incident. The court finds, as the trial court did that the evidence of the two witnesses, PW2 and 3 were cogent and consistent on the appellant’s presence and company of the victim on the material day. It required a strong rebuttal by the appellant which onus was not met. The appellant’s subsequent attempts to hide from the arresting officers further compounds the inculpatory chain, making his denial highly improbable. In the mind of the court, the tendered circumstantial evidence is incapable of rational explanation upon any hypothesis other than the Appellant having perpetrated act of defilement. The trial court was therefore correct in concluding that the identification element was proved beyond reasonable doubt. This court thus concurs with the trial court that prosecution successfully proved the elements of defilement against the Appellant beyond reasonable doubt. The appeal against conviction hereby fails. 33. On the legality of the sentence imposed by the trial court, the court notes that the victim was aged two years, placing the ofience squarely within Section 8(2) of the SOA, which provides a mandatory sentence of imprisonment for life. The trial court, however, imposed a sentence of fifty (50) years imprisonment. The Respondent submits that imposed 50-year sentence is contrary to the mandatory requirement of life imprisonment under Section 8(2) of the Sexual Offences Act and sought enhancement of the sentence. 34. It is now trite, since Republic vs Joshua Gichui Mwangi, SCPet No E018 of 2023, that the court, both at trial and on appeal, have no discretion to exercise on the sentences prescribed by the sexual offences Act. The setting of parameter in sentences is a legislative duty to be obeyed on the doctrine of separation of powers as a constitutional design. 35. The trial court had no discretion to exercise by reducing the prescribed life sentence to 50 years. In doing so it erred. The error is hereby corrected by an order that the sentence be and I hereby enhanced to be life sentence. 36. The ultimate rendition is that the appeal against conviction fails and is quashed while the request to correct the sentence to comply with the statute is allowed. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23TH DAY OF JANUARY, 2026 PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/772/eng@2026-01-23 6

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