Bwire v Republic (Criminal Appeal E005 of 2025) [2026] KEHC 979 (KLR) (2 February 2026) (Judgment) Neutral citation: [2026] KEHC 979 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT BUSIA CRIMINAL APPEAL E005 OF 2025 WM MUSYOKA, J FEBRUARY 2, 2026 BETWEEN ANTAR JUMA BWIRE ........................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Appeal from conviction and sentence, by Hon. Sheila Chepchumba Tirop, Resident Magistrate, RM, in Port Victoria SRMCSOSC No. E015 of 2024, of 3rd February 2025) JUDGMENT 1. The appellant was convicted of defilement, contrary to section 8(1)(3) of the Penal Code, Cap 63A, Laws of Kenya, of a minor of 16, on diverse dates between December 2022 and 28th August 2024, at Bunyala, Busia County. 5 witnesses were presented by the prosecution. 2. PW1 was the complainant or victim of the defilement. He was lured into an anal sexual relationship by the appellant, while he was still in primary school, through promises of financial support. The sexual relationship started in November 2022, while PW1 was in Standard 8. It continued until August 2024, when PW 1 was in Form II, after one of the teachers noticed that he had issues, lack of concentration in class and a drop in academic performance. He opened up to her, leading to the arrest of the appellant. 3. PW2 was a clinician. Her examination of PW1 showed a loose anal sympitar, which was indicative of sodomy, and, therefore, defilement. PW3 was a counsellor, engaged by PW1’s teachers, to assist him open up. PW1 disclosed to PW3 that he had had a sexual relationship with an adult, who was sodomizing him. He did not disclose the person. PW4 was PW1’s teacher, to whom PW1 opened up. She testified that she had noticed changes in the behaviour of PW1. She had PW1 spoken to, by a male teacher, and he opened up about sexual abuse, by a guardian. A report was made to the principal of his school. PW5 investigated the matter. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/979/eng@2026-02-02 1
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4. The appellant was put on his defence, on 2nd December 2024. He gave a sworn statement, on 4th December 2024. He described how he took in the child of a woman he had met in a bus. He was with him, from his late primary school days till he joined high school. He said that at one time PW1 opened up about sexual relations with other boys, who he named. He reported the matter to PW1’s relatives. PW4 got involved, and eventually he, the appellant, was arrested and charged. 5. He was convicted, on 27th January 2025, of defilement, and sentenced to serve 20 years imprisonment, on 3rd February 2025. 6. The appellant was aggrieved, hence the appeal. Its grounds revolve around the charge being incurably defective and bad for duplicity; the evidence being contradictory; the evidence lacking probative value; the defence being disregarded; the sentence being harsh; and fair trial rights being violated. 7. The appellant canvassed his appeal by way of written submissions, which I have read and noted the arguments made. 8. On the charge being defective, and duplicitous, I have read and re-read the same, and have been unable to find anything in it, tending to duplicity, or any other defect or anomaly. The charge was properly framed, and it should have presented no challenge at all to the appellant, in terms of understanding what he was charged with, and the case that he was expected to put up in defence. 9. On the evidence being contradictory, I have also read through the trial court record, and I have come across nothing significant. It is trite that contradictions or inconsistencies do not usually affect the proceedings, unless they go to the core or are fundamental. I have not seen any that go to the heart of the matter, to the extent of fundamentally affecting the credibility of the proceedings conducted. 10. On the evidence lacking probative value, again, I have scoured the entire record, and I have not come across material that was not of value. 11. On the defence being disregarded, I note that the defence was recited or narrated at page 3 of the judgment. In the analysis and determination, the defence was mentioned at page 5, where it was noted that the defence evidence did not shake the overwhelming prosecution evidence. To that extent, there would be no basis to argue or submit that the defence was disregarded, for it was considered, and found to be inadequate, and did not dent the case by the prosecution. 12. On the sentence being harsh, I note that the same is higher than the minimum prescribed, in section 8(4) of the Sexual Offence Act. However, discretion belongs to the trial court, at sentencing. It may award the minimum or a higher sentence, depending on the circumstances of each case. Prior to sentencing, the trial court called for a pre-sentence report. One was filed. The trial court considered that the appellant had posed, to PW1, as a good Samaritan, who was willing to help with his education, only for the purported good Samaritan to take advantage of the boy, and defile him for 2 years. It was recorded that the appellant was a bad influence, for there were other cases of alleged sexual offences reported against him. The court took into account the best interests of the minor, who needed to be protected. The sentence was intended to be deterrent, by removing the appellant from the community, and taking him away from minors, to pass a message to other like-minded individuals. I am persuaded that discretion was properly exercised, in the circumstances. 13. On fair trial rights being violated, I note that the appellant exercised his right to appoint an Advocate of his own choice. Unfortunately, the Advocate dropped out of the case. He was supplied with the prosecution evidence. I find that the trial was conducted largely within the provisions of the Constitution and the Criminal Procedure Code, Cap 75, Laws of Kenya. I have not found any violation of the fair trial rights. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/979/eng@2026-02-02 2
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14. Overall, I have not found merit, in the appeal herein. I, accordingly, dismiss the appeal. I affirm the conviction, and confirm the sentence. Orders accordingly. DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, THIS 2ND DAY OF FEBRUARY 2026. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Mr. Antar Juma Bwire, the appellant in person. Advocates Mr. Onanda, instructed by the Director of Public Prosecutions, for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/979/eng@2026-02-02 3
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