Stephen Ngugi v Republic

at the hospital, during treatment. She arrested the appellant, on 14th August 2023, and also escorted him to hospital, for examination. PW1 identified him, as the person who had defiled her. PW5, Sellah Simiyu, was the clinician, who attended to PW1, on 14th August 2023, and generated, on 15th August 2023, the documents that she produced as exhibits. She found that the hymen of PW1 was freshly torn, there were bruises at the vagina, the vaginal wall was reddened and her urine had blood. She also found that her white underpants were bloodstained. She concluded that there had been defilement. 4. It was ruled, on 20th June 2024, that the appellant had a case to answer. He was put on his defence. He made a sworn statement, on 11th July 2024. He denied the offence. He conceded that he met the children, including PW1, on 14th August 2024, for tuition, which he conducted till 1.00 PM. He stated that at one stage, he sent PW1 to his bedroom, separated from the learning area by a curtain, to pick something, which she did and came back, and learning continued. He was arrested later the same day. He stated that the case was a frame-up, for PW2 was his former lover, who was upset with him, after he married another woman. 5. Judgment was delivered, on 10th September 2024. The appellant was convicted. The court found that all the elements of the offence had been established. The appellant was sentenced, to 30 years’ imprisonment, on 8th October 2024, to run from 14th August 2023, being the date of his arrest. 6. The appellant was aggrieved, hence the instant appeal. He grounds his appeal on fair trial rights being violated, despite having an Advocate on record; the evidence was insufficient to satisfy the requirements for the offence of defilement; and the medical evidence did not link him to the offence. 7. Directions were taken, on 12th November 2025, for canvassing of the appeal by way of written submissions. 8. I have only seen or come across written submissions by the appellant. They raise several issues. It is submitted that there was non-compliance with section 98(4) of the Criminal Procedure Code, Cap 75, Laws of Kenya; there was denial of right to access information, contrary to Articles 35(1)(b) and 50(2)(a)(b)(j) of the Constitution; penetration was not established; there was inadequate proof of the identity of the perpetrator; and the arrest was improper. Fappyton Mutuku Ngui vs. Republic [2012] eKLR (J. Ngugi, J), Kaingu Kasono vs. Republic [2017] KEHC 905 (KLR) (C. Kariuki, J), Alfayo Gombe Okello vs. Republic [2010] KECA 319 (KLR) (Gicheru, Bosire & Waki, JJA), Stephen Ouma Opiyo vs. Republic Kisumu HCCRA No. 46 of 2009 (JR Karanja, J)(unreported), Kelvin Kiprotich Amos alias Rotich vs. Republic Bungoma HCCRA No. 89 of 2016 (Aroni, J)(unreported), Bukenya & others vs. Uganda [1972] EA 549 (Spry Ag P, Lutta Ag VP & Mustafa JA) and Victor Mwendwa Mulinge vs. Republic [2014] eKLR [2014] KECA 710 (KLR) (K. Kariuki, Musinga & Gatembu, JJA), are cited. 9. I sit in this appeal as a first appellate court. Such a court handles the appeal by way of a re-trial. It re-considers and re-evaluates the evidence, recorded by the trial court, afresh, and draws its own conclusions. See Okeno vs. Republic [1972] EA 32 (Sir William Duffus P, Law & Lutta, JJA). I have evaluated the entire record, from the pleadings, the testimonies recorded from the witnesses, and the judgment of the court, and I have drawn my own conclusions. 10. The first ground of appeal is around constitutional fair trial principles. The starting point should be with the Constitution of Kenya, 2010. Kenya is in a new constitutional dispensation. It has come up with new principles and standards that had not been clearly spelt out in the Constitution retired in 2010, nor in the Criminal Procedure Code, Cap 75, Laws of Kenya. The fair trial or hearing principles, in Article 50 of the Constitution of 2010, have introduced to the menu, of a criminal trial, a fresh raft of principles, and added emphasis on those existing prior. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3599/eng@2026-03-18 2

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11. the Constitution is the supreme law in Kenya, by dint of its Article 2. All the other laws derive their legitimacy from it. It binds all persons and all State organs, institutions and entities, including the courts. It is the first port of call, for anyone exercising judicial authority. What the Constitution requires to be done, regarding criminal trials, should take primacy over what the Criminal Procedure Code, and other legislation, governing criminal trials, may have to say on the subject. 12. The fair hearing principles and standards, in Article 50 of the Constitution, spell out how a trial is to be conducted, and how an accused person is to be handled or treated, right from when he is arraigned or presented to court for the first time, during trial and at the end of it. The rights of an accused person, at trial, are spelt out. He should be informed of the charges that he faces. The charges should be read to him in a language that he understands. He should be given the evidence in advance. He should be afforded facilities to prepare himself for the trial. He should be informed of his rights to legal representation, and of his right to be provided with an Advocate paid for by the State, should he be unable to afford one of his own. He is entitled to confront his accusers, by way of cross-examination. He is entitled to adduce evidence, if he so wishes, and to challenge that presented by the prosecution. In a nutshell, that is a brief on some of those rights. 13. Where the rights are granted by law, a corresponding duty is imposed. In the case of the fair trial principles, in Article 50, the duty bearer is the trial court. It is the duty of the trial court to ensure that the trial measures to the standards in Article 50, in terms of the language used in court; the advance disclosure of the evidence; the provision of facilities to the accused for purposes of preparation for trial; communication on his rights and entitlements, with respect to legal representation generally, and to an Advocate provided by the State; the right to confront witnesses; among others. 14. This is a heavy duty, on the trial court, to ensure that the Constitution is complied with. Where there is no compliance, or the compliance does not meet the standards, the trial would be a nullity, by dint of Article 2(4) of the Constitution. A trial court should strive not to labour in vain, by ensuring that it complies with Article 50. Upon that compliance, it should keep a record of what it has done, towards that compliance. If the record is silent, on the compliance, the presumption would be that there was no compliance. 15. So, what happened here? 16. The appellant was arraigned on 16th August 2023. The record is silent on the language that the appellant was comfortable with. It is silent on whether an inquiry was made in that direction, and on what the appellant might have said with regard to that. The record indicates that the trial court proceeded, using the 2 languages of the court, English and Kiswahili, and the responses, by the appellant, were recorded in English. However, there is nothing to show that that was a language that he was competent in, or he preferred to use at trial. 17. Did the non-compliance, with respect to language, place the appellant at a disadvantage? I do not think it did. From the testimonies of PW1, PW2, PW3 and the appellant himself, it became clear that he was a teacher by profession. It was on that account that he was providing tuition to PW1 and PW3. For him to qualify as a teacher, he must have had a working competence in the 2 national languages, which are also languages of the court, English and Kiswahili. I see, from the record, that he was able to engage with the first 3 witnesses, PW1, PW2 and PW3, fairly effectively, given that he was able to cross-examine them extensively. I can take judicial notice, from his name, that he was Kikuyu, and those witnesses, from their names, were Luo. None of the languages, spoken by members of those 2 communities, according to the record, were employed, for the purpose of the trial, and it should be safe to conclude that the trial was conducted in a language which all 4 parties could communicate in, which was neither Kikuyu nor Dholuo. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3599/eng@2026-03-18 3

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18. Article 50 casts a duty, on the court, to inform the accused person of his right to legal representation, by an Advocate of his own choice. The record is silent on whether the trial court addressed that issue. Additionally, the trial court is required, by Article 50, as read with the Legal Aid Act, Cap 16A, Laws of Kenya, to inform the accused person of the right to an Advocate provided by the State. That should be preceded by an evaluation of the circumstances of the accused person, in terms of assessing his means and his ability to navigate the trial process, taking into account the seriousness of the offence, and the complexity of the charges. 19. The trial court did not address itself to that subject, going by the silence in the record. Yet, the appellant faced a charge that exposed him to a sentence, upon conviction, of a statutory or mandatory life imprisonment. In the end, upon conviction, he was sentenced to 30 years’ imprisonment. The charge was serious, in the circumstances, and all due precautions ought to have been taken, to ensure that the appellant was in a position to meaningfully participate in the trial, and if not, to inform him of his right to appoint an Advocate of his own choice, and, if he could not afford to appoint one, from his resources, of his right to apply to have one appointed for him, paid for by the State. That was not done. 20. I note, though, that it was recorded on 18th January 2024, that he was informed of his right to legal representation. However, this information was being given on the day the matter came up for hearing, and when, in fact, 3 witnesses testified. The utility of the communication of that information on the date when the matter came up for hearing would be of little assistance, for the appellant could not appoint an Advocate on the spot, and, even if he were to, the Advocate would require time to prepare for trial. 21. Was the non-compliance above prejudicial? I do not think so. That non-compliance was cured, by the coming on record, for the appellant, of Mr. Okutta, Advocate, on 20th February 2024. Mr. Okutta came after 3 of the witnesses had testified, 2 of whom were the most critical, being PW1 and PW2. 2 Individuals were presented as PW3. That arose as the testimony of the first person, who testified on 18th January 2024, was said to have been given by mistake, as the prosecution indicated that it intended to present another person, who it subsequently presented on 20th February 2024, and she testified as PW3, after the testimony of the earlier witness was disqualified. Mr. Okutta did not ask for the recall of PW1 and PW2. It would be safe to presume that he did not find it necessary, given what had been recorded, as their testimonies, which I presume he had, as a prudent and competent Advocate, the benefit of perusing. The fact the testimonies of PW1 and PW2 were taken, without the benefit of legal representation, should, therefore, not be fatal. 22. Article 50 also talks of advance disclosure of the prosecution evidence. That essentially should be a copy of the charge sheet, witness statements, treatment notes, P3 form, and other documents that the prosecution purposes to rely on at trial. This serves several purposes. One, it informs the accused person of the charges facing him. Two, it helps him to prepare in advance for the trial, so that he is not caught fiat-footed when witnesses are presented. Three, it helps him formulate his defence, and work out strategies on how to confront his accusers, by way of cross-examination of the prosecution witnesses, and also by way of his defence. 23. When the appellant was arraigned, on 16th August 2023, the trial court did not address the matter of advance disclosure of the evidence. The record is silent on whether that issue came up. It is silent on whether the trial court enquired, from the appellant, as to whether the evidence was furnished to him, or on whether the prosecution was asked if it had availed it. No order was made with regard to that. The trial commenced on 18th January 2024. I note that the evidential material was furnished on the appellant on 21st November 2023, that was roughly 2 months before the trial commenced in earnest. Certainly, that it did give the appellant adequate time, to acquaint himself with the evidence, and to https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3599/eng@2026-03-18 4

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prepare for trial. I note that he was recorded as informing the court that he was ready for trial, when the matter came up for hearing on 18th January 2024. 24. The appellant engaged an Advocate after 2 crucial witnesses had been heard, on 18th January 2024, so that at the next there was legal representation. I am persuaded that the engagement of the Advocate somewhat sanitised or righted that non-compliance. The Advocate, upon coming on record, would have asked for a recall of witnesses, if he felt that the handling of the testimony, by the appellant, was inadequate. He did not. It would be safe to presume that the Advocate did not see the necessity of doing so, upon being satisfied that the appellant had been effective in handling those witnesses. The appellant had the benefit of legal representation, and whatever constitutional fair trial issues arose, prior to the Advocate coming on record, could have been addressed, upon the said Advocate coming on record, at his behest. He did not avail himself of that opportunity, hence it ought to be concluded that there was satisfaction that no prejudice was perceived, to necessitate revisiting of the prior proceedings. The presence of the Advocate was to help the appellant navigate the trial, by, among others, having any deficiencies in the proceedings addressed. The Advocate did not raise any issue on any deficiency. 25. The second ground is around the ingredients of the offence of defilement not being established. What are these ingredients or elements? They are 3: being the age of the victim, the fact of penetration, and the identification of the perpetrator of the penetration. 26. Proof of age is critical. Why? Because defilement is an offence committed against individuals of a certain age. Proof, of whether the victim falls within the contemplated age, becomes a prerequisite. Section 8 of the Sexual Offences Act protects sexual exploitation of minors, that is persons below the age of majority. It is an offence that can only be committed against persons under the age of 18. Section 8(1) defines the offence of defilement of minors. Subsections (2)(3) and (4) prescribe the penalty for defilement of minors of certain ages. Section 8(2) caters for minors aged 11 years and below. The penalty is mandatory life imprisonment, upon conviction, for defilement of minor victims falling within that category. In the instant case, what the prosecution was required to establish was that the victim, PW1, fell between the age bracket of 0 and 11 years, both inclusive. 27. Was it proved that PW1 fell within that age bracket? The charge alleged that the victim was 7 years of age, as at 14th August 2023, when the offence was committed. When she testified, on 18th January 2024, she put her age at 7 years old. Her biological mother, PW2, said she was 7, having been born on 7th January 2016. She placed before the court a baptism card, which refiects the date of birth as 1st January 2016. 28. Was that adequate proof? The usual way of proving the date of birth is by way of a certificate of birth. A certificate of birth would issue where the birth is registered with the Registrar of Births and Deaths. Where that registration has not happened, it can be proved by other means, and other documentation. The fact that a human being exists is testimony that he or she was born, and where registration of their birth was not done, there should be other ways of establishing when they were born, for they must have been born at some date. The testimony of a parent, particularly that of the biological mother would suffice, and so should production of other records, such as school or church records, where recording of dates of birth is also required. 29. In this case, PW2 was the biological mother of PW1. No evidence on the date of birth can trump that of the woman who gave birth to the child. Her testimony, on the matter of the date of birth, was further supported by the baptismal card. Although the baptismal card provided a different date, the difference was only slight, 6 days. The trial court also had the benefit of having PW1 before it, and seeing and hearing her testify, and, thereby getting a chance to evaluate her age, as against the testimony of PW2, and the document she produced in evidence. The age of the victim, PW1, was sufficiently established. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3599/eng@2026-03-18 5

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30. Penetration is about the entry, however slight, of the genital organ of the perpetrator, into the genital organ of the victim. The charge was that the vagina of PW1 was penetrated by the penis of the appellant. That was what the prosecution was required to prove. 31. Was there proof of that? The prosecution presented PW1 and PW5, for the purposes of establishment of that allegation. PW1 was the victim. It was alleged that it was her vagina that was penetrated by the penis of the appellant. She gave a fairly straightforward account of what happened, in effect saying that the appellant inserted his member or sexual organ into her vagina. 32. In her own words, she said, from the handwritten record of the trial court: “ He placed me on the bed and did bad manners to me … He removed my panty … He opened his zip. He laid me on the bed and he came on top of me. He removed his big thing after unzipping his trouser. His thing is here pointing at her private parts. His thing is used to urinate. He put his thing in my here pointing at her private parts. I use my thing to urinate. He inserted inside.” 33. That was the language of a child of 7. It was clear enough. There was penetration. It happened to her. It was her vagina that was penetrated, and she gave a graphic account of it. 34. PW5 was the clinician. She saw, examined and treated PW1 the same day the defilement happened, that is on 14th August 2023, according to the documents she presented in court as evidence. That is to say the patient medical record passbook, issued by the Busia County Referral Hospital, which she produced as PE 1; and the post rape care (PRC) form, which she produced as PE 3. PW5 prevaricated a little on when she saw or examined PW1, between 14th August 2023 and 15th August 2023. The records are clear, that PW1 was examined and treated on 14th August 2023. What happened on 15th August 2023 was the generation of the PRC, PE 3, and the filling of the Police Medical Eaxamination Report (P3), which was produced as PE 2. PE 1 indicates 14th August 2023 as the date of treatment. PE 3 shows that treatment was done on 14th August 2023, but the form itself was filled on 15th August 2023. The date, when PE 2 was signed, was 15th August 2023. Such confusion of dates is excusable, given that PW5 testified on 7th May 2024, on events that happened in August 2023. 35. The material from these documents or exhibits pointed to defilement. PE 1 documented bloodstains on the vulva, and blood oozing from the vagina, reddened vaginal walls and a freshly broken hymen. The laboratory report returned indication of a bloodstained appearance of the vagina, presence of epithelia cells and pus cells. The conclusion was that defilement had happened. The examination was done the same day it happened, perhaps minutes or hours thereafter. Hence, blood was still oozing from the vagina, the reddening of the vaginal walls was still evident and the hymen appeared freshly broken. PE 2 and PE 3 were drawn from PE 1. PE 2 and PE 3 recorded as hymen freshly torn and bruises in the vaginal walls. The conclusion was that there was evidence of a fresh vaginal penetration. 36. The medical evidence supported or corroborated the oral testimony of PW1. Her vagina was penetrated. There was proof, beyond reasonable doubt, that there was penetration of the vagina of PW1. 37. The third element is identification of the perpetrator of the alleged penetration. The allegation was that the penetration was by the appellant. The duty, on the prosecution, was to establish that the vagina of PW1 was penetrated by the penis of the appellant, as alleged in the charge. 38. Did the prosecution discharge that burden, of establishing that it was the penis of the appellant that penetrated the vagina of PW1? PW1 was the victim. It was her vagina that was penetrated. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3599/eng@2026-03-18 6

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The penetration had, in fact, happened, as evidenced by the medical forensics. What remained was establishing that the appellant was responsible for that penetration. PW1 said that he was responsible. She testified that they were together on that material day. At his house, and that it happened on his bed. The appellant conceded that, indeed, he and PW1 were together, for the greater part of that day, at his house. PW3 also placed them together. There was, therefore, opportunity for what PW1 alleged happened to happen. 39. Did it happen? It was the word of PW1 against that of the appellant. The trial court saw and heard both PW1 and the appellant, and believed PW1. The defilement happened during daytime. It was morning time. PW1 knew the appellant well. He was her tuition teacher. They were neighbours. They were together in the house, apparently alone. When PW3 and the other children arrived, the 2 were in the bedroom together, and, as PW1 emerged, PW3 heard the appellant tell PW1 not to say what had happened. The appellant had been with the child for the greater part of that morning, only for the child to report to her mother that she had been defiled by him. Upon being taken to hospital, straight after the incident, it was established that she had just been defiled. The only conclusion, to be drawn, from that evidence, would be that the man who spent the day with her, was responsible. That man was the appellant. There was no evidence of any other man interacting with PW1 within that period. 40. Based on the above, there would be justification, for the conclusion, by the trial court, that defilement was proved against the appellant. 41. The appellant has argued that the medical evidence presented could not present evidence as to who did it. I agree. It did not. It merely established the defilement, but it was not evidence of who did it. The evidence of who did it came from the testimonies of PW1 and PW3. PW1 was the victim of the defilement. She testified that the person who defiled her was the man that she spent the whole morning with, and that was the appellant. Much of her testimony was supported in material particulars by PW3 and the appellant himself. There was opportunity for him to do it, and there was no evidence of any other man coming into the picture within that period. More crucially, all these events happened during daytime, and involved individuals who knew each other very well. I do not think the trial court was mistaken. 42. The appellant perhaps is raising the issue about the medical evidence not pointing at him as the offender. It is true, the medical evidence or the forensics did not connect him to the offence. No fiuids were apparently collected from PW1 and subjected to deoxyribonucleic acid (DNA) testing, to attempt to connect the appellant to the offence. No spermatozoa was harvested from her. The appellant was also examined, and PE 4, treatment notes on that examination, was produced as an exhibit. There was, however, nothing from it which was adverse. However, the law is that defilement and rape can be proved, without DNA or forensic evidence. That evidence is not mandatory. A conviction can be procured based only on the testimony of the victim, regardless of whether it was corroborated, so long as the court found it truthful, reliable or believable. In this case, there was other evidence, apart from forensics, which connected the appellant to the defilement. 43. The appellant, in his written submissions, has raised issue with his arrest. He alleges that it was improper, apparently because PW4 purportedly mentioned 18th August 2023 as the date when she escorted PW1 to hospital. He appears to argue that, if defilement was established by medical evidence on 18th August 2023, under what circumstances was he arrested on 14th August 2023. 44. That is a storm in a teacup. The overwhelming evidence is that the incident happened on 14th August 2023. That was when the defilement happened, hence that was the date when PW1 was taken to the police by PW2, who, the police, meaning PW4, escorted PW1 to the hospital, the same day. It was the same day that PW5 examined PW1, after which she generated PE 2 and PE 3, the following day, on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3599/eng@2026-03-18 7

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15th August 2023. The date of the arrest of the appellant is not quite relevant, for it has no bearing on the defilement itself. In any case, the date of 18th August 2023, appears in the typescript, but not in the original trial court records. PW4, in the original handwritten trial court record, mentioned 15th August 2023 as the date when she escorted PW1 to hospital, for the second time. 15th August 2023 did not come from the trial court, but from the typist, who reduced the handwritten proceedings into the typescript. The typescript is not aligned to the original handwritten trial record, so far as that date is concerned. The appellant himself testified that he was in fact arrested on 14th August 2023, the same date PW4 testified the police arrested him, to save him from harm, from the community. 45. In the written submissions, the appellant also argues that burden of proof was shifted to him. He has, however, not demonstrated how that was so. I have read and re-read the trial record; I have not come across any incidence where it could be said that there was a shift in the burden of proof. 46. He also submits about an alibi defence. I do not understand that submission. An alibi is evidence that the accused person was not at the scene where the alleged offence was committed, but at a different location, hence he could not possibly have committed the offence charged. In this case, the appellant offered no such defence, and presented no evidence that would have pointed to such a defence. His defence statement put him together with PW1, at the locus where the defilement was alleged to have happened. He did not claim to be at a location separate from PW1. He said that they were together, but asserted that nothing happened between them. That is not an alibi, but a mere denial of the facts. 47. Overall, I am not persuaded that the appeal herein is merited. I, accordingly, dismiss it. The consequence shall be that the conviction is affirmed. I shall confirm the sentence, as I see that the appellant got off with a fairly lenient sentence, compared with the mandatory life imprisonment, prescribed under section 8(2) of the Sexual Offences Act. Orders accordingly. DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, ON THIS 18TH DAY OF MARCH 2026. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Mr. Stephen Ngugi, the appellant, in person. Advocates Mr. Onanda, instructed by the Director of Public Prosecutions, for the Republic. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3599/eng@2026-03-18 8

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