Jnw Alias “k" v Republic

6. (i) That the learned trial magistrate erred in matters of law and fact by failing to find that the charge sheet was fatally defective for reason of mismatch between the offence charged and the particulars of the offence. (ii) That the learned trial magistrate erred in matters of law and fact by failing to find that there was material variance between the first report, the witness statements and the evidence adduced in court. (iii) That the learned trial magistrate erred in matters of law and fact by failing to resolve the evidence of family grudges in favour of the defence. (iv) That the learned trial magistrate erred in matters of law and fact by failing to consider all the mitigating circumstances of the case. At the hearing, the appellant who appeared in person chose to entirely rely on his written submissions dated 16th August 2024. In opposing the appeal, learned prosecution Counsel Ms. Muriu also relied on her written submissions dated 29th May 2025. 7. This is a first appeal to this court. The duty of a first appellate court has been restated in many authorities but it will suffice to cite the celebrated authority of Okeno V Republic [1972] EA 32 in which the predecessor to our Court of Appeal expressed itself as follows; “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya vs R., [1957] E. A. 336) and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala vs R., [1957] E. A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 8. Guided by the above principle, I have carefully considered the grounds of appeal, the evidence on record and the submissions filed by both parties. I have also read and understood the judgement of the trial court. Having done so, I find that the appellant has raised two preliminary issues which need to be addressed first before delving into the main issue arising in this appeal which is, whether or not he was properly convicted and sentenced. 9. The first preliminary issue relates to the appellants complaint that he was convicted on the basis of a fatally defective charge sheet. In his submissions, he contended that whereas he was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, the evidence adduced before the trial court disclosed that the victim was his daughter and he ought therefore to have been charged with the offence of incest Contrary to Section 2(1) of the Sexual Offences Act (SOA). 10. The Respondent in its submissions conceded that the charge sheet was indeed defective but for reasons different from those advanced by the appellant. According to the respondent, what made the charge sheet defective was the mismatch between the offence charged and the particulars stated in support thereof; that the particulars disclosed the offence of Sexual assault created by Section 5 of the Sexual Offences Act. The respondent submitted that the evidence adduced before the trial court matched the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3857/eng@2026-03-19 2

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particulars set out in the charge sheet and the appellant ought to have been convicted of the lesser offence of sexual assault under Section 179 of the Criminal Procedure Code (C.P.C.) 11. The law governing the framing of charges is stipulated in Section 134 of the Criminal Procedure Code which provides that; “ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 12. In this case, a reading of the charge sheet clearly shows that although in the statement of the offence in the main count the appellant was charged with the offence of defilement, the particulars thereof did not support that charge. I say so because one of the essential elements of the offence of defilement is penetration which is defined in Section 2 of the SOA as “the partial or complete insertion of the genital organs of a person into the genital organs of another person” 13. In this case, the particulars alleged that on the material date, the appellant intentionally caused his finders to penetrate the vagina of the minor victim. It is clear from the above definition that insertion of fingers into the genital organs of a minor does not constitute defilement. I therefore agree with the submissions made by both parties that the charge of defilement as drafted in this case was defective. 14. That said, the next question to consider is whether the aforesaid defect occasioned the appellant prejudice sufficient to cause a failure of justice. In my view, the defect did not occasion the appellant any prejudice because although the particulars did not disclose the offence of defilement, they clearly disclosed the minor offence of sexual assault contrary to Section 5(1) of the Sexual Offences Act which was in the same genus as the offence of defilement. The record of the trial court shows that the evidence adduced by the prosecution during the trial supported the offence of sexual assault not incest as claimed by the appellant. The record also shows that the appellant actually participated in the proceedings and even cross-examined prosecution witnesses in a way that demonstrated that he understood the nature of the prosecution case against him. 15. It is important to note that the appellant did not raise any objection to the validity of the charge sheet during the trial. He only raised it on appeal meaning that he did not have any issue with the charge as framed throughout the trial. In the premises, I am satisfied that the defect in the framing of the main count did not occasion the appellant any prejudice that would have amounted to a miscarriage of justice. In my view, the defect was curable under Section 382 of the Criminal Procedure Code and cannot be a basis for vitiating the appellant’s conviction. 16. The other preliminary issue raised by the appellant in his submissions was that his right to a fair trial under Article 50(2)(h) were violated during the trial as he was not accorded legal representation at the State’s expense. The right to legal representation at the state’s expense is enshrined in Article 50(2) (h) of the Constitution which states that; “ Every accused person has a right to fair a trial, which includes the right to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” 17. The Supreme Court in R V Chengo & 2 others [2017] KESC 15 (KLR) discussed the factors the court should consider in determining whether substantial injustice would occur in a criminal trial to justify https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3857/eng@2026-03-19 3

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appointment of an advocate for an accused person at the State’s expense. The court expressed itself as follows; “ In determining whether substantial injustice would be suffered in criminal matters, a court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include: i. the seriousness of the offence; ii. the severity of the sentence; iii. the ability of the accused person to pay for his own legal representation; iv. whether the accused was a minor; v. the literacy of the accused; and vi. the complexity of the charge against the accused.” 18. In this case, the proceedings in the trial court do not show that the appellant at any time applied for appointment of an advocate to represent him during the trial at the State’s expense and his application was denied. 19. Although admittedly the charges preferred against him were serious, the appellant did not exhibit any difficulty in understanding them or following the proceedings. The record in fact shows that on several occasions when the case was scheduled for hearing, the appellant informed the court that he was ready to proceed and when hearing proceeded, he was able to cross-examine witnesses. He did not indicate to the trial court that he needed legal services but was unable to afford the services of a private legal practitioner. In the premises, it is my finding that the appellant’s right to a fair trial was not violated by the trial court as alleged. 20. Turning now to the crux of the appeal, the appellant complained that he was convicted on the basis of insufficient evidence; that vital witnesses were not availed by the prosecution and penetration was not proved. 21. The law is that the prosecution is not legally obligated to call all witnesses who may be available to prove its case. The prosecution has discretion in deciding the number of witnesses to call provided that the witnesses called were sufficient to prove the charges before the court and material witnesses were not deliberately left out with the intention of subverting the course of justice. 22. The above is the import of Section 143 of the Evidence Act which provides that; “ No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” When interpreting the above provision, the Court of Appeal in Julius Kalewa Mutunga V Republic [2006] eKLR stated as follows; “ …..As a general principle of law, whether a witness should be called by the prosecution is a matter within their discretion and an appeal court will not interfere with the exercise of that discretion unless, for example, it is shown that the prosecution was influenced by some oblique motive — see Oloro s/o Daitayi & others V R. (1950) 23 EACA 493. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3857/eng@2026-03-19 4

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See also: Benjamin Mbugua Gitau V Republic (2011) eKLR; Keter V Republic (2017) 1 EA 135 23. In this case, although it is true that the prosecution did not call the victim’s mother and young sister as witnesses, the prosecution called witnesses who included the victim and her class teacher who adduced sufficient evidence to prove that on diverse dates, the appellant who was the victim’s stepfather inserted his fingers and sticks into the victim’s genitalia. The victim’s narration of her ordeal in the hands of the appellant though not requiring corroboration was corroborated in material particulars by the evidence of PW2 her class teacher, PW3 the area Assistant chief and PW5 the Clinical Officer who examined her on 15th June 2023. PW5 recalled that on examining the minor, he noted that the left side of her vulva was hyperemia (had redness caused by friction or too much pressure). Her hymen was also perforated. 24. Although as stated earlier I fully agree with the appellant’s submissions that the above evidence did not prove penetration within the meaning of Section 2 of the Sexual Offences Act, I am convinced that the evidence adduced by the prosecution in this case proved beyond doubt the offence of Sexual assault which is created under Section 5(1) of the Sexual Offences Act. Section 5 (1) above is in the following terms; (1) Any person who unlawfully— (a) (b) penetrates the genital organs of another person with— (i) any part of the body of another or that person; or (ii) an object manipulated by another or that person except where such penetration is carried out for proper and professional hygienic or medical purposes; manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body; is guilty of an offence termed sexual assault.” Insertion of fingers or sticks into the vagina of the minor amounted to the offence of sexual assault as shown in the above provision. It is not disputed that the appellant was the victim’s stepfather and therefore, his identity cannot be open to question. 25. A reading of the trial court’s judgement reveals that the learned trial magistrate carefully analysed the evidence presented before her and also properly addressed her mind to the ingredients of the offence of defilement. Contrary to the allegation made by the appellant, she considered the defence mounted by the appellant and his witnesses and after comparing it with the evidence adduced by the prosecution, she was convinced, and properly so, that the defence did not dislodge the prosecution case. 26. It is however my finding that the learned trial magistrate fell into error when she concluded that the evidence adduced by the prosecution proved the offence of defilement beyond any reasonable doubt which was not the case. As stated earlier, the evidence presented before the court proved the minor and cognate offence of sexual assault. The learned trial magistrate ought to have appreciated this fact and instead of convicting the appellant for the offence of defilement, she should have convicted him of the minor offence of sexual assault under Section 179 of the Criminal Procedure Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3857/eng@2026-03-19 5

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27. For the foregoing reasons, I hereby set aside the appellant’s conviction for the offence of defilement and substitute it with a conviction for the minor and cognate offence of sexual assault under Section 179 of the Criminal Procedure Code. 28. With regard to sentence, the appellant alleged that the sentence of 20 years imprisonment was harsh because in any event, the offence preferred against him was not proved. I have already held that although the offence of defilement was not proved, the minor offence of sexual assault was proved and he now stands convicted of the said offence. The law at Section 5 (2) of the Sexual Offences Act prescribes a minimum mandatory sentence of ten years imprisonment for the offence of sexual assault which can be enhanced to life imprisonment. 29. I have considered the fact that the appellant was a first offender. I have also taken into account the tender age of the minor victim and the fact that the appellant who was a father figure in her life chose to abuse his position of trust and sexually assaulted her in a way that will traumatize her for the rest of her life. 30. It is important to point out that the sentence meted out against the appellant would have been illegal if his conviction for the offence of defilement was confirmed by this court considering that given the age of the minor, the offence would have attracted a mandatory sentence of life imprisonment. 31. Given the substituted conviction with the minor offence of sexual assault, I find no reason to disturb the sentence imposed by the trial court since the sentence is lawful as it is in tandem with the law. Besides, the sentence in addition to punishing the appellant for the offence he committed clearly communicates the public’s condemnation of his criminal conduct. The sentence imposed by the trial court is accordingly upheld. 32. In the end, I have come to the conclusion that this appeal lacks merit and is consequently dismissed in its entirety. It is so ordered. DATED, SIGNED AND DELIVERED AT MURANGA THIS 19TH DAY OF MARCH, 2026. HON. C. W. GITHUA JUDGE In the presence of: The Appellant, Mr. Mwangi for the Respondent Ms. Susan Waiganjo, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3857/eng@2026-03-19 6

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