Dexter Momanyi v Republic

a. The learned trial magistrate erred both in law and fact in failing to appreciate that the charge and particulars set out in the charge sheet were inapplicable to the facts of the case as presented by the prosecution. b. The learned trial magistrate erred both in law and fact in failing to appreciate that the prosecution failed to proof its case beyond reasonable doubt. c. There was no medical evidence availed by the prosecution that could support the findings, ruling and the judgement of the trial court. d. The learned trial magistrate failed to appreciate the several material contradictions in the prosecution case that raised a reasonable doubt that he ought to have resolved in favour of the appellant. e. The trial magistrate erred in both law and fact in shifting the burden and incidence of proof to the appellant. f. The sentence imposed upon the appellant is manifestly harsh and excessive taking into account the probation officer’s report filed in court. 7. In response to the appeal, the state filed a Notice of Enhancement of Sentence dated 1/11/2025 seeking to have the appellant’s sentence enhanced to the minimum sentence of 20 years provided in statute. 8. The parties agreed to file submissions in disposal of the appeal. The appellant submitted that the age of the complainant was not proven as the prosecution relied on the oral testimony of the complainant only without producing a baptismal card or birth certificate. That the medical evidence adduced by the prosecution did not support allegations of penetration and further the evidence on his identification was uncorroborated. 9. On its part, the State submitted that the age of the complainant was proved by her oral evidence and that the appellant failed to raise a defence as provided under section 11 (2) of the Sexual Offences Act. That penetration was proved by medical evidence and corroborated by the evidence of the complainant. That identification was by recognition as the appellant and the complainant were staying under the same roof. That the sentence meted out was legal. 10. This being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to arrive at its own independent conclusions and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.) 11. The complainant testified as Pw1. It was her testimony that in July 2024 she got pregnant after being raped by the appellant. That she stayed at O’s place in Elgon together with the appellant, O’s children and brother. That she could not tell how many times she slept with the appellant but that the appellant failed to use protection. That she was 4 months pregnant at the time of her testimony and had not slept with anyone else. 12. In cross-examination the complainant testified that the appellant used to go to work during the daytime but on other days, he did not go to work and they remained in the house alone. 13. Pw2 VA, the complainant’s mother testified that from 2023, the complainant stayed with her friend O as her husband did not welcome her. That the complainant was born on the 2/2/2009. That O informed her that the complainant wanted to do a Salon course. That when she went to visit the complainant at O’s home she noticed that the complainant was pregnant. That she reported the matter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4023/eng@2026-03-25 2

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at Kondele Police Station and after examination at JOOTRH, it was confirmed that the complainant was 16 weeks pregnant. In cross-examination, she stated that she was informed that the appellant was known as Dexter Momanyi. 14. Pw3 David Owino, a clinical officer at JOOTRH testified that he examined the complainant after she was brought to the hospital on the 30/9/2024 with a history of suspected defilement. That he learnt that sometime in mid-July 2024, the appellant who stayed with the complainant grabbed her and took her to the bedroom and removed her inner wear and defiled her. 15. That since then the appellant had been engaging in sexual intercourse with the last incident being on the 25/8/2024 at 4pm. That on physical exam, the complainant exhibited a broken hymen and whitish discharge and on testing through ultra sound, she was found to be 16 weeks pregnant. He produced the P3 and PRC forms as PExh1 & 2, respectively. 16. In cross-examination, he stated that the appellant was never presented to him for examination and that the complainant mentioned the appellant as her defiler. 17. Pw4 No. 22XXXX Sgt. Rael Akoth Ouko testified that on the 3/9/2024, a report was made by the complainant accompanied by her mother who had come from JOOTRH. That the child was aged 14 years old and was pregnant. That upon investigation, it was established that the complainant had been staying with the appellant and his sister and that in 2024, the appellant used to defile her with the first time being in August 2024. 18. When placed on his defence, the appellant gave a sworn testimony. It was his testimony that whereas the complainant was examined, he was not examined so as to establish whether he committed the offence. That the statement of the doctor and complainant over her age were in conflict and further a Birth Certificate was not produced. That the complainant’s age was reduced in an attempt to get her justice. That the doctor failed to say anything about his explanation. 19. In cross-examination, he admitted that he used to stay with her sister O and the complainant. That he could not tell the complainant’s age and did not know her before. 20. Dw2 OM, the appellant’s sister confirmed that she used to stay with the appellant and the complainant. That she used to buy the complainant pads but in June she did not get her periods. That she informed the complainant’s mother and the complainant informed them that she was pregnant. 21. In cross-examination, she stated that she used to discipline the complainant as her guardian during her stay with her. That the complainant went to a hair dressing course and that she paid her fees. 22. It is on the foregoing evidence that the trial court found the appellant guilty, convicted and sentenced him accordingly. 23. Section 8 (1) as read with section 8 (3) of the sexual Offences Act establishes the offence of defilement as follows: “ 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4023/eng@2026-03-25 3

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24. The specific elements of the offence of defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: a. Age of the complainant; b. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and c. Positive identification of the perpetrator. 25. The age of the victim of defilement is an essential element because defilement is a sexual offence committed against a child who under the Children’s Act is a person below the age of 18 years. In addition, the age of the child is an aggravating factor for purposes of determining the sentence to be imposed as per the penalty clauses in the Sexual Offences Act. The younger the child, the more severe the sentence. 26. In this case, the complainants mother testified that the complainant was born on the 2/2/2009 though there was no evidence of the same vide a Birth Certificate. Pw3, the Clinical Officer testified that the PRC and P3 form for the complainant showed that she was 13 years old while Pw4, the investigating officer testified that the complainant was 14 years old. The charge sheet showed that the complainant was 14 years old. 27. The age of the minor herein could be proved by documentary evidence, such as a birth certificate, baptism card, or by oral evidence that the child is sufficiently intelligent, or the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. In Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) as quoted in the case of JWM v Republic [2026] KEHC 674 (KLR) the court held: ‘‘... the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof….” 28. Medical evidence is paramount in determining the age of the victim, and the doctor is the only person who can professionally determine the age of the victim if there is doubt in respect to other types of proof. In Francis Omuroni v Uganda, CR. A 2/2000 it was held: “ In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by a birth certificate, the victim’s parents or guardian and by observation and common sense. ….” 29. In the present case, the complainant stated that she was 14 years old, the Clinical Officer who examined her stated that she was 13 years, the Charge Sheet indicated that she was 14 years while the Mother placed her age as 16 years. Despite all these contradictions, the trial court still found that the complainant was a child and convicted the appellant. This Court notes that the evidence on record, though contradictory placed the age of the complainant below 18 years and therefore a child. I will not disturb the trial court’s finding on that fact. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4023/eng@2026-03-25 4

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30. On penetration, section 2 of the Act defines penetration as follows: “ the partial or complete insertion of the genital organs of a person into the genital organ of another person.” 31. The complainant testified that the appellant slept with her severally and she could not tell how many times and further that he did not use protection when doing this. That the appellant threatened to beat her in case she divulged the same. On this issue, it has been held in several occasions that a fact of rape or defilement can be proved by oral evidence and circumstantial evidence without necessary calling for medical evidence. This is in line with section 124 of the Evidence Act which states that corroboration is not necessary in sexual offences. 32. In the present case, the findings of the clinical officer who testified as Pw3 was that the complainant had been penetrated. That the hymen was broken and there was a whitish discharge. That the complainant was 16 weeks pregnant. The appellant contended that he was not examined to confirm that he was the one who defiled the complainant and that there was no DNA test to confirm that he was responsible for the complainant’s pregnancy. 33. This Court finds that the totality of the evidence on record is that the prosecution did prove that there was penetration. 34. The final issue is whether the appellant was positively identified as the perpetrator. The appellant was well known to the complainant who testified that he spent time with the appellant in the same house. The appellant in his own testimony admitted to have been living with the complainant in the same house. He however did not admit penetrating the complainant. His defence was a denial. There was also his denial of the complainant’s age. His cross-examination was wanting. The question is, did the appellant have a proper opportunity to defend himself. 35. At the appeal, Learned Counsel for the appellant submitted that the complainant looked an adult. That the defence under section 11 of the Sexual Offences Act was available to the appellant. The State submitted that the appellant had not set up that defence before the trial court. However, this Court notes that when cross-examined, the appellant stated that he did not know the age of the complainant. The question is, had the appellant been represented, would he have given the same outright denial or would he have set up a proper defence in accordance with the law? 36. I have perused the record and note that when the appellant took plea on the 9/9/2024, the trial court failed to inform him of his right to legal representation. Neither did it inform him immediately before the trial commenced. 37. Article 50 of the Constitution guarantees an accused person’s right to fair trial. The said rights cannot be derogated by virtue of Article 25 (c) of the Constitution. Under sub article 2 (g), the court is under a duty to inform an accused of his right to be represented by counsel of his own choice. The court has to inform the accused of such right promptly before plea is taken or before the hearing commences. This is to enable the accused make an informed decision whether or not to seek services of counsel or seek services of counsel from the Legal Aid Committee. 38. In Republic v Karisa Chengo & 2 Others [2017] eKLR, the Supreme Court considered the issue of legal representation at state expense and held that: “ (87) Article 50(2) (h) of the Constitution provides that “[every accused person has the right to a fair trial, which includes the right… to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4023/eng@2026-03-25 5

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would otherwise result, and to be informed of this right promptly.” It does not define what “substantial injustice” means. However, in David Macharia Njoroge vs Republic, (supra), the Court of Appeal held that “substantial injustice” results to “persons accused of capital offences” with “loss of life” as the penalty if they have no counsel during their trials. We do not entirely concur with that holding, as it has the effect of limiting the right to legal representation in criminal trials only to cases where the accused person is charged with a capital offence. The operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result…” While it is therefore undeniable that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial; the protection embedded in Article 50 (2) (h) goes beyond capital offence trials. The Court of Appeal indeed appears to have embraced this reasoning in a recent decision in Thomas Alugha Ndegwa vs Republic; C.A. No. 2 of 2004, when it allowed an application for legal representation by the appellant who had been convicted of defilement and sentenced to life imprisonment. (88) 39. In addition to the above, we do not agree with the Court of Appeal’s holding in the instant case to the effect that the right guaranteed in Article 50 (2) (h) of the Constitution is progressive and that it can only be realized when certain legislative steps have been taken, such as the enactment of the Legal Aid Act. While this is true regarding the general scheme of legal aid which the Act is set to fully implement, the same cannot be the case regarding the right in Article 50 (2) (h). We are thus in agreement with Mr. Ole Kina, that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more. We must however emphasize the fact that in accordance with the language of the Constitution, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. In Bernard Kiprono Koech v Republic [2017] eKLR, the Court considered an argument similar to what is now before this court and stated as follows: “ 39. Secondly, there is now a framework in place, which was not in place at the time of the appellant’s trial, under which an accused person can apply under section 40 of the Legal Aid Act No. 6 of 2016 for legal representation at state expense. Section 43 of the Act imposes a duty on the court to inform an accused person of his right to apply for legal representation. It provides as follows: 43. (1) A court before which an unrepresented accused person is presented shall — (a) promptly inform the accused of his or her right to legal representation;(b) if substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and (c) inform the Service to provide legal aid to the accused person. 40. I am satisfied that in the present case, there was, first, no substantial injustice as suggested in the Karisa Chengo case resulting to the appellant. Secondly, it is evident that the accused fully understood the charges facing him, and was able to address himself to the issues that arose.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4023/eng@2026-03-25 6

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40. The appellant took plea on the 28/3/2024. From the record, it is evident that the trial court failed to inform the accused of his right to legal representation or of the right to have an advocate assigned to him despite having to put up a defence for a serious offence. 41. The trial court’s failure to comply with Article 50 (2) (g) of the Constitution had an adverse effect on the trail. The Court has considered the record and the cross-examination undertaken by the appellant. It is clear that the appellant was incapacitated in the conduct of his defence. This was a proper case where an accused should have been informed of the right to legal representation at the state expense. This Court is satisfied that in the present case, there was, first, substantial injustice as suggested in the Karisa Chengo case resulting to the appellant considering the offence he faced and the sentence. Secondly, it is evident that the appellant did not appreciate the case he faced, that it was one of defilement and not impregnation. That is why he was raising the issue of DNA. 42. In Robert Sang Kimeto v Republic [2016] eKLR, the court held that: “ In a recent case, Republic vs. Edward Kirui [2014] KLR, the Court of Appeal, dealt with a different irregularity namely, the non-compliance with Section 169(3) of the Criminal Procedure Code and declared a mistrial. The court cited the definition of mistrial in Black’s Law Dictionary (9th Edition) as: ‘a trial that a judge brings to an end, without a determination on the merits, because of a procedural error or serious misconduct occurring during the proceedings’. The court also cited with approval a portion of the judgment of the Supreme Court of India in Murugan & Another vs. State by Prosecutor, Tamil Nadu & Another [2008] where the case of Bhagwan Singh vs. State of M. P. [2002] 4 SCC, 85 was cited, as follows: ‘The paramount consideration of the court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of the guilty is no less than the conviction of an innocent. In a trial where the trial court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purpose of ascertaining as to whether all or any of the accused has committed any offence or not’”. 43. The failure to comply with the fair trial principles in article 50(2)(g)(h) of the Constitution and section 43 of the Legal Aid Act meant that the appellant was subjected to an unfair trial. Article 2(4) of the Constitution states that “ ... any act or omission in contravention of this Constitution is invalid.” 44. In Pius Olima & Another v Republic [1993] eKLR, the Court of Appeal delivered itself thus: “ Our attention was drawn to authorities that deal with the principles that should be applied when considering whether a retrial should be ordered or not. … The principles that emerge are that a retrial may be ordered where the original trial as was found by the High Court … is defective. If the interests of justice so require and if no prejudice is caused to the accused. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4023/eng@2026-03-25 7

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Whether an order for retrial should be made ultimately depends on the particular facts and circumstances of each case”. 45. In the present case, the appellant was charged with a serious charge of defilement. The failure resulted in the loss of liberty as the appellant stood to be imprisoned for 20 years. In the circumstances, this Court is persuaded that it will be in the interests of justice to declare a mistrial and order a retrial. The offence was committed only two (2) years ago and judgment made a year ago. 46. Accordingly, I quash the conviction and set aside the sentence. I direct that there be a retrial before a different Magistrate at the Senior Principal Magistrates Court at Winam. I order that the appellant be produced before that court on 20/4/2026 to plead afresh to the charge of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF MARCH, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4023/eng@2026-03-25 8

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