Edwin Wandera Wesonga v Republic

5. The complainant testified as PW1. She stated that she was 16 years old, having been born on 6th August 2007, and that she was a Grade 8 student at [Particulars Withheld] Junior Secondary School. She recalled that sometime in April 2024, she spent a night at a neighbor’s funeral. Upon returning home the following morning, her mother chased her away and instructed her to return to where she had come from. She then proceeded to Kitale Town. 6. While at the stage, she was approached by the Appellant, who called out to her saying, “wewe msichana kuja” (you girl come). He informed her that he wanted her to stay with him and asked her to wait for him. Thereafter, they went to his house together, and later that evening, he took her to another house where they had sexual intercourse. 7. The following morning, they went to town, had breakfast, and she remained with the Appellant at his place of work, where he worked as a painter. In the evening, they proceeded to a friend’s house where they again had sexual intercourse. The next day, the Appellant informed her that he had secured work in Kapenguria, and they travelled there together. 8. She further testified that after about three weeks, the Appellant returned to Kitale but continued to send her money through a shopkeeper’s phone number. On 2nd May 2024, he informed her that he would return, but that was the last time they communicated. Her attempts to trace him led her to Kitale Town, where she was arrested by police officers on 7th May 2024 and questioned. The Appellant was subsequently arrested. She added that she later learnt she was pregnant while undergoing examination at Kitale County Hospital. 9. On cross-examination, she stated that she did not know where her mother expected her to go after chasing her away. 10. PW2, the complainant’s elder sister, testified that on 1st April 2024, PW1 left home after going to mill flour and returned the following morning. She later went missing, and efforts to trace her were unsuccessful. A neighbour, later on, informed them that PW1 had been seen carrying a bag. 11. While at Kitale Town stage, PW2 was informed by a lady that a girl known as J was often seen with a nail technician. On 7th May 2024, the same lady informed her that she had seen PW1 at the stage and later that evening reported that PW1 had been arrested. PW2 proceeded to the stage with her mother, where they found PW1 and the Appellant under arrest. PW1 was subsequently taken to Kitale County Hospital, where it was established that she was pregnant. 12. On cross-examination, PW2 stated that she was not aware whether PW1 had attended a funeral and denied that PW1 was a customer of the Appellant for nail polishing services. 13. PW3, the mother of PW1, testified that the complainant was 16 years old. She stated that on 1st April 2024 at about 1:00 p.m., she sent PW1 to mill flour, but she did not return home. She searched for her in vain and reported her disappearance to the area chief. On 7th May 2024, PW2 informed her that PW1 had been arrested in town. That evening, they proceeded to the police station, where they found PW1 and the Appellant. PW1 informed her that she had been staying with the Appellant after leaving home. The following day, PW1 was taken to Kitale County Hospital, where it was confirmed that she was pregnant. 14. PW4, a clinical officer at Kitale County Hospital, testified that he examined PW1 on 5th August 2024. He found that her hymen was torn and appeared old, and that she was approximately 12 days pregnant. He formed the opinion that PW1 had engaged in sexual intercourse. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4539/eng@2026-04-09 2

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15. On cross-examination, he stated that he did not examine the Appellant and that a DNA test would be necessary to establish the person responsible for the pregnancy. 16. PW5, the investigating officer, testified that on 7th May 2024, while on crime standby duty at Kitale Police Station, they received a report that a man suspected of cohabiting with a minor had been arrested at Kitale Main Stage by security officers. 17. They proceeded to the scene and found PW1, PW2, PW3, and the Appellant, and escorted PW1 and the Appellant to the police station. The following day, PW5 accompanied PW1 to Kitale County Hospital for examination, where it was confirmed that she was pregnant. PW5 further established that PW1 had been staying with the Appellant from 1st April 2024. She produced PW1’s birth certificate, indicating that she was born on 6th August 2007 and was 16 years old at the material time, as PEXH 1. 18. On cross-examination, PW5 stated that the Appellant was not subjected to medical examination to determine whether he was responsible for the pregnancy. 19. On re-examination, she stated that a DNA test could only be conducted after the child was born. 20. The evidence of PW5 marked the close of the prosecution’s case. The trial court ruled that a prima facie case had been established and accordingly placed the Appellant on his defence. 21. The Appellant testified as the sole defence witness. He stated that he was 27 years old and worked as a nail technician. He denied the charges and recalled that on 5th April 2024 at about 5:00 p.m., he met a female customer at Kitale Bus Park. While attending to her, some men approached him and informed him that he was required at the bus park security office, whereupon he obliged. 22. At the security office, he found PW1 in the company of her mother and sister. PW1 was questioned and, according to him, denied knowing him. He further testified that he was then assaulted by PW1’s mother and was subsequently arraigned in court the following day. 23. On cross-examination, he stated that he had applied nail polish for PW1 at Kitale Bus Park a few days prior to his arrest. He expressed surprise that PW1 had identified him as her defiler despite there being no prior disagreement between them. He admitted that he had spent a day with PW1 but maintained that he did not engage in sexual intercourse with her. 24. The Appellant’s evidence marked the close of the defence case. Judgment was subsequently delivered on 10th December 2024, upon which he was convicted and sentenced to fourteen (14) years’ imprisonment for the main count. 25. Being dissatisfied with the judgment of the trial court, the Appellant lodged the present appeal seeking to have the conviction quashed and the sentence set aside. The appeal is premised on the grounds that he pleaded not guilty; that the element of penetration was not established; that the prosecution failed to discharge its burden of proof; that the prosecution’s evidence was fraught with contradictions and inconsistencies; that the trial court failed to consider mitigating circumstances; that his defence was rejected without cogent reasons; and that his rights under Article 49(f) of the Constitution were infringed. 26. This appeal has been canvassed by way of written submissions filed by both parties which the court rehashes as below. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4539/eng@2026-04-09 3

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Appellant’s Submissions 27. On the ground that the element of penetration was not conclusively proved, the Appellant casts doubt on the evidence of the clinical officer (PW4). He submits that PW4 testified to having examined the complainant on 5th August 2024 and found that she was approximately 12 days pregnant, yet the complainant had been arrested on 7th May 2024. He contends that this inconsistency raises doubt as to the occurrence of penetration. 28. He further argues that, had penetration occurred, PW4 would have observed and documented physical indicators such as injuries, presence of pus cells, epithelial cells, bruises, lacerations, spermatozoa, or any genital discharge on the vaginal walls. 29. On the ground that his constitutional rights were violated, the Appellant submits that although he was arrested on 7th May 2024, he was only presented before the court for plea taking on 9th May 2024, three days after his arrest. He contends that this was in contravention of Article 49(1)(f) of the Constitution, which requires that an arrested person be brought before a court within 24 hours of arrest. 30. On the ground that the prosecution failed to prove its case beyond reasonable doubt, the Appellant argues that a voire dire examination was not conducted on the complainant, who was a minor. He further submits that the prosecution failed to call key witnesses, including the shopkeeper through whom he allegedly sent money to the complainant, the elderly man who is said to have rescued the complainant, and the landlord of the house in Kapenguria where the complainant allegedly stayed. 31. He also points to the failure to call other crucial witnesses, including the area chief and neighbors to whom PW2 reported the complainant’s disappearance, and contends that this omission weakened the prosecution’s case. 32. The Appellant urges this Court to quash the conviction and set aside the sentence. Respondent’s Submissions 33. The Respondent contends that it proved all the elements of the offence of defilement before the trial court. On the element of penetration, the Respondent submits that the evidence of PW1 was clear and consistent as to the events leading to the alleged defilement. It is submitted that PW1 testified that she met the Appellant in April 2024 at Kitale stage after her mother had sent her away from home. The Appellant called her, and she followed him. She further testified that she stayed with the Appellant for a number of weeks, during which period they engaged in sexual intercourse, resulting in her conception. 34. The Respondent further submits that this evidence was corroborated by the testimony of PW4, the clinical officer, who examined the complainant on 5th August 2024 and established that she was 12 days pregnant. 35. On the age of the victim, the Respondent submits that the complainant’s birth certificate, produced as PEXH 1, indicated that she was born on 6th August 2007, thereby confirming that she was 16 years old at the time of the offence, which occurred on diverse dates between 1st April 2024 and 7th May 2024. 36. On the identification of the perpetrator, the Respondent argues that during cross-examination of PW1, it was not disputed that the Appellant and the complainant knew each other or that they were in a relationship. It further submits that the fact of their interaction, including the time they spent together, was not controverted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4539/eng@2026-04-09 4

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37. In response to the Appellant’s ground of appeal that his defence was not considered by the trial court, the Respondent contends that the Appellant raised an alibi defence during his testimony without prior notice to the prosecution, as required by law. It relies on Republic v GNK [2017] eKLR for the proposition that an accused person ought to notify the prosecution in advance of an intention to rely on an alibi defence. 38. The Respondent further submits that the trial court duly considered the Appellant’s defence and, at page 6 of the judgment, found it to be unconvincing and consequently dismissed it. 39. On sentence, the Respondent submits that the minimum mandatory sentence prescribed under section 8(3) of the Sexual Offences Act for defilement of a child aged between sixteen and eighteen years is a term of not less than fifteen (15) years. It contends that the trial court considered the Appellant’s mitigation and exercised its discretion judiciously, taking into account relevant factors, including the fact that the complainant conceived as a result of the offence, thereby occasioning longterm consequences. Issues, Analysis, and Determination 40. Having considered the grounds of appeal, the record of the trial court, and the submissions of both the Appellant and the Respondent, this Court identifies the following issues for determination: a. Whether the ingredients of the offence of defilement were proved by the prosecution against the Appellant beyond reasonable doubt? b. Whether the Appellant’s rights under Article 49(1)(f) of the Constitution were violated? c. Whether the evidence of the prosecution witnesses was fraught with contradictions and inconsistencies? d. Whether the trial court failed to consider the Appellant’s defence and mitigation? Whether the ingredients of the offence of defilement were proved beyond reasonable doubt 41. On this first is, the starting point is Section 8(1) of the Sexual Offences Act which provides that any person who engages in an act that results in the penetration of a child is guilty of the offence of defilement. To establish the offence of defilement, the prosecution must prove three essential elements: the age of the victim, penetration, and the proper identification of the perpetrator. See George Opondo Olunga v Republic [2016] eKLR, 42. The Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR emphasized that proof of the victim’s age is a critical element, as the sentence to be imposed is dependent on the age of the child. The younger the victim the greater the disability and vulnerability hence the severer the sentence. 43. But what amounts to sufficient proof! in Edwin Nyambogo Onsongo v Republic [2016] eKLR, the Court held that the age of a victim may be established through credible documentary evidence, such as a birth certificate or baptismal card, oral testimony of the child if sufficiently intelligent, the testimony of parents or guardians, or medical evidence. In all instances, such evidence must be credible and reliable. 44. In the present case, PW3, the complainant’s mother, testified that the complainant was 16 years old and born in the year 2007. PW5, the investigating officer, produced the complainant’s birth certificate as PEXH 1, which indicates that she was born on 6th August 2007. Given that the offence occurred https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4539/eng@2026-04-09 5

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between April and May 2024, the complainant was 16 years old at the material time. The Court is therefore satisfied that the age of the complainant was conclusively established. Penetration 45. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organ of one person into the genital organs of another person. 46. Section 124 of the Evidence Act, Cap 80, provides that the testimony of the victim alone may be sufficient to establish penetration, provided the Court is satisfied that the victim is truthful. 47. In the instant case, PW1 gave a detailed account of how she met the Appellant at a bus stop and subsequently went to his house, where they engaged in sexual intercourse. She further testified that on the following day they proceeded to the Appellant’s friend’s house, where they again engaged in sexual intercourse, and thereafter relocated to Kapenguria, where they cohabited. 48. This evidence was corroborated by PW4, the clinical officer, who testified that upon examining the complainant, he established that she was approximately 12 days pregnant. 49. The Appellant argued that, had penetration occurred, PW4 would have observed physical indicators such as injuries, bruises, lacerations, spermatozoa, epithelial cells, or vaginal discharge. However, the absence of such indicators is not fatal to the prosecution’s case, particularly where there was a lapse of time between the alleged acts and the medical examination. The Court thus finds that the element of penetration was proved beyond reasonable doubt. Proper Identification of the Perpetrator 50. It is well established that the identification of a perpetrator must be free from the possibility of error. In Mercy Chelagat v Republic [2022] eKLR, the Court held that identification evidence must be positive, cogent, and reliable, and free form possibilities of error. 51. In the present case, PW1 identified the Appellant as the person who defiled her and gave account of where the incidences occurred. She referred to the appellant by his first name, Edwin, demonstrating prior acquaintance and eliminating the possibility of mistaken identity. 52. Here, the complainant was consistent and remained unshaken that she met the appellant while in need of care and attention and the appellant took her in but exploited the opportunity to defile her. Her testimony struck the trial court as cogent and credible and this court has no basis to disturb the finding based on such satisfaction. 53. The Appellant, in his defence, admitted that he had interacted with PW1 as a client in his trade as nail technician and that he had spent time with her on the day of arrest, though he denied having engaged in sexual intercourse with her. 54. In the circumstances, the Court is satisfied that the Appellant was positively and reliably identified as the perpetrator, and that the element of identification was proved beyond reasonable doubt. Whether the Appellant’s Rights under Article 49(1)(f ) of the Constitution Were Violated 55. The Appellant was arrested on 7th May 2024 and presented before the court on 9th May 2024, more than twenty-four hours after his arrest. 56. Article 49(1)(f) of the Constitution stipulates that an arrested person has the right to be brought before a court as soon as reasonably possible, but not later than twenty-four hours after being arrested save https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4539/eng@2026-04-09 6

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that if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day. Even though the evidence on record does not explicitly say at what time the appellant was arrested on the 7th of May, to help with accurate computation on when the cut-off time would terminate, the court takes it that he was arrested in the course of the day and that the cut-off time fell on the 8th may at the same time as that of arrest. 57. That he was only arraigned on the 9th May makes it evident that he was not presented before the court within the constitutionally prescribed period. 58. However, a violation of Article 49(1)(f) of the Constitution does not, in itself, vitiate a criminal trial as now settled since n Julius Kamau Mbugua v Republic [2010] KECA 109 (KLR), when the Court of Appeal held that unlawful detention prior to arraignment does not render a subsequent trial invalid unless it is demonstrated that the delay occasioned prejudice to the accused in the conduct of the trial. Instead of viewing the violation as a negation of duly conducted prosecution, it is now settled by precedents that the appropriate remedy for such a violation lies in a claim for compensation or other relief against the State. 59. In the present case, no prejudice has been demonstrated to have been suffered by the Appellant as a result of the hence the Appellant’s claim for acquittal on the basis of delayed arraignment is without merit and is hereby dismissed. Whether the Evidence of the Prosecution Witnesses Was Fraught with Contradictions 60. The Appellant contends that PW4’s testimony was inconsistent, pointing to the discrepancy between the stated date of examination that is, 5th August 2024 and the complainant’s arrest on 7th May 2024. 61. However, the P3 form produced as PEXH 3 clearly indicates that the complainant was examined on 8th May 2024. The inconsistency in PW4’s oral testimony as to the date of examination is therefore attributable to an error, which is cured by the documentary evidence on record. 62. In Erick Onyango Ondeng’ v Republic [2014] eKLR, citing Twehangane Alfred v Uganda (Criminal Appeal No. 139 of 2001) [2003] UGCA 6, the Court held that minor contradictions in the prosecution’s case do not vitiate a conviction unless they are of such a nature as to affect the substance of the case or to suggest deliberate untruthfulness. 63. In the present case, the discrepancy complained of does not go to the root of the prosecution’s case and does not in any way weaken the evidence adduced against the Appellant. 64. There was then contention that the prosecution failed to call key witnesses, thereby weakening its case. This complaint may not escape the perception that the court is being called upon to direct the prosecution on the number and details of witnesses it ought to call in a case. If the court was to take that invitation it would not escape from encroaching on the independence of the prosecution. 65. The law is settled that while the prosecution is under a duty to call all material witnesses necessary to establish the truth, it is not obliged to call a multiplicity or indeed any particular number of witnesses to prove its case. The only time the court may challenge the prosecutions choice not to call a particular witness is where there is material to show that such a witness would have been crucial and that such evidence would have been adverse. It is not that every witness, even those with just vague or remote and inadmissible facts about the case must be called. 66. In Richard Munene v Republic [2018] eKLR, the Court of Appeal reiterated that no particular number of witnesses is required to prove a fact, and that the prosecution need only call such witnesses as are sufficient to establish its case. This position is further buttressed by Section 143 of the Evidence Act, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4539/eng@2026-04-09 7

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Cap 80 and underscores the fact that the prosecution must remain the owner of the case on behalf of the public and has the ability and discretion to determine what number and wight of evidence needed in each case. 67. In the present case, the evidence tendered by the prosecution witnesses sufficiently established all the essential ingredients of the offence of defilement, namely the age of the complainant, penetration, and the identity of the perpetrator. 68. Accordingly, the Court finds that the failure to call the additional witnesses alluded to by the Appellant was not fatal to the prosecution’s case, and this ground of appeal is without merit. Whether the Trial Court Considered the Appellant’s Defence and Mitigation 69. The Appellant contends that the trial court failed to consider his defence and mitigation. However, even a cursory perusal of the trial court’s judgment reveals that the Appellant’s defence, comprising a denial of the charges, was duly considered. The court, however, found the same to be unconvincing and incapable of displacing the prosecution’s evidence. 70. It is trite that a trial court is under a duty to consider the defence tendered by an accused person, but is not bound to accept it if it is not plausible. In Karanja v Republic [1983] KECA 35 (KLR), the Court of Appeal held that a defence must be weighed against the prosecution’s evidence, and the court is entitled to reject it where it does not raise reasonable doubt. 71. On the issue of sentence, the record demonstrates that the trial court took into account the Appellant’s mitigation, including his expression of remorse and the contents of the probation officer’s report, before arriving at the sentence imposed. 72. In the premises, this Court finds that both the defence and mitigation were properly considered. Accordingly, this ground of appeal lacks merit and is hereby dismissed. 73. While the foregoing is sufficient to dispose the appeal, there are two issues that arise from the record which the court views important to comment upon as a way of direction to the trial court when a caseback issues. 74. The Appellant incorrectly alleges failure by the trial court to conduct a voire dire examination on the complainant when the record discloses that the same was indeed conducted. 75. More importantly, however, is that Section 125(1) of the Evidence Act, Cap 80, provides that all persons are competent to testify unless the court considers that, by reason of tender years or any other cause, they are incapable of understanding the questions put to them or of giving rational answers thereto. 76. The jurisprudence on voire dire examination is well settled. In Maripett Loonkomok v Republic [2016] eKLR, citing Kibageny Arap Kolil v Republic [1959] EA 92, the Court of Appeal defined a “child of tender years” as one under the age of fourteen years. Further, in Odhiambo v Republic (Criminal Appeal 85 of 2016) [2022] KECA 1082 (KLR), the Court of Appeal clarified that a voire dire examination is not mandatory for witnesses aged fourteen years and above. 77. In the present case, the complainant was sixteen (16) years old at the time of the incident. The trial court was therefore not obligated to conduct a voire dire examination, for the purposes satisfying itself that the complainant was capable of giving rational and coherent testimony. 78. The second issue is the broader duty of the court to observe and protect the best interest of a child before it the obligation to enforce the parental obligation of such a child. The record bears the uncontroverted evidence by the minor as well as PW2 that she was sent away by the mother, PW3, for https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4539/eng@2026-04-09 8

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having spent a night out without permission. That evidence should not have been left to pass without asking PW3 to account for her conduct which then precipitated the crime by the appellant. It is by being vigilant when handling children’s cases that the court can adequately secure the best interest of the child and enlighten members of the public on the duty owed to children. If failing to pursue that revelation, the trial court let down the child and the law. 79. In the upshot, the court finds and holds that the trial magistrate cannot be faulted on any of the grounds preferred. As a result of an anxious and careful re-evaluation of the evidence on record and the applicable law, the Court finds that the appeal lacks merit and it is hereby dismissed in its entirety. DATED, SIGNED AND DELIVERED AT LODWAR THIS 9TH DAY OF APRIL 2026. PATRICK J O OTIENO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4539/eng@2026-04-09 9

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