Mamo Tunicha Hoko v Republic

by the appellant, which incident had occurred at the water point. Her daughter further explained that she had meet the accused, while going to fetch water, and he had offered and given her some biscuits and told her to follow him to the water kiosk. Once there he had removed her innerwear and proceeded to defile her. 4. She examined her daughter and noticed that she was bleeding from her vagina and her injury had extended to the anus, thereby impeding her ability to pass large stool. Upon getting this information, she and her husband got the village elders and went to search for the appellant who was their neighbour and a person well known to her. They also interviewed her daughter’s best friend, C, who was present and corroborated her daughter’s version of events. They also took their daughter to hospital to enable her get medical attention as she kept soiling her cloths due to her inability to hold/retain her body waste. 5. Under cross examination, PW1 confirmed that she did not witness the incident, but that C, her daughter’s best friend was present and corroborated her daughter’s version of event.PW2 (the minor) underwent voire dire examination and gave unsworn evidence. She stated that the accused was well known to her and recalled that on the material day, she was from nursery school with her friend CI at around 12.00 noon, when they met the appellant at the water point. He proceeded to give her biscuits, removed her innerwear and proceeded to defile her. 6. As a result of the said incident, she had sustained injuries to her private part, which extended to her buttocks. It was her further evidence, that though, initially she did not tell PW1 about the incident, she later opened up and informed her of what had occurred and was taken to hospital to get medical attention. PW2 was categorical that the appellant was her assailant and was not mistaken regarding his identity, since he was a person well known to her. 7. PW3 UG confirmed that he was the complainant’s family immediate neighbour within their Manyatta and recalled that on 19.10.2024 at about 8.00pm, he was within his home, when several elders came and informed him that there was a person who had defiled a minor and requested him to help them search for the assailant, who was a person known to them. They went directly to the appellant’s father’s home and found him with his father. Upon interviewing him, he denied defiling the minor and they proceed to arrest him and took him to Maikona Police station. 8. PW4, Abdub Bonaya testified that he works at Maikona Health center and was the one who examined PW2 on 19.10.2024, and subsequently prepared the resultant P3 form. The history given was that she had been defiled about five days prior by a person known to her, who was estimated to be 19 years. On examination her labia minora had tears and bruises on the right side and her vagina too had bruises. Other laboratory examination were normal and he concluded that the child was defiled as there was evidence of penetration. He filed the P3 form and submitted it as evidence before the court. 9. PW5 PC Isacko Mamo, of Maikona police station, confirmed that on 19th October 2024, they received a report of defilement, which was alleged to have occurred about 5 days earlier. After the said incident had occurred, the victim (PW2) had been too traumatized to speak, but later after she had developed complication, had opened up to her mother and explained that she had been violated by a person who was well known to her, the appellant. The elders were informed and they promptly arrested the appellant and handed him over to the police. 10. PW5 further confirmed that the appellant was a person well known to him, as he had previously handled a similar case, where he was accused of attempting to rape a neighbour and had been subjected to mob justice, resulting in his hospitalization, but the complainant never pressed charges thereafter. The appellant had also admitted in his statement under inquiry that he had committed the offence and sought forgiveness. PW5 proceeded to produced the victims (PW2) birth certificate, which confirmed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5417/eng@2026-04-22 2

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that she was born on 27.01.2017 and thus was a minor aged about seven (7) year’s old at the time the incident occurred. C. Defence Case 11. The trial magistrate placed the appellant on his defence and explained to him the import of Section 211(1) of the CPC. The appellant opted to give sworn evidence and stated that he was arrested by elders on 19.10.2024 at about 8.00pm and was informed that he was being arrested on suspicion that he had defiled PW2, but denied being the culprit. He noted that PW2 had stated that she was at the water point with her friend, and it was curious that she did not scream for help nor did she tell anyone immediately the said incident occurred, yet it was a serious issue. It was also strange that though PW2 had alleged that she had informed her friend of what had transpired, she too had opted to keep quiet and did not inform anybody. 12. He insisted that he was innocent and that the case had been fabricated by the minor’s father (DG) to nail him, since they had fallen out over payments due for work done (herding goats) for him, but which sums remained unpaid. He reiterated that nobody saw him commit the said offence and thus urged the court to discharge him and set free. 13. The Trial Court considered the evidence adduced and found the appellant guilty of the offence of defilement of a minor contrary to section 8(1) as read with section 8(2) of the sexual offences Act No 3 of 2006. The court considered the appellant's mitigation and proceeded to sentence him to life imprisonment as provided for in law. D. The Appeal 14. Being wholly dissatisfied by the said judgment and sentence, the Appellant filed his petition of appeal and raised the following grounds of Appeal; a. That the learned Trial Magistrate erred in law and fact by failing to note that the key witnesses were not called. b. That the learned Trial Magistrate erred in in law and in fact by failing to note that after the amendment of the chargesheet the appellant was not given an opportunity to plead to the new charges after the amendment. c. That, the learned trial magistrate erred in law and fact by failing to note that penetration of the complainant was not proved since the evidence adduced before the trial court was contradictory and inconsistent. d. That, the learned trial magistrate erred in law and fact by failing to note that the prosecution failed to prove their case beyond reasonable doubts according to the law. e. That, the learned trial Magistrate erred in law by failing to consider that the legal provision for maximum/minimum sentences under Section 8(4) of the sexual offences Act, denies the judicial officers their legitimate jurisdiction to exercise of discretion in sentence not to impose an appropriate sentence in an appropriate case based on the scope of the evidence adduced and recorded on a case to case basis which is unconstitutional and unfair in breach of Article 27(1),(2),(4) of the Constitution of Kenya. Hence, the sentence imposed on the Appellant is unlawful. f. That, the trial magistrate erred in both matters of law and facts by failing to consider the appellants defence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5417/eng@2026-04-22 3

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15. The appellant therefore prayed that the court finds favour with this Appeal and do set aside his conviction and his sentence be quashed. 16. This being the first appeal, this court is expected to re-evaluate the evidence tendered before the trial court and to come up with its own logical conclusion by taking into account the fact that it did not have the advantage of seeing and hearing the witnesses and their evidence and/or see their demeanour. This court relies on the finding of the Court of Appeal in Kiilu & Another V Republic, [2005] 1 KLR 174, where they stated thus: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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. 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; 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.” 17. In the case of Republic Vs Edward Kirui (2014) eKLR, the Court of Appeal quoted the Supreme Court of India case of Murugan & Another Vs State by Prosecutor, Tamil Nadu & Another (2008) INSC 1688 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 from the conviction of an innocent. In a case where the trial court has taken a view of ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence on appeal for the purpose of ascertaining whether all or any of the accused has committed any offence or not.” 18. I have considered the entire record of Appeal, the trial bundle record and the submissions on record filed by the parties and I find that the issues that arise for determination are as follows; a. Whether the offence of defilement was proved. b. Whether there was failure by the prosecution to call a crucial witness and its effect, if any. c. Whether the fact that the appellant did not plead afresh to the amendment chargesheet was fatal. d. Whether the sentence passed was illegal/ unlawful and thus should be quashed and/or set aside. i. Whether the offence of defilement was proved. 19. The Appellant was found guilty of the offence of defilement contrary to section 8 (1) as read together with section 8 (2) of the Sexual Offences Act, No 3 of 2006. The said sections provide that; 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 8(2) “A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5417/eng@2026-04-22 4

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20. Three elements to be proven in a case such as this 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 assailant 21. On this question of age, PW1, the victim’s mother testified and stated that she was 7 years old. PW5 corroborated this information by producing the birth certificate No xxxxxxx, which confirmed that PW2 was born on 27.01.2017. No contrary evidence was adduced and as such the court finds that this element was proven beyond reasonable doubt. 22. On the issue of proof of penetration, Section 2(1) of the sexual offences Act defines penetration as follows; “ The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 23. PW1 narrated in detail how the appellant, lured her with biscuits into the local water booth/Kiosk and proceeded to remove her underwear and defiled her, while her friend waited for outside the said kiosk. This incident left PW2 seriously traumatized and even while testifying in court, still broke down into tears. PW4, the clinical officer who examined the minor also confirmed that she had bruises, laceration and a tear on her Libia Minora and also bruises on her vigina opening. His evidence confirmed that penetration occurred and corroborated the evidence of PW2. I do therefore find and hold that penetration was sufficiently proved. 24. The third element is that of identification. PW1 confirmed in her evidence in chief that she knew the appellant as they both resided within one Manyatta and reiterated that he was her assailant. The incident occurred at about midday after she had left school and therefore, she had the benefit of time and light to clearly see who had raped her. This therefore, was a case of recognition as the victim knew the appellant well by name and physical appearance.See; Peter Musau Mwanzia vs Republic [2008] eKLR, where it was stated that evidence of recognition carries more weight as the risk of mistaken identity is very minimal. 25. Considering the totality of the evidence adduced, I do find that the prosecution did ably discharge the burden and indeed proved that the appellant did defile the complainant. The offence of defilement was therefore proved. ii. Whether there was failure by the prosecution to call a crucial witness and its effect, if any 26. The appellant strongly submitted that the prosecution failed to call, CI, PW2 friend, who was alleged to be at the scene and that failure, inferred that the evidence of the uncalled witness would have been adverse to the prosecution case. 27. The prosecution is required to avail to the court all relevant evidence to enable the court make an informed decision based on the evidence available. However, there is no legal requirement on the number of witnesses to prove a fact. Section 143 of the Evidence Act (Cap 80) Laws of Kenya provides: “ 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.” 28. In the case of Bukenya & Others vs Uganda [1972] EA 549 the court addressed itself thus: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5417/eng@2026-04-22 5

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29. a) The prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. b) That the Court has the right and duty to call witnesses whose evidence appears essential to the just decision of the case. Similarly, in Keter vs Republic [2007] 1 EA 135 the court held inter alia thus: “ The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt. 30. It is evident here that the prosecution did in fact call all the material witnesses whose evidence as a whole it assessed to be sufficient to prove their case and cannot be faulted for not calling the other minor, CI. The appellant also had an opportunity during the defence case to call the said witness to testify in his favour but failed to do so. He must therefore hold his peace in that regard. iii. Whether the fact that the appellant did not plead afresh to the amendment chargesheet was fatal. 31. After the last prosecution witness had testified, they did apply to amend the chargesheet to change the minors age to read seven (7) years and not six (6) years as indicated in the chargesheet. The court allowed the said application since it was not a substantive amendment and would not prejudice the appellant. This amendment occurred before the appellant was placed on his defence and he did not object to the same. 32. The power to amend the charges is conferred upon the trial court, by section 214(1) of the Criminal procedure code. It allows the court to make such orders for the alteration of the charge, either by way of amendment of the chargesheet or by substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case. This power must be exercised judicially, not capriciously, with due regard to the circumstances of the case and the interests of justice. Once an amendment is made, the accused must be given an opportunity to plead to the new charges and recall witnesses for fresh testimony, or cross examination, as stipulated under Section 214(i)(ii) of the Criminal Procedure Code. 33. Before the trial court, the charge the accused face was not altered in any manner nor was it substituted or additional charges added. All that occurred was the minor age was altered to reflect the correct age and without doubt, the appellant was not prejudiced by the said amendment and/or nor did he need to plead afresh to the said minor amendment. iv. Whether the sentence passed was illegal/ unlawful and thus should be quashed and/or set aside. 34. As regards the sentence, This Court is guided by the principles in the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR where it was stated as follows: “ It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5417/eng@2026-04-22 6

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sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist.” 35. The principles guiding interference with sentencing by the appellate court were also properly set out in S Vrs Malgas (1) SACR 469(SCA) at para 12, where it was held that; “ A court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would usurp the sentencing discretion of the trial court………however, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence imposed by the trial court. It may do so when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed had it been the trial court is marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate”. 36. The appellant was charged with the offence of defilement contrary to Section 8(1) & (2) of the Sexual offences Act, no 3 of 2006, which provided for life sentence, should the accused be found guilty. 37. In Republic vs Joshua Gichuki Mwangi: Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) the Supreme Court reiterated its decision in Muruatetu II that the sentences in the Sexual Offences Act were legal and went on to overturn a reduction of sentence imposed by the Court of Appeal. The Court held; “ In the Muruatetu case, the Court solely considered the mandatory sentence of death under section 204 of the Penal Code as it was applied to murder cases; it did not address minimum sentences at all. Therefore, mandatory sentences that applied for example to capital offences, were vastly different from minimum sentences such as those found in the Sexual Offences Act, and the Penal Code. Often in crafting different sentencing for criminal offences, the drafters of the law in the legislature, took into consideration a number of issues including deterrences of crime, enhancing public safety, sequestering of dangerous offenders, and eliminating unjustifiable sentencing disparities. Stern sentences ensured that prejudicial myths and stereotypes no longer culminated in lenient sentences that did not reflect the gravity of sexual offences.” “…..However, where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in he special circumstances of a declaration of unconstitutionality, the process is reversed.” 38. In Shitula v Republic [2025] KECA 12 (KLR) the Court of Appeal recently, (January 2025) based on the above Supreme Court decision, held that life imprisonment imposed by court was a legal sentence and upheld it. It observed that; “ The Supreme Court has spoken clearly through the Gichuki case (supra) and we are bound by that decision-age, rehabilitation and remorse notwithstanding, the minimum life sentence meted out was legal and must be upheld, as we hereby do. The appeal thus fails in its entirety and is dismissed”. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5417/eng@2026-04-22 7

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E. Disposition 39. 40. Having considered the entire appeal I do find and hold that; a. The Appeal against conviction and sentence lacks merit and the same is dismissed b. Right of Appeal 14 days It is so ordered. JUDGMENT READ, SIGNED AND DELIVERED IN VIRTUALLY COURT AT MARSABIT THIS 22ND DAY OF APRIL 2026. FRANCIS RAYOLA OLEL JUDGE DELIVERED ON THE VIRTUAL PLATFORM, TEAMS THIS 22ND DAY OF APRIL 2026. In the presence of:……………………… Appellant ……………………… For O.D.P.P ……………………… Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5417/eng@2026-04-22 8

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