Voa v Republic

i. I pleaded not guilty. ii. The sentence meted herein is harsh, excessive and punitive in the circumstances. iii. The trial magistrate erred in law by ignoring sentencing policy guidelines. iv. I am a first offender with no previous criminal record and now remorseful. v. I am seeking leave to amend and/or supplement my petition after receiving lower court records. Evidence 6. At trial, PW1 was the minor. She testified that the Appellant was the husband of her sister. He was her brother-in-law. On 25.7.2020, she was home. Her sister called her mother requesting PW1 to go to assist the sister who was unwell. She sent fare, and PW1 went to Migori where her sister lived. After a week’s stay at her sister, her sister asked PW1 to cook for those who were weeding in the sugarcane plantation. The Appellant was one of them. She cooked and served them and collected the dishes back to her sister. 7. Later at 7 pm, she met the Appellant. He told her that he wanted to do something and warned her against screaming, he then pushed her into the sugarcane plantation and lifted her skirt. He removed her inner pants and had sex with her. The Appellant’s father had two homes- where the Appellant lived and another home where the sugarcane plantation was. The incident happed at the other home. The next day she went to her sister place. The next day, she took the food to them and the Appellant did the same thing. 8. It was her further testimony that the next day, she took food but refused to stay around and went back to her sister. She asked her sister to let her go back home. Her sister was still unwell and so declined. She cried and her sister then allowed her to go. At home, she felt sickly and her mother gave her money to go to hospital. She was told that she was pregnant. She did not disclose this to her mother. 9. On 19.5.2021, she started bleeding. She went to Ndhiwa hospital but was referred to Homabay for a scan. She was later recommended for a c-section. The nurse demanded to know who impregnated her and she said it was the Appellant. the nurse called her sister. Later the Appellant disappeared and the PW1’s sister also disappeared. They disappeared for 3 years. She gave birth to a baby boy. The Appellant did not cross examine her. 10. PW2 was MAO. She asked PW1 to go and assist CA who was unwell. PW1 left on 25.7.2020. PW1 returned home in August. She looked sickly. She took PW1 to hospital and they confirmed she was pregnant. 11. She stated that the minor gave birth through caesarian delivery. All this time, she had not revealed who impregnated her. Later, she heard that it was the Appellant who impregnated PW1. The Appellant had demanded that the child be given to him as it was his. The Appellant and Caroline had disappeared for 3 years. When the she made a report to the police having learnt that the Appellant had returned, the Appellant was arrested. The Appellant did not cross examine PW2 as he stated that his tradition could not allow her to question his mother in-law. The court did not warn the dangers of not cross examining. The court just recorded the reasons for not cross examining. 12. PW3 was Kennedy Otieno, the clinical officer. He examined PW1 on 6.7.2023. He produced PW1’s health passbook, P3 Form, PRC form and Lab request form and mother and child hand book. According to him, PW1’s hymen was broken a long time ago. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5532/eng@2026-04-29 2

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13. PW4 was No. 23xxxx PC Emily Musyoka attached to Ndhiwa Police Station. She was the Investigating Officer. She took up investigations on 6.7.2023. It was her case that following investigations, she reasonably believed that the Appellant was culpable and he arrested the Appellant to face the charges before court. she produced birth certificate showing PW1 was born on 9.8.2009. The Appellant had no question to her in cross examination. 14. The appellant was placed on his defence upon Section 211 of the criminal Procedure Code being complied with. He opted to give sworn testimony. 15. The Appellant also testified on oath as DW1 that he was a toilet cleaner in Migori county. He testified that he did not know about the defilement case. He was arrested on 5.7.2023 while at his home at 10pm. He was held for 5 days but did not know the charges. The charged were framed on his since he had married another wife and PW2 was not happy. He was arrested on unrelated allegations and assaulted by the police. Defilement charges were mounted after he was already arrested and was in custody. He was on treatment but the girl was not on treatment for an immunity related condition. He stated that PW2 was bitter since he married another wife despite warnings from PW2. 16. He wished to call his younger wife but with two adjournments the court closed the defence case. The appellant was convicted under section 8(4) of the Sexual Offences Act. The court sentenced the appellant to 15 years’ imprisonment. Submissions 17. The Respondent filed undated submissions by which it was submitted that he was arrested on 5.7.2023 and arraigned on 12.7.2023 and so his constitutional right to under article 49 (10 f (i) (ii) were infringed. He also submitted the charge had defective dated and the trial court convicted hum under the wrong section of the law. he submitted that he ought not to have been sentenced under section 8(4) of the sexual offences act. to this extent I agree with the appellant. 18. The Appellant also submitted that penetration was not proved. 19. On sentence, it was submitted that the sentence was not in consonance with the law which meant there was no sufficient evidence. 20. On their part the Respondent filed submissions dated 2.12.2025. It was submitted that the sentence imposed was lenient. Reliance was placed section 8(2) of the sexual offences act that the sentence ought to have been life imprisonment and so was manifestly lenient. 21. It was submitted that the same should be enhanced to life imprisonment. On sentence they relied on the case of Bernard Kimani Gacheru V Republic [2002] KECA 94 (KLR), where the court of appeal[Chunga, C.J, Shah & Bosire, JJ.A] held as follows: For example, in the High Court case of Wanjema Vs R. 1971 E.A 493 , more particularly, on page 494 letters (D) to (E) this is what that court said:"A sentence must in the end, however, depend upon the facts of its own particular case. In the circumstances with which we are concerne d, a custodial order was appropriately made. But that which was made cannot possibly be allowed to stand. An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5532/eng@2026-04-29 3

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the sentence is manifestly excessive in the circumstances of the case. The instant sentence merits this court's interference with it on each of these grounds. No account was taken as it should have been, of the fact that the appellant pleaded guilty: Skone (1967), 51 Cr. App. R. 165 and Godfrey (1967), 51 Cr. App. R. 449 (This admits of no doubt because the magistrate awarded the maximum sentence to this first offender; which of itself is unusual.) Matter extraneous to the trial was acted upon for the magistrate bore in mind that he had "issued a warning only last week that dangerous drivers will be dealt with severely by the court." 22. The court warned the appellant that it will enhance the sentence to life given the age of the complainant but he had no objection. the judgment was ready on 23.03.2026 but the appellant did not log in we deferred the same to today. Analysis 23. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand The duty of the first appellate court remains as set out in the Court of Appeal for Eastern Africa in Pandya -vs- Republic [1957] EA 336 is as follows: On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the Judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 24. 25. The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. However, the age of 12 years is over written to indicate 11 years. I note this to be in error as PW1 was said to be 11 years old. I reproduce Section 8 (1)-(4) of the Sexual Offences Act as follows: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (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. (3) ….. (4) … It is trite that this court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted a fresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, the Court of Appeal stated as follows: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5532/eng@2026-04-29 4

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1. 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. 2. 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. 26. The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. Further whether the appellant’s constitutional rights were infringed. 27. Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence of course it is possible, but not in the least probable, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth: What then amounts to reasonable doubt? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:‘That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’ 28. The parameters that were to be proved in cases such like the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 29. The linchpin of the prosecution case was that the complainant went to her sister place. The sister was the Appellant’s wife on 25.7.2020. According to PW1, while at her sister who was feeling unwell, the Appellant took advantage and had sex with her on two occasions, 25.07.2020 and 26.07.2020. He could pull her into a sugarcane plantation and after threatening her against telling anyone, remove her inner clothes and have sex with her. She got pregnant as a result and gave birth to a baby boy. The Appellant maintained that the defilement charges were framed. 30. The court faced very troubling proceedings. The appellant was charged with one offence and convicted of another. Someone attempted to change the charge sheet. It is not countersigned. Further, the appellant did not matter even better. He did not cross examine any witness. Failure to cross examine was addressed in the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR): The record before us, shows clearly that complainant was properly subjected to voire dire examination at the end of which, the learned Magistrate concluded that she was intelligent and understood the duty of speaking the truth and directed her to give unsworn statement. She gave detailed evidence but at the end of her evidence, there was no cross-examination https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5532/eng@2026-04-29 5

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and no explanation was availed for that omission. The appellant was not represented and hence could not have ensured his rights were honoured. Mr. Abele says that omission was not proper in law, and we agree. Proviso to Section 124 of the Evidence Act states:Provided where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim was talking the truth. One wonders how the court could verify the truth of such a witness if the witness is not cross-examined on her evidence. Section 146(1) of the Evidence Act states:146(1) Witnesses shall first be examined in chief, then if the adverse party so desires, cross-examined, then if the party, calling them so desire, re-examined. In this case, as the complainant was not cross-examined, the court could not have had full evidence upon which it could decide on the veracity of the evidence. We cannot tell what the first appellate court would have done had its attention been drawn to that omission. In our mind, had the learned Judge revisited the evidence afresh, analyzed it, and evaluated it, he would have certainly appreciated that glaring omission. 31. The lack of cross examination was not explained or the omission brought to the attention of the appellant. It is not clear whether the appellant refused to cross examine or the court invited the appellant to cross examine but had no questions. The record does not show that the appellant was invited for cross examination. The record shows that the appellant did not cross examine witnesses. 32. The effect of lack of cross examination can be seen in the overall justice of this case. This will be addressed with a view of the wholistic view of the case. I note that identification was by recognition. It was not an issue in the appeal. The court must be aware of the dangers of identification by strangers, especially voice. 33. However, in this case, the appellant was a sister-in-law. The action was said to be in broad daylight. In the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), the court of appeal [ Madan, Law & Potter JJ A)] posited as follows: The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 34. On penetration, the minor testified that there was penetration twice. This was said to have resulted into a pregnancy. The document produced in court shows that the minor was 14 years old in 2020. Her last monthly period was given as 9.11.2020. The expected date of delivery was 16.08.2021. Evidence was thus not serious evidence since it related to the pregnancy after 9.11.2020. There does not appear to be a nexus between the pregnancy which could not have occurred after LMP and actions of 25/7/2020 and 26/7/2020. Unfortunately, the minor was not cross examined to test the veracity of her evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5532/eng@2026-04-29 6

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35. There is also a question that is also troubling. The minor indicated to the ANC clinic that she was 14 years. She indicted that she was 14 years when she was testifying in 2023. Age is therefore a matter that ought to be tested. 36. The court could not invoke Section 124 of the Evidence Act in the absence of testing of the veracity of her evidence. This is compound by the out of this work gestation period. I will not address this further in view of the orders I am about to give. 37. Looking at the trial the appellant did not understand the nature of the proceedings. Article 50 (2) (h) of the Constitution provides as follows: “ (2) 38. 39. Every accused person has the right to a fair trial, which includes the right(a) ... (h) 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.” The appellant faced life imprisonment if convicted. There were glaring errors including age of the complainant and the date of conception. there is a child in the matter ad a propel instructed advocate will have invoked relevant sections of section 36(1) and (2) of the Sexual Offences Act, which provides as follows: (1) Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence. (2) The sample or samples taken from an accused person in terms of subsection (1) shall be stored at an appropriate place until finalization of the trial. The errors in the proceedings were substantial. However, the evidence was not idle. In absence of cross examination, the court cannot find that the appellant deserves an acquittal. in the case of Kenneth Mwatia Mwengu v Republic [2020] KEHC 3074 (KLR), the court held as follows: The grounds upon which a matter may be referred for retrial are well settled in the case of Samuel Wahini Ngugi v. R (2012) eKLR where the Court of Appeal held: “The law as regards what the Court should consider on whether or not to order retrial is now well settled. In the case of Ahmed Sumar vs. R (1964) EALR 483, the predecessor to this Court stated as concerns the issue of retrial in criminal cases as follows: ‘It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5532/eng@2026-04-29 7

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for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person’ 40. The order for retrial is not made where there were gaps in evidence. In this case there were errors made by the court and not the prosecution. The right to legal representation in a case of this nature is sacrosanct. The court shall therefore direct that the matter proceeds before a court other than Hon N Wairimu. It is unnecessary to deal with the sentence in view of the order for retrial. Determination 41. I make the following final Orders: i. This Appeal is allowed. ii. The conviction and sentence is set aside. In lieu therefore, the matter is remitted back to the lower court for re-trial. iii. 14 days right of appeal. iv. File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 29TH DAY OF APRIL, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Pro se Appellant Mr. Kihara for the Respondent PC Ntabo Court Assistant - Michael/Martin/Osoo https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5532/eng@2026-04-29 8

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