Wilson Ikocheli Alias Mmbaga Willy v Republic

7. The appellant, being dissatisfied with the decision and the judgment of the trial court, filed the following appeal based on the following grounds; a. That, the learned trial magistrate grossly erred in law and facts by presiding over a trial that grievously violated my rights to a fair hearing as set under article 50 (2)(c )(e)(J) & (p) of the Constitution. b. That the trial court erred in law and fact by failing to note and consider that there was no documentary proof regarding medical evidence to prove the alleged injuries. c. That, the learned trial magistrate grossly misdirected himself in law by finding penetration and age of the victim proved by use of common sense without considering that the sentence is determined by age. d. That the trial court erroneously convicted and sentenced him on the evidence of a single witness without an independent witness, as the incident allegedly occurred in a busy place. e. That, the learned trial magistrate grossly misdirected himself in law and facts in convicting and sentencing him in light of inconsistent, flimsy, disjointed, suspicious, fabricated and doubtful evidence of the prosecution without noting and considering that the same was not watertight enough to sustain a sound conviction. f. That, the trial court erroneously convicted and sentenced him without giving the defence due consideration, but instead shifted the burden of proof to him. g. That, more grounds to be adduced upon receipt and perusal of the trial court proceedings. 8. He prayed that the appeal be allowed in its entirety and the conviction and sentence be quashed and or set aside and he be set at liberty. 9. The appeal was to be canvassed by way of written submissions; however, at the time of writing the judgment, neither the appellant nor the Respondent had filed their submissions. Evidence in brief. 10. Pw1 gave unsworn evidence where she testified that on the fateful day, she was playing with her friends who left her while she was wearing her shoes. She claimed that that is when the accused pushed her into the ditch, removed her clothes, her panties and dress and had sexual intercourse with her. She claimed that the accused put his penis inside her vagina and that she managed to run away and went and told her aunty and later her mother when her private part began to itch. 11. She testified that she was taken to the hospital, where she was treated, and later to the police station and issued with some papers. She testified that she knew the accused, who used to work for his mother. 12. On cross-examination, she stated that she knew the accused as he lived near them and used to carry scrap for her mother. She stated that although she did not recall what he wore on that day, she went to report the incident to her aunt and that it happened on Sunday, although she did not recall the time. 13. PW2 was the complainant’s mother. She testified that the complainant was in grade 2 and was 9 years old when she was defiled. 14. She recalled that on 20/1/2020, her daughter went to play outside and later informed her sister that she was not feeling well, and that is how she knew what happened. She claimed that they rushed to the village elder and later rushed her to the hospital, and later reported the defilement at Kakamega police station, where she was taken to Kakamega referral hospital for treatment and produced the treatment https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5547/eng@2026-04-30 2

page 2 of 5

notes, Marked MF1-1, P3 form MF1-2, PRC MF1-3. She stated that the accused was never known to him before the incident. 15. During cross-examination, she stated that the accused was arrested for the incident, and he was not known to her before the incident. 16. PW3 was the clinical officer who produced the PRC form dated 22/12/2020 for the complainant according to the form, the complainant who was 9 years old at the time was defiled by an unknown male on 19/12/2020 at night and that the assailant defiled her and her hymen was broken. He testified that he filed the form on 22/12/2020 and produced the treatment notes Exhibit 1, P3 form Exhibit 2 and the PRC Exhibit 3. 17. At cross-examination, he confirmed that he only examined the complainant and not the accused. 18. PW4 was a police officer who testified on behalf of the investigating officer who had since been transferred. She testified that on 21/12/2020 a case of defilement was reported at the station where the complainant avers that she was approached by the accused at a nearby center and he made sexual advances towards her and when she refused, he pushed her in a nearby bush, removed her clothes and had sex with her, she claimed that she run home and informed her mother and the accused was arrested and she was taken to the AP dispensary. 19. She testified that an age assessment was done on 20/12/2020, and the assessment was marked Exhibit 4. 20. During cross-examination, she stated that although no one saw the act which occurred at 5 P.M., the complainant informed her mother and aunt what had happened. 21. The prosecution closed its case, and the trial court found that it had established a prima facie case to place the accused on his defence. 22. The accused gave an unsworn testimony. He testified that on 19/12/2020, he stayed at work until 2 p.m., he went home, took a bath, went to town, and then went home. He stated that he went to sleep, and the next day, he met with the complainant’s sisters, who informed him that their mother was looking for him, and he was arrested later on allegations of defilement and ofience he denied committing. 23. On 31st July 2024, the trial magistrate delivered a judgment after analysing the prosecution and the defence case. The court held that the prosecution was able to prove beyond a reasonable doubt the elements of defilement and found that the accused was guilty of the ofience of defilement and sentenced him to life imprisonment. 24. The appellant, now being dissatisfied with the decision and the judgment of the trial court, has filed the above appeal. Analysis and Determination 25. As the first appellate court, this court's role is to re-evaluate the evidence afresh and draw its own conclusions, while bearing in mind that it did not have the benefit of observing the witnesses' demeanour. This duty was aptly captured in Selle v Associated Motor Boat Co. Ltd [1968] EA 123, where the court stated that an appellate court must reconsider the evidence, evaluate it itself, and draw its own conclusions, making allowance for the fact that it has neither seen nor heard the witnesses. 26. This court has considered the evidence on record and grounds of appeal. 27. To prove a charge of defilement, the prosecution has the duty to prove beyond any reasonable doubt the following: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5547/eng@2026-04-30 3

page 3 of 5

a. Proof of penetration; b. Proof of identity of the appellant; c. Proof of age 28. The appellant in his memorandum of appeal had challenged the above-mentioned elements, including others such as sufficient evidence to support the prosecution’s case, as well as alleged violations of fair trial rights under Article 50(2) of the Constitution, which I will address. 29. The first issue is on the alleged violation of fair trial rights under Article 50(2)(c), (e), (j), and (p) of the Constitution. I note that the appellant did not file his submissions, hence he did not define how the said rights were breached. There is no evidence in the record of inadequate time or facilities for preparation, unreasonable delay in the trial, failure to inform him of evidence in advance, or application of a more severe punishment than applicable at the time of the ofience. 30. In John v Republic (Criminal Appeal E094 of 2023) [2025] KECA 45 (KLR), the Court of Appeal emphasised that claims of fair trial violations must be substantiated with specific instances, failing which they cannot succeed. 31. Similarly, in Owuor v Republic (Criminal Appeal E120 of 2023) [2025] KEHC 7938 (KLR), unsubstantiated allegations of procedural unfairness were dismissed. 32. As there was no elaborated discussion by the appellant on how his right to a fair trial was violated, this ground must fail. 33. The appellant further claims that there was a lack of documentary proof of medical evidence and proof of penetration. This court notes that at the trial process, the prosecution produced the P3 form (Exhibit 2), PRC form (Exhibit 3), and treatment notes (Exhibit 1), which confirmed a broken hymen, indicative of penetration. PW3, the clinical officer, testified to these findings. In Kamau v Republic (Criminal Appeal E003 of 2024) [2025] KEHC 42 (KLR), the court held that penetration in defilement cases need not be proved by DNA but can be established through medical evidence such as a broken hymen or the victim's testimony. 34. PW1's unsworn testimony explicitly described the act of penetration, which the trial court found credible. The absence of examination of the accused does not negate this evidence, as linkage is through identification, not medical matching. Penetration was proved beyond a reasonable doubt. 35. The appellant avers that the complainant’s age was not proved through documentary evidence. The complainant's mother (PW2) testified she was 9 years old, corroborated by the age assessment report (Exhibit 4) dated 20/12/2020. In INW v Republic (Criminal Appeal E004 of 2024) [2025] KEHC 1957 (KLR), the court affirmed that age in defilement cases can be proved by parental testimony, medical assessment, or documentary evidence, and precise age is not required so long as it falls within the relevant bracket for sentencing. 36. Here, the complainant was under 11 years, attracting the mandatory life sentence under Section 8(2) of the Sexual Offences Act. The trial court's reliance on this evidence was proper, not mere "common sense." 37. As to conviction on the evidence of a single witness without independent corroboration Section 124 of the Evidence Act provides that in sexual ofiences, the court may convict on the uncorroborated testimony of the victim if it believes the victim and records reasons for such belief. PW1 was the sole https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5547/eng@2026-04-30 4

page 4 of 5

identifying witness, but she knew the appellant well, as he worked for her mother and lived nearby. The incident occurred in daylight (around 5 p.m.), aiding identification. 38. In Okondo & another v Republic (Criminal Appeal E70 of 2025) [2025] KEHC 11365 (KLR), the court upheld a conviction based on the victim's credible testimony without corroboration, noting that the law does not require it in defilement cases. 39. In Magero v Republic (Criminal Appeal 146 of 2019) [2025] KECA 323 (KLR), it was held that penetration can be proved by the victim's oral evidence alone. 40. The trial court evidently believed PW1, and the "busy place" argument does not negate her account, as no witnesses were called to contradict it. 41. On alleged inconsistencies and flimsy evidence (ground e), the appellant points to minor discrepancies, such as the date in PW2's testimony (20/1/2020, likely a typographical error for 20/12/2020, aligning with other evidence). In Korir v Republic (Criminal Appeal E027 of 2023) [2025] KEHC 289 (KLR), the court held that minor inconsistencies do not vitiate a conviction unless they go to the root of the case. 42. The main ingredients that need to be determined at any defilement case are the age of the victim, if the assailant was positively identified and if penetration was proved, and it's my finding that all these elements had been proved beyond a reasonable doubt by the prosecution and remained unchallenged. 43. The appellant avers that the trial court failed to consider his defence and further that it shifted the burden of proof to him, a fact that was never proved, as he failed to elaborate further on how the burden of proof shifted to the defence. 44. Having re-evaluated the evidence, I find the prosecution proved the charge beyond a reasonable doubt. The conviction is upheld. In sentence, Section 8(2) mandates life imprisonment for defilement of a child under 11 years. While the Supreme Court's decision in Francis Karioko Muruatetu v Republic [2017] eKLR declared mandatory death sentences unconstitutional, its application to defilement sentences has been limited in child victim cases, as seen in Masha v Republic (Criminal Appeal E066 of 2023) [2025] KECA 1826 (KLR), where life imprisonment was upheld for similar ofiences. 45. It is my finding that the sentence is lawful and is upheld. 46. The appeal is dismissed in its entirety. 47. Right Appeal 14 days. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA 30TH DAY OF APRIL, 2026. S.MBUNGI JUDGE In the presence of:CA: Velma/Angong’a. Ms Kiu for the ODPP present online. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5547/eng@2026-04-30 5

page 5 of 5