Jeremiah Karega Kanyige v Director of Public Prosecution

facing upwards, lay on top of her, and inserted his organ for urinating into her organ for urinating. She screamed and bled. She testified that this occurred five times. 5. On the second day, when she was from church, the accused took her to his house, removed her clothes, and made her bleed again as he inserted his private organ into hers. On another day, a Monday when she was from school, the accused, who was cutting trees near electricity poles, dragged her to his house and committed the same act. On yet another occasion, her mother sent her to the shop and the accused dragged her to his house as he was cutting trees and defiled her. The complainant further testified that the accused used to give her 10 or 20 shillings which she used to buy sweets. She stated further that on Wednesday, on her way home from school, he met the accused, who dragged her by the hand, took her to his home, and defiled her. 6. On cross examination, She identified the accused in court and described his house as made of wood with iron sheets on top, containing a small bed inside. 7. PW2 was EW, a farmer from Gatunguru. She testified that she knew the complainant’s mother to be mentally challenged and that PW1 was about 11 years old at the time. She stated that on 19th July 2021 at 1:00 p.m., she saw PW1 with 20 shillings. Upon inquiry, the complainant said the money was given to her by Karega. When PW2 threatened to report her, the complainant disclosed that they were doing "tabia mbaya," explaining that the accused tells her to remove her inner wear, they sleep on Karega's bed, he removes his "kasusu" and urinates on her. The complainant stated that this had happened twice. PW2 reported the matter to the chief and to the complainant's uncle and aunt. She was later called to the police station. And recorded a statement 8. PW3 was MN, the complainant's aunt. She testified that the complainant is her niece who lives with her mother, a person with mental disability. She stated that the complainant was born on 9th July 2010 and was 12 years old. On 23rd July 2021, she was called by PW2 and found them with PW1. Upon inquiry, the complainant said that Karega used to do "tabia mbaya" to her and he told her that if she told anyone, he would kill her. PW3 reported the matter to the police station, and the complainant was later taken to the hospital where treatment notes, lab tests, and a P3 form were prepared. She stated that the accused was unknown to her and was identified to her by PW1. 9. PW4 was PC Odongo Asuani No. 26xx00, the investigating officer attached to Gatura police post. He testified that on 23rd July 2021 at 6:00 p.m., a report of sexual assault was made against a person known as Karega. He stated that PW2 informed the complainant’s mother of her observation that something was amiss with PW1. That on 18th June 2021 while PW1 was on her way home from church, the accused called her to the room and defiled her. He stated that the complainant had been defiled three times, that the accused gave her money and threatened her. A report was written and the complainant was taken to hospital. A P3 form was later issued. The birth certificate was produced as an exhibit showing the complainant was aged 10 years at the time of the offence. He stated that the accused removed the complainant's clothes and inner wear and inserted his "thing" inside her private part. That the accused was arrested, after being identified by PW1. 10. PW5, Simon Mwangi Mburu, a clinical officer from Murang'a District Hospital, testified on behalf of his colleague under Section 17 of the Evidence Act. He produced the P3 form filled on 26th July 2021 for the complainant, aged 12 years, who had been defiled three times by a known person who gave her money to buy sweets. The clinical officer noted that penetration occurred on all three episodes at the accused's home, the age of the injury was approximately two weeks old, the nature of the injury was defilement of maim degree, and the hymen was broken. The estimated period for the incidents was two weeks hence healing. He stated that PW1 pregnancy and HIV results were negative. The P3 form, lab request, and treatment notes were produced as exhibits. That marked the close of the prosecution case. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5701/eng@2026-04-30 2

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11. Upon considering the evidence adduced by the prosecution, the trial magistrate ruled that a prima facie case had been established against the accused and accordingly placed him on his defence. Defence Case 12. The accused gave an unsworn statement that he is a farmer and had nothing to say. 13. The trial court accordingly found the accused guilty as charged and sentenced the accused to life imprisonment. The Appeal 14. Having been dissatisfied with the decision of the trial court, the accused lodged the present appeal vide a memorandum of appeal dated 25th August 2022, citing the following grounds of appeal: a. That the learned trial magistrate erred in matters of law and fact by failing to find that the ingredients of the offence of defilement were unproven; b. That the learned trial magistrate erred in matters of law and fact by basing conviction on a case that violated the appellant's right to fair trial under Article 50(2) of the Constitution; c. That the learned trial magistrate erred in matters of law and fact by basing conviction on hearsay evidence and by failing to find that there was no eye witness and no investigation was carried out; d. That the learned trial magistrate erred in matters of law and fact by convicting on uncorroborated evidence; e. That the learned trial magistrate erred in matters of law and fact by basing conviction on a prosecution case marred with contradictions and inconsistencies; f. That the learned trial magistrate erred in matters of law and fact by sentencing the appellant to a maximum mandatory sentence, thus violating the appellant's rights to fair trial under Article 50 of the Constitution and Section 333(2) of the Criminal Procedure Code. The appellant prayed that the appeal be allowed, the conviction quashed, and the sentence set aside. 15. Consequently, the appellant prayed that the conviction and sentence of the trial court be set aside. 16. The appeal was canvassed by way of written submissions. On record are submissions filed by the appellant dated 1st December 2025 and submissions dated 21st January 2026 filed by the respondent; both of which this court has carefully considered. Appellant’s Case. 17. The appellant filed amended grounds of appeal together with his submissions, stating the following three grounds: a. That the trial magistrate erred in law and fact by failing to accord the accused person a fair hearing as per Article 50 of the Constitution, and prayed for a retrial of the case. b. That the trial magistrate erred in law and fact by failing to consider that the elements of the offence charged were not proved beyond any reasonable doubt, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5701/eng@2026-04-30 3

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c. 18. That the trial magistrate erred in law and fact by failing to consider the appllant’s plausible unsworn defence which was not challenged by the prosecution side without a cogent reason to do so. In his written submissions, the appellant contended that he was not accompanied by an advocate and was not informed of his right to have an advocate, nor was he informed of the consequences of the charges. He submitted that he was not informed of his right to cross-examine witnesses, and that he did not cross-examine PW2, PW3, PW4, and PW5. He further averred that Section 211 of the Criminal Procedure Code was not explained to him, that he remained silent without any knowledge of how to defend himself, and that he was confused throughout the trial. He further submitted that he was not supplied with the witnesses' statements, the P3 form, or the PRC form. 19. On the element of penetration, the appellant submitted that PW5 did not indicate the cause of the penetration and that the clinical officer did not know who was responsible for the alleged penetration, adding that the hymen can be broken by many means such as riding a bicycle, exercise, or an object. He relied on the case of Peter Mungai Njoroge v. Republic (HCCRA No. E022 of 2022 at Nyeri KLR (2024)). 20. He further averred that after the close of the prosecution case and the court’s ruling that he had a case to answer, he was not informed the consequences of remaining silent. That the trial magistrate convicted the appellant under section 215 of the CPC, and alleged violation of section 169 of the CPC. He submitted that the trial magistrate failed to consider his defence without a cogent reason to do so, and that the burden of proof was placed on his shoulder. Respondent’s Case. 21. The respondent opposed the appeal in its entirety and submitted that the age of the victim was proved to be 11 years at the time of the offence, as the complainant testified that she was 12 years old when testifying, PW3 confirmed she was born on 9th July 2010, and the birth certificate produced as an exhibit confirmed her age. On penetration, the respondent submitted that PW1 gave a clear and consistent account of how the accused removed her clothes, put her on the bed, and inserted his organ into her organ, causing her to bleed and scream, and that this occurred on multiple occasions. The respondent further submitted that PW5's medical evidence was consistent with the offence of defilement, noting that the hymen was broken and the age of the injury was about two weeks old. On identification, the respondent submitted that PW1 knew the accused by name as Karega, knew how his house looked like, and identified him in court, and that this was identification by recognition which drastically reduces the possibility of mistaken identity, relying on MW v. Republic [2019] eKLR. 22. On the issue of fair trial, the respondent submitted that the test under Article 50(2)(h) of the Constitution is whether substantial injustice would result by not being provided with an advocate by the state, and that in this case no substantial injustice was foreseeable. The respondent relied on David Njoroge Macharia v. Republic [2011] KECA 406 (KLK) where the Court of Appeal held that substantial injustice may arise in capital offences where the penalty is loss of life, but submitted that from the proceedings, it is clear that the trial court gave the accused chances to test the evidence of each witness through cross-examination, and that the allegation that his right to fair trial was compromised due to absence of an advocate is therefore baseless. 23. The respondent further submitted that the trial court considered the accused's unsworn defence, which amounted to no defence at all. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5701/eng@2026-04-30 4

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24. On sentence, the respondent submitted that Section 8(2) of the Sexual Offences Act prescribes life imprisonment for defilement of a child aged 11 years or less, and that the learned magistrate sentenced the appellant to life imprisonment sentence as prescribed by law. 25. The respondent concluded that there is no evidence of infringement of the accused's right to a fair trial to warrant a retrial, that the conviction and sentence passed were appropriate, and that the appellant has failed to give sufficient grounds of appeal to warrant quashing of the conviction and setting aside of the sentence by this honourable court. Analysis and Determination 26. This being a first appeal, this court is under a duty to re-evaluate and re-analyse the evidence tendered before the trial court and to arrive at its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify. (see Okeno v. Republic [1972] EA 32 and Pandya v. Republic [1957] EA 3360). 27. I have looked at the grounds of appeal, the submissions filed by the parties, the lower court proceedings and the trial court’s judgment. The issues that fall for determination are: i. Whether the Appellant’s constitutional right to a fair hearing under Article 50 of the constitution was violated ii. Whether the prosecution proved the offence of defilement beyond reasonable doubt; iii. Whether the defence by the appellant was considered by the trial court Issue I: Whether the Appellant’s constitutional right to a fair hearing under Article 50 of the constitution was violated 28. The appellant’s foremost complaint was that he was not accorded a fair hearing within the meaning of Article 50 of the Constitution. He contended, in particular, that he was not informed of his right to counsel, was not supplied with witness statements and medical documents and did not understand the import of Section 211 of the Criminal Procedure Code which was not explained to him. 29. Article 50(2)(g) guarantees an accused person the right “to choose, and be represented by, an advocate, and to be informed of this right promptly,” while Article 50(2)(h) secures state-funded legal representation only where substantial injustice would otherwise result. Article 50(2)(k) similarly grants the accused person a right to adduce and challenge evidence tendered in trial. The record as placed before this court shows that the appellant cross-examined the prosecution witnesses himself. PW1 was cross-examined by the accused, and the record indicates that for PW2, PW3, PW4, and PW5, the accused indicated "Nil" for cross-examination. This suggests that the appellant chose not to crossexamine those witnesses, not that he was denied the opportunity. At the close of the prosecution case, the trial court found a prima facie case and placed the appellant on his defence. The court proceedings indicate that ‘Section 211 of the CPC’ was explained upon delivery of the ruling. Thereafter, the appellant elected to give an unsworn statement stating that he is a farmer and had nothing to say. From the foregoing, I find that the trial court did not infringe on the rights of the appellant as vested under Article 50 of the Constitution. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5701/eng@2026-04-30 5

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Issue II: Whether the Whether the prosecution proved the offence defilement beyond reasonable doubt; 30. Section 8 (1) and (2) of the Sexual Offence Act No 3 of 2006 provides 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.” 31. The offence of defilement is rooted on three main ingredients being; the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. [ See Dominic Kibet Mwareng vs Republic [2013] eKLR]. 32. On the age of the complainant, the complainant testified that she was 12 years old when she testified on 10th November 2021. PW3, the complainant's aunt, testified that the complainant was born on 9th July 2010, and the birth certificate produced as PEXH1 confirmed that date of birth. At the time of the offence between 11th July 2021 and 18th July 2021, the complainant was therefore 11 years old. In a charge of defilement, age is a critical ingredient because it is not only an element of the offence but also determines the applicable sentence. Courts have held that age may be proved by documentary evidence such as a birth certificate, age assessment, school records, or even the evidence of a parent or guardian. 33. The Court of Appeal in the case of Edwin Nyambogo Onsongo vs Republic (2016) eKLR stated as follows: “ ... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 34. In the present case, I am satisfied that the complainant's age was proved beyond reasonable doubt. The birth certificate was the best evidence of age, and it placed the complainant at 11 years at the material time. 35. On penetration, PW1 gave a direct account that the appellant removed her clothes, placed her on the bed, and inserted his organ for urinating into her organ for urinating, causing her to bleed and scream. She testified that this occurred on multiple occasions: on the first day, on the second day when she was from church, on a Monday when she was from school, and on another occasion when her mother sent her to the shop. That evidence was not rendered worthless merely because the hymen was described as broken but not freshly broken, or because no spermatozoa were seen. 36. The law is settled that penetration under Section 2 of the Sexual Offences Act means ‘partial’ or complete insertion of the genital organ, and that even the slightest penetration is sufficient. It is equally settled that proof of penetration does not depend on spermatozoa, DNA, or fresh genital injuries in every case. The medical evidence by PW5, though not conclusive on its own as to the identity of the perpetrator, did lend support to the complainant's account. The clinical findings showed a broken hymen and injuries that were approximately two weeks old and healing. Defilement may be proved by the oral evidence of the victim, if the court believes that evidence. I therefore find that the ingredient of penetration was proved. PW1's narration on what transpired was clear, consistent, and direct, and the medical evidence was not inconsistent with her account. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5701/eng@2026-04-30 6

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37. On the identity of the perpetrator, this was not a case of identification of a stranger. The complainant knew the appellant beforehand and described him as Karega, stating that he used to give her money and that she knew how his house looked like. Her evidence was therefore one of recognition. Courts have repeatedly held that recognition is generally more reliable than identification of a stranger, especially where the witness had prior familiarity with the accused. In addition, Section 124 of the Evidence Act permits a court, in a sexual offence, to convict on the sole evidence of the victim if, for reasons to be recorded, the court is satisfied that the victim is truthful. In this case, the trial court believed the complainant's evidence, and I find no reason to disturb that finding. The complainant's testimony was consistent and detailed, and she withstood cross-examination. I therefore find that the appellant was positively identified as the perpetrator. 38. On the appellant's complaint that the trial court relied on the evidence of a single witness and that the evidence was uncorroborated, that contention is not borne out by the record. The prosecution called five witnesses, and even where the complainant is the only direct witness to the sexual act, the proviso to Section 124 of the Evidence Act allows a conviction on that evidence alone, once the court is satisfied that the complainant is telling the truth. The trial court explicitly stated that it believed the evidence of the child, and I see no reason to interfere with that finding. 39. On the appellant's complaint that crucial witnesses were not called, including the arresting officer and others, the law does not require the prosecution to call a particular number of witnesses. Under Section 143 of the Evidence Act, no particular number is required for proof of any fact. The prosecution is not expected to call a superfluity of witnesses, and an adverse inference is only warranted where the evidence tendered is barely adequate. Here, the prosecution evidence was not barely adequate. PW1 testified on the actual offence, PW2 and PW3 testified on the report and the complainant's disclosures, PW4 was the investigating officer, and PW5 produced the medical evidence. In those circumstances, I am not persuaded that the failure to call additional witnesses occasioned any prejudice or rendered the prosecution case insufficient. Issue III: Whether the defence by the appellant was considered by the trial court 40. As for the appellant's complaint that the trial court failed to consider his defence, the record shows that after being put on his defence, he gave an unsworn statement that he had nothing to say. There was therefore no substantive defence evidence requiring detailed analysis. In those circumstances, that ground has no merit. 41. On the issue of sentence, the complainant was 11 years old, and the trial court imposed life imprisonment under Section 8(2) of the Sexual Offences Act, which provides that a person who commits defilement with a child aged eleven years or less is liable upon conviction to imprisonment for life. The appellant has challenged the sentence on the basis that it was a mandatory minimum sentence. However, the later jurisprudence of the Supreme Court has clarified the position on mandatory sentences under the Sexual Offences Act. In Republic v. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae),__ the Supreme Court upheld the lawfulness of the minimum sentences prescribed under the Sexual Offences Act, faulting the extension of the Muruatetu decision to such offences. I find no legal basis to interfere with the sentence of life imprisonment imposed under Section 8(2) of the Sexual Offences Act. 42. The upshot is that the appeal against conviction and sentence is hereby dismissed in its entirety. The conviction is upheld and the sentence of life imprisonment is affirmed. 43. Right of appeal 14 days explained. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5701/eng@2026-04-30 7

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DATED, SIGNED AND DELIVERED ONLINE AT KAKAMEGA THIS 30TH DAY OF APRIL, 2026. S.N MBUNGI JUDGE In the Presence of:CA: Angong’a/Velma Accused present online from Nyeri GK Prison. Mr Ndege for ODPP present online. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5701/eng@2026-04-30 8

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