David Githinji Thiga v Republic

7. The appeal was canvassed by way of written submissions. In his submissions dated 27th August, 2025, the Appellant argued that the trial court erred in finding that the age of the complainant had been proved without first supplying him with a copy of the birth certificate, thereby denying him the opportunity to challenge its authenticity. 8. The Appellant further contended that the prosecution’s evidence on penetration was purely circumstantial and lacked the requisite corroboration to establish the act beyond reasonable doubt. He also submitted that no independent or corroborative evidence was tendered to support the complainant’s identification of the perpetrator, thereby falling short of the threshold required in criminal proceedings. 9. The appellant submitted that his right to a fair trial provided for in Article 50 (2) of the Constitution was violated from the onset by a deficient charge sheet, that did not provide a clear and unambiguous statement of the offence that he had been charged with. He contended that the charge sheet failed to explicitly state the specific ingredients of the offence, which is a fundamental requirement of section 134 of the Criminal Procedure Code. 10. The appellant further submitted that the trial court’s failure to assist him with legal representation, hampered his defence, as the trial court failed to assist him in challenging the authenticity of the complainant’s birth certificate. 11. As regards his sentence, the appellant contended that the sentence imposed on him was manifestly harsh and excessive, for failing to balance the gravity of the offence, with his right to a proportionate punishment. 12. On the other hand, Counsel Esther Torosi for the Respondent in her written submissions dated 15th August, 2025, contended that the prosecution had proved beyond all reasonable doubt, all the three ingredients of the offence of defilement, contrary to the allegations by the appellant. 13. The Respondent submitted that the charge sheet was not defective in substance and could not have occasioned any prejudice to the Appellant, as alleged, since it clearly set out the statement of the offence as well as the particulars thereof. The Respondent further argued that the Appellant had the opportunity to access legal representation during the trial but elected to represent himself. In doing so, he extensively cross-examined the prosecution witnesses and defended himself. The Respondent contended that this demonstrates that the Appellant was capable of conducting his case, and therefore suffered no prejudice. 14. Regarding the sentence imposed on the appellant by the trial court, the respondent submitted that the said sentence was legal and constitutional. The respondent in its submissions urged this court to uphold the appellant’s conviction and sentence. 15. This being a first appeal to the High Court, I am reminded of my primary duty as the first appellate court, which is to subject the evidence adduced before the trial court to a fresh and exhaustive analysis, in order to arrive at my own independent conclusions on whether the findings of the trial court should be upheld, while bearing in mind that unlike the trial court, I did not have an opportunity to hear or see the witnesses and to make due allowance in that regard. 16. This duty was re-stated by the Court of appeal, in Okeno v Republic (1972) EA 32; as follows: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5716/eng@2026-04-30 2

page 2 of 7

evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). 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; it must make its own findings and draw its own 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, see Peters v Sunday Post, [1958] E. A. 424.” 17. Guided by the principle in the aforementioned duty, I have carefully considered the grounds of appeal, as well as the rival written submissions made on behalf of both parties; I have also read the evidence on record together with the impugned judgement. Having done so, I find that the issues arising for determination are as follows: i. Whether the Charge sheet was defective ii. Whether the appellant’s right to fair trial were violated iii. Whether the prosecution proved the offence of defilement beyond all reasonable doubt; and iv. Whether the sentence was harsh and excessive. 18. Turning to the first issue for determination, the appellant in this case alleged that the charge sheet was defective, for failing to state the specific ingredients of the offence, which, according to him, is a fundamental requirement under section 134 of the Criminal Procedure Code. 19. Section 134 of the CPC which provides for what should be contained in a charge sheet, stipulates as follows: “ Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence.” 20. In this case, the amended charge sheet before the trial court, shows that the accused was charged with the offence of defilement, contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence, as per the said amended charges sheet states as follows: “David Githinji Thiga: On diverse dates between 2nd June, 2021, and 27th June, 2021, at [Particulars withheld] village, in Gatundu south sub county, in Kiambu county, intentionally and wilfully caused his penis to penetrate the vagina of A.N.K, a child aged eleven (11) years of age.” 21. In the present case, it is evident that the amended charge sheet not only discloses the offence with which the appellant was charged before the trial court, but it also sets out the particulars thereof with sufficient clarity, thereby providing the appellant with reasonable and adequate information as to the nature of the charge he faced. 22. In my view, the amended charge sheet complied with the requirements of section 134 of the Criminal Procedure Code and was not defective, contrary to the appellant’s assertions. 23. Turning to the second issue for determination, the appellant contended that his right to a fair trial was violated on the basis that the trial court failed to inform him of his right to legal representation, thereby prejudicing and hampering his defence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5716/eng@2026-04-30 3

page 3 of 7

24. Article 50 (2) (g) and (h), which provides for the right of an accused person to legal representation, stipulates as follows: “ (2) Every accused person has the right to a fair trial, which includes the right— (g) to choose, and be represented by, an advocate, and to be informed of this right promptly; and (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.” 25. From the wordings of the above provisions of the Constitution, it is clear that an accused person must be informed promptly of his right to legal representation. I have perused the record of the trial court, and there is no indication that the learned trial magistrate informed the appellant of his right to legal representation. 26. As to whether this was prejudicial to the appellant, the Court of Appeal in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) versus Republic [2022] KECA 23 (KLR); when faced with a similar issue on appeal, stated as follows: “ It should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation. The Constitution demands it. In the present case, the record does not show that the appellant was informed by the trial court of those rights. However, quite apart from the fact that these matters were not raised before the trial court, from the way the appellant cross examined the prosecution witnesses and from his general conduct during the trial, it is not evident an injustice, nay substantial injustice, resulted from the omission by the trial court to inform the appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution. The failure by the trial court to inform the appellant of his rights in this case should not therefore be a basis for vitiating his trial. All in all, we are satisfied that the conviction is well founded, and we have no basis for interfering with the same.” 27. Similarly, the court of appeal in Mwavughanga versus Republic [2023] KECA 1489 (KLR) stated thus: “ …the record of the trial Court shows that the Appellant participated in the trial and crossexamined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the Appellant’s argument that his right to a fair trial under Articles 50(2) (g) and 50(2)(h) of the Constitution were violated. Nothing turns on this point.” 28. From the wording of Article 50(2)(h) of the Constitution, as well as the above decisions of the Court of Appeal, it is evident that an accused person’s right to legal representation at the State’s expense is triggered where the accused is likely to suffer substantial injustice. This may arise from the complexity of the case, the seriousness of the charges, or where it is apparent that the accused is unable to effectively participate in the proceedings. 29. In the present case, the record of the trial court demonstrates that the appellant actively and meaningfully participated in the proceedings. The charges were read to him in a language he understood, and he entered a plea of not guilty. He proceeded to cross-examine all the prosecution witnesses and mounted his defence without any apparent difficulty. In the circumstances, there is no https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5716/eng@2026-04-30 4

page 4 of 7

indication that the appellant suffered any substantial injustice. I therefore find that his right to a fair trial was not violated as alleged, and consequently, this ground of appeal is without merit. 30. Regarding the claim that the prosecution did not prove their case beyond all reasonable doubt, the appellant had alleged in his written submissions, that the prosecution had failed to prove all the three ingredients of the offence of defilement to the required standard. 31. It is trite that for the prosecution to sustain a charge of defilement against the appellant, all the three ingredients of the offence must be proved. In Serem versus Republic (Criminal Appeal 108 of 2019) (2023) KECA 30 (KLR) the Court of Appeal stated that the ingredients of the offence of defilement are identification of the offender, age of the victim and penetration. The court in the said case, expressed itself as follows: “ The key ingredients that must exist to found a conviction in an offence of defilement are firstly, that the complainant/ victim is a child, secondly, that there was penetration and thirdly, that the person charged was positively identified as the perpetrator of the offence.” 32. The Court of Appeal in John Mutua Munyoki versus Republic (2017) eKLR; stated that all the ingredients of the offence of defilement must be proved beyond reasonable doubt. It addressed itself as follows: “ Under the Sexual Offences Act the main elements of the offence of defilement are as follows: (i) The victim must be a minor, and (ii) There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice. Therefore, in order for the offence of defilement to be committed, the prosecution must prove each of the above ingredients beyond reasonable doubt.” 33. In the present case, the appellant in his written submissions, faulted the learned trial magistrate for concluding that the age of the appellant had been proved, without him being given an opportunity to verify the authenticity of the birth certificate that had been availed in court as proof of the complainant’s age. 34. In my view, the appellant’s argument that the age of the complainant was not proved, on the basis that he was not afforded an opportunity to verify the authenticity of the birth certificate, is without merit. This is because, in law, the age of a victim, particularly in defilement cases, may be proved through documentary evidence such as a birth certificate or baptismal card, as well as by oral testimony. 35. This position was reiterated by the Court of Appeal in Edwin Nyambogo Onsongo versus Republic [2016] eKLR as follows: “ The question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documentary 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 proof of the victim’s age, it has to be credible and reliable.” 36. From the record of the trial court, the appellant was afforded an opportunity to cross-examine the complainant (PW1), yet at no point did he raise any issue regarding her age. Similarly, during the cross- https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5716/eng@2026-04-30 5

page 5 of 7

examination of PW2, Lucy Wambui, the complainant’s paternal aunt, the appellant did not question either the complainant’s age or the authenticity of the birth certificate produced in evidence. 37. The appellant likewise failed to challenge the authenticity of the said birth certificate at the trial. Had he done so, the trial court would have been in a position to address the issue and, if necessary, facilitate verification of the said document. In my view, the appellant is precluded from raising the issue of authenticity of the complainant’s birth certificate for the first time on appeal, having failed to do so at the trial stage when the opportunity was available to him. 38. Indeed, the record demonstrates that the appellant was an active participant throughout the proceedings. There was nothing to prevent him from requesting the court for an opportunity to interrogate or verify the complainant’s birth certificate at the material time. 39. In my view, and from the evidence on record, the complainant’s age was adequately proved. PW1, in her testimony before the trial court, stated that she was 11 years old at the time of the trial. PW2, the complainant’s paternal aunt, produced the complainant’s birth certificate, Entry No. 0657802545, which indicated that she was born on 29th September 2009. This places her at approximately 10 years of age at the time of the alleged incident. In the circumstances, I am satisfied that the age of the complainant was proved to the required standard. 40. With regard to the alleged penetration, the appellant submitted that the evidence on penetration was not corroborated and was merely circumstantial in nature. 41. PW1, the complainant, testified that on the material day she had been sent by her aunt (PW2) to deliver a mobile phone to the appellant. Upon leaving the gate, she encountered the appellant outside, whereupon he pulled her into a shamba situated behind her uncle’s house. She further testified that the appellant removed both her clothes and his own, instructed her to lie down, and thereafter lay on top of her and defiled her. Upon completion of the act, the appellant left, and the complainant dressed herself and ran back home. 42. PW1’s evidence was corroborated by that of PW4, Dr. Wambui Kamau, a doctor based at Gatundu Level 5 hospital. Dr. Wambui, who was testifying on behalf of the hospital, in her testimony stated that PW1was presented at their hospital on 2nd of July, 2021, with a history of being sexually assaulted on three occasions with a person well known to her. 43. She testified that the examination of the victim revealed that external genitalia was normal, while her hymen was broken. It was also noted that the complainant had no discharge, as she had bathed and changed clothes. 44. She further testified that high vaginal swab revealed pass cells, indicative of a bacterial infection. PW6 Dr. Eunice Njoki, a medical officer at Gatundu Level 5 hospital, testified that she holds a Bachelor of Medical and Surgery from Egerton University. She further testified that she has worked at Gatundu Level 5 hospital for a period of 1 year and 3 months. 45. PW6 testified that she examined the complainant upon her presentation at the hospital and duly filled the PRC forms. She corroborated the testimony by her colleague, PW4, and further indicated that the approximate age of the complainant’s injuries was about one week, which is consistent with the timeline given by PW1 regarding the alleged defilement. 46. In my view, the complainant’s account was sufficiently corroborated by the medical evidence on record. Consequently, I am satisfied that the prosecution proved the element of penetration to the required standard. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5716/eng@2026-04-30 6

page 6 of 7

47. With regard to identification, the evidence on record from PW1 and PW2 shows that the appellant and the complainant were neighbours. The appellant was therefore well known to the complainant, making this a case of recognition rather than mere identification. In such circumstances, the possibility of mistaken identity is significantly diminished, even in conditions of limited visibility such as at night. 48. I am therefore satisfied that the appellant was positively identified, and that the evidence of identification was proved beyond reasonable doubt. 49. Flowing from the foregoing, I am satisfied that the appellant proved all the ingredients of the offence of defilement beyond all reasonable doubt. 50. On the issue of sentence, the evidence on record shows that the complainant was approximately 10 years of age at the time of the offence. Section 8(2) of the Sexual Offences Act is explicit that a person who commits an act of defilement with a child aged eleven years or less shall, upon conviction, be sentenced to life imprisonment. 51. The provision states as follows: “ 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.” 52. This provision prescribes a mandatory sentence upon conviction, leaving the trial court with no discretion in the matter. The sentence imposed is therefore lawful and in accordance with the statute. 53. In the premises, I find no basis to interfere with the sentence imposed by the trial court. 54. Given the foregoing, I find that the present appeal lacks in merit and the same is dismissed. 55. Final Disposition: Appeal dismissed. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF APRIL, 2026. HON. T. W. OUYA JUDGE In the presence of: Ms. Torosi – Respondent/State David G. Thiga – Appellant present at Kamiti Maximum prison Kelvin/Hamza – Court Assistants https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5716/eng@2026-04-30 7

page 7 of 7