Joseph Wangila Wafula v Republic

(3) That the learned trial magistrate erred in matters of law and fact by failing to properly consider the cogent defence which reasonably exonerated the appellant form the commission of the ill-fated offence. (4) That the court imposed a sentence of twenty (20) years imprisonment which is manifestly harsh. (5) That he be supplied with certified records for preparation of his submissions.” 4. The state vehemently opposes the appeal. 5. Both sides filed their written submissions. The Appellant relied on two sets of submissions dated 22nd September 2025 and 28th September 2025 (supplementary submissions). Those of the prosecution are dated 2nd October 2025. 6. The appellant submitted that he was not accorded a fair hearing in that the learned magistrate did not inform him of his right to legal representation as provided in Article 50(2) (g) (h) of the Constitution. He also cited Section 43 of the Legal Aid Act and the cases of David Njoroge Macharia v Republic [2011] eKLR, Edwin v Republic [2024] eKLR and Onyango v Republic [2022] KEHC 1632 (KLR). The Appellant also alleged that he was not supplied with the evidence of the prosecution beforehand and contended that as a result, his defence was prejudiced as he could not prepare for the trial. Further, that the elements of the offence of defilement were not proved beyond reasonable doubt; that what was produced to prove the age of the victim was a certificate of birth which was not certified; that penetration was not proved and hence the conviction was not safe. He also claimed to have been deceived by the child that she was eighteen; that he believed her when she told him she had applied for an identity card and also because she was applying for mobile loans. 7. In the supplementary submissions, the appellant stated that the learned magistrate did not take into account the period he stayed in remand custody as required in Section 333(2) of the Criminal Procedure Code. He relied on the cases of Ahamad Abolifath Mohammed & Another v Republic [2018] eKLR and the case of Bethwel Kibor v Republic [2009] eKLR. 8. For the State, Prosecution Counsel Makena Kaburu, urged that all the ingredients of the offence were proved beyond reasonable doubt; that all the appellant’s rights to fair trial were observed; that the appellant did not at any one time state that he wished to have an advocate appointed; that he was given sufficient time to prepare and that the sentence imposed was lawful. Counsel urged this court to dismiss the appeal and to uphold the conviction and sentence imposed by the learned Magistrate. Analysis and determination 9. As the first appellate court, I have reconsidered and evaluated the evidence in the court below so as to arrive at my own independent conclusions albeit taking into account that I did not see or hear the witnesses as did the learned magistrate. I have also considered the rival submissions, the cases cited thereat and the law. 10. The right to fair trial is guaranteed to all accused persons in Article 50(2) of the Constitution and is one of the rights that is non-derogable – see Article 25 (c) of the Constitution. It is therefore encumbent upon this court to consider this issue first, before moving to the merits. In his submissions, the appellant alleges firstly that he was not informed of his right to legal representation and that he was not supplied with the prosecution’s evidence before hand. Both of theses are elements of the right to fair trial. I have perused the record of the lower court carefully and come to the conclusion that the Appellant’s rights were all observed by the court. Before he took plea, the learned Magistrate did https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5904/eng@2026-04-30 2

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caution him of the gravity of the offence. He was also supplied with all the evidence relied upon by the prosecution way before the commencement of the trial and therefore he had ample time to prepare. The manner in which he conducted his defence does not reflect lack of preparedness. Indeed his not having an advocate did not occasion him any prejudice as he was granted an opportunity to crossexamine the witnesses. Those two grounds are therefore found to have no basis. 11. I now turn to the merits of the appeal. The offence of defilement has three main elements which are: i. That the victim is a child and their age for purposes of sentence. ii. That there was penetration. iii. The identification of the accused person as the perpetrator of the offence. 12. On the element of age, the prosecution produced a birth certificate which indicates that the victim was born on 16th January 2010 meaning she was 14 years at the material time. The appellant impeached that birth certificate for reason that it was a copy but it was not certified. I do not however agree with him given that the birth certificate is but an extract of the Register of Births. Indeed the certificate has been certified by the Registrar of Machakos District as having been compiled from an entry/return in the Register of Births in the District. It is duly stamped and sealed in accordance with the Births and Deaths Registration Act and it was properly received in evidence. The victim’s mother (PW2) also testified that the victim was born in 2010. Therefore, the first element was proved beyond reasonable doubt. 13. In regard to the second element, the prosecution adduced evidence that the appellant befriended the victim while he worked in a home near theirs. He later moved to Naivasha and invited the victim and lived with her there until her father (PW3) went there and with the help of officers from Kihoto Police Station in Naivasha went and brought her home. The victim testified that the appellant was her boyfriend and that they used to have sexual intercourse. In his defence the appellant admitted that he had prior to going to Naivasha worked in Kangundo and that he was found with the victim in Naivasha. He however contended that it is she who followed him to Naivasha. He contended that the victim behaved like an adult; that he had asked her how old she was but she did not tell him; that when he asked her if she had an identity card, she told him she was in the process of obtaining one. He also testified that although he started the affair with the victim while they were in Kangundo he did not sleep with her at that time. 14. I have evaluated the evidence by both sides carefully and I am satisfied that the charge against the appellant was proved beyond reasonable doubt. The element of penetration was proved by the victim’s testimony that she used to stay with the Appellant and that they would have sexual intercourse. That the victim had stayed with the appellant in his house in Kangundo was corroborated by her mother (PW2) who testified that she even cautioned the appellant to stop but he would not listen. The appellant himself admitted that he was found with the victim in Naivasha – miles away from Kangundo – by the victim’s father who was accompanied by police officers. The victim’s father (PW3) testified that he received a tip off from a member of the public who owned the house where they were staying and who had seen school uniform in the victim’s bag. His testimony was corroborated by Cpl Mulatia (PW5) who accompanied him to the house and arrested the appellant. PW3 stated that when he learnt of the relationship between the appellant and the victim he warned the appellant but he left their vicinity and moved to Naivasha and continued with the relationship. PC Alice Ndungu (PW6) of Kangundo Police Station confirmed that she had received a report of the relationship while the appellant was still in Kangundo. That, he had stayed with the victim for 10 days and had sexual intercourse with her. She testified that the appellant fled when police went to arrest him. He went to Naivasha where the victim followed her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5904/eng@2026-04-30 3

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15. A reading of the Appellant’s testimony betrays that he does not deny that he had sexual intercourse with the victim. He instead states that she deceived him to believe she was over the age of eighteen years. This is a defence under Section 8(5)(a) of the Sexual Offences Act which states:“ (5) It is a defence to a charge under this section if— (a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and (b) the accused reasonably believed that the child was over the age of eighteen years.” 16. The availability of the above defence to an accused person depends on the circumstances of the offence and the steps the accused person took to ascertain the age of the complainant. 17. I have carefully considered the above defence in regard to the circumstances of the case and in my considered opinion it does not avail to the appellant. Firstly, he knew the victim in this case was a child because he had been told so by her parents and he was even being sought by the police for staying with her for ten days. That notwithstanding, he invited her to Naivasha and continued living with her as if she was an adult. Moreover, even if he had any doubt as to her age, he did not take any steps to confirm it. He could have done so by talking to her relatives more so her mother who was living in the same vicinity. My finding is that, he intentionally had sexual intercourse with the victim knowing very well that she was a child. The charge against him was proved to the required standard. I can even say it was watertight. There is hence no reason for this court to disturb the conviction and the sentence imposed by the court below. The appeal against the conviction and sentence is dismissed. 18. I find that the appellant’s complaint that the learned magistrate did not comply with the proviso to Section 333(2) of the Criminal procedure Code is true. That proviso is mandatory and any court sentencing an accused person to a term of imprisonment must observe it. The record indicates that the appellant did indeed remain in custody throughout his trial. In the premises, I direct that the sentence of twenty (20) years imprisonment shall be computed from the date he was arrested which is 19th May 2024. It is so ordered. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 30TH DAY OF APRIL 2026. E. N. MAINA JUDGE In the presence of: Appellant in person at Machakos Main Prison No appearance - for the State Mary - Court Assistant/Interpreter https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5904/eng@2026-04-30 4

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