Bongo Tsuma Kaira v Republic

4. PW4, a clinical officer at Mariakani subcounty hospital examined PW1 and found that he had injuries on his anus. He concluded that PW1 had been sodomised and produced the P3 form and treatment notes as exhibits P exhibits 1 and 2. On 12 May 2016, PW2 accompanied by PW1, reported the incident to Mariakani police station and was attended by PW3 who recorded the incident in the stations’ O.B, investigated the matter and arrested the appellant on the same day. He produced the victim’s birth certificate as P exhibit 3. 5. The trial court found that the appellant had a case to answer and placed him on his defence. Through unsworn testimony he denied the offence terming it as a fabrication founded on the grudge between him and PW2 over a debt of Ksh. 9,000. At the conclusion of the trial, the court found that the prosecution had proved its case beyond reasonable doubt, convicted him and sentencing him to life imprisonment as afore-stated. 6. Aggrieved, the appellant filed the present appeal where he raised the following grounds: i. The trial court erred in both law and fact for failing to comply with Article 50 (2) (h) and (j) of the Constitution. ii. The trial court erred in both fact and law by failing to find that the prosecution did not prove its case beyond reasonable doubt as required by law. iii. The trial court erred in both law and fact by relying on the complainant’s evidence without ascertaining whether he understood the nature of oath. iv. The trial court erred in both law and fact by not considering the appellant’s defence. 7. At the hearing of the appeal, the appellant elected to rely on his written submissions. He submitted that the trial court violated his right to fair trial under Article 50 (2) (h) of the Constitution by failing to inform him of the right or have an advocate assigned to him despite the seriousness of the offence. He further argued that his right to fair trial under Article 50 (2) (j) of the Constitution was violated since he was not supplied with the prosecution’s evidence prior to hearing. 8. On identification, the appellant submitted that this element was not proved due to the various contradictions in the prosecution witnesses. He argued that his arrest was informed by the grudge PW2 held against him. 9. Regarding penetration, he contended that this element was not established to the required standard since even though the examination found that the victim had injury in the anus and lacerations in the rectum, there was no conclusion that there was either partial or complete penetration. He further argued that PW4 did not offer any evidence as to who was responsible for the injuries. 10. The appellant challenged the voire dire on grounds that the trial court did not satisfy itself that the victim possessed sufficient intelligence to enable him understand the meaning of oath and allow the court admit his evidence. Finally, he submitted that the trial court failed to consider his defence particularly that the entire case was founded on the grudge between him and PW2 who instigated it. 11. On sentencing, he submitted that the victim was 13 years old and not 11 years as per the charge. The argued that the sentence of life imprisonment was excessive in view of the victim’s age and urged the court to review it. He pointed out that the minimum sentence for an offence under section 8 (3) of the Sexual offences Act is 20 years imprisonment and not life imprisonment as is the case under section 8 (2) of the Act. Finally, he prayed that his appeal be allowed, conviction quashed and sentence set aside or in the alternative, that his sentence be reduced. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9158/eng@2026-06-25 2

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12. The Respondent opposed the appeal and filed written submissions which they relied on. It was submitted on behalf of the Respondent that the prosecution presented a strong case and had discharged its burden on proof beyond reasonable doubt. That PW 1 and PW 2’s evidence clearly demonstrated that the appellant waylaid PW1 on the material dates and defiled him. This was corroborated by evidence of PW4 the clinical officer who examined PW1 and established that he had lacerations and injury on him anus which is evidence that he been sodomised. The court was referred to the exhibits 1 and 2 being the treatment notes and P3 form as proof thereof as well as PW1’s birth certificate, exhibit 1 which demonstrated that he ‘the victim’ was 13 years hence a child within the context of the law. 13. On identification, the Respondent submitted that this element was duly proved by the evidence of PW1 who positively identified the appellant as the perpetrator, described how the appellant waylaid him on his way to school, threatened him to his house and defiled him. That the ordeal took place in broad daylight, lasted for six hours and victim led his grandmother, PW2 to the appellant’s house. 14. On the issue of penetration, the Respondent submitted that there was cogent and uncontroverted evidence of penetration from PW1, PW4 as well as exhibits 1 and 2. It was further argued that the appellant’s defence was duly considered but found insufficient to warrant an acquittal. Regarding the sentence, the Respondent submitted that the victim being 13 years, the court had the discretion to grant any sentence so long as it was not below the minimum of 20 years set by law. The court was urged to uphold the trial court’s sentence in view of the egregious nature of the offence. Analysis and determination 15. This being the first appeal, the court has a duty to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. see Okeno Vs Republic [1972] EA 32 And Oiruri Mose Vs Republic (2013) eKLR. 16. The Court of Appeal, in Kiilu & Another V Republic [2005]1 KLR 174, stated thus; “ 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. 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.” 17. With that in mind, the court will proceed to determine the appeal. The appellant was charged with the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act. The said Act provides: “ 8(1) A person who commits an act which causes penetration with a child is guilty of an offence termed as 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.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9158/eng@2026-06-25 3

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18. The specific elements or ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. see Charles Wamukoya Karani Vs Republic, Criminal Appeal No. 72 of 2013. 19. Similarly, in George Opondo Olunga Vs Republic (2016) eKLR, the court of appeal held that the offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and proper identification of the perpetrator. 20. Drawing from the above, the issues for determination are as follows: a. Whether there was proof of penetration. b. Whether there was proof age of the victim. c. Whether there was positive identification of the perpetrator. d. Whether Article 50 (2) (h) and (j) of the Constitution were violated. Whether there was proof of penetration. 21. Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. 22. “Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To establish this element, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the anus of the victim, A.A. 23. PW1 testified that on 10 May 2016 at about 6am in the morning, he was on his way to school when the appellant, told him that he was late for school, removed a knife, threatened him and led him to his house, placed him in a mattress and inserted his penis on his anus. He held him there until 2pm when he released him but remained with his bag. He testified that the appellant had defiled him on two previous occasions. His testimony was corroborated by PW2 who narrated how PW1 reported the incident and took her to the appellant’s house, as well as PW 4 who examined PW1 on 11 May 2016 and established that he had lacerations and injury on his anus leading to the finding that he had been sodomised. He produced Ttreatment notes and P3 form (exhibits 1 and 2) as proof thereof. The court has examined the two exhibits and is satisfied that there was evidence of penetration. 24. The record from the trial court shows that on 27 June 2016, the trial court conducted voire dire as satisfied that PW 1 understood the nature of oath and the difference between telling the truth and lies. This court has examined the record and finds that the requirements under Section 19 (1) of the oaths and Statutory Declarations Act were duly satisfied. Additionally, under Section 25 of the Evidence Act, everyone is competent to testify unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease (whether of body or mind) or any similar cause. In this case, the court was satisfied that despite his tender years, PW1 was competent to testify. The court finds this contention unmerited and is dismissed. The court is satisfied that penetration was duly proved. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9158/eng@2026-06-25 4

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Whether there was proof of age of the victim 25. The age of the victim is a critical ingredient and must be proved for the offence of defilement under Section 8 (1) of the Act to crystalize. See Kamau V Republic (Criminal Appeal E003 Of 2024) [2025] KEHC 42 (KLR). 26. Age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi V Republic Criminal Appeal No. 21 Of 2015 [2017]. In this case, PW4 produced a birth certificate (exhibit 1) which shows that the victim was born on 3 March 2003 and was 13 years at the time of the incident. The court finds that this element of the offence was proved beyond any reasonable doubt. Whether there was proof of positive identiffcation of the perpetrator 27. Evidence on record is that PW1, the victim positively identified the appellant as responsible for the offence. The incident occurred in broad daylight, lasted for more than 6 hours and the victim was able to identify the appellant as responsible. This is buttressed by the fact that the victim took PW2 to the appellant’s house and pointed him as the perpetrator. He further testified that the appellant had defiled him on two previous occasions meaning that he could clearly recognize him. The court finds that this element was proved beyond reasonable doubt. Whether Article 50 (2) (h) and (j) of the Constitution was violated. 28. It was argued in appeal the Article 50 (2) (h) and (j) of the Constitution was violated rendering the trial unfair. The appellant submitted that he was not supplied with the evidence the prosecution intended to rely on during hearing and hence was unable to properly defend himself. It was further argued that the appellant was not notified of his right to counsel in view of the weighty offence he was facing, rendering the trial unfair. 29. The right to a fair trial is a non-derogable right under Article 25(c) of the Constitution. Central to this right is the guarantee under Article 50(2) (h) that provides that an accused as a right to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and be informed of this right promptly. Article 50 (2) (j) on the other hand, provides that an accused has a right to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence. 30. The right to state funded legal representation guaranteed under Article 50(2)(h) of the Constitution and operationalized by the Legal Aid Act 2016, would arise where substantial injustice would otherwise result. To the courts mind, the right is not automatic but dependent on whether substantial injustice would otherwise if an accused is not represented. The issue for determination therefore is, what is the meaning of substantial injustice? 31. The Supreme Court, in R vs Chengo & 2 others (2017) KESC 15 (KLR) held that in determining whether substantial injustice would be suffered in criminal matters, the court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include the seriousness of the offence, severity of the sentence, the ability of the accused person to pay his own legal representation, whether the accused is a minor, the literacy of the accused and complexity of the charge against the accused. The list is not exhaustive and each case is to be determined based on its own peculiar circumstances. 32. In this case, in determining the question of whether the appellant is likely to have suffered substantial injustice due to lack of state funded representation, the court has considered the complexity of the case https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9158/eng@2026-06-25 5

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and whether the appellant was able to follow the proceeding before the trial court and defend himself. Whereas the sentence is severe in view of the nature of the offence, the case was not complex at all. It was mainly based on issues of fact which were directly within the appellant’s knowledge. The witnesses testified on questions of facts and the documents were voluminous or not complex at all. A perusal of the record of the trial court showed that the appellant actively participated in the trial and crossexamined all the witnesses. It was therefore not evident or apparent that he suffered any substantial injustice that would require interference by this court. 33. As regards Article 50 (2) (j), the record of the trial court shows that on 13 May 2016, the court directed as follows; “ Mention before court on 16/5/16 for taking hearing date. Statement and copy of charge sheet to be supplied to the accused together with any other document the prosecution wishes to rely on.” 34. In subsequently sessions, the appellant indicated that he was ready to proceed with the hearing and did not mention that he had not been supplied with the evidence the prosecution intended to rely on or that the court order of 13 May 2016 was not complied with. The court finds no evidence to support the contention of violation of constitutional rights as alleged. Sentencing 35. Turning to the sentence, the appellant has sought reduction of the sentence on ground that that the trial court sentenced him to life imprisonment based on Section 8 (2) of the Sexual Offences Act whereas it was apparent that the victim was 13 years at the time the offence occurred and not 11 years as charged. Respondent, while admitting that indeed the victim was 13 years and not 11 years, submitted that the life sentence should be maintained since it can be awarded under Section 8 (3) of the Act. 36. It is not in dispute that the victim was 13 years and not 11 years as per the charge sheet. Consequently, the case falls under section 8 (3) of the Sexual Offences Act sets the minimum mandatory period of imprisonment to be 20 years. 37. Sentencing is an exercise of discretion by the trial court. In Bernard Kimani Gacheru Vs. Republic (2002) eKLR it was thus held: “ It is now settled law, following several authorities by this court and by the High Court that sentence is a matter which rests in the discretion of the trial court. Similarly, sentencing depends on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless the sentence is manifestly high/excessive in the circumstances of the case or that the trial court overlooked some mutual factors or took into account some wrong material or cited upon a wrong principle. Even if the Appellate court feels that the sentence is heavy and the Appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the decision of the trial court on sentence unless anyone of the matter stated i.e. shown to exist.” 38. Mandatory minimum sentences under the Sexual Offences Act remain lawful. See SC Petition E018 of 2023, Republic Vs Joshua Gichuki Mwangi and Francis Muruatetu & Another Vs R; Katiba Institute & 5 Others (2021) eKLR. In the present case, the trial court did not record reasons why it awarded life sentence as opposed to any other sentence. The trial court must have mis-directed itself that it lacked discretion by dint of the minimum sentence under section 8 (2) of the Sexual Offences Act which the appellant had been charged with. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9158/eng@2026-06-25 6

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39. This court finds that the trial court clearly overlooked its discretion to consider an appropriate sentence based on the law. The appellant pleaded for leniency. He was the first offender and has already served 9 years imprisonment. There were no aggravating circumstances to warrant a higher sentence than the minimum mandatory of 20 years imprisonment. 40. Section 333(2) of the Criminal Procedure Code provides that a court is required to take into account the period spent by the accused in custody prior to sentencing. The appellant was arrested on 12 May 2016 and remained in custody during trial until 18 November 2016 which translates to 6 months and 6 days. The record is silent on whether this period was considered. 41. Section 354 (3) of the Criminal Procedure Code empowers the High Court to vary any sentence on appeal. In light of the above, the court makes the following orders: - 42. a. The appeal against conviction lacks merit and is accordingly dismissed. b. The sentence of life imprisonment is set aside and substituted with a sentence of 20 years imprisonment. c. The period spent in custody during trial of 6 months and 6 days shall be deducted from the appellant’s sentence. d. The sentence shall run from the date of conviction. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF JUNE 2026 JOSEPH KIPKOECH BIOMDO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9158/eng@2026-06-25 7

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