Joshua Kibet Kogo v Republic

3. PW2, an employee of Unilever Chebaon Estate was sent by his supervisor to arrest the appellant on allegations of defiling a child. Accompanied by PW4, they arrested the appellant whom they later handed over to the police who re-arrested him. PW3, a guard at the estate testified that PW1 came to her crying and told her that the appellant had defiled the complainant. She said she knew the appellant who was working for Unilever. 4. PW5, the Investigating Officer received the complaint, re- arrested the appellant and issued the complaint with a P3 form. He produced a copy of the complainant’s birth certificate in court which shows the complaint was born on 17th December 2006. 5. PW6, the Clinical Officer examined the complainant. His findings were that her hymen was broken, it had an old scar, the vagina had redness on the walls, and there was redness on the anal ring. He estimated the injuries to be one day old. In his opinion, the child had been sodomized. He produced the P3 form. He also examined the appellant. His findings were that he had normal genitalia. He found nothing abnormal. He prepared his P3 which he produced in court. 6. Upon being put on his defence, the appellant said that he will not testify, instead, he will call a witness. DW1, Cosmas Kibett Rotich was his first witness. His evidence was that on the material day he was “given a report that the appellant had committed the offence.” The appellant also called DW2, Kenneth Oduor Akida, who had earlier testified as PW4. He told the court he had nothing else to say other that his earlier evidence as PW4. It is not clear why a witness who had testified as a prosecution witness could again testify for the defence. The propriety or otherwise of this unusual scenario was not raised or addressed. Since it appears not to have been an issue before the two courts below, we will also say nothing about it. 7. The trial court in its judgment dated 23rd September 2016 was satisfied that the prosecution had proved its case to the required standard, it convicted the appellant and sentenced him to serve life imprisonment. The appellant’s appeal to the High at Kericho against both conviction and sentence was dismissed on 2nd October 2020 by Ongeri, J. The appellant is now before this Court seeking to overturn the High Court decision. In his memorandum of appeal dated 5th July 2024, the appellant listed 6 grounds of appeal which the appellant’s counsel addressed in his written submissions dated 21st March 2026. 8. The first ground addressed by the appellant’s counsel is “penetration was not proved.” To support this assertion, counsel referred to the evidence tendered by PW6 (the Clinical Officer) who examined the appellant and his findings were that his genitalia was normal and laboratory examination showed that he was normal. According to the applicant’s counsel, this evidence confirmed that the appellant did not engage in any sexual activity. Citing Section 361 (2) of the Criminal Procedure Code and Kiilu & Another vs. Republic [2005] 1 KLR 174, counsel maintained that in a first appeal, the appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and the appellate court to arrive at its own independent conclusions. According to counsel, the findings by the Clinical Officer exonerated the appellant from any sexual activity. 9. To further buttress his argument that penetration was not proved, counsel submitted that PW1 in his evidence only talked about sodomy while the charge sheet clearly mentioned vaginal penetration. He cited Section 134 of the Criminal Procedure Code which provides that a charge sheet contains sufficient information if it contains a statement of the offence the accused is charged with together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged. Counsel contended that the omission to mention sodomy in the charge sheet transcends the exceptions provided under Section 382 of the Criminal Procedure Code. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12470/eng@2026-07-31 2

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10. The other ground urged by the appellant is that the prosecution failed to call a crucial witness, that is, the complainant. He faulted to first appellate court for failing to draw an adverse inference for the prosecution’s failure to avail the complainant to testify claiming that she was nervous. Counsel relied on Bukenya & Others vs. Uganda [1072] EA 549 which underscored that the prosecution must make available all witnesses necessary to establish the truth even if their evidence may be inconsistent. Counsel also cited Juma Ngodia vs. Republic [1982-88] 1 KAR 454 to urge that if the prosecutor does not call a vital witness without a satisfactory explanation, he runs the risk of the court presuming that his evidence would have been unfavorable to the prosecution. 11. The appellant’s counsel also faulted the learned judge for failing to find that the failure to assign the appellant legal assistance was a violation of Article 50 (2) (23) (g) of the Constitution. Also, counsel faulted the first appellate court for failing to find that the failure by the trial court to comply with Section 200 of the Criminal Procedure Code was prejudicial to the appellant. 12. Regarding sentence, counsel faulted the learned judge for upholding the sentence of life imprisonment, which was imposed without considering the appellant’s mitigation. 13. Learned counsel for the prosecution Mr. Omutelema, Senior Assistant Director of Public Prosecutions relied on his written submissions dated 10th March 2026. It was his submission that there was overwhelming evidence of penetration of the child by the appellant. Counsel maintained that PW1 found the appellant in bed with the complainant. Further, the Clinical Officer testified that the victim’s hymen was broken, there was redness on vaginal wall and the anal ring had injuries and lacerations on her anal area. He concluded that the child was defiled anally and vaginally. It was his submission that the above evidence leaves no doubt that the element of penetration was proved. 14. As to whether the appellant was properly identified as the offender, Mr. Omutelema submitted that both the mother and the victim clearly identified the appellant, and asserted that the complainant’s mother found him naked in bed with the victim who was also naked. 15. Addressing the question whether the complainant’s age was proved, Mr. Omutelema maintained that it was established by evidence that the complainant was aged 7 years as at the time of the offence. He specifically referred to the evidence of PW1, (the complainant’s mother) who stated that the complainant was aged 7 years. He also referred to the Clinical Officer’s evidence who also stated that the complainant was aged 7 years. Lastly, Mr. Omutelema referred to the evidence of the Investigating Officer who produced a copy of the complainant’s birth certificate. He cited Mwalongo Chihoro Mwanjembe vs. Republic [2016] eKLR to urge that age can be proved by a birth certificate, baptism card or oral evidence. Further, both the trial court and the first appellate court correctly evaluated the evidence and concluded that age of the complainant was proved to the required standard. 16. Mr. Omutelema also submitted that the prosecution evidence was credible and it was not shaken in cross-examination. Further, the appellant’s defence was considered, and he was accorded fair hearing, Regarding the failure to provide the appellant with a legal representative, counsel acknowledged the Constitutional right to legal representation under Article 50 (2) (h) of the Constitution but asserted that the said right was to be operationalized by enacting the legislation contemplated under the said Article. Ultimately, the Legal Aid Act was enacted in 2016, long after the appellant had gone through the trial. Further, not all accused persons are entitled to legal representation. To qualify, one must satisfy the requirement that he cannot afford legal representation. Lastly, counsel submitted that there is nothing to show that the appellant raised the issue and was denied the opportunity to engage an advocate. 17. Regarding the claim that the victim was not called as a witness, Mr. Omutelema maintained that in the circumstances of this case, the best interests of the child required that she be protected from further https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12470/eng@2026-07-31 3

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agony. In any event, the testimony of the PW1 remained uncontroverted and it was corroborated by the testimony of PW6 which was uncontroverted. Further, the alleged failure to call the victim as a witness was not raised before the first appellate court. 18. As for the alleged failure to comply with Section 200 of the CPC, Mr. Omutelema submitted that the trial magistrate explained to the appellant the provisions of Section 200 but he never indicated his desire to recall the witnesses or for the case to start de novo, instead he asked that the case proceeds from where it had reached. 19. Regarding sentence, counsel submitted that the penalty provided under the law where the victim is aged 11 years or below is life imprisonment and urged this Court to uphold the sentence. 20. This is a second appeal, therefore, our jurisdiction is limited to considering matters of law as stipulated by Section 361 of the Criminal Procedure Code. A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at their findings. (See David Njoroge Macharia vs. Republic [2011] eKLR). 21. First, we will address the assertion that the complainant was not called to testify, therefore, the High Court erred in failing to make an adverse inference that the complainant’s evidence would have been adverse to the prosecution. We have carefully looked at the appellant’s grounds before the first appellate court. For the sake of clarity, we will list them here. They were: a. the appellant was not accorded legal representation; (b) the trial court did not evaluate the appellant’s mental psychiatric acuity; (c) the appellant’s mitigation was not considered; and, (d) the sentence was manifestly excessive. 22. Clearly, the ground questioning the failure by the prosecution to call the complainant was not one of the grounds of appeal placed before the first appellate court. This Court in JK vs. Republic [2025] KECA 1808 (KLR) explicitly cautioned against mutating an appeal during a second tier of review. The court reiterated that when determining a second appeal, it is bound by the parameters of what was placed before the High Court (acting as the first appellate court). Allowing an appellant to formulate and introduce entirely new grounds of appeal at this late stage would turn the Court of Appeal into a Court of first instance for those issues, which fundamentally undermines the appellate structure. 23. In Sichei v Republic (Criminal Appeal No.8 of 2020) [2025] KECA 152, this Court noted that unless a new ground involves a severe question of fundamental constitutional jurisdiction or legality that goes to the root of the entire trial, an appellant must confine themselves strictly to the legal questions generated from the first appeal's record. However, before us is a case where the complainant did not testify. The offence carries a mandatory life sentence. We are persuaded that this is a question that may raise constitutional issues and or legality that may go to the root of the trial, therefore, the issue merits consideration by this Court. 24. In our considered opinion, it is not automatically fatal to the State’s case if a minor child who is a victim of a sexual offence is unable to testify or is not called as a witness. A conviction can still be sustained if there is independent circumstantial, medical, or hearsay evidence that proves the guilt of the accused beyond a reasonable doubt. However, because the absence of the primary victim eliminates direct oral evidence, courts subject the remaining evidence to strict judicial scrutiny to safeguard the accused’s right to a fair trial. The ultimate test is not whether the victim testified, but whether the totality of the remaining evidence establishes the guilt of the accused beyond a reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12470/eng@2026-07-31 4

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25. Our above reasoning is fortified by the fact that the drafters of the Sexual Offences Act were alive to the possibility of a minor child being incapable of testifying. Under Section 31 of the Act, courts can declare a minor child a "vulnerable witness". If the child is of an extremely tender age (e.g., a toddler), suffers from severe psychological trauma, or lacks the capacity to communicate events, the court may dispense with their testimony. In such scenarios, a conviction can still stand if the core ingredients of defilement—age of the victim, penetration, and positive identification of the perpetrator—are proved beyond a reasonable doubt through alternative, independent evidence. Accordingly, we will now reexamine the record to satisfy our selves whether the ingredients of the offence were proved to the required standard. 26. We will examine the question whether penetration was proved to the required standard. PW1 is on record stating that she found the appellant and the complainant in bed. She pulled the blanket, and noted that the appellant was naked. The complainant was also naked. She told her mother that the appellant was defiling her. This evidence was not controverted. The appellant was caught in the act. PW1’s evidence was corroborated by the testimony of the Clinical Officer. His findings were that the anal ring had injuries which was consistent with defilement. The hymen was broken. It had an old scar. The vaginal walls were red. It is important to mention that the appellant exercised his right and on his own volition elected not to tender evidence. He called two witnesses whose evidence was inconsequential. This left the prosecution evidence totally uncontroverted. We find no reason to doubt the concurrent findings by the two courts below that there was penetration. 27. The appellant claims that the evidence showed there was anal penetration while the charge sheet mentioned vaginal penetration. This argument ignores the fact that Section 2 (1) of the Act explicitly uses the term “genital organs” rather than "sexual organ" and defines it as follows: “genital organs” includes the whole or part of male or female genital organs and for purposes of this Act includes the “anus.” A reading of this definition leaves no doubt that the omission to use the word “anus” in the charge sheet is immaterial and in any event, under Section 382 of the Criminal Procedure Code, the error cannot be a ground to reverse the trial court finding and more important, the error or omission has not been shown to have occasioned an injustice bearing in mind the explicit definition cited above and the totality of the prosecution evidence. 28. The next question is whether the complainant’s age was proved to the required standard. Age is an issue of fact. On record is the evidence of PW1, the complainant’s mother. She clearly stated that the complainant was aged 7 years. The Clinical Officer also gave her age as 7 years. But more important, the birth certificate was produced in court. It clearly shows that the complainant was aged 7 years as at the date of the offence. We find no reason to disturb the concurrent findings by the two courts below that the complainant’s age was proved to the required standard. 29. The third ingredient is whether the complainant was identified as the offender. This issue was not contested before the two courts below. The appellant was caught in the act. In criminal jurisprudence, being caught in the act (often referred to legally as in fiagrante delicto) drastically reduces the room for reasonable doubt, shifting the practical burden of explanation to the defense. The evidential value of "caught red-handed in the act" evidence is the highest and most conclusive form of direct eye-witness. Unlike circumstantial cases where a court must infer what happened from a chain of events, red-handed evidence provides a direct link to the commission of the crime. However, its final weight depends on the credibility of the witnesses who did the catching and the structural integrity of the scene. We find no reason to doubt the credibility of PW1. We can only add that the appellant was known to both PW1 and the victim, therefore, his identification as the offender was safe. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12470/eng@2026-07-31 5

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30. The appellant argues that the provisions of Section 200 of the Criminal Procedure Code were not complied with. This assertion is not correct. The trial court’s proceedings at the page 14 clearly shows that on 30th November 2015, the trial magistrate (Hon. J. Ndururi) explained to the appellant the provisions of Section 200 of the Criminal Procedure Code in kiswahili language and he clearly replied “ case to proceed from where it had reached.” This being the position, this ground of appeal collapses. 31. The appellant argues that a crucial witness, namely the complainant was not called to testify, therefore, the first appellate court erred in not finding that the trial court ought to have made an adverse inference that her evidence would have been unfavorable to the prosecution. Earlier, we explained that a child offender may not be called to testify under certain circumstances permitted by the law, including where the child is traumatized. In such a situation the prosecution case stands on the credibility of the other witnesses. As alluded to earlier, we are satisfied that the evidence on record established the appellant’s guilty to the required standard. 32. The appellant argues that he was not provided with legal assistance. This ground was not raised and interrogated by the first appellate court. As a general rule, a second appellate court will not entertain fresh grounds of appeal that were never raised or argued before the first appellate court. The purpose of a second appeal (such as an appeal from the High Court to the Court of Appeal) is to review whether the first appellate court erred in its judgment based on the material and arguments placed before it. Allowing completely new grounds would turn the second appellate court into a court of first instance for those new issues. However, this rule, as alluded to earlier has strict exceptions. Bearing in mind the peculiar circumstances of this case, and persuaded by the forceful submissions tendered by the respondent’s counsel on this issue highlighted earlier, we decline to entertain this new ground in this second appeal. 33. Regarding the sentence, it is noteworthy that the mandatory minimum sentence provided for the offence of defilement of a child aged 11 years or below under Section 8(2) of the Sexual Offences Act is life imprisonment. The Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) affirmed the lawfulness of life imprisonment prescribed under the Sexual Offences Act. Therefore, the appellant is serving a lawful sentence. 34. Arising from our findings on all the issues determined herein above, we find that this appeal is without merit and the same is hereby dismissed in its entirety. DATED AND DELIVERED AT NAKURU THIS 31ST DAY OF JULY, 2026. J. MATIVO JUDGE OF APPEAL ............................ M. GACHOKA C.Arb, FCIArb. JUDGE OF APPEAL ............................ MURUNGI B. KAIRARIA JUDGE OF APPEAL I certify that this is a true copy of the original. Signed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12470/eng@2026-07-31 6

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DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12470/eng@2026-07-31 7

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