Brian Mulasa Shira v Republic

3. Being aggrieved by the conviction and sentence, the Appellant preferred this appeal and thereafter filed amended grounds of appeal, together with written submissions, prosecuting the appeal in person from the Eldoret Main Prison. 4. Two grounds are urged, first that the learned trial Magistrate erred in law and in fact by failing to order the Prosecution to provide the Court records on time. Second, that the learned trial Magistrate erred in law and in fact by failing to detect procedural technicalities before the closure of the Prosecution case. The Appellant prays that the appeal be allowed, the conviction quashed, the sentence set aside and a retrial ordered. The Prosecution Case 5. PW1, the Complainant's mother, testified that the Complainant was born in December 2005 and that the Appellant, whose home lay about five hundred metres from her own, was well known to her as a neighbor. She stated that the Complainant went missing after failing to return home from school. That she learnt the Appellant had been seen at a funeral in the company of the girl; and that when she went to the Appellant's home at about four in the morning she found the Complainant there, but the Complainant and the Appellant escaped. She stated that the Complainant was later brought home by the village elder and appeared to be drunk, that she returned the Complainant to school but the girl again found her way to the Appellant's house, where she was found wearing the Appellant's clothes, and that the Complainant was thereafter taken to the Moi Teaching and Referral Hospital. 6. PW2, the Complainant's father, testified that on the 29th of October 2018 he warned the Appellant over his involvement with the Complainant, who he stated was born on the 14th of December 2005. He stated that he found the Appellant and the Complainant sleeping in the Appellant's house, that the two ran off, and that he thereafter reported the matter to the police. 7. PW3, the Complainant, testified that the Appellant, her neighbor, would take her school bag to his house and lock her in, and that he compelled her to have sexual relations with him. She stated that at night he would bring her food and take her to a bar where they would drink and smoke bhang, that this continued for a long period until her parents came for her and she was taken to hospital, and that she did not raise an alarm because the Appellant had threatened her. 8. PW4 testified that he lives in the same homestead as the Appellant. He stated that the Complainant's father informed him that the girl had gone missing for two weeks, and that when they went to the Appellant's house they did not find the Complainant there. 9. PW5 testified on behalf of the colleague who had examined the Complainant on the 16th of November 2018 as outpatient number 0771957. She stated that the Complainant gave a history of having run away from home on the 14th of October 2018 and of having had sexual intercourse until the 31st of October 2018; that the examination revealed healed hymenal tears and a urinary tract infection, while the tests for HIV and VDRL were negative and that the Appellant was examined on the 6th of November 2018 and his tests were normal. 10. PW6, the Investigating Officer, testified that on the 5th of November 2018 the Complainant's mother reported at Moi's Bridge Police Station that the Complainant had gone missing between the 14th of October 2018 and the 4th of November 2018. She stated that the Complainant said she had gone to her boyfriend's house where she had sexual intercourse, that she took both the Complainant and the Appellant to hospital for the filling of the P3 forms and recorded statements, and that she produced the Complainant's birth certificate. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13053/eng@2026-08-20 2

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11. At the close of the Prosecution case the trial Court found a prima facie case had been established and placed the Appellant on his defence. The defence 12. The Appellant, in an unsworn statement, testified that on the 4th of November 2018 he woke up to go to work when two persons came to his house and told him that he was required at Moi's Bridge Police Station, where the Complainant and the witnesses recorded statements. He stated that he knew the Complainant as they were neighbours, and that both he and the Complainant were taken to the Moi Teaching and Referral Hospital where they were examined. He called no witnesses. 13. The learned trial Magistrate framed three issues for determination, namely whether the Prosecution had proved the age of the Complainant, whether the Complainant was defiled or, in the alternative, whether an indecent act was committed against her, and whether the person who defiled the Complainant was identified so as to prove beyond reasonable doubt that it was the Appellant. 14. On age, the Court found on the evidence of PW1 and PW2 and the birth certificate produced by PW6 that the Complainant was thirteen years old at the time of the offence. Having cited Section 8(2) of the Act, which applies to a child aged eleven years or less, the Court observed that the charge sheet was defective as regards the penalty Section cited. On penetration, the Court accepted the account of the Complainant together with the medical evidence of healed hymenal tears, and found that the Complainant had been defiled. On identity, the Court noted that the Appellant was known to the Complainant as a neighbor, a fact the Appellant himself confirmed. 15. The Court then made a finding, having observed the Complainant's demeanor, that she had not been truthful in claiming that the Appellant forced her, since she admitted staying at the Appellant's house on more than one occasion and returned there even after being taken back to school, and that she was in substance a truant who had run away from home to live with the Appellant. The Court nonetheless held that a crime had been committed against her, reasoning that, the Complainant not having reached the age of consent and the Appellant being aware of this, the Appellant went ahead and had sexual relations with her. The Court found the case proved beyond reasonable doubt, convicted the Appellant of defilement contrary to Section 8(1) as read with Section 8(3) of the Act, and sentenced him as aforesaid. The grounds of appeal 16. On the first ground the Appellant complains that the copy of the proceedings availed to him was not supplied in good time and was incomplete, certain pages being missing, and he identifies pages 4, 5, 8, 9 and 10, and pages 53 to 56. He submits that these were the material pages, that their absence rendered the record unreliable and had the effect of shifting the burden of proof onto him, and that this offended Section 134 of the Criminal Procedure Code and his right to a fair trial. 17. On the second ground the Appellant contends that after the close of the Prosecution case he was not placed on his defence in accordance with Section 211 of the Criminal Procedure Code, and that nowhere in the record was it shown that he was called upon to make his defence, which he says violated his rights under Articles 25(c), 27, 29 and 50 of the Constitution. 18. The record before the Court does not contain submissions on behalf of the Respondent. The Court has therefore proceeded on the Appellant's amended grounds and submissions, mindful throughout that the burden of proving the charge lay upon the Prosecution and did not shift to the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13053/eng@2026-08-20 3

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Analysis and determination 19. This being a first appeal, the Court is under a duty to reconsider and re-evaluate afresh the whole of the evidence tendered before the trial Court and to draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses and giving due allowance in that respect. The principle was stated in Okeno v Republic [1972] EA 32 and reaffirmed in Kiilu & Another v Republic [2005] 1 KLR 192. 20. The Court remains guided by the standard of proof in criminal cases as Denning J observed in Miller v Minister of Pensions [1947] 2 All ER 372, proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt, and the law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. The burden lay on the Prosecution to establish the three ingredients of the offence of defilement, namely the age of the Complainant, penetration, and the identity of the Appellant as the perpetrator. 21. Section 8(1) of the Sexual Offences Act provides that: “ A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” In addition, Section 2 of the Act defines penetration as “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” Whether the age of the Complainant was proved 22. The age of the Complainant was established by the evidence of PW1 and PW2, her parents, who gave her date of birth as the 14th of December 2005, and by the birth certificate produced by PW6, the Investigating Officer. On that evidence the Complainant was thirteen years old at the time of the offence. The Court is satisfied that her age was proved to the required standard, and this ingredient was established. 23. A word is necessary on the penalty Section. The charge was laid under Section 8(2) of the Act, which applies to a child aged eleven years or less and carries a sentence of imprisonment for life, whereas the Complainant was thirteen years old, so that the applicable provision was Section 8(3), which applies to a child between the ages of twelve and fifteen years. The learned trial Magistrate rightly noted the defect and convicted under the correct provision. In the Court's view the error in citing the penalty Section did not occasion any prejudice to the Appellant. He at all times understood the charge he faced, being the defilement of this named Complainant on the stated dates, and participated fully in his trial. Such a defect is curable under Section 382 of the Criminal Procedure Code, which provides that no finding shall be reversed on account of an irregularity in the charge unless it has occasioned a failure of justice. If anything, the citing of Section 8(2), which carries a heavier penalty, operated to the Appellant's advantage rather than to his prejudice. The Court finds that no failure of justice arose from the misdescription of the penalty Section and that the conviction properly stands under Section 8(3). Whether the Complainant was deffled 24. The Complainant, PW3, testified that the Appellant had sexual relations with her, and this was supported by the medical evidence given by PW5, which disclosed healed hymenal tears, and by the history the Complainant gave of having had sexual intercourse over the material period. Penetration within the meaning of Section 2 of the Act was accordingly established, and the Court so finds. It is immaterial, for this purpose, that the medical examination was conducted sometime after the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13053/eng@2026-08-20 4

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events, since healed injuries to the hymen are themselves consistent with prior penetration and the Complainant's own account spoke to the fact of intercourse. 25. The learned trial Magistrate found that the Complainant had not been forced and was in truth a willing participant who had run away from home to live with the Appellant. That finding does not avail the Appellant, and it is important to state why. Force is not an ingredient of the offence of defilement. The offence is complete upon proof of penetration of a child, and the willingness or otherwise of the child is immaterial. Consent is not a defence to a charge of defilement, for a child below the age of eighteen years is in law incapable of consenting to a sexual act. The only defence which the Act admits in this regard is that provided by Section 8(5), namely that the child deceived the accused into believing that she was over the age of eighteen years and that the accused reasonably so believed. That defence does not arise on these facts. The Complainant was a girl of thirteen years who was well known to the Appellant as a neighbour, and there was neither any deception as to her age nor any room for a reasonable belief that she was an adult. 26. It follows that the trial Court's rejection of the Complainant's account of force did not weaken the conviction. On the contrary, once penetration of a child of thirteen years was proved, the offence was made out regardless of the Complainant's willingness. That a Complainant may have gone to the accused of her own accord, or may have had sexual relations before, does not negate the offence of defilement subsequently committed against her, as was recognized in Muthoka Mwalya v Republic [2015] eKLR. This ingredient was therefore proved. 27. The Court has not overlooked the evidence of PW4, who stated that on the occasion he accompanied the Complainant's father the Complainant was not found at the Appellant's house. That evidence goes only to one of several occasions and does not displace the weight of the Complainant's own account, the evidence of PW1 and PW2 who found the two together, and the medical evidence. The isolated inconsistency is not of such a character as to render the conviction unsafe. On identiffcation 28. This was not a case of identification of a stranger but one of recognition. The Complainant knew the Appellant as a neighbor, and the Appellant himself confirmed in his defense that he knew the Complainant as they were neighbors. PW1 and PW2 spoke to finding the two of them together. The identity of the Appellant as the person who committed the offence was therefore established. 29. The conviction rested substantially on the evidence of the Complainant, and the Court is entitled to convict on such evidence. Section 124 of the Evidence Act provides, in its proviso, that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim, the Court may receive that evidence and convict if, for reasons recorded, it is satisfied that the victim is telling the truth. The trial Court addressed itself to the credibility of the Complainant, as it was required to do, and its finding that she spoke the truth as to the fact of the sexual relationship, even while disbelieving her claim of force, was one properly open to it on the record. 30. The Appellant's reliance on Section 134 of the Criminal Procedure Code is misconceived. That Section concerns the sufficiency of the charge and requires only that it contain a statement of the offence with such particulars as give the accused reasonable information as to its nature. The charge the Appellant faced plainly disclosed the offence of defilement, with the Complainant, the place, the period and the nature of the act all stated. The only blemish was the citing of the wrong penalty subsection, which, as already found, was curable and occasioned no prejudice. 31. As to the incompleteness of the copy of proceedings supplied to the Appellant, the omission of pages from that copy does not, of itself, vitiate an otherwise regular conviction. Where the record placed https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13053/eng@2026-08-20 5

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before the appellate Court is incomplete, the proper course is to call for and examine the original Court file and, if necessary, to have the record reconstructed, and an Appellant who complains of an incomplete record must show that the deficiency has prejudiced the Prosecution of his appeal or otherwise occasioned a failure of justice. That is the effect of Section 382 of the Criminal Procedure Code, which provides: “ …no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity… unless the error, omission or irregularity has occasioned a failure of justice…” 32. The original record of the trial Court, being the judgment and proceedings now before this Court, is complete and discloses the full course of the trial, the evidence of each of the six Prosecution witnesses, the defence of the Appellant, and the reasoning of the trial Court. The Appellant has demonstrated no matter of substance that was lost to him or that prejudiced his appeal by reason of the state of his own copy. The Court is satisfied that no failure of justice was occasioned, and the first ground accordingly fails. 33. As to the second ground of appeal, Section 211 of the Criminal Procedure Code requires that, where at the close of the Prosecution case the Court finds that a case has been made out sufficiently to require the accused to be put on his defence, the Court shall again explain the substance of the charge to the accused and inform him of his right to give evidence on oath, to make an unsworn statement, and to call witnesses. The Appellant asserts that the record nowhere shows that he was placed on his defence. 34. That assertion is not borne out by the record. The judgment of the trial Court states, in terms, that “the accused was placed on his defence during which he stated in unsworn testimony…” and it proceeds to set out the substance of the Appellant's unsworn account. The Appellant was therefore afforded the opportunity to make his defence, elected to give an unsworn statement, and did so. There was compliance with Section 211, and no violation of the Appellant's right to a fair trial under Articles 25(c) and 50 of the Constitution. This ground too fails. On Sentence 35. The Complainant being a girl aged thirteen years, the offence fell under Section 8(3) of the Act, which prescribes a sentence of imprisonment for a term of not less than twenty years. The trial Court imposed that minimum term. The sentence of twenty years imprisonment was accordingly the lawful sentence, and there is no basis upon which this Court can interfere with it. 36. Having re-evaluated the whole of the evidence, the Court is satisfied that the three ingredients of the offence of defilement were each proved to the required standard, that the two procedural grounds urged by the Appellant are without merit, and that the conviction is safe. The sentence imposed was the minimum prescribed by law. 37. The upshot is that the appeal against both conviction and sentence is dismissed. The conviction is upheld and the sentence of twenty years’ imprisonment is confirmed. For the avoidance of doubt, the sentence shall be computed in accordance with Section 333(2) of the Criminal Procedure Code so as to take account of the period the Appellant spent in custody during the trial. 38. Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AND PUBLISHED VIA CTS THIS 20TH DAY OF AUGUST 2026. ..................... https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13053/eng@2026-08-20 6

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R. NYAKUNDI JUDGE In presence of: The Appellant/Applicant Ms. Kirenge for the state https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13053/eng@2026-08-20 7

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