Mmn v Republic

6. The appellant submits that the complainant, being a minor, was subjected to a voir dire examination which was not lawfully conducted. 7. He argued that the purpose of a voir dire is to establish whether a child understands the meaning of telling the truth, the importance of oath taking and the consequences of failing to tell the truth. 8. It is the appellant’s submission that the trial court did not properly test the complainant’s intelligence and understanding of oath taking before allowing her to give sworn evidence. 9. He contends that the trial Magistrate merely concluded that the complainant understood the importance of speaking the truth and was confident and eloquent, without demonstrating how her understanding of oath taking had been established. 10. The appellant further submits that the trial Magistrate did not properly assess the complainant’s credibility and therefore the evidence was not lawfully received. 11. The appellant submits that his constitutional rights to a fair trial was violated as he was not supplied with witness statements and documents which the prosecution intended to rely on in advance of the hearing. 12. The Appellant relies on the case of Thomas Patrick Gilbert Chemimondely v Republic (2008) eKLR, where the Court held that the prosecution has a duty to provide an accused person with relevant material, including witness statements and documentary exhibits, in advance of trial to enable preparation of a defence. 13. The appellant submits that he took plea on 2nd July 2021 but there was no order for him to be supplied with witness statements or to be provided with a pro bono advocate. 14. He argues that the trial proceeded without confirmation that he was ready for hearing and that the manner in which he conducted his cross-examination demonstrated that he was not adequately prepared. 15. The appellant further submits that a retrial would occasion him prejudice as he had been in custody since his arrest on 1st July 2021 and would allow the prosecution an opportunity to fill gaps in its evidence. 16. He relies on the principles on retrial as stated in Almer Suna v Republic (1964) EA 483, as cited in PHN v Republic (2016) eKLR and Kelvin Ochieng Tom v Republic (2018) eKLR, that a retrial should only be ordered where the original trial was illegal or defective and should not be used to enable the prosecution to fill gaps in its case. 17. The appellant submits that the prosecution failed to prove penetration beyond reasonable doubt. 18. He argues that the only evidence relied upon was that of PW2, the Clinical Officer, who concluded that penetration occurred because the complainant’s hymen was broken. 19. The appellant submits that the evidence of a broken hymen did not establish when or how the hymen was broken and that it was unsafe for the trial court to rely solely on that finding to convict him. 20. He relies on the case of P.K.W v Republic, where the Court held that the absence of a hymen cannot automatically be taken as proof of sexual intercourse since hymen may be broken through other causes, including physical activities, injury, medical examination or insertion of objects. 21. The appellant further submits that without explicit evidence of semen, seminal fluid or other corroborative evidence, the court could not safely infer that sexual abuse occurred. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13149/eng@2026-07-31 2

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22. The appellant further submits that the prosecution case was based on hearsay evidence since persons alleged to have witnessed the events, including neighbours mentioned by the complainant, were not called as witnesses. 23. He relies on Michael Mugo Musyoka v Republic (2015) eKLR, where the Court held that evidence based on what another person allegedly stated, without direct evidence from the alleged witnesses, cannot form a basis for conviction. 24. The appellant further relies on Mary Wanjiku Gichira v Republic, Criminal Appeal No. 17 of 1998, for the proposition that suspicion, however strong, cannot provide a basis for inferring guilt which must be proved by evidence. 25. The appellant also submits that identification in sexual offences is not merely whether the complainant knew the appellant, but whether the appellant was the person who committed the alleged offence. 26. He argues that the person who initiated the complaint was PW3, who allegedly received the information from the complainant, and that her evidence was based on suspicion rather than direct knowledge of what occurred. 27. The appellant questions why the teacher became suspicious after noticing that the complainant had a bad odour and submitted that the circumstances surrounding the first report raised doubts as to whether the appellant was the person who committed the offence. 28. He further submits that the first report did not establish that it was the appellant who penetrated the complainant and that the prosecution failed to prove identification beyond reasonable doubt. 29. The appellant relies on Mwangi v Republic (1983) KLR 75, where the Court held that in cases depending on circumstantial evidence, the evidence must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis other than guilt. 30. The appellant prays that the conviction be quashed, the sentence be set aside and he be set at liberty. 31. In the alternative, the he is asking the Court to impose a fair, just and reasonable sentence considering his rehabilitation and transformation while in custody, preferably a non-custodial sentence. The Respondent’s Submissions 32. In opposing the appeal, The Respondent submits that as a first appellate court, this Court is required to re-evaluate the evidence and make its own conclusions as guided by Okeno v Republic [1972] EA 32. 33. The Respondent submits that the trial court properly conducted voir dire examination of the minor complainant and established that she was capable of giving evidence. The complainant was also crossexamined by the Appellant, and no prejudice was occasioned. 34. The Respondent places reliance on Samuel Wahini v Republic, Johnson Muiruri v Republic, and Maripett Loonkomok v Republic, where it was held that failure to properly conduct voir dire does not automatically invalidate proceedings where the evidence is otherwise corroborated. 35. The Respondent submits that the complainant’s evidence was supported by medical a P3 form, treatment notes and laboratory results and other witnesses, and this ground therefore lacked merit and should be dismissed. 36. In responding to the ground whether the trial court erred in failing to uphold the appellant’s rights by ensuring he was supplied with witness statements, The Respondent submits that the Appellant did not demonstrate any prejudice arising from the alleged failure to receive trial documents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13149/eng@2026-07-31 3

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37. The Respondent relies on Isaak Anjelimo Makana v Republic and Kipruto v Republic, submitting that although the prosecution has a duty to supply documents, an accused person must raise the issue before trial. 38. The Respondent submits that the record showed that the Appellant participated in the proceedings, confirmed readiness to proceed and cross-examined witnesses. 39. The Respondent therefore argued that no miscarriage of justice occurred. 40. The third issue is whether the trial court erred in convicting the appellant without proof of penetration of the complainant’s genital organ. 41. The Respondent submits that the complainant gave clear and consistent evidence that the Appellant committed indecent acts against her on several occasions. 42. Her evidence was corroborated by the medical evidence produced by PW4, including the P3 form and treatment records. 43. The Respondent further submits that the absence of fresh injuries did not disprove penetration and that the offence of incest under section 20 of the Sexual Offences Act could also be proved through an indecent act involving prohibited family relations. 44. The Respondent submits that the complainant positively identified the Appellant, who was her brother, as one of the perpetrators. Her evidence was corroborated by other witnesses such as PW3. 45. The Respondent further argues that the prosecution was not required to call a specific number of witnesses under section 143 of the Evidence Act and that the evidence presented was sufficient to prove the case beyond reasonable doubt. 46. Finally, on the issue of sentencing the Respondent submits that sentencing is within the discretion of the trial court and relied on Bernard Kimani Gacheru v Republic, where the Court of Appeal held that interference with sentence is only justified where the trial court acted on wrong principles or imposed an excessive sentence. Analysis And Determination; 47. This being a first appeal, this court is guided by the principles that were set out in the case of David Njuguna Wairimu vs Republic [2010] eKLR where the Court of Appeal stated:-“The duty of the first appellate court is to analyse and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided that it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decisions. 48. The appellant raised the ground that voir dire was not properly conducted. 49. In the case of James Mwangi Muriithi v Republic [20151 KECA 81 (KLR), the Court of Appeal held that a voir dire examination is valid as long as the record shows that the court assessed the child's intelligence and understanding of the duty to tell the truth and made a clear finding on competence. The Court emphasized that it is not mandatory to record every question, answer, or detailed reason, provided the record reflects that an inquiry occurred, and the child was found competent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13149/eng@2026-07-31 4

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50. The court has looked at the proceedings and in particular the voir dire trial and noted that when asked questioned by the court, Pw 1 answered, “I go to [Name withheld] primary school Grade 2”. Who is your teacher?” Madam [Name withheld]” 51. Do you go to Sunday school?”Yes. at ..[Name withheld]” 52. Were you taught to?”We were taught to tell the truth 53. We were told to always tell the truth. Those who tell the truth go to God. Those who lie go to the devil”. 54. The court made a ruling that the girl is confident and very eloquent and that she understands the meaning of telling the truth. 55. From the foregoing, I am satisfied that the trial court conducted the voir dire trial within the law. 56. On the issue of penetration, this court is guided by the case of Asiago v Republic [2026] KECA 773 (KLR) where the court held that medical evidence is welcome but is neither mandatory nor the only evidence capable of proving defilement. The court must evaluate the complainant’s account and the entire evidential record. 57. In Mwandeni v Republic [2026] KECA 89 (KLR) the Court of Appeal reaffirmed that medical evidence is not indispensable where credible direct or circumstantial evidence proves penetration. 58. In the instant case the complainant’s evidence of penetration was corroborated by a P3 form, treatment notes and laboratory results and other witnesses. 59. According to PW 4, the victim’s hymen was broken. It was his evidence that an old broken hymen indicates penetration. I find that the ground of appeal fails. 60. According to PW 4, the victim appeared to be about 10 years old. This was not challenged. The court is satisfied that the prosecution proved the age of the victim beyond reasonable doubt. 61. The court now looks at the issue of the right to fair hearing. Article 50(2)(h), Constitution provides that an accused has the right to an advocate assigned by the State and at State expense if substantial injustice would otherwise result, and must be informed of that right promptly. 62. In David Njoroge Macharia v Republic [2011] KECA 406 (KLR) it was held that State-funded representation is constitutionally required where substantial injustice would otherwise result. Relevant considerations include seriousness of the offence and sentence, complexity, disability, language difficulty, inability to conduct the defence and the interests of justice. Absence of counsel does not automatically invalidate every conviction; prejudice and the circumstances matter. 63. In Pett v Greyhound Racing Association [1968] 2 All ER 545 is frequently cited for the practical importance of counsel: a lay accused may be unable to identify legal issues, cross-examine effectively or present a coherent defence. In this case the court notes that the appellant did not demonstrate how he suffered prejudice if any. 64. The court agrees with the Respondent that the appellant was able to cross examine witnesses during the trial. 65. In so holding I am guided by the case of Republic vs Karisa Chengo and 2 others [2017] eKLR, where the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that “in accordance with the language of the Constitution, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13149/eng@2026-07-31 5

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result”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”. 66. The court further notes from the proceedings that the appellant had legal representation during the trial. At one point during the hearing counsel by the name Mugo appeared as holding brief for Kinyua for both accused. The day the judgment was delivered the appellant was present with Ms Kinyua. 67. At the end of the trial, the court ordered that the probono lawyer to be paid fully at 30,000/= as case is complete. This court is satisfied that the appellant was accorded his right to fair hearing. 68. In determining whether the prosecution proved that the appellant was related to the complainant, this court is satisfied that the complainant positively identified the Appellant, who was her brother, as one of the perpetrators. 69. The court shall now look at the issue of sentencing. The Supreme court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [20241 KESC 34 (KLR) affirmed that mandatory sentences are lawful and as such this honorable court is bound by virtue of the principle of stare decisis. 70. In the Joshua Gichuki Mwangi v Republic , the Court was clear in its mind that the sentences prescribed under the Sexual Offences Act are not unconstitutional and can still be meted out in deserving cases. We therefore disabuse the notion that the sentences prescribed under the Sexual Offences Act are unconstitutional. The Court only held that when imposed merely because they are mandatory without considering the circumstances of the case, then just like in Muruatetu 1 they contravene the constitutional principles. 71. The sentence meted out on an offender must therefore be commensurate to the blameworthiness of the offender and before settling on a sentence, the Court must consider the facts and the circumstances of the case in its entirety. 72. In restating the above principles, the Court of Appeal in the case of Thomas Mwambu Wenyi Vs Republic (2017) eKLR quoted the decision of the Supreme Court of India made in the case of Alister Anthony Pereira Vs State of Mahareshtra where it was held as follows: “Sentencing is an important task in the matters of crime. One of the prime objectives of the criminal law is imposition of appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of crime and the manner in which the crime is done. There is no strait jacket formula for sentencing an accused on proof of crime. The courts have evolved certain principles: twin objective of the sentencing policy is deterrence and correction. 73. The court finds that the conviction and the sentencing were legal. In the circumstances I find no justification to set them aside. Determination; 74. The appeal lacks merit. Order; The appeal is dismissed. It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 31ST DAY OF JULY, 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13149/eng@2026-07-31 6

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................................................... J. CHIGITI (SC) JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13149/eng@2026-07-31 7

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