Adero alias Dicky v Republic (Criminal Appeal E166 of 2022) [2026] KECA 1364 (KLR) (10 July 2026) (Judgment)

Adero alias Dicky v Republic (Criminal Appeal E166 of 2022) [2026] KECA 1364 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1364 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E166 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 10, 2026 Between Dickson Oduor Adero alias Dicky Appellant and Republic Respondent (Appeal from the Judgment of the High Court of Kenya at Eldoret (Sewe, J.) delivered on 28th March 2019 in HCCRA No 83 of 2018 Criminal Appeal 83 of 2018 ) Judgment 1.The appellant, Dickson Oduor Adero alias Dicky was charged with the offence of defilement, contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act. Particulars of the charge were that on 5th January 2015, at [Particulars Withheld] in Elgeyo Marakwet County, he intentionally and unlawfully caused his genital organ namely, penis to penetrate the genital organ namely, vagina of RA, a child aged 15 years. 2.The appellant faced the alternative charge of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act, whose particulars were that on 5th January 2015, at [Particulars Withheld] in Elgeyo Marakwet County, he touched the genital organ namely, vagina of RA, a child aged 15 years, with his genital organ namely, penis. 3.At the trial before the Senior Principal Magistrate’s Court at Iten, the prosecution called five (5) witnesses and the appellant gave an unsworn statement. The appellant was convicted on the main charge and sentenced to serve 15 years’ imprisonment. He appealed to the High Court at Eldoret and vide a judgment delivered on 28th March 2019, his appeal was dismissed and his sentence enhanced to 20 years’ imprisonment. 4.Being dissatisfied with the judgment of the High Court, the appellant has come to this court on a second appeal. In his initial grounds of appeal, the appellant raised the issue of the age of the minor, which he claims was not conclusively proved. He further claimed that the medical evidence adduced by the prosecution was insufficient, as the DNA examination towards establishing paternity of the child born by the minor was not conclusive. The appellant further faulted the first appellate court for failing to re-evaluate the evidence as required and for enhancing his sentence without prior warning to him. 5.In his supplementary grounds of appeal, filed alongside submissions in support of the appeal, the appellant reiterates that the learned High Court Judge erred in law by enhancing his sentence from 15 to 20 years’ imprisonment, without issuing prior notice to him of the intention to enhance the sentence. According to the appellant, the action taken by the trial Judge was in violation of his right to a fair trial, guaranteed under article 50(2) of the Constitution. 6.The appellant further states that the learned Judge erred in upholding the conviction based solely on the uncorroborated evidence of the complainant. He avers that the conviction by the trial court did not adhere to the proviso to section 124 of the Evidence Act, which requires that where there is no corroborative evidence, the court must record the reasons for believing the complainant. 7.The appellant adds that the Judge erred in law by failing to address and resolve material inconsistencies and contradictions in the prosecution evidence, regarding the age and identity of the complainant. In this regard, the appellant claims that the first appellate court relied on a defective and unreliable age assessment report bearing the name of a different person. 8.The appellant attacks the DNA examination, which he claims, failed to establish any biological link between him and the child said to have been born out of the alleged defilement. He also assails the medical evidence, which indicated that the complainant was examined six months after the alleged offence. On the P3 form, the appellant lays the case that having been signed by an intern doctor who did not testify, the probative value of the medical evidence was compromised. 9.The appeal came up for hearing before us on 29th April 2026, with the appellant appearing virtually from Naivasha Maximum Prison and Mr. Tanui Learned Senior Assistant Director of Public Prosecutions appearing for the respondent. 10.This being a second appeal, we are guided by the jurisdictional beacons established in section 361 of the Criminal Procedure Code. In the oft-cited case of Karingo vs. Republic [1982] KLR 213 it was held that:“A second appeal must be confined to points of law and this court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did.” 11.To sustain a charge of defilement, the prosecution must prove three ingredients beyond reasonable doubt, namely: the age of the victim, the act of penetration and identification of the assailant. 12.On the ingredient of age, this court, in its decision in Kaingu Kasomo vs Republic (Criminal Appeal No 504 of 2010) stated the following:“Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 13.The age of the complainant in this appeal is a matter in contention. The appellant’s case is that the actual age of the minor was not established at trial. He states that in the original charge sheet, the age of the minor was given as 16 years, which was later stated as 15 years in an amended charge sheet. The appellant adds that during the voire dire examination, the minor stated that she was 16 years old. He avers that if the alleged offence occurred on 5th January 2015, a person born in June 1999 would have been 15 years and about 7 months old. The appellant further points to an apparent mix-up of names in the age assessment report. He faults the two courts below for failure to satisfactory resolve these contradictions. 14.So, what was the actual age of the complainant? In the submissions filed on behalf of the respondent, reference was made to the decision of this court in Kuria Waithanji Peter alias Osama vs. Republic [2024] KECA 1124 (KLR) where it was affirmed that the age of a victim in a sexual offence may be proved by not only documentary evidence such as a birth certificate, baptism card or an age assessment report, but also by way of oral evidence of the child if considered to be sufficiently intelligent or by the evidence of the parents or guardians of the child. 15.It was established at trial that the complainant’s birth certificate was not available as it had been destroyed in a fire at home. The complainant herself (PW1) told the trial court that she was born on 12th June 1999 and her father (PW3) testified that she was aged 15 years. 16.An age assessment report placed her age at 15 years but this report was controversial due to a mix-up of names; in fact, the report bore a completely different name from that of the complainant. In our view the mix-up in the names on the age assessment report was material enough to dent the probative value of the subject report. This, however, did not strike a fatal blow to the prosecution case as there was oral evidence from the complainant and her father that she was born in June 1999. Indeed, the appellant himself conceded that reckoning the date of the complainant’s birth as June 1999, at the time the alleged offence was committed on 5th January 2015, she would have been 15 years and 7 months old, meaning that she had not celebrated her 16th birthday. 17.On the whole, we are satisfied that the age of the complainant was duly established as 15 years for purposes of the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act. 18.Regarding the element of penetration, the appellant states that because the complainant was subjected to medical examination six months after the alleged offence, there was no medical evidence to prove the alleged defilement. In addition, the appellant attacks the veracity of the P3 form as it was filled by an intern doctor who was not called as a witness. 19.On the issue of the P3 form having been produced by a doctor other than the one who completed and signed it, we draw guidance from section 33 of the Evidence Act, by which statements by a person whose attendance cannot be easily procured may be produced by another person who is familiar with the handwriting of the maker of the statement. 20.We note that section 77(1) and (2) of the Evidence Act provides as follows: 1.In criminal proceedings any document purporting to be a report under the hand of a Government Analyst, medical practitioner or any Ballistics Expert, Document Examiner or Geologist upon any person, matter or thing submitted to him for examination or analysis may be used in evidence. 2.The court may presume that the signature to any such document is genuine and that the person signing it held the office and qualifications which he professed to hold at the time when he signed it. 21.Dr. Castro Mugala (PW2) who produced the P3 form testified that the intern doctor (Dr. Fwawaz) worked under his direct supervision. More importantly, Dr. Mugala confirmed that he was not only familiar with Dr. Fwawaz’s handwriting, but that he was personally involved in the examination of the complainant. 22.A more significant issue is the time lapse between the date of defilement and the date of medical examination. Granted that the complainant was examined six months after the alleged offence, it is logical to conclude that any physiological injuries would have healed. However, our law provides that lack of medical evidence is not necessarily fatal in prosecuting a sexual offence. Indeed, this is the essence of the proviso to section 124 of the Evidence Act, which permits conviction on the basis of the uncorroborated evidence of the victim, backed by recorded reasons as to why the court believed the victim. 23.The proviso to section 124 of the Evidence Act, which sets out the requirement for corroboration of evidence provides that in trying a sexual offence, if the only evidence is that of the alleged victim, the court shall receive the evidence and convict the accused person if it is satisfied that the alleged victim is telling the truth. The caveat is that the reasons as to why the court believed the testimony of the victim are to be recorded. 24.The appellant also assailed the failed DNA examination, which did not yield a report. The record reveals that the samples extracted from the appellant, the minor and her child were putrefied and could not therefore provide the required profile. A request for repeat extraction of samples appears not to have been followed up. In the result, there was no DNA report linking the appellant to the child. Nevertheless, emerging jurisprudence is to the effect that although DNA examination is available, it is not mandatory in proving sexual offences. In Evans Wamalwa Simiyu v Republic [2016] eKLR this court held that:“…section 36 of the Sexual Offences Act that gives the trial court powers to order an accused person to undergo DNA testing uses the word “may”. Therefore, the power is discretionary and there is no mandatory obligation on the court to order DNA testing in each case. In our view, in the case of the appellant, DNA testing was not necessary. This is because the minor complainant identified the appellant who was known to her as the person who sexually violated her. The trial magistrate who saw and assessed the demeanour of the witnesses believed the complainant that it was the appellant who violated her…” 25.Regarding the role of medical evidence in identifying the perpetrator of a sexual offence, this court in its decision in Geoffrey Kionji vs. Republic (Criminal Appeal No 270 of 2010) stated thus:“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed, under the proviso to section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.” 26.In this case, the complainant gave a vivid account of how the appellant, who was her father’s employee in a carpentry workshop, and who the complainant regarded as a brother, lured her to his house on 5th January 2015, made her do house chores for him, and thereafter defiled her, leading to a pregnancy. 27.From the record, the trial court, which had the opportunity to observe the complainant’s demeanour, believed the complainant on the basis of her consistency and lack of motivation to lie. The first appellate court agreed with the trial court on this account and we have no reason to depart from the path taken by the two courts below. This finding dispenses with the issue of identity of the appellant as the complainant’s assailant. 28.On the whole, we find the conviction of the appellant was safe and we have no reason to interfere with the concurrent findings of the two courts below. 29.We now turn to the question of enhancement of sentence by the High Court. The question before us is whether the first appellate court could lawfully enhance the sentence meted against the appellant by the trial court, in the absence of a prior notice of enhancement of sentence. In his submissions in support of the appeal, the appellant relied on article 50(2) of the Constitution, which guarantees every accused person the right to a fair trial including; the right to be informed of the charge in sufficient detail, the right to challenge evidence and the right to apply for review. 30.The appellant further relied on article 14 of the International Convention on Civil and Political Rights, which guarantees the right to a fair hearing and equality before the courts. The appellant submits that this international instrument forms part of the Laws of Kenya, pursuant to article 2(6) of the Constitution. 31.While acknowledging the provisions of section 354(3) of the Criminal Procedure Code, which allows an appellate court to alter a sentence handed by a trial court, the appellant stresses that this power must be exercised judiciously. He relied on this Court’s decision in JJW vs. Republic [2013] eKLR where it was held that an appellate court should not enhance a sentence unless the appellant has been put on notice and given an opportunity to address the court on the proposed enhancement. 32.From the record, it is evident that the learned High Court Judge, suo moto, enhanced the sentence imposed on the appellant from 15 years to 20 years’ imprisonment. From the proceedings, there is no evidence that the appellant was given prior notice of the possibility of his sentence being enhanced. This was a major failure on the part of the prosecution and the second appellate court. 33.The respondent submits that no prejudice was occasioned on the appellant by this failure. We disagree; at the very least, the appellant ought to have been given an opportunity to mitigate or even reconsider his appeal. For the reason of failure to issue a warning on the possibility of enhancement of sentence, the learned Judge of the High Court fell into a fatal error. Consequently, the enhanced sentence cannot stand. 34.In the result, the final orders we make are that the appeal against conviction is dismissed; the appeal against sentence is allowed to the extent that the enhanced sentence of 20 years’ imprisonment is set aside and is replaced with the original sentence of 15 years’ imprisonment. DATED AND DELIVERED AT ELDORET THIS 10TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb……………………………………JUDGE OF APPEALW. KORIR……………………………………JUDGE OF APPEALL. M. NDOLO…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR