https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8903

Ahmed v Republic (Criminal Appeal E016 of 2025) [2026] KEHC 8903 (KLR) (23 June 2026) (Judgment) Neutral citation: [2026] KEHC 8903 (KLR) Republic of Kenya In the High Court at Lodwar Criminal Appeal E016 of 2025 PJO Otieno, J June 23, 2026 Between Ibrahim Ahmed Appellant and Republic Respondent (Arising from Kakuma Magistrate Court SO Case No. E013 of 2025) Judgment Background of the Appeal 1.The Appellant, Ibrahim Ahmed, was arrested, charged, tried, and subsequently convicted in Kakuma Magistrate’s Court, Criminal Case No. E013 of 2025. The primary charge brought against the Appellant was for the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. 2.The particulars of the primary count alleged that on diverse dates between December 2024 and January 2025, in Turkana West Sub-County, within Turkana County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of MAM, a female child then aged 13 years. 3.In the alternative, the Appellant was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006. The particulars of this alternative count asserted that on the same diverse dates between December 2024 and January 2025, at the [Particulars Withheld] Camp, the Appellant intentionally and unlawfully touched and squeezed the breasts of MAM. 4.The trial was conducted before Hon. C.A. Mayamba, Senior Principal Magistrate, at the Kakuma Law Courts. In its judgement dated 8th August 2025, the trial magistrate formulated four issues for determination: the age of the complainant, whether carnal knowledge occurred, whether the Appellant was the perpetrator, and whether the defence was plausible. 5.At the end, the court held that the complainant’s age was proved by her birth certificate. It relied on the medical evidence of PW3 and the testimonies of PW1 and PW2 to conclude that carnal knowledge had occurred. On identification, it found that the Appellant was a close neighbour and Imam who was well known to the minor. The court dismissed the Appellant’s alibi and the evidence of DW2, convicted the Appellant of the primary offence of defilement, and sentenced him to 20 years imprisonment. The Appeal 6.Dissatisfied with both the conviction and the custodial sentence, the Appellant initially filed a handwritten Petition of Appeal but subsequently retained the services of SM&M Advocates LLP, who filed an amended Petition of Appeal challenging the constitutionality and procedural propriety of the entire trial. The Appellant has raised several overlapping grounds of appeal challenging both the factual findings of the trial court and the constitutional validity of the proceedings asserting violation of right to fair trial. Summary of the Trial Proceedings 7.The prosecution’s case at trial relied upon the testimonies of four witnesses. The minor complainant, MAM, testified as PW1. Following a voire dire examination in which the trial court established her competence to give sworn testimony, she stated that she was a grade six pupil, born on 11th July, 2011, and was 13 years old at the time of the alleged offences. She testified that she knew the Appellant as “Urin” an Imam at her mosque who regularly purchased cigarettes from her home. 8.Her evidence was that on separate occasions in December 2024 and January 2025, she went to the mosque to collect water. The Appellant isolated her, gave her Kshs 2,000 and demanded to have sexual intercourse. She testified that he removed her hijab, derra, and innerwear, he removed his own kanzu and forced her to lie on the floor where he penetrated her genitals, causing her severe pain and bleeding. During the second incident in January 2025, she testified that the Appellant threatened her with a knife, locked the mosque door and defiled her again. 9.PW1 further testified that after realizing she had missed her menses, she informed the Appellant in May 2025. The Appellant instructed her to urinate in a bottle, confirmed her pregnancy, and subsequently administered several tablets for her to ingest, in addition to inserting a tablet directly into her vagina to induce an abortion. On 26th May 2025, PW1 experienced severe abdominal pain and disclosed the events to her mother. She was rescued, taken to the police, and hospitalized at IRC Clinic 7 Hospital where she underwent clinical treatment and a medical termination of a 22-week pregnancy. The Appellant’s cross-examination of PW1 was extremely brief, consisting only of a few unstructured lines challenging her on the presence of the knife and the Kshs. 2,000. 10.The complainant’s mother, MHK, testified as PW2. She confirmed that the complainant was her daughter, born in 2011 and that on 26th May 26, 2025, she found her daughter writhing in severe pain. Upon being questioned, the minor disclosed that “Mzee Urin” (the Appellant) had defiled her, impregnated her, and administered drugs to terminate the pregnancy. PW2 reported the matter to security, leading to the Appellant’s arrest. She took the Complainant to Kakuma Mission Hospital and later to IRC Clinic 7 Hospital, where the child was admitted for four days in an unconscious state while undergoing treatment for the termination of the pregnancy. 11.No meaningful cross-examination of PW2 was conducted by Appellant, asking only a single question regarding whether she personally witnessed him administering the medicine. 12.Collins Wafula Baraza, a clinical officer at Kakuma Mission Hospital, testified as PW3. He received the complainant on 27th May, 2025, with a history of defilement and drug ingestion. His physical examination revealed lower abdominal tenderness, mild redness of the vagina, and a completely missing hymen. An ultrasound examination confirmed a 22-week gestation with a foetal heart rate of 167 beats per minute, with an expected delivery date of 21st September 2025. He produced the P3 form, ultrasound reports and ultrasound films as exhibits. The Appellant did not ask any questions during the cross-examination of PW3. 13.No. 9xxxx, PC Beatrice Erupe, the investigating officer, testified as PW4. She detailed her role in rescuing the minor, arresting the Appellant, and compiling the medical evidence. She confirmed that she visited the complainant’s home on 27th May, 2025 and took photographs of the miscarried foetus, following which she escorted the weak and unconscious minor to IRC Clinic 7 Hospital. She tendered the minor’s birth certificate, the initial P3 form, and the subsequent medical records confirming the chemical abortion. Equally, the appellant preferred no cross-examination on PW4 by the Appellant. 14.That evidence closed the prosecutions case leading to its close. The court reviewed the evidence and determined that a prima facie case had been established thus placed the appellant on his defence. 15.The Appellant testified as DW1 and gave sworn defence by which he denied the allegations entirely, stating that on the 12th December 2024, he was present at the mosque until 6:00 PM along with numerous other worshippers, and that he worked solely as a mosque announcer. He asserted that the defilement allegations were fabricated. 16.The defence called DW2, the Imam of the mosque, who testified that the mosque was occupied from 9:00 AM to 7:00 PM daily by students learning the Quran, and that he had no knowledge of any such incident occurring on the premises. 17.The appeal was directed to be canvassed by way of written submissions which were duly filed and the court has had the benefit of reading same. It is deemed important to rehash the said submissions shortly as below. Summary of the Appellant’s Submissions 18.The Appellant’s submissions, prepared by SM&M Advocates LLP, argued that the trial proceedings were fundamentally flawed and a constitutional nullity due to severe violations of the Appellant’s right to a fair trial under Article 50 of the Constitution. The submissions focused on two constitutional issues: First, the Appellant argued that the trial court failed to inform him of his non-derogable right to legal representation under Article 50(2)(g) and (h) of the Constitution. Citing the Supreme Court decision in Republic vs Karisa Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR), the Appellant contended that the right to counsel at State expense is mandatory where substantial injustice would otherwise result. 19.The Appellant also argued that “substantial injustice” was palpable in his case, given that he was an illiterate 62-year-old man suffering from high blood pressure, of extremely modest means, facing a serious charge carrying a mandatory minimum sentence of 20 years, and confronted with complex medical and scientific evidence. The Appellant also cited Owuor vs Republic (Criminal Appeal 16 of 2019) [2022] KECA 18 (KLR), drawing on Lord Denning’s reasoning in Pett vs Greyhound Racing Association (1968) 2 All ER 545, to emphasize that an unrepresented, illiterate layperson lacks the capacity to cross-examine professional witnesses or identify weaknesses in the prosecution’s case. 20.Secondly, the Appellant submitted that the trial court denied him adequate time and facilities to prepare his defence, in violation of Article 50(2)(c) of the Constitution. The Appellant pointed out that the prosecution closed its case on July 29, 2025, and the trial court immediately scheduled the defence hearing for 4th August, 2025. This left the Appellant with only five days, including a weekend, to prepare. 21.Citing Joseph Ndungu Kagiri vs Republic [2016] KEHC 4153 (KLR), the Appellant argued that rushing an unrepresented, illiterate elderly accused person into their defence without verifying their readiness or explaining the significance of the defence stage turns the trial into a mere procedural formality and constitutes a grave miscarriage of justice. Citing K.O. vs Republic (Criminal Appeal E026 of 2021) [2023] KEHC 1830 (KLR), the Appellant concluded that a trial conducted in violation of these fundamental safeguards is a total nullity, and prayed for the conviction to be quashed and the sentence set aside. Summary of the Respondent’s Submissions 22.The Respondent in its submissions opposed the appeal and prayed for its dismissal. First, the Respondent conceded that a review of the certified trial record indicates that the trial court did not explicitly record informing the Appellant of his right to legal representation at the inception of the trial. However, the Respondent argued that a procedural omission by the trial court should not automatically result in the quashing of a conviction. The Respondent submitted that the primary constitutional standard under Article 50 is whether the accused person received a fair trial in its entirety. 23.The Respondent contended that the record demonstrates the Appellant fully comprehended the nature of the allegations, conducted focused cross-examination of PW1 and PW2, and gave a detailed sworn statement in his defence. The Respondent urged the Court to apply Section 382 of the Criminal Procedure Code, which protects judgements from being overturned due to technical errors or omissions unless a clear miscarriage of justice is proven. 24.Regarding the adequacy of preparation facilities, the Respondent cited the Supreme Court decision in Khalid & 16 others vs Attorney General & 2 others [2019] KESC 93 (KLR), arguing that disclosure at any time before the presentation of evidence constitutes sufficiency for defence preparation. The Respondent noted that the Appellant was supplied with the charge sheet and witness statements on 11th June, 2025 and never requested additional time during the trial. The Respondent concluded that because the actual offence of defilement was proven beyond reasonable doubt and its merits were unchallenged, the conviction and sentence should be upheld. Issues for Determination 25.Having carefully perused the trial record, the trial judgement, and the submissions filed by both parties, this Court identifies the following core issues for determination:i.Whether the trial court’s failure to inform the Appellant of his right to legal representation violated his constitutional right to a fair trial under Article 50(2)(c) and (g) of the Constitution?ii.If the answer be in the affirmative, what are the appropriate consequential orders to be made?iii.Only if the first issue be answered in the negative, whether the conviction was safe and sentence appropriate? Analysis and Determination Whether the trial court’s failure to inform the Appellant of his right to legal representation violated his constitutional right to a fair trial under Article 50(2)(c) and (g) of the Constitution? 26.The constitutional framework places the right to a fair trial on an elevated pedestal, as non-derogable. Under Article 50(2)(g) of the Constitution of Kenya, 2010, every accused person has the right to choose, and be represented by, an advocate, and to be informed of this right promptly. This constitutional mandate is reinforced by Article 50(2)(h), which guarantees the right to have an advocate assigned to the accused by the State at State expense if substantial injustice would otherwise result. These provisions are read in tandem with Section 43 of the Legal Aid Act, 2016, which places a positive, mandatory duty on the trial court to inform an unrepresented accused person promptly of their right to legal representation and legal aid. 27.The Supreme Court in Petition No. 5 of 2015 Republic -vs- Karisa Chengo & 2 Others [2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows: -“The right to legal representation…...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.” 28.In Pett vs. Greyhound Racing Association (1968) 2 All ER 545 Lord Denning presented himself thus: -“It is not every man who has the ability to represent himself on his own. He cannot bring out the point in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A Magistrate says to a man; ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him and who better than a lawyer who has trained for the task.” 29.The question on who is under such a duty to inform the accused person of the right, Section 43(1)(a) of the Act provides that a court before which an unrepresented accused person is presented shall promptly inform the accused of his or her right to legal representation. In the South African Supreme Court in Ramaite vs The State (958/13) [2014] (26 September 2014), the court stated as follows regarding the duty to inform the accused person of his right to legal representation:“…a general duty on the part of judicial officers to ensure that unrepresented accused fully understand their rights and the recognition that in the absence of such understanding a fair and just trial may not take place.If there is a duty upon judicial officers to inform unrepresented accused of their legal rights, then I can conceive of no reason why the right to legal representation should not be one of them. Especially where the charge is a serious one which may merit a sentence which could be materially prejudicial to the accused, such an accused should be informed of the seriousness of the charge and of the possible consequences of a conviction. Again, depending upon the complexity of the charge, or of the legal rules relating thereto, and the seriousness thereof, an accused should not only be told of this right but he should be encouraged to exercise it. He should also be informed in appropriate cases that he is entitled to apply to the Legal Aid Board for assistance. A failure on the part of a judicial officer to do this, having regard to the circumstances of a particular case, may result in an unfair trial in which there may well be a complete failure of justice ...” 30.The above position was reinforced locally in Joseph Kiema Philip vs Republic (2019) eKLR where the court stated as follows:“…it is paramount that the record of the trial court should demonstrate that the accused was informed of his right to legal representation and whether or not in the case that the he cannot afford an advocate, one may be appointed at the expense of the state. It [the court record] must show that the court did take the profile of the accused person before the trial commenced….” 31.Here, the Respondent does not dispute the fact that the trial record is entirely silent on whether the trial magistrate ever informed the Appellant of his right to counsel. The right to be informed of the right to counsel is a fundamental, non-derogable component of the right to a fair trial under Article 25(c) of the Constitution, and its disregard cannot be excused as a mere technicality. 32.The test for determination of whether substantial injustice would result from the absence of counsel demands an objective assessment of the specific circumstances of each case as was held in Republic vs Karisa Chengo & 2 others (Petition 5 of 2015) [2017] KESC 15 (KLR). The court must look at: (i) the seriousness of the offence and the severity of the potential sentence; (ii) the financial capability, literacy, and vulnerability of the accused person; and, (iii) the legal and factual complexity of the charges and the evidence presented. 33.An application of these factors to the present case reveals a profound level of vulnerability and inequality of arms. The Appellant was an illiterate 62-year-old man, pushed into asylum in a foreign land facing a grave charge of defilement carrying a mandatory minimum sentence of 20 years imprisonment. Furthermore, the prosecution’s case did not rest on simple factual assertions; it relied heavily on complex medical and scientific evidence. This evidence included physical findings of vaginal trauma, a missing hymen, a 22-week pregnancy confirmed through ultrasound, and a chemical abortion allegedly induced by clinical tablets inserted vaginally and ingested orally. 34.To argue, as the Respondent does, that an unrepresented, illiterate layperson could navigate, comprehend, and challenge such sophisticated medical evidence is entirely inconsistent with the constitutional requirement of a fair trial. As observed by the Court of Appeal in Owuor vs Republic (Criminal Appeal 16 of 2019) [2022] KECA 18 (KLR), a layperson in such a position is often tongue-tied, nervous, or confused, and entirely incapable of identifying the weaknesses in the prosecution's case or cross-examining professional witnesses. 35.A review of the trial record confirms this disadvantage. The Appellant did not ask any questions during the cross-examination of the medical clinical officer (PW3) or the investigating officer (PW4). His cross-examination of the minor complainant (PW1) and her mother (PW2) was extremely brief, consisting of only a few unstructured lines of simple denial and wholly failed to address the issues in controversy. The Appellant lacked the legal and clinical mind and expertise required to cross-examine PW3 on gestation timelines, ultrasound films, or abortifacient chemical interactions. The trial court’s failure to inform him of his right to counsel, and its failure to conduct an inquiry into his eligibility for State-funded legal aid, severely compromised the trial. As was the case in K.O. vs Republic (Criminal Appeal E026 of 2021) [2023] KEHC 1830 (KLR) where a trial court decides to plough on with a trial in total disregard of the fair trial guarantees under Article 50, the entire exercise is a nullity. 36.More worrisome dimension of this appeal regards to the Appellant’s mental capacity during the trial. The record reveals active concerns about the Appellant’s state of unsound mind during the trial. Under Section 162 of the Criminal Procedure Code, when in the course of a trial the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defense, it shall inquire into the fact of unsoundness. If the court is of the opinion that the accused is of unsound mind, it is legally mandated to postpone further proceedings. It must then order that the accused be detained in safe custody, or released on sufficient security to ensure they are properly taken care of, and transmit the record to the Cabinet Secretary for the President's consideration. Furthermore, Section 167 of the Criminal Procedure Code provides the protective procedure where an accused person, though not insane, cannot be made to understand the proceedings. That the court finds, was not adhered to by the trial court. 37.The Court holds that failure to protect a vulnerable, old and displaced accused person by omitting the mandatory duty to inform an accused of the right to representation is a fatal error that renders the resulting trial, conviction, and sentence a nullity. 38.Article 50(2)(c) of the Constitution guarantees every accused person the right to be given adequate time and facilities to prepare a defence. The trial record shows that the prosecution closed its case on the 29th of July, 2025, and the trial court immediately scheduled the defence hearing for 4th August, 2025. This left the Appellant with a total of five days, including a weekend, to prepare his entire defence. 39.The court underscores the duty to protect the rights of an unrepresented, illiterate accused person. The duty required the trial court to actively explain the significance of the defence stage, advise the Appellant of his right to request more time to prepare or seek legal advice, and verify his actual readiness before proceeding. The trial court failed to do so, treating the transition to the defence stage as a rapid, procedural formality. 40.In Joseph Ndungu Kagiri vs Republic [2016] KEHC 4153 (KLR), the High Court held that rushing an unrepresented accused person into their defence within seven days of the close of the prosecution’s case, without verifying their readiness or explaining the process, violates Article 50(2)(c) of the Constitution and constitutes a grave miscarriage of justice. In the present case, the five-day window, given the Appellant’s advanced age, illiteracy, and lack of legal representation, turned the defence stage into a mere formality. 41.The Respondent’s reliance on the Supreme Court decision in Khalid & 16 others vs Attorney General & 2 others [2019] KESC 93 (KLR) is of no assistance to the legal positions obtaining in this matter. While pre-trial disclosure is an essential component of the facilities required for preparation, disclosure alone does not satisfy the constitutional standard if the accused is functionally incapable of utilizing the disclosed materials due to illiteracy, lack of counsel and rushed timelines. By failing to explain the defence process and rushing the hearing, the trial court violated the Appellant’s rights under Article 50(2)(c) of the Constitution. 42.In upshot, this Court finds that the trial under Kakuma Magistrate's Court Criminal Case No. E013 of 2025 was conducted in flagrant violation of the Appellant's constitutional rights to a fair trial under Article 50(2)(c), (g), and (h) of the Constitution of Kenya, 2010. These constitutional violations are fundamental and cannot be cured by procedural provisions such as Section 382 of the Criminal Procedure Code as averred by the Respondent. Consequently, the trial was a complete nullity, and the conviction and sentence are legally unsustainable. 43.While this Court recognizes the gravity of the offence of defilement and the trauma suffered by child victims, the constitutional demands of a fair trial are absolute, non-derogable and must be upheld without exception. Justice can only be served through a constitutionally compliant process. A trial that derogates such requirements can only be null. When null, the outcome cannot be left to stand. 44.In considering whether to order a retrial, this Court must weigh the potential prejudice to the Appellant. Given the Appellant's advanced age of 62 years, his underlying health condition of high blood pressure and the fact that the nullity of the trial was occasioned by the court’s failure to safeguard his non-derogable fair trial rights, this Court finds that ordering a retrial would be oppressive and prejudicial. 45.Because the failure by the trial court have vitiated the trial, it has become moot to go into the merits of the appeal as regards the quality of evidence led and if the standards of proof were ever met. It is sufficient that the conviction is adjudged to be fatally unsound. 46.Consequently, for the reasons stated above, this Court makes orders to the effect that the appeal is hereby allowed. The conviction of the Appellant, Ibrahim Ahmed, for the primary offense of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006, is hereby quashed. The sentence of 20 years imprisonment imposed on the Appellant is hereby set aside in its entirety. The Appellant shall be set at liberty immediately, unless he is otherwise lawfully held in custody. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 23RD DAY OF JUNE, 2026PATRICK J O OTIENOJUDGE