https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10842

Amukune v Republic (Criminal Appeal E021 of 2023) [2026] KEHC 10842 (KLR) (29 June 2026) (Judgment) Neutral citation: [2026] KEHC 10842 (KLR) Republic of Kenya In the High Court at Kapenguria Criminal Appeal E021 of 2023 OA Sewe, J June 29, 2026 Between Wycliff Amukune Appellant and Republic Respondent (Being an appeal from the conviction and sentence dated 25{{^th}} May 2023 in Kapsabet Chief Magistrate’s Sexual Offence Case No. E046 of 2022 by Hon. S.M. Mokua, Chief Magistrate) Judgment [1]The appellant, Wycliff Amukune, was arraigned before the Chief Magistrate’s Court at Kapsabet on the 5th May 2022 on a charge of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, No. 3 of 2006. The particulars of the charge were that on the 3rd day of May 2022 at [Particulars Withheld] Village in Chepkumia Location within Nandi County, he intentionally and unlawfully caused his penis to penetrate the vagina of V V, a girl aged 14 years. [2]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. It was alleged that on 3rd day of May 2022 at [Particulars Withheld] Village in Chepkumia Location within Nandi County, he intentionally and unlawfully used his hands to touch the vagina, breasts and buttocks of V V, a girl aged 14 years. [3]The appellant denied the charges and the matter was fixed for trial before Hon. Mokua, Chief Magistrate. The appellant was ultimately found guilty of the substantive charge of defilement and was convicted thereof. He was sentenced to 15 years’ imprisonment. [4]Being dissatisfied with his conviction and sentence, the appellant filed this appeal on the 6th June 2023 on the following grounds:(a)That the learned trial magistrate erred both in law and fact in failing to accord and/or afford the appellant a fair hearing and treatment in accordance with the Constitution of Kenya and the relevant provisions of the law.(b)The learned trial magistrate erred both in law and fact in making extraneous orders which were erroneous in law.(c)The learned trial magistrate erred both in law and fact in failing to simultaneously analyze and evaluate the evidence on record with a view to arriving at balanced and objective findings based on the evidence on record.(d)The learned trial magistrate erred both in law and fact in convicting the appellant without taking into consideration that the charge sheet was defective.(e)The learned trial magistrate erred both in law and fact and misdirected himself in convicting the appellant against the weight of the evidence as no member of the public was called by the prosecution since the appellant was allegedly arrested by members of the public while committing the alleged offence.(f)The learned trial magistrate’s judgment is devoid of reasons and contrary to and/or in contravention of the provisions of the Criminal Procedure Code, Cap 75 of the Laws of Kenya and the Constitution of Kenya since the trial magistrate did not assign the appellant an advocate as required by the law.(g)The learned magistrate erred both in law and fact in convicting the appellant without taking into consideration the discrepancies on the documents tendered as exhibits.(h)The learned trial magistrate erred both in law and fact in convicting the appellant without taking into consideration that there was no evidence to ascertain the exact age of the minor since there was no proper record produced such as the Birth Certificate, baptismal card or any other relevant record but opted to rely on age the assessment report which was not conclusive.(i)The learned trial magistrate erred both in law and fact in finding and holding that there existed sufficient and credible evidence tendered by the complainant and witnesses to establish the offence of defilement and committing indecent act.(j)The learned trial magistrate erred both in law and fact in convicting the appellant without specifying under which count the appellant was found guilty and convicted since the appellant was facing two counts.(k)The learned trial magistrate erred both in law and fact in finding and holding that the offence had been proved and in failing to consider that the evidence on record was tainted with illegalities since no eye witness or independent witness was called by the prosecution.(l)The learned trial magistrate erred both in law and fact in convicting the appellant without giving any reasons at all which was against the rules of natural justice.(m)The learned magistrate erred both in law and fact in proceeding to and believing that there was penetration yet no evidence was adduced to that effect.(n)The learned magistrate erred both in law and fact and misunderstood the evidence tendered by the prosecution thereby proceeding to believe the same without exercising reasonable caution.(o)The learned trial magistrate erred both in law and fact in holding and finding that the appellant was guilty of the offence as charged without taking into account the defence evidence and thereby condemning the appellant prematurely.(p)The learned trial magistrate erred both in law and fact in shifting the burden of proof from the prosecution to the appellant contrary to the established principles of law.(q)The learned trial magistrate erred both in law and fact in disregarding the appellant’s defence and mitigation without assigning any reason and/or explanation.(r)The learned trial magistrate erred both in law and fact in convicting the appellant and passing maximum sentence without taking into consideration the mitigating factors.(s)The conviction and sentence of the learned magistrate are illegal, null and void. [5]Accordingly, the appellant prayed that his appeal be allowed, and that the conviction and sentence passed by the lower court be quashed and/or set aside. [6]The appeal was canvassed by way of written submissions; to which end the appellant relied on his written submissions dated 5th November 2025. He argued his twenty grounds of appeal under three broad heads. In the first cluster, he addressed grounds 1, 2,3, 5, 7, 8, 9, 11, 12, 14, 15 and 20 and submitted that his right under Article 49(1)(f) of the Constitution was violated in that he was detained for a period of 2 days before his arraignment before court. He submitted that on that account the plea and the subsequent proceedings before the subordinate court were a nullity ab initio. [7]The appellant further submitted that although many people went to the scene of the alleged crime, none of them was called by the prosecution. In particular, the appellant pointed out that, in her evidence, the complainant mentioned the name of Chepchumba and stated that they were gathering firewood together before she went to the river to drink some water; yet the said Chepchumba was never presented before the lower court as a witness. He posited that failure to call other witnesses who were at the scene is an indicator that the complainant’s allegations were false. [8]With regard to the evidence of Frabeis Adiyo (PW2), the appellant submitted that he contradicted himself when he said that he did not know him prior to his arrest; and later stated that he was working for a neighbor as a caretaker. On that account the appellant urged the Court to disregard his evidence and find that he was unreliable. [9]The appellant took issue with the evidence adduced by the prosecution in proof of the age of the complainant for purposes of Section 8(3) of the Sexual Offences Act. He relied on Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010 (UR) for the proposition that the age of a complainant is a critical component of the charge of defilement and that the same must be proved beyond reasonable doubt. In the appellant’s submission, the age of the complainant herein was not proved beyond reasonable doubt. [10]The appellant also submitted that his freedom from self-incrimination was violated by the prosecution when PW3 produced his treatment notes as exhibits before the lower court. He pointed out that no warrants were produced before the lower court authorizing reliance on the said documents by the prosecution. In addition, the appellant argued that, from the evidence of PW3, the complainant was sexually active long before the date of the incident in question. He also submitted that PW3 examined her and confirmed that her genitalia were normal in that her hymen had been long broken, and no lacerations were noted to indicate recent sexual activity. He posited that there was therefore no evidence to support the conclusion by PW3 that the complainant was defiled. [11]In respect of Ground 6 in his Petition of Appeal, the appellant submitted that it was the duty of the trial court to ensure the protection of his rights, including the right to legal representation as enshrined in Articles 49(1)(c) and 50(2)(g) of the Constitution. He submitted that nowhere in the proceedings was it indicated by the learned trial magistrate that he had been informed of the gravity of the offence or his right to legal representation. Consequently, he urged the Court to find that his right to fair trial was violated by the lower court. [12]In respect of Grounds 10, 13, 16, 17 and 18, of his Petition of Appeal, the appellant submitted that his defence in which he alleged witch hunt was not given any attention by the learned magistrate. He pointed out that he called a witness who corroborated his assertion that there was an ongoing land dispute between him and the complainant’s family; and therefore that the charges were a frame-up to enable the complainant’s family take away his land. [13]He further submitted that, being a minor, it was imperative for the evidence of the complainant to be corroborated as required by Section 124 of the Evidence Act; but which the learned magistrate did not pay attention to. [14]On the basis of the foregoing, the appellant urged the Court to allow his appeal, quash the conviction recorded against him set aside the sentence imposed by the lower court. [15]The prosecution appears to not have filed any written submissions in spite of being granted time for the purpose. [16]I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that I did not have the opportunity to see or hear the witnesses testify. (see Okeno v Republic [1972] EA 32). [17]Before the lower court, the prosecution called four witnesses. Their first witness was the complainant, V V (PW1). She told the lower court that she was born in July 2008 and was in Standard 8 at the time. She testified that on the 3rd May 2022, she was gathering firewood; and that at about midday, she went to the nearby river to drink water. She further stated that on her way back, the appellant emerged suddenly and got hold of her. He covered her mouth and pulled her to the room where he was putting up in and defiled her. She added that the appellant threatened to kill her if she screamed but she nevertheless screamed out of pain when the appellant forcefully inserted his penis in her vagina. [18]It was further the evidence of PW1 that her screams attracted many people to the scene and found her inside the appellant’s house. They managed to apprehend the appellant and took him to Chepsonoi Police Station. She was later taken to Kapsabet Hospital for examination and treatment. [19]F A (PW2) told the lower court that he was weeding his shamba on the 3rd May 2022 when, at about midday, he received information from his daughter in law that the complainant, who is his granddaughter, had been defiled at a neighbour’s home. He stated that the minor had left home to go and fetch firewood. He went to the scene and found many members of the public present who were threatening to kill the occupant, the appellant herein. He also pointed out that the appellant was armed with a stick and was also threatening to retaliate. It was the evidence of PW2 that he persuaded the appellant to surrender, which he did. The appellant was then arrested and taken to Chepkumia Police Station. [20]The prosecution also called Abigail Chepkoech of Kapsabet County Hospital as PW3. She testified that she examined the complainant for purposes of age assessment and estimated her age as between 13 and 15 years. She produced the Age Assessment Report as the Prosecution’s Exhibit 1 before the lower court. She also examined the complainant following allegations of having been defiled by someone. She formed the opinion that the minor had been defiled. She produced the P3 Form which she filled in respect of PW1 as an exhibit before the lower court. [21]PW3 further testified that she examined the appellant and filled a P3 Form detailing her findings and conclusions. She noted that the appellant had bloodstained clothes and a cut wound on the frontal part of his head, but was otherwise in a fair condition. The history presented was that had been assaulted by members of the public in the process of arrest for alleged defilement of a minor. [22]Upon being placed on his defence, the appellant stated that he had been threatened by people, some of whom were known to him and were family members. He stated that they had a dispute over family land from which he had been evicted by members of the second house. He explained that he had nowhere to stay and at times would operate from Kisumu. He denied having defiled the complainant and contended that this was a frame-up instigated by his step-mother. [23]The appellant called his mother, Mary Andeyo (DW2) as his witness. DW2 testified that she had a long-standing dispute with her co-wife and that that was the reason she had caused her son to be accused falsely. She confirmed that the appellant was staying at the home of his employer at the time of his arrest. [24]In the light of the foregoing, the issues for determination are:(a)Whether the Prosecution proved the charge of defilement against the appellant beyond reasonable doubt.(b)Whether the appellant’s rights under Article 49(1)(a) and (f), and Article 50(2)(g), (h) and (l) of the Constitution were violated;(c)Whether the sentence of 15 years’ imprisonment imposed on the appellant by the lower court is harsh or excessive. A. Whether the Prosecution proved the charge of defilement against the appellant beyond reasonable doubt: [25]For purposes of the substantive charge, of which the appellant was convicted and sentenced to 15 years’ imprisonment, Section 8 (1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006 provides:1.A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.2.…3.A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. [26]The prosecution was therefore under obligation to prove beyond reasonable doubt the elements of defilement, namely, the age of the victim, penetration and the identity of the perpetrator. Consequently, I have proceeded to re-evaluate the evidence presented before the lower court along those lines and my findings are as follows: (a) On whether the complainant was, at the material time, a child for purposes of Section 8(3) of the Sexual Offences Act: [27]In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, the Court of Appeal held that:“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 the 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”. [28]In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states:When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document." [29]Hence, whereas the age of a victim of a sexual offence can be proved by production of the Certificate of Birth, baptismal card or school documents, it is now trite that the same can also be proved by way of age assessment report as well as observation and common sense. Moreover, in P.M.M. v Republic [2018] eKLR, it was held thus:…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…” [30]The complainant testified before the lower court on 25th October 2023 and stated that she was born in July 2008. She was therefore about 13 years and 10 months old as at 3rd May 2022 when the alleged incident of defilement occurred. The prosecution relied on the Age Assessment Report prepared by PW3 who testified that, in her estimation, the complainant was between 13 to 15 years old. That evidence was unassailed. [31]Section 8(3) of the Sexual Offences Act provides for the age bracket of between 12 and 15 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the complainant was a child for purposes of Sections 2 of the Sexual Offences Act, as read with Section 2 of the Children Act, No. 8 of 2001. (b) On Penetration of the complainant: [32]The complainant testified that she was on her way from the river when the appellant confronted her and forcefully dragged her to his place of abode in a neighbour’s home. She further stated that the appellant had covered her mouth and threatened to kill her if she screamed and then proceeded to defile her. [33]PW3 confirmed that she examined the complainant and although there were no visible injuries in her genitalia, she formed the opinion that she had been defiled. PW3 explained that the girl’s hymen had long been broken; and that in cases, such as this, where the minor was already sexually active it is not possible to observe injuries. [34]The appellant took issue with the evidence of PW3 and contended that it fell short of proving defilement in so far as no injuries were noted on the girl’s genitalia. However credible evidence was adduced by PW1 and PW2 to demonstrate that the screams by PW1 attracted a huge crown to the appellant’s place of residence and that he was found alone with the minor. He was arrested at the scene of crime by members of the public in the presence of PW2. PW2 testified that he was the one who calmed the appellant down and thereby saved him from an irate mob. There was therefore sufficient evidence to corroborate the evidence of PW1 on penetration. In fact, penetration is defined in Section 2 of the Sexual Offences Act to mean:"…the partial or complete insertion of the genital organs of a person into the genital organs of another person;” [35]In this regard, the Court of Appeal held as follows in Kassim Ali v Republic [2006] KECA 156 (KLR):…as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129).So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence. [36]Moreover, the proviso to Section 124 of the Evidence Act is explicit that:…where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth (c) On whether the penetration of the complainant was perpetrated by the appellant: [37]The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held:“The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…” [38]On the issue of the appellant’s identity, PW1 testified that she knew him as the caretaker of their neighbour. The appellant conceded in cross examination that he was found in his house alone with the complainant and was arrested by members of the public. His contention that he had been framed was utterly displaced by the prosecution. [39]In the premises, it is my finding that the offence of defilement under Section 8 (1) as read with Section 8(3) of the Sexual Offences Act was proved by the Prosecution beyond reasonable doubt and therefore he was rightly convicted for defilement. B. Whether the Appellant’s constitutional rights under Articles 49(1)(f), 50(2)(g) and (h) and 50(2)(l) of the Constitution were violated: [40]Article 50(2)(g) and (h) of the Constitution provides for the right to legal representation in the following terms:Every accused person has the right to a fair trial, which includes the right—(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;…” [41]Therefore, legal representation is an integral part of the right to fair hearing. The rationale for this was aptly captured by Lord Denning in Pett v Greyhound Racing Association [1968] 2 ALL E R 545, at 549 as follows:“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favor 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 been trained for the task.” [42]Nevertheless, and as was pointed out by the Supreme Court in Republic v Karisa Chengo & 2 Others (Petition 5 of 2015) [2017] KESC 15 (KLR) (26 May 2017) (Judgment), there is a distinction between the right to legal representation in general and the right to legal representation at state expense. The Supreme Court made this vital distinction thus:“…it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include:i.the seriousness of the offence;ii.the severity of the sentence;iii.the ability of the accused person to pay for his own legal representation;iv.whether the accused is a minor;v.the literacy of the accused;vi.the complexity of the charge against the accused; [43]From a perusal of the record of the lower court, learned magistrate did not spare time to explain to the appellant his right to legal representation in general. That notwithstanding, the appellant gave no indication that he had instructed or wished to instruct an advocate to act for him or even that he was unable to engage such services. In the event that he was not in a position to pay for his own legal representation and yet wished to be represented at state expense, it was open to the appellant to say so and seek legal aid in terms of Section 40 of the Legal Aid Act, No. 6 of 2016. It states:(1)A person who wishes to receive legal aid, shall apply to the Service in writing.(2)Where a person wishes to apply for legal aid the person shall apply before the final determination of the matter by a court.(3)An application under subsection (1) shall be assessed, with respect to the applicant’s eligibility for legal aid services in accordance with this Act.” [44]Section 42 of the Act further recognizes that, for persons in lawful custody, the application for legal aid need not be made to the Court. It states that:The officer-in-charge of a prison, police station, remand home for children or other place of lawful custody shall—a.ensure that every person held in custody, is informed in language that the person understands, of the availability of legal aid on being admitted to custody and is asked whether he or she desires to seek legal aid;b.maintain a register in which shall be entered the name of every person held there and the response of each such person when asked if he or she desires to seek legal aid; andc.ensure that a legal aid application form is made by a person in their custody wishing to apply for legal aid and shall inform the Service of the application within twenty-four hours of the making of the application. [45]The Supreme Court went on to explain as follows in the Karisa Chengo case at paragraphs [87] and [88] of its Judgment:(87)Article 50(2)(h) of the Constitution provides that “[e]very accused person has the right to a fair trial, which includes the right…to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” It does not define what “substantial injustice” means. However, in David Macharia Njoroge v. Republic, (supra), the Court of Appeal held that “substantial injustice” results to “persons accused of capital offences” with “loss of life” as the penalty if they have no counsel during their trials. We do not entirely concur with that holding, as it has the effect of limiting the right to legal representation in criminal trials only to cases where the accused person is charged with a capital offence. The operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” While it is therefore undeniable that a person facing a death penalty and who cannot afford legal representation is likely to suffer substantial injustice during his trial; the protection embedded in Article 50 (2) (h) goes beyond capital offence trials. The Court of Appeal indeed appears to have embraced this reasoning in a recent decision in Thomas Alugha Ndegwa v. Republic; C.A No. 2 of 2004, when it allowed an application for legal representation by the appellant who had been convicted of defilement and sentenced to life imprisonment.88.In addition to the above, we do not agree with the Court of Appeal’s holding in the instant case to the effect that the right guaranteed in article 50 (2) (h) of the Constitution is progressive and that it can only be realized when certain legislative steps have been taken, such as the enactment of the Legal Aid Act. While this is true regarding the general scheme of legal aid which the Act is set to fully implement, the same cannot be the case regarding the right in article 50 (2) (h). We are thus in agreement with Mr. Ole Kina, 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. We must however emphasize the fact 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 result”. [46]In the absence of an application as indicated herein above, I am far from persuaded that the appellant’s right to legal representation at state expense was infringed. The record of the lower court further shows that the appellant actively cross-examined the prosecution witnesses and that he made several requests including applications for adjournment which the lower court listened to and granted. His overall conduct during the proceedings demonstrates that no injustice, let alone substantial injustice, resulted from the trial court’s omission to expressly inform him of his right to legal representation. [47]The appellant also submitted that his fair trial right against self-incrimination as provided for under Article 50(2)(l) of the Constitution was violated. He was aggrieved by the fact that PW3 produced his treatment notes as exhibits before the lower court. He contended that no warrants were produced before the lower court authorizing reliance on the said documents by the prosecution. Having considered the appellant’s submissions in this regard, I found his complaint baseless considering that not much turned on the said documents. As pointed out herein above, the documents merely went to show that the appellant was assaulted at the time of his arrest. The learned magistrate attached no weight to the documents in his findings. I therefore do not find any basis for holding that the appellant’s rights under Article 50(2)(l) were violated. [48]Lastly, the appellant complained that he was detained for two days and therefore his right to be presented before court within 24 hours of his arrest was violated. In this regard, Article 49(1)(f) of the Constitution provides that:(1)An arrested person has the right—…(f)to be brought before a court as soon as reasonably possible, but not later than—(i)twenty-four hours after being arrested; or(ii)if the twenty-four hours ends outside ordinary court hours, or on a day that is not an ordinary court day, the end of the next court day; [49]The record of the lower court confirms that indeed the appellant was arrested on 3rd May 2022 and was not arraigned before the court until 5th May 2022, which was outside the 24-hour period stipulated in the Constitution. As to whether this breach ought to vitiate the proceedings before the lower court, the Court of Appeal pointed out in Evans Wamalwa Simiyu v Republic [2016] eKLR that:“This issue has been the subject of several decisions of this Court. The correct position in law was set out in Julius Kamau Mbugua v Republic (2010) eKLR, where the Court stated that the violation of the appellant’s right to be produced in court within twenty-four hours would not automatically result in his acquittal. Instead, the appellant would be at liberty to seek remedy, in damages, for the violation of his constitutional rights. On this basis, we do not consider the issue fatal to the prosecution even if proved.” [50]It is therefore my finding that the alleged violation of the appellant’s right to be presented before court within 24 hours of arrest has no impact on the outcome of the proceedings, including his impugned conviction and sentence. [51]The appellant also took issue with the fact that, although many people went to the scene of the alleged crime, none of them was called by the prosecution, including one Chepchumba who had gone to collect firewood with the complainant. While it is true that Chepchumba, a cousin to the complainant, was not one of the prosecution witnesses, it is not true that none of the people who gathered at the scene of crime was called. PW2 was one of them, and he testified as to what he saw, heard and did; including pacifying the crowd and ensuring the appellant was safely handed over to the authorities. [52]The guiding principles with regard to the number of witnesses needed to prove the prosecution’s case were restated by the Court of Appeal in Sahali Omar v Republic [2017] eKLR. The Court made it clear that:“The prosecution reserves the right to decide which witness to call. Should it fail to call witnesses otherwise crucial to the case, then the court has the mandate to summon those witnesses. But should the said witnesses fail to testify and the hitherto adduced evidence turn out to be insufficient, only then shall the court draw an adverse inference against the prosecution. This is because the prosecution is not obliged to call a superfluity of witnesses, but only such witnesses as are sufficient to establish the charge beyond any reasonable doubt.” [53]In the premises, having found that the prosecution presented credible evidence linking the accused with the defilement of the complainant, I take the view that the failure to call Chepchumba or any of the other members of the public who went to the scene had no adverse effect on the prosecution case. It is notable that by the time the appellant intercepted the complainant she was alone and was on her way from the river. [54]In the same vein, I did not find any merit in the appellant’s contention that the evidence presented against him was contradictory. This argument was hinged on the evidence of PW2 and the question of whether or not he had known the appellant before-hand. This was a non-issue because the appellant had already been arrested by members of the public by the time PW2 arrived at the scene. Hence, the identification of the appellant as the person who defiled the complainant was not dependent on the evidence of PW2. [55]Indeed, in John Nyaga Njuki & 4 Others v Republic, Cr. App. No. 160 of 2000, the Court of Appeal explained that:“In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. But what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused. If so, then the prosecution would not have discharged the burden squarely on it to prove the case beyond any reasonable doubt. However, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. The discrepancies in the evidence in the matter before us are in our view, of a minor nature considering the facts and circumstances of the case.” [56]Likewise, in Philip Nzaka Watu v Republic [2016] eKLR the Court of Appeal acknowledged that human recollection is not infallible and therefore some minor disparities are to be expected. Here is what it had to say in this regard:“...it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” C. On whether the sentence of 15 years is harsh or excessive: [57]In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal restated that:“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor or took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist." [58]The penalty for attempted defilement is prescribed in Section 8(3) of the Sexual Offences Act No. 3 of 2006 which provides:A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. [59]The offence was committed against a minor of about 14 years of age. Hence, the appellant ought to have been sentenced to a minimum of 20 years’ imprisonment. In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) the Supreme Court held that:“Paragraphs 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions (Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (Muruatetu decision) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act, or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution. [60]It is noteworthy however that there was no cross-appeal against sentence and no notice or warning was given to the appellant as to the possibility of enhancement. In Sammy Omboke & another v Republic [2019] KECA 561 (KLR) the Court of Appeal held:“26.In the instant appeal, there was no cross-appeal by the prosecution for enhancement of sentence before the High Court nor was there a warning to the appellants by court that the sentence meted upon them could be enhanced; and there was no notice of enhancement. Guided by the judicial pronouncements of this Court above, we find that the learned judge erred in enhancing the sentence meted out on the appellants. In the absence of a cross-appeal and notice and or warning the judge had no jurisdiction to enhance the sentence.” [61]I therefore find no basis for interfering with the sentence imposed by the trial court. It is noteworthy however that the learned magistrate did not comply with Section 333(2) of the Criminal Procedure Code, granted that the appellant was held in custody for the entire duration of his trial. Section 333(2) of the Criminal Procedure Code provides:Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody. [62]In Ahmad Abolfathi Mohammed & Another Criminal [2018] eKLR the Court of Appeal held:“…By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012…” [63]Accordingly, it is hereby ordered that the sentence imposed by the lower court be computed from the date the appellant’s arrest. [64]In the result, the Appeal is dismissed in its entirety. The sentence of 15 years' is hereby upheld to be reckoned from the 3rd May 2022.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 29TH DAY OF JUNE 2026…………………….…………….HON. OLGA SEWEJUDGE