https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9950

Angela v Republic (Criminal Appeal E088 of 2025) [2026] KEHC 9950 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9950 (KLR) Republic of Kenya In the High Court at Makadara Criminal Appeal E088 of 2025 J Wakiaga, J June 25, 2026 Between Caleb Odhiambo Angela Appellant and Republic Respondent (Being an appeal against the original conviction and sentence from criminal case no 309 of 2019 of the Chief Magistrates Court at Makadara) Judgment 1.The appellant was convicted and sentenced to 30 years imprisonment for the offence of defilement under section 8(2) of the sexual offences Act the particulars of which were that on the 12th day of July 2019 at around 7 pm in [Particulars Withheld] in Njiru Sun County of Nairobi County he unlawfully and intentionally caused his penis to penetrate the vagina of AGO a child aged ten years. 2.Being aggrieved by the said conviction and sentence he filed this appeal initially at the High Court criminal registry at Milimani as criminal appeal no E064 of 2024 and raised the following grounds of appeal:A.That the trial court erred in law and fact by failing to find that the prosecution failed to prove penetration.B.That the court erred in failing to find that the prosecution never proved the age of the complainant as required in law.C.The appellant was not properly identified .D.The court failed to find that the witnesses were incredible witnesses whose evidence could not be used to base a conviction.E.The court erred in convicting the appellant based on the complainant’s single evidence without giving reason for believing the same . 3.By the direction of the court dated 13th February 2025, this cause was transferred to this registry for trial and determination and upon admission thereof directions were issued on the disposal thereof by way of written submissions . Submissions 4.On behalf of the appellant it was submitted he was not positively identified as the prosecution case was based on visual identification in very difficult conditions as the evidence was that the appellant was a stranger to the victim who took her to an incomplete building and that the attack was violent and traumatic and there was no light at the place. The compliant described the attacker as short and having a beard. It was contended that the conditions were not favourable for positive identification in support of which the case of Cleophas Otieno Wamunga v Republic was tendered. 5.It was contended further that no identification pared was conducted and that the identification of the appellant four month later when the complainants allegedly saw the appellant talking to her father was worthless as it was highly unreliable . 6.It was submitted that the police did not visit the scene so as to gather vital forensic evidence that would have exonerated or implicated the appellant , neither did the police extract forensic evidence from the doctor such as DNA to assist the prosecution case in ascertain that it was the appellant who committed the act. 7.It was contended further that the prosecution witnesses were not credible and truthful. Pw1 was unable to give accurate and believable information of the perpetrator immediately after the incidence as confirmed by the evidence of PW2,PW3,and PW4 and that her testimony as captured by PW6 four month after the incidence that she was able to recognize Caleb as the perpetrator was untruthful. PW2 ansPW3 were self declared investigators and that the appellant had a right under Article 50(2) (i) of the constitution to remain silent and it was therefore misplaced for the trial court to make adverse conclusion from the reporting of harassment by PW3 without finding out whether he had p[powers to summon the suspect . 8.It was stated they the trial was unfair by forcing the appellant to continue with the trial at a time when his Advocate had died and that at the time when the trial proceeded the new Advocate was unable to retrieve the statements from the office of the dead Advocate. The appellants rights under article 47 and 50 (1) (2) (g) and (h) were violated. It was contended that the appellant was prejudice as the court ignored his right to legal representation in support of which the case of Evans Wanjala Siibi v republic was tendered. 9.It was finally submitted that the sentence was harsh excessive and unconstitutional as the 30 years was akin to life imprisonment as stated by the court of appeal in Evans Nyamari Ayako v Republic and that a reading of the Supreme Court decision in republic v Joshua Gichuki Mwangi shows that the court directed the trial court to exercise discretion where a section of the law had been declared unconstitutional and that the high court in the cases of Philip Mueke Maingi & others v republic and Edwin Wachira & 9 others v Republic had declared the mandatory sentences in sexual offences Act unconstitutional. 10.On behalf of the respondent it was submitted that all the element of the offence was proved. Penetration was p[roved through the evidence of PW1 , PW2,PW3,PW4 and PW7 the Clinical Officer the age of the victim was proved through the evidence of her parents and the birth certificate. Identification was positive as the victim identified the appellant when he visited their house. The appellant defence was considered. The sentence was lenient as the law provides for life imprisonment. Proceedings 11.This being a first appeal , the court is under a duty to re-evaluate the evidence tendered before the trial court to come to its own conclusion thereon. 12.The complainant having been found capable of understanding oath testified that on the material day at 7.00pm while going to the shop to buy eggs, she felt someone pulling her from behind and took her to un incomplete house before removing her clothes and his and inserted his thing inside her thing of susu and when he finished he ran away. She was able to see him with the aid of the street light. he was a short man with a beard. She went home and reported to her Mum , uncle called Vincent and aunt called Eunice. She was then taken for medical examination. 13.She later on the 11.11 2019 saw the appellant at [Particulars Withheld] and informed her brother who called her father who apprehended the appellant. In cross examination, she stated that the distance between their house and the shop and the incomplete house was about one ands half meters. The appellant held her by the neck and covered her mouth and told her not to make any noise and that she started bleeding immediately the appellant defiled her. 14.PW2 the victim’s brother stated that he knew the appellant as a plumber and that on the material day the victim took long from the shop , so they went looking for her but did not find her. On their way home, they found her with her uncle and aunt and she was then taken to Mama Lucy Hospital. She later informed him that the appellant had defiled her. After four months they saw the appellant and the victim pointed him out, and he recognised him as he used to play foot ball at the junction and was also carrying his tools of trade. They later on called him to come to their house and he came. 15.In cross examination , he stated that he used to see the appellant fixing people’s water in the estate but did not know his name and that he asked for his name based on his height and work . 16.PW 3 John Ochieng Obara , the father produced her birth certificate was informed of the incidence on phone while in Mombasa. On the 11.11.19 while going to visit his sister at Lucky Summers , the victim spotted the appellant and that he went to the hardware shop and inquired of the identity of the appellant and found that he was away. The appellant later called him on 1.12.19 and the following day the appellant went to his house accompanied with five boda riders and identified himself as Caleb and that he had learned that he was accusing him of having defiled his child and stated that he would take action against him. The appellant later went to Njiru police post an made a report against him and was summoned to the police station where the appellant was arrested after he gave an account of what had happened. 17.PW4 Audrine Adhiambo the victim’s mother produced ger birth certificate and corroborated her evidence and that when she met the victim , she had a torn pair of shorts with blood stains and that she underwent surgery on her vagina. 18.PW5 SS Reuben Gwako received the report from the appellant on 4/12/2019 that someone was tarnishing his name and wanted to beat him up and as he was making the report a man also came and reported that he had defiled his daughter, he therefore arrested the appellant . 19.PW6 CPL Johnston Mueke rearrested the appellant from Njiru police post and recorded statements from witnesses.PW7 Milka John produced the medical report on the complainant and confirmed that she was bleeding from her vulva area , she had vaginal tear and perineal tear confirming penetration . 20.When put on his defence the appellant stated that he was a plumber within the estate. On 1.12.19 Jack a friend of PW1 told him that the same was looking for him. He though he wanted him to fix for him something so he went to his house where he told him that his daughter had informed him that she had been defiled by a short man, and he told him that he was not the only short man in Kayole. He then decided to report him at the police station and was subsequently arrested. Determination 22.In this matter the following issues have been identified by the court for determination arising from the proceedings and submissions herein;A.Whether the appellant was positively identifiedB.Whether the prosecution case was proved to the required standardC.Whether the appellant sentence was harsh excessive and unconstitutional. 23.On the identification of the appellant, the same was not known to the complainant. She only gave his description as a short man with a beard. On the 11.11.2019 , the complainant saw him and pointed him out to her father and brother and the brother recognised him as a plumber within the area. The complainant’s father then made inquiry of his identity leading to him going to the complainant’s house in the company of five boda riders. The complainant once again pointed him out while he was at their house. In his testimony the appellant confirmed that he was short but not the only short person in the area. The trial court in her notes confirmed that he had beard. 24.The appellants action of reporting the complainant’s father to the police and threatening him with boda riders, pointed out to guilty mind. I therefore find and hold that the appellant was positively identified and therefore his submission to the effect that his identification four months after the incidence was not safe is all hot air. 25.The appellant has raised the issue of legal representation, the record shows that the same was initially represented by an Advocate. On 17.5.2023, he infirmed the court that his Advocate had died and he went to his office to take his statement but was dismissed by those who were in the office but the court record shows that on 8/9/2022 the appellant had secured the services of Mr. Oluoch Awino and on the date when the matter proceeded in the absence of his Advocate , the Court supplied him with the statements and he was able to cross examine the witnesses and was not prejudiced as he had exercised the said right. He had the right to ask for the recall of the said witnesses if his Advocate appeared in court , at the next hearing date , but the court record shows that he constructively chose to represent himself thereafter. 26.On proof of the prosecution case, the age of the compliant and the fact of penetration was not disputed by the appellant. The evidence on record confirms her age and penetration. I therefore find no fault with the trial court’s finding thereon which I herein affirm. 27.The appellants conviction was therefore and the appeal against conviction is dismissed. 28.Sentence remains at the sole discretion of the trial court and can only be interfered with by the appellate court if and only if the trial court acted in error. The supreme court has confirmed the constitutionality of the mandatory sentences in the sexual offences in R v Joshua Gichuki Mwangi and therefore the appellants submissions that they are unconstitutional, based on the previous decisions of the High Court and Court of Appeal , romantic as they are cannot pass the test of the doctrine of stera decesis, I take the view that the Supreme Court is taken to have set aside the said decisions by their judgement in the Gichuki case. 29.Even if the court had discretion, I have looked and the injuries inflicted on the victim and the appellant subsequent action of telling her father “ utado” by threatening with the boda boda riders and the police !. I have noted that the lawful sentence as per the statute is life sentence and therefore the sentence herein cannot be said to be excessive . 30.I will therefore not interfere with the sentence herein , the judgement of the supreme court notwithstanding . 31.In the final analysis the appeal herein is dismissed both on conviction and sentence. The appellant has a right of appeal. DATED SIGNED AND DELIVERED THIS 25th DAY OF JUNE 2026J.WAKIAGAJUDGEIn the presence ofCourt Assistant- IreneMs Kariuki for ODPPThe appellant in person virtual from Kamiti