https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1371

Obama v Republic (Criminal Appeal E032 of 2024) [2026] KECA 1371 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1371 (KLR) Republic of Kenya In the Court of Appeal at Malindi Criminal Appeal E032 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 10, 2026 Between Baraka Salim Kofa alias Obama Appellant and Republic Respondent (An appeal from the Judgment of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 3rd May 2023 in HCRA No. E018 of 2022) Judgment 1.The Appellant, Baraka Salim Kofa alias Obama was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. In the alternative, he faced a charge of committing an indecent act with a child contrary to Section 11(1) of the same Act. 2.The particulars of the offence were that, on diverse dates between March 2020 and August 2020 at [Particulars Withheld] village in Tana River sub-County within Tana River County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of BMM, PW1, the complainant, a child aged 17 years. 3.BMM, PW1, was a form three student at [Particulars Withheld] Secondary School at the time. She produced her birth certificate showing that she was born on 27th September 2003; that sometime in March 2020, she had gone to the farms in Maweni with her younger sister, AM, to look for fish in the water. The Appellant met the complainant at the farm and the two developed a relationship that evolved into an intimate affair. In August 2020, the Appellant persuaded the complainant to meet him at the farm where they engaged in unprotected sexual intercourse. She later missed her menstrual periods and started experiencing signs of pregnancy. She informed the Appellant about the pregnancy; he advised her to inform her mother. 4.After two months, she informed her grandfather while in Kipini, who in turn informed her parents. Her father called the Appellant, but he remained non-committal. PW1 later reported the matter at Hola Police Station in May 2021, where she was issued with a P3 form and referred to Hola County Referral Hospital for examination and treatment. She positively identified the Appellant as the person responsible for her pregnancy. During cross-examination, she maintained that she had told the truth, confirmed that they had sexual intercourse in August 2020, and explained that she delayed reporting the matter because she was afraid and was not living at home. 5.PW2, was the complainant’s mother and lived in Maweni. She stated that in August 2020 she was in Witu when her son A informed her that PW1 was unwell. She took PW1 to hospital for treatment and later returned to the farm. She was later informed by PW1’s grandfather that PW1 was pregnant. PW1 disclosed to her that the Appellant, whom she knew as Mubarak, was responsible for the pregnancy; that he had deceived PW1 by claiming he was a KDF officer, driver and teacher. Upon PW1 returning home, PW2 took her to Eman’s Clinic where the pregnancy was confirmed whereupon she reported the matter to the police and the Appellant was arrested. She produced the complainant’s birth certificate. 6.PC Victor Matunga Otieno, No. 11xxx9 PW3, attached to Hola Police Station was involved in the investigations. He testified that, on 4th May 2021, the complainant and her mother reported a case of defilement at the station; that together with Cpl. Esther, he commenced investigations and escorted the complainant to Hola County Referral Hospital where she was examined and found to be eight months pregnant; that investigations established that the Appellant had been in a relationship with the complainant from March 2020 to August 2020 when the complainant was a Form Three student at [Particulars Withheld] Secondary School; that after the complainant missed her periods, she relocated to Kipini and later Kilifi before eventually returning home, and reported to the police; and that the Appellant who had relocated to Madogo after the incident was subsequently arrested and charged. PW3 identified the complainant’s birth certificate which confirmed that she was aged 17 years. 7.Hawa Abdulgafur, PW4, a clinical officer specializing in reproductive health and gender-based violence at Hola County Referral Hospital, examined the complainant after she was escorted to the hospital by her parent. She conducted a pregnancy test which confirmed that the complainant was pregnant. On examination, she found that the complainant had a distended abdomen, a sign of pregnancy, and an ultrasound scan showed that she was eight months and a few days pregnant. She produced the clinic booklet, ultrasound scan report and the P3 form which she filled on 5th May 2021. PW4 also stated that the expected delivery date was 11th June 2021. She confirmed that she did not conduct DNA testing but maintained that the complainant was indeed pregnant at the time of examination. 8.DW1, the Appellant, gave an unsworn statement in defence. He stated that he was a handcart pusher living in Maroro and denied committing the offence. He claimed that the case arose from a grudge relating to an unpaid debt allegedly owed by his late brother to PW2. According to the Appellant, his late brother had entered into a mango business transaction with PW2, and had received money from a buyer, but died before paying the balance owed to PW2. The Appellant stated that after the death of his brother, PW2 persistently demanded payment from his family and threatened revenge when the debt was not settled. He maintained that he had never met the complainant before and that the allegations against him were fabricated to settle the debt dispute. He further asserted that the medical evidence did not support the prosecution’s case and urged the court to consider his defence. 9.Upon considering the evidence, the trial court was satisfied that the Appellant was positively identified as the perpetrator; that penetration had occurred; and that the complainant who was born on 27th July 2003, was 17 years old as at the time of the incident. The Appellant was therefore found guilty of the offence of defilement, and was convicted and sentenced to serve 15 years imprisonment. 10.Aggrieved by the conviction and sentence, the Appellant lodged an appeal before the High Court, which found no merit in the appeal, and upheld both the conviction and the sentence imposed by the trial court, and dismissed the appeal in its entirety. 11.Dissatisfied, the Appellant has filed the instant appeal to this Court on the grounds that: the learned Judge was in error in upholding the conviction of the trial magistrate’s court without considering that the offence was not proved beyond reasonable doubt; in failing to appreciate that Sections 33, 37, 77, 79, 163 and 164 of the Evidence Act were violated; in failing to consider that the case against him was fabricated; and in failing to consider the Appellant’s defence. 12.During the hearing on a virtual platform, the Appellant appeared in person while learned prosecution counsel, Mr. Omariba appeared for the Respondent. In his written submissions, the Appellant contended that the trial proceedings were fundamentally flawed and resulted in a miscarriage of justice, for the reasons that first, he was unrepresented throughout the trial, and that the record does not show that the trial court informed him of his constitutional right to legal representation, contrary to Article 50(2)(g) and (h) of the Constitution and Section 43 of the Legal Aid Act, 2016. Relying on the case of Jared Onguti Nyantika vs Republic [2019] eKLR and Daniel Mpayo Ngigiya vs Republic [2018] eKLR, the Appellant asserted that the duty to inform an accused person of the right to legal representation is mandatory, particularly where the charge is serious and attracts a severe sentence. Reliance was placed on the case of Joseph Kiema Philip vs Republic [2019] eKLR, where the court underscored that trial courts must place on record that the rights under Article 50(2)(g) and (h) were communicated to an unrepresented accused person. 13.The Appellant further submitted that the seriousness of the charge of defilement, which attracted a mandatory minimum sentence of 15 years’ imprisonment, made it imperative for the trial court to advise him of his right to state-funded legal representation. In support of this proposition, he relied on the case of Joseph Ndungu Kagiri vs Republic [2016] eKLR, Macharia vs R [2014] eKLR, and Charles Maina Gitonga vs Republic [2018] eKLR for the proposition that the right to state-funded counsel is subject to the substantial injustice test, the trial court bears a proactive duty to assess the circumstances of an unrepresented accused and guide him appropriately. 14.Secondly, the Appellant argued that the prosecution failed to prove the case beyond reasonable doubt; that although the complainant became pregnant and gave birth, no DNA test was conducted to link him to the child, notwithstanding the availability of such evidence under Section 36 of the Sexual Offences Act; and that the absence of DNA evidence rendered the conviction unsafe, as there was no conclusive proof that he was responsible for the alleged act of penetration. 15.The Appellant further submitted that the charge was defective as the evidence on record indicated that the complainant was over eighteen years of age at the material time, thereby negating the offence of defilement. He maintained that the charge was inconsistent with the evidence adduced and should not have been sustained. 16.In addition, the Appellant contended that, his alibi defence was disregarded by the trial court, and that the prosecution failed to call crucial witnesses, including one AM, who would have shed light on the true circumstances of the alleged offence. He argued that the burden of disproving the alibi lay with the prosecution, which it failed to discharge. 17.On the sentence, the Appellant submitted that the trial court failed to properly consider mitigating factors and the objectives of sentencing as set out in the Sentencing Policy Guidelines; that the mandatory nature of the sentence does not oust judicial discretion. He finally urged the Court to consider the period he spent in remand custody pursuant to Section 333(2) of the Criminal Procedure Code. 18.In their written submissions, counsel for the Respondent submitted that the appeal lacks merit and ought to be dismissed in its entirety. Counsel argued that the Appellant was informed of his constitutional right to legal representation under Article 50(2)(g) of the Constitution before plea was taken, but he elected to proceed without counsel and actively participated in the trial by cross-examining witnesses. It was therefore submitted that the Appellant voluntarily waived that right and cannot fault the trial court at this stage. Reliance was placed on Manyeso vs Republic [2023] KECA 827 (KLR) on the scope of the right to legal representation and circumstances under which State-funded counsel is required. 19.Counsel further submitted that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt, namely age of the victim, penetration and positive identification of the perpetrator. On age, it was submitted that the complainant was 17 years old as at the material time. On penetration, reliance was placed on the testimony of PW1 and the medical evidence produced by PW4, including the P3 form, clinic card and ultrasound report confirming pregnancy and absence of the hymen. On identification of the perpetrator, counsel argued that the complainant knew the Appellant prior to the incident, had communicated with him over the phone, and met him physically on the material day in broad daylight, thereby eliminating the possibility of mistaken identity. Counsel relied on the case of George Opondo Okoth vs Republic [2019] KEHC 3854 (KLR) on the ingredients required to prove the offence of defilement. 20.On the credibility of the complainant, counsel submitted that both the trial court and the High Court properly found her evidence truthful and corroborated by medical evidence and the testimonies of other prosecution witnesses; that the Appellant’s defence alleging that the case was fabricated because of a debt owed by his deceased brother to PW2 was implausible and unsupported by evidence; and that there was no nexus between the alleged debt and the offence against the complainant. 21.On sentence, counsel submitted that the sentence of 15 years’ imprisonment was lawful and reasonable as it was the minimum sentence prescribed under Section 8(4) of the Sexual Offences Act for defilement of a child aged between 16 and 18 years ; and that the trial court properly considered the gravity of the offence, the impact on the complainant who became pregnant, and the need for deterrence in light of increasing cases of child pregnancy in the area. We were urged to uphold the concurrent findings of the two courts below and dismiss the appeal. 22.The role of this Court as the second appellate court and its jurisdiction is limited to matters of law only as defined in Section 361 of the Criminal Procedure Code. 23.This was affirmed by this Court in the case of David Njoroge Macharia vs Republic [2011] eKLR as follows:That being so, only matters of law fall for consideration – see section 361 of the Criminal Procedure Code. As this Court has stated many times before, it will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings – see Chemagong v. R [1984] KLR 611.” 24.While appreciating the scope of this Court’s mandate as expounded above, having given due consideration to the record of appeal, the memorandum of appeal and submissions, this appeal raises the following issues for determination:i.whether the Appellant’s right to a fair trial under Article 50 of the Constitution was violated;ii.whether the offence of defilement was proved beyond reasonable doubt;iii.whether failure to conduct DNA testing or call additional witnesses weakened the prosecution case;iv.whether the Appellant’s defence was properly considered; andv.whether the sentence imposed was lawful and whether Section 333 (2) of the Criminal Procedure Code was complied with. 25.On the issue as to whether the Appellant’s right to legal representation under Article 50(2)(g) and (h) of the Constitution was violated, the Appellant contended that the trial court failed to inform him of his right to legal representation and to provide him with State-funded counsel despite the seriousness of the offence and the severe sentence attached thereto, which omission occasioned substantial injustice and rendered the proceedings unfair. 26.The record, however, reveals that before the plea was taken, the trial court informed the Appellant of his right to legal representation and the Appellant expressly elected to proceed without an advocate. Thereafter, throughout the proceedings, the Appellant actively participated in the trial by cross-examining prosecution witnesses and presenting his defence. There is nothing on record to suggest that he was unable to understand the proceedings or that he was handicapped in presenting his case. 26.Article 50(2)(g) of the Constitution guarantees an accused person the right to choose and be represented by an advocate and to be informed of that right promptly. It further guarantees the right to have an advocate assigned by the State at State expense where substantial injustice would otherwise result. The right to State-funded counsel is therefore not automatic, but it depends on the circumstances of each case and whether substantial injustice is likely to arise. 27.In the Supreme Court decision of Republic vs Karisa Chengo & 2 others, SCK Petition No. 5 of 2015 [2017] eKLR, the Court issued guidelines and the circumstances to be considered in determining whether substantial injustice has resulted from lack of legal representation; that whether substantial injustice has occurred is a matter for determination on a case-by-case basis. 28.The Supreme Court then went on to say:…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;” 29.In the case of Mohammed Abudullahi vs Republic [2019] eKLR, this Court stated:“Having perused the record, it is clear that from the onset up to the conclusion of the trial the appellant was not represented by counsel. There is no evidence of him requesting the court for legal representation. Maybe he did not feel prejudiced by lack of representation. Article 50(1) of the Constitution does not in our view make appointment of counsel for an accused person at State expense automatic. If that were so, then such advocates would be appointed even before plea to appear for an accused person regardless of whether an accused person was in need of free legal aid or not. It is imperative for an accused person who feels he needs free legal representation to place such an application before the trial court for consideration. When the matter went to the first appellate Court the appellant did not seek legal counsel either. The learned Judges who heard the first appeal do not appear to have held the view that the appellant needed legal representation.” 30.The High Court, upon re-evaluating the record, found that the Appellant had been informed of his right to counsel which he voluntarily waived. The court further found that the proceedings were not complex and that the Appellant actively participated in the trial without difficulty and concluded that no substantial injustice was occasioned to the Appellant and that his rights had not been violated. 31.Essentially therefore, while the offence of defilement is undoubtedly serious and attracts a severe sentence, the seriousness of the charge alone does not automatically entitle an accused person to State-funded legal representation. The decisive consideration is whether substantial injustice would result in the absence of counsel. So that, in the present case, notwithstanding that the Appellant had declined legal representation, the evidence on record demonstrated that he understood the proceedings, effectively cross-examined witnesses and presented his defence. Moreover, the issues arising in the trial were straightforward and did not involve technical or complex questions of law requiring mandatory legal representation. Accordingly, as were the courts below, we are satisfied that the Appellant was duly informed of his constitutional rights, that he voluntarily chose to proceed without counsel, and suffered no prejudice or substantial injustice during the trial. This ground of appeal therefore fails. 32.The next issue is whether the offence of defilement was proved beyond reasonable doubt. The ingredients of the offence are proof of the complainant’s age, penetration, and identification of the perpetrator. 33.As regards the complainant’s age, PW2 produced a birth certificate showing that she was born on 27th September 2003. The birth certificate confirmed that she was 17 years old as at the material time and, therefore, the evidence on age was not controverted, and was accepted by the two courts below. 34.On identification, the complainant’s evidence was that she knew the Appellant prior to the incident, and they had interacted over a period of time. This was therefore a case of recognition. The complainant consistently identified the Appellant as the person responsible for the pregnancy. And, as Madan, JA. in Anjononi and Others vs The Republic [1980] KLR; stated:“…………………This, however, was a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 35.Consequently, we find and hold that the appellant was properly and positively identified as the perpetrator. 36.On penetration, PW1 testified that she had sexual intercourse with the Appellant in August 2020. Her evidence was corroborated by PW4, the clinical officer who, examining c the complainant, confirmed that was pregnant and approximately eight months pregnant. The medical evidence produced through the P3 form, ultrasound report and clinic records sufficiently established penetration. 37.The Appellant however argued that the failure to conduct a DNA test rendered the conviction unsafe. It was his contention that without DNA evidence, there was nothing that linked him to the complainant’s pregnancy, which in turn meant that penetration was not proved. It is now settled law that DNA evidence is not mandatory in proving the offence of defilement where there is credible oral and medical evidence establishing the offence. 38.Section 36(1) of the Sexual Offences Act, provides that:“Notwithstanding the provisions of Section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence.” 39.Section 36(1) is couched in discretionary, rather than in mandatory terms. The above provision was a subject of discussion by this Court in the case of Robert Mutingi Mumbi vs. Republic, Criminal Appeal No. 52 of 2014 (Malindi) where this Court stated:Section 36 (1) of the Act empowers the court to direct a person charged with an offence under the Act to provide samples for tests, including for DNA testing to establish linkage between the accused person and the offence. Clearly that provision is not couched in mandatory terms.…DNA evidence is not the only evidence of which commission of a Sexual Offence may be proved.” 40.In the case of David Kahura Wangari vs Republic [2016] eKLR, this Court held that:“There is no requirement for the appellant to be taken for treatment to establish an act of defilement. DNA testing or forensic examination of a perpetrator of any offence is done in the course of investigations, but that is purely the choice of the investigating officers, and failure to do so particularly in this case did not affect the credibility of the evidence that was before the court.” 41.In the case of Aml vs Republic [2012] eKLR (Mombasa), this Court upheld the view that:“The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.” 42.This was further affirmed in the case of Kassim Ali vs Republic Cr. App. No. 84 of 2005 (Mombasa) where the court stated:“… [The] absence of medical examination 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.” 43.In the present case, penetration was proved by the complainant’s evidence which was cogent, consistent and corroborated by medical evidence. Therefore, the absence of DNA testing did not create any doubt in the prosecution case that penetration occurred. This ground is therefore without merit. 44.The Appellant also faulted the prosecution for failing to call additional witnesses, including AM, the complainant’s younger with whom she had gone to the farm to look for fish in the waters. The prosecution is not obligated to call every witness who may have knowledge of the case. What is required is sufficient evidence to establish the charge beyond reasonable doubt. In any case, Section 143 of the Evidence Act provides that:“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” 45.And in the case of Keter vs Republic [2007] 1 EA 135, it was held that:“The prosecution is not obliged to call a superfluity of witnesses but only such witnesses are sufficient to establish the charge beyond any reasonable doubt.” 46.In effect, the evidence tendered by the prosecution witnesses was sufficient and proved the offence to the required standard and no adverse inference can be said to have arisen from failure to call additional witnesses. Accordingly, this ground also fails. 47.As concerns the Appellant’s defence, both the trial court and the High Court considered and rejected the allegation that the case had been fabricated because of a debt dispute involving the complainant’s mother and the Appellant’s deceased brother. We agree with the findings of the two courts below that the defence was implausible and an afterthought. Furthermore, nothing in his defence amounted to an alibi capable of dislodging the prosecution’s case, and we find that the two courts below rightly rejected it. 48.Finally, on sentence, Section 8(4) of the Sexual Offences Act prescribes a sentence of not less than 15 years imprisonment for defilement of a child aged between sixteen and eighteen years. The complainant was aged 17 years when the offence was committed. The sentence imposed by the trial court was therefore in accordance with the law and proper. 49.On whether the period he spent in remand custody ought to be taken into account, Section 333(2) of the Criminal Procedure Code provides that any period spent in remand custody should be taken into account. The record does not show whether or not the Appellant spent time in remand custody. 50.Be that as it may, we order that, in the event that any time was spent by the Appellant in remand custody prior to his conviction and sentencing, that it be taken to constitute part of the sentence. 51.In sum, we uphold the appeal on conviction and sentence in its entirety, save to add that in terms of the sentence, that Section 333 of the Criminal Procedure Code to be complied with so that the time the appellant spent in remand custody prior to conviction be taken to constitute part of the sentence.It is so ordered. DATED AND DELIVERED AT MOMBASA THIS 10TH DAY OF JULY, 2026.A. K. MURGOR………………………………JUDGE OF APPEALDR. K. I. LAIBUTA C.Arb, FCIArb.………………………………JUDGE OF APPEALG.W. NGENYE-MACHARIA………………………………………………JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR