https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1490

Kazungu v Republic (Criminal Appeal E017 of 2024) [2026] KECA 1490 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1490 (KLR) Republic of Kenya In the Court of Appeal at Malindi Criminal Appeal E017 of 2024 AK Murgor, KI Laibuta & GW Ngenye-Macharia, JJA July 24, 2026 Between Bernard Rama Kazungu Appellant and Republic Respondent (Being an appeal from the Judgement of the High Court of Kenya at Garsen (S. M. Githinji, J.) delivered on 18th December 2022 in HC Criminal Appeal No. E008 of 2021 Criminal Appeal E008 of 2021 ) Judgment 1.In this second appeal, Bernard Rama Kazungu (the appellant) seeks to challenge the Judgment of the High Court of Kenya at Garsen delivered on 18th December 2022 by Githinji, J. in Criminal Appeal No. E008 of 2021. 2.The appellant was charged before the Senior Resident Magistrate’s Court at Lamu in Criminal Case No. 22 of 2018 for the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (the Act). The particulars of the offence were that, on the 4th day of December 2018 at around 1600Hours at [Particulars withheld] Village in Lamu West sub- County within Lamu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of MWW, a child aged 15 years. 3.The appellant was also charged with an alternative count of committing an indecent act with a child contrary to Section 11(1) of the Act in that, on the same date and at the same time, he intentionally and unlawfully touched the vagina of MWW, a child of 15 years, with his penis. 4.The prosecution’s case was that, the complainant, PW1, was on the material day, 4th December 2018, at home. Her friend, MN (PW2), also a minor aged 14 years, visited her. They both asked for permission from her (PW1’s) mother, ZWM (PW3) to go and charge her mobile phone at the appellant’s house in a neighbour’s home where he worked as a farm herd (shamba boy). The permission was granted and they took the phone to charge. At around 11 a.m., they went back to fetch the phone, but the appellant told them that it was still charging and he permitted PW1 and PW2 to get into his house to watch television as they waited for the phone to charge. 5.After some time, PW2 left PW1 in the appellant’s house, stating that she wanted to go to their home to take a shower. The appellant took that opportunity to profess his love for PW1. According to PW1, the appellant started forcing his way with her, pulled down her shorts and, in the process, tore her zip. During the struggle, she picked up a piece of wood and hit the appellant on his face. The appellant then fought PW1 and used a ‘lesso’ to silence her by stuffing it in her mouth. He overpowered PW1 and managed to insert his penis into her vagina forcefully. 6.PW1 managed to scream, which attracted PW2 to the scene. On arrival, PW2 broke into the appellant’s house and rushed straight into the bedroom. PW2 found the appellant on top of the complainant and, with this distraction, PW1 grabbed a ‘lesso’, wrapped herself with it and managed to escape. PW1 and PW2 took refuge and sought assistance from a neighbour, one KKK (PW4), who went with them to the appellant’s house to retrieve the complainant’s phone. The appellant refused to admit liability but, after PW1 pointed out the injuries she had inflicted on him during the struggle, he admitted and was arrested. PW1 was taken to hospital for treatment. The wooden stick that PW1 used to hit the appellant alongside her pink shorts with a torn zip were recovered from the scene. PW1 identified them in court. 7.PW3 confirmed that she knew the appellant as their neighbour’s shamba boy. She also stated that PW1 was born in the year 2003; and that the appellant was eventually arrested and taken to Mokowe Police Station and, later, the complainant was taken to hospital for examination. PW6, Dr. Ahmed Hassan of King Fahad Hospital examined and prepared the complainant’s medical reports on the material day at [Particulars withheld] Dispensary. His observation was that there was oozing vaginal discharge, the vaginal wall was abnormally red, the urinalysis showed very high presence of proteins, high PVS cells on the 2nd day after penetration, motile bacteria, yeast cells and a fungal infection. Laboratory tests were negative for HIV and pregnancy. He produced the medical treatment notes as PEXH 2. 8.PW6 also examined the appellant and noted that he had a whitish discharge in the penile urethra consistent with a prior ejaculation and pus cells in his urine specimen. In cross- examination, he stated that the pus cells were indicative of a urinary tract infection. He produced the appellant’s medical tests as PEXH 2 B. 9.The case was investigated by PW5, PC Bonaya Mohamed. In addition to recording witness statements, he also escorted PW1 to hospital for examination, visited the scene and recovered a wooden stick and PW1’s pink shorts, which had a damaged zip. He produced them in evidence as PEXH4 and PEXH5 respectively. 10.After the close of the prosecution case, the trial court ruled that a prima facie case had been established to warrant putting the appellant on his defence. The appellant opted to remain silent and await the court’s decision. He did not call any witnesses. 11.The learned Magistrate (Hon. Sitati – PM) held that the evidence presented proved the prosecution’s case beyond reasonable doubt. To him, all the ingredients of the main charge of defilement were proved, namely the age of the complainant as a minor, penetration and positive identification of the appellant as the perpetrator. Not only did the trial court convict the appellant of defilement, but also termed him as a dangerous sexual offender under Section 39(1) (c) of the Act for the reason of the violence he inflicted on the minor complainant during the defilement. He was sentenced to 20 years imprisonment. A further order was made that, upon his release, he was to be monitored by the Director of Criminal Investigations (DCI) for 5 years. 12.On first appeal to the High Court, the appellant faulted the decision of the trial court on three grounds: that the trial court did not weigh the gaps and contradictions in the prosecution’s case; that the case against him was not proved beyond reasonable doubt; and that the alleged fungal infection was not linked to penetration. 13.The learned Judge (Githinji, J.) concurred with the findings of the trial Court that the evidence adduced by the prosecution against the appellant was overwhelming. He held that the appellant was well-known to the complainant, even before the date of the offence; that the appellant was known as a ‘shamba boy’ working in a neighbouring home; that the complainant and her mother would take their phones to charge in the appellant’s house; and that the fact that the complainant’s pant and the stick she used to attack the appellant in her defence were recovered from the scene, proved that she was a truthful witness. This evidence, it was found, was not challenged by the appellant, who opted to remain silent. The learned Judge observed that, even if the appellant alleged that the complainant was his girlfriend, and that they had had sex several times, it did not change the legal effect of his action, given that the complainant was a minor. 14.As to the age of the complainant, it was held that the Birth Certificate indicated that she was born on 21st March 2003 and, the incident having taken place on 4th December 2018, placed her age at 15 years as at the time of the offence. As to penetration, the learned Judge held that it was proved by way of medical examination. 15.In the end, the learned Judge upheld both the conviction and sentence and, accordingly, the appeal was dismissed in its entirety. 16.Further dissatisfied, the appellant has proffered the instant appeal, which is hinged on the following grounds that: he was not provided with an interpreter, and that the language used by the complainant was not indicated in the Coram as dictated in the provisions of Article 50(2) (m) of the Constitution and Section 231(3) of the Criminal Procedure Code; the voire dire examination on PW1 and PW2 was not properly conducted contrary to Section 19(1) of the Oaths and Statutory Declaration Act, Cap. 15, and hence the trial was a nullity; the medical evidence was insufficient to support the prosecution’s case; he was not provided with an opportunity to mitigate or give his defense; and that the time spent in custody prior to sentencing was not considered, contrary to Section 333(2) of the Criminal Procedure Code. 17.We heard this appeal on 2nd April 2026. The appellant appeared in person while learned Prosecution Counsel Ms. Mutua appeared for the respondent. Both parties filed their respective written submissions which they wholly relied upon. 18.In his undated submissions, the appellant contended that the language that was used in court on the date the complainant testified was not indicated on the record; that this prejudiced him since an interpreter was not provided so as to enable him understand the language that was used in court in contravention of Section 231(3) (sic) of the Criminal Procedure Code); that further, voire dire examination of both PW1 and PW2 was not properly conducted in accordance with Section 19(1) of the Oaths and Statutory Declarations Act; and that courts have an obligation to satisfy themselves that a child of tender years has understood the solemnity of the oath, and that it should record the terms on which it was so persuaded. The appellant relied on the decision of this Court in John Nathan vs. Republic (2017) KECA 793 (KLR); and of the High Court in RMM vs. Republic (2019) KEHC 11575 (KLR) for the submission that, a proper voire dire examination enables a court to determine whether the child understands the nature of an oath, or if the child in the opinion of the court does not understand the nature of an oath, whether the child is possessed of sufficient intelligence to justify the reception of the evidence, and that it (the child) understands the duty of speaking the truth. 19.The appellant submitted that the medical evidence did not support the prosecution’s case which was marred with contradictions; that PW4 testified on cross examination that he did not see the appellant rape the complainant, hence his statement did not corroborate the charge of defilement; that the medical report confirmed that the complainant was not a virgin before the alleged incident and, in this regard, he relied on the decision of this Court in JWA vs. Republic (2014) eKLR where it was held that, where a medical report does not support allegations of defilement, the prosecution’s case is weakened. 20.The appellant further submitted that he was not accorded an opportunity to give his defence contrary to Article 50(2) (d) of the Constitution and Section 211(1) of the Criminal Procedure Code; that he also did not mitigate after he was convicted, yet mitigation is a basic right to a fair trial; and that, in this regard, the trial court failed in its duty of informing him of the rights of an accused person under the Constitution attendant to a fair trial. 21.The respondent filed written submission dated 25th November 2025. It was submitted that all the elements of the offence of defilement were proved, namely age of the minor, penetration and proper identification of the perpetrator. Reference was made to the decision of the High Court (Siaya) in GOO vs. Republic (Criminal Appeal 37 of 2015) [2016] KEHC 800(2016) (KLR) (8December 2016) (Judgment), which laid down the three ingredients of the offence of defilement. 22.On the issue of age, it was submitted that this was conclusively determined by way of a Birth Certificate; and that penetration was proved by way of medical evidence. As to the identity of the perpetrator, reliance was placed on the decision of this Court in Reuben Taabu Anjononi & 2 Others vs. Republic (1980) KECA 23 (KLR) for the proposition that recognition of an assailant is more satisfactory and more reassuring than identification of a stranger; that PW1, PW2 and PW4 all knew the appellant as an employee of their neighbour; and that, in any event, the appellant was caught in the act by PW2. 23.The respondent posited that there was no indication that the appellant was out to be fixed by any of the prosecution witnesses since this was not an issue during cross- examination of its witnesses; and that this submission was tantamount to a fishing expedition, and we were accordingly urged to dismiss it. 24.On failure to consider the appellant’s defence, it was submitted that the appellant was placed on his defence pursuant to Section 211 of the Criminal Procedure Code, but that he elected to keep quiet and wait for the decision of the court; and that, by failing to controvert or dislodged the evidence against him by way of evidence, it followed that there was no defence for the two courts below to consider. 25.In conclusion, the respondent prayed that we uphold the decisions of the two courts below and, consequently, dismiss the appeal. 26.By dint of Section 362(1)(a) of the Criminal Procedure Code, on a second appeal such as the one before us, this Court concerns itself with matters of law only, the issues of fact having been settled in the two courts below. This Court explained its approach in a second appeal as follows in Dzombo Mataza vs. Republic (2014) KECA 831 (KLR):“As already stated, this is but a second appeal. Under the law, we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court...By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 27.We have carefully considered the record of appeal, the respective written submissions, the authorities cited and the law. The issues that fall for our determination are: whether the prosecution discharged its burden of proof in establishing the offence of defilement; whether the appellant was given an opportunity to proffer a defence; whether the appellant was given an opportunity to mitigate; and whether the time spent in remand custody prior to sentencing was considered to constitute part of the sentence meted out. 28.The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section (3) of the Act, which provides: 1.A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (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. 29.Just like any other criminal case, the standard of proof in sexual offences is beyond reasonable doubt. The ingredients which the prosecution must prove in an offence of defilement are: proof of the age of the victim; proof of penetration; and positive identification of the perpetrator. 30.The issue of the complainant’s age, being a matter of fact, was settled by the two courts below. However, it suffices to underscore that proof of the age of the victim is paramount in that, the sentence meted out against a person convicted for the offence of defilement under Section 8 of the Act is determined by the age of the victim minor. This was underpinned by this Court in Mwachongo vs. Republic (2016) KECA 521 (KLR) where it was held that:“The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient in the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of the victim.” 31.It also suffices to underscore that age can be proved in many ways, including through age assessment, the testimonies of the minor or the minor’s guardian(s), birth certificate and by common sense as was held in Francis Omuromi vs. Uganda Court of Appeal Criminal Appeal No. 2 of 2000. In this instance, the complainant’s age was proved by way of a Birth Certificate, which was adduced in evidence as PEXH1. We have had the benefit of scrutinizing the Birth Certificate which indicates that the complainant was born on 21st March 2003. The alleged offence took place on 4th December 2018. Hence, the complainant was 15 years old as at the time of the commission of the offence. 32.In the same vein, the issue of penetration was also ably settled by the concurrent findings of the two courts below. The complainant gave an elaborate testimony of the struggle she endured with the appellant when she attempted to escape, but the appellant succeeded in defiling her. When PW2 responded to the complainant’s screams, she testified that she went to the bedroom and found the appellant in the act. The complainant’s medical examination report confirmed that she had a vaginal discharge, pus cells were seen, and there was presence of motile bacteria. The appellant was also taken through a medical examination on the same date, and the doctor noted that he had a whitish discharge in the penis, which was consistent with ejaculation; and that the urinalysis test showed pus cells, indicative of an infection. 33.The English Oxford Dictionary defines the word ‘motile’ as “exhibiting, or capable of, spontaneous movement.” Motile bacteria are also defined as micro-organisms capable of moving independently by expending metabolic energy. (See: https//libretexts.org and Brainly.in+4). Thus, motile bacteria are bacteria that possess the ability to move independently and spontaneously using their own metabolic energy. 34.PW6, the doctor who examined PW1, in his evidence-in-chief explained motile bacterial to be bacterial deposited within a period of four (4) to six (6) hours and, in this case, after the sexual encounter. The appellant had evidence of ejaculation, and was also found to have a urinary infection. The co-relation of this evidence could not have been a mistake or coincidental. The inevitable conclusion that could possibly be arrived at is that the appellant was the person responsible for transmission of the motile bacteria found in PW1's vagina. He had had sexual intercourse with her within a short duration before their examination. The examination reports on both of them showed presence of infection and, as it were, the bacteria in PW1 were yet to settle-they were motile. This solidifies the fact that, not only did penetration occur, but that the person responsible for the penetration was the appellant. Further, PW1 had bruises on her thighs and her hymen was missing, all a testament to penetration; the person responsible being no other than the appellant. 35.As to identification, the appellant was identified by way of recognition, being a person who was well-known to the complainant. Furthermore, he was caught red-handed by PW2, the complainant’s friend, who had just left the appellant's house only to be attracted by the complainant’s screams in distress. Further, when the minors escaped to seek help from PW4, they led him back to the appellant’s home where the complainant’s pink shorts were found, and which were adduced in evidence. In Reuben Taabu Anjononi (supra), this Court expressed itself as follows while distinguishing the difference between recognition and identification:“This was, however, 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.’’ 36.There is no second guessing that the appellant was well known to the complainant. He was employed in a neighbour’s farm, and it is in that house that the complainant used to take her phone to charge. And, having been caught in the act by PW2, left no doubt as to who was responsible for the heinous offence. Therefore, there was no mistaken identity as to who defiled the complainant. 37.The appellant submitted that his right to a fair trial was violated against the grain of Article 50(2) (m) of the Constitution and Section 231(3) of the Criminal Procedure Code for failure to indicate the language used when the complainant testified. The appellant has also faulted the fact that proper voire dire examinations of PW1 and PW2 were not conducted in accordance with Section 9 of the Oaths and Statutory Declarations Act. We hasten to point out that these are issues which have been raised for the first time in this appeal. We add that Section 231(3) of the Criminal Procedure Code does not exist as it has since been repealed. The correct provisions which we believe the appellant intended to rely on are Sections 197 and 198 of the Code which outlines the manner of recording evidence before a Magistrate. 38.We are under no obligation to determine an issue of law raised for the first time on appeal as was held by this Court in Alfayo Gombe Okello vs. Republic (2010) KECA (KLR) which case law underscored the importance of raising all issues in contention at the earliest opportunity at the trial by observing that:“…… the issue was not raised since the trial began and was only raised for the first time in this second appeal. The appellant gave no reason for failure to do so earlier. We must therefore find, and we now do so, that it was not raised at the earliest opportunity although it could and should have.” 39.Further, this Court in HKN vs. Republic (2025) KECA 35 (KLR) authoritatively referred to the decision of this Court in Kenya Commercial Bank Ltd vs. James Osede (1982) KECA 35 (KLR), which cautioned itself on raising matters for the first time on appeal as follows:“It is not permissible for matters and issues not raised at the trial court to be raised for the first time on appeal. In this instance, permitting an issue to be raised for the first time in reply to the appellant is improper, as the appellant had no fair notice of this issue. Such an issue should not be decided on appeal.” 40.The appellant also complains that he was not accorded an opportunity to tender a defence. Nothing can be further from the truth. After the trial court ruled that the prosecution had established a prima facie case to warrant the appellant being put on his defence, he opted to keep quiet and wait for the decision of the court. Indeed, the learned trial Magistrate pronounced herself thus:“Court: RulingPrima facie case made out. Accused put on his defence. S. 211 CPC explained. Accused put to his options, charges read out.Accused: I opt for silence. No witness to call. That is all.” 41.Of paramount importance to note is that Section 211 of the Criminal Procedure Code gives an accused person the option to remain silent when called upon to give his defence. And, even when he opts for silence, he still can call witnesses. The appellant elected for silence, and also chose not call witnesses to controvert the prosecution’s case. It then follows that crying foul at this stage too late in the day, cannot bail him out. In view thereof, we find and hold that the ground of appeal that the appellant was not given an opportunity to tender a defence or that his defence was not considered is not based on the evidence on record, is baseless and we accordingly dismiss it. 42.On the issue of sentence, the appellant’s complaint is that he was not given an opportunity to mitigate. To the contrary, the trial court accorded him an opportunity to mitigate, and he said thus:“I have no father and mother. I have no one to save me. This case is framed up. I want the case to be looked at closely.” 43.The learned Magistrate then noted that the appellant continued to deny committing the offence, and that he was not remorseful. In meting out a sentence of 20 years imprisonment, the court observed that ‘he is a dangerous sex offender on account of the violence and threats in the incident.’ It is therefore not factual that the appellant was not given an opportunity to mitigate. He ably did so, and the trial Magistrate considered the mitigation he offered before he was sentenced. Thus, his complaint in this regard has no basis. 44.The complainant’s other complaint was that the period spent in prison prior to sentencing was not considered as provided under Section 333 (2) of the Criminal Procedure Code. The appellant was arraigned in court on 4th December 2018. He applied for bond and a ruling in this respect was to be delivered on 21st December 2018. However, the record is silent as to whether any such ruling was ever rendered. The only presumption we can make in such circumstances is that the appellant was in custody throughout the entire duration of the trial. The appeal then succeeds only to the extent that the appellant’s sentence will run from 4th December 2018. 45.Having considered the totality of the evidence presented before the trial court and the first appellate court, we find no grounds on which we can fault the concurrent findings of the two courts below that the prosecution proved the offence of defilement beyond reasonable doubt. We find that the conviction and sentence were sound. The upshot of our findings is that the appeal is devoid of merit and is hereby dismissed, save that the sentence shall run from 6th December 2018. DATED AND DELIVERED AT MOMBASA THIS 24TH DAY OF JULY, 2026.A. K. MURGOR…………………............…..JUDGE OF APPEALDR. K. I. LAIBUTA CArb, FCIArb.…………………............…..JUDGE OF APPEALG. W. NGENYE-MACHARIA…………………............…..JUDGE OF APPEALI certify that this is the true copy of the originalsignedDEPUTY REGISTRAR