https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9794

Andambwa alias Boniface Andabwa v Republic (Criminal Appeal E006 of 2025) [2026] KEHC 9794 (KLR) (6 July 2026) (Judgment) Neutral citation: [2026] KEHC 9794 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Appeal E006 of 2025 S Mbungi, J July 6, 2026 Between Bonface Andambwa / Boniface Andabwa Appellant and Republic Respondent (Appeal against the Decision in Kakamega CRC No. E094 of 2022 delivered Hon V.O Amboko (SRM) on 19th December, 2024) Judgment 1.This is an appeal against both conviction and sentence of fifteen (15) years imprisonment arising from the decision of the Senior Resident Magistrate’s Court at Kakamega in Criminal Case No. E094 of 2022 delivered on 19th December 2024 in which the appellant 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 and an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No 3 of 2006. 2.The Appellant was convicted of and sentenced accordingly. Being aggrieved, he lodged the present appeal challenging both conviction and sentence. Grounds of Appeal 3.The Appellant relies on, inter alia, the following grounds:a.That the trial court erred in law and fact in finding that penetration was proved beyond reasonable doubt.b.That the prosecution case was riddled with contradictions and evidential gaps.c.That the age of the complainant was not proved to the required standard.d.That the trial court failed to consider that DNA evidence was not produced.e.That the trial court failed to comply with Section 200 of the Criminal Procedure Code.f.That the Appellant was not informed of his right to legal representation. 4.This being a first appeal, the court is under a duty to re-evaluate and re-analyse the entire evidence and draw its own independent conclusions, bearing in mind that it did not hear or see the witnesses testify. 5.This principle was stated in Okeno v Republic [1972] EA 32 where the Court held that an appellate court must reconsider the evidence and make its own findings. Issues For Determination 6.The court identifies the following issues:i.Whether penetration and the offence were proved beyond reasonable doubt.ii.Whether failure to produce DNA evidence was fatal to the prosecution case.iii.Whether the trial court complied with Section 200 of the Criminal Procedure Code.iv.Whether failure to provide legal representation violated the Appellant’s rights.v.Whether the conviction and sentence should stand. Analysis And Determination Whether penetration and the offence were proved beyond reasonable doubt. 7.penetration is a key ingredient that must be proved beyond reasonable doubt.Under Section 2 of the Sexual Offences Act, penetration means the partial or complete insertion of genital organs. 8.The Court in George Owino Odhiambo v Republic [2005] eKLR held that penetration can be proved by the testimony of the complainant and medical evidence. 9.Similarly, in Bukenya v Uganda [1972] EA 549, it was held that where evidence is insufficient or inconsistent, the court must carefully examine whether it meets the threshold of proof beyond reasonable doubt. 10.In the present case, the Appellant argues that penetration was not conclusively proved and that contradictions existed in the prosecution evidence. However, PW3 Douglas Maoga a clinical officer attached to Shibwe County Hospital stated that he examined the victim and confirmed that her hymen was broken and she was pregnant. 11.It is a well-established principle that the evidence of a victim of a sexual offence, if credible and consistent, can sustain a conviction without corroboration, as stated in George v Republic [2009] eKLR. 12.Having re-evaluated the record, this court finds that the trial court considered the complainant’s testimony alongside medical evidence and properly concluded that penetration occurred. Whether failure to produce DNA evidence was fatal to the prosecution case. 13.The Appellant strongly relies on absence of DNA evidence; however, Kenyan jurisprudence is clear that DNA evidence is not mandatory in sexual offence cases. 14.In Republic v Timothy Mwendwa Gichuru & 2 Others [2017] eKLR, the court held that DNA evidence is useful but not mandatory where other evidence proves the offence beyond reasonable doubt. 15.In Aminga v Republic [2024] KECA 480 (KLR), the Court of Appeal reiterated that DNA is not a requirement unless it is necessary to resolve specific identity disputes. 16.Further, in Pius Arap Maina v Republic [2013] eKLR, the Court emphasized that proof beyond reasonable doubt does not require scientific evidence where credible testimony exists. 17.In the present case, there is no indication that DNA evidence was central or necessary to establish identity or penetration. The absence of DNA evidence therefore does not vitiate the conviction. Whether the trial court complied with Section 200 of the Criminal Procedure Code. 18.Section 200 CPC provides that where a succeeding magistrate takes over a part-heard case, the accused must be informed of the right to recall witnesses or have the case heard afresh. 19.In Ndegwa v Republic [1985] KLR 534, the Court held that this provision must be applied cautiously to protect the rights of an accused person. 20.Similarly, in Richard Charo Mole v Republic [2010] eKLR, the court emphasized that failure to comply with Section 200 may occasion a miscarriage of justice if not properly explained. 21.In the present case, the record indicates that the succeeding magistrate informed the Appellant of the situation and proceeded after considering the circumstances, including availability of witnesses. 22.Importantly, the Appellant participated in the proceedings and cross-examined witnesses. 23.This court is therefore not satisfied that there was fatal non-compliance with Section 200 CPC. Whether failure to provide legal representation violated the Appellant’s rights. 24.The Appellant contends that he was not provided legal representation, Article 50(2)(h) of the Constitution guarantees legal representation at state expense where substantial injustice would otherwise occur. 25.In David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal held that failure to provide counsel does not automatically invalidate proceedings unless substantial injustice is demonstrated. 26.In this case the Appellant actively participated in the trial, he cross-examined witnesses and presented his defence.While legal representation is desirable, the Appellant has not demonstrated that absence of counsel caused substantial injustice warranting reversal of conviction. 27.The Appellant also raised issues regarding proof of age and contradictions in the prosecution case. However, courts have held that minor contradictions do not necessarily weaken a prosecution case unless they go to the root of the charge. 28.In Njuki v Republic [1990] KLR 334, it was held that only material contradictions are fatal. 29.Having reviewed the record, this court finds;i.No material contradictions sufficient to displace the conviction,ii.The prosecution proved the offence beyond reasonable doubt,iii.Penetration was sufficiently proved,iv.DNA evidence was not mandatory in the circumstances,v.Section 200 CPC was not violated in a manner prejudicial to the Appellant and no substantial injustice arose from lack of legal representation. 30.This court finds no merit in the appeal against conviction, the sentence of 15 years imprisonment is lawful, proportionate, and within statutory limits. 31.Accordingly;a.The appeal against conviction is dismissed in its entirety.b.The conviction by the trial court is upheld.c.The sentence of 15 years imprisonment is affirmed.d.Right of appeal within the prescribed period is explained.e.Right of Appeal 14 days explained. DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 6TH DAY OF JULY, 2026.S.MBUNGIJUDGEIn the presence of:-CA: Velma/Zilda.Appellant present online.