https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7525

Chomba v Republic (Criminal Appeal E83 of 2024) [2026] KEHC 7525 (KLR) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7525 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E83 of 2024 JM Chigiti, J June 2, 2026 Between Chris Mungai Chomba Appellant and Republic Respondent Judgment 1.The Appellant was charged on 8th July 2020 with the offence of Defilement contrary to section 8 (1) (2) of the Sexual Offences Act with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 2.The Prosecution called four witnesses a while the Appellant gave a sworn statement. 3.The appellant was subsequently convicted and sentenced to life imprisonment in the Judgement that was delivered on 19th November 2024. 4.The Appellant, dissatisfied with the conviction and the sentence appealed to this court by way of the Petition of Appeal dated 29th November 2024 amended on 5th December 2025. He seeks the following orders:a.That this Appeal be Allowed.b.That the conviction be quashed and the sentence be set aside.c.That the Appellant be acquitted and consequently set at liberty. 5.The appellant advanced his argument firstly by addressing the issue whether the trial court ignored clear evidence of a well- choreographed setup. 6.He believes that since the complainant's mother had a grudge with the appellant since he was her landlord and that she had rent arrears and that he locked up her house creating a real motivation to setup the Appellant. 7.He maintained this position in his statement and in court in the hope that the truth would finally prevail. 8.According to him, attempts were made to extort money from the Appellant but he remained firm, in the hope that the truth would set him free. 9.It is his case that he was unable to bring out the foregoing during cross-examination since he was not represented all through even during his sworn defence. 10.He is convinced that the complainant's mother was on a revenge mission and that the report was made to further that cause. 11.He submits that defilement cases evoke emotions and it is extremely unfortunate that they are rampantly being used to further revenge missions. 12.He places reliance in the case of Daniel Wanyeki Vs. Director of Public Prosecution Kiambu High Court Constitutional Petition Number 8 of 2020 (Unreported) where the Petitioner's daughter admitted to having framed his father after seventeen years of sentence. 13.He further submits that the Complainant's mother has already admitted to having framed the Appellant, only that at the time of filing submissions, she has not agreed to put the same in writing, out of fear that she will be arrested. 14.He submits that it is unsafe for the court to convict the Appellant whereas there was clear evidence showing very good probability of framing of the Appellant by the Complainant's mother. 15.On another front he argues he had no legal representation during the trial culminating in a violation of his right to fair trial. 16.The record shows that on 17th March 2022, the Appellant sought for an adjournment to procure the services of a lawyer but when the court did not attempt to find out whether he was able to procure legal services or not. 17.He argues that owing to the nature of the offence, the court ought to have provide a very good opportunity to the Appellant to procure legal representation and if he was unable to, ensure that an Advocate was availed at the state's expense. 18.Reliance is placed in the Court of Appeal in Karisa Chengo & 2 others v Republic [2015] KECA 756 (KLR) where the court states as follows:“The right to legal representation is universally acknowledged as a fundamental right. For instance Article 14(3)(d) of the International Covenant on Civil and Political Rights ("ICCPR") obligates state parties to assign legal assistance in any case where the interests of justice so require and without payment if the accused person does not have the means to pay for it. 19.Similarly Article 7(1) (c) of the African Charter on Human and Peoples Rights ("ACHPR") provides that:“Every individual shall have the right to have his case heard. This comprises... the right to defence, including the right to be defended by counsel of his choice..." 20.The importance of legal representation was recognized by the African Commission in Advocates Sans Frontiers on behalf of Bwampanye) v Burundi, African Commission on Human Rights, Comm. No. 213/99 (2000) when it observed that:-“...Legal assistance is a fundamental element of the right to fair trial. More so where the interests of justice demand it. It holds the view that in the case under consideration, considering the gravity of the allegations brought against the accused and the nature of the penalty he faced, it was in the interest of justice for him to have the benefit of the assistance of a lawyer at each stage of the case..." 21.In this country according to him, the right to legal representation at the State's expense is captured in Article 50 of the Constitution. 22.He submits that the Constitution has expressly provided that the right to a fair trial includes the right of an accused person: to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, a n d to be informed of this right promptly. This provision is therefore in accordance with the state's obligation under Articles 14(3) (d) of ICPR and Article 7(1) (c) of the ACHPR, and its implementation will bring the State in compliance with its international and regional obligations. 23.He further submits that the record shows that the Appellant did not conduct any meaningful cross examination, despite him having a very good defence. It is clear that the Appellant could not sufficiently defend himself without legal representation. 24.The lack of legal representation, noting the gravity of the matter, and the apparent incapability to represent himself was a violation of fair trial of the Appellant. 25.The Appellant submits that he was able to sufficiently cast doubts in the Prosecution's case. It is his case and in particular the doctor's testimony did not in any way connect the Appellant to the alleged defilement. 26.The mere fact that there was evidence of some sort of vaginal penetration, without the establishment of a clear connection of an alleged perpetrator to the penetration must never be the basis of conviction. 27.The testimony of doctors in defilement cases is at times useless because sometimes victims may be sexually active or evil parents or guardians insert fingers in the vaginas just before or some days before reporting. 28.While cross examining the Complainant's mother he tried to bring out the fact of the mother inserting fingers into the victim's vagina. 29.He raised contradictions which he believes are material and grave contradictions that show wide gaps in the narrative that was told by the complainant and her mother. 30.It is his case that material contradiction must always be resolved in favour of the Appellant, especially where the Appellant's firm defence was that he was framed. 31.The prosecution fell short of proving the charge to the standards of beyond reasonable doubts. 32.On the issue of the sentence was excessively harsh and unlawful in the circumstances he argues that he is alive to the nature of the sentences under the subject Section 8 of the Sexual Offences Act and the jurisprudence stating that the discretion of court must never be taken away by parliament and that sentence is a preserve of the court. 33.In Muruatetu Il, while making a finding that the Muruatetu decision was only applicable to murder, the Supreme Court did not make an express finding that court's discretion is taken away by the very nature of the sentences of the Sexual Offences Act. 34.He submits that this was a case where the trial court ought to have exercised discretion in favour of the Appellant and granted him a lesser sentence. 35.He submits that the trial court meted out an excessive and harsh sentence and urge the court to interfere with the sentence. 36.This is a matter where the peculiar circumstances ought to have led the court to ensure the Appellant had legal representation and that the lack of it is a violation of the Appellant's right to fair hearing. The Respondents case: 37.On its part the Respondent filed submissions opposing the appeal. 38.It submits that on 19/11/2024, the appellant herein was found guilty and convicted of the offence of Defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. 39.He was sentenced to life imprisonment. The prosecution proved its case beyond reasonable doubt. For the charges of defilement to be sustained, three ingredients needed to be proved. 40.It is submitted that the prosecution proved the three ingredients being the age of the complainant, penetration and Identification of the perpetrator 41.On the age of the complainant, the testimony of PW1 and PW clearly show her age. 42.Further, the prosecution produced a birth certificate (P exhibit 1) showing she was born on 27/05/2011, making her 9 years at the time of the defilement. 43.On the proof of penetration, PW1 was categorical in her evidence that when they were home during covid, she had gone to get shoes that were drying at the construction site, where she met the appellant who lay her down, tied her mouth with a sweater, removed her trouser and panties, removed his trouser and inserted his private part into her private part. He lay on top of her and afterwards threatened her. This is the same story she gave to her mother, PW2 and at the police station. Further, the evidence of PW4, the clinical officer clearly showed that the complainant was defiled. Her hymen was broken, with healing lacerations on the labia minora. This corroborated her evidence. 44.On identification of the perpetrator, PW1 was categorical in her evidence that she knew the appellant well as he was their landlord. 45.The prosecution therefore proved its case beyond reasonable doubt and it is on the basis of this that the appellant was convicted. 46.The appellant, in his submissions, argues that the evidence of the complainant was full of contradictions. It submits that on the contrary, the account of events given by the complainant is coherent, and credible. She explained in depth how she met the accused, how she knew him, how he defiled her. 47.It submits that there are no major contradictions that affect the credibility of the complainant's testimony. In any event, any minor contradictions do not affect the main substance of the prosecutions' case that PW1 was defiled and the culprit was identified as the appellant. 48.In Erick Onyango Ondeng' -v- Republic [2014] eKLR, The Court of appeal held;“Nor do we think much turns on the alleged contradictions on the time of commission of the offence. The trial court, after hearing all the evidence accepted that the offence was committed at "about 7 pm" in accordance with the evidence of PW2. As noted by the Uganda Court of Appeal in Twehangane Alfred Vs Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 it is not every contradiction that warrants rejection of evidence. As the court put it: "With regard to contradictions in the prosecution's case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution's case." 49.Further, any minor inconsistency is not fatal to the prosecution case as it is trifling. The Respondent relies on the decision in Ndolo Musyoki v Republic [2022] eKLR that "As regards inconsistencies in the evidence of PW1 and PW2, while it is true that there were minor discrepancies in the evidence of the two witnesses, such min or inconsistencies in the evidence of the witnesses were not fatal to the prosecution case. Whether or not discrepancies in the evidence of witnesses have the effect of discrediting that evidence would depend upon the nature of the discrepancies, that is to say, whether or not the discrepancies are trifling. See Law of Evidence (10th Ed) Vol. 1 at 46." 50.The Appellant argued that the court disregarded the defence tendered, that PW1 framed up the appellant due to an existing grudge. The evidence PW1 testified that first she told her friends. She feared her mother would punish her if she knew. If it had been a matter of a frame up, she would have made the initial report as she was seeking police assistance when the accused locked her house. In any event, there was clear medical evidence corroborating the evidence of PW1. 51.The court indeed duly weighed the defence against the evidence tendered and found that the prosecution case was proved without doubt. 52.The appellant has taken issue at length with the fact that the matter proceeded without an advocate representing him. From the record the matter was adjourned on 17/03/2022, and the court specifically gave the accused ample time to have legal representation of his choice. 53.When the matter proceeded for the first time on 14/08/2023, the court noted the appellant had not procured an advocate. The appellant went ahead to thoroughly cross-examine the witnesses presented. This was repeated on all subsequent hearing dates, and at no time did the appellant raise the issue of seeking to procure legal counsel again. 54.The right to legal representation under Article 50(2)(g) of the Constitution provides the appellant with the right to "choose, and be represented by, a n advocate, and to be informed of this right promptly". The appellant knew this right, and indeed sought time to get an advocate. However, he never did so, and on the date set for hearing the accused opted to proceed in person. The right ought to be balanced with Article 50(2)(g) of the Constitution which gives him the right to "have the trial begin and conclude without unreasonable delay." the court to find that the trial court did not in any way infringe the appellant's right to legal representation. 55.For clarity, the right is not a blanket obligation on the state to provide legal representation. He is aware that with budgetary constraints, the judiciary is only able to avail state funded representation only for murder cases and for minors in conflict with the law. 56.The Court appropriately applied the law and sentencing guidelines when sentencing the appellant under The Sexual Offences, Section 8(2) which prescribes life imprisonment. The accused was given an opportunity to mitigate and just sought leniency. The sentence is both legal and commensurate to the offence committed. Analysis and Determination; The issue for determination is whether the appeal has merit. 57.Section 8 of the Sexual Offences Act provides as follows:-(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(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.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if -it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(a) the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’ s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.” 58.It is trite that for an accused to be convicted of the offence of defilement, certain ingredients must be proved. 59.The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. 60.In the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, it was stated that:-“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 61.In Kaingu Elias Kasomo v Republic the Court of Appeal in Malindi Criminal Appeal No. 504 of 2010 stated:“Age of the victim of the 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.” 62.In the instant appeal, in order for the appellant to succeed, the Appellant must demonstrate that the court fell into error leading to an illegal Conviction and sentence. 63.This court is guided by In Kiilu & Another v Republic [2005]1 KLR 174, the Court of Appeal stated thus:“1.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate Court must itself weigh conflicting evidence and draw its own conclusions.2.It is not the function of a first appellate Court merely to scrutinize the evidence to see if there was some evidence to support the lower Court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial Court has had the advantage of hearing and seeing the witnesses.” 64.On the question whether the accused was given an opportunity to engage a lawyer, the court notes that on 15/8/2022 the court gave the accused an opportunity to get a lawyer. The accused person did not get one. 65.He cannot turn around after he had attended the entire trial, cross examined witnesses and after the judgement to seek to blame the court for his failure to secure an advocate. The court was under a duty to allow the applicant's request to secure an Advocate of his choice which it discharged. 66.The court is of the view that the appellant appreciated what was going on during the trial. He was even able to elect to tender a sworn evidence. The court does not agree with the appellant’s counsel’s argument on this front. 67.I find that the court discharged its duty to promote the appellant’s right to counsel when it adjourned the hearing so as to give the appellant the opportunity to secure a lawyer. In the circumstances it is this court’s finding and I so hold that this limb of the appeal lacks merit and the same is here by dismissed. 68.The court now shifts its attention to the issue of the age of the victim. The complainant’s age is confirmed through the birth certificate which was tendered as evidence for the prosecution. 69.The appellant did not challenge the birth certificate’s production, nor its contents in so far as the victims age was concerned. 70.The mother of the child corroborated the above evidence in establishing that victim was nine years old at the time of the offence. The child also testified that that she was of the said age. 71.The court has no reason to doubt that a child was nine years old of the time of the crime. 72.The next question that the court addresses its mind to is the question of the identity of the appellant. The minor recognized him as the person who committed the offense. Going by the nature of the ordeal and the transactions that unfolded during the commission of the offence as narrated to the court, it is clear that she knew where the offense took place and she also knew who the perpetrator was. She also testified that he would give some money to her mother. Further and beyond that, the court notes that the victim testified that the appellant had defiled her before and given her kshs.20 and 50. 73.From the foregoing, it is not in doubt that she was able to identify the appellant. She easily recognized him as her mothers landlord. 74.The appellant testified that the child’s mother was his tenant and that they lived in the basement. 75.He testified that she was his secret lover and that he used to shop for her. 76.I am satisfied that appellant was positively identified as the perpetrator by the victim who knew him. This court finds no reason to fault the trial magistrate. The appellant was positively identified. This ground of appeal fails. 77.The court finally looks at the issue of whether there was penetration.PW 4 testified that on examination, the victim’s hymen was broken with healing lacerations on labia minora, ETC test was non reactive. On Urinalysis pus cells were noted. There was no bleeding. He produced the treatment notes which were marked as exhibit 2. 78.The argument that the appellant advances to the effect that the trial court ignored clear evidence of a well- choreographed setup cannot stand. The appellant argued that save for rent arrears, the victim's mother had no grudge against him. This simply means that she had no reason to set him up. 79.He did not produce any evidence to prove that anyone had approached him to settle the case. 80.The argument that the complainant wanted to give evidence after the filing of submissions cannot come to the appellant’s aid. The court does not act in conjecture. 81.The court has considered the appellant’s submissions that there were material contradictions. 82.The initial report as per the charge sheet was that the defilement took place variously between 10thMay and 31st May 2020 while the complainant's testimony before court was clear that she was defiled once. 83.During her testimony, the Complainant could not tell the date she was allegedly defiled, the charge sheet indicates it happened during various dated between 10th May and 31st May 2020, the doctor testified that he was informed that the victim was defiled in April 2020.The court is of the view that owing to her age, a child like the victim in this case can forget or mix up dates owing to the attendant crime environment and fear. 84.The court has also considered the fact that the appellant further argued that the complaint testified that the Appellant tied his mouth using a sweater that he had while the complainant's mother testified that the Appellant covered the victim's mouth with his hand and lay her on a sweater. This court is of the opinion that in proving the offence of defilement, the court focuses on the ingredients of identification, age of the victim and the penetration which the prosecution proved beyond reasonable doubt. 85.The court is satisfied that the appellant committed the offence and the manner in which the sweater was used cannot form the basis of setting aside the judgement. 86.The court has also considered the argument that there was a contradiction in the way the victim’s pantie was handled. According to the appellant, the Complainant testified that she threw her pantie in the toilet in her own volition after noting it had blood while her mother testified that the Appellant told the complainant to throw the pantie in the toilet. This inconsistency cannot displace the evidence of identity, penetration and the victims age that was proven by the respondent. 87.The Complainant testified that she decided to tell the truth when the mother decided to report the matter of locking of the house to the police and she did so through her friends while the victim's mother testified that it was not her daughter who told her, rather she was told by her friends who her daughter had already told previously. This court is of the view that the child testified that she had been threatened by the appellant. It is not unusual that the child acted the way that she did out of fear of a reprisal and if her mother’s reprimand. In this court’s opinion, this cannot form the basis of setting aside the judgment. 88.The court is satisfied that the appellant defiled the victim. The trial court exercised its discretion legally in convicting and sentencing the appellant and I find no reason to disturb the conviction and the sentencing.Order:The appeal is dismissed. DATED, SIGNED AND DELIVERED AT VIRTUALLY IN ELDORET THIS 2ND DAY OF JUNE 2026.…………………………J. CHIGITI (SC)JUDGE