https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10583

REPUBLIC OF KENYA | | | | --- | --- | | Jurisdiction: File Number: Between: Coram: Heard: Delivered: | In the High Court at Bungoma HCCRA No. E030/2025. David Wamalwa Wekesa & Republic. R.K. Ondieki, J. 19th May, 2026. 27th May, 2026. | *(Being an Appeal against the Judgment by Hon. S.C. Tirop (R.M.) in Principal Magistrate’s Court at Sirisia, Case No. E033 of 2023, Delivered on 4th April, 2025).* **JUDGEMENT OF COURT** Introduction: 1. The duties of an Appellate Court have been set out by the *Supreme Court of India* in the case of K. Anbazhagan Vs State of Karnataka and Others, *Criminal Appeal No. 637 of 2015* where it was held that the appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, ...........The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – ***sans passion and sans prejudice***. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test. 2. I**n *Kiilu & Another Vs. Republic [2005]1 KLR 174,* the Court of Appeal stated that 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. 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.** 3. **E. N. (PW1) told court that on 12th November, 2023 he was from church when he met the appellant who invited him to his home for a meal. Upon reaching his home, the Appellant defiled him by inserting his penis into the anus of the victim and cautioned not to raise an alarm. He reported to his father what had happened and was taken to Kimilili Sub County Hospital and to Kapkateny Police Station. The Appellant defiled the victim thrice in a row, on that day. The Appellant goes by the name of Davy and he sees him always go to Jimmy’s house. The victim marked P3 Form, treatment notes and PRC form as MFI 1, 2 and 3 respectively. Under cross examination, the victim said that the offence took place at 21:00 hours and he was treated at Kapkateny and then at Kimilili Sub County.** 4. **Francis Taboi MosomPW2) told court that on 12th November, 2023, at about 21:30pm, he was summoned to rush to the scene of crime as the victim had been sodomized. In company of Bernard Wafula Wataka, they rushed to Mama Peres Chesaget and found the victim writhing in pain. Under cross examination, the witness said that he did not witness the incident.** 5. **Ben Wafula Wataka (PW3) told court that he was summoned to accompany PW2 to a scene of crime and upon getting there, they took the victim to his father. The victim at the time was in pain. Under cross examination, the witness said that he did not witness the incident.** 6. **James Wabule Mang’oli (PW4) is a Clinical Officer based at Kimilili Sub County Hospital and on 25th November, 2023 he examined EK and found that the patient had fissures(cracks) with tenderness on digital rectal examination. There was no discharge and the degree of injury was described as grevious harm. The witness filled the P3 Form and produced it as Exhibit 1, treatment notes as Exhibit 2 PRC Form as Exhibit 3 and Age Assessment Report dated19th September 2024 as Exhibit 4.** 7. **PC Josam Gacheru(PW5) adopted his statement as evidence and on cross examination, he said that the scene of crime was at Mashanga village** 8. **Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the Main Count, with the offence of defilement contrary to section 8(1) as read with 8(2) of the Sexual Offences Act No. 3 of 2026. Particulars of the offence were;on the 12th day of November, 2023 at Mashanga Village, Kapkateny location in Kopsoro sub county within Bungoma County, you intentionally caused you penis to penetrate the anus of E.N. a boy aged 10 years.** 9. **In the Alternative Count, the Appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006, and Particulars of the offence were;on the 12th day of November, 2023 at Mashanga Village, Kapkateny location in Kopsoro sub county within Bungoma County, you intentionally caused contact with the anus of E.N. a boy aged 10 years with your penis.** 10. **The Appellant *David Wamalwa Wekesa* in his sworn testimony told court that he was informed about these allegations on 23rd November 2023 while at the Coffee Farm at about 11am and so he went to the police station to report only to be arrested. He is in the dark as to the charges he is facing. In his defence, the Appellant said that on 12th November, 2023 he was at his home with his wife and children. He does not know the victim in this case.** 11. ***Rebeccah Nelima(DW2)* told court that on 24th November 2023 while at the Coffee Farm, one Jimmy told her that the Appellant had defiled a minor. However, in cross examination, she said on 12th November, 2023, she was at home with the Appellant.** 12. ***Patrick Masibo (DW3)* told the court that on 23rd November, 2023 he met the Appellant on his way to report at the Police Station in respect of the allegations that he had defiled a minor. The victim resides two kilometres away from where they live. Under cross examination, the witness said that he does not know what happened on the 12th November, 2023.** 13. ***Jimmy Wekesa Munuku(DW4)* told the court that E.K. is his brother and the appellant is his neighbour. He woke up on 13th November, 2023 and received a report that the Appellant had defiled E.K. who lived at village elder’s home. In cross examination, the witness said that he was not in company of the Appellant on the 12th November, 2023.** 14. **In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;** 1. **That the learned trial Magistrate erred in law and fact by relying on evidence of identification without great care.** 2. **That the learned trial Magistrate erred in law and fact by contravening section 214 of the CPC.** 3. **That the learned trial Magistrate erred in law and fact by meting a life imprisonment which is unconstitutional.** 4. **\That the learned trial Magistrate erred in law and fact as the State did not prove their case to the required standard.** 5. **That the learned trial Magistrate erred in law and fact by shifting the burden of proof to the Appellant.** 15. **The Respondent and the Appellants filed written submissions and relied on them.** **Analysis and Determination:** 1. I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent and to set the ball rolling, I find it extremely apposite to drop anchor, so that as I delve into the re-evaluation of the matter, I do not lose my footing. **In the case of *Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000,* it was observed that in defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense.** 2. **In *Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu),* the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).** 3. **In the case of *Kaingu K. Kasamo Vs R CR Appeal No. 504 of 2010* where the Court of Appeal stated that 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 case of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will depend on the age of the victim. It is legally permissible that age is proved by medical evidence, birth certificate, guardian or parents and by observation or common sense.** 4. **In** *Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 Ugandan* Court of Appeal said that insexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured. 5. Clearly, three ingredients that must be proved by the prosecution are; age, penetration and positive identification of the assailant. Consequently, the court is obligated to sieve the evidence on record and particularly, on the part of the prosecution and find, if, the three ingredients have been proved beyond reasonable doubt. 6. **Contradictions and failure to call crucial witnesses:** 7. The Uganda Court of Appeal in *Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6*it is not very contradiction that warrants rejection of evidence. Withregard 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. 8. **The allegations by the appellant were that the evidence of the victim contradicted what was recorded in her statement. I now reproduce the Appellants sworn testimony in the lower Court proceedings; “I reside at Cheptais. I am a farmer. On the date of arrest, I was asleep. I was surprised to see people enter with a girl. I had closed the gate. The girl fled home with a person she was with.” In her examination in chief, M.W.M. said; “…in the morning, my Aunt-Asha found us with Abraham. She was with my grandfather Yussuf. We were taken to Police Station (Chesikaki). We were arrested…” In cross examination by the Appellant, the Victim said: “We have no relationship”** 9. **The evidence is clear that the Appellant was caught red handed with the victim in his house and I opine that other witnesses had nothing useful to add to the testimony by the victim. I say so because, the Appellant did not cross examine the victim on whether there was another person accompanying her with who they allegedly fled from his compound. In respect, the Learned Magistrate relied on the uncontroverted evidence on the part of victim with medical records to prove the ingredients of the offence.** So, the proviso to section 124 of the Evidence Act and the medical evidence must be borne in mind as well Section 143 of the Evidence Act (Cap 80***).*** **Section 143 of Evidence Act (Cap 80) Laws of Kenya 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 and so in *Donald Majiwa Achilwa and 2 other Vs R (2009) eKLR ,* theCourt stated that the law as it presently stands, is that the prosecution is obliged to call all witnesses who are necessary to establish the truth in a case even though some of those witnesses’ evidence may be adverse to the prosecution case. However, the prosecution is not bound to call a plurality of witnesses to establish a fact. Where, however, the evidence adduced barely establishes the prosecution case, and the prosecution withholds a witness, the court, in an appropriate case, is entitled to infer that had that witness been called his evidence would have tended to be adverse to the prosecution case.** 10. In this appeal, it is not clear to me, what value the evidence of other witnesses would have added to the evidence of PW1, which the court found trustworthy, as well as the medical evidence. In my opinion, other witnesses would have been, peripheral. 11. **Violation of the Appellant’s Right under Article 49(1)(f)(i)(ii):** 12. **It was his lamentation that he was availed in court a day after the statutory period as guaranteed in the Constitution. Additionally, the appellant states that the delay was not explained to the satisfaction of court and so, it matters not, the prosecution remains a nullity.** 13. **Having perused the proceedings,** I note that the Appellant did not raise this issue before the trial court nor was there any demonstration that one day delay impacted on the fair trial process to the Appellant. In any case, a grievance of such nature has been distilled by the precedents and in the case of *Julius Kamau Mbugua Vs. Republic Criminal Appeal No. 50 of 2008*, the Court of Appeal, while deliberating on section 72(6) of the former Constitution which is Article 49in the 2010 Constitution, said thatit was not shown that the alleged unlawful detention had any link or effect on the trial process itself or that it caused trial related prejudice to the appellant which affected the validity of the trial. The alleged unlawful detention does not exonerate the appellant from the serious crime he is alleged to have committed. The breach could logically give rise to a civil remedy – money compensation as stipulated in section 72(6). That is the appropriate remedy which the appellant should have sought in a different form.Equally, the Court of Appeal in *Evans Wamalwa Simiyu Vs. Republic Criminal Appeal 118 of 2013 [2016] eKLR*the court stated, that where an Appellant is not produced in court within *twenty-four hours*, it would not automatically result in his acquittal. Instead, the Appellant would be at liberty to seek remedy, in damages, for the violation of his constitutional rights. In the premise therefore, I find no basis to consider the issue fatal to the prosecution’s case. **Failure to supply a birth certificate:** 1. **The lamentation on the part of the appellant was that the State failed to supply a birth certificate thus, faulting or a violation of the principle of Fair Hearing as set out under Article 50(2) (j) of the Constitution. I have perused the primary court file proceedings, and nowhere, did the Appellant lament or raise the issue of witness statements and or other documents. Equally, I note that the Appellant participated in the entire trial by cross examining each and every witness, who testified. The fact that the appellant did not raise the issue at the outset, and or at the pre-trial directions stage, it cannot be raised at the appellate stage. Had he raised it at any time, even after the judgement stage, that error would have been addressed, as by the law established. As it were then, in as much as the appellant is a favourite child of the court, this fact alone, does not enjoin a court, to baby sit the appellant in his space. This ground therefore collapses.** **Medical Examination of the Appellant:** 1. **The 3rd lamentation is that the trial magistrate failed to consider that the Appellant was not examined by a doctor. In the offence of defilement, medical examination of the perpetrator, is not an ingredient that courts consider. If done, well and good but, it is not compulsory. I say so, having regard to the decisions I have adverted hereinabove. This ground collapses.** **A chance to Mitigate:** 1. **The 4th lamentation relates to the violation of the Appellant’s right to mitigate. I**n [*Sango Mohamed Sango & another Vs Republic*](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/178)*Criminal Appeal No 1 of 2013 [2015]eKLR , Makhandia, Ouko, M’inoti JJA* observed that although sections 216 and 329 of the [Criminal Procedure Code](https://new.kenyalaw.org/akn/ke/act/1930/11) were couched in permissive terms. The appellate court has held over time that it is imperative for the trial court to afford an accused person an opportunity to mitigate and the trial court should record the mitigation factors. This applied even when accused persons had been convicted of offences where the prescribed sentence was mandatory. Mitigating circumstances would be relevant if the matter went on appeal or before a clemency board or with regards to the age of the offender or pregnancy in the case of women convicts. Similar decisions can be seen in [*Henry Katap Kipkeu Vs Republic*](https://new.kenyalaw.org/akn/ke/judgment/keca/2009/294)*, CR. App. No 295 of 2008* and [*Dorcas Jebet Ketter & another*](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/401)*Vs R, Cr App No 10 of 2012.* 2. In the case of *Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment)*, the Supreme Court of Kenya said; *“***…We are of the view that mitigation is an important congruent element of fair trial. The fact that mitigation is not expressly mentioned as a right in the Constitution does not deprive it of its necessity and essence in the fair trial process. In any case, the rights pertaining to fair trial of an accused pursuant to article 50(2) of the**[**Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**are not exhaustive…47. Indeed, the right to fair trial is not just a fundamental right. It is one of the inalienable rights enshrined in article 10 of the**[**Universal Declaration of Human Rights**](https://www.un.org/en/udhrbook/pdf/udhr_booklet_en_web.pdf)**, and in the same vein article 25(c) of the**[**Constitution**](https://new.kenyalaw.org/akn/ke/act/2010/constitution)**elevates it to a non-derogable right which cannot be limited or taken away from a litigant. The right to fair trial is one of the cornerstones of a just and democratic society, without which the Rule of Law and public faith in the justice system would inevitably collapse…”** 3. **Perusal of the proceedings in the primary file dated 22nd July, 2025, it is recorded at page 36, thus; “Mitigation of Accused person: I have a child and wife. They depend on me. I seek a lenient sentence” So, contrary to a lamentation by the appellant, it is not true that his right to mitigation was violated. This ground collapses, too.** 4. **The court has perused the analysis of the learned Magistrate in the judgement and I find no faulty on the part of the magistrate. Instead thereof, I find the three ingredients meticulously analyzed with support of case laws, the facts logically tied to evidence, which in the fullness of time, proves that indeed, the appellant committed the offence.** **Disposal:** 1. The Appeal lacks merit and is hereby, dismissed. Delivered virtually this 9th June, 2026 in the presence of the Appellant, Ms Matere for ODPP and Court Assistant, Aziza Abdi. Orders Accordingly. **R.K. Ondieki.** **Judge.**