https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1626

DBG v Republic (Criminal Appeal E083 of 2023) [2026] KECA 1626 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1626 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E083 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between DBG Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Homa Bay (Kiarie J.) dated 21st June 2022 in HCCRA No. E010 of 2021) Judgment 1.This appeal arises from the judgment of the High Court of Kenya at Homa Bay (Kiarie, J.) (the first appellate court) dated 21st June 2021 in Criminal Appeal No. E010 of 2021. 2.Deo Beter Goa, (the appellant), had been charged before the Principal Magistrate’s Court at Mbita, (the trial court), with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, in Sexual Offence Case No. 59 of 2019. 3.Particulars of the offence before the trial court alleged that on the 18th December, 2019 at [particulars withheld], the appellant defiled [particulars withheld] (the complainant), a child aged 8 years. 4.The appellant was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. Particulars being that on the same date and place, he intentionally and unlawfully touched the vagina of the complainant with his penis. He denied the charges. 5.The prosecution’s case before the trial court, according to the complainant (PW1), was that on the material day, the appellant, a person well known to her as GEO, called the complainant to his house with the intention of sending her. When the complainant went to the appellant’s house, the appellant defiled her. When the appellant saw the complainant’s mother who was looking for the complainant coming, the appellant instructed the complainant to hide under the bed. He later released the complainant. Upon the complainant explaining to her parents what the appellant had done to her, she was taken to hospital for medical examination. 6.Andrew Ombisa, the area Assistant Chief (PW2) received a call from the Principal of [Particulars Withheld] Secondary School informing him that a girl had been defiled by her uncle. PW2 advised the complainant’s mother to take the complainant to hospital. PW2 together with police officers went to the appellant's house and arrested him. RA, (PW3) and the complainant's mother, had gone on some errands and when she came back, the complainant was not at home. PW3 went to the appellant’s house and asked him where the complainant was. The appellant told her that he had sent the complainant to the shop but PW3 did not find the complainant at the shop. PW3 went back and found the complainant crying. It was then that the complainant informed PW3 that the appellant had defiled her. PW3 checked the complainant’s private parts and found the complainant's pants wet and she was also walking with difficulty. PW3 took the complainant to hospital. According to PW3, the complainant was born in 2013. 7.PW4, Richard Ojuok, a clinical officer, examined the complainant and observed lacerations at the vaginal entrance; the hymen was freshly broken and the vagina was soiled. He formed the opinion that this was evidence of recent penetration. PW4 also examined the appellant but he did not find any bruises on his penis. 8.According to PC Peter Nyakundi, (PW5) the complainant was taken to the station with a complaint of defilement. The complainant was taken to hospital for examination and age assessment. Medical examination confirmed that she had been defiled while the age assessment showed that she was 8 years old. PW5 produced the complainant's age assessment report as an exhibit. The appellant who had been arrested was charged with the offences. 9.When put on his defence, the appellant denied committing the offence. His case was that on 17th December 2019 he had an issue with one Atieno and when he told Atieno to go home so that the appellant’s brother could come home, Atieno threatened to have the appellant arrested. That evening, PW2 went with police officers and arrested him. 10.DW2, JG the appellant’s brother, testified that on 18th December 2019, he went to the farm with the appellant until 6.00 p.m. They then spent time together until 8pm when the appellant went to sleep, only to be informed the following morning that the appellant had been arrested during the night. 11.After considering the evidence, the trial court was satisfied that the prosecution had proved the ingredients of the offence of defilement beyond reasonable doubt, convicted the appellant and sentenced him to life imprisonment. 12.On age, the trial court relied on the evidence of PW3, PW5 and the age assessment report and concluded that the complainant was 8 years at the time of the alleged incident. The trial court again relied on the evidence of the complainant, PW3 and the medical evidence by PW4 which showed the complainant had freshly broken hymen and lacerations at the vaginal entrance thus, concluded that there was penetration. And on whether or not the appellant defiled the complainant, the trial court relied on the evidence of the complainant and PW3 and made a finding that it was the appellant who defiled the complainant. 13.Aggrieved, the appellant lodged an appeal before the first appellate court against both the conviction and sentence faulting the trial court in; imposing life sentence which was and contrary to Article 50(2)(p) of the Constitution of Kenya (the Constitution); failing to consider that there was a grudge between him and the complainant's family, which motivated his prosecution; relying on inadequate investigations and; finding that the complainant's age and penetration had been proved despite insufficient and defective medical evidence; overlooking material contradictions and inconsistencies in the prosecution's case and rejecting his defence without proper reason. 14.In opposition, the prosecution maintained that all the ingredients of the offence were proved beyond reasonable doubt and that both the conviction and sentence were sound and lawful. 15.In its judgment dated and delivered on 21st June 2022, the first appellate court was satisfied that the prosecution proved the ingredients of the offence beyond reasonable doubt; that the complainant’ age of 8 years was proved through the age assessment report which was corroborated by the evidence of PW 3; that penetration was proved through the evidence of the complainant and medical examination by PW4 and that the complainant and PW3 identified the appellant as the perpetrator of the offence. The first appellate court accordingly dismissed the appeal, upheld the conviction and affirmed the sentence. 16.The appellant was once again dissatisfied and has filed this second appeal contending that the first appellate court erred in: upholding his conviction despite the defects in the charge sheet contrary to section 214 of the Criminal Procedure Code (which requires the court to direct amendment of the charge if the appears to be defective); curtailing his right under Article 39 of the Constitution; failing to find that his constitutional right to a fair trial had been violated through the denial of legal representation, access to the prosecution's evidence and adequate facilities to prepare his defence as guaranteed under Article 50(2) of the Constitution; affirming a conviction founded on an irregular voir dire examination and relying on prosecution evidence admitted in violation of Article 50(4) of the Constitution, leading to unfair trial. 17.The appeal was heard by way of written submissions. The appellant appeared in person from Prison while Mr. Miechi, learned prosecution counsel, appeared for the respondent. Both parties relied fully on their written submissions. 18.The appellant’s submission was that his conviction was irregular because it was founded on a defective charge sheet that failed to accurately identify the complainant and adequately particularize the offence; that whereas the charge sheet identified the complainant as [particulars withheld] aged 8 years, the evidence disclosed inconsistencies regarding her identity which rendered the charge defective and undermined the prosecution's case and relied on Eric Omondi Mboya v Republic [2018] eKLR and Samson Njuguna Njoroge v Republic, [2018] eKLR for that submission. 19.The appellant contended that PW1 and PW3 were hostile witnesses hence their evidence ought not to have been relied upon by the trial court in convicting him and relied on Coles v Coles (1866) LR IP & D 70 for the submission that a hostile witness is one who is not desirous of telling the truth to the court, and Batala v Uganda [1974] EA 402 and Abel Monari Nyanamba & 4 Others v Republic [1996] KECA 196 (KLR) for similar submissions. 20.The appellant further submitted that his constitutional right to a fair trial guaranteed under Article 50(2)(g)(f) of the Constitution was violated as the trial court did not inform him of his right to legal representation; that he was not given the evidence the prosecution intended to rely upon, thereby denying him an adequate opportunity to prepare his defence, omissions which occasioned prejudice and rendered the trial defective. He relied on Thomas Cholmedely v Republic, [2008] eKLR and John Mutisya Mbeetu v Republic [2018] eKLR for this submission. 21.The appellant contended that the complainant, being a child of uncertain age, was not subjected to a proper voire dire examination before testifying; that the trial court failed to assess her intelligence and appreciation of the duty to tell the truth; failed to inform him of his constitutional rights and the need for the prosecution to disclose the evidence it was relying on resulting in an unfair trial leading to an unsafe conviction. 22.In opposition, Mr. Miechi submitted that the appellant was raising points of law and constitutional questions that were not raised before either the trial court or the first appellate court and therefore cannot be raised in a second appeal. Counsel relied on Republic v Julius Kitsao Manyeso [2025] KESC 16 (KLR) for the proposition that this Court cannot assume original jurisdiction on constitutional matters that were not raised before the High Court. Counsel maintained that the prosecution proved the ingredients for the offence of defilement and that the conviction was proper the sentence was lawful. Counsel urged the Court to dismiss the appeal. 23.This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the first appellate court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered, or that looking at the evidence as a whole, they were plainly wrong in their decisions, in which case such omission or commission would be treated as matters of law.(Chris Kasamba Karani v Republic(supra);Karingo & 2 Others v Republic [1982] KLR 213.) 24.We have considered the grounds of appeal in conjunction with the record, the submissions tendered by the respective parties and the applicable law. The broad issues for determination are whether; the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt; the appellant’s rights were violated and the sentence imposed is lawful. 25.The appellant was charged with defilement. Under section 8(1) of the Sexual Offences Act, the offence of defilement comprises committing an act which causes penetration with a child. Section 2 of the same Act adopts the definition of a “child” contained in the Children Act, which means any human being under the age of 18 years. In this appeal, the age of the complainant was not in dispute. According to PW3, the complainant’s mother, the complainant was born 2013. PW5 produced age assessment report for the complainant showing that she was 8 years old. Both the trial court and the first appellate court were satisfied that the complainant’s age was proved. The appellant did not challenge the production of the age assessment report at the trial and therefore, he cannot raise the issue of the age of the complainant now which is a question that was settled by the two courts below. 26.With regard to penetration, the complainant testified that the appellant called her to his house and defiled her. PW3 found the complainant crying, examined her and found her pants wet and the complainant had difficulty walking. PW4, examined the complainant and found lacerations in her vagina and freshly broken hymen being evidence of penetration. Both the trial court and the first appellate court believed this evidence as proving the fact of penetration. 27.On whether the appellant defiled the complainant, the complainant was categorical that it was the appellant who defiled her in his house. The appellant was well known to the complainant and when PW3 asked the appellant where the complainant was, he told PW3 that he had sent the complainant to the shop only for PW3 to come back and find the complainant crying. The two courts below again accepted that this evidence established that it was the appellant who defiled the complainant. 28.The first appellate court reevaluated the evidence afresh and was satisfied that the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt. The first appellate court addressed its mind to the proviso to section 124 of the Evidence Act which allows the court to receive evidence of the victim if it is the only evidence regarding the sexual offence and may convict if satisfied that the victim is telling the truth. The first appellate court noted that even though the trial court did not record the reasons for believing the complainant, based on the evidence on record, the first appellate court had no reason to doubt the complainant’s credibility and accepted the complainant’s evidence that it was the appellant who defiled her. 29.We have reviewed the judgment of the first appellate and the record of the trial court. We are satisfied that the first appellate court reevaluated the evidence and reconsidered it afresh as it ought to do and reached an independent conclusion that the appellant defiled the complainant and that the prosecution proved the case against the appellant as required by law. We have no reason to interfere with the concurrent findings of fact and conclusions by the two courts below. 30.The appellant complained that his right to a fair trial guaranteed under Articles 50 (2)(b)(c)(j)(k) as well as 50(2)(g)(h) of the Constitution were violated; that he was not given the prosecution’s evidence to enable him prepare for his defence and that he was not given legal representation. He also complained that the charge sheet was defective with regard to the complainant’s names and age. 31.From the record of the first appellate court, the appellant only raised the issue of sentence, arguing that the life sentence imposed by the trial court violated Article 50(2)(p) of the Constitution with regard to an accused benefiting from the less punitive punishment for the offence. The first appellate court in answering that complaint, it appreciated that section 8(2) of the Sexual Offences Act prescribes only one sentence which the trial court imposed. We would also point out that in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), the Supreme Court reaffirmed the legality of the mandatory minimum sentences provided for in the Sexual Offences Act, stating that as long as section 8 of the Sexual Offences Act remains valid, the mandatory minimum sentences are lawful. 32.Regarding the other issues such as the alleged conduct of voire dire examination and legal representation, they were neither raised before the trial court nor the first appellate court. These issues therefore fall outside the jurisdiction of this Court on a second appeal and this Court cannot therefore entertain them. 33.Ultimately, we find no merit in this appeal and we hereby dismiss it in its entirety. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA…………………………JUDGE OF APPEALE.C. MWITA……………………………JUDGE OF APPEALB. ONGAYA…………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR