https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12358

Dunga v Republic (Criminal Appeal E009 of 2026) [2026] KEHC 12358 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12358 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E009 of 2026 JK Biomdo, J July 30, 2026 Between Stephen Kenga Dunga Appellant and Republic Respondent (Being an appeal against the conviction and sentence by Hon. Charles Obulutsa (CM) in Kilifi Chief Magistrate’s Court (SO) Case No. 153 of 2024) Judgment 1.The appellant herein Stephen Kenga Dunga was convicted by the Chief Magistrate’s Court, Kilifi and sentenced to life imprisonment for the offence of defilement contrary to section 8 (1) as read with section 8 (4) of the Sexual Offences Act, No. 3 of 2006. Particulars of the offence were that on 7 November 2024 at [Particulars Withhheld] area within Kilifi County, intentionally and unlawfully caused his penis to penetrate the anus of G.M a child aged 5 years old. 2.He was also charged with 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 with particulars stating that on on 7 November 2024 at [Particulars Withhheld] area within Kilifi County, intentionally and unlawfully caused hi penis to penetrate the anus of G.M a child aged 5 years old. However, having been convicted of the main charge, no finding was made on the alternative charge. 3.The appellant denied the charges at the trial court prompting the trial where the prosecution called four (4) witnesses in support of its case. PW2 a male victim aged 5 years testified that on 7 November 2024 in the evening the appellant who is well known to him, took him to the shamba, removed his pants and inserted his penis on his anus. He felt pain whereby the appellant left him and ran away. He told his grandmother to send his brother to get him. He was then taken to the hospital where he was examined and treated. It was his evidence that the appellant had defiled him previously. 4.PW 1 JK testified that the victim is his nephew and used to stay with his grandmother at the material time since his mother had gone to work at Qatar. On 7 November 2024 at about 2pm, she was called by Dominic who informed her that the victim had been sodomized by the appellant and was at Kilifi hospital. She proceeded to the hospital where she found the victim had defecated on her short which also had blood stains and had difficulty in walking. She inquired from the victim what had happened and the victim informed her the the appellant had sodomized him near the river who was his cousin. She produced the Victim’s child health card (exhibit 1) which showed that he was born on 1 February 2019. 5.PW3 Anderson Kaingu a clinical officer based at Kilifi County hospital examined the victim who was crying, had a pair of shorts that had faeces and blood where it was established that there peri-anal bruises on the anus, blood and fecal matters on the anus. He produced the P3 form, treatment notes and Post Rape Care Form as evidence. PW4 PC the investigating Officer testified that a case of defilement was reported at Kilifi police station where he carried out investigations and charged the appellant. 6.The trial court found that the appellant had a case to answer and placed him on his defence. Through sworn testimony, he denied the offence terming it as bad luck and stated that he knew the victim who was his cousin. 7.At the close of the trial, the appellant was found guilty, convicted and sentenced as stated herein before. Aggrieved, he filed the present appeal where he raised the following grounds:i.The trial court erred in both law and fact by convicting him without sufficient evidence.ii.The trial court erred in both fact and law by convicting him on the basis of a single witness.iii.The trial court erred in both law and fact by ignoring the contradictions and inconsistencies in the prosecution case.iv.The trial court erred in both law and fact by failing to take into consideration the period he stent in remand while undergoing trial.v.The trial court erred in both law and fact by finding him guilty without considering his evidence in defence.vi.The trial court erred in both law and fact by failing to consider that he was not accorded a fair trial.vii.The trial court erred in both law and fact by failing to find that penetration was not proved beyond reasonable doubt. 8.At the hearing of the appeal, the appellant elected to rely on his written submissions. He submitted that his constitutional rights under Article 50 (1) (2) (g) and (h) of the Constitution were violated since he was not informed of his right to counsel and was not assigned counsel at state expense despite the potential prejudice. 9.He further submitted that penetration was not proved since the P3 form and Post Rape Care form did not state what caused the bruises found on the victim’s anus. He also contended that the short which was said to contain blood and fecal matter was not produced as evidence to verify the facts as stated. He urged the court to find in his favour and acquit him. 10.The Respondent opposed the appeal and but informed the court during hearing that they will not file submissions but would rely on the record before the trial court. Analysis and determination 11.This being the first appeal, the court has a duty to re-evaluate the evidence adduced before the trial court and arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that this court did not have the advantage of seeing or hearing the witnesses. see Okeno Vs Republic [1972] EA 32 and Oiruri Mose Vs Republic (2013) eKLR. 12.The Court of Appeal, in Kiilu & Another V Republic [2005]1 KLR 174, stated thus;“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; it must make its own findings and draw its own 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.” 13.I have consider the record before the trial court, the judgement, petition of appeal and submissions by the appellant. Arising from the above, I narrow down issues for determination are as follows:i.Whether the offence of defilement was proved beyond reasonable doubt.ii.Whether the appellant’s constitutional rights under Article 50 (2) (g) and (h) of the Constitution were violated and if so, what is the remedy thereof. i. Whether the offence of defilement was proved beyond reasonable doubt 14.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 despite the fact that the victim was stated to be 5 years. The proper section of the law, in view of the victim’s age, was section 8 (2) and not (4). However, no prejudice was occasioned by the error and none has been pleaded. 15.The specific elements or ingredients of the offence of defilement arising from section 8 (1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are proof of penetration, age of the complainant and positive identification of the assailant. see Charles Wamukoya Karani Vs Republic, Criminal Appeal No. 72 of 2013 and George Opondo Olunga Vs Republic (2016) eKLR 16.I will now consider the three ingredients independently; A. Proof of penetration 17.The appellant submitted that penetration was not proved since the P3 form and Post Rape Care form did not state what caused the bruises found on the victim’s anus. He also contended that the short which was said to contain blood and fecal matter was not produced as evidence to verify the facts as stated. 18.Section 2 (1) of the Sexual Offences Act defines penetration to mean the partial or complete insertion of the genital organs of a person into the genital organs of another person. 19.“Genital organs” are defined by the said Act to include the whole or part of male or female genital organs and for purposes of this Act includes the anus. To establish this element, the prosecution was required to prove either partial or complete insertion of the appellant’s penis in the anus of the victim. 20.PW2 the victim testified on 7 November 2024 in the evening, the appellant who is well known to him, took him to the shamba , removed his pants and inserted his penis on his anus. He felt pain whereby the appellant left him and ran away. He told his grandmother to send his brother to get him. He was then taken to the hospital where he was examined and treated. His evidence was corroborated by PW3 the clinical officer based at Kilifi County Hospital who examined the victim on 8 November 2024 and observed that he was crying, had fecal matter and blood on the short. Examinations revealed that there were peri-anal bruises on the anus, and blood and fecal matters on the anus which was consisted with the report of defilement. 21.PW2’s testimony was also corroborated by PW1 who observed that the victim had difficulty in walking, his short was stained with blood and fecal matters. The appellant did not challenge any of this evidence during trial. The fact that the short was not produced in evidence did not materially affect the prosecutions case since medical evidence in form of P3 form (exhibit 2) and PRC form (exhibit 3) taken together with the evidence of PW1,PW2 and PW3 conclusively proved penetration beyond reasonable doubt. B. Proof of age of the victim 22.The age of the victim is a critical ingredient and must be proved for the offence of defilement under Section 8 (1) of the Act to crystalize. See Kamau V Republic (Criminal Appeal E003 Of 2024) [2025] KEHC 42 (KLR). 23.Age can be proved by medical evidence, birth certificate, the victim’s parents or guardian and by observation and common sense. See Thomas Mwambu Wenyi V Republic Criminal Appeal No. 21 Of 2015 [2017]. In this case, PW1 produced child health card of the victim as exhibit 1 which shows that the victim was born on 1 February 2019 and was 5 years and 5 months at the time of the incident. This issue was not contested and the court finds that this element of the offence was proved beyond any reasonable doubt. C. Proof of positive identification of the perpetrator 24.Evidence on record is that PW2, the victim positively identified the appellant as responsible for the offence. The incident occurred in broad daylight, lasted for more than 6 hours and the victim was able to identify the appellant as responsible. The court further notes that the victim and the appellant were cousins and well known to each other. The evidence by PW2 was not challenged or contested by the appellant either during cross - examination or defence. Further, the appellant himself testified in his defence that he knew the victim who was his cousin. . The court finds that there was positive identification by recognition. 25.The court finds that the prosecution witnesses provided cogent, consistent and corroborative evidence without any contradictions or inconsistencies. All ingredients of the offence were proved beyond reasonable doubt. ii. Whether the appellant’s constitutional rights under Article 50 (2) (g) and (h) of the Constitution were violated and if so, what is the remedy thereof 26.It was argued in appeal that the appellant’s right to fair trial under the Article 50 (1) (2) (g) and (h) of the Constitution were violated since he was not informed of his right to counsel and was not assigned counsel at state expense despite the potential prejudice. 27.Article 50 of the Constitution guarantees fair hearing and cannot be limited by dint of Article 25 of the Constitution. Violation of Article 50 (2) of the Constitution would lead a higher court to quash a conviction, invalidate proceedings, or exclude tainted evidence. If the breach is severe enough to compromise the entire trial process, it will result in an acquittal or, in limited cases, an order for a retrial. See John vs Republic (Cr App No. E036 of 2025) 2022 KEHC 410 (KLR). 28.The right to state funded legal representation guaranteed under Article 50(2)(h) of the Constitution and operationalized by the Legal Aid Act 2016, would arise where substantial injustice would otherwise result. To the courts mind, the right is not automatic but dependent on whether substantial injustice would otherwise occur if an accused is not represented. The issue for determination therefore is, what is the meaning of substantial injustice? 29.The Supreme Court, in Republic vs Chengo & 2 others (2017) KESC 15 (KLR) held that in determining whether substantial injustice would be suffered in criminal matters, the court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include the seriousness of the offence, severity of the sentence, the ability of the accused person to pay his own legal representation, whether the accused is a minor, the literacy of the accused and complexity of the charge against the accused. The list is not exhaustive and each case is to be determined based on its own peculiar circumstances. 30.In this case, in determining the question of whether the appellant is likely to have suffered substantial injustice due to lack of state funded representation, the court has considered the complexity of the case and whether the appellant was able to follow the proceeding before the trial court and defend himself. Whereas the sentence is severe in view of the nature of the offence, the case was not complex at all. It was mainly based on issues of fact which were directly within the appellant’s knowledge. The witnesses testified on questions of facts and the documents were voluminous or not complex at all. It was therefore not evident or apparent that he suffered any substantial injustice that would require interference of the court. 31.The upshot is that the appeal is lacks merit and is accordingly dismissed. 32.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 30TH DAY OF JULY 2026JOSEPH KIPKOECH BIOMDOJUDGE