https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1409

Mwita v Republic (Criminal Appeal E080 of 2023) [2026] KECA 1409 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1409 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E080 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between George Masese Mwita Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Homabay (W. Kiarie, J) dated 19th October 2022 in HCCRC No. E003 of 2022) Judgment 1.This is an appeal by George Masese Mwita (the appellant) against the judgment of the High Court of Kenya at Homa Bay (Kiarie, J) (the first appellate court), dismissing the appellant’s appeal in Criminal Appeal No. E003 of 2022. 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(3) of the Sexual Offences Act in Sexual Offence Case No. E020 of 2021. 2.The particulars of the offence before the trial court alleged that on 16th June 2021, at [particulars withheld] the appellant defiled [particulars withheld] (the complainant) a child aged 13 years. 3.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 committed an indecent act by touching the buttocks of complainant, a child aged 13 years. The appellant denied the charges. 4.The prosecution’s case was briefly, that the complainant sold boiled eggs worth Kshs. 40 to the appellant, a person well known to her and the appellant asked her to collect her money later from his house. The complainant went to collect the money and the appellant as asked her to pick the money from the pocket of his shirt. When the complainant reached for the pocket, the appellant grabbed her; covered her mouth with a handkerchief and defiled her. In the process, the appellant heard someone coming and let the complainant free. The complainant ran away and met PW4, who was coming to the appellant’s house and asked her name. She told PW4 her name and ran away. 5.The complainant’s father (PW2), received information from a neighbour that the appellant wanted to kill his daughter. He asked PW4, a friend to the appellant, what had happened and PW4 told him that he found the appellant defiling the complainant. PW2 went with PW4 to the appellant’s house and took the appellant to the office of the Beach Management Unit (BMU) and informed the Area Chief. The complainant told her father what had had happened. The appellant was later taken to the police station while the complainant was taken hospital for medical examination. 6.Herbert Ochieng Ouma (PW3), a clinical officer, examined both the complainant and the appellant on 17th June 2021. The complainant had linear cuts on the labia minora; a freshly broken hymen and whitish discharge on the vulva, but there were no spermatozoa. PW3 stated that the injuries were consistent with recent penetration. He did not find any injuries on the appellant’s penis. 7.PW4, a fisherman, testified that he was preparing to go to the lake when he was sent to call the appellant a fellow fisherman. He went to the appellant's house and found the appellant with a young girl in the house but the appellant hurriedly pushed PW4 out of the house. PW4 later inquired from some women within the area whether they knew the complainant and the women informed PW2 about the incident. Shortly after PW2 arrived and the appellant was taken to the office of the Beach Management Unit. 8.PC Felix Aswani, (PW5) stationed at Sena Police Patrol Base when members of the public took the appellant and the complainant to the Base on suspicion that the appellant had defiled the complainant and a report of defilement was made. The complainant explained that the appellant had defiled her when she went to collect her money. The appellant was rearrested and escorted to Mbita Police Station while the complainant was taken to hospital for medical examination. PW5 obtained the complainant’s Birth Certificate which showed that she was 13 years old and the appellant was charged with defilement. 9.The appellant testified in his defence that on the material day he was in the house when the complainant went to collect her money and while she was in the house, PW4 who was drunk arrived and when PW4 saw the complainant in the house, he started shouting and followed the complainant outside. The appellant left and went to work but was later arrested and charged with defilement. 10.The trial court considered the evidence and was satisfied that the prosecution had proved the ingredients of the offence of defilement beyond reasonable doubt, convicted the appellant and sentenced him to twenty (2) years imprisonment. 11.On the question of age, the trial court relied on the evidence of PW5 and the Birth Certificate and concluded that the complainant was 13 years at the time of the alleged incident; on the question whether there was penetration, the trial court relied on the evidence of the complainant and medical examination by PW3 over freshly broken hymen and linear cuts on the labia minora and concluded that penetration was proved. And on the whether or not the appellant defiled the complainant, the trial court relied on the evidence of the complainant and PW4 and made a finding that the appellant defiled the complainant. 12.The appellant was aggrieved and filed an appeal before the first appellate court challenging both conviction and sentence, contending that the trial court erred in: relying on the evidence of PW3, his business rival; failing to take into account the absence of medical evidence linking him to the offence; finding that the complainant’s age had been proved beyond reasonable doubt; relying on insufficient medical evidence on penetration; failing to consider his defence; relying on contradictory and inconsistent prosecution evidence and imposing sentence that was harsh, excessive and contrary to Article 50(2)(p) of the Constitution. 13.In opposition, the prosecution maintained that all the ingredients of the offence were proved beyond reasonable doubt; that the appellant’s defence was a mere denial and that both the conviction and sentence were sound and lawful. 14.Upon re-evaluating the evidence on record, the first appellate court was satisfied that the prosecution proved the age of the complainant through the birth certificate which showed that she was born on 8th February 2008 and therefore she was 13 years at the time of the offence; that penetration was proved by the evidence of the complainant and the medical evidence while the evidence of the complainant and that of PW4 left no doubt that the appellant was the perpetrator of the offence. The first appellate found no merit in the appeal and dismissed in its entirety. The first appellate court noted that although the charge sheet read that the offence was committed under section 8(1) (3) instead of section 8(1) as read with section 8(3) of the Sexual Offences Act, the error did not occasion injustice to the appellant since he fully participated in the trial and, in any case, the error was curable under section 382 of the Criminal Procedure Code. 15.The appellant was not done and has once again filed this second appeal before this Court, contending that the first appellate court erred in dismissing his appeal despite non-compliance with Article 50(2)(h) and (j) of the Constitution, thereby violating Article 47 of the Constitution; that section 213 of the Criminal Procedure Code was not complied with during his trial, an omission the first appellate court failed to address contrary to Article 50 of the Constitution; that both the trial court and the first appellate court failed to safeguard his rights under Article 50(2)(e) of the Constitution and the trial court misapplied the law by placing him on his defence under section 210 of the Criminal Procedure Code. 16.At plenary hearing, the appellant appeared in person while Mr. Chebii, learned prosecution counsel, was present for the respondent. Both the appellant and Mr. Chebii relied on their written submissions in urging their respective positions in this appeal. 17.In his undated written submissions, the appellant submitted that both the trial and the first appellate courts disregarded his rights under Articles 47 and 50(2)(c), (h) and (j) of the Constitution by failing to ensure that he was supplied with the prosecution evidence in advance, thereby denying him adequate opportunity to prepare his defence and that the trial court did not comply with section 213 of the Criminal Procedure Code, an omission that was overlooked by the first appellate court. In support of this submission, the appellant relied on Robert Fanali Akhuya v Republic [2002] eKLR, where this Court emphasized that such an omission is not a mere procedural error. The issue in that appeal was on whether written submission should be filed at the conclusion of the hearing of both the accused and prosecution’s case. That does not seem to have been the case here. 18.The appellant’s further submission was that the trial court applied wrong legal principles by placing him on his defence under section 210 of the Criminal Procedure Code after the close of the prosecution case. He urged this Court to allow his appeal. 19.In opposition, Mr. Chebii submitted that this being a second appeal, it is confined to matters of law only and that this Court ought not to interfere with concurrent findings of fact by the two courts below. Counsel argued that the only issues properly falling for determination in this second appeal, are whether there was sufficient evidence to sustain the charge of defilement against the appellant; whether the conviction was proper and the sentence is lawfully. Counsel submitted that the prosecution proved all the ingredients of the offence of defilement in section 8(1) of the Sexual Offences Act, namely; penetration, the age of the complainant and the identity of the perpetrator. 20.Counsel contended that the complainant was aged 13 years and 4 months and therefore a child; the medical examination confirmed that the complainant had linear cuts on the labia minora, a freshly broken hymen, whitish discharge and evidence of bacterial infection as proof of penetration and that the complainant positively identified the appellant, a person she knew well before the incident, leaving no doubt that the appellant was the perpetrator. Counsel maintained that both the conviction and sentence were proper and lawful. He urged us to dismiss the appeal. 21.This being a second appeal, our jurisdiction is limited to considering questions of law only. This Court cannot re- evaluate the evidence, or disturb the concurrent findings of fact by the lower courts, unless those factual conclusions are not supported by any evidence, or the courts below considered matters they should not have considered, applied wrong principles or failed to consider matters they should have considered. (See Karingo & 2 Others v Republic [1982] KLR 213; Reuben Karari C/O Karanja v R (1956) 17 EACA 146). 22.This Court will not hear an appeal on a matter of fact and in that case, severity of sentence is a matter of fact; or against sentence, except where a sentence has been enhanced by the High Court, unless the subordinate court had no power to pass that sentence. 23.We have considered the grounds of appeal in conjunction with the record, the submissions respectively tendered and the law, and we isolate three broad issues for determination, namely; whether the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt; whether the appellant’s rights were violated and whether the sentence imposed is lawful. 24.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 Sexual Offences Act adopts the definition of a “child” in the Children Act, that is, any human being under the age of 18 years. In this appeal, the actual age of the complainant was not in dispute. PW5 produced the complainant’s Birth Certificate which showed that the complainant was born on 8th February 2008 and both the trial court and the first appellate court were satisfied that the age of the complainant was proved. 25.Regarding penetration, the complainant testified that the appellant defiled her; she was examined by PW3 the Clinical officer who found a freshly broken hymen and linear cuts on the labia minora and concluded that penetration had been achieved. Once again, the trial court and the first appellate court believed this evidence as proving the fact of penetration. 26.And on whether or not the appellant defiled the complaint, the evidence of the complainant that it was the appellant who defiled her, a person well known to her, coupled with the evidence of PW4, described as the appellant’s fried and a fellow fisherman, who found the appellant with the complainant in the appellant’s house, was accepted by the two courts below. The appellant admitted that indeed the complainant was in his house at the material time. 27.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. We have looked at the judgment of the first appellate court to satisfy ourselves that the first appellate court discharged its duty of reevaluating the evidence and reconsidering it in order to reach its independent conclusion and we are satisfied that the first appellate court did so and reached the same conclusion as that of the trial court that the prosecution proved it case against the appellant beyond reasonable, and we agree. 28.Turning to the question whether the appellant’s rights were violated, we have anxiously considered the issue and perused the record of the trial and the first appellate courts. Before the first appellate court, the appellant did not raise any issue regarding violation of his rights under articles 47 and 50(2)(c), (h) and (j) of the Constitution of Kenya; that he was he not supplied with the prosecution evidence in advance; that he was denied adequate opportunity to prepare his defence, or that section 213 of the Criminal Procedure Code was not complied with so that the first appellate court could address those issues, and in case of any omission(s), this Court would deal with them. The record before the first appellate court shows that the only constitutional issue the appellant raised was with regard to Article 50(2)(p) of the Constitution. 29.Article 50(2)(p) provides that every accused person has the right to a fair trial which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time the offence was committed and the time of the sentence. While considering the issue, the first appellate court held that the trial court meted out the only sentence prescribed in law and that sentence was therefore not unconstitutional. 30.We should emphasize that the import of Article 50(2)(p) is that where the sentence for the offence has been changed between the time the offence was committed and the time the appellant was being sentenced, he would have been entitled to the least sentence between the two periods. That is, if at the time of committing the offence the sentence was less and thereafter the sentence was changed, the appellant would be entitled to the lesser of the two sentences. 31.In the appellant’s case, at the time he was sentenced for defilement, the sentence had not changed from the sentence prevailing at the time he committed the offence and, therefore, Article 50(2)(P) did not apply to his case. Moreover, the Supreme Court has clarified the position that the decision in Francis Karioko Muruatetu & another v Republic [2017] eKLR, applies only to murder cases under section 203 as read with section 204 of the Penal Code and not any other mandatory minimum sentences, including in sexual offences. 32.That notwithstanding, the record of proceeding before the trial court shows that after taking plea on 18th August 2021, the trial court directed that the appellant be supplied with witness statements. He was also informed of his right to appoint an advocate of his choice. The appellant was therefore made aware of his right to appoint an advocate of his choice and was to be given witness statements. There is nothing on record to show that the appellant complained that he had not been given witness statements. Indeed, he fully participated in the trial and cross examined witnesses. 33.Regarding the right to have adequate time to prepare under Article 50(2)(c) of the Constitution, there is nothing on record to show that the appellant was denied this opportunity. We also do not see how section 213 was violated. 34.The trial court imposed the only sentence prescribed in law.We, therefore, see no merit in this appeal. 35.The upshot is that this appeal lacks merit and we hereby dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 10TH 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 original.DEPUTY REGISTRAR