https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10264

Makokha v Republic (Criminal Appeal E035 of 2025) [2026] KEHC 10264 (KLR) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 10264 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E035 of 2025 RK Ondieki, J May 22, 2026 Jurisdiction: File Number: Between: Coram: Heard: Delivered: In the High Court at Bungoma HCCRA No. E035/2025. Isaac Kwoba Makokha & Republic. R.K. Ondieki, J. 19th May, 2026. 22nd May, 2026. Between Isaac Kwoba Makokha Appellant and Republic Respondent (Being an Appeal against the Judgment by Hon. J.P. Nandi (SPM) in Senior Principal Magistrate’s Court at Kimilili, Case No. E097of 2023, Delivered on 26th March, 2025) Judgment Introduction: 1.The Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 held: - “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.In Kiilu & Another Vs. Republic [2005]1 KLR 174, the Court of Appeal 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; 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.Elizabeth Juma (PW1) told court that on 8th October, 2023, she sent the victim to the Berber Shop to pick a mobile phone Charger and on her way back, she met the “Kangumu man” who took her to a house and defiled her. Thereafter, he gave her “kangumu”. The witness noticed that the child was walking by dragging her leg besides bleeding from her vagina. She also saw sperms on her victim’s vagina. The issue was escalated to the police and the victim was taken to the hospital for treatment. Treatment notes, P3 Form and PRC were marked as MFI 1, 2 and 3 respectively. 4.Betty Mukhwana KhaembaPW2) told court that on 8th October, 2023, she was asked to interrogate the victim to open up what was up because she was crying and bleeding from the nose. That is when she disclosed that she was defiled by “kangumu” who enticed her with “kangumu”. The matter was reported to village elder and due process ensued. The accused was arrested and the victim taken to hospital. 5.The court conducted a voire dire on the victim S.N.W.(PW3) and was found intelligent enough to give sworn testimony. The victim said that he had gone to pick a mobile phone from a Berber shop when he met the accused alias “kaangumu” behind a bakery who offered him “kaangumu”. He took her to his house and defiled her. She sustained injuries to vagina and was bleeding both from her nose and vagina. 6.PC Daniel Wachie (PW4) investigated the matter and produced blood stained skirt, T-shirt as Exhibit 4(a), 4(b) and underpants as Exhibit 4(c). 7.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 8th October, 2023 at Kamukuywa Market in Kimilili Sub- County within Bungoma County, intentionally caused his penis to penetrate the vagina of S.N.W. a child aged 6 years. 8.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 8th October, 2023 at Kamukuywa Market in Kimilili Sub- County within Bungoma County, intentionally caused his penis to come into contact with the vagina of S.N.W a child aged (6) years. 9.The Appellant Isaac Makokha Kwoba in his sworn testimony told court that he does vend charcoal and on the material date he had gone to Kitale for charcoal and on coming back, he lost his ID card and went to Kamukuywa Police Station to report but instead he was arrested and charged with this offence. 10.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;a.That the learned trial Magistrate erred in law and fact because did not plead guilty.b.That the learned trial Magistrate erred in law and fact as the evidence did not reach the threshold standard.c.That the learned trial Magistrate erred in law and fact because his alibi defence was not considered.d.That the learned trial Magistrate erred in law and fact because the sentence meted was harsh.e.That the learned trial Magistrate erred in law and fact because his right to legal representation was violated.f.That the learned trial Magistrate erred in law and fact because legislature under section 8(2) of the SOA No. 3 of 2006 does not provide for a minimum or maximum. 11.The Respondent and the Appellants filed written submissions and relied on them. Analysis and Determination: 12.I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent. 13.In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed as follows: “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...” 14.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). 15.In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the court held: “The critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant. 16.In the case of Kaingu K. Kasamo Vs R CR Appeal No. 504 of 2010 where the Court of Appeal 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 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. 17.These are just but a few of the decisions which sets the tempo of my analysis in an offence of defilement. 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. 18.The first lamentation by the Appellant was on alleged error on the part of the learned magistrate’s finding, that he did not plead guilty. I have perused the primary file and note that the plea was read to the appellant in Kiswahili, a language he understood to which he replied that it was not true and accordingly, plea of not guilty was entered. Consequently, the case proceeded to full trial and the appellant participated fully to its conclusion and even cross examined the witnesses. 19.The 2nd lamentation is that the prosecution case was wanting. I have set the law on defilement in the previous paragraphs of this judgement.a.Age of the victim: The law is now settled, that it can be proved by medical evidence, age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense. The trial Magistrate in this case settled on the Age Assessment Report produced as Exhibit 5, which show, that the victim was at 21st November, 2023, the victim was aged 8 years old.b.Penetration: The law is equally distilled that penetration can be partial or full. PW5 told court that upon examination of the victim n 11th October 2023, there was inflamed swollen labia and lacerations and freshly torn hymen. The witness concluded that the victim was defiled and he produced the treatment notes, PRC form and age assessment report as Exhibits 1,2 and 5 respectively. This is proof enough that the victim was defiled.c.Positive identification by the assailant: The victim’s testimony was clear that the appellant is also known as “Kangumu” working at a bakery and sells “Kaangumu”. Because he is a resident in the neighbourhood, he was traced and the victim was able to recognize him. He was arrested and taken to the police station. In his defence, the appellant does not deny the description of his alias name. Instead, thereof, he gives alibi that on the material date, he had travelled to Kitale only to be arrested when he came back to the village. To this extend, there is no dispute that he hails from the neighbourhood and goes by the name “kaangumu”. This analysis also covered the issue of contradiction on the part of the victim. This element has been proved beyond reasonable doubt. 20.The 3rd lamentation is that the trial magistrate failed to consider a defence of alibi that the appellant had raised. It is clear that the appellant raised this defence at the defence stage. The law is clear on alibi. in the case of R Vs Sukha Singh S/O Wazir Singh & Others (1939) 6EACA 145 that if a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there’s naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment, it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped. 21.In the case of Victor Mwendwa Mulinge Vs Republic {2014} eKLR the court of appeal rendered itself on the issue of alibi that it is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution (Karanja Vs Republic {1983}KLR 501) where court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilty is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought. 22.It must be recalled that the accused raised the defence of alibi at the defence stage, which would not have afforded the Prosecution opportunity to test and approve or disapprove it. This was an afterthought and in law, it is no defence. 23.The 4th lamentation was on excessive, harsh and punitive punishment. The Court of Appeal has given guidelines as to when a sentence can be altered. The Court of Appeal for East Africa in the case of Ogola s/o Owoura Vs Reginum (1954) 21 270 as follows: - "The principles upon which an Appellate Court will act in exercising its jurisdiction to review sentences are firmly established. The Court does not alter a sentence on the mere ground that if the members of the Court had been trying the appellant they might have passed a somewhat different sentence and it will not ordinarily interfere with the discretion exercised by a trial Judge unless, as was said in James V R., (1950) 18 E.A.C.A 147: "It is evident that the Judge has acted upon some wrong principle or overlooked some material factor." To this we would also add a third criterion, namely, that the sentence is manifestly excessive in view of the circumstances of the case: R. V Sher Shewky, (1912) C.C.A. 28 T.L.R. 364." 24.Equally, the High Court case of Wanjema VS R. 1971 E.A 493, at page 494, letters (D) to (E) the court said: -"A sentence must in the end, however, depend upon the facts of its own particular case. In the circumstances with which we are concerned, a custodial order was appropriately made. But that which was made cannot possibly be allowed to stand. An appellate court should not interfere with the discretion which a trial court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case. The instant sentence merits this court's interference with it on each of these grounds. No account was taken as it should have been, of the fact that the appellant pleaded guilty: Skone (1967), 51 Cr. App. R. 165 and Godfrey (1967), 51 Cr. App. R. 449 (This admits of no doubt because the magistrate awarded the maximum sentence to this first offender; which of itself is unusual.) Matter extraneous to the trial was acted upon for the magistrate bore in mind that he had "issued a warning only last week that dangerous drivers will be dealt with severely by the court." 25.In Bernard Kimani Gacheru Vs. Republic, Cr App No. 188 of 2000 this Court stated thus: It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account, some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. 26.Therefore, it is clear that sentencing is a discretion of the trial court and the Appellate Court cannot interfere unless it is excessive in the circumstances. Where a minimum sentence is provided by the Statute, the court is put on straight jacket. 27.For instance, when Muruatetu & Another Vs Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment), was delivered, there was a new dawn which untied the hands of the Judicial Officers and Judges, on sentencing. By expansive reasoning of this jurisprudence, the courts under, were granted, carte blanch, to interfere with mandatory sentences in other Statutes, including Sexual Offence Act No. 3/2006. However, this was short lived. Come on 6th July, 2021, the Supreme Court issued directions on the application of the jurisprudence. At paragraph 10 of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), it is recorded; “ It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it. In that paragraph, we stated categorically that; “48: Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under article 25 of the Constitution; an absolute right”. 28.It is therefore clear that, where a minimum sentence has been provided, the court cannot interfere as that would amount to an overreach of the mandate of others Institutions. Additionally, in those directions, it was clear that if a provision of law is unconstitutional, then a petition can be filed in the High Court and the same be canvassed through the tiers of the courts up to the Supreme Court, for final declaration. 29.Back to the case at hand, the Appellant was charged with defilement contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006 which enacts; “8. (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.” The age assessment adduced as exhibit show that the victim was (8) years as at 21st November, 2023 thus, below 11 years within the age bracket for the purposes of sentence. I find the sentence was proper and I cannot interfere with it. 30.The 5th lamentation relates to the violation of the Appellant’s right of representation. I have perused the primary file proceedings and I note that the appellant did not raise any issue of his inability to represent himself. Instead, the proceedings disclose that he fully participated in the entire trial and even cross examined the witnesses. Had the appellant raised his inability to represent himself, then, a referral would have been made, in view of the Legal Aid Act, 2016.Disposal:a.The Appeal lacks merit and is hereby, dismissed. DELIVERED VIRTUALLY THIS 22ND MAY, 2026 IN THE PRESENCE OF THE APPELLANT, MS MATERE FOR ODPP AND COURT ASSISTANT, AZIZA ABDI.ORDERS ACCORDINGLY.R.K. ONDIEKIJUDGE.