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Makenzi v Republic (Criminal Appeal E021 of 2022) [2026] KECA 1146 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1146 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E021 of 2022 MS Asike-Makhandia, HA Omondi & LK Kimaru, JJA June 12, 2026 Between James Kayanda Makenzi Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Kakamega (Musyoka, J.) dated 11th December, 2019 in Criminal Appeal No. 34 of 2019) Judgment 1.The appellant, James Kayanda Makenzi, has preferred this second appeal against the judgment of the High Court which upheld his conviction and sentence for the offence of defilement contrary to Section 8(1) as read together with Section 8(3) of the Sexual Offences Act. The particulars of the offence were that on 16th November, 2017, at [Particulars Withheld], [Particulars Withheld] Sub-location within Vihiga County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of P.M., a child aged 13 years. 2.The appellant faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. The particulars of the offence were that on the same day and at the same place, he intentionally and unlawfully touched the vagina of P.M., a child aged 13 years, with his penis. 3.The appellant was tried before the Principal Magistrate’s Court at Vihiga. The evidence adduced before the trial court by the prosecution, was that the complainant lived with her aunt, EM (PW1) and two of her younger cousins. On the material date of 16th November, 2017, PW1 had travelled to Malava to attend a funeral. The complainant stated that she was asleep in the house, together with her cousins when she heard the kitchen window fall. She switched on a spotlight and saw the appellant standing next to the curtain that separated the kitchen from the living room. The appellant ordered her to switch off the spotlight. She went back to the sitting room where they were sleeping. The appellant followed her, removed her clothes and inserted his penis in her vagina. He then told her to follow him outside the house and led her to a maize plantation where he defiled her again. 4.It was the complainant’s testimony that after the incident, the appellant asked her if she knew him. Fearing for her life, she answered in the negative. The appellant let her go and she returned to the house. The following morning, she reported the matter to the area assistant chief, who escorted her to Vihiga Police Station. She was later treated at Vihiga County Referral Hospital. The complainant told the court that the appellant was well known to her as he was a neighbour, and that she lied that she did not know him since he was armed with a knife. PW1 testified that the complainant was 14 years of age at the time. 5.PW3, D.O., was one of the appellant’s cousins who was present in the house on the material night. It was her testimony that she heard some commotion in the kitchen and told the complainant to switch on the lights. The complainant had a spotlight which she put on. PW3 stated that she saw the appellant in the sitting room. The appellant ordered the complainant to switch off the spotlight. After a short while, she heard the complainant, who was sleeping on a separate mattress, raising an alarm. She then heard a voice telling the complainant to stop crying, or else he would hurt her. The voice then asked the complainant to wake up and they left the house using the rear door. When the complainant came back to the house, she started raising an alarm. PW3 stated that she was able to identify the appellant as the spotlight was on him before he ordered the complainant to switch it off. PW3 stated that the appellant was standing next to the curtain, and that he was bare chested but wearing a pair of dirty jeans. 6.PW4, Reuben Amuyunzu, the area Assistant testified that the complainant reported to him that she had been defiled on 16th November, 2017, at about 9.00 p.m., by the appellant. PW4 stated that the complainant identified the appellant by name. PW4 instructed one of the community policing officers to escort the appellant to his office. He then took the complainant and the appellant to Vihiga Police Station. PW4 testified that the appellant lived about 300 meters from the complainant’s house. 7.PW5, Sammy Chelule, who was at the time based at Vihiga County Referral, testified that he examined the complainant and filled out her P3 form on 17th November, 2017. She was alleged to have been defiled the previous night at 9.00 p.m. PW5 told the court that upon examination of the complainant’s genitalia, he noted that her hymen was freshly torn, reddish, and her labia minora was bruised. The complainant also had a tear in her vagina. He formed the opinion that there had been penetration. 8.PW6, CPL Jackton Owino, testified that he was on duty at Vihiga Police Station on 17th November, 2017, when the complainant came and reported that she had been defiled. The complainant informed him that she was asleep in PW1’s house when she heard someone access the house through the kitchen window. The perpetrator, who was armed with a knife, defiled her in the house, and again at a nearby maize plantation. She reported the incident the following morning to the area assistant chief (PW4), who escorted her to the police station. PW6 stated that the complainant identified the perpetrator by nickname ‘Koti’. 9.The appellant, in his sworn statement, denied the allegations as narrated by the complainant. He testified that he was not medically examined and that no evidence was led to connect him to the offence. He admitted that PW1 was his neighbour and the complainant knew him very well. He stated that PW1 was like a mother to him and that she had hired him on several occasions to do manual labour at her property. 10.After full trial, the appellant was found guilty as charged in the main count of defilement. He was sentenced to serve twenty- five (25) years’ imprisonment. 11.The appellant, aggrieved by this decision, filed an appeal before the High Court of Kenya at Kakamega. He challenged his conviction and sentence on grounds that the trial court failed to: appreciate that Section 48 of the Evidence Act was not complied with; appreciate that the investigations were shoddily done; consider that the circumstances which prevailed were not favourable for a positive identification; and, failed to give proper consideration to his defence. 12.The first appellate court upheld the conviction and sentence meted by the trial court, after re-evaluating the record of the trial court, and the evidence tendered before it. 13.The appellant is before us on a second appeal. He has proffered three (3) grounds of appeal. The appellant faulted the learned Judge for relying on the evidence of identification, which in his view, was insufficient to sustain a conviction. He was aggrieved that his right to a fair trial was violated, for reasons that he was not furnished with witness statements by the prosecution during trial. He contended that he was denied his absolute and non-derogable constitutional right to be sentenced to the least severe punishment, as envisaged in Articles 25(c) and 50(2)(p) of the Constitution. 14.The appeal was heard by way of written submissions. The appellant appeared in person. It was his submission that since identification was alleged to be by recognition, the complainant did not identify him by name in the report she made to the police or at the earliest opportunity. The appellant contended that according to PW5’s evidence as well as the P3 form, the complainant identified her perpetrator as ‘Koti’, which nickname was not linked to him by the prosecution. He maintained that PW4’s testimony that the complainant identified him by name was not credible. He submitted that the circumstances at the scene were not favourable for a positive identification to be made as the complainant switched on the spotlight for a very short time. He maintained that the evidence of identification was not tested with the greatest of care by the two courts below as required. 15.It was the appellant’s further submission that the proceedings before the trial court were fatally defective for reasons that he was not furnished with witness statements prior to the commencement of the trial. He contended that his right to a fair trial, and particularly the right to be benefit from the least severe sentence, was an absolute and non-derogable right, and that the trial court erred in enhancing his sentence from the prescribed minimum sentence of twenty (20) years. 16.In response, Mr. Kilambyo, Assistant Director of Public Prosecutions, submitted that the complainant was clear in her testimony that she identified the appellant when she shone the spotlight on him on the material night. He explained that the appellant was well known to the complainant as he was a neighbour. He pointed out that the complainant’s cousin, PW3, confirmed that the complainant switched on the spotlight before the appellant asked her to switch it off. He submitted that the appellant himself admitted that the complainant knew him well. He maintained that the appellant was properly identified in the circumstances. 17.Mr. Kilambyo further submitted that an accused person is under obligation to inform the court that he had not been supplied with witness statements or any other material as ordered by the court. He argued that in this case, when the case came up for hearing, the appellant informed the court that he was ready to proceed, and that at no point during the entire trial did he mention that he had not been furnished with the said statements. He submitted that the appellant actively participated in the trial, an indication that he was well prepared and had the statements. 18.Regarding the sentence, prosecution counsel submitted that although Section 8(3) of the Sexual Offences Act prescribed a minimum sentence of 20 years, the trial court considered the pre-sentence report which indicated that the appellant was an adult who took advantage of a minor, and that the complainant was traumatized by the incident, and in its discretion, meted out the sentence of 25 years which was lawful. He urged us to dismiss the appellant’s appeal on both conviction and sentence. 19.This being a second appeal, the mandate of this court on a second appeal was aptly stated in the case of Dzombo Mataza v Republic [2014] eKLR, where this Court expressed itself in the following terms;“As already stated, this is but a second appeal. Under the law we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court…. By dint of the provisions of section 361(1) (a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it be shown that the two courts below considered matters of fact that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 20.We have carefully considered the memorandum and record of appeal, the submissions by both parties, and the law. We form the opinion that the issues arising for our determination are:i.Whether the appellant was positively identified as the perpetrator;ii.Whether the appellant’s right to a fair trial was violated, for reasons that he was not furnished with witness statements; and,iii.Whether the sentence imposed on the appellant was sound in law. 21.Starting with the first issue, the appellant contended that the circumstances prevailing at the time were not favourable for a positive identification to be made, and that the prosecution failed to establish that the nickname “Koti” referred to him. We find no merit with this assertion. The complainant gave a cogent and consistent account of how she was able to identify the appellant on the material night. She testified that upon hearing the kitchen window fall, she switched on a spotlight and saw the appellant standing near the curtain that separated the kitchen from the sitting room. She further stated that the appellant was well known to her as a neighbour and that she initially denied knowing him in his presence only because he was armed with a knife and had feared for her life. 22.The evidence of the complainant was in material part corroborated by PW3, who was present in the house on the material night. PW3 confirmed that the complainant switched on the spotlight and that he too saw the appellant before he ordered the complainant to switch off the light. PW3 gave a description of the appellant as being bare-chested and wearing a pair of dirty jeans. The consistency between the complainant’s testimony and that of PW3 significantly strengthened the prosecution case on identification. 23.Further, the complainant made a prompt first report the very next morning to PW4 and identified the appellant by name as the person who had defiled her. Acting on that report, PW4 caused the appellant to be apprehended and escorted to his office before taking both the complainant and the appellant to Vihiga Police Station. The significance of a prompt first report naming an assailant cannot be overstated, as it considerably reduces the likelihood of fabrication or mistaken identity. Indeed, during further cross-examination, PW1 confirmed that the complainant informed him that it was the appellant, whom she identified by name, who had defiled her. 24.The appellant’s contention regarding the nickname “Koti” is equally unpersuasive. PW6 testified that the complainant identified the perpetrator by that nickname. Notably, the appellant never challenged or questioned the use of that nickname during the cross-examination of PW5 or the other prosecution witnesses. In any event, the evidence on record overwhelmingly established that the complainant and the appellant were neighbours who knew each other well. The appellant himself admitted as much in his defence and further stated that PW1 frequently engaged him for manual labour. This was therefore a case of recognition, which is generally more reliable than the identification of a stranger. This Court in Reuben Taabu Anjononi & 2 others v Republic [1980] KECA 23(KLR) held that:“This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other.” 25.We are further satisfied that there was no evidence of any grudge, bad blood, or ulterior motive on the part of the complainant or her family that would have prompted a false accusation to be made against the appellant. The two courts below properly cautioned themselves on the danger attendant to consideration of evidence of identification and, upon our own evaluation of the record, we are satisfied that the appellant was positively identified and that the possibility of error was completely excluded. 26.Turning to the second issue for determination, on the complaint that the appellant was not furnished with witnesses’ statements, the record does not support that contention. It is evident that after plea was taken, the trial court directed witnesses’ statements to be supplied to the appellant. Thereafter, at no stage during the proceedings did the appellant notify or alert the court that he had not been provided with the said statements or that he required additional time to prepare his defence. On the contrary, when the case came up for hearing, the appellant expressly indicated that he was ready to proceed. By electing to proceed with the hearing without complaint, the appellant implicitly confirmed that he had been furnished with the witnesses’ statements and was prepared to answer the prosecution’s case. 27.The record further demonstrates that the appellant actively participated in the trial by extensively cross-examining prosecution witnesses and tendering his sworn defence. His participation clearly demonstrated familiarity with the prosecution case and the evidence that was being advanced against him. In the circumstances, we are unable to discern any prejudice occasioned to the appellant. 28.The Supreme Court in Hussein Khalid & 16 Others v Attorney General & 2 Others Petition No. 21 of 2017 underscored that where an accused person alleges non- disclosure of witnesses’ statements or other prosecution materials, the obligation rests upon such accused person to bring that fact to the attention of the trial court at the earliest opportunity so that appropriate directions may be issued. The apex court noted as follows:“Indeed, it is salutary practice for the trial Court to satisfy itself that an accused person has all the reasonable facilities for his defence and the prosecution discloses all documents before commencement of trial. However, an accused person has an obligation to bring it to the attention of the Court that he has not been supplied with the witness statements (or any other prosecution documents) as ordered by the court. This minimum obligation on the accused person triggers the court’s duty to ensure the documents are supplied before commencement of the trial.” 29.In the present case, the appellant remained silent throughout the proceedings and only raised the issue on appeal after conviction. The right to disclosure is intended to facilitate a fair trial, but an accused person who fully participates in proceedings without complaint, and effectively cross-examines witnesses, cannot later seek to invalidate the trial absent proof of actual prejudice. We are therefore satisfied that the appellant’s right to fair trial under Article 50 of the Constitution was not violated. 30.On sentence, the appellant argued that the trial court erred by imposing a sentence of twenty-five (25) years instead of the statutory minimum sentence of twenty (20) years provided under Section 8(3) of the Sexual Offences Act. We note that Section 8(3) prescribes a minimum sentence, thereby leaving the trial court with discretion to impose a higher custodial sentence depending on the circumstances of the case. Sentencing remains a matter within the discretion of the trial court, and an appellate court will not interfere with the sentence unless it is shown that the court acted on wrong principles, overlooked material considerations, or imposed a sentence that is manifestly excessive or illegal. 31.The record shows that before passing sentence, the trial court considered the appellant’s mitigation together with the pre- sentence report. The court also took into account the gravity of the offence, the fact that the complainant was a minor, and the trauma she suffered as a result of the ordeal. The appellant, an adult and neighbour to the complainant’s family, took advantage of the situation when the complainant’s guardian was away attending a funeral. The offence involved repeated acts of defilement, both inside the house and later in a maize plantation. In those circumstances, the sentence of twenty-five (25) years imprisonment cannot be said to have been harsh, unlawful, or excessive. The sentence imposed was within the law and represented a proper exercise of judicial discretion. 32.Accordingly, we find no merit in the appeal against either conviction or sentence. This appeal fails and we order that it be dismissed. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA.............................. JUDGE OF APPEALH.A. OMONDI............................ JUDGE OF APPEALL. KIMARU........................... JUDGE OF APPEALI certify that this is a true copy of original.DEPUTY REGISTRAR