https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1145

Arap Tele v Republic (Criminal Appeal 8 of 2019) [2026] KECA 1145 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1145 (KLR) Republic of Kenya In the Court of Appeal at Nakuru Criminal Appeal 8 of 2019 M Ngugi, MB Kairaria & PM Gachoka, JJA June 12, 2026 Between James Kiprugut Arap Tele Appellant and Republic Respondent (An appeal from the judgment of the High Court of Kenya at Nakuru (L. N. Mutende, J.) delivered on 13th December 2018inHC.CR.A NO. 75 0F 2017) Judgment 1.James Kiprugut Arap Tele, the appellant, was arraigned at the Chief Magistrate’s Court at Molo in Criminal Case No. 3480 of 2015 charged with two counts under the Sexual Offences Act NO. 3 of 2006. 2.On the main count, the appellant was charged with the offence of defilement of S. N a girl of 7 years, contrary to Section 8[1] as read with Section 8[2] of the Act. The particulars are that on the 4th day of November 2015 at [Particulars Withheld] Trading Centre in Molo Sub-County of Nakuru County the appellant intentionally caused his penis to penetrate the vagina of S.N a child aged 7. 3.In the alternative count, the appellant was charged with the offence of committing an indecent act with S. N a child aged 7 years contrary to Section 11[1] of the Sexual Offences Act No. 3 of 2006. The particulars of the offence are that the appellant, James Kiprugut Arap Tele, on the 4th Day of November 2015 at [Particulars Withheld] trading Centre in Molo Sub County of Nakuru County intentionally touched the vagina of S. N a child aged 7 years with his penis. 4.The appellant pleaded not guilty to both charges on 6th November 2015. Upon hearing and considering the evidence of the prosecution witnesses consisting of LWM [PW1] the complainant’s mother, S. N the complainant [PW2], Dr. Hillary Kubai [PW3], PC George Marita [PW4] [IO] the learned magistrate in a ruling dated 25th May, 2017 found a prima facie case had been sufficiently established requiring the appellant to be put to his defence. 5.The appellant gave sworn testimony and called no witness in his defence. He testified that he was a construction worker and on the material day, he was sent by his boss to Salgaa to collect 30 bags of cement but only found 10 bags. He arranged for the 10 bags to be transported while he waited for the rest. He waited until 5.00 O’clock then left for [Particulars Withheld], arriving there at 5.30 p.m, helped put the cement bags in the hardware shop, then left for his home. It rained heavily. The complainant’s mother went to his home and alleged that he had defiled her daughter. He stated that he never committed the offence and the complainant’s mother brought up the allegation because he denied her the chance to pick firewood and fetch water from his well. 6.The learned magistrate evaluated and considered the evidence tendered by both the prosecution and the defence and concluded that the prosecution had proved the three ingredients of the offence of defilement [age of the complainant, penetration and identity of the assailant] against the appellant beyond reasonable doubt. 7.Consequently, the Magistrate found the appellant guilty, convicted him of the offence of defilement and sentenced him to life imprisonment in the judgment delivered on 4th September 2017. 8.Aggrieved by the trial court’s decision, the appellant lodged an appeal in the High Court of Kenya at Nakuru - HCCR Appeal No. 75 of 2017 on three grounds faulting the trial magistrate for failing to; appreciate that the complainant’s age had not been conclusively proved; b] find that the prosecution had not proved its case beyond reasonable doubt and c] advance reasons as to why he dismissed the appellant’s defence. 9.The appeal at the High Court was heard by L.N Mutende J on 8th November 2018, who found it lacked merit and dismissed it in its entirety in the judgement delivered on 13th December 2018. 10.The appellant was dissatisfied with the dismissal of his first appeal and has preferred the appeal now before us. He lodged a notice of appeal and memorandum of appeal in which he faults the first appellate court for upholding the conviction based on evidence that violated his fundamental rights, failing to appreciate that the medical evidence adduced did not corroborate the charges and relying on the judgement of the trial magistrate instead of coming up with its own findings. 11.In his amended grounds of appeal, the appellant contends that the learned first appellate judge erred in law by:a.violating the sentencing principles and the appellant’s constitutional rights when she affirmed the sentence of life imprisonment, without due regard to the principles of proportionality, individualization of sentence and rehabilitation contrary to articles 50[2] [p] and [q] of the constitution of Kenya 2010;b.Upholding a conviction and sentence without considering that the appellant was neither informed of his right to legal representation nor provided with an advocate at the state’s cost, yet he was facing an offence whose mandatory sentence is life imprisonment;c.Upholding a conviction where the prosecution failed to prove the essential elements of defilement to the required standard of proof beyond reasonable doubt;d.failing to appreciate that the prosecution did not call material witnesses whose omission contravenes Section 143 of the Evidence Act and undermines the integrity of the prosecution’s case;e.Failing to consider the appellant’s defence of alibi and mitigation which were raised during trial. 12.The appeal was canvassed by way of written submissions on 16th March 2016. The appellant appeared in person and relied on his undated written submissions while the respondent was represented by learned Prosecution Counsel Mr. Kiarie Eric Kiarie who relied on his undated written submissions which we have considered. 13.This being a second appeal, our jurisdiction is circumscribed to considering questions of law only, questions of fact, which include severity of sentence, being the sole preserve of the trial and first appellate courts except in exceptional circumstances, for instance where the trial court had no power to pass a sentence. [See Sichei V Republic [Criminal Appeal NO. 8 OF 202[2025] KECA 152 [KLR] where this Court succinctly stated the duty of this Court on a second appeal at par. 8:“This being a second appeal, the Court’s duty in a second appeal as provided under section 361[1] of the Criminal Procedure Code is to consider only matters of law.The Court was echoing and re-stating the position stated earlier in Karani Vs Republic [2010]. This is a second appeal. By dint of the provisions of Section 361[1] of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellant 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 decision, in which case the omission or commission would be treated as a matter of law.’’ 14.The appellant has submitted that the first appellate court committed infractions of the law when it upheld both conviction and sentence. The respondent demurs and counters that the High Court properly exercised its role as a first appellate court. 15.On ground one in the amended grounds of appeal, the appellant submits that the sentence of life imprisonment, though prescribed in Section 8[2] of the Sexual offences Act, is manifestly harsh, excessive and disproportionate in the circumstances of this case, and it must not be applied mechanically. 16.The appellant complains that the trial court did not individualize the sentence to the appellant’s personal circumstances contrary to the Sentencing Policy Guidelines 2023. In particular paragraph 4.1, in that the trial court failed to consider mitigating factors before passing sentence as mandated by Section 216 and 329 of the Criminal Procedure Code, the appellant was unrepresented, a first offender, and an elderly man of 70 years. The appellant argued that failure to individualize sentence violated principles of justice and fairness enshrined in Articles 28 and 50 of the Constitution as underscored in recent jurisprudence enunciated by the High Court in Kioko vs.Republic [2024] KEHC17072 [KLR] and the Court of Appeal in Kimani vs. Republic [2024] KECA 1080[KLR] and Gitau vs. Republic [2024] KECA 1649 [KLR]. 17.The appellant further contended that by imposing a life sentence without due regard to his advanced age, his status as a first offender and the prospects of rehabilitation, the trial court erred in principle. For these reasons, he prays that we set aside the sentence of life imprisonment and substitute it with a determinate custodial sentence that is just, fair and proportionate in the circumstances. 18.We do not consider this ground of appeal regarding imposition of the life sentence valid and sustainable in light of the clarification by the Supreme Court in Republic vs. Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa [ISLA] & 3 OTHERS [Amicus Curiae] [Petition E018 OF 2023] [2024] KESC 34[KLR] that mandatory minimum sentences in the Sexual Offences Act are constitutional and Courts are duty bound to pass it in appropriate cases. 19.On ground two, the appellant submits that his fair trial rights under article 50[2] [g] and [h] of the Constitution of Kenya were violated in that the trial court failed to promptly inform him of his right to choose and be represented by an advocate, and to have an advocate assigned to him. He complains that his request for an adjournment in order to get a lawyer was not treated with the seriousness it deserved and submitted that failure to do so fatally undermined the fairness of the proceedings, occasioned grave prejudice and renders the conviction unsafe. 20.We observe that this ground is not properly taken before us.It is in our view quite belated and unsustainable because: first, it was not one of the grounds urged before the first appellate judge; and secondly, the record shows that the appellant’s request for adjournment to procure the services of a lawyer was in fact granted. He was allowed time to do so and the case fixed for mention on 12th July 2016, but he did not do so. When he was put on his defence, he stated that he was ready to proceed with his defence. From the record, the appellant appears to have been quite aware of his rights as an accused person. We note that he pleaded not guilty when the charge was read to him on 6th November 2015; he informed the trial court on 18th March 2016 that he had not been provided with the witness statements of the complainant, arresting officer, investigating officer and the extract of the OB and asked relevant questions in cross- examination. 21.Regarding the third ground of appeal, the appellant submitted that the prosecution failed to discharge its burden of proving the three essential ingredients of the offence of defilement to the requisite standard of proof, beyond reasonable doubt. He submitted that proof of the age of the complainant is a critical element in sexual offences, underscored in Munene vs. Republic [2023] KECA 812[KLR].He contended that the statement by PW1, the complainant’s mother, that she was 9 years at the time of the trial without producing any documentary evidence such as a birth certificate, baptismal card or school reports was not sufficient. 22.We have considered the appellant’s submissions on this issue. It is trite law that documentary evidence is not the only legally recognized method of proving age under the Sexual Offences Act. The mother of the child can properly testify with a degree of certainty on age, and the fact that no age assessment is done or produced cannot, in and of itself, discount the other credible evidence on record relating to the age of the minor. 23.Regarding the issue of penetration, the appellant contended this was not proved because the medical evidence adduced was inconclusive, uncorroborated, and failed to link the appellant to the alleged act of penetration. Lastly, on the issue of identification of the assailant, it was submitted that the appellant was not positively identified as the perpetrator 24.As to whether the three essential ingredients of defilement were proved, there are concurrent findings of fact by both courts that they were indeed proved beyond reasonable doubt. Firstly, we note that clear evidence on the three elements was tendered at the trial court. The complainant and her mother testified that the complainant was 9 years old at the time of the trial in the year 2017, which proved that the age of the complainant was 7 years in November 2015 when the offence was committed. This was confirmed by the complainant’s health card produced as an exhibit at the trial by the investigating officer in which it was indicated that the complainant was born on 23rd December 2007. 25.Secondly, the trial court found that penetration was proved by the combined evidence of the minor and the doctor who examined her and filled the P3 form. The doctor, Hillary Kubai, testified that according to the P3 form and out patient treatment notes tendered as exhibits 1 and 2 respectively, the complainant’s hymen was freshly torn and bloody, her vagina was swollen and there was presence of non-mobile spermatozoa in her genitalia. The appellant’s submission that the medical evidence adduced was inconclusive is not supported by the record. 26.Thirdly, the appellant was positively identified by the minor and she informed her mother that it is the appellant who defiled her. He was a neighbour and well known to the complainant as ‘’grandfather’’. 27.The appellant’s alibi defence was considered by both courts and discounted as untruthful and not cogent enough to dislodge the evidence adduced by the prosecution. In this regard, the trial court stated as follows in its judgment;“The accused was well known to the complainant. The offence took place during day time. The complainant clearly saw the person who defiled her and she even stated that there was nobody else in the house during the incident. The complainant did not have a grudge against the accused to implicate him. If it was not the accused who defiled her she would not have stated so. The complainant is a minor aged 7 years old whom to me was a truthful witness. She was conversant and consistent in her testimony . She told the court the truth of what transpired despite being a child of tender years. The defence by the accused to me did not hold any water and has not shaken the prosecution’s evidence. The accused indeed confirmed that on the material date it rained heavily. He took advantage of the heavy rain and the fact that no body could hear what was going on and committed the offence. The complainant identified her assailant by recognition who was well known to her. The accused was at the scene on the alleged date and time and committed the alleged offence. The defence is therefore dismissed.’’ 28.The first appellate court re-evaluated the evidence as it was its duty to do and stated as follows at paragraph 20 in the impugned judgment:“A re-consideration of the case in its entirety clearly shows that the learned Magistrate’s finding could not be faulted. She reached a correct finding and imposed a sentence prescribed in law.’’ 29.Upon our own independent review of the record, we entirely agree with the concurrent findings of the two courts below. We are satisfied that the first appellate court was right in upholding both the conviction and sentence. The sentence of life imprisonment is lawful. It is what is provided for defilement of a child of less than 11 years. The trial court and the first appellate court were respectively bound to impose and uphold it as it reflects the true state of the law in regard to statutory mandatory sentences as clarified and laid out in binding precedent of the Supreme Court of Kenya in Republic vs. Manyeso [Petition No. E013 of 2024][ 2025] KECA 16[KLR]. The authorities cited by the appellant on the validity and constitutionality of statutory mandatory life sentence do not represent the current state of the law on the subject in Kenya. 30.Accordingly, we find that the first appellate Judge did not err in law when she upheld the appellant’s conviction and sentence. We are satisfied that the appellant was properly convicted for the offence of defilement and lawfully sentenced to life imprisonment. 31.In the end, we come to the conclusion that this appeal fails and is hereby dismissed in its entirety. DATED AND DELIVERED AT NAKURU THIS 12TH DAY OF JUNE, 2026.MUMBI NGUGIJUDGE OF APPEAL......................................M. GACHOKA C.Arb, FCIArb.JUDGE OF APPEAL......................................MURUNGI B. KAIRARIAJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR