https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11782

JKM v Republic (Criminal Appeal E105 of 2024) [2026] KEHC 11782 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 11782 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E105 of 2024 FN Kyambia, J July 29, 2026 Between JKM Appellant and Republic Respondent (Being an Appeal from the decision by D. Wasike Principal Magistrate in Kilifi S.O Case No. E041 of 2022 dated 8th February, 2024) Judgment Background: 1.The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. He also faced an alternative charge of committing indecent act with a child contrary to Section 11(1) of the Sexual Offence Act. The appellant was found guilty of the main charge of defilement, convicted and sentenced to life imprisonment. 2.The particulars of the main charge in which the appellant was convicted and sentenced were that in the month of November, 2021 at unknown date in (particulars withheld) within Kilifi County intentionally and unlawfully caused his penis to penetrate into the vagina of P.C a girl aged 6 years. 3.The appellant aggrieved by the conviction and sentence of the trial court lodged this appeal to the High Court. The appellant raised several grounds in the petition of the appeal and the amended grounds of appeal contained in his submissions. 4.Those grounds can be compressed to three grounds: Firstly, that he was denial right of representation by a probono advocate; secondly, the trial court relied on evidence obtained in contravention of the constitution; and finally, that the trial court misconstrued the penal provision under the Sexual Offences Act by sentencing him to life imprisonment. Prosecution case: 5.The prosecution case was founded on the evidence of four witnesses. The complainant testified that on the alleged time of the defilement she was asleep at her grandmother’s house. The appellant who is her uncle came and removed her clothes and defiled her. Kapei who was outside came and saw the appellant defiling her. Kapei went and told her mother who came and picked her. It was the complainant evidence that the appellant used to have sex with her when her grandmother was outside. She was taken to hospital and later the matter was reported at the police station. 6.PW2 the complainant’s mother testified that her daughter was born on 24th November, 2015. It is her evidence that on 15th November, 2021 the complainant came with her aunt to her place. Her aunt Santa Mrabu insistently told the complainant to tell her what had happened. She refused to speak. She beat her and she said that Bejele used to have sex with her. she called the mother of Bejele who said her son cannot do that to the complainant. She said the minor was complaining of persistent stomach pain. The father complained that the minor was having pus from her genitalia. The complainant was taken to hospital who examined her. The matter was ten reported at Kilifi Police station. The appellant was later arrested. 7.PW3 Dr. Anderson Kahindi testified that the complainant was examined by Sidi Charo on 27th April, 2022. The complainant narrated that she had been defiled several times by her uncle and stepfather. On examination of the genitalia, it was found that the outer labia had bruises and reddish. The hymen was broken. The PRC and P3 Form were filled on 28th April, 2022. 8.PW4 received the report of defilement of the complainant. She referred the complainant to hospital for examination. The examination revealed that she had been defiled. Age assessment of the complainant was done and it was found that she was approximately aged 6 years. The accused was later arrested and charged. Defence case: 9.The appellant when placed on his defence and after he was explained his right under Section 211 of the Criminal Procedure Code, he opted to remain silent and wait the decision of the court. The finding of the trial court: 10.The trial court considered the essential ingredients of the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act to wit, the age of the victim, penetration and identification of the perpetrator and concluded that the same were proved as required and found the appellant guilty and convicted him of the main charge. The Appellant’s submissions: 11.The appellant complained that he was denied the right to representation despite the trial court initially intimating the need of pro bono advocate. He argued that considering the seriousness of the offence the trial court ignored the need for legal representation. He cited the case of Simon Githaka Malombe vs Republic C.A Cr. Appeal No. 314 of 2010. He argued lack of legal representation is the one which caused him to opt to remain silent when placed on his defence. 12.The appellant further argued that the evidence the prosecution relied on was obtained in contravention of the constitution and that the prosecution failed to call crucial witness. He said this was in contravention of Article 50(4) of the Constitution. 13.The appellant main argument on evidence being obtained in contravention of the constitution was that the complainant framed him because he was beaten by her mother to say that she had sex with Bejele. He relied on the case of Philomena Mbete Mwilu vs DPP & Others (2019) e KLR. He asserted that the evidence of the complainant implicating him was obtained through torture hence it is inadmissible. 14.The appellant further argued that the trial court misconstrued the penal provision under the Sexual Offences Act. He argued that the said provisions provide for mandatory sentence which is unconstitutional. He cited several decisions including the famous case of Francis Karioko Muruatetu (2021) to assert that mandatory nature of life imprisonment was unconstitutional. He further argued that the sentence of life imprisonment was dehumanizing punishment contrary to the constitution. Respondent’s submissions: 15.The respondent argued that the prosecution discharged its duty and the charge was proved as required. It was submitted that all the ingredients of the offence as to the age of the victim, penetration and identification of the appellant were proved as required. 16.It was further argued by the respondent that the complainant testimony was consistent and reliable as the complainant was found to be intelligent and understood the meaning of telling the truth. 17.It was submitted that the appellant was accorded fair trial as envisaged under Article 50 of the Constitution. 18.On sentence, it was submitted that the same was lawful as it is the sentence prescribed by the law. Analysis and determination: 19.This being a first appeal to the High Court, and as expected I have examined the record, re-evaluated the evidence adduced before the trial court and drawn my own independent conclusions. I have done so without overlooking the fact that I did not have the opportunity to see and hear the witnesses testify unlike the trial court. (See Okeno vs Republic (1972) E.A 32) 20.Further I have reminded myself of the cardinal principle that it is the duty of the prosecution to prove charges against an accused person beyond reasonable doubt as restated in various decisions like the case of Stephen Nguli Mulili vs Republic (2014) e KLR where the court cited the famous case of woolmington vs DPP (1935) UKHL 1 and reiterated that it is the duty of the prosecution to prove its case and that remains the Kenyan position. 21.Guided by the foregoing, I have re-evaluated the evidence adduced by the prosecution before the trial court. The accused did not offer any defence for consideration by of the court. From the evidence adduced there is no doubt that the complainant was aged about 7 years as at the time the age assessment report was prepared which was produced in court as exhibit. There is also no doubt that the appellant was known by the complainant and PW2 hence the chances of mistaken identity were very remote. It was clear that the appellant was uncle to the complainant. 22.Having stated the foregoing, the issues for determination in this appeal is whether, firstly, the appellant was accorded fair trial, secondly whether the evidence of the complainant which the trial relied on was obtained in contravention of the constitution and finally whether the sentence was lawful. 23.The appellant argued that he was denied the right to fair trial because he was not provided with a pro bono advocate. Under Article 50(2)(g) of the Constitution, an accused a right to choose, and be represented by advocate, and to be informed of that right. From the said provision, the right to legal representation in criminal cases is not absolute or automatically mandatory. All the court is required is the duty to inform an accused of that right. This position was sated in the case Joseph Kiema Philip vs Republic (2019) e KLR where the court held:“…it is paramount that the record of the trial court should demonstrated that the accused was informed that the accused of his right to legal representation and whether or not in the case that he cannot afford an advocate, one may be appointed at the expense of the state.” 24.In the instant case, though the record shows that the appellant was not promptly informed of the right to legal representation, the record shows that at one point ad advocate was appointed to represent him. That advocate indicated that the appellant was an adult and applied to withdraw for representation. In the circumstances it cannot be held that the appellant’s right of legal representation was denied as alleged by the appellant. The appellant had the right to choose an advocate of his choice immediately the advocate appointed withdrew. 25.Regarding the argument by the appellant that the evidence relied on by the trial court was obtained in contravention of the constitution, it is trite that under Article 50(4) of the Constitution that illegally obtained evidence must be excluded if its admission renders the trial unfair. 26.In the instant case the appellant grievance is that the complainant alleged that she was defiled by her after being beaten by her mother. Before then she did not allege that she was defiled. It is imperative to note that the mother of the complainant was informed by the complainant’s aunt that the appellant had defiled the complainant. The prosecution did not bother to call the complainant’s aunt to corroborate the evidence of the complainant. 27.In the case of Paul Kanja Gitari vs Republic (2016) e KLR the court stated:“What we found troubling about this case is that J.M.K did not on her volition make a complaint that the appellant had defiled her. Her testimony was that after the “bad thing” she went home where she met her aunt (PW2) who beat her up to reveal what transpired.” 28.In the circumstances of this case, it is evident that the complainant alleged that the appellant defiled her after she was beaten by her mother. It is instructive that her mother was informed of the defilement by the complainant’s aunt. In my humble view the evidence of the complainant who was a child of tender age required corroboration. It is only the aunt who would have corroborated it. Failure to call the aunt and in view of the fact that the complainant alleged she was defiled after being beaten by her mother raises doubt in the prosecution case and that doubt must be to the benefit of the appellant. 29.It is therefore my finding that the evidence implicating the appellant was to procured freely from the complainant. It can only be assumed that the same was obtained illegally through torture of the complainant. It is unsafe to rely solely on such evidence in view of the narration the complainant gave to the medical officer that she had been defiled by the appellant and her stepfather. The trial court fell in error in accepting the evidence of the complainant as truthful. 30.Much as I find that the prosecution case was based on doubtful evidence, I must comment on the issue of sentence raised by the appellant that the same was unconstitutional. It has often been stated by this court and superior courts that life sentence is not unconstitutional. It all depend on the circumstances. In this case the minimum sentence provided under Section 8(2) of the Sexual Offences Act is life imprisonment. Therefore, the trial court cannot be faulted in imposing the mandatory minimum sentence. 31.However, for reasons I have given in the preceding paragraph in this judgment, I find that the conviction of the appellant was unsafe in the circumstances and the appeal herein is merited. The conviction and sentence are hereby set aside and the appellant is acquitted. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY, 2026.F.N KYAMBIAJUDGE OF THE HIGH COURT OF KENYA