https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1415

Mokono v Republic (Criminal Appeal E074 of 2022) [2026] KECA 1415 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1415 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E074 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between John Nyangau Mokono Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisumu (Kamau, J.) dated 27th January, 2022 in HCCRA No. E006 of 2021) Judgment 1.This is a second appeal arising from the conviction and sentence of the appellant, John Nyangau Mokono, by the Principal Magistrate’s Court at Winam in Sexual Offences Case No. 14 of 2018. The appellant was found guilty of the offence of defilement and sentenced to life imprisonment. On appeal, the High Court of Kenya at Kisumu upheld his conviction and sentence, giving rise to the instant appeal. 2.The appellant was charged with the offence of defilement contrary to Section 8(1) and (4) of the Sexual Offences Act. The particulars of the offence were that in February 2018 at around 1700 hours within Kisumu County, he intentionally caused his penis to penetrate the vagina of G.B.A, a child aged seven years. In the alternative, that he committed an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, on the same date and place, by intentionally touching the vagina of the said minor with his penis. The appellant denied the offence. 3.The prosecution called seven (7) witnesses. In summary, the prosecution’s case was that G.B.A (PW1) stayed with her aunt (PW2) while PW1’s mother (PW4) resided in Mombasa. The appellant routinely took PW1 to school in the morning and back home in the evening using his motorcycle. The appellant also brought water to their place as instructed by PW2, usually on the weekends. One Wednesday in February 2018, the appellant took PW1 back home and informed her he would bring water. According to PW2, she had not told the appellant to bring water on the alleged Wednesday. The appellant later brought a jerican of water, which he poured into a drum, entered the house and found PW1 trying to use a remote. The appellant repaired the remote and then told PW1 to move to a three-seater sofa in the house. He proceeded to remove her pant and put his penis on her before informing her not to tell her aunt. PW1 later told her classmate S about the incident, and S responded that the appellant, who was her neighbour, had also defiled her. PW1 later wrote on a piece of paper that the appellant had raped her and gave the said paper to her cousin, Mary Anne, who informed the victim’s mother (PW4). Mary Anne is PW2’s daughter. PW1 recounted the incident to both PW4 and PW2 on 19th April, 2018 and they went to S’s place, but S denied that the appellant had defiled her (S). PW1, PW2 and PW4 then went to the appellant’s place, where PW4 confronted the appellant. Thereafter, PW2 and her husband (PW3) went to call police officers who came and arrested the appellant. On 21st April, 2018, PW1 was taken to the hospital for examination in the presence of a police officer. The clinical and medical examination of PW1, as reported by PW5 and PW6, confirmed evidence of penetration because the victim’s hymen was absent. The medical exam report further noted it had been two months since the alleged incident and that PW1 was not given PEP due to late reporting. The evidence by the investigating officer (PW7) was that the victim was seven (7) years old and that the defilement happened on 7th February, 2018. 4.In his defence, the appellant in a sworn statement stated that on the said date, he dropped off PW1 and went to pick up other children. He disagreed with the findings in the PRC and P3. He further noted that he continued taking PW1 to school until school closed in April, and that he was arrested two weeks later. The appellant alleged that he had been framed and that PW3, PW2 and PW4 were fixing him. The appellant further stated that PW1 had initially been taken to Kisumu County Hospital and the Doctor at that hospital had not been called to testify. 5.The trial court delivered a judgment dated 4th March, 2021, holding that the prosecution had proved the ingredients of the offence of defilement beyond reasonable doubt. The appellant was found guilty as charged in the main count and was consequently convicted and sentenced to life imprisonment. 6.The appellant was aggrieved with the decision of the trial court and appealed against the conviction and sentence. The High Court analysed the evidence adduced in the trial court and the parties’ submissions before it delivered its judgment in the matter on 27th January, 2022. The learned Judge noted that PW1’s evidence was very consistent and that she could not have framed the appellant. The superior court therefore dismissed the appeal and upheld the appellant’s conviction and sentence. 7.The appellant is still dissatisfied and has preferred an appeal to this Court on eight (8) grounds as follows: that the learned trial Magistrate and Judge erred by failing to establish that the prosecution did not prove the case beyond reasonable doubt, despite the prosecution witnesses’ contradicting evidence; that the learned trial Magistrate and Judge erred in law in convicting the appellant while relying on the prosecution evidence that did not prove the charges, thus violating his rights under Article 50(2)(c), (e) and (g) of the Constitution; that the learned trial Magistrate and Judge erred by failing to find that the prosecution deliberately avoided availing some key witnesses and evidence, and instead considered a large number of prosecution witnesses; that the learned trial Magistrate and Judge erred by finding that the penetration and identification were proved to the required standards, even in the wake of deliberately inadequate prosecution’s evidence, and instead considered circumstantial evidence; that the learned trial Magistrate’s and Judge's findings were against the defence evidence on record and instead relied on a superficial investigation and the prosecution witnesses’ evidence, in violation of Section 150 of the Criminal Procedure Code, and Article 50(2)(j) of the Constitution of Kenya that the learned Judge had a fixed mind to uphold the conviction yet the appellant was framed; that the victim’s age was not proved beyond reasonable doubt; and, lastly, that the sentence imposed on the appellant was harsh, inhumane and illegal despite aggravating and mitigating factors. 8.The appellant prays that the appeal be allowed, the conviction be quashed, the sentence be set aside and he be set at liberty, or that the sentence be reviewed to a least form of punishment and upon reduction, he be enrolled for probation or community service order. 9.This appeal came up for plenary hearing on 11th May, 2026. The appellant appeared virtually in person from prison, while the learned prosecution counsel, Ms. Busienei, appeared for the respondent. The appeal was canvassed by reliance on the written submissions and highlights reiterating the same. 10.The appellant relied on his written submissions filed in court. He stated that the trial court and the first appellate court erred in relying on speculative testimony to determine the complainant’s age, thus violating his right to a fair trial under Article 50(2)(a) of the Constitution. That under Article 25(c) of the Constitution, the right to a fair trial is one of the fundamental rights that may not be limited. The appellant urged that the complainant’s age is a foundational element in a defilement charge and that medical evidence or documented proof of age is essential. That the prosecution relied on the oral testimony of the complainant and her mother, and never produced the birth certificate, baptism card or any other age-assessment report. That contrary to Section 67 of the Evidence Act, the complainant’s mother brought to court a photocopy of the birth certificate instead of the original birth certificate. The appellant argued that the absence of a credible age renders the charge defective, which is not curable under Section 382 of the Criminal Procedure Code. That his conviction is further rendered unsafe, given that Section 8(1) is premised entirely on the complainant being a child. He asked this Court to subject the aspect of the complainant’s age as presented by the prosecution to the standard of proof beyond reasonable doubt. 11.On the issue of penetration, the appellant submitted that the medical report (P3 form) failed to establish a torn hymen or injury consistent with recent sexual intercourse. That it was confirmed that the complainant was not taken to the hospital within the required 72 hours after the sexual assault. In addition, the clinical officer’s testimony was speculative and nonspecific regarding the degree or cause of the alleged injuries. The appellant further submitted that there was no corroboration between the complainant’s testimony and the medical evidence. He argued that the discrepancies, contradictions and inconsistencies in PW1’s evidence impeded her credibility and reliability. The appellant cited Section 124 of the Evidence Act and relied on the case of Julius Kioko Kivuva v Republic [2015] eKLR to submit that there was no evidence of sensory detail, that is, how the victim felt when the offence was committed, and that the trial and first appellate courts did not consider the same. 12.The appellant questioned the duration it took to report the offence (two months). He asserted that, whereas the complainant’s evidence was that she gave out that information immediately, it was not explained why it took a long time to report the perpetrator, who was well known to her. He further questioned why the complainant’s written note, which indicated he had raped her, was not produced in court. He asked this Court to consider the criminal offence he was charged with and similarly subject the said issues to proof beyond reasonable doubt. 13.Ms. Busienei relied on the respondent’s submissions dated 14th June, 2026. She urged that, being a second appeal, this Court’s jurisdiction is limited by Section 361(a) of the Criminal Procedure Code to deal only with matters of law and not delve into matters of fact dealt with by the trial court and re-evaluated by the first appellate court. Counsel relied on Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment), in which the Supreme Court advised that this Court can only interfere with the High Court’s decision if it is shown ‘that the trial court and the first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law.’ 14.Counsel submitted that the complainant’s age, penetration and the identification of the perpetrator were all proved beyond reasonable doubt. She asserted that PW1 informed the trial court that she was 7 years old. The minor’s mother, PW4, further corroborated this evidence by informing the trial court that the minor was born on 9th September, 2010 and produced the complaint’s birth certificate in evidence. Counsel contended that the appellant never objected to the production of a photocopy of the birth certificate during the trial. Consequently, the first appellate court noted that the minor was 7 years and 5 months at the material time of the incident. On the issue of penetration, counsel stated that both the trial and first appellate courts correctly found that penetration was proved by the cogent and uncontroverted evidence of PW1, as well as the medical findings of PW5 and PW6. That the learned Judge rightly noted that the late reporting of the incident did not mean that penetration did not occur. On the issue of identification, counsel affirmed that the appellant admitted knowing the minor because he had been taking and dropping her off at school for a year. 15.On the failure to bring vital witnesses to court, counsel argued that the appellant had not demonstrated how the absence of Stacy’s mother and her entire family, the large crowd that gathered upon his arrest and Constable Rachel prejudiced his defence. She submitted that while the case of Bukenya & Others vs. Uganda (1972) EA 549 establishes that the prosecution has a duty to call witnesses necessary to establish the truth, it also recognizes the prosecution’s discretion in selecting its witnesses. That the court will only draw an adverse inference if the prosecution’s evidence is barely adequate and if the testimony by other available witnesses who were deliberately not called would likely have been adverse to the prosecution. Counsel stated that in this case, the appellant’s argument is speculative and does not meet the threshold for an adverse inference to be drawn. 16.On the issue of contradictory statements by prosecution witnesses, counsel for the respondent submitted that such inconsistencies or contradictions will only be fatal if they are substantial and fundamental to the main issues in question, thus necessarily creating some doubt in the mind of the trial court that an accused will be entitled to benefit from it (Richard Munene vs. Republic (2018) KECA 186 KLR). Counsel argued that the different versions narrated to different witnesses are matters of fact, which both the trial court and the first appellate court satisfactorily reconciled and determined to be immaterial and could not impugn the prosecution’s case. 17.Counsel for the respondent further submitted that the issue of failure to consider the appellant’s defence is unfounded. She noted that the trial court evaluated the appellant’s defence and found it lacking in credibility, which finding does not mean his defence was disregarded. That the first appellate court further affirmed this position in its judgment. She argued that it is well established in law that a court is not obligated to accept a defence that is unsubstantiated or incapable of rebutting the prosecution’s case. 18.It was the respondent’s submission that the life imprisonment sentence meted out is the legal and right sentence, and that this Court ought not to interfere with it. That the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act, holding that for as long as Section 8 of the Act remains valid, the various mandatory minimum sentences therein remain lawful (Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (supra)). The respondent called for dismissal of the appeal for lacking merit and prayed that the appellant’s conviction and sentence be upheld. 19.As submitted by Ms. Busienei, our role in a second appeal per Section 361(a) of the Criminal Procedure Code is to deal only with matters of law and not to delve into matters of fact. As was held in on Republic v Mwangi (supra) we can only interfere with the High Court’s decision if it is shown that the trial court and the first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole. In such a case, such omissions or commissions would be treated as matters of law. 20.We have considered the grounds of appeal and the parties’ respective submissions and distill the issues for determination as follows: whether the charge was fatally defective; whether the prosecution proved beyond reasonable doubt the ingredients of the offence of defilement; and, whether the conviction and sentence are sustainable. 21.On the first issue, the appellant has submitted that the absence of a credible age renders the charge defective, which is not curable under Section 382 of the Criminal Procedure Code. The section provides as follows,“ 382.Finding or sentence when reversible by reason of error or omission in charge or other proceedings Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 22.Accordingly, under section 382 of the Criminal Procedure Code, as an appellate court we will not reverse a conviction on account of an error or omission in a charge unless that defect has resulted in a failure of justice or actual prejudice. 23.What must be contained in a proper criminal charge? Section 134 of the Criminal Procedure Code states as follows;“ 134.Offence to be specified in charge or information with necessary particulars Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged.” 24.Section 137 (f) of the Criminal Procedure Code states thus;“General rule as to description—subject to any other provisions of this section, it shall be sufficient to describe a place, time, thing, matter, act or omission to which it is necessary to refer in a charge or information in ordinary language so as to indicate with reasonable clearness the place, time, thing, matter, act or omission referred to” 25.The charge against the appellant was stated as defilement contrary to section 8(1) and (4) of Sexual Offences Act. The particulars were that on the February 2018 at about 1700 at Kolwa Location in Kisumu East District within Kisumu County intentionally caused his penis to penetrate the vagina of G.B.A a child aged 7 years. 26.Section 8 (1) of the Sexual Offences Act creates the offence of defilement as follows;“(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” 27.Section 8(4) of the Act provides for a sentence as follows;“(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 28.We observe that the particulars of the charge were inconsistent to the extent that it was alleged that the child was 7 years, an age falling outside the age of sixteen and eighteen years for purposes of the prescribed sentence. For a child of 7 years as was alleged, the prescribed sentence is in section 8(2) of the Act which states as follows;“(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.” 29.We have perused the trial court’s proceedings and at no point was section 214 of the Criminal Procedure Code invoked. The section allows a court to amend or alter a defective charge at any time before the close of the prosecution case, provided the accused is called upon to plead to the altered charge and is granted the right to recall witnesses. We are therefore satisfied that there was a glaring mismatch between the alleged age of the child and the section referenced in the charge prescribing the sentence. The mismatch amounted to a defect in the charge that seriously prejudiced the appellant especially in view that he was subsequently convicted and a higher sentence of imprisonment for life was imposed rather than imprisonment for a term of not less than fifteen years. 30.A further defect in the charge was the failure to state the exact date the alleged defiled had actually occurred. The charge simply stated “February 2018 at about 1700…” The charge did not therefore describe the date and time of the alleged defilement with reasonable clearness as envisaged in section 137 (f) of the Criminal Procedure Code. 31.The evidence on record shows that the defect in the charge by reason of the failure to describe the date of the alleged defilement resulted in a failure of justice or actual prejudice to the appellant. 32.In particular, PW1 testified that it was in February 2018 when she was defiled and on a Thursday after the defilement she told her friend S and S told PW1 that the appellant had also defiled S. Further, PW1 testified that after a while on a Saturday she informed her cousin MarryAnne Achieng who then informed PW1’s mother. On the other hand, PW2 testified that the defilement happened on a Wednesday. The investigating officer (PW7) testified that the victim was seven (7) years old and that the defilement happened on 7th February, 2018, a Wednesday. The flow of evidence on record suggests that the alleged defilement occurred on Wednesday 7th February, 2018, PW1 told her friend S about it the following Thursday and PW1’s mother became aware of it on Saturday. When recalled to testify, PW1 testified thus;“I had told the only friend called S and she told me that Jakisii had also defiled her. I had written something on the paper. I knew how to write, I wrote that it is Jakisii had raped me. I wrote it on Saturday after the incident had occurred. I had wanted to give the piece of paper to my mother but I feared and gave my cousin called Mary Anne. She is in form two. On that piece of paper that Jakissii had raped me and I gave it to Mary Anne in February.Mary Anne told my mother on the said Saturday. My mother is called Lucy Josephine Anyango. I do not know if my mother went to police and made the said Jakisii arrested.” 33.In an unexplained turn of events, no report was made to the police, PW1 was not taken to hospital, and the time ran until PW1 recounted the incident to both PW4 and PW2 on 19th April, 2018. They went to S’s place, but S denied that the appellant had defiled her (S). PW1, PW2 and PW4 then went to the appellant’s place, where PW4 confronted the appellant who was then arrested. 34.The failure to state the date of the alleged defilement in the charge prejudiced the appellant’s defence. His defence was that between 7th February, 2018 to 19th April, 2018 when he was confronted and arrested, he had continued to transport PW1 to and from school as well as delivering water to PW1’s home using his motor bicycle. His further defence was that he had been framed and that PW3, PW2 and PW4 were fixing him because he was owed some money for the transport services he had rendered. PW3 confirmed in his testimony that as at the time of appellant’s arrest, PW2 who was PW3’s wife owed the appellant some money and the appellant had raised some complaint about the debt. PW2 confirmed that she owed the appellant Kshs.800/=. Further, the evidence on record showed that the alleged offence was on 7th February, 2018 and subsequently the photocopy of the birth certificate showing that PW1 was born on 9th September, 2010 was dated 9th March, 2018. The appellant’s submission was that the prosecution had failed to call crucial witnesses to testify and including PW1’s friend S and S’s mother who had rejected PW1’s allegation that S had told PW1 that the appellant had as well defiled S; PW1’s cousin MaryAnne who PW1 allegedly initially disclosed the alleged defilement; and the Doctor at Kisumu County Hospital which had initially seen PW1 and allegedly dismissed the alleged defilement. 35.We are satisfied that the failure to consider the identified mismatch in the charge amounted to a fatal defect. The failure to include the exact date of the alleged defilement and the mismatch between the victim's age and the charged subsection on prescribed sentence (which required the trial court’s amendment) constituted a fatal defect, particularly because the accused's defense that he was being fixed; he continued to transport PW1 to school between the alleged date of defilement and the date of arrest; and, that some crucial witnesses had not been called had thereby been seriously prejudiced. 36.In Oduor v Republic [2025] KECA 409 (KLR) this Court stated as follows in relation to defective charge; 18.The Court of Appeal (Nambuye, Maraga & J. Mohammed, JJA), in Peter Ngure Mwangi v Republic [2014] KECA 405 KLR, stated that:“A charge can also be defective if it is in variance with the evidence adduced in its support. Quoting with approval from Archbold, Criminal Pleading, Evidence and Practice (40th Edition), page 52 paragraph 53, this Court stated in Yongo v R, [1983] eKLR that:‘In England, it has been said: An indictment is defective not only when it is bad on the face of it, but also:i.when it does not accord with the evidence before the committing magistrates either because of inaccuracies or deficiencies in the indictment or because the indictment charges offences not disclosed in that evidence or fails to charge an offence which is disclosed therein,ii.when for such reason it does not accord with the evidence given at the trial.” 19.In Benard Ombuna v Republic [2019] KECA 994 KLR, this Court (Visram, Karanja & Koome, JJA) stated on the issue of a defective charge sheet that:“ 15.In a nutshell, the test of whether a charge sheet is fatally defective is substantive rather than formalistic. Of relevance is whether a defect on the charge sheet prejudiced the appellant to the extent that he was not aware of or at least he was confused with respect to the nature of the charges preferred against him and as a result, he was not able to put up an appropriate defence.” 37.The appellant has established that the defect in the charge was prejudicial because he was confused on the date of the alleged defilement, the age of the child was not only inconsistent with the subsection prescribing the sentence but also appeared suspicious in view of the birth certificate obtained on 9th March, 2018 after the purported date of defilement of 7th February, 2018 but before the report to police and arrest on 19th April, 2018. We are therefore satisfied that together with the failure of the prosecution to call the identified crucial witnesses, the charge failed to accord with the actual prosecution evidence at the trial. The High Court therefore erred in failing to find for the appellant on his petition of appeal that the trial court had erred in law and fact in failing to appreciate that the evidence by the prosecution witnesses had failed to connect the appellant to the offence or charge before the court. 38.Having found that the charge was fatally defective, we need not address the second issue of whether the prosecution proved beyond reasonable doubt the ingredients of the offence of defilement. 39.In the premises we allow the appeal, quash the conviction and set aside the sentence imposed. The appellant is set at liberty forthwith unless otherwise lawfully held. 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 the original.DEPUTY REGISTRAR