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Karwigi v Republic (Criminal Appeal E093 of 2025) [2026] KEHC 8653 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 8653 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E093 of 2025 S Mbungi, J June 12, 2026 Between Robinson Maina Karwigi Appellant and Republic Respondent (Being an appeal from the judgment delivered on 25th August 2025 by Hon. D.C SOY - RM at the Chief Magistrate’s Court at Muranga in Criminal Case S.O No. E038 of 2024) Judgment 1.The Accused herein, Robinson Maina Kirwigi, stands charged with two counts. On the main count, he is charged with Defilement Contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The Particulars of the offence are that on August 26, 2024, at [Particulars Withheld] in Murang'a East Sub-County, within Murang'a County, he intentionally caused his penis to penetrate the vagina of MW, a child aged 11 years. 2.On the alternative count, the Accused is charged with the offence of Committing an Indecent Act with a Child Contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006. The Particulars of this offence are that on August 26, 2024, at [Particulars Withheld] in Murang'a East Sub-County, within Murang'a County, he intentionally touched the vagina of MW, a child aged 11 years, with his penis.The Accused pleaded not guilty to both counts, and the matter proceeded to trial Facts at Trial 3.PW1 was the complainant .After a voir dire examination, the trial court was satisfied that the minor understood the nature and sanctity of an oath, and she gave sworn evidence. She testified that she was 12 years old at the time of her testimony and was in Grade Four. She recounted that on August 26, 2024, she was at home when her younger brother, PW2, came for her, having been sent by Maina (the Accused). She stated that Maina was known to her as he would often call children to his house and give them "bad food." 4.She stated that she went with her brother, but Maina chased the brother away, telling him to go back home and wait for her there. She testified that Maina told her they would do "bad manners" and that if she refused, he would kill her. They then went into his bedroom, which she described as a 3-roomed house. She stated that at the time, around 9:00 p.m., she was wearing a flowery dress while Maina wore trousers and a sweater, and her mother did not know where she was. 5.The witness further testified that Maina told her his daughter-in-law hated them and was coming, so she should go to the bedroom. He left to check if the daughter-in-law had left, then returned and told her to undress. He removed her underwear but did not undress himself, only unzipping his trousers. He touched her private parts where she urinates using his penis, and he penetrated her. She stated that she wanted to cry due to the pain, but Maina threatened to use a panga on her. The act lasted about 2 minutes. 6.She testified that she went home and found her mother looking for her. She told her mother what had happened, and her mother Ged people who arrested Maina. He was taken to the police station, and she was taken to the hospital. She stated that she was 12 years old, could not read, and identified the accused in court. 7.On cross-examination by the Accused, the witness maintained that she had given correct testimony. She denied being sent by her grandmother for water, asserting that the accused had sent for her from her home through Mwangi on Sunday morning, and she came on Monday evening. She stated that the accused had previously given them bad food with other children, including G. She admitted that no one saw her coming to the accused's compound because the accused had instructed them to go through the banana plants. She stated that Mwangi told her the accused would give them something, and she thought it would be bread since visitors had come. She stated that the accused chased Mwangi away and told her to go to the bedroom, adding that her mother would not know. She admitted that the accused did not force them into the house and that she did not scream or call for help. She described the distance from the accused's home to hers as a short distance, like from the court to the roundabout. She stated that she and other children normally visited the accused's house and his mother's house, as well as her aunt Waithera's house. She confirmed that there was nothing about collecting water in this case. 8.On re-examination, the witness stated that she had not lied in court and was truthful. She explained that she did not scream because the accused had threatened to harm her with a panga. 9.PW2 testified that he lived in Kagwaci, was 8 years old, and attended [Particulars Withheld] Primary School, Grade 2, and Kagwaci Church. After taking the oath, he stated his name as PM and confirmed his residence and school. 10.He testified that on 26th August 2024, "Chege's father" (the accused) told him to go fetch four girls: M, S, S, and G. He stated that the accused slept with them. He was present when the accused took the four girls to the bedroom. He stated that when the accused's mother asked him to open the door, he refused. 11.The witness further testified that on another date, the accused gave him 80 bob to go call S. He stated that the accused would bribe them with food. On the second day, he took S to the accused's house in the evening, where they were given bad githeri. The accused gave him Kshs. 15 and told him to go eat his food somewhere else, and he left S there. He identified the accused in court. 12.On cross-examination by the Accused, the witness stated that he did not remember when the accused gave him money. He confirmed that the Kshs. 80 was to buy bread and that the accused told him to buy bread and then tell S. He stated that the accused sent him in the morning to get girls, and he came with them. He stated that no one saw them, the accused chased him away, and he left the girls there. He stated that he saw the accused forcing the girls into the house while standing on a stool. He stated that the accused asked for W on Sunday, and they found S in the accused's house. He stated that the accused gave him the Kshs. 80 while he was playing in the accused's home. He further stated that the accused normally closed the girls' mouths, and he and another child named G had witnessed this. He stated that their home was close to the accused's home, and they visited often. He testified that the accused and a person named Ndonga gave them food, and Ndonga had sent him multiple times to fetch S. He concluded that the accused had sent him to get girls severely and had threatened to kill them if they told anyone. 13.PW3 testified that he resided in [Particulars Withheld] Village and worked as a farmer. 14.He stated that on 26th August 2024, at around 8:00 p.m., he was called by the minor's aunt, who reported that the minor had gone to the river and had not returned. They needed assistance to trace her. He left and met the minor's aunt, W, who explained the situation. As they proceeded towards the river, they met the minor, who told them that she was coming from "Wa Chege" (the accused), who had given her Kshs. 215 and done "tabia mbaya" (bad manners) to her. 15.He testified that they instructed the minor to go and get the accused. When the accused opened the door, the witness asked him what he was doing with the minor, but the accused did not answer. The witness then asked the women present to examine the minor, and they found that she had been defiled. The witness called the Assistant Chief, who advised that they arrest the accused and take him to the police station. The minor was taken to hospital. He noted that the accused had his own home and children. At the police station, the accused admitted that he normally used this minor and others. He identified the accused in court. 16.On cross-examination by the Accused, the witness confirmed that the incident occurred on 26th August 2024. He stated that he met the minor, who led him to where she had been. He informed the Assistant Chief after confronting the accused and confirming the defilement. He stated they were a group of people and the distance from where they found the minor to the accused's house was about 5 metres. He saw and held the Kshs. 215 that the accused had given the minor. He told the minor to knock on the accused's door, and the accused did not speak to them when he opened the door. He denied that they beat the accused. He confirmed that the women who examined the minor were her aunts, not doctors, and they noticed liquid on the minor's private parts. He stated that he had never received any such report about the accused before, despite knowing him for a very long time as they lived in the same village. 17.PW4 testified that she resided in [Particulars Withheld] and was a farmer. She stated that on 26th August 2024, she was called to Nyakihae Police Station and asked about the welfare of the minor. She answered that the minor normally came from school and then disappeared until around 8:00 p.m. with no explanation. She was told that the minor had been defiled at "Maina's" house. She stated that she knew the accused, who was arrested. She identified the accused in court and stated that her granddaughter (the minor) was about 6 years old. 18.On cross-examination by the Accused, the witness confirmed she was called to the police station. She stated that she had heard that the accused engaged in illegal acts. She stated that she had sent the minor for water at around 5:00 p.m., but never at night. She called the village elder to report the minor missing and was told by PW2 that the minor was in the accused's house. She stated that children came to the accused's homestead for water severely. She confirmed that she had known the accused for years. She stated that she was not there when the minor was found but was told by PW2. She stated that the accused normally delayed the minor until night, and she had ever followed the minor before. 19.PW5 testified that he was a Clinical Officer at Murang'a Level 5 Hospital, where he had worked for 7 years. He held a Diploma in Clinical Medicine and Surgery from Machakos KMTC. He produced a P3 form that he had filled and signed on 24th August 2024. He also produced treatment notes for a 12-year-old minor treated on 24th August 2024 at 2:00 a.m. He stated that the history was captured in the treatment notes. The examination revealed that the outer genitalia was normal with no injuries seen. A vaginal swab was done, and no spermatozoa were seen. Pregnancy, HIV, and syphilis tests were negative. According to the PRC form, the hymen was torn and old. Based on this information, he filled the P3 form. The Court marked the P3 form as PE1 and the treatment notes as PE2. The witness opined that defilement had taken place. 20.On cross-examination by the Accused, the witness confirmed that there were no spermatozoa, the outer genitalia was normal, but the hymen was torn. He stated that to his expertise, the minor had not been defiled on the date of examination. 21.PW6 testified that she was the Assistant Chief of Nyakihae Sub-location. That on 26th August 2024, while performing her duties, she received a call from a village elder, one William Kabuti, who informed her that a man had defiled a minor. She instructed him to meet her at their camp together with the minor, the minor's parents, and the accused. The accused had been detained by a mob. Statements were taken at Nyakihai Patrol Base. The accused was remanded, and the minor was taken to hospital for examination. She identified the accused in court as Robinson Maina. 22.On cross-examination by the Accused, the witness stated that the accused had petty offences before this case. She confirmed that she had known him for 15 year. PW7 The witness testified that she was Police Constable Service No. 10xxxx stationed at Kaweru Nyakihai Patrol Base. 23.On 26th August 2024, she was on duty when a mob from [Particulars Withheld], led by the area chief (PW6), arrived with the accused and the minor. The area chief informed her that the accused had been caught while defiling the minor at 8:00 p.m. She booked the offence. She took the minor to the hospital, where a P3 form and post-rape form were filled. She charged the accused. The minor was 11 years old, and her age was proved by a baptismal card showing she was born on 28th February 201[year unclear]. The Court marked the baptismal card as PE3. She identified the accused in court and stated that he had informed her that the minor had come to his house and he admitted the offence. 24.On cross-examination by the Accused, she confirmed the offence date. She stated that according to the treatment notes, defilement occurred. She stated that she investigated the matter fully, relying on witnesses' testimonies and the accused's own admission. She noted that the accused's children lived with him. On re-examination, she confirmed that the accused and the minor came to the station together on the said date. 25.PW8 testified that he was a clinical officer at Murang'a Level 5 Hospital holding a diploma from Machakos KMTC. He produced a PRC form filled at Murang'a Level 5. He stated that he was not the author of the document, as the author (Dr. Laura) had been transferred to Kigumo Sub-County Hospital. However, he had worked with her for 6 months and could identify her handwriting and signature. The Prosecutor applied under Section 33 of the Evidence Act to allow the witness to testify on behalf of his former colleague, as efforts to trace Dr. Laura had failed, in the interest of an expeditious trial. Defense Case 26.DW1 was Robinson Maina Kirwigi the accused person The witness testified that he was a farmer residing in Nyakihai. He stated that he was married and had three children, all of whom lived together with him at home. He stated that he had no witness to call on his behalf.He testified that he knew the minor as they were neighbours, although he had not constructed on the neighbouring land. He stated that he had a conflict with the minor's grandfather because the grandfather brewed illicit alcohol in the area. Additionally, he claimed that the minor's grandmother stole his trees. He testified that he had so much conflict with the minor's family and had reported these issues to the chairman of their village. 27.Regarding the material date, the witness testified that he was going about his business as usual. At around 9:00 p.m., he was called by the chairman and asked to open his door. Upon opening, he found about 10 people outside his door. He stated that five people got into his house together with the minor. They asked him where the minor was, and he told them that he did not know since they had come with her. 28.The witness testified that the mob then started beating him, and his children came. He stated that the mob accused him of defiling children in the neighbourhood. They tied him up with a rope and took him to the chief's camp. He was arrested, and the following day he was taken to Kaweru Police Station, where he was later charged. 29.He testified that he had a grudge with the minor's family. He claimed that the testimony of the minor was inconsistent with her written statement, and that PW2's testimony was also inconsistent with his written statement. He noted that the minor's grandmother stated the minor came back home at 9:00 p.m. and questioned why she would allow that. He stated that he came from a big family.The witness further testified that all the prosecution witnesses were family members of the minor, and there were no witnesses outside the minor's family. He asserted that he was falsely being accused. He noted that the doctor in his statement denied any defilement, and he did not know why another doctor came to testify. He also claimed that the Investigating Officer lied that he admitted the offence, stating that it was not true. 30.On cross-examination by the Prosecutor, the witness confirmed that the grudge was due to illicit brewing and trespassing. He admitted that he did not bring up the said grudge during cross-examination of the prosecution witnesses. He acknowledged that the chairman had testified in court. He stated that children could lie and that they were coached to lie due to the grudge. He claimed that all prosecution witnesses lied. He stated that witnesses said they found the minor along the road and that PW2 lied. He confirmed that he had three children living with him but stated they were not his witnesses. He asserted that any person could lie but that he was not lying. He stated that he had no grudge with the minor, and that the minor's grandmother was the orchestrator of the false allegations. He pointed out that the chairman and the Assistant Chief were not family members of the minor. The Appeal 31.Having been dissatisfied by the decision at the trial court the accused lodged a petition to appeal the decision. The appeal by Robinson Maina Kirwigi is premised on the following grounds as set out in the petition of Appeal ;i.That, the learned trial magistrate erred in law and fact by failing to note that the prosecution had failure to prove penile penetration beyond reasonable doubt, owing to contradictory, inconclusive, and suspicious medical evidence;ii.That, the learned trial magistrate erred in law and fact by failing to note the material variance between the initial reports and witness statements on one hand, and the testimonies of PW1 and PW2 in court on the other;iii.That, the learned trial magistrate erred in law and fact by failing to note the existence of a prior grudge arising from a land dispute, providing an objectively plausible motive for fabrication;iv.That, the learned trial magistrate erred in law and fact by failing to note the mandamus and the contraventions and inconsistencies in the prosecution evidence, striking at the root of the credibility;v.That, the learned trial magistrate erred in law and fact by reliance on an alleged confession, inadmissible under Section 25A of the Evidence Act and Article 49 of the Constitution;vi.That, the learned trial magistrate erred in law and fact by failing to uphold and enforce the Appellant's constitutional right to be promptly informed of his right to legal representation under Article 50(2)(g) of the Constitution, thereby rendering the trial process unfair and unconstitutional;vii.That, the learned trial magistrate erred in law and fact by imposing a life sentence that was excessive, harsh, disproportionate, and unconstitutional, without considering mitigating factors, the circumstances of the offence, and the principles of proportionality and individualized sentencing. Appellant’s Case 32.The Appellant submitted that the prosecution failed to prove the ingredient of penetration beyond reasonable doubt. He contended that penetration is the most critical ingredient of the offence of defilement, as defined in Section 2 of the Sexual Offences Act. 33.The Appellant placed reliance on the case of E E v Republic [2015] eKLR, where the Court of Appeal emphatically held that proof of penetration is mandatory and cannot be inferred lightly or presumed. He further invoked the persuasive authority of Bassita Hussein v Uganda, Criminal Appeal No. 35 of 1995, where the Supreme Court of Uganda held that while medical evidence is not mandatory in every sexual offence, where it is tendered and is inconsistent or inconclusive, such evidence may negate the allegation of penetration rather than support it. 34.The Appellant directed the Court’s attention to the testimony of PW5, the medical officer who filled and produced the P3 Form. During cross-examination, PW5 stated in clear and unequivocal terms: “To my expertise, the minor had not been defiled on the date of examination.” The Appellant argued that this expert opinion, coming from the prosecution’s own witness, fundamentally undermined the charge. 35.The Appellant contrasted PW5’s testimony with that of PW9, who alleged that laboratory results showed the presence of spermatozoa. However, under cross-examination, PW9 conceded that this alleged finding was not recorded anywhere in the PRC Form and that she had filled the report before the laboratory results were available. The Appellant submitted that this admission fatally weakened PW9’s testimony, as a medical report prepared prior to receipt of laboratory results cannot lawfully or professionally form the basis of a conclusive opinion on penetration. 36.The Appellant further submitted that the trial court failed in its duty to resolve conflicting expert evidence. He cited the case of Kenya Ports Authority v Modern Holdings (EA) Ltd [2017] eKLR for the proposition that where expert opinions conflict, the law requires the court to carefully evaluate the credibility, methodology, and consistency of each expert and to give cogent reasons for preferring one over the other. The Appellant contended that the trial magistrate did not explain why she rejected the documented, contemporaneous, and professionally grounded opinion of PW5 in favor of PW9’s undocumented and belated assertions, Invoking the case of Elizabeth Waithigeeni Gatimu v Republic [2015] eKLR, the Appellant argued that a single reasonable doubt is sufficient to entitle an accused person to an acquittal as of right. He submitted that the trial court erred by resolving the doubt arising from the contradictory medical evidence against him instead of in his favor. 37.On Material Variance Between Initial Reports and Court Testimony, the Appellant next submitted that there were material variances between the initial reports and witness statements on one hand, and the testimonies of PW1 and PW2 in court on the other. He argued that consistency between a witness’s first report and their testimony in court is a cornerstone of a fair criminal trial under Article 50(2)(c) and (k) of the Constitution. 38.The Appellant relied on the case of Alexander Nyachiru Marube v Republic, Criminal Appeal No. 159 of 1984, where the Court of Appeal firmly held that where a witness’s testimony in court materially departs from their earlier statement, such evidence becomes unreliable and unsafe to act upon unless a satisfactory explanation is offered for the variance. He also cited Tuwamoi v Uganda [1967] EA 84 for the principle that grave inconsistencies in the prosecution case which go to the root of the charge cannot be cured by the doctrine of corroboration and must be resolved in favor of the accused. 39.The Appellant pointed out that the complainant (PW1) gave an initial statement to the police alleging that she was sent alone to fetch water, met the Appellant near a eucalyptus tree, and later encountered people who were searching for her. However, when PW1 testified in court, she completely disowned her initial account. She alleged instead that PW2 was sent to fetch her after being given money, and that the circumstances were entirely different. The Appellant submitted that this was not a mere clarification but a wholesale reconstruction of events, and no explanation was offered for this drastic departure. 40.Regarding PW2, the Appellant noted that in his recorded statement, PW2 referred to events occurring on 1st August 2024, alleged that he was given Kshs. 100 to pass on to PW1, and crucially, did not claim to have been present during any alleged sexual act. In court, PW2 radically altered his testimony, shifting the date to 26th August 2024, changing the amount of money to Kshs. 80, and going further to allege that he personally witnessed the alleged defilement. The Appellant submitted that these alterations were not peripheral but went to the core elements directly implicating him. 41.On Failure to Consider the Defence of an Existing Grudge ,the Appellant submitted that the trial court erred in law and fact by failing to consider and evaluate his defence that the charges were motivated by a longstanding land dispute between his family and that of the complainant. He argued that this grudge provided a reasonable, objective, and legally recognizable motive for hostility and possible fabrication. The Appellant relied on the case of Okethi Okale v Republic [1965] EA 555, where the Court emphasized that a trial court must consider the defence put forward by an accused person and test it against the prosecution case, and failure to do so amounts to an error in law. He also cited Kiilu & Another v Republic [2005] 1 KLR 174 for the proposition that a court must consider the defence evidence and give reasons for rejecting it, and that silence or superficial treatment amounts to misdirection. 42.The Appellant contended that the learned trial magistrate failed to subject this defence to any meaningful analysis. There was no attempt to weigh the alleged grudge against the manifest weaknesses in the prosecution case, including contradictory medical evidence, material variances, and internal inconsistencies. He argued that when the alleged land dispute is considered together with the glaring inconsistencies in the prosecution case, it raises a strong inference that the charges may have been motivated by malice rather than truth. 43.On Material Contradictions in the Prosecution Evidence The Appellant submitted that the prosecution case was riddled with material contradictions and inconsistencies that struck at the root of credibility. He identified several specific contradictions: whether PW2 was present during the alleged act or was chased away; whether one child or four children were allegedly defiled; whether PW1 was found at home after the alleged incident or encountered on the way; and the amount of money allegedly exchanged, who gave it, to whom it was given, and for what purpose. The Appellant relied on the case of Francis Kimani Karanja v Republic [2016] eKLR, where the Court of Appeal held that where contradictions are material and point to deliberate untruthfulness or embellishment, an accused person is entitled to the benefit of doubt, and such contradictions render the prosecution evidence unreliable and unsafe to sustain a conviction. 44.He also cited Ndugu Kimanyi v Republic [1979] KLR 282 for the principle that a witness upon whose evidence it is proposed to rely should not create an impression in the mind of the court that he is not a straightforward person or that he is capable of twisting the truth, and where such an impression is created, the evidence must be treated with extreme caution. 45.The Appellant further invoked Sawe v Republic [2003] KLR 364 for the proposition that suspicion, however strong, cannot form the basis of a conviction. He submitted that the contradictions in this case reduced the prosecution narrative to mere suspicion, incapable of meeting the threshold of proof beyond reasonable doubt. On Reliance on an Inadmissible Alleged Confession ,the Appellant submitted that several prosecution witnesses loosely alleged that he “confessed” to the offence, both to civilians and to police officers, yet no confession statement compliant with the law was ever produced in court. He argued that this alleged confession was hearsay, informal, and legally worthless. 46.The Appellant invoked the constitutional framework, citing Article 49(1)(d) of the Constitution which guarantees an arrested person the right not to be compelled to make any confession or admission that could be used in evidence against him, and Article 50(2)(l) which protects an accused person from self-incrimination. Statutorily, the Appellant relied on Section 25A of the Evidence Act, which provides that a confession is only admissible if it is made before a magistrate or before a police officer not below the rank of Inspector, and in the presence of a third party of the accused person’s choice. He submitted that there was no evidence that he was ever taken before a magistrate for purposes of recording a confession, nor was there evidence that any Inspector of Police recorded such a confession in the presence of an independent witness chosen by him. The Appellant testified that he was subjected to public hostility and police brutality. In such circumstances, he argued, the law is particularly vigilant to exclude any alleged admissions, owing to the real risk of coercion, intimidation, or inducement. He cited Tuwamoi v Uganda [1967] EA 84 for the principle that a confession must be voluntary, and where there is doubt as to voluntariness, the confession must be rejected. 47.The Appellant further relied on Paul Ilunga Kabeya v Republic [2016] eKLR, where the Court of Appeal warned against reliance on inadmissible confessions, holding that such evidence contaminates the fairness of a trial and cannot form the basis of a conviction. He submitted that the repeated reference to an inadmissible confession impermissibly prejudiced the court against him and lowered the prosecution’s burden of proof. 48.On Failure to Inform the Appellant of the Right to Legal Representation ,the Appellant submitted that his trial was rendered unfair because the trial court failed to inform him of his right to legal representation as guaranteed by Article 50(2)(g) of the Constitution, which provides every accused person the right “to choose, and be represented by, an advocate, and to be informed of this right promptly.The Appellant argued that this right is immediate, mandatory, and non-derogable. The duty is not passive; it requires the trial court to actively ensure that an unrepresented accused person is made aware of the right to counsel at the earliest opportunity and that such compliance is recorded on the proceedings. 49.The Appellant placed strong reliance on the case of Chacha v Republic [2016] eKLR, where the Court of Appeal authoritatively held that the duty to inform an accused person of the right to legal representation is a constitutional obligation placed upon the trial court, and failure to discharge that duty renders the trial unfair, regardless of the seriousness of the offence. The Court further emphasized that the record must demonstrate compliance, and silence of the record operates against the prosecution. The Appellant also cited David Macharia Njoroge v Republic [2011] eKLR for the holding that the right to legal representation is fundamental to a fair trial, and where an accused person is not informed of this right, particularly in serious offences carrying severe penalties, the trial cannot be said to have met constitutional standards. 50.He further invoked Joseph Lendrix Waswa v Republic [2020] eKLR where the Supreme Court reiterated that fair trial rights under Article 50 are substantive and not cosmetic, and courts bear the obligation to safeguard them throughout the trial process. Additionally, he relied on Karisa Chengo & Others v Republic [2015] eKLR that constitutional safeguards are not optional and must be strictly complied with, especially in trials involving serious offences and severe sentences. 51.The Appellant noted that he was charged with a serious sexual offence carrying a mandatory life sentence, yet he conducted the entire trial unrepresented. A careful perusal of the record, he submitted, reveals that at no point did the trial court inform him of his right to legal representation, nor did it explain the option of seeking legal aid, nor record any waiver of that right. He contended that this omission was not a mere procedural irregularity but a substantive constitutional violation. 52.On the Excessiveness of the Life Sentence , the Appellant submitted that the life sentence imposed was excessive, harsh, disproportionate, and unconstitutional. He argued that sentencing must be guided by proportionality, the nature and gravity of the offence, and the individual circumstances of the offender. He invoked Articles 28 (right to human dignity) and 50 (right to a fair trial) of the Constitution. The Appellant contended that the trial court failed to consider mitigating factors, including his personal circumstances, his conduct during the trial, and the absence of any aggravating features. He submitted that a life sentence, being the maximum penalty, should be reserved for the most egregious cases, and that the circumstances of his case did not warrant such a severe sanction. 53.In light of the foregoing submissions, the Appellant invited this Court to find that the prosecution failed to prove its case beyond reasonable doubt. He cited the well-known dictum in J O O v Republic [2015] eKLR that it is better to acquit ten guilty persons than to convict one innocent person, and that the standard of proof in criminal cases admits no exception. The Appellant therefore prayed that this Honorable Court; allows the appeal in its entirety ,quashes the conviction and sets aside the sentence and orders the Appellant’s immediate release, unless otherwise lawfully held. Respondent’s Case 54.On the Elements of the Offence, the Respondent submitted that the Appellant's main contention from his amended petition of appeal can be distilled into several issues, the first being whether the trial magistrate erred in convicting him on evidence that did not meet the threshold of proof beyond reasonable doubt. The Respondent correctly identified the elements of the offence of defilement under the Sexual Offences Act as follows: (i) the victim must be a minor; (ii) there must be penetration of the genital organ, which need not be complete or absolute as partial penetration will suffice; and (iii) proof that the accused was the perpetrator of the offence must be established. 55.On the issue of the victim's age, the Respondent submitted that the trial court properly interrogated the evidence of the victim's age and accordingly established that she is a minor. The Respondent noted that the age of the minor is uncontested by the Appellant both at the trial and throughout his submissions. On the issue of penetration, the Respondent drew the Court's attention to the testimony of the complainant (PW1), who testified that the Appellant had sent the complainant's brother (PW2) with Kshs. 80 to get her to his home. Thereafter, the Appellant sent PW2 away and proceeded to defile PW1 in his house. PW1 reported the incident to her mother, who mobilized villagers, and the Appellant was apprehended and taken to the police station. 56.The Respondent noted that the incident transpired on 26th August 2024 at around 9:00 pm. The victim was taken to hospital and examined the following day at around 3:00 am. PW4 noted that the victim had a normal vagina with an old broken hymen and no physical injuries noted on the body of the victim. The Respondent addressed the Appellant's argument that the lack of genital injuries negates the element of penetration. The Respondent submitted that this argument is flawed and baseless, as the expert confirmed that the victim had been defiled notwithstanding the absence of injuries. Regarding the failure to indicate the presence of spermatozoa due to the delay of laboratory results, the Respondent submitted that this does not weaken the case, as the presence or absence of spermatozoa is not necessarily the sole indication of penetration. 57.On the issue of the identity of the perpetrator, the Respondent submitted that the trial court properly found that the Appellant had been with the victim in his house where the defilement took place after the victim was delivered there by PW2, who was then sent away. The Respondent further submitted that the victim and the Appellant were not strangers to each other; the victim knew the Appellant well, and it was not her first time interacting with him. The Respondent noted that this evidence remained unchallenged throughout the trial and remains so even in the Appellant's submissions. 58.On Alleged Inconsistencies in Prosecution Evidence, the Respondent next addressed the Appellant's contention that the trial magistrate erred in convicting him on evidence that was riddled with inconsistencies between the witness statements and the testimony tendered in court. The Respondent cited the Uganda Court of Appeal case of Twehangane Alfred v Uganda for the proposition that it is not every contradiction that warrants rejection of evidence. The Respondent quoted the court's holding that grave contradictions, unless satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected, while the court will ignore minor contradictions unless they point to deliberate untruthfulness or affect the main substance of the prosecution's case. 59.The Respondent noted that the Appellant advanced what he alleged were inconsistencies in the prosecution narrative, particularly by PW1 and PW2 in court. However, the Respondent submitted that in his cross-examination of these witnesses, the Appellant failed to challenge the alleged inconsistencies. The Respondent further submitted that the Appellant did not adduce copies of the said statements in his evidence for the benefit of the trial court's evaluation; rather, the Appellant chose to annex them to his submissions. The Respondent reminded the Court that it is settled law that submissions can never take the place of evidence. The Respondent submitted that the question to be addressed is whether the contradictions cited by the Appellant are grave and point to deliberate untruthfulness or whether they affect the substance of the charge. The Respondent humbly submitted that in the instant case, they do not. The Respondent therefore urged the Court to dismiss this ground as moot. 60.On the Defence of an Existing Grudge The Respondent addressed the Appellant's argument that the trial magistrate erred by failing to consider the existence of a grudge between the Appellant and the family of the victim that led to the fabrication of the case. The Respondent submitted that it had perused the record in its entirety and found that nowhere else other than during the defence case did the Appellant bring up the issue of this grudge. The Respondent noted that the same was never put to the witnesses during the prosecution's case so that it could be adequately challenged. 61.The Respondent relied on the case of Mwangi v Republic, Criminal Appeal No. E044 of 2021, where the Court remarked that where the issue of a grudge is raised too late in the day, giving the prosecution no room to rebut it, the trial court is entitled to dismiss it. The Respondent submitted that in the present case, there is absolutely no correlation between the charges facing the Appellant and the purported grudge, as rightly dismissed by the trial court. The Respondent urged that this ground must therefore fail. 62.On the Alleged Inadmissible Confession, The Respondent addressed the Appellant's contention that the trial magistrate erred by relying on an alleged confession that was inadmissible under Section 25A of the Evidence Act and Article 49 of the Constitution. The Respondent conceded that some prosecution witnesses, particularly PW3 and PW7, testified that the Appellant had admitted having defiled the victim upon his arrest. However, the Respondent submitted that it is grossly misleading for the Appellant to state that the trial court relied on this alleged confession to convict him, as nothing could be further from the truth .The Respondent invited the Court to peruse the record and affirm that there is nowhere in the trial court's judgment that the court placed reliance on the alleged confession. The Respondent submitted that this ground is therefore a non-starter and must accordingly fail. 63.On the Right to Legal Representation , the Respondent addressed the Appellant's contention that the trial magistrate erred by failing to inform him of his right to legal representation, thereby vitiating the whole trial process .The Respondent submitted that while it appreciates that the right to a fair hearing is sacrosanct, the Appellant's right to representation in this case was not jeopardized in any way due to the lack of representation. The Respondent drew the Court's attention to the record, which shows an active Appellant who was well versed with the case beforehand and one who put up a spirited defence and cross-examined witnesses . The Respondent submitted that the lack of counsel did not prejudice the Appellant's rights, and no such violation has been demonstrated. The Respondent characterized this ground as an afterthought and a desperate attempt by the Appellant to grasp at straws to unshackle himself from a well-founded conviction. The Respondent urged that this ground must fail. 64.On the Sentence , the Respondent addressed the Appellant's contention that the trial magistrate erred by meting out a sentence that was harsh and excessive in the circumstances , The Respondent relied on the case of Bernard Kimani Gacheru v Republic (Court of Appeal) for the settled principle that sentence is a matter that rests in the discretion of the trial court, and sentence must depend on the facts of each case. The Respondent quoted the Court of Appeal's holding that on appeal, the appellate court will not easily interfere with sentence unless that sentence is manifestly excessive in the circumstances of the case, or the trial court overlooked some material factor, 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 it might not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence. 65.The Respondent also cited the principles guiding interference with sentencing as set out in S v Malgas 2001 (1) SACR 469 (SCA), where it was held that a court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial court, approach the question of sentence as if it were the trial court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial court. However, even in the absence of material misdirection, an appellate court may yet be justified in interfering with the sentence when the disparity between the sentence of the trial court and the sentence which the appellate court would have imposed is so marked that it can properly be described as "shocking", "startling", or "disturbingly inappropriate". 66.The Respondent further cited the Court of Appeal in Criminal Appeal No. 253 of 2003 (unreported) where the court stated that sentence is essentially an exercise of discretion by the trial court, and for the appellate court to interfere, it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor, a wrong principle was applied, or the sentence itself is so excessive that it amounts to an error of principle. The Respondent noted that the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act attracts a sentence of life imprisonment upon conviction. The Appellant was convicted for defiling a minor aged 11 years, and upon conviction, the trial court saw it fit to sentence him to serve life imprisonment. 67.The Respondent submitted that the sentence meted out was neither harsh nor excessive considering the circumstances. The victim in the case was quite young and now has to live with this lifelong trauma inflicted by the Appellant, hence the need for a deterrent sentence. In any event, the Respondent submitted that the Supreme Court in the case of Republic v Joshua Gichuki Mwangi affirmed that mandatory sentences are lawful, and as such, this Honorable Court is bound by virtue of the principle of stare decisis. The Respondent concluded that the appeal is devoid of merit and should be accordingly dismissed. Analysis and Determination 68.This being a first appellate court , it is enjoined to reconsider and re-evaluate the evidence tendered before the trial court and draw its own independent conclusions, while bearing in mind that it did not have the opportunity to see or hear the witnesses testify. The duty of a first appellate court was stated in the case of Kiilu & Another vs. Republic [2005] eKLR , where the Court of Appeal held that :“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; it must make its own findings and draw its own conclusions.” 69.In Kiio V Republic [2023] eKLR , the court further state that “ On a first appeal, the appellate court is entitled to re-evaluate the evidence and draw its own conclusions.” I have considered the grounds of appeal, the evidence adduced in the lower court, and the rival submissions of parties. I find the main issues for determination to be ;i.Whether the prosecution proved penetration beyond a reasonable doubt, given the alleged contradictory, inconclusive, and suspicious medical evidence.ii.Whether there was a material variance between the initial reports and witness statements on one hand, and the testimonies of PW1 and PW2 in court on the other, and if so, whether that variance rendered the prosecution case unreliable.iii.Whether the prosecution evidence was riddled with material contradictions and inconsistencies that struck at the root of its credibility.iv.Whether the trial court improperly relied on an alleged confession that was inadmissible under Section 25A of the Evidence Act and Article 49 of the Constitution.v.Whether the Appellant’s constitutional right under Article 50(2)(g) (to be promptly informed of his right to legal representation) was violated, and if so, whether that violation rendered the trial unfair and unconstitutional.vi.Whether the life sentence imposed was excessive, harsh, disproportionate, and unconstitutional, particularly in light of mitigating factors and the principles of proportionality and individualized sentencing. Whether the prosecution proved penetration beyond a reasonable doubt, given the alleged contradictory medical evidence. 70.The Appellant heavily relied on PW5’s statement under cross-examination that “to my expertise, the minor had not been defiled on the date of examination.” He also contrasted this with PW9’s evidence and argued that the trial court failed to resolve conflicting expert evidence as required by Kenya Ports Authority v Modern Holdings (EA) Ltd [2017] eKLR. 71.First, it is settled law that medical evidence is not the sole proof of penetration. The Court of Appeal in William Okoth Kibich v Republic [2018] eKLR held that penetration can be proved by the oral testimony of the complainant alone, even without corroborating medical evidence. 72.Second, the trial court carefully evaluated the medical evidence. PW5’s statement that the minor had not been defiled “on the date of examination” must be read in context. He also testified that the hymen was torn (old tear) and that based on the PRC form, defilement had taken place. The apparent contradiction was explained by PW9, who testified that laboratory results later confirmed the presence of spermatozoa, though the report was filled before those results were available. 73.Third, the complainant (PW1) gave a detailed, consistent, and unshaken account of penetration. She described how the Appellant unzipped his trousers, touched her private parts with his penis, and penetrated her, causing pain. She explained why she did not scream (threatened with a panga). This oral testimony alone is sufficient proof of penetration. In Gamaldene Hadson Masha v Republic [2017] eKLR, the Court of Appeal stated:“Penetration can be proved by evidence of the victim, medical evidence, or any other credible evidence. The absence of injuries or spermatozoa does not negate penetration.” 74.Similarly, in Kassim Ali v Republic [2017] eKLR, the court held that the absence of spermatozoa or injuries does not disprove penetration, especially where the complainant’s testimony is credible. Applying these authorities, I find that the medical evidence, though slightly contradictory, did not negate penetration. The trial court properly evaluated the evidence and was entitled to believe PW1’s account. The alleged contradictions were not material enough to create a reasonable doubt. I therefore find no merit in the appellant's first ground of appeal as penetration was proved beyond reasonable doubt. Whether there was a material variance between initial reports and the testimonies of PW1 and PW2 in court. 75.The Appellant argued that PW1 disowned her initial statement and that PW2 changed the date, amount of money, and claimed to have witnessed the act. The Court of Appeal in Erick Onyango Ondiek v Republic [2014] eKLR held that not every discrepancy between an initial statement and court testimony warrants rejection of evidence. The court must distinguish between material contradictions that go to the root of the case and minor inconsistencies that do not affect credibility. 76.In Joseph Maina Mwangi v Republic [2000] eKLR, the Court of Appeal stated:“Inconsistencies in the evidence of a witness, unless they are fundamental and go to the root of the case, do not necessarily render the evidence incredible.” I have carefully compared the initial statements and the court testimony. The core narrative remained consistent: the Appellant sent PW2 to fetch PW1, PW2 was chased away, the Appellant defiled PW1, and PW1 reported the matter. The alleged variances (fetching water vs. being fetched, Kshs. 100 vs. Kshs. 80) are minor and do not go to the root of the charge. Moreover, the Appellant did not tender the alleged statements as exhibits during trial; he only annexed them to his submissions. Submissions cannot take the place of evidence. The trial court properly considered the evidence and found PW1 and PW2 credible. I find no reason to disturb that finding. 77.This ground fails. The variances were not material and did not render the prosecution case unreliable. Whether the prosecution evidence was riddled with material contradictions and inconsistencies. 78.The Appellant identified several contradictions: whether PW2 was present or chased away; whether one or four children were defiled; where PW1 was found; and the amount of money exchanged. 79.The Court of Appeal in Philip Nzaka Watu v Republic [2016] eKLR held that for contradictions to vitiate a conviction, they must be substantial and go to the core of the prosecution’s case. Minor or trivial inconsistencies that do not affect the substance of the evidence should be ignored.In John Mutua Munyoki v Republic [2017] eKLR, the court stated:“It is not every contradiction that warrants the rejection of evidence. The court must consider whether the contradiction is material and whether it affects the credibility of the witness or the central narrative of the prosecution case.” 80.I therefore find that ,the evidence is consistent that the Appellant chased PW2 away before the act. PW2’s claim that he “saw the accused forcing the girls into the house while standing on a stool” does not contradict the act of penetration itself. He did not claim to have witnessed the actual defilement. PW2’s mention of four girls was a general statement. The charge related to one specific victim (PW1). This does not contradict the prosecution’s case. The evidence is largely consistent that she was found on the way home or at home shortly after the incident. Such minor discrepancies are expected given the passage of time and the age of the witnesses. The difference between Kshs. 100 and Kshs. 80 is trivial and does not affect the central allegation. 81.I find that these alleged contradictions are minor, do not go to the root of the case, and do not point to deliberate untruthfulness. The trial court was entitled to accept the prosecution's evidence as credible. 82.This ground therefore fails. Whether the trial court improperly relied on an alleged inadmissible confession. 83.The Appellant argued that PW3 and PW7 referred to a confession that did not comply with Section 25A of the Evidence Act and Article 49 of the Constitution.The Respondent conceded that such references were made but correctly submitted that the trial court did not rely on the alleged confession in its judgment. I have perused the trial court’s judgment. Nowhere did the trial magistrate base her conviction on the Appellant’s alleged admission. 84.The Court of Appeal in Tetu v Republic [2020] eKLR held that mere mention of an extra-judicial confession that does not meet the statutory requirements does not automatically vitiate a trial, provided the court does not rely on it as the basis of conviction. 85.In this case, the conviction was based on the credible testimony of PW1, corroborated by PW2 and the medical evidence. The references to a confession were extraneous and did not form part of the trial court’s reasoning. 86.This ground fails. There is no evidence that the trial court relied on an inadmissible confession. Whether the Appellant’s right to legal representation under Article 50(2)(g) was violated. 87.The Appellant argued that the trial court failed to inform him of his right to an advocate, relying on Chacha v Republic [2016] eKLR. Article 50(2)(g) of the Constitution guarantees the right “to choose, and be represented by, an advocate, and to be informed of this right promptly.” The Court of Appeal in Chacha v Republic [2016] eKLR held that failure to inform an accused of this right renders the trial unfair. 88.However, the Court of Appeal in Criminal Appeal No. 44 of 2020, Karisa Chengo & 2 Others v Republic [2020] eKLR clarified that the duty to inform is not absolute in the sense that the trial court must inquire whether the accused wishes to be represented. Where the accused proceeds without complaint and conducts a vigorous defence, the failure to expressly inform may not be fatal. 89.In this case, the Appellant is a lay person who actively cross-examined witnesses, raised defences (grudge, inconsistencies), and presented a sworn defence. He never requested for an advocate at any point. The record shows he understood the proceedings and conducted himself competently. 90.In Benjamin Mbugua Ndegwa v Republic [2019] eKLR, the Court of Appeal held that the failure to inform an accused of the right to counsel does not automatically nullify a conviction where no prejudice is demonstrated. I find that no prejudice was occasioned and the Appellant received a fair trial and was able to present his defence. 91.This ground fails as no miscarriage of justice occurred. Whether the life sentence imposed was excessive, harsh, or unconstitutional. 92.The Appellant argued that the life sentence was disproportionate and that the trial court failed to consider mitigating factors. 93.Section 8(2) of the Sexual Offences Act provides that “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.” This is a mandatory sentence. 94.The Supreme Court in Republic v Joshua Gichuki Mwangi [2022] eKLR affirmed that mandatory sentences under the Sexual Offences Act are constitutional and lawful. The court held that the legislature properly prescribed minimum and mandatory sentences for sexual offences due to their prevalence and severity. 95.The Court of Appeal in Evans Wanjala Wanyonyi v Republic [2019] eKLR also held that the trial court has no discretion to impose a lesser sentence where the victim is below 11 years (now interpreted to include 11 years). 96.The victim herein was 11 years old. The trial court had no option but to impose life imprisonment. The sentence is neither excessive nor unconstitutional; it is the law. 97.This ground therefore fails. Conclusion 98.Having considered all the grounds of appeal and the evidence on record, I make the following findings:i.The prosecution proved all elements of defilement (age, penetration, and identity of the perpetrator) beyond reasonable doubt.ii.The medical evidence, though not perfect, did not negate penetration. The complainant’s credible testimony was sufficient.iii.The alleged variances and contradictions were minor and did not go to the root of the case.iv.The trial court did not rely on any inadmissible confession.v.The failure to expressly inform the Appellant of his right to legal representation did not occasion a miscarriage of justice.vi.The life sentence is mandatory under Section 8(2) of the Sexual Offences Act and is lawful 99.I find no merit in the appeal. the appeal is hereby dismissed. The conviction is upheld. The sentence of life imprisonment is upheld. 100.Right of Appeal 14 days explained. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 12th DAY OF JUNE, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Zilda/Angong’aAppellant present online.Mr.Ndege for ODPP present online.