https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10473

Kidake v Office of the Director of Public Prosecutions (Criminal Appeal E072 of 2025) [2026] KEHC 10473 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 10473 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E072 of 2025 RK Ondieki, J June 9, 2026 Between David Lusheli Kidake Accused and Office of the Director of Public Prosecutions Respondent Judgment 1.Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. The duties of an Appellate Court have been set out by the Supreme Court of India in the case of K. Anbazhagan Vs State of Karnataka and Others, Criminal Appeal No. 637 of 2015 where it was held: - “The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, ...........The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.” 2.In the case of Odhiambo Vs Republic Criminal App No 280 of 2004 (2005) 1 KLR where the Court of Appeal held that: - “On a first appeal, the court is mandated to look at the evidence adduced before the trial afresh, re-evaluate and reassess it and reach its own independent conclusion. However, it must warn itself that it did not have the benefit of seeing the witnesses when they testified as the trial court did and therefore cannot tell their demeanour”. 3.M.M.W. (PW1) told court that she is 16 years and on 30th April, 2025, the accused called and invited her for a sleep over and they had sex. Again, on 12th April, 2025, she went to the appellant but an ambush was laid and the duo were arrested. Both were taken to the police station. The victim was examined at Webuye Hospital. 4.JWK (PW2) told court that he is a father to the victim and that on 30th April, 2025, he was informed by teachers that the victim had disappeared from school and arrested from the house of the appellant and arrested. Come the following day, he went with a birth certificate to Webuye Hospital to show that the victim was 15 years old. The witness produced a birth certificate as exhibit 1, a PRC, treatment notes and P3 Form were also filled. The appellant is known to the witness for over ten years. 5.Leticia Mbalwe(PW3) told court that she is a clinical officer at Webuye Hospital. She examined the victim on 1st May, 2025. Upon examination, the hymen was missing with old scar and there was a discharge from her vagina. The witness filled P3 Form and produced treatment notes as Exhibit 2, p3 Form as Exhibit 3, Lab Report as Exhibit 4 and PRC Form as Exhibit 5. The victim had infection with a white discharge. 6.Rodgers Kisya (PW4) told court that on 30th April 2025, she was asked by her wife who is a matron at the school to assist trace the victim who was missing at the dorm. The search led to the appellants house where the victim was traced and both the appellant and the victim were arrested by the police. 7.PC Abdi Lorrane Okaka (PW5) said that this matter was assigned to her by the OCS, Webuye Police Station and in company of other Police Officers, they went to the scene of crime and caused the arrest of the appellant and the victim. The victim revealed that they had had sex twice. The victim was taken to the hospital and upon examination, she was found to have been defiled. 8.Being satisfied with evidence at hand, the Investigation Officer charged the Appellant in the Main Count, with the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2026. Particulars of the offence are that on diverse dates between 10th April, 2025 and 30th day of April, 2025 at [Particulars Withheld], Maraka Sub-Location in Webuye East Sub County within Bungoma County, being a male person, caused your penis to penetrate the vagina of M.M. a child aged 15 years. 9.In the Alternative Count, the Appellant was charged with the offence of committing indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. Particulars of the offence are that on diverse dates between 10th April, 2025 and 30th day of April, 2025 at [Particulars Withheld], Maraka Sub-Location in Webuye East Sub County within Bungoma County, being a male person, intentionally and unlawfully rubbed your penis against the vagina of M.M. a child aged 15 years. 10.The Appellant David Lusheli Kidake in his sworn testimony told court that on the 30th April, 2025 at 8:00am he was arrested by three people and taken to a Police Station where he was accused of defiling the victim. 11.In the Judgement delivered by the Learned Magistrate, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal and supplementary grounds, he relied on the following grounds;a.That the learned trial Magistrate erred in law and fact by convicting him and yet he was not examined by a doctor.b.That the learned trial Magistrate erred in law and fact by meting out harsh sentence.c.That the learned trial Magistrate erred in law and fact by convicting him with riddled contradictions and discrepancies.d.That the learned trial Magistrate erred in law and fact by convicting without summoning crucial witnesses.e.That the learned trial Magistrate erred in law and fact by convicting him by violating article 50 of the Constitution, 2010.f.That the learned trial Magistrate erred in law and fact by in rejecting his plausible defence. 12.The Respondent and the Appellants filed written submissions and relied on them. Analysis and Determination: 13.I have carefully considered the Petition of Appeal, written submissions made by both the Appellant and the Respondent and to set the ball rolling, I find it extremely apposite to drop anchor, so that as I delve into the re-evaluation of the matter, I do not lose my footing. These are guidelines in defilement cases;a.Edwin Nyambogo Onsongo Vs Republic (2016) eKLR the Court of Appeal held that: “... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof.” ....” we think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”b.In the case of Francis Omuroni Vs. Uganda, Court of Appeal in Criminal Appeal No. 2 of 2000, it was observed as follows: “In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by birth certificate, the victim's parents or guardian and by observation and common sense...”c.In Alfayo Gombe Okello Vs. Republic Cr. App. No. 203 Of 2009 (Kisumu), the Court stated that in its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1).d.In Charles Wamukoya Karani Vs R CR Appeal No. 72 of 2013 the court held: “The critical ingredients forming the offence of defilement are, age of the complainant, proof of penetration and positive identification of the assailant.e.Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 Ugandan Court of Appeal had the following to say; In sexual offences, the slightest penetration of a female sex organ by a male sex organ is sufficient to constitute the offence. It is not necessary that the hymen be ruptured.” Appellant not medically examined: 14.The appellant lamented that he was not examined by a doctor in a bid to link him to the offence. In the offence of defilement, medical examination of the perpetrator, is not an ingredient that courts consider. If done, well and good. However, it is not compulsory. In the case of Martin Nyongesa Wanyonyi Vs Republic (2015) eKLR, the Court held; “…as such, it is evident that subjecting an accused to a medical examination to prove that he committed the offence is not a mandatory requirement of law and we find this ground to be unfounded...’’ This ground equally collapses. Harsh Sentence: 15.In Bernard Kimani Gacheru Vs. Republic, Cr App No. 188 of 2000 this Court stated thus: It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or 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 the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already stated is shown to exist. 16Therefore, it is clear that sentencing is a discretion of the trial court and the Appellate Court cannot interfere unless it is excessive in the circumstances. Where a minimum sentence is provided by the Statute, the court is put on straight jacket. 17.For instance, when Muruatetu & Another Vs Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015 (Consolidated)) [2017] KESC 2 (KLR) (14 December 2017) (Judgment), was delivered, there was a new dawn which untied the hands of the Judicial Officers and Judges, on sentencing. By expansive reasoning of this jurisprudence, the courts under, were granted, carte blanch, to interfere with mandatory sentences in other Statutes, including Sexual Offence Act No. 3/2006. However, this was short lived. Come on 6th July, 2021, the Supreme Court issued directions on the application of the jurisprudence. At paragraph 10 of Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) (Petition 15 & 16 of 2015) [2021] KESC 31 (KLR) (6 July 2021) (Directions), it is recorded; “ It has been argued in justifying this state of affairs, that, by paragraph 48 of the Judgment in this matter, or indeed the spirit of the Judgment as a whole, the court has outlawed all mandatory and minimum sentence provisions; and that although Muruatetu specifically dealt with the mandatory death sentence in respect of murder, the decision's expansive reasoning can be applied to other offenses that prescribe mandatory or minimum sentences. Far from it. In that paragraph, we stated categorically that; “48: Section 204 of the Penal Code deprives the court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives the courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in appropriate cases. Where a court listens to mitigating circumstances but has, nonetheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to accused persons under article 25 of the Constitution; an absolute right”. 18.It is therefore clear that, where a minimum sentence has been provided, the court cannot interfere as that would amount to an overreach of the mandate of others Institutions. Additionally, in those directions, it was clear that if a provision of law is unconstitutional, then a petition can be filed in the High Court and the same be canvassed through the tiers of the courts up to the Supreme Court, for final declaration. I find the complaint unmerited. 19.There is one point worth considering. The court record does not show if the appellant was ever released on bond and or released from custody from the day of arrest as shown by the charge sheet on 2nd May, 2025 to 21st August, 2025. This then triggers section 333(2) of the Criminal Procedure Code. The provision of section 333(2) of the Criminal Procedure Code was the subject of the decision in Ahamad Abolfathi Mohammed & Another Vs Republic [2018] eKLR where the Court of Appeal held that: - “The second is the failure by the court to take into account in a meaningful way, the period that the appellants had spent in custody as required by section 333(2) of the Criminal Procedure Code. By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. Although the learned judge stated that he had taken into account the period the appellants had been in custody, he ordered that their sentence shall take effect from the date of their conviction by the trial court. With respect, there is no evidence that the court took into account the period already spent by the appellants in custody. “Taking into account” the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person. We find that the first appellate court misdirected itself in that respect and should have directed the appellants’ sentence of imprisonment to run from the date of their arrest on 19th June 2012.” Contradictions and discrepancies: 20.The Uganda Court of Appeal in Twehangane Alfred Vs Uganda, Crim. App. No 139 Of 2001, [2003] UGCA, 6 it is not very contradiction that warrants rejection of evidence. As the court put it: “With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case” emphasis supplied. 21.The allegations by the appellant on contradictions have not been catalogued. Instead, thereof, the allegation has been thrown on the head of the court. He who alleges must prove is the rule. This complaint collapses, in the circumstances. Violation of Article 50(2)(g)(h) of the Constitution: 22.In Joseph Kiema Philip Vs Republic (2018) eKLR, JOO Vs Republic and K.O. Vs Republic (2021) held that failure to comply with the above provisions rendered the conviction a nullity and ordered retrials. However, the Court of Appeal in William Odongo Oongo Vs Republic (2022) KECA 23 took a different view. It stated thus “It should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation. The constitution demands it. In the present case, the record does not show that the appellant was informed by the trial court of those rights. However, quite apart from the fact that these matters were not raised before the trial court. From the way the appellant cross examined the prosecution witnesses and form his general conduct during the trial, it s not evident an injustice, nay substantial injustice, resulted from the omission by the trial court to inform the appellant of his rights under Articles 50(2)(g) and 50(2) (h) of the Constitution. The failure by the trial court to inform the appellant of his rights in this case should not therefore be a basis for vitiating his trial. All in all, we are satisfied that the conviction is well founded, and we have no basis for interfering with the same.” 23.In Otieno Vs Republic [2025] KEHC 13585 (KLR), it was held; “The Court of Appeal expressed the same view in Herman Mweru Mwavughanga Vs Republic CRA 111/2022 and several other decisions. The Court of Appeal said that the operative circumstances that trigger the necessity for legal representation in criminal cases is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused and the incapacity and inability of the accused to participate in the trial. It means that the court has to look at whether the appellant herein was able to ably take part in the proceedings or was his capacity to understand and take part in the proceedings impeded by the complexity of the case. Under the doctrine of stare decisis this court is bound by the decisions of the Court of Appeal…” 24.Back to the case at hand, it is clear that that the Appellant cross examined well. At no time did he fail to cross examine a witness and in any event, if the court did err to inform him of his constitutional right to representation, he was duty bound to raise his inability to represent himself. The court cannot baby-sit the appellant in his space. This complaint in view of the adverted decisions of the Court of Appeal, collapses. Defence Case: 25.The appellant states that he was arrested on the 30th April, 2025 at 8:00am but the corroborated prosecution witnesses’ testimonies indicate that he was arrested on 1st May 2025. The appellant did not in any manner demonstrate that he was arrested on 30th April, 2025 as alleged. However, the totality of the prosecution case was that he was arrested red handed from his house together with the Victim. This fact was not controverted by the appellant before the trial court. In her Judgement, the Trial Magistrate did consider the defence but was not convinced. This is what is recorded under paragraph 19 of her Judgement; “…the accused in his defence stated that he did not commit the offence and stated that he was arrested while selling charcoal. I find this defence an afterthought as the same did not emerge during hearing when the accused was cross examining the prosecution witnesses…” I am little persuaded of any error committed by the Trial Magistrate. This ground collapses. Proof beyond reasonable doubt. 26.In respect to age of the victim, a birth certificate was produced which show that the victim was born on 11th June, 2009 and so as at 30th April, 2025, the victim was 15 years, 10 months and 19 days old. The state settled on a birth certificate to prove that the victim in terms of Sexual Offences Act, was a minor within the age bracket as founded by the trial magistrate. 27.In respect to penetration, the appellant and the victim were arrested red handed from the house where the victim said had played sex with the appellant. Upon examination by PW3 on the 1st May, 2025, the hymen was missing with old scar and there was a discharge from her vagina. Having been found red handed in the appellant’s house, I refuse to believe that they were fasting and saying Lord’s prayer. 28.In respect to positive identification, it is on record that the Appellant hails from the neighbourhood and as such, he was not a stranger to the victim. This was the second time, the duo were having sex but more importantly, they were arrested together from the appellant’s house. This ingredient is conclusively, proven.Disposal:a.The Appeal lacks merit and is hereby, dismissed.b.The committal warrant shall be amended for the time spent in custody computed as Five (5) months and 19 days be credited as a remission for him to have an early release custody. DELIVERED VIRTUALLY THIS 9TH JUNE, 2026 R.K. ONDIEKI.JUDGE.In The Presence Of The Appellant,Ms Matere For Odpp AndCourt Assistant, Aziza Abdi.Orders Accordingly.Proe: I seektyped proceedings and the rulingCourt: the ty[ed proceedoinfs and the ruling tob esuppied.