https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6157

Kiprono v Republic (Criminal Appeal E125 of 2024) [2026] KEHC 6157 (KLR) (7 May 2026) (Judgment) Neutral citation: [2026] KEHC 6157 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E125 of 2024 REA Ougo, J May 7, 2026 Between Geoffrey Kiprono Appellant and Republic Respondent (Being an appeal from the judgment, conviction & sentence of Hon. R.K. Langat PM delivered on the 3/9/2024 in S.O E028 OF 2024 Sirisia Law Court) Judgment 1.The appellant was charged with the offence of defilement contrary to section 8(1)(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that on 2/4/2024 at Kamabus village, Korongutung sub-location within Bungoma County, the appellant intentionally caused his penis to penetrate the vagina of M.Y., a child aged 10 years. The appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. 2.The appellant pleaded not guilty, and the matter proceeded to trial. The prosecution called five (5) witnesses, while the appellant gave unsworn testimony and called 3 other witnesses in his defence. 3.In its judgment dated 3/9/2024, the trial court found the appellant guilty of the main charge, convicted him, and sentenced him to life imprisonment. 4.Dissatisfied with that decision, the appellant initially filed an undated petition of appeal, which he later abandoned in favour of his amended grounds of appeal dated 3/7/2025. The appellant raised several grounds of appeal as follows.a.That the superior court judge grossly erred in law by failure to analyze that the appellant was not informed of his right to legal representation neither was he represented amounting to unfair trial contrary to Article 50 (2).b.That the age of the complainant was not proved.c.That penetration was not proved.d.That the trial magistrate erred in law and facts by barring my conviction on prosecution evidence marred with inconsistencies, contradiction discrepancies and glaring gaps.e.That the prosecution failed to prove its case beyond reasonable doubt.f.That the trial magistrate erred in law and facts by rejecting my alibi defence that if considered was enough to overturn the decision of the lower court.g.That the sentence meted upon me is inconsistent with the constitution under Article 27 and 28 and I am requesting this honourable court to set aside the sentence and in its place order a more lenient sentence. 5.The appeal was disposed of by way of submissions. The appellant submitted that the charge brought against him was based on a defective charge sheet, which described the charge as “defilement contrary to section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006 as opposed to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006”. 6.That he was denied his right to legal representation at the state’s expense, in violation of Articles 50(2)(g) and (h) of the Constitution, thereby causing him substantial injustice. 7.That the age of the complainant was not proven, as she was unable to state her age, and further, there was no background laid by the prosecution witnesses regarding the need for and the manner in which the age assessment was carried out. 8.That the prosecution failed to prove penetration, as the clinical officer's evidence was not convincing on that point. That there were contradictions, inconsistencies, discrepancies and glaring gaps in the prosecution's evidence to sustain his conviction and sentence. 9.That the trial magistrate shifted the burden of proof to the appellant and failed to consider the appellant’s alibi defence, which presented a truthful and cogent case supporting his acquittal. 10.On the sentence, the appellant submitted that it was harsh and excessive, thereby amounting to an unfair trial, and that the trial court failed to take into account that he was a first offender. Accordingly, this court ought to interfere with the sentence and pass a lenient one. 11.On its part, the State submitted that it proved the charges levelled against the appellant beyond reasonable doubt and that every element of the offence was proved. 12.As regards age, it was submitted that the prosecution produced a birth certificate showing that the victim was born on 8/2/2014 and was therefore 10 years old at the time of the offence. 13.Penetration was established by the complainant's testimony, which was corroborated by Pw2 and by the clinical officer who tested as Pw4. Further, the appellant was positively identified by the complainant as a neighbour. 14.That the defence of the appellant and his witnesses failed to shake the evidence tendered by the prosecution. That at no point during the trial did the appellant raise an alibi, whereas the evidence adduced by the appellant in relation to an alleged assault that was the genesis of the charge against him did not relate to the date of the offence charged. 15.As regards the sentence, it was submitted that it was lawful, and, as such, the entire appeal ought to be dismissed for lack of merit. Analysis and Determination 16.As the first appellate court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to arrive at its own independent conclusions and findings, but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.) 17.The Complainant gave evidence as Pw1. She testified that on 2/4/2024 at 6pm, while with her siblings, the appellant, whom she identified as her neighbour at home in Kamabus village, called her and asked her to fetch firewood for him. She did so and took the firewood to the appellant’s home, where the appellant insisted that she light it. She was dressed in a skirt and T-shirt, whereas the appellant was wearing trousers and a T-shirt. 18.That the appellant held her down on the floor, covered her mouth with his hand, lay over her, and inserted “his urinating thing into her urinating thing”. That she screamed, but the appellant told her to keep quiet and not to tell anyone, and gave her Kshs. 50 after the act. She went home where she informed her mother what had happened, and when her mother confronted the appellant, he denied having committed the offence. That she was taken to Kopsiro Health Centre and reported at Kipsigon Police Station. It was her testimony that she was 10 years old though she could not recall the date when he was arrested. 19.In cross-examination, Pw1 reiterated that she was at the appellant’s home on 2/4/2024 at 5pm. and that she could not recall when the appellant was arrested. In re-examination, Pw1 reaffirmed that the appellant was the one who defiled her. 20.Pw2, JC, testified that she is the complainant’s mother. That the complainant was born on 8/2/2014. That the appellant was her neighbour. On 2/4/2024, she was with her children when they met the appellant on the road. That on arriving home, she noticed that the complainant was missing and was informed that the complainant had taken firewood to the appellant. She went to search for the complainant and met her on the road, crying. The complainant informed her that the appellant had removed her clothes and defiled her. She went to confront the appellant, who denied it. She subsequently took the complainant to the hospital and reported the incident at Kipsigon Police Station the following day. The appellant was subsequently arrested, but she did not know whether he was taken to the hospital. 21.In cross-examination, Pw2 testified that on 2/4/2024 the appellant was at his home, that he was not at the hospital, and that she did not know he had been attacked. 22.Pw3, HJ, testified that he is the complainant’s father. On 2/4/2024, he was at home when the complainant arrived, scooped fire, and stated that the appellant, their neighbour, had sent her. When his wife arrived home, she informed her that the complainant had gone to the appellant’s house. Later, his wife came and informed him that the appellant had defiled the complainant, so they proceeded to the appellant’s home. When the appellant saw them, he fled. As he was fleeing, the appellant fell down. They proceeded home and took the complainant to the hospital. 23.In cross-examination, Pw3 testified that he did not know where the appellant was on the material day of 2/4/2024. He further stated that they did not take the appellant to hospital, but on 4/4/2024 they took the complainant to hospital. He reiterated that the appellant was injured when he fell on stones while running away. 24.Pw4, Simon Wafula, a clinical officer, testified that he completed a P3 form for the complainant on 6/4/2024, following her presentation with allegations of defilement on 2/4/2024 by a person well known to her. On examination, he noted no physical injuries on the complainant’s body, fresh remnants of the hymen (freshly broken), and bruises on the labia majora. The complainant had presented to the hospital 3 days after the incident. Pw4 classified the injuries sustained by the complainant as grievous harm. He confirmed penetration. 25.Pw4 further testified that on 5/4/2024 he examined the appellant after the appellant's treatment at Chesikurum dispensary on 2/4/2024. The appellant presented with complaints of head and left upper limb injuries, alleging assault by 5 people known to him on 1/4/2024. 26.His testimony was that he noted the appellant was in fair general condition, had a wound on the right hand, a healing wound on the forehead, and tenderness on the left hand, and that he classified the injuries as harm. 27.In cross-examination, Pw4 testified that the complainant alleged that he had defiled her and that she was accompanied by her parents, not the police. 28.Pw5, No. xxxxxx, PC Josphat Ongoki testified that he was attached to Kipsigon Police Station and that the matter was initially investigated by PC Njuguna, who had since been transferred. The minor, accompanied by her parents, reported the incident on 4/4/2024 at 6pm, stating the details as presented by the complainant herein. The appellant came to the station to report that he had been assaulted by the complainant’s father. He produced a Birth Certificate for the complainant showing that she was 10 years old at the time of the offence. 29.When placed on his defence, the appellant elected to give unsworn testimony. He testified that on 1/4/2024, whilst on his way back from the farm at around 6pm, he passed through his neighbour’s home and arrived at his home at 7pm. He was a bit drunk, saw 5 people, and that their faces were covered by a blanket. He stated that he met the complainant at home, but that she ran away. He was beaten and then attacked by members of the public, and the following morning, he was arrested and taken to HJ’s (Pw3) house. He was struck on his penis and ribs. Pw3 took him to the hospital at Chepkurkur on 2/4/2024, where he was treated and stayed until 6 pm. He arrived home at 8 pm. He reported his assault on 4/4/2024, when he was arrested and charged, and was informed that he had defiled the complainant. He found Pw3 and the complainant at the station. PC Kanyi asked him for Kshs. 20,000. Pw3 was also arrested but later released, while he remained in custody. He was not aware of the charges brought against him. 30.Dw2, Rodgers Rotich testified that on 2/4/2024 they found the appellant seriously injured after being assaulted by a crowd. That they proceeded to Pw3’s home, where Pw3 informed them that his sons had attacked him. He took the appellant to hospital and Pw3 paid for the treatment. 31.In cross-examination, Dw2 testified that he did not witness the appellant being assaulted. He further stated that on 2/4/2024 he was at Kamabus village, 210 meters from his home, and that he met the appellant at 8pm. He knew the complainant. 32.Dw3 ST testified that she was not at home on 2/4/2024. She was called on 4/4/2024 and informed that her brother, the appellant, had been attacked. They reported the attack at Kipsigon Police Station on 5/4/2024, but the police chased her. 33.Dw4 JT testified that the appellant is her father. She is 12 years old. t Pw3 and his sons attacked the appellant. Analysis and Determination 34.I have considered the evidence before the trial court, submission, grounds of appeal and the law. 35.This court has been called to consider whether the appellant’s right to legal representation was infringed by the trial court’s failure to inform him of it. Article 50(2)(h) of the Constitution guarantees the right to legal representation at state expense if substantial injustice would otherwise result. Section 43 of the Legal Aid Act, 2016, mandates that courts inform accused persons of this right. 36.In David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal stated that: -“Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory. We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided. The reasons are that, firstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission.” 37.In Republic v Karisa Chengo and 2 others [2017] eKLR, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that “in accordance with the language of the Constitution, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. The Supreme Court went on to say that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”. 38.Accordingly, it should be a standard procedure for the accused to be informed of their right to legal representation prior to their arrest. This is mandated by the Constitution. 39.In the present case, it is unclear from the record whether the trial court made the Appellant aware of these rights. Nevertheless, aside from the fact that these issues were not addressed in the trial court, the Appellant's cross-examination of the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, arose from the trial court's failure to inform the Appellant of his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution. Therefore, the trial court's omission in notifying the Appellant of his rights should not serve as grounds for invalidating his trial. 40.The appellant further impugned his conviction and sentence on the ground that the charge sheet brought against him was defective, and that the charge read, “defilement contrary to section 8 (1) (2) of the Sexual Offences Act No. 3 of 2006 as opposed to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006”. 41.I have already reproduced verbatim the charge of which the appellant was convicted. It is appropriate to set out Section 8(2) of the Sexual Offences Act under which the appellant was charged. That section states as follows:“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.” 42.Clearly, that section sets out the penalty where the victim is eleven years old or younger. However, the offence of defilement is created under Section 8(1), which states that:“A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.” 43.The charge sheet ought to have charged the appellant under Section 8(1) of the Sexual Offences Act as read with Section 8(2) of the Sexual Offences Act. Therefore, it is correct as contended by the appellant that there was a defect in the charge sheet. 44.As to whether an anomaly can render a charge sheet defective, Section 134 of the Criminal Procedure Code states as follows:“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.” 45.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.” 46.In Benard Ombuna v Republic [2019] KECA 994 KLR, the Court of Appeal (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.” 47.Thus, the key issue is whether the charge sheet was defective in such a manner as to prejudice the trial and/or outcome for the appellant. A perusal of the charge sheet shows that the charges preferred against the appellant are known in law. The manner in which the charge is framed clearly states the offence, and the particulars of the charge indicate the date, time, and place when the offence was allegedly committed, the victim, and the victim's age. 48.Therefore, the particulars of the charge were sufficient to inform the appellant of the offence with which he was charged. He not only pleaded not guilty to the offence when it was read out to him but also fully participated in the trial. Thus, the appellant was not prejudiced in any way by the defect. 49.In my view, the defect was not prejudicial to the appellant and did not cause him any injustice, as it was clear that the charge against him was defilement of a child aged ten years. The defect was curable under Section 382 of the Criminal Procedure Code. 50.As to whether the prosecution proved its case against the appellant beyond reasonable doubt, the specific elements of the offence of defilement under section 8(1) of the Sexual Offences Act that the prosecution must prove beyond reasonable doubt are:a.Age of the complainant;b.Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; andc.Positive identification of the perpetrator. 51.The appellant submitted that the complainant’s age was not proved, as no basis was laid for the age assessment carried out by Pw4, the clinical officer who examined the complainant. In her testimony, the complainant, who testified as Pw1, stated that she was 10 years old, though she could not remember when she was born. Her mother, who testified as Pw2, stated that the complainant was born on 8/2/2014, as corroborated by the birth certificate produced as PExh 1 by Pw5, the investigating officer. 52.In Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) as quoted in the case of JWM v Republic [2026] KEHC 674 (KLR) the court held: -‘‘… the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof….” 53.Accordingly, based on the birth certificate that showed that the complainant was born on 8/2/2014, the complainant was 10 years and roughly 2 months old at the time of the offence. In my view, the complainant’s age was proven beyond a reasonable doubt. 54.On penetration, section 2 of the Act defines penetration as follows: -“the partial or complete insertion of the genital organs of a person into the genital organ of another person.” 55.The complainant gave evidence that the appellant held her down on the floor, covered her mouth with his hand, lay over her, and inserted “his urinating thing into her urinating thing”. She reiterated during cross-examination that it was the appellant who defiled her. 56.On this issue, it has been held on several occasions that a fact of rape or defilement can be proved by oral and circumstantial evidence without necessarily calling for medical evidence. This is in line with section 124 of the Evidence Act, which states that corroboration is not necessary in sexual offences. 57.In the present case, the findings of the clinical officer who testified as Pw4 was that the complainant had been penetrated. That the hymen was freshly broken with remnants visible and that she sustained bruises to the labia majora. In the circumstances, I find that the prosecution proved the element of penetration beyond reasonable doubt. 58.The appellant’s identity was not in issue as all present before the court testified that the appellant and the complainant were neighbours. 59.The appellant further impugned his conviction on the grounds that it was anchored on contradictory and inconsistent evidence filled with discrepancies and glaring gaps. 60.In MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment), the court cited with approval the case of Twehangane Alfred v Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 as follows: -“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.” 61.I have carefully considered the evidence of the prosecution witnesses but am unable to find any contradictions or inconsistencies in their testimonies. And, if at all there were any, they were not material enough to warrant interference with the conclusions arrived at by the trial court. 62.The appellant finally impugned his conviction on the ground that the trial court failed to consider his alibi defence as presented and corroborated by his witnesses. 63.The appellant gave unsworn testimony in which he implied that Pw3, the complainant’s father, and his sons attacked him, and that when he went to report the incident at the Police Station, he was arrested on allegations of having defiled the complainant. 64.The law is that when an accused puts forward an alibi defence, he does not bear any burden to prove its falsity or truth. The burden always remains with the prosecution. In Victor Mwendwa Mulinge v Republic (2014) eKLR the court said: -“It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution ...” 65.The governing principle on alibi defence is that a failure to disclose an alibi at a sufficiently early opportunity to permit it to be investigated by the police is a factor which may be considered in determining the weight given to it. See Charles Kasena Chogo v Republic [2019] e KLR. 66.In the present case, the appellant’s alibi was never raised at any time during the cross-examination of any of the prosecution witnesses. It appears to be an afterthought. Notably, none of the appellant’s witnesses saw him being assaulted. Dw2 testified that he found the appellant assaulted by a crowd and that Pw3 paid for the appellant’s treatment. 67.In my view, the appellant’s defence failed to raise any reasonable doubt regarding the evidence presented by the prosecution. 68.The sum total of all the evidence adduced by the prosecution proved that the prosecution’s case was made beyond a reasonable doubt, and, as such, the appellant’s conviction was safe. 69.As regards the sentence imposed on the appellant, Section 8(2) of the Sexual Offences Act, under which the appellant was charged, provides for life imprisonment upon conviction. 70.The trial court sentenced the appellant to life imprisonment. This is the sentence provided by law, and as such I find no reason to interfere with it. 71.The upshot of the above is that I find that the instant appeal lacks merit and I dismiss it. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 7TH DAY OF MAY 2026.R. E.OUGOJUDGEIn the presence of:Appellant in personMiss Matere - For the RespondentWilkister - C/A