https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11084

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKADARA** **CRIMINAL DIVISION** **APPELLATE SECTION** **CRIMINAL APPEAL NO E066 OF 2025** **MELVIN MUNYASA KHALEA …………………………… APPELLANT** **VERSUS** **REPUBLIC ………………………………………………. RESPONDENT** (***Being an appeal from the original conviction and sentence in criminal case SO No 2456 of 2015 of the chief Magistrates Court at Makadara)*** **JUDGMENT** 1. The institution of house manager is one of which is fret with challenges and misunderstanding. Their role as important as it is, is often underappreciated and not treated with the dignity, respect and kindness and some have taken advantage of their closeness with the family to cause havoc. In the bible Sarah had her Haggar whom she out sourced to her Husband only to later blame him for her attitude and Jacob’s wives had one each whom they gave to their husband in a competition. 2. The appeal herein is as a result of the appellant’s role as one in the house of the complainant’s mother , a career woman who like the rest of her kind could not have survived in her career path without one and for which she employed the appellant to be in charge of her household including an only son aged eleven years as at the time of the alleged offence, the substance of which she denied . 3. According to the victim, on the fateful night the appellant and the victim were as in topical Kenyan middle class home, watching a Nigerian Movie until 10 pm , his mother having gone to fend for them, when he retired to bed only for the appellant whom he referred to as “aunty “ came to his bed and told him that she was going to do something to him which he should not tell his mother and or anybody else. She then held his private parts “ the place I urinate with “ and put it inside her private parts and laid on top of him. 4. The appellant was then charged with the offence of defilement contrary to section 8(1) as read with 8(2)tried, convicted and sentenced to fifteen years. 5. Being aggrieved by the said conviction and sentence she filed this appeal initially at the High Court Criminal Registry at Milimani as Criminal Appeal No E 027 of 2021 and raised the following grounds of appeal: 6. The learned magistrate misdirected herself by ad mitting medical evidence that was procedurally adduced. 7. The court misdirected herself by not conducting voir dire examination on the complainant 8. The court misdirected itself by failing to consider that the prosecution did not collect DNA samples for further examination so as to compare with the results to those of discharges from the complainant 9. The court failed to consider that the minor was quite intelligent and would therefore bear falsehood as coached by the parents 10. The prosecution case was not proved beyond reasonable doubt 11. The court failed to inform the appellant of the need for legal representation thereby causing a mistrial. **SUBMISSIONS** 1. This appeal was transferred to this criminal registry and upon admission directions were issued on its disposal b y way of written submissions. 2. On behalf of the appellant it was submitted that the case was not proved since the medical examination of the victim confirmed that his external genitalia was normal as confirmed by both PW5 and PW3 and recommended further forensic analysis. It was further contended that according to PW4 whom the victim reported to first , the same said that the appellant had touched his private part and he managed to escape, which contradicted the victim’s testimony. It was submitted that PW4 was not called to testify thereby leaving a doubt on the prosecution case. In support of the submissions reference was made to the case of S v Nzvenga to the effect that medical evidence must be through and conclusive to establish penetration. 3. It was contended that the appellants right to legal representation was violated since she was a layperson facing a serious criminal charge attracting a mandatory sentence of life which made the legal representation indispensable and that the trial court had a duty to inquire into whether the appellant qualified for legal aid in support of which reference was made to the case of **Omusugu versus Republic [2026] KEHC 2014** where the court stated that failure to warn an accused person of their right to state funded counsel when facing mandatory sentence is not a mere procedural oversight but fundamental breach of a non-derogable constitutional right which strips the trial of its constitutional validity. 4. It was the appellants contention that the court was under a duty to conduct a proper voir dire examination of the complainant to determine whether the same understood the nature and solemnity of an oath as was stated in the case of **Johnstone Muiruri versus Republic [1983] KLR** and that in this cause the trial court failed to properly inquire into whether the victim understood the nature of oath and failed to record her finding and therefore the evidence should not have been relied upon to sustain a conviction. 5. It was submitted that the court failed to comply with the provisions of section 200 and section 211 of the Criminal Procedure Code when the succeeding magistrate took over the matter contrary to what was stated in the case of **Abdi Adan Mohamed versus Republic [2017] eKLR** and further failed to comply with section211 to explain to the appellant her right to defend herself as was stared in the case of **Samuel Karanja Kiria versus Republic [2009] eKLR** and that the proceedings does not reflect that the appellant voluntarily weaved her right to present a defence or whether the confusion arose from failure by the trial court to explained to her rights under section 211 of CPC. 6. It was finally submitted by the appellant that her sentence was irregular as the law prescribe life imprisonment while the court imposed 15 years. It was submitted that the appellant was a young girl who was fending for herself and her family when she found herself at cross road in a matter which she denied committing. 7. On behalf of the respondent it was submitted that penetration was proved through the testimony of the complainant and PW4 who examined the complainant together with PW3 who examined both the appellant and the victim. The age of the victim was proved through his birth certificate and the appellant was positively identified by both PW1 and PW2as their house helper. The appellant opted to remain silent in her defence. On sentence it was submitted that the same was not in conformity with the law as section 8(2) provides for life sentence yet the appellant was sentenced to 15 years which should therefore be enhanced. **PROCEEDINGS** 1. This being a first appeal the appellant is entitled to re-evaluation of the evidence tendered afresh and for the court to come to its own conclusion thereon as was stated in **Okeno versus Republic.** 2. PW1 testified on oath that the appellant woke him up and told him that she was going to something to him which he should not tell his mother or anyone , she then held his private part and put it inside her private part while on top of him and when done she went to sleep. He then got out of the house and went to seek help from a neighbour who gave him a blanket to cover himself since he was naked. He was assisted with a phone to call his mother whom he informed of his ordeal , she called a neighbour who called the police who arrested the appellant and took the compliant to hospital. 3. PW2 the mother produced his birth certificate. On the material day she had gone for training and left the appellant and the compliant in the house when at night she received a call from a neighbour who informed her that someone had knocked her door and that she should inquire from the appellant if she had heard the knock to which she said she had not and that they were safe, after two minutes she got a call from another neighbour who passed the phone to the victim who informed her that the appellant had “done bad manners to him “. The said neighbour called the police and the clinic , who arrested the appellant and took the victim for medical examination. In cross examination she stated that there was no misunderstanding between her and the appellant. 4. PW3 Dr Kizzy Shako examined the victim with normal genitalia , she recommended specimen collection for further analysis. She also examined the appellant and produced P3 form confirming normal genitalia with no injuries. PW5 Selina Nyambu produced medical report on the victim whose external genitalia was normal with no penal discharge. 5. PW 4 Mary Wambui corroborated the evidence of PW2 and that she called the police who interrogated the victim who said that the appellant was touching his private part before he escaped and was locked outside. The police opened the door of PW2’s house and the appellant came out. In cross examination she stated that the complainant looked the appellant inside the house. 6. When put on her defence the appellant who opted not to give any evidence. **DETERMINATION** 1. In this matter the appellant has raised a constitutional and procedural issues which the court ought to deal with first. 2. The first issue is the violation of her right to legal representation article 50(2)(h) of the constitution grant the right to legal representation where substantive injustice would otherwise result. The constitution has not defined what that substantive injustice is save for as provided under the Legal Aid Act which according to **Karisa Chengo Case** (supra) include but not limited to ; the seriousness of the offence , the severity of the sentence , the ability of the accused to pay his own legal representation , whether the accused was a minor , the literacy of the accused and the complexity of the charge . 3. The fact that the appellant was a lay person and charged with the offence of defilement does not in itself alone mean that the same suffered substantive injustice. 4. In this I find support in the court of Appeal decision in **Manyeso versus Republic** where the court stated that the appellant therein, as in this case did not raise the issue with the trial court and the records shows that the same participated in the trial and cross examined the witnesses and therefore it is evident that she did not suffer any substantive injustice. 5. Whereas the court from the record did not advise the appellant of her right to legal representation , the court record shows that the same was able to conduct her defence and was therefore not prejudiced. The issue of legal aid has been rightly held by the courts to aspirational taking into account our financing model and the fact that the legal aid system has just been rolled out. 6. The procedural issues raised by the appellant is that the court did not conduct proper voire dire , a perusal of the court record shows that the court conducted proper voir dire and found the victim intelligent enough to testify on oath. I take the view that the conduct of voire dire is for the benefit of the court before administering oath on a child of tender age and once the court is satisfied with the same, it cannot be faulted by a party to the proceedings. This ground of appeal has no merit and is dismissed. 7. On the issue of compliance with section 200 of CPC the records show that the same was explained to the appellant who opted to have the matter proceed from where it had reached and as regards section 211 the records as at 12/2/2021 shows that the court explained to the appellant three ways to defend herself and that the court explained to her that she had a case to answer but she insisted on giving no evidence. Having exercised her constitutional right to remain silent, the appellant cannot now turn around and state that she did nit understand what was happening. The trial court cannot be faulted in proceeding to render judgement there being no evidence tendered by the appellant, having lawfully put her on defence. 8. On proof of the prosecution case, the age of the victim and the identity of the appellant were not disputed. The appellant was employed by the victim’s mother as a house helper and on the material night , the two were left in the house from where she was arrested and therefore find her identification by recognition was safe and free from error. 9. The only issue in dispute is whether penetration was proved in view of the evidence tendered by the mother(PW2) that the victim told her on phone that the appellant had done bad manners to him without elaborating the nature of the bad manners , when looked at against the evidence of PW4 who said that the appellant had only touched the victim’s private part and he managed to escape , only for the account to change through PW5 Selina Nyambu, who introduced the issue of penetration through the history but which was not corroborated through the medical report that confirmed that both the genitalia of the victim and the appellant were normal, and in which PW3 Dr Kizzy Shako recommended collection of specimen for government chemist but the same was not tendered in evidence, which raises a doubt as to whether penetration was conclusively proved. 10. The trial court had this to say on the issue of penetration ‘ ***30. The medical certificate produced also showed that during consultation the accused(sic) detailed the event of the incident by stating that the accused took his penis and inserted it in her vagina then raped him. Medical evidence however did not create an inference that the accused defiled PW1as no injuries or abnormalities were noted on both persons. In George Kioji v Republic [criminal appeal no 270 of 2012] court expressed itself that ‘ we however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can be convicted for defilement. “ Pw1 gave evidence of penetration by the accused person which was partially corroborated in his medical certificate and P3 form produced as exhibit 3.*** 11. ***31. I am satisfied that penetration was proved beyond reasonable doubt.PW1described with precision that he had sexual intercourse with the accused. He testified that the accused inserted his penis into her vagina on the fateful night. The fact that medical examination conducted upon PW1 did not expressly disclose that the accused was the one who defiled PW1 does not in my view rebut the evidence as his evidence alone was sufficient to convict him “.*** 12. I am of the considered view and hold that this being a criminal matter wherein proof is required beyond reasonable doubt, the court fell into error having found that that there was doubt raised on penetration by the medical evidence , that benefit should have been given to the appellant when looked at the evidence of the complainant and his first report to the neighbour and to his mother that the appellant only touched his private part , which account he later changed to the effect that she had inserted his penis into her vagina having initially told him to remove his trouser for fear of peeing on them. 13. I am therefore satisfied and hold that there remains a doubt as to whether the offence of defilement was proved as the court did not state why she believed the complainant’s later edition of the occurrence over his first report to his neighbour and mother. 14. It therefore follows that the appeal against conviction succeeds and the same is set aside . 15. On sentence , it is clear as submitted by the prosecution that the same was not proper, the court having found that defilement was proved and based on the age of the compliant the sentence thereon should have been life imprisonment. However, the court cannot be faulted in giving the term of 15 years based on the prevailing jurisprudence pre- Muruatetu 2 when the superior court had found that the trial courts had discretion to give a sentence rather than the statutory maximum or minimum whatever the case. Further the prosecution had not filed cross appeal on sentence and neither did they give the notice of enhancement to the appellant . 16. Would the appeal on conviction had not been allowed I would not have interfered with the sentence the decision of the Supreme Court thereon not withstanding ! 17. I am however satisfied and hold that the alternative count of indecent act with a child was proved as I see no reason why the victim would report that the appellant had touched his penis and having taken into account the submission by Mr Hamisi on behalf of the appellant that there remains a doubt as to whether the appellant stimulated the penis of the victim to get an erection for her to succeed in inserting the same into her vagina more so when his evidence was that she was on top and having not had the advantage of seeing both the victim and the appellant am unable to comment on their sizes and or body size as it were. 18. In exercising the powers of tis court as a first appellant court I hereby find that the alternative charge of indecent act with a child contrary to section 11(1) of the Act was proved beyond reasonable doubt and convict the appellant thereon. The same is sentenced to serve an imprisonment term of ten years with effect from 7th August 2015 when the same first appeared in court in view of the provisions of section 333(2) of the CPC. 19. The appellant is entitled to remission thereon. 20. The state has a right of appeal and it is ordered. **DATED SIGNED AND DELIVERED THIS 23rd DAY OF JULY 2026** **J. WAKIAGA** **JUDGE** In the presence of Court Assistant - Irene Ms Kariuki for the republic Mr. Kaberia for Mr. Hamisi for the appellant The appellant present virtually at Langata women