Mola v Republic (Criminal Appeal E064 of 2024) [2026] KEHC 13463 (KLR) (14 September 2026) (Judgment)

Mola v Republic (Criminal Appeal E064 of 2024) [2026] KEHC 13463 (KLR) (14 September 2026) (Judgment) Neutral citation: [2026] KEHC 13463 (KLR) Republic of Kenya In the High Court at Nakuru Criminal Appeal E064 of 2024 PN Gichohi, J September 14, 2026 Between Stephen Rogers Mola Appellant and Republic Respondent Judgment 1.The Appellant Stephen Roger Mola was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offence Act. The Particular being that on diverse dates between 25th February, 2023 and 18th March, 2023 at [Particulars Withheld] in Nakuru East Sub County within Nakuru County will fully and unlawfully caused his penis to penetrate into the vagina of SW a child aged 9 years old. 2.The Appellant also faced an alternative charge of committing an indecent Act with a child contrary to section 11(1) of the Sexual Offence Act. the particulars are that on diverse dates between 25th February, 2023 and 18th March, 2023 at [Particulars Withheld] in Nakuru East Sub County within Nakuru County intentionally touched vagina of SW a child aged 9 years old with his penis. 3.The prosecution called five (5) witnesses in support of it case. The Appellant elected to remain silent. Upon conclusion of the trial, the Court found the Appellant guilty of the offence of defilement, convicted him accordingly and imposed a sentence of life imprisonment. Summary of the evidence 4.PW1 SW testified that 18th March 2023 the Appellant who was their neighbour called her, removed her clothes, touched her on her private parts then insert “hiyo kitu yake ya kukojaa”. He used to call her to his house and when she declined, he would call Chela. 5.On that day she was behind the toiled riding a bike. She refused to go, he forced her, hugged her and according to PW1, the Appellant said “mimi ni bibi yake.” Someone came from the toilet and he let go immediately. She continued riding a bike. Her sister told her mum that “walikua na maneno” to which her mother demanded to know the “maneno”. She told her mother that the Appellant used to touch her and would tell her to go and hug him when he came home. 6.The mum called Steven who brought charcoal. Her mother also called her father. The Appellant was found at his house and they started beating him. The matter was reported to Pinewood Police station and subsequently referred to Bondeni Police station 7.She added that the 18th March was not the first time as he had done it four other times. He used to put her on his plastic chair. She would tell her auntie LK. 8.In cross‑examination, she stated that her mother had called the Appellant and spoken to him. She told him to repair the bicycle, but she did not know whether her mother sent any money for that purpose. 9.PW2, MWM testified that on a Saturday she heard her cousin PW1 talking with Shaline. They had come to visit. PW1 said she wakes up early to ride the bike. They later went to the bedroom and she enquired why PW1 was not asking for repair money and she replied that there was someone in the plot who repairs bikes. Then Shaline told her that she will not take the bike to that person and that she should ask PW1 what that man tells her. 10.She stated that PW1 told her that the man tells her to hug her when she comes from school. Upon persuasion PW1 said the man he calls her to his house, puts a cloth on his chair and inserts his penis in her vagina. He threatened to throw her in the pit latrine if she told anyone. She used to tell him that she felt pain. PW2 went home and told her mother . PW1 was taken to hospital and the doctor confirmed she had been defiled. 11.In cross examination, she confirmed she was not around when he moved in but was told there was someone who used to repair bikes but never knew he was the one repairing bikes and had never sent any payment. She denied that the Appellant was arrested over bicycle repair money. 12.In re-examination she stated that she never refused to pay him as he never asked for money. That he had also never called her or talked to her. He was attacked by a mob as he attempted to flee. 13.PW3, SW testified that PW1 is her niece. She stated that she knew the Appellant as Rogers Steve or “Waingo”. She testified that on 10th March, 2023 she saw PW1 coming from the Appellant’s house. PW1 had said she wanted to take her bike to the Appellant for repairs. She told her not to but she insisted. She went back home and later saw PW1 coming from the Appellant’s house and refused to tell her why she was there. 14.PW1 later informed her that the Appellant called her to his house, told her to sit, removed her pants and started inserting his fingers to her vagina. That she opted to keep quiet and was to tell PW1’s mum later. They went to see her mum who stays in free area and reported to her. 15.PW1 was questioned as to why she had not told aunt. The aunt was called and the Appellant was arrested. She added that untie requested she gets PW1 when she saw her leaving the Appellant’s house. There was another day she had taken the bike to the Appellant and he gave her cake. She did not see the Appellant when PW1 came out of his house. 16.In cross examination she stated that before he used to repair her bike for cash but later he said it was free. 17.PW4 PC Retoe Kiriti, testified that she received a call from MW that her child had been defiled by the Appellant and had reported in Pinewood. She started her investigations. The P3 Form confirmed that the child had been defiled. She visited the scene which was a plot owned by PW1’s grandmother. The Appellant was living in the compound and had been arrested by an officer in Pinewood. 18.The Appellant informed PW4 that he used to repair bikes for the child and that the complainant knew the Appellant very well. In cross examination, she stated that the child identified him as the perpetrator and it was during the day and that she said it was not the first time. 19.PW5 Dr. Martin Abuto testified on behalf of Dr. Ruku and Dr. Celestine. He had worked with them for two years , hence knew their handwriting. His evidence was that the victim was brought on 23rd March, 2023. From the P3 form, it was noted that there was an old broken hymen and lacerations on the vaginal wall which were weeks old. The weapon was a blunt object but could not tell if was soft or hard but was caused by a human being. On the PRC , the findings were that there was healed torn hymen that had not lasted a month. He produced the P3 Form (Exhibit 1), the PRC (Exhibit 2) and GVRC which contains all details (Exhibit 3). In cross examination, he confirmed the Appellant was never brought for examination. 20.After the Prosecution closed its case , the trial court rendered its Ruling on 24th July 2024 wherein it found that a prima facie case had been established against the Appellant. 21.Upon the Appellant being placed on his defence, the record shows that the learned trial Magistrate recorded:- “The defence mechanism s explained to the accused who elects to remain silent.” 22.Consequently, the learned Magistrate delivered her Judgment on the 2nd August 2024 whereby she found the Appellant guilty of the offence of defilement contrary to Section 8 (1) as read with 8 (2) of the Sexual Offences Act and sentenced him to life imprisonment. 23.Aggrieved by that judgment, the Appellant preferred the instant appeal against both the conviction and sentence on the following amended grounds:-i.That the Learned Trial Magistrate erred in law and in facts in failing to consider the elements of defilement were never proved beyond reasonable doubt thereby occasioning prejudice to the Appellant.ii.That the Learned Trial Magistrate erred in law an in fact in failing to appreciate that there were material discrepancies, contradictions and inconsistencies capable of unsettling the verdict thereby occasioning a dereliction of justice.iii.That the Learned Trial Magistrate erred in law and in fact by failing to accord the Appellant a fair hearing.iv.That the Learned Trial Magistrate erred in law and in fact by failing to note that no investigations were carried out thus prejudicing the Appellantv.That the Learned Trial Magistrate erred in law and in fact by failing to note that the Appellant was not in a position to defend himself due to ill health and failed to accord him a chance to defend himself and went ahead to convict him without hearing the defence case to the prejudice of the Appellant. 24.The Appellant thus prays for success in the appeal, conviction quashed and the sentence set aside. 25.The Appeal was canvassed through written submissions. The Appellant filed his submissions on 11th November, 2025 while the Respondent filed its submissions on 20th October 2025. Appellant’s submissions 26.The Appellant’s appeal was canvassed on the basis of the grounds filed. Turning on Ground 1 which challenges proof of the elements of defilement, the Appellant submits that the prosecution’s reliance on a copy of the birth certificate rather than the original, rendered the evidence on age incredible and unreliable. 27.The Appellant also argued that penetration was not proved because medical evidence only showed PW1’s hymen was ruptured without linking the act to him. He further contended that he was never medically examined and that no spermatozoa or discharge was found. To reinforce his argument, he relied on P.K.W vs Republic (Criminal Appeal No 186 of 2010) [2012] KECA 103 where the Court of Appeal addressed the legal value of medical evidence regarding a broken or absent hymen in defilement cases. 28.As to Ground 2, the Appellant argues that it is difficult to discern the truth between the testimonies of PW2 and PW3 maintaining that their accounts were inconsistent and thereby casting doubt on what was inserted into the vagina of PW1. He further asserts that the act of inserting a penis into the vagina of PW1 while seated on a plastic chair as claimed by PW1 was practically and technically impossible. 29.In relation to Ground 3, the Appellant submits that he was not accorded a fair trial and that the Court failed to protect his rights under Article 50(2)(e), (g) and (h) of the Constitution. He contends that he was never served with witness statements, that the prosecution had no evidence at the time of arraignment and was seeking it as the trial progressed, and that the trial court failed to safeguard his rights despite being aware that, if convicted, he faced a life sentence. 30.The Appellant submits that he repeatedly informed the Court that he was unwell but never received assistance that he could not properly offer his defence. In relation to Ground 4, the Appellant submits that the Investigating Officer failed to note that the witness statement of PW1 was not obtained freely alleging that PW1’s mother enticed her with the promise of a birthday party 31.He further contends that had proper investigations been conducted, the officer would have established whether there was indeed a chair in the Appellant’s house and that further no photograph of the alleged chair was produced in court to support the allegation. 32.Further that the Investigating Officer failed to investigate the person named Stephen Wafula, who was mentioned by PW5 to ascertain whether “Stephen Wafula” and “Stephen Rogers Mola” referred to the same individual or different persons. He contends that this omission left unresolved doubt which ought to have been resolved in his favour. In relation to Ground Five, the Appellant submits that the only opportunity he would have had to present his defence was denied, contrary to law. Respondent’s submissions 33.In opposing the appeal, the Respondent has made refence to Mohamed v Republic (Criminal Appeal No. 178 of 2010) [2011] eKLR and Gabriel Kamau Kinuthia v Republic (Criminal Appeal 207 of 2002) [2004] eKLR), to argue that in sexual offences where the minor is the victim , if believed, the trial Court can without corroboration find a conviction. 34.The Respondent further submits that the general rule is that a conviction may be sustained on the evidence of a single witness. In support , reliance is placed on scholarly commentary in “Child Witnesses in Sexual Offence Cases: Challenges and Opportunities in Kenyan Courts,” Journal of African Law, 60(3), 345‑367, to submit that it discusses the challenges of relying on child witnesses in defilement cases. 35.Further, that the article notes that Section 124 of the Evidence Act was introduced to address the difficulty of securing corroborative evidence in sexual offences which often occur in private. It argues that the provision balances victim protection with fair trial rights but emphasizes the need for rigorous voir dire examinations to ensure reliability. 36.As to the alleged discrepancies, the Respondent argues that the child’s testimony was weighed against the evidence of the other witnesses and the medical findings and no material inconsistency was established. Further, that the Appellant chose to remain silent and thus offered no contrary testimony or adduced any evidence. 37.According to the Respondent, the Prosecution’s case was anchored on consistent witness testimony and corroborative medical evidence. PW2, PW3 and PW4 confirmed the Appellant’s identity eliminating doubt about recognition and further the medical evidence confirmed penetration thereby satisfying the evidentiary threshold. 38.It is the Respondent’s case that the Appellant did not raise any material discrepancy or challenge the evidence satisfactorily. Applying the standard in Millier v Minister of Pensions [1947] 2 All E.R. 372 and United States v Smith [2001] it is submitted that the prosecution proved its case beyond reasonable doubt. Analysis and determination 39.This Court is mindful of its duty as a first appellate court, as restated Court of Appeal for East Africa in Okeno v Republic [1972] EA 32 which emphasized that a first appellate court must subject the evidence to a fresh and exhaustive examination and draw its own conclusions while bearing in mind that the trial Court had the advantage of seeing and hearing the witnesses. 40.In doing, so this Court has identified three broad issues for determination and in the following order:-.1.Whether the Appellant was denied a fair hearing.2.Whether the elements of defilement were proved.3.Whether conviction and sentence should be sustained. 41.On Whether the Appellant was denied a fair hearing, the Supreme Court in in Petition No. 5 of 2015 Republic v Karisa Chengo & 2 others [2017] eKLRKarisa Chengo , emphasized that the right to legal representation is a fundamental right to a fair trial. It need not also be overemphasized that an accused person should be informed of that right at the earliest opportunity, that is at first appearance in court. The rationale was stressed by the Court of Appeal in Owuor v Republic (supra) that the legal representation adds to an accused’s defense in ensuring vigorous and skilled participation. 42.The basis for that right is Article 50 (2) (g) and (h) of the Constitution which provides:-“(2)Every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of his right promptly;” [Emphasis added] 41.The trial court’s record shows that the Appellant was arrested on 25/03/2023 and arraigned in court on 28/03/2023.That was not unreasonable delay. The charges were read to the Appellant in Kiswahili language which he understood well and he replied “Si kweli” (Not true). The court therefore entered a plea of “Not Guilty”. The record does not disclose any unreasonable delay in the trial process. Contrary to what the Appellant contends, the record shows that on 18th August, 2023 , the Appellant confirmed that he had been supplied with the statements. 43.The fact that the Prosecution did not have the Court file at a particular stage does not mean that evidence was being sought during the trial process. Rather, the adjournment was simply to enable the prosecution to obtain the Court file from the police, an administrative lapse which does not vitiate the trial. 41.The proceedings were conducted in Kiswahili language and he cross examined each and the witnesses. At the close of the prosecution case on 9th July 2024, the trial Court rendered its ruling on 24th July 2024 thus:- “I have examined the evidence by the state to prove the charges before this court. I find that they have established a prima facie case and I proceed to place the accused person on his defence.’’ 42.It is not in dispute that the Appellant was not represented by Counsel during plea and the trial. There is no evidence that the Appellant was informed of his right to be represented by an advocate. The Appellant also did not ask to be provided with one. The key issue is whether substantial injustice resulted in the circumstances. Going by the proceedings before trial court, the answer is in the negative. The Appellant understood the nature of the charge and denied it. He participated fully at trial where proceedings were conducted in Kiswahili which he understood. 41.Further, even if it is not expressly indicated in the proceedings before the trial Court that the court was complying with the provisions of Section 211 of the Criminal Procedure Code, it is noted that when Appellant was placed on his defence, the trial Court stated: “ The defence mechanisms explained to accused who elected to the remain silent.” 42.Remaining silent is one of the options an accused person has under Section 211 of the Criminal Procedure Code. It is also a right under Article 50 (2) (i) of the Constitution , which expressly provides for his right to remain silent and not testify during the proceedings. Consequently, even if the Appellant was not informed of his right to Counsel and did not ask to be provided with one, this Court is satisfied that from the way he participated in the proceedings, he understood the case. No substantial injustice was occasioned. His argument that he was not given an opportunity to present his defence is not support by the court record and therefore cannot stand. 43.Tied with that is his contention that the trial court failed “ to note that the Appellant was not in a position to defend himself due to ill health. The record shows that the Appellant raised the issue of ill health on 2nd of August , 2023 and the court ordered that he be taken to hospital. The adjournment was caused by the prosecution not on account of the Appellants illness. Further adjournment was caused by the Prosecution on 18th August 2023 when the Appellant received witness statement . The court ordered that he be taken to hospital. By then , the hearing had not kicked off. 44.When the matter finally came for hearing on 24th November 2023, both parties were ready to proceed and two witnesses testified. It was adjourned to 24th January 2024 when both parties were ready and the other three witnesses where heard and case closed. 45.There is no record to show that his choice to remain silent under Section 211 of the Criminal Procedure Code was due illness. Consequently, his grievous that ill-health caused him not to defend himself is untrue. 46.From the above, the issues that follow for determination are merit based . On Whether the elements of defilement were proved, the ingredients to be proved are the age of the victim; that there was penetration and that it was caused by the Appellant. Regarding age, the victim (PW 1) subjected to voiire dire examination before giving her testimony. She told the Court that she was aged 9 years. The Birth Certificate produced in evidence shows that she was born on 10th March 2014. That P3 Form and the PRC Form indicated the same. That means she was 9 years as at the time of the alleged offence. 47.As regards penetration, Section 2 of the Sexual Offences Act defines penetration as: “The partial or complete insertion of the genital organ of a person in the genital organ of another person.” The Victim’s evidence was that Stephen called her on 18th March 2023 and removed her clothes. He inserted hi “Hiyo kitu yake ya kukojoa” (penis).It was not the first time he did it. She explained that in doing so, he used to place her on the plastic seat . The medical evidence conforms that her hymen was torn. 48.The Appellant’s argument that the act of inserting a penis into the vagina of PW1 while seated on a plastic chair as claimed by PW1 was practically and technically impossible does not affect this case. It is not the style or position in issue here. This Court is satisfied that there was penetration. 49.On the identity of the perpetrator, the complaint referred to the Appellant as Stephen. He was someone she knew as she used to take her bike to him for repair. He was her neighbour and she identified him in Court. PW3 knew about the incident as the complainant had reported to her. PW3 knew the Appellant as Rodgers Steve “ Waingo”. 50.From the evidence on record, the Appellant’s challenge on identity cannot stand. There was no mistaken identity and any of the alleged discrepancies has no effect on the prosecution case. 51.This Court is satisfied with the trial court’s well elaborate analysis of the evidence on record which led to its finding on conviction. That finding is sound. The Respondent’s case was proved beyond any reasonable doubt as required by law. The conviction was safe. 52.As regards the sentence, the Appellant stated in mitigation: “ I am sick and I am not well. I did not commit the offence.” On its part, the Respondent urged the court to sentence as per the provisions of the Sexual Offences Act. In sentencing, the trial Court stated:- “ I have considered the mitigation of the accuse. I have also considered the circumstances and the facts of the offence. The punishment is as stipulated in the sexual offences act which does not give the court a chance to even lesser the sentence . I will therefore sentence the accused to the prescribed of life imprisonment. Accused therefore sentenced to life imprisonment.” 53.That is the correct position in law. Indeed, the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigations in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR), had this to say on the constitutionality of mandatory and minimum sentences:“(16)Although sentencing was an exercise of judicial discretion, it was Parliament and not the Judiciary that set the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in a Statute must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature could not be based on private opinions, sentiments, sympathy or benevolence. It ought not to be arbitrary, whimsical or capricious. However, where a sentence was set in the Statute, the Legislature had already determined the course, unless it was declared unconstitutional, based on sound principles and clear guidelines, upon which the Legislature should then act. Suffice to say, where Parliament enacts legislation, the Judicial arm should adjudicate disputes based on the provisions of the law. However, in the special circumstances of a declaration of unconstitutionality, the process was reversed.” 41.In conclusion therefore, this Court makes the following Orders:-1.The Appellant’s appeals is hereby dismissed.2.The conviction is upheld and sentence affirmed.3.Right appeal within 14 days. DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF SEPTEMBER , 2026.PATRICIA GICHOHJUDGEDELIVERED AT NAKURU THIS 14TH DAY OF SEPTEMBER, 2026.………………………DR. JOSEPH SERGONJUDGE