https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7640

Mwabu alias Keita v Republic (Criminal Appeal E041 of 2025) [2026] KEHC 7640 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7640 (KLR) Republic of Kenya In the High Court at Bungoma Criminal Appeal E041 of 2025 REA Ougo, J May 28, 2026 Between Douglas Wafula Mwabu Alias Keita Appellant and Republic Respondent (Being an appeal from the judgment & conviction of Hon. T.O. Omono, RM, delivered on the 23/4/2025 in Bungoma CMC in S. O. Case No. E007 of 2025) Judgment 1.The appellant was charged with the offence of defilement contrary to section 8 (1) (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the charge were that, on diverse dates between 21/11/2024 and 6/01/2025 at [Particulars Withheld] in Kimaeti sub-county within Bungoma County, the appellant intentionally caused his penis to penetrate the vagina of DMB a child aged 15 years. 2.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. 3.The appellant pleaded not guilty, and the matter proceeded to trial. The prosecution called four (4) witnesses, while the appellant gave a sworn statement in his defence. 4.In its judgment dated 23/04/2023, the trial court found the appellant guilty of the main charge, convicted and sentenced him to serve 20 years’ imprisonment. 5.Dissatisfied by that decision, the appellant filed his petition of appeal dated 23/06/2025 raising six (6) grounds which are summarised as follows: -a.That the trial magistrate erred in law and facts to commit him on the evidence which had a lot of discrepancies.b.That the trial magistrate erred in law and fact in convicting him based on poorly investigated evidence thus the conviction was unsafe.c.That the trial magistrate erred in law and facts to convict him on based on the doctor’s report whereas he was not examined to confirm if he was involved in acts with the complainant.d.That the trial magistrate erred in law and facts in convicting him without giving him a chance to mitigate thus violating Article 50 ofthe Constitution.e.That the trial court erred in law and facts in rejecting his plausible defence contrary to section 169 of the Criminal Procedure Code. 6.The appeal was disposed of by way of written submissions. The appellant submitted that the medical evidence relied upon to prove penetration was quite remote, as it was taken 2 months after the alleged incident. That the trial court erred in law and fact by shifting the burden of proof to him, as the prosecution failed to prove penetration. 7.There was no DNA test result to prove that the complainant had no other sexual intercourse with other persons. The trial court failed to indicate the demeanour of the complainant, contrary to section 191 of the Criminal Procedure Code. 8.That the trial court erred in law and in fact in denying him his constitutional right to the least severe punishment pursuant to Articles 24(1)(e), 25(c) and 50(2)(p). That there was doubt as to the exact age of the complainant, and that this doubt ought to be interpreted in the appellant’s favour. 9.That he was denied his constitutional right to legal representation, thus denied a fair trial. 10.On its part, the State submitted that the charge against the appellant and each of its elements was proved beyond reasonable doubt. That a medical examination of the appellant is not a requisite to establishing that he committed the offence. 11.That the sentence imposed on the appellant is legally sound and ought to be upheld.That the trial court considered the appellant’s defence, found it implausible, and therefore rejected it. That the appellant was given an opportunity to mitigate, contrary to his allegations. Analysis And Determination 13.This being 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.) 14.Pw1 DMB, the complainant, testified that she was 17 years old, having been born on 23/6/2009. The appellant was her boyfriend. 2 days before 21/11/2024, she met the appellant, who asked her to follow him, but she informed him that her parents were harsh. On 21/11/2024, while returning home from the shops, the appellant stopped her and asked her to follow him. The appellant took her into his house, locked the front door with a padlock from outside, then entered the house through the back door, locked the back door, and taught her how to hug him. The appellant removed her biker and pant, raised her dress, unzipped his trousers, then put his penis in her vagina. She said she felt pain, but the appellant told her “nitazoea tuu”. After the act, the appellant checked for people outside, then released her. 15.On 23/11/2024, she returned to the appellant’s house and informed him that she was in pain and, as a school-going child, feared becoming pregnant. The appellant forced her to have sex on that day, as well as on 27/11/2024 and 6/1/2025. When she returned to school, she was emotional and unwell, so she went to see the school nurse, who called her father to take her to Bungoma District Hospital, where she was examined and found to be pregnant. She told her father and aunt that the appellant was responsible for her pregnancy, and the matter was subsequently reported to Mayanja Police Station. The accused was arrested after she led the police to his house. The complainant identified the appellant in court. 16.In cross-examination, the complainant testified that the appellant told her not to inform anyone of the incident and that she feared screaming when with the appellant. The complainant denied being arrested with the appellant. She also testified that she knew him as Douglas. 17.Pw2, Dr. Claudia Wafula, a doctor at Bungoma County Hospital, testified that she attended to the complainant and completed her P3 form on 20/1/2025. The complainant reported that her last menses were in late October 2024. The outer vagina showed no bruises, bleeding or blood stains. Internally, the vagina had a whitish discharge. The hymen was absent and had old, healed bruises. Further examination of the lower abdomen revealed a bulky uterus, and a pregnancy test was positive, indicating that the complainant was 8 weeks and 1 day pregnant. The degree of harm was found to be grievous harm due to the defilement and pregnancy, as she was not of the right age to carry a pregnancy. She formed the opinion that there was penetration. 18.In cross-examination, Pw2 testified that the whitish discharge was due to the complainant’s pregnancy and not the defilement. She did not examine the appellant. 19.Pw3, CSM, the complainant’s uncle, testified that the complainant was 15 years old. He lives with her. On 15/1/2025, the complainant returned home from school, claiming to be unwell with malaria. Later, her father called him to inform him that the complainant had been sent home due to pregnancy. 20.That he took the complainant to hospital, where she was found to be 8 months pregnant. The complainant told him that Keita was responsible for the pregnancy, so he began tracing the appellant. That he took the appellant’s photo while he was playing football and showed it to the complainant, who identified the appellant. He informed the police, who arrested the appellant. During this time, while the appellant was being processed at the police station, he came to know him as Douglas. 21.Pw4 No. 83xxx, Cpl Kevin Onyango from Mayanja Police Station, testified that on 17/1/2025 at around 1230hrs, the complainant was brought to the station by her guardian. They reported that the complainant was pregnant after being defiled by the appellant. He issued a P3 form to the complainant, and after it was filled it emerged that the complainant was 8 weeks pregnant. The complainant led Pw3 and one PC Obadiah to the scene, a one-roomed brick house where the accused used to run his kaa ngumu business, and they arrested the appellant. There was no bed in the room, and the complainant identified the appellant. Pw4 adduced the complainant’s birth certificate, showing that she was born on 26/3/2009. 22.In cross-examination, Pw4 testified that he arrested the appellant while the appellant sat by the roadside and informed him of the allegations brought against him. He denied telling the appellant that he had stolen items from his boss. 23.When placed on his defence, the appellant denied committing the offence. He testified that he was born on 7/10/2000 and was a casual labourer. On 27/1/2025, he went to plough his neighbour’s land and was paid Kshs. 100/- instead of the Kshs. 800/- agreed. He then did another casual job fetching water and was paid Kshs. 200/-. He then proceeded to Mayanja to buy some items and, on his way home, was arrested by two people unknown to him who accused him of being a thief. Those who arrested him failed to disclose the complainant but instead led him to Mayanja Police Station, where he was chained to a window grill. The following day, he was presented to Bungoma Law Court, where he was charged with the offence herein. 24.It is on this evidence that the trial court found the appellant guilty, convicted him, and sentenced him accordingly. Analysis And Determination 25.As a preliminary issue, 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. 26.Article 50(2)(h) ofthe Constitution guarantees the right to legal representation at state expense where substantial injustice would otherwise result. Section 43 of the Legal Aid Act, 2016, mandates that courts inform accused persons of this right. 27.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 underthe 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.” 28.In Republic v Karisa Chengo and 2 others [2017] eKLR, the Supreme Court held 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 ofthe 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”. 29.Accordingly, it should be standard procedure for the accused to be informed in advance of their right to legal representation. This is mandated bythe Constitution. 30.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) ofthe Constitution. Therefore, the trial court's omission in notifying the Appellant of his rights should not serve as grounds for invalidating his trial. 31.As to whether his conviction was proper, the appellant challenged the trial court’s judgment, contending that the evidence presented was poor and insufficient to sustain his conviction; that the evidence was full of discrepancies; that he was not examined by the doctor; and that the trial court rejected his plausible defence. 32.Section 8 (1) as read with section 8 (3) of the sexual Offences Act establishes the offence of defilement as follows: -“8(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 33.Thus, to secure a conviction, the prosecution must prove the specific elements of the offence of defilement under section 8(1) of the Sexual Offences Act, namely:i.Age of the complainant;ii.Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; andiii.Positive identification of the perpetrator. 34.The age of the complainant was not in dispute. The complainant testified that she was born on 23/6/2009, a fact corroborated by the birth certificate produced by the Investigation Officer, Corporal Onyango, who testified as Pw4. At the time of her testimony in court, she was 17 years old. Her uncle, who testified as Pw3, stated that at the time the offence was committed, the complainant was 15 years old. 35.Based on the evidence adduced, it is clear that at the time the offence was committed on 21/11/2024, the complainant was 15 years old. The prosecution thus proved this element beyond reasonable doubt. 36.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.” 37.The complainant testified that the appellant had defiled her. She further stated that on 21/11/2024 the appellant lured her into his house, locked them in, removed her bra and pants, raised her dress, unzipped his trousers, and then inserted his penis into her vagina. Although she expressed pain, the appellant told her “nitazoea tuu”. The appellant subsequently forced her into sex on 23/11/2024, 27/11/2024, and on 6/1/2025. 38.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. 39.In the present case, the complainant was examined on 20/1/2025, almost 2 months after the incident occurred. Dr. Wafula could therefore not establish whether she had been recently assaulted. However, Dr. Wafula testified that the examination revealed that the complainant was 8 weeks and 1 day pregnant, which aligns with the date the complainant alleged she had been defiled by the appellant. 40.In addition to this evidence, the complainant was firm in her testimony and reiterated it during cross-examination. This is prima facie evidence of penetration; hence, there can be no doubt that penetration occurred. 41.The appellant complained that he was never examined. The absence of an examination of the accused is not a prerequisite for establishing the offence of defilement. This was settled by the Court of Appeal in the case of Robert Mutungi Mumbi v Republic, Criminal Appeal Number 52/2014 [2015] eKLR, where it held thus:“Section 36 (1) of the Act empowers the Court to direct a person charged with an offence under the Act to provide samples for tests, including for DNA testing to establish linkage between the accused person and the offence. Clearly, that provision is not couched in mandatory terms. Decisions of this court abound which affirm the principle that medical or DNA evidence is not the only evidence by which commission of a sexual offence may be proved.” (emphasis added). 42.Consequently, the prosecution proved the element of penetration beyond reasonable doubt. 43.As to whether the prosecution proved that the appellant was positively identified, there is no doubt. The appellant and the complainant were well known to each other prior to the offence. 44.The appellant challenged his conviction on the ground that the evidence contained discrepancies. No evidence of such discrepancies was adduced in support of this allegation. In any case, it has been settled that the court will ignore minor contradictions unless it finds that they point to deliberate untruthfulness or that they do not affect the main substance of the prosecution’s case. (See the case of MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment). 45.The appellant finally challenged his conviction on the ground that his plausible defence was not considered. The appellant’s defence before the trial court was a mere denial. The trial court considered it and found that it did not displace the prosecution’s evidence. On this, I agree with the trial court. 46.Taking all the foregoing into account, I find that the appellant’s conviction was safe. I uphold the appellant’s conviction and the sentence imposed. 47.In the circumstances, I find no merit in this appeal and I dismiss it. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026.R.E. OUGOJUDGEIn the presence of:Douglas Wafula Mwambu alias Keita/ AppellantRespondent – AbsentWilkister - C/A