https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9181

Ndung’u v Republic (Criminal Appeal E005 of 2024) [2026] KEHC 9181 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9181 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E005 of 2024 SC Chirchir, J June 25, 2026 Between Simon Muiruri Ndung’u Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. J. Irura (SPM) delivered on 21stFebruary 2024 in Kigumo Chief magistrate’s court criminal case No. E039 of 2019) Judgment 1.Simon Muiruri Ndung’u, the Appellant, was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.(The Act). The particulars were that on the 19th day of May 2019, at [Particulars Withheld], Muthithi location, within Murang'a County, he intentionally caused his penis to penetrate the vagina/anus of MNK, a child aged 7 years. He faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Act. Following a trial, he was convicted of the main charge and sentenced to forty (40) years imprisonment. 2.The Appellant was aggrieved by the outcome and proffered this appeal. Petition of Appeal 3.In his Amended Grounds of Appeal, the Appellant raised the following grounds:a.The learned trial magistrate erred in law and fact by denying the appellant his constitutional right to legal representation by an advocate of his choice.b.The learned trial magistrate erred in law and in fact by finding that the offence of defilement had been proved while failing to appreciate that the key ingredients of the offence namely age of the complainant, proof of penetration and positive identification of the perpetrator, were not established beyond reasonable doubt by the prosecution.c.The learned trial magistrate erred in both law and fact by failing to consider that the prosecution’s case was riddled with material inconsistencies and contradictions which undermined the credibility of the evidence, specifically regarding medical findings and hospital admission. 4.The Appeal was head by way of written submissions. Appellant’s submissions 5.The Appellant submits that his right to a fair trial was infringed when the trial court proceeded to record material evidence on 27th June 2022 in the absence of his legal counsel, despite an advocate being on record. The Appellant argues that this omission is a violation of Article 50(2)(g) and Article 25(c) of the Constitution, which provides that the right to a fair trial is non-derogable. Reliance is placed on Republic v. Karisa Chengo & 2 Others (2017) eKLR and Joseph Kiema Philip v. Republic (2019) eKLR, where legal representation was emphasized, especially in matters which attract severe sentences. 6.The Appellant further submits that the prosecution failed to prove the victim's age. He states that witnesses gave varied ages which were stated as 7, 8, 9, 10, and 11 years, and that no documentary proof like a birth certificate was produced. He relies on Daniel Kamau v. Republic (2014) eKLR to argue that where age is uncertain, the accused should be given the benefit of the doubt. 7.On penetration, the Appellant argues that the evidence of the clinical officer (PW6) was inconclusive as no fresh injuries or blood stains were observed. While relying on Michael Odhiambo v. Republic (2004) eKLR, he submits that a broken hymen alone does not conclusively prove defilement. 8.Finally, he points to material contradictions regarding the hospital admission, where the mother (PW2) claimed a month-long admission while PW6 stated she was never admitted. He submits that this contradiction go into the core of the prosecution's case, as per the decision in the case of David Ojeabuo v. Federal Republic of Nigeria. Respondent’s Submissions 9.The Respondent opposes the appeal. On legal representation, the Respondent urges the court to observe that on the day the trial court denied adjournment, the matter had been adjourned five times at the instance of the defence. It is also stated that on 27th June 2022, the Appellant informed the court that he was ready to go on with the hearing, cross-examined the witness and thereby waived his right to counsel. 10.On the age of the complainant, the Respondent submits that the trial court properly relied on the Minor’s mother’s testimony and the clinical officer’s estimate on the age of the victim. Reliance has been placed on Francis Omuroni v. Uganda (2002) and Moses Nato Raphael v. R (2015) eKLR, where it was held that age can be proved by the testimony of parents and the court's own observation. 11.The Respondent maintains that penetration was proved by the testimony of PW3 as corroborated by medical findings which indicated that there were vulva tears and lacerations. 12.On the highlighted contradictions, it is submitted that any discrepancies, such as those regarding hospital admission, were minor and trifling and not fatal to the case. In this regard the Respondent has relied on the decision in the case of Ndolo Musyoki v. Republic eKLR (2022) e KLR. Summary of evidence 13.PW2 was the complainant’s mother. She testified that on 19/05/2019, she noticed her daughter’s eyes were reddish and she had stomach ache. She took her to the hospital. She also noticed that she was unable to walk. The child later confessed that Muthumbi (the Appellant) had defiled her. On the age of the child she stated that she could not recall when her daughter was born, however at the time of defilement, the child was 10 years old and was in Class One. 14.PW3 was the complainant. She testified that the Appellant came to her home during the day, while her mother was away. He took her to a bedroom, removed her clothes, and did “bad manners” to her. She stated she screamed but no one came to her rescue, and she later started bleeding. She identified the Appellant as a neighbor she knew well. She alleged the Appellant threatened to kill her if she told anyone. 15.PW4 was the Chief of Muthithi location. He received the report of the incident on 22/05/2019 and arrested the Appellant. He identified the suspect as Simon Muthumbi Wanjiru also known as Simon Muiruri Ndungu. He further explained that the person the Appellant was named after was Muthumbi , and the name Ndungi belonged to his father.. 16.PW5 was the investigations officer. She took over the case and recorded statements. She testified that the complainant told her the Appellant brought food in a black paper bag before taking her inside the house to defile her both vaginally and through her anus. 17.PW6 was the Clinical Officer. She examined the complainant on 23/05/2019. She observed vulva and anal tears with a foul-smelling yellowish discharge, as well as yellowish stains on the buttocks. She produced the P3 Form and treatment notes. 18.The Appellant was put on his defence and opted for unsworn statement, and did not call any witnesses. He stated he was a farmer and was at his place of work during the day of the alleged incident. He claimed he was arrested while avocado seedlings were being distributed and denied the charges in their entity. Analysis and Determination 18.This being a first appeal, the duty of this Court is to subject the entire evidence on record to a fresh and exhaustive examination and draw its own conclusions while bearing in mind that it did not have the benefit of seeing and hearing the witnesses testify. This principle was long settled in the case Okeno v Republic [1972] EA 32. 19.The court has considered the Petition of Appeal, the proceedings before the trial court, the judgment appealed from, and the submissions filed by the parties. The issues that arise for determination are:a).Whether the Appellant’s constitutional right to legal representation was infringed;b).Whether the offence charged was proved beyond reasonable doubt;c).Whether there Were Material contradictions which marred the prosecution’s case Whether the Appellant’s right to legal representation was infringed 18.The Appellant contends that his right to a fair trial under Article 50 of the Constitution was infringed, when the trial court proceeded with the hearing on 27th June 2022 in the absence of his advocate. 19.Article 50(2)(g) of the Constitution guarantees every accused person the right to choose and be represented by an advocate and to be informed of that right. However, the right must be considered in the context of the conduct of proceedings as reflected in the record. 20.The record shows that prior to the commencement of the hearing on 27/6/2022 the hearing had been adjourned five times and although the Appellant was not the only party seeking adjournment in all of those instances, the record shows that in all of them ,he sought adjournment on account of his counsel’s absence . On the material date he never sought for adjournment on account of his counsel’s absence ,but he indicated to the court that he was ready to go on with the hearing. When the hearing began there is no evidence of any further requests for adjournment to enable his counsel to resume representation. Further, and more significantly, the record further shows that the Appellant cross- examined witness satisfactorily 21.The Courts of Appeal has consistently held that an accused person who voluntarily participates in proceedings without raising an objection cannot subsequently claim prejudice unless it is demonstrated that a miscarriage of justice occurred. (see for instance the case of Manyeso v Republic [2023] KECA 827 (KLR)) . 22.Upon examination of the record, no prejudice has been demonstrated. The Appellant was afforded an opportunity to challenge the evidence presented against him and there is no indication that the trial court denied him an opportunity to engage counsel or otherwise compromised the fairness of the proceedings. 23.Consequently, am not convinced that the Appellant’s right to legal representation was violated to warrant any interference by this court. Whether the offence of defilement was proved. 20.It is now well established that in a charge of defilement, for the prosecution to secure a conviction, three elements must be proved. These are: the age of the victim, the identity of the perpetrator and penetration. 26.On the age of the victim, the Appellant submits that age was not proved because no birth certificate or age assessment report was produced before the trial court. While documentary evidence remains the best evidence of age, courts have consistently held that it is not the only acceptable mode of proof. Evidence from a parent or guardian, coupled with medical assessment and the court’s own observation, may sufficiently establish age. This position was affirmed in Moses Nato Raphael v Republic [2015] eKLR. 27.In the present case, the complainant’s mother testified that the child was 10 years. The child told the court that she was 11 years and the clinical officer stated that her apparent age was 9 years. The trial court too made her own observation and opined that the child’s age was in the bracket of 9 to 10 years at the time, while observing that the victim was likely to be have been younger at the time of defilement as the trial was on its 5th year at the time it was concluded . Am satisfied that the testimony of the complainant, the clinical officer and the court’s own observation was sufficient to establish that the child was under 11 years at the time of defilement. 32.Although the identification was listed as one of the grounds of Appeal, the court observes that this issue was abandoned in the submissions. It suffices to state that the identification was that of recognition. The complainant knew the Appellant prior to the incident. He referred to him as simon Muiruri and state: “ we call him Muthumbi at home” . The child’s mother (PW2) also stated that she knew the Appellant as Muthumbi . and stated that he was their neighbuor. Further PW3, the Area chief testified as follows: “ The Accused is known as Simon Muthumbi Wanjiru. He has other names, Simon Muiruri Ndungu. Ndungu is his father. The person I arrested is the Accused in the dock” 33.It is evident therefore both parties as well as the child’s mother and the chief knew each other well. This was a case of identification by recognition. The Court of Appeal in Anjononi & Others v Republic [1980] KLR 59 observed that recognition is generally more reliable than identification of a stranger because it is based on prior acquaintance. 34.It is the finding of the court that the identity of the perpetrator was proved. 35.The third element of the offence is penetration. The Appellant has argued that the evidence in this regard was insufficient. The complainant testified that the Appellant took her to bed at her home, removed her clothes and “did bad manners to her”. The courts have long accepted that children tend use such euphemisms to describe the act of sex. 36.Further in recording her testimony, the trial court complied with section 19 of the oaths and statutory declarations Act on the requirement to test the intelligence of the child. The child’s testimony was also fully corroborated by the clinical officer and thus there was compliance with section 124 of the Evidence Act on the need for corroboration. The child’s testimony in regard to penetration was therefore corroborated by medical evidence. 37.The Appellant has anchored his submission on the aspect of a broken hymen, arguing that a broken hymen is not necessarily evidence of penetration. However, the clinical officer never made any reference to the hymen, and the trial court did not arrive at its finding on penetration on the basis of a broken hymen. The clinical officer testified that the vulva had tears and lacerations and there were also tears on the anal area. The officer’s testimony was on the basis of the P3(PExb .1) and treatment chit ( PExb 2). Penetration was sufficiently proved. And the Appellant ‘s submission in this regard is misconceived. 38.On independent re-evaluation of the evidence therefore this Court is satisfied that the prosecution established all the essential ingredients of the offence. Whether there Were Material contradictions which marred the prosecution’s case 39.The Appellant further argues that contradictions in the prosecution evidence rendered the conviction unsafe. He has pointed out the contradictions in the victim’s age, his identity, whether the victim was admitted in the hospital or not, and whether the complainant was given food by the Appellant. 40.The law on contradictions and discrepancies is well settled; - not every inconsistency in evidence is fatal to a prosecution case. In Twehangane Alfred v. Uganda Criminal Appeal No. 139 of 2001, [2003] UGCA, 6 the court held 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 case.” 41.On the age of the victim, the variations were slight, that was between 9 to 11. That was the estimate of all the witnesses at the time of trial. Further while the offence took place in May 2019, the first witness took the stand on 27th June 2022. That was four years after the incident. It follows that the victim was much younger at the time of the incident. The contradictions therefore apart from being minor variation did not remove the child from the bracket of section 8 (2) under which the Appellant was charged. consequently, there was no prejudice or injustice resulted or the discrepancies. 42.On the identity of the perpetrator, the discrepancy was well explained by PW3 the Area chief. Further the Appellant did not challenge the testimony of PW3 in that regard. The variation in names did not dent the prosecution’s evidence on identification of the Appellant. 43.Finally, the issue of whether the child was given food or whether she was admitted in hospital or not, has no relevance on any of the ingredients of the offence which the prosecution had the burden of proving. 44.In conclusion therefore on this issue there were no material contradictions which went into the substance of the prosecution’s case. 45.Accordingly, the appeal against conviction is devoid of merit and is hereby dismissed. The sentence 46.There was no appeal against the sentence, save that the Appellant faulted the trial court for failing to discount the period he had spent in custody prior to being released on bail. The record shows that the Appellant was in custody from the date of his arrest on 24th may 2019 up to 16th June 2022 when he was released on bail. Thus, he had spent three (3) years in custody by the time of his release. Pursuant to the provisions of section 333(2) of the Criminal procedure code, this period ought to have been discounted. Consequently, while the 40 years sentence remains undisturbed, the said period is hereby discounted by 3 years. DATED , SIGNED AND DELIVERED AT ISIOLO, VIA MICROSOFT TEAMS THIS 25TH DAY OF JUNE 2026.S. CHIRCHIRJUDGE.In the presence of :Roba Katelo- court AssistantAppellant