https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11134

Omutanyi v Republic (Criminal Appeal E089 of 2025) [2026] KEHC 11134 (KLR) (21 July 2026) (Judgment) Neutral citation: [2026] KEHC 11134 (KLR) Republic of Kenya In the High Court at Kakamega Criminal Appeal E089 of 2025 AC Bett, J July 21, 2026 Between Stanley Omutanyi Appellant and Republic Respondent (Being an appeal against conviction and sentence of Hon. S. Mathenge (SRM) dated 27th August 2025 in Butere MC. S.O. No. E060 of 2024) Judgment 1.The Appellant Stanley Omutayi, was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8 (2) of the Sexual Offences Act No. 3 of 2006 and subsequently sentenced to thirty (30) years imprisonment. 2.It was the prosecution’s case that on the 25th day of September 2024 at (particulars withheld), the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of M.A., a child aged 9 years old. The victim, who testified after voire dire examination told the court on oath that she was nine (9) years old and that on 25th September 2024, her neighbour Osama passed her and her sister while they were on their way to fetch water. She said that while sister fetched the water, she went to the other side of the river to drink water and while there, Osama pulled her into a bush where he was hiding, removed her panty, removed his trouser and pant and put his dudu into her dudu after slapping her and threatening her to keep quiet lest he kill her. Her sister called for her and came where they were. She took a stick and started hitting Osama telling him to let the victim go. Uncle Abrahim arrived and when he asked Osama what he was doing, Osama took his trouser and panty and ran away. Abrahim screamed and Shida, who was cutting grass heard the screams. Abrahim later told their mother and the victim was taken to the police and Butere Hospital where she was treated. The victim’s father arrested Osama and took him to the police. The victim said that Osama was the Appellant and that he was their neighbour who usually came to buy items in their shop. She identified the Appellant on the dock. 3.On cross-examination, the victim told the Appellant that he was Stanley and was called Osama at home. She said it was the Appellant who defiled her and had started defiling her but did not insert his entire dudu in. 4.PW2 was the victim’s sister and also a minor. After voire dire examination, she said that on 25th September 2024, their mum had sent them to the river. Osama, who was hiding pulled M.’s hand. She called out to M. She did not respond and she went looking for her. She saw the Appellant lying on M. while naked and closing her mouth. She screamed and Abrahim came. Osama ran away and Abrahim told them to go home. On 26th September 2024, Abrahim told their mum what had happened. They reported on 27th to Lunza Police Station and M. was taken to hospital. 5.On cross-examination, PW2 confirmed that she knew the Appellant. 6.Chelagat from Butere Police Station testified as PW3 and testified on behalf of the initial Investigating Officer, who was on leave. She said that the case was in respect of Stanley Omutanyi who had defiled a 9-year old on 25th September 2024 at 4.00 p.m. when the victim and her sister had gone to the river to fetch water. PW3 said that another witness Abrahim had gone to the scene but his whereabouts were unknown at the time of the case. The witness produced a copy of the victim’s birth certificate and testified that the victim was treated and examined at Butere Hospital and a P3 issued. The Appellant was also examined at Butere Hospital. 7.PW4 was Phanice Chibole, a Clinical Officer from Butere County Hospital. She recalled that M.A. was treated at their facility when aged 8 years on 17th September 2024 and a P3 and PRC form filled. She was seen in the evening by Rebecca Omuholo on reports of defilement on 25th September 2024. On examination, she was stable. Her private parts had no swelling or bruises, and the hymen was intact. A high vaginal swab showed pus cells and epithelial cells. An impression of attempted defilement was made. The witness further testified that the Appellant was also examined whereof he was found to be sick looking. His private parts and urinalysis was normal. The witness produced the Treatment Notes, P3 forms and PRC forms. 8.In his defence, the Appellant, said that on the material date, he woke up at 7.00 a.m., then went to the farm until lunch time when he returned home where he had a wife and kids. The day ended thus. The next day, he woke up to normalcy until evening and on 27th September 2024, he was at his Uncle’s when two people arrived and informed him that the Sub-Chief was summoning him. When he boarded their motor cycle, they took him to Butere Hospital where his urine was tested and then he was taken to the police station. He denied defiling the victim. 9.Upon conviction and sentencing, the Appellant, who was aggrieved with the conviction and sentence filed a petition of appeal and set down the following grounds of appeal:-1.That, the learned trial magistrate erred in law and facts by failing to note and consider that the ingredients of the offence were not conclusively proved (penetration).2.That, the trial magistrate erred in law and facts by convicting me basing on medical report that contradicted the charges.3.That, the trial magistrate erroneously convicted and sentenced me based on shoddy investigating from the Investigating Officer.4.That, the trial court erred in law and facts by convicting and sentencing me without noting that the charge sheet was defective.5.That, more grounds to be adduced after receipt and perusal of the trial court proceedings and judgment. 10.The appeal was canvassed through written submissions. Submissions 11.In support of the appeal, the Appellant submitted that the prosecution’s case was full of contradictions, discrepancies, incredibility and uncorroborated evidence. According to him the victim’s claim that he inserted his penis into her vagina was contradicted by medical evidence. 12.The Appellant also submitted that the failure to summon the victim’s mother and father as well as Abrahim and Shida to give evidence rendered the prosecution’s case incredible. He relied on the cases of TNM v. Republic Naivasha HCCR. APP. No. 10 of 2015, Republic v. Cheya & Another [1973] E.A 500 and Patrick Kathurima v. Republic Nyeri Court of Appeal No. 13 of 2014. 13.He also contended that the charges were defective as the evidence by the victim and the medical examination reports showed attempted defilement and so he ought to have been charged with attempted defilement as was proposed by the Doctor. He relied on Erick Omondi Mbuya v. Republic Kisumu HCCR.A. No. 36 of 2017 and Ephantus Kamau & Another v. Republic Eldoret HCCR.A. No. 170 of 2011. 14.The Appellant also asserted that the prosecution failed to prove the element of penetration. He relied on the case of Philip Muiruri Ndaruga v. Republic [2016] eKLR, Macharia v. Republic [2003] eKLR and Orwochi v. Republic [1976] eKLR. 15.Citing Monari Nyanamba & others v. Republic [1996] eKLR, the Appellant also contended that PW4 ought not to have filed the P3 and PRC forms as she never examined the victim but filled the form on the basis of history. 16.On ground 5, the Appellant argued that he was denied the right to a fair trial as envisaged by Article 47 (sic) of the Constitution. He argued that he was denied the right to address court by way of submissions after the defence hearing. He relied on the case of Roberty Fanali Akhuya v. Republic [2002] eKLR, Section 213 and 310 of the Criminal Procedure Code, and Njeru v. Republic [1980] KLR 108. 17.It was the Appellant’s further submissions that his rights to a fair trial under Article 50 (2) were violated. 18.The Respondent did not file any submissions. Analysis and Determination 19.This being a first appeal, the duty of the court is to analyze and evaluate the evidence before the trial court afresh with a view to draw its conclusion while bearing in mind that it did not have the benefit of seeing or hearing the witnesses as they gave evidence. See Okeno v. Republic [1972] EA 32. 20.I have considered the petition of appeal and the submissions in support. The issues that arise for determination are:-a.Whether the Appellant was accorded a fair trial.b.Whether the prosecution proved the essential ingredients of defilement.c.Whether the failure to summon the four (4) named witnesses was fatal to the prosecution’s case.d.Whether the Appellant has demonstrated that there is a basis for this court to order a retrial. 21.Before considering the other grounds of appeal, I need to review the submissions by the Appellant that his right to a fair trial were violated as the right to a fair trial is a non-derogable right that would vitiate the entire proceedings. 22.The Appellant, who was in person, did not explicitly raise the issue of the violation of his rights in the petition save to state in Ground 5:-“5.That, more grounds to be adduced after receipt and perusal of the trial court proceedings and judgment.” 23.The submissions however, introduced new and substantial grounds of appeal regarding the failure to be given an opportunity to tender closing submissions which were totally absent from the face of the original petition. 24.It is trite that the petition of appeal, which constitutes the Appellant’s pleadings, form the basis of the appeal and the court should not consider and apply new grounds of appeal. However, for unrepresented persons, and in the quest for substantial justice as envisaged in Article 159 (2) (d) of the Constitution of Kenya, it is only fair and just to consider the additional grounds in view of Ground 5 of the petition of appeal. In Gabriel Andatsi Sutse v. Republic [2022] KECA 678 (KLR), the Court of Appeal allowed the Appellant to consider new grounds that were not in the petition of appeal in consideration of the fact that the Appellant was unrepresented. 25.Having said that, the Appellant faulted the trial court for not granting him an opportunity to tender closing submissions. 26.Section 213 of the Criminal Procedure Code provides that:-“The prosecutor or his advocate and the accused and his advocate shall be entitled to address the court in the same manner and order as in a trial under this Code before the High Court.” 27.Although the Appellant cited Article 47 of the Constitution, he appeared to have been referring to Article 50 (2). Section 213 of the Criminal Procedure Code is founded on the principles of fair trial espoused in Article 50 (2). 28.From the wording of Section 213 aforesaid, the right to present closing submissions is absolute as Section 213 is couched in mandatory terms which makes the right an indispensable element of the right to a fair trial. 29.In the case of case of Robert Fanali Akhuya v. Republic [2002] KECA 225 (KLR), the Court of Appeal at Kisumu held that:-“3.The trial procedures before the High Court are covered under Part IX of the Criminal Procedure Code (CPC). The relevant provisions of that part give the prosecution and the defence the right to address the Court by way of submissions. A careful examination of the said provisions clearly shows that the submissions must be made in open court in the presence of the accused. Sections 213 and 310 CPC use the phrase “address the court”, which in ordinary parlance means talk to or lecture to an audience. But even without those provisions section 77(2) of the Constitution of Kenya makes it mandatory for an accused person in a criminal case to be present at the hearing of his case, except where he voluntarily consents to stay away or due to his own conduct continuation of proceedings in his presence is rendered impracticable, and the Court has made an order excluding him from the Court room. That section, in pertinent part, provides as follows:SUBPARA 77(2)Every person who is charged with a criminal offence(a).............................(b).............................(c).............................(d)Shall be permitted to defend himself before the Court in person or by a legal representative of his own choice;(e).............................(f).............................and except with his consent the trial shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court has ordered him to be removed and the trial to proceed in his absence”.4.But the question which then presents itself is whether the preparation and tender to the Court of the written submissions by both the prosecutor and defence counsel forms part of the trial so as to be caught up by the provisions of section 77(2) above?5.As we stated earlier final submissions are by dint of the provisions of the CPC supposed to be orally made in open court at the close of the hearing of the case for the prosecution and the defence respectively. The submissions, it would clearly appear, are part of the trial procedures, and are provided for in the CPC. The trial cannot be said to be complete unless the record shows that both sides were granted an opportunity of addressing the Court on the merits or otherwise of the case against the accused.” 30.The record shows that none of the parties made submission since at the end of the defence case, the Prosecution prayed for a judgment date. The trial court has no record of the Appellant being informed of his right to present closing submissions. In my view, the failure to do so was fatal and rendered the proceedings defective. Considering the fact that the Appellant was facing a serious charge of defilement whose conviction ought to have attracted a mandatory life sentence and not the 30 years imprisonment meted, the oversight resulted in an infringement of his constitutional right and as such this court need not delve into the question of substantial injustice or prejudice. In holding so, I am guided by the decision of the privy Council in Criminal Appeal No. 9 of 1961; Surinder Singh Kanda v. The Government of the Federation of Malaya where Lords Denning, Hodson & Devlin held as follows:-“The right to be heard carries with it the right of the accused to know the case made against him, the evidence given and the statements made affecting him; and he must be given a fair opportunity to correct or contradict them. The Judge or whoever has to adjudicate must not hear evidence or receive representation from one side behind the back of the other. The court will not enquire whether the evidence or representations did work to his prejudice. The court will not go to the likelihood of prejudice. The risk of it is enough.” 31.I will not consider the other grounds as the above ground is sufficient for the court to quash the conviction and set aside the sentence. 32.Regarding the prayer for retrial, I note that the charges facing the Appellant were serious. They concerned a minor victim and the duty is upon this court not only to safeguard the rights of accused persons, but also the rights of victims of a crime, and more so, the rights of the child victim. 33.The Appellant was arraigned in court on 30/9/2024 and convicted and sentenced on 27/8/2025. Having perused the record, without going into the merits thereof, I find the case weighty enough to warrant a retrial as the case may result in a conviction. The witnesses ought to be available as the majority are related to the victim. The conviction of the Accused was vitiated by the mistake of the trial court and not by the prosecution. It is only fair and just that a retrial be ordered. See Samuel Wahini Ngugi v. Republic [2012] KECA 180 (KLR). 34.In the end and for the above stated reason, I allow the appeal, quash the conviction and set aside the sentence. I now make the following orders:-a.There shall be a retrial of the Appellant.b.The retrial shall be at Butere Principal Magistrate’s Court before a court of competent jurisdiction other than the trial Magistrate.c.The Appellant shall be released from Prison forthwith and remanded at Lunza Police Station from where he shall be arraigned and charged in court within seven (7) days. 35.Orders accordingly. DATED, SIGNED, AND DELIVERED AT KAKAMEGA THIS 21ST DAY OF JULY 2026.A. C. BETTJUDGEIn the presence of:Appellant in personMs. Chala for the Respondent/StateCourt Assistant: Polycap