[2025] KEHC 3457 (KLR)

Papai v Republic (Criminal Appeal E006 of 2024) [2025] KEHC 3457 (KLR) (21 March 2025) (Judgment)

Neutral citation: [2025] KEHC 3457 (KLR)

Republic of Kenya

In the High Court at Busia

Criminal Appeal E006 of 2024

WM Musyoka, J

March 21, 2025

Between

Alfred Papai

Appellant

and

Republic

Respondent

(Appeal from conviction and sentence by Hon. Edna Nyaloti, Chief Magistrate, CM, in Busia CMCSOC No. 109 of 2019, of 28th February 2024)

Judgment

1. The appellant, Alfred Papai, had been charged before the primary court, of the offence of defilement, contrary to section 8(1)(2) of the Sexual Offences Act, Cap 63A, Laws of Kenya, and an alternative charge of committing an indecent act with a child, contrary to section 11(1) of the Sexual Offences Act. The particulars of the offence were that on 27th August 2019, at Aremi Location, Teso South Sub-County, within Busia County, he unlawfully and intentionally caused his penis to penetrate the vagina of SA, a child aged 10 years. The appellant denied the charges, and a trial ensued, where 6 witnesses testified.

2. The complainant, SA, testified first, as PW1. She identified the appellant by name, and stated that she met him on her way from the farm, and he defiled her. The appellant stopped, after 2 other children came to the scene. She informed her grandmother, who took her to hospital. The second witness, Elizabeth Ashapet, PW2, was one of the 2 girls who came to the scene, after PW1 screamed. She found the appellant, who she identified by name, lying on PW1. He ran away after they arrived. PW3, Immaculate Akadikor, was the other girl, who was with PW2, and who responded to the screams by PW1. They found the appellant, who she also identified by name, “raping” PW1.

3. PW4, Osikuku Orapa, was a grandfather of PW1, PW2 and PW3. He responded to an alarm raised by PW2 and PW3, and when he went to the scene, he found the appellant, who he identified by name, pulling up his trousers. PW1 informed him that the appellant had defiled her. He took both the appellant and PW1 to the police, and later took PW1 to hospital.

4. PW5, Felix Otieno, was the clinician, who presented the medical evidence. PW1 had been attended to by a different clinician. The medical findings were that her labia minora was reddened, the hymen was broken, there were bruises and there was a discharge. The conclusion was that she had been defiled. PW6, Number 225517, Police Constable Shem Ngige, was the investigating officer.

5. The appellant was put on his defence, vide a ruling that was delivered on 31st July 2023. He made a sworn statement, on 18th December 2023, and called no witness. He denied the charges, and insinuated that there was a land dispute between his family and that of PW1.

6. In its judgement, delivered on 28th February 2024. The trial court found the appellant guilty, as all the elements of the offence had been positively proved. The appellant was sentenced to serve 40 years imprisonment.

7. He was aggrieved, and brought the instant appeal, revolving around the medical evidence not linking him to the offence; the investigations being shoddy; and the prosecution failing to provide all the relevant witnesses.

8. The appeal was canvassed by way of written submissions. Both sides filed written submissions.

9. The submissions by the appellant are not aligned to the grounds in his petition of appeal. He has introduced new grounds of appeal or substituted his initial grounds. His submissions turn on defects in the charge, around the dates of his arrest and of the first report, and relating to the framing of the charge as under section 8(1)(2) of the Sexual Offences Act; violation of the provisions of the Constitution relating to his right to be informed of his right to legal representation; the testimony of PW1 not being corroborated; on penetration; the age of the complainant; and the sentence being harsh and excessive.

10. He cites Okeno v Republic [1972] EA 32 (Sir William Duffus P, Law & Lutta, JJA), Republic v Chengo & 2 others [2017] eKLR [2017] KESC 15 (KLR)(Maraga, CJ, Mwilu, DCJ&VP, Ibrahim, Ojwang, Wanjala, Ndungu & Lenaola, SCJJ), Albanus Mwasia Mutua v Republic [2006] KECA 346 (KLR) (Omolo, Githinji & Deverell, JJA), Patrick Oduor Ochieng v Republic [2022] KECA 23 (KLR)(Kairu, Mbogholi-Msagha & Nyamweya, JJA), Ann Njogu & 5 Others v Republic [2007] eKLR (OK Mutungi, J), Jackson Mutunga Matheka v Republic [2015] eKLR (Mutende & Jaden, JJ), Fappyton Mutuku Ngui v Republic [2012] eKLR KEHC 5491 (KLR) (J. Ngugi, J), Charles Koli Anyoso v Republic Kakamega HCCRA No. 190 of 1998 (Waweru, J), Kainga Elias Kasomo v Republic [2010] eKLR, Hillary Nyongesa v Republic [2010] eKLR (Mwilu, J), Stephen Ouma Opiyo v Republic Kisumu HCCRA No. 46 of 2009 (JR Karanja, J), Kelvin Kiprotich Amos alias Rotich v Republic Bungoma HCCRA No. 89 of 2016 (Ali-Aroni, J) and Bernard Kebiba v Republic [2000] KECA 158 (KLR) (Chunga, Akiwumi & Keiwua, JJA).

11. The respondent supports the determination by the trial court, and cites Okeno v Republic [1972] EA 32 (Sir William Duffus P, Law & Lutta, JJA), George Opondo Olunga v Republic [2016] eKLR, CWK v Republic [2015] eKLR (Kimaru, J), Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), to support its arguments.

12. The first issue is about the charge being defective. There 2 aspects. I will start with the easier one. The appellant is pointing at the frame of the charge as brought under section 8(1)(2) of the Sexual Offences Act, as opposed to being framed as section 8(1) as read with section 8(2). This is a storm in a teacup. It does not matter either way. The frame, which refers to section 8(1)(2), would be sufficient, for the purpose of disclosing and informing that the charge is founded on the material provided for in the 2 subsections of section 8 of the Sexual Offences Act. I am aware that some courts have stated that “section 8(1) as read with section 8(2),” would be the proper way to frame the charge. I see no difference. With respect, to me, that would point more to a matter of style, rather than substance.

13. The second aspect focuses on the details in the charge sheet. The appellant argues that OB No. 2/28/08/2014 does not exist, since the offence, according to the charge sheet, was reported on 28th August 2019. He also points out that, according to the recorded evidence, in some parts, it was indicated that the date of arrest was 28th August 2019, while others talk of 27th August 2019. These discrepancies, on the face of the charge sheet, when taken against the recorded evidence, do not make the charge defective. There is nothing to show that the charge itself is inconsistent with the particulars of the offence. The principal pleading in criminal proceedings, and the charge sheet, is the charge, while the secondary pleading is the particulars of the offence. If these 2 parts of the charge are in sync, then the charge cannot be defective. If the particulars of the offence are not framed in a manner which makes the charge duplicitous, then it cannot be said to be defective. If the received evidence turns out to be inconsistent with the charge, that circumstance would not have the effect of rendering the charge defective.

14. The next point submitted on is about compliance with the Constitution, with respect to the accused person being informed of his right to legal representation by an Advocate of his own choice, and of his right to be availed an Advocate paid for by the State, should he be indigent. The appellant submits that he was not informed of those rights.

15. The Constitution casts a duty on the court at 2 levels. The duty is to inform the accused person of his right to legal representation by an Advocate of his own choice, at 1 level, and at the other level, to inform him of his right to an Advocate provided by the State, should he be unable to afford an Advocate of his own. These are new rights under the Constitution, 2010. Prior to that the trial court was under no obligation to inform accused persons of the right to legal representation, for it was presumed that they knew about it, and it was not, at the time, a constitutional right. In any event, the mantra that ignorance of the law is no defence held supreme. As for the right to an Advocate paid for by the State, that right did not exist, as a constitutional right, and it was only available in murder cases, by dint of judicial regulations. Now it is a constitutional obligation. Failure to comply, by the trial court, would render the trial unfair, for not keeping to the constitutional dictates.

16. The provisions are not decorative. They must be complied with. Non-compliance should invite consequences. The principal consequence is to vitiate the trial, by rendering it a nullity, under Article 2(4) of the Constitution. Sadly, the trial courts continue to proceed in the pre-2010 mode, where there was no obligation to communicate those 2 twin rights to the accused. In a sense, it would amount to ignoring the command by the Constitution, that trial courts inform accused persons of their rights in that regard. The Constitution of Kenya is the supreme law in the land, by dint of Article 2. It cannot be ignored.

17. I have, in other cases, discussed the importance of the right to legal representation, particularly where the charges are serious, in terms of the penalties prescribed. See Ogombe v Republic [2023] KEHC 21011 (KLR) (Musyoka, J), Ojiambo v Republic [2023] KEHC 24201 (KLR) (Musyoka, J), Kinyua v Republic [2024] KEHC 9469 (KLR) (Musyoka, J), Ochume v Republic [2024] KEHC 9470 (KLR) (Musyoka, J) and Tom v Republic [2024] KEHC 14939 (KLR) (Musyoka, J), among others. My colleagues, who have handled similar matters, in Ann Wairimu Kimani v Republic [2011] KEHC 1287 (KLR) (Sergon, J), Chacha Mwita v Republic [2020] eKLR (Mrima, J) AOJ v Republic [2021] KEHC 8076 (KLR) (Ong’injo, J), Gitonga v Republic [2023] KEHC 2624 (KLR) (Gitari, J), Marete & another v Republic [2024] KEHC 14744 (KLR) (Gitari, J) and Opiyo v Republic [2024] KEHC 7732 (KLR)(Aburili, J), among others, have taken a position similar to mine.

18. In Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v Burundi - 231/99 (2000), that right was explained in the following terms:“Legal assistance is a fundamental element of the right to a fair trial, more so where the interests of justice demand it. It holds the view that in the case under consideration, considering the gravity of the allegations brought against the accused and the nature of the penalty he faced, it was in the interest of justice for him to have the benefit of the assistance of a lawyer at each stage of the case. The right to equal treatment by a jurisdiction, especially in criminal matters, means, in the first place, that both the defence and the public prosecutor shall have equal opportunity to prepare and present their pleas and indictment during the trial. They must in other words be able to argue their cases on equal footing.”

19. In Pett v Greyhound Racing Association [1968] 2 All ER (Master of the Rolls, Lord Justice Davies & Lord Justice Russel), it was said:“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man: “you can ask any questions you like;” whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task?”

20. In the instant case, the offence was allegedly committed on 27th August 2019. The appellant was arraigned in court on 29th August 2019. These events happened some 9 years after the Constitution of Kenya was promulgated in 2010. The trial court was obliged to bend to the demands and commands of the Constitution, particularly regarding Article 50(2)(g)(h). The Legal Aid Act, Cap 16A, Laws of Kenya, became operational on 30th May 2016, to give effect to Article 50(2)(g)(h) of the Constitution. Section 43 of the Legal Aid Act requires the trial court to inform the accused person of his right to an Advocate provided by the State at State expense, after assessing his circumstances. These are duties imposed on the trial court, by the Constitution and the relevant statute.

21. Did the trial court obey those commands? From the record before me, I have been unable to find compliance. That issue was not adverted to, on 29th August 2019, when the appellant was produced in court, for plea; neither was it raised on 4th November 2019, when the hearing commenced in earnest. It was not dealt with thereafter. For all practical purposes, the trial court apparently turned a blind eye to Article 50(2)(g)(h) of the Constitution of Kenya and section 43 of the Legal Aid Act. As stated above, the Constitution of Kenya, 2010, is the supreme law in Kenya, by dint of its Article 2. Whatever it commands must be adhered to, and any non-adherence has consequences. A trial mounted in violation of the Constitution is a nullity, by virtue of Article 2(4) of the Constitution.

22. The third issue submitted on is corroboration. It is argued that the testimony of PW1 was not corroborated. The narration by PW1 was that she met the appellant, who undressed her, removed his own clothes, and lay on top of her, and inserted his penis into her vagina. She did not mention that she screamed, but PW2 and PW3 came to the scene, and found the appellant on top of PW1. He pulled up his trousers and left. That was corroboration. PW2 and PW3 did not talk about witnessing his penis inside the vagina of PW1, but the fact that they saw him on top of her sufficed. PW4 also came to the scene, at the point when the appellant was pulling up his trousers. PW1 then narrated to him what had happened, and then PW4 took the steps that he took. That was corroboration. PW5, the clinician, presented the medical evidence. The patient history narrated what PW1 had narrated to court. The findings, from the medical examination, pointed to defilement, which corroborated what PW1 had said had happened to her. PW6 was the police officer to whom PW1 and PW4 reported. The narrative of what was reported to him tallies with the testimony in court by PW1. That was corroboration. The submission, therefore, that there was no corroboration of the evidence or testimony of PW1 is without any foundation.

23. The appellant submits that the prosecution presented, and the court relied on, circumstantial evidence. There can be no foundation for that. PW1 testified as to what happened to her. She gave direct evidence. PW2 and PW3 found the appellant and PW1 in a compromising situation, with the appellant on top of PW1. PW4 came to the scene after PW2 and PW3 had interrupted the activity, and he found the appellant in the process of dressing up. PW2, PW3 and PW4 found him in the act. They literally found him with his hand in the cookie jar. That evidence was not circumstantial, but direct. All 4 witnesses knew him, by name, as he was their neighbour.

24. He next submits on penetration, and argues that penetration was not proved. The key witness on penetration was PW1 herself. It happened to her. It was her vagina that was penetrated. She testified that the penetration happened, the appellant inserted his penis into her vagina. Under section 124 of the Evidence Act, Cap 80, Laws of Kenya, that ought to suffice, without corroboration by medical evidence. But the medical evidence herein proved penetration, and corroborated the testimony of PW1. According to PW5, there was redness of the labia minora, the hymen was broken, there was a discharge, and there were bruises to the private parts of PW1. All those pointed to defilement, as rightly concluded by PW5.

25. Next, he submitted on the age of the complainant, arguing that it was not proved. PW1 herself said that she was 10 years old. PW6 also mentioned that PW1 was 10 years old. He produced a baptismal card as proof. The same bears 1st July 2009 as the date of birth. That made PW1 10 years, 1 month and 27 days old, as of 27th August 2019, when the offence was committed.

26. The question then would be whether a certificate of birth is the only proof of age. There are 2 schools of thought, on proof of age. The predominant view appears to be that age can be proved in a variety of ways. The oral testimony of the parents alone would suffice, without any form of documentary backing. The other way is by documentation. The certificate of birth would be the primary document, given that it is issued by the Government for that precise purpose. In the absence of a certificate of birth, other documents have been accepted, such as baptismal cards, school records, treatment notes, etc, given that the details of birth entered into those records would have come from the parents of the child. The other school holds that age can only be strictly proved by production of a certificate of birth.

27. Where do I stand with respect to that? This is Kenya. Although the law does require registration of births and deaths, it very often happens that in many corners of the country many people do not get to register births, for a variety of reasons, which include ignorance and poverty. To demand strict production of certificate of birth, in all cases of defilement, would be to ignore these realities. Secondary records of age are to be found, from entities and institutions that are closer to the people, such as churches, schools and health centres. It would make more sense to rely on these secondary records, where the birth of the child in question has not been registered with the Government and a certificate issued. To take the more stringent position could have the effect of undermining administration of justice for the poor in society. There is really nothing scientific about a certificate of birth, it is usually generated from information given by the parents of the child in question. I am satisfied that the age of PW1 was adequately proved, by her own testimony and by reliance on the baptismal card.

28. On the sentence imposed being harsh, I do not think the appellant is on firm ground. He was charged and convicted under section 8(2), which provides for mandatory life imprisonment. The trial court did not impose the mandatory sentence prescribed, the life sentence, instead it gave him 40 years. Was this harsh and excessive? Section 8(2) prescribes a mandatory sentence. There is no discretion given to the court. The harshness is prescribed by the law itself, to protect children of tender years. Where the sentence imposed is the mandatory sentence the law prescribes, the issue of it being excessive would not arise. In this case, the issue of the sentence being excessive does not arise, for the appellant, in fact got a lesser sentence, lesser to the mandatory sentence prescribed by the Act.

29. However, the mandatory sentence prescribed by section 8(2) of the Sexual Offences Act has been moderated by the Court of Appeal. It was held, in Julius Kitsao Manyeso v Republic Malindi CACRA No. 12 of 2021 (Nyamweya, Lesiit & Odunga, JJA), that the life sentence, whether mandatory or permissive, is unconstitutional; then in Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA), that in terms of duration, where a court considers imposing life imprisonment, it should translate to 30 years.

30. The trial court awarded 40 years. Was that in line with Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA)? I do not think so. The penalty prescribed, by the Sexual Offences Act, is mandatory life. Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA), held that where life imprisonment is prescribed, because it has been rendered unconstitutional, it should translate to 30 years. So that where life is prescribed as mandatory, then the offender should get 30 years imprisonment, as the mandatory punishment. If it is permissive, in cases where the law makes the offender liable to imprisonment for life, then 30 years should be the maximum. In this case, the prescribed penalty is mandatory life, and, therefore, the mandatory duration of imprisonment ought to be 30 years, according to Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA), and that is what the trial court should have imposed.

31. Was there discretion? The sentence was pronounced on 28th February 2024. At the time, the High Court, following Francis Karioko Muruatetu & another v Republic [2017] eKLR (Maraga CJ&P, Mwilu DCJ&VP, Ojwang, Wanjala, Njoki & Lenaola, SCJJ), in Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR) (Odunga, J) and Edwin Wachira & 9 others v Republic Mombasa HC Petition No. 97 of 2021 (Mativo, J), had declared minimum and mandatory sentences, for the sexual offences created in the Sexual Offences Act, as unconstitutional, for such provisions took away discretion from the courts, at sentencing. Therefore, as of 28th February 2024, going by Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR) (Odunga, J) and Edwin Wachira & 9 others v Republic Mombasa HC Petition No. 97 of 2021 (Mativo, J), the trial court had discretion to determine the sentence to impose, and could quite properly impose the sentence it imposed.

32. That discretion has since been lost. The Supreme Court has pronounced Maingi & 5 others v Director of Public Prosecutions & another [2022] KEHC 13118 (KLR) (Odunga, J) and Edwin Wachira & 9 others v Republic Mombasa HC Petition No. 97 of 2021 (Mativo, J) to be bad law, in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)(Koome, CJ, Ibrahim, Wanjala, Ndungu & Lenaola, SCJJ). It was declared that the sentences prescribed in the Sexual offences Act were constitutional and legal. However, Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR)(Koome, CJ, Ibrahim, Wanjala, Ndungu & Lenaola, SCJJ) did not pronounce itself on Julius Kitsao Manyeso v Republic Malindi CACRA No. 12 of 2021 (Nyamweya, Lesiit & Odunga, JJA) and Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA).

33. What orders should I make, in view of what I have discussed above? Non-compliance with constitutional guarantees on fair hearing should vitiate a trial, and with it the resultant conviction and sentence, and should pave way for an order for retrial. However, in this case, the evidence against the appellant was so overwhelming and damning, that it would not have made any difference even if an Advocate, paid for by the State, was availed to him. The justice of the circumstances would militate against interference with the conviction herein, and I shall, therefore, not interfere with it. The sentence, however, is not aligned to Evans Nyamari Ayako v Republic Kisumu CACRA No. 22 of 2018 (Okwengu, Omondi & J. Ngugi, JJA), and I shall interfere there.

34. Based on paragraph 33 hereabove, I shall, accordingly, disallow the appeal. The conviction of the appellant is hereby affirmed. The sentence imposed on him is hereby set aside, and substituted with an order that he shall serve a term of imprisonment of 30 years, calculated from his arrest on 28th August 2019. The appeal is accordingly dismissed. Orders accordingly.

DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA,THIS 21ST DAY OF MARCH 2025. W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.Mr. Alfred Papai, the appellant, in person.AdvocatesMr. Tony Onanda, instructed by the Director of Public Prosecutions, for the respondent.