https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7152

Ruwa v Republic (Criminal Appeal E023 of 2024) [2026] KEHC 7152 (KLR) (13 May 2026) (Judgment) Neutral citation: [2026] KEHC 7152 (KLR) Republic of Kenya In the High Court at Malindi Criminal Appeal E023 of 2024 JN Njagi, J May 13, 2026 Between Katana Karisa Ruwa Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. R. M.Amwayi, Principal Magistrate, in Kaloleni Principal Magistrate’s Court Sexual Offence Case No. E024 of 2022 delivered on 24/11/2023) Judgment 1.The Appellant herein 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. The particulars of the offence were that on the 17th June 2022 at (name withheld) village in Kaloleni sub county within Kilifi county he intentionally and unlawfully caused his penis to penetrate the vagina of N.W. (herein referred to as the complainant), a child aged 10 years. 2.The Appellant was sentenced to serve life imprisonment. He was aggrieved by the conviction and the sentence and lodged the instant appeal. The grounds of appeal as per his amended grounds of appeal dated 21st November 2024 are that:1.The learned trial magistrate erred in law in imposing a life sentence on the Appellant and failed to note that the sentence was against the spirit of Article 50 2(p)(q) of the Constitution of Kenya and does not serve the objectives of sentencing as listed on page 15, paragraph 4:1 of the sentencing policy guidelines and sections 216 and 389 of the Criminal Procedure Code.2.The learned trial magistrate erred in law in convicting the Appellant when the elements of the offence of defilement of the age of the victim and penetration were not proved.3.The learned trial magistrate erred in law in convicting the Appellant and sentencing him to a mandatory life sentence but failed to appreciate that the appellant’s rights under Article 50(2)(g) of the Constitution were violated.4.The learned trial magistrate erred in law by failing to consider that the appellant was charged under Section 8(1) as read with Section 8(3) of the Sexual Offences Act but the trial magistrate awarded a conviction under Section 8(2) of the said Act which was an error in law that prejudiced the Appellant. Case for prosecution 3.The case for the prosecution was that the complainant was at the material time a class 4 primary school pupil aged 10 years. She was living with her mother PW2. The Appellant was their immediate home neighbour. 4.It was the evidence of the complainant that on a certain date she did not tell the court, she was attending the funeral of her brother who had died and was at the particular time playing with other children under a tree. That the Appellant called her to his house. She went to him and he gave her Ksh.10/= to buy him omena fish from a nearby shop. That she went and bought the fish and took it to him. She found him inside his house. As she gave him the fish, he pulled her into the house. He then locked the door to the house and took her to a bed. He removed her pair of bikers that she was wearing. He removed his trousers and climbed on top of her. He inserted his penis into her vagina. She screamed and he blocked her mouth. A certain lady pushed the door open. She entered inside and found her on bed with the appellant. She held her hand and took her outside. She did not know the lady and never saw her again. She went home and reported to her father who reported to the police. She took her father to the place the incident had taken place and identified the person who had done it to her as Kalimbo, the appellant. 5.The father to the complainant PW2 testified that on 22/6/2022 he was at home at 7pm when he realized that the complainant was not as playful as usual. That he called her and asked her in the presence of her grandmother what the problem was. She told them that she had been defiled by Kalimbo in his house. That as he was doing so, she was rescued by somebody unknown to her. He asked her why she had kept it to herself and said that she feared. On the following day he reported to the police and took her to hospital. 6.It was the evidence of a clinical officer at Mariakani sub county hospital PW4 that the complainant was attended to at their hospital on 27/6/2022 and found with a broken hymen and whitish discharge from her vagina. Other tests were done that came out negative. She was treated. On the following day PW4 completed her P3 form. 7.The case was investigated by PC Yudia Saru PW3 of Kaloleni police station. It was her evidence that the case was reported at the police station by the complainant`s father on 23/6/2022. That on 27/6/2022 the complainant was taken to the police station by her father and she took her to Mariakani sub county hospital for examination. That at the hospital the child didn’t open up and they were advised to take her for counselling. They took her for counselling and she opened up and said that she was defiled by Kalimbo, the Appellant. She then took her back to hospital and her P3 form was completed. She looked for the suspect and arrested him on 28/7/2022. She charged him with the offence. 8.During the hearing of the case in court the complainant`s father produced the complainant`s child health card as exhibit, P.xh.1. It indicated that she was born on 13/3/2012. The clinical officer PW4 produced the P3 form, the treatment notes, the Post Rape Care form and lab request form as exhibits, P.Exh. 2 - 5 respectively. Defence Case 9.When placed to his defence, the Appellant stated in a sworn statement that the complainant and her family are his immediate neighbours. That he knew that she was in school. That she and other children used to come to his uncle`s home to play with other children. That on the alleged date there was a funeral at her home but he went to the funeral the day before. 10.The appeal was canvassed by way of written submissions. Appellant`s Submissions 11.The Appellant submitted that the ingredients of defilement were not proved to the required standard of beyond reasonable doubt. That the complainant being a child of tender years her evidence required corroboration which was lacking in the case. More so that the trial court did not warn itself of the danger of basing a conviction on the evidence of a single witness of a child of tender years whose evidence was uncorroborated. 12.The Appellant faulted the trial court in finding that the evidence of the complainant was corroborated by the evidence of the clinical officer yet the complainant was not found to have sustained any injuries in her genitalia nor was there presence of spermatozoa nor was there evidence that the hymen was freshly broken. It was submitted that the medical evidence adduced before the court did not support defilement and as such penetration was not proved. 13.The Appellant submitted that his right to be represented by counsel under Article 50 (2) (g) of the Constitution was violated. That the trial court failed to inform him of the right to legal representation and failed to provide him with an advocate. In this respect the Appellant relied on the holding the case of Chacha Mwita v Republic (2020) eKLR where the court cited Migori High Court Criminal Appeal No.44 of 2019 N.M.T. alias Aunty v Republic (unreported). The court in that case emphasized the right of the accused to be informed of his right to legal representation and the right to be provided with an advocate. 14.It was submitted that the Appellant was charged with defiling a child aged 10 years whose sentence under section 8(2) of the Sexual Offences Act is life imprisonment. However, that the Appellant was charged under section 8(3) of the Sexual Offences Act whose sentence is one of not less than 20 years. That the trial court sentenced him under section 8(2) when he was not charged under that section. It was submitted that since the Appellant was charged under section 8(3) he could only be sentenced under that section and not under one providing for life imprisonment. In support of this proposition, the Appellant relied on the holding of the Court of Appeal in Julius Kipsang Langat v Republic (2020) eKLR where the court stated that:The appellant having been charged under section 8(3) of the Sexual Offences Act, could only be sentenced under that section, and that section provided for a minimum sentence of 20 years, and not life imprisonment. Both the trial court and the High Court therefore misdirected itself on the issue of sentence. 15.The Appellant further submitted that a trial court in sexual offence cases has discretion to met appropriate sentences other than those stipulated under the Act. He cited authorities to support his argument. He urged the court to award him a favourable sentence. Respondent`s Submissions 16.The Respondent on the other hand submitted that the charge was proved beyond reasonable doubt. That the age of the victim was proved by the child health card which noted the date the complainant was born. That the trial court also conducted a voir dire examination on the child which established that the complainant was a minor. That the Appellant did not tender any evidence challenging the age of the complainant. 17.It was submitted that the complainant and the Appellant were neighbours and the victim knew the appellant very well, a fact admitted by the Appellant. That the incident happened during the day and the victim identified the appellant by name, which means that identification was more of recognition. That the defence of the Appellant was a mere denial that did not water down the prosecution evidence. That there was no reason for the victim to lie against the appellant. That the Appellant was identified as the perpetrator. 18.The Respondent submitted that the evidence of the victim that the appellant defiled her was corroborated by the evidence of the clinical officer PW 4 who found the complainant with a broken hymen. That the trial court believed that the complainant was a truthful witness. Therefore, that penetration was thereby proved. 19.It was submitted that both the conviction and the sentence in the case ought to be upheld. Analysis and determination 20.This being a first appeal, the court has a duty to re-evaluate and re-consider the evidence on record and come to its own conclusion. These principles were re-stated by the Court of Appeal in the case of Kiilu & another v Republic [2005]1 KLR 174, thus:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; only then can it decide whether the magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 21.In the case of David Njuguna Wairimu vs Republic [2010] eKLR, the Court of Appeal stated that:“…the duty of the first appellate court is to analyse and reevaluate evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the circumstances of the case come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision”. 22.The elements of the offence of defilement that the prosecution is required to proof beyond reasonable doubt are: proof of the age of the victim, penetration and identity of the of the perpetrator, see the Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013. 23.Starting with the element of the age of the complainant, the law is that the age of a person can be proved in various ways. In the case of Mwalongo Chichoro Mwajembe -Vs- Republic, Msa Cr.App. No. 24 of 2015 (UR), the Court of Appeal held as follows:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 24.The complainant in this case said that she was at the material time aged 10 years. He father gave the same age and produced the complainant`s clinic health card that indicated that she was born on 12/3/2012. The offence was reported to have been committed on 17th June 2022 which placed the complainant`s age at the time of commission of the offence at 10 years. In my view, the clinic health card was a credible way of proving the age of the complainant. The age of the complainant was thus proved at 10 years. 25.On the element of penetration, Section 2 of the Sexual Offence Act defines the same as:“the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 26.The prosecution had the duty to establish that the complainant was partially or fully sexually penetrated by the Appellant. 27.Penetration can be proved by oral or by circumstantial evidence which can be corroborated by medical evidence. The medical evidence adduced against the appellant was that the complainant was found with a missing hymen. There was nothing else to indicate that she was defiled. The complainant could not remember the date she was defiled but her father learnt about it on 22/6/2022. The charge sheet indicates that she was defiled on 17/6/2022. She was examined at the hospital on 27/6/2022 which was about 10 days from the alleged date of defilement. The examination may not have elicited much due to the delay in going to hospital. 28.Though the trial magistrate stated in his judgement that the evidence of the clinical officer proved penetration, this was not the case. There was no evidence that the hymen was freshly broken. The mere absence of hymen is not proof of penetration as the hymen can be broken by other activities such vigorous exercise. More so that some girls are born without it, see P.K.W v Republic [2012] KECA 103 (KLR). In view of this the trial magistrate erred in holding that the medical evidence adduced before the court corroborated defilement on the complainant. There was in actual fact no medical evidence to support the evidence of the complainant that she was penetrated by the Appellant. 29.In the absence of medical evidence to support defilement, the appeal turns on whether there was sufficient oral or circumstantial evidence in proof of the offence. 30.The complainant was the sole witness that the Appellant defiled her. Section 124 of the Evidence Act allows the court in sexual offence cases involving children to convict on the sole evidence of a child victim if the court is satisfied that the child is telling the truth and records down reasons for such a finding. 31.In convicting the appellant of the offence the trial magistrate held that the complainant knew the Appellant very well as they were neighbours. That the offence was committed during the day. That there was nobody else at the appellant`s home when he defiled her. That the evidence of the complainant was reliable, cogent and consistent. The trial magistrate consequently believed the evidence of the complainant that she was defiled by the appellant. 32.I have considered the reasons given by the trial court for believing the evidence of the complainant that she was defiled by the Appellant. The appellant was aged 10 years. She did not have reason to lie against the Appellant. They were neighbours. There was no grudge between them. It is clear from the evidence of the complainant that she was a credible and truthful witness. I have no reason to fault the trial magistrate in believing her evidence. 33.The appellant submitted that his rights under article 50(2) (g) and (h) of the Constitution were violated. 34.Article 50 (2) (g) and (h) of the Constitution of Kenya, 2010 provide as follows: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 this right promptly. 35.The right to legal representation is one of those rights that cannot be limited as provided by Article 25 of the Constitution of Kenya 2010. The Supreme Court in Petition No. 5 of 2015 Republic -vs- Karisa Chengo & 2 Others [2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows: -The right to legal representation…...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. 36.The appellant referred the court to the observation made in the case of Sheria Mtaa.ni and Shadrack Wambui v Office of the Chief Justice & another; Office of the DPP & another (Interested Parties) eKLR where the court made referrence to the report on African Commission in Advocates Sans Frontiers (on behalf of Bwampanye) v Burundi, African Commission on Human Rights Comm. No.213/99 (2000) where it was observed that:Legal assistance is a fundamental element of the right to 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 an equal footing. 37.The appellant cited the case of Pett v Greyhound Racing Association (1968) 2All E.R.545 at page 549, where Lord Denning stated that:It is not every man who has ability to defend himself on his own. He cannot bring out the point 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 trained for the task? 38.The trial court in the case against the Appellant did not inform him of his right to legal representation did it consider providing him with an advocate. The Appellant was charged with defiling a child of the age 10 years. The prescribed sentence under section 8(2) for defiling a child under the age of 11 years is to life imprisonment. Considering the gravity of the offence brought against the Appellant and the nature of the penalty he faced of life imprisonment if he were to be found guilty, it was in the interest of justice for him to have the benefit of the assistance of a lawyer at the expense of the state. It was a violation of his right to fair trial for not being provided with legal representation. 39.I find that the appellant was not accorded a fair trial before the trial court for not being assigned an advocate to represent him in the case. I therefore declare the trial against him to have been a mistrial for lack of legal representation. I thereby set aside the conviction and the sentence. 40.Having declared the trial a mistrial, the question is whether I should order a retrial. The principles governing whether or not a retrial should be ordered were enunciated in Fatehali Manji v Republic [1966] EA 343 by the East Africa Court of Appeal as follows:“In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person.” 42.In Mwangi v Republic [1983] KLR 522 the Court of Appeal also held thus:“We are aware that a retrial should not be ordered unless the appellate court is of the opinion, that on a proper consideration of the admissible, or potentially admissible evidence, a conviction might result. In our view, there was evidence on record which might support the conviction of the appellant.” 43.The appellant was arraigned in court in July 2022. The evidence adduced before the trial court shows that the prosecution has a strong case against the Appellant. The interests of justice in the case calls for a retrial. I do not think that the Appellant will suffer any prejudice if he is re-tried of the offence. 44.The upshot is that the trial against the Appellant is declared a mistrial for not being provided with an advocate during the trial. I order that the Appellant be re-tried of the offence by another magistrate of competent jurisdiction other that Hon. R. M. Amwayi. I order that he be accorded legal representation at the expense of the state during the re-trial. DELIVERED, DATED AND SIGNED IN OPEN COURT AT GARSEN THIS 13TH DAY OF MAY 2026J. N. NJAGIJUDGEIn the presence of:Mr. Oluoch HB for Miss Ngina Mutua for RespondentAppellant – present virtually at G.K. Prison MalindiCourt Assistant – Rahma14 days R/A.MLD HCCRA No.E023 of 2024 Judgment Page | 4