https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7585

Songa v Republic (Criminal Appeal E052 of 2025) [2026] KEHC 7585 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7585 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E052 of 2025 LM Wachira, J June 3, 2026 Between Kennedy Amongo Songa Appellant and Republic Respondent (Being an appeal from the original conviction and sentence in Kisumu Criminal Case no. E011 of 2021 by the Hon. J. N. Wambilyanga, SPM) Judgment 1.Kennedy Amongo Songa the Appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act No.3 of 2006. The particulars were that on diverse dates between 3rd May 2020 and 30th January, 2021 at [Particualrs Withheld] location in Kisumu Central Subcounty within Kisumu County, the Appellant herein intentionally and unlawfully caused his penis to penetrate the vagina of V.A. a child aged 14 years. 2.In the alternative charge the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on diverse dates between 3rd May 2020 and 30th January, 2021 at [Particualrs Withheld] location in Kisumu Central Subcounty within Kisumu County, the Appellant intentionally and unlawfully touched the vagina of V.A. a child aged 14 years using his penis. 3.The Appellant pleaded not guilty to the main and alternative charges. At the hearing, the prosecution called 7 witnesses. The Appellant, while on defence denied the charges and did not call any witness. 4.In her judgment, the trial Magistrate convicted the Appellant for the offence of defilement and upon considering the mitigation, sentenced him to serve 20 years imprisonment. 5.Dissatisfied with the trial court’s judgment the Appellant filed the current appeal citing the following grounds:i.That the trial court failed to consider the elements of the offence of defilement.ii.That the trial court erred in shifting the burden of proof to the Appellant contrary to section 107 of the Evidence Act.iii.That the trial court erred in relying on a realm of belief that was not an objection.iv.That the trial court erred in not finding that the defence of the Appellant was not shaken.v.That the trial court erred in not finding that there was animus of evidence and therefore only a single identifying witness.vi.That the trial court erred in failing to consider the provisions of Section 333 (2) of the CPC.vii.That appellant applied for copies of court proceedings to enable him to raise more relevant grounds. 6.On those grounds, the Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. The appeal was heard by way of written submissions. Both parties filed their submissions. Appellant’s Submissions 7.The grounds of Appeal substantially changed at the Submissions stage. The Appellant submitted as follows:-a.That he was not afforded a fair trial as envisaged in Article 50 (2) (g) of the Constitution. He submitted that the trial court failed to inform him promptly of the right to be represented by counsel.b.That the trail court erred in not ordering that his sentence shall commence from the date of arrest, which was on 6th December 2021. Instead the Court ordered the sentence to commence on the 22/11/2022 when the Appellant was convicted.c.That the prosecution had failed to prove the ingredient of penetration. The Appellant submitted that the charge sheet reads diverse dates and therefore it is not clear when the incident happened. He took issue with the number of times the defilement had taken place stating that some witnesses spoke of four times while others spoke of three times. He further submitted that the only evidence available to support penetration was a broken hymen and it is not clear when it was broken and, in any case, not sufficient proof of penetration.d.That the trial court erred in not finding that he had been in custody for more than 24 hrs before he was presented to court. He submitted that he was arrested on the 6th February, 2021 and arraigned in court on 12th February 2021, which was six days later without any explanation.e.That the trial court did not consider the conduct of the complainant and therefore arrived at a wrong finding. And in this the submission by the Appellant is that the complainant was in the business of making money from alleged defilement cases. He submitted that she had three cases in court and even had a child. He submitted that the complainant cannot be called a child yet she has had sex with many men. Respondent’s Submissions 8.In opposing the appeal, the Respondent submitted that the elements to sustain a conviction for the offence of defilement were proved by the prosecution at the trial court. According to counsel, the complainant was 14 years old which was proved by the Birth Certificate which indicated she was born on 15th October 2007. 9.Counsel contended that the issue of penetration was proved and that the Appellant had been identified as the assailant. Counsel submitted that although the Appellant denied that he was a resident of Obunga and stated that he lived in Migori, the trial court had evaluated his evidence and found that this defence did not raise any doubts in the prosecution case. They submitted that indeed the testimony of PW1, PW2, PW3 and PW4 confirmed that he was a resident of Obunga. Analysis of the Trial Court Evidence. 10.The complainant testified as Pw2 after a voir dire was conducted and the court was satisfied that she was intelligent enough to understand the nature of an oath and gave sworn evidence. She told court that the Appellant had sexual intercourse with her several times. That he would wait for the people in the compound to leave, including the PW1 who is the mother to the minor and he would get hold of her as she went for a short call behind the house (usually in the mornings) and he would have sexual intercourse with her. 11.The minor narrated incidents when the Appellant had sex with her in their (minor’s) house. She accounted for 4 incidents being the day he offered her Kshs 100/-, the day she was making porridge for the baby, the day she had gone for relief food and finally on the day she had sent her siblings to the posho mill. 12.The PW2 told court that she informed Mama Sharon and Mama Debra of the incidents and told them that she was tired of the Appellant, who was popularly known as fundi, because he had been following her and forcing her to have sex with him. She was advised to report to the officers and she informed Mama Awour, who informed the chief and the incident was reported to the police. 13.PW1 was the mother of the minor and she got to know about the incident when it was being followed up by the elders. The minor had informed her earlier that the Appellant follows her when she goes for short call but PW1 thought that it was a joke. 14.PW3 was the village elder. She told court that she had heard children in the village talking about fundi doing bad things to the complainant. She therefore decided to investigate and asked the complainant what had been happening. The complainant confided in her and told her that fundi had been forcing her to have sexual intercourse with her and that she was tired of his demands. 15.PW4 was Elizabeth Anyango who is also Mama Debra. She was approached by the complainant for assistance. The complainant sent her to tell the Appellant to stop following her behind the house when she went for short calls. PW4 confirmed to the court that PW2 told her that the Appellant had been following her and forcing her to have sexual intercourse with him. 16.PW5 and PW6 are the medical officers from Jaramogi Oginga Odinga Teaching and Referral Hospital who filled the P3 form and PRC form respectively. They produced in court the documents as exhibits. Both medical officers confirmed that the hymen was broken as a result of penetration. 17.PW7 was the investigating officer. He investigated the offence and charged the Appellant when he was arrested and taken to the station. 18.In his defence DW1 denied the offence. He claimed that he is not a resident of Obunga. That he arrived the night before his arrest and got somebody who housed him for the night and the following morning, he was arrested. He denied that he was called Fundi or Jaloka. Issues for Determination 19.Having reviewed the record, the grounds of the appeal and the submissions filed by the respective parties, I frame the following issues for determination:i.Whether the offence of defilement was proven to the required standards.ii.Whether the Appellant herein was afforded a fair trial as envisaged in Article 50 (2) (g) of the Constitution or his rights under Article 49 of the constitution were breached.iii.Whether the sentence should commence from the date of arrest.iv.Whether the sentence is excessively high. 20.In a charge of defilement, the prosecution must prove 3 elements being, the age of the victim, proper identification of the perpetrator, and penetration. In Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 the court stated that: “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and identification of the assailant.” 21.On the first ingredient of age, the prosecution produced a Birth Certificate in court. It indicated that the minor was born on 15th October 2007. The offence is alleged to have taken place between May 2020 and January 2021. By that time, the victim was still between the age of 13 and 14 years and therefore below the age of majority. She was therefore a child. 22.On the second ingredient of penetration, Section 2(1) of the Sexual Offences Act defines penetration as: “The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 23.In the instant case PW2 testified that the Appellant had on several occasions had sexual intercourse with her. She was clear on the four times that he went into their house and had sexual intercourse with her. 24.PW3 and PW4 testified in court and confirmed that they had spoken to the minor who informed them of the incident and stated that she was tired with the conduct of accused person following her and forcing her into sexual intercourse. 25.PW5 and PW6 testified in court and confirmed that the minor had a broken hymen, which signifies that there is penetration. They produced the P3 form and PRC form in court as exhibits. The two documents confirm that the hymen was broken. 26.This court finds the evidence of PW2 was corroborated by the evidence of PW3, PW4, PW5 and PW6 and also the contents of the P3 form, and which all show proof of penetration. 27.The last element is that of proper identification of the perpetrator. PW1, PW2, PW3 and PW4 all testified in court and stated that the Appellant was a neighbour and a fundi. They popularly referred to him as fundi. He was known to them. PW3 told court that she got to know about the incidents when she heard children talking about fundi doing bad things to minor. She knew both the minor and the fundi and she investigated by asking the minor. It was clear in the mind of PW3 who fundi was. PW4 was sent to the fundi to tell him to stop following the minor. She knew exactly who she was being sent to, because these are people who lived in one village. 28.Although the Appellant denied that he was a resident of Obunga, or that he is referred to as fundi, I find that four prosecution witnesses testified and confirmed that he was actually a resident of Obunga and he was a fundi and commonly referred to as Fundi. The defence of the Appellant did not challenge the prosecution evidence on record. 29.This court thus finds that the prosecution proved beyond reasonable doubt the elements of defilement. Whether the Appellant herein was afforded a fair trial as envisaged in Article 50 (2) (g) of the Constitution or his rights under Article 49 of the constitution were breached. 30.The Appellant claims that he was not informed of the right to be represented. I have evaluated the lower court record and I find that Ms Ofwa had been appearing for the Appellant during the trial. It is therefore not correct for the Appellant to state that he was not informed of the right to be represented. 31.He also submitted that he was retained in custody for more than 24 hours before he was arraigned in court. I have considered the trial court record and this issue was never raised during the hearing. Be that as it may, I have considered the submission on the issue and my view is that if that be so, the Appellant is at liberty to file a constitutional petition for breach of his rights. The Appeal herein is on the conviction and sentence for the offence of defilement and substantive justice demands that this court restricts itself to the said Appeal. Whether the sentence imposed was excessive and should commence from the date of Arrest 32.The penalty for the offence of defilement of a child of 14 years is provided under Section 8(3) of the Sexual Offences Act which states that:A person who commits an offence of defilement with a child aged between twelve years and fifteen years shall be liable upon conviction to a sentence of not less than 20 years. 33.In the instant case, the trial court noted the mitigation of the Appellant, but also noted the condition of the complainant (that she was mentally abled differently) and was of the view that the offence was serious as the Appellant had taken advantage of the complainant owing to her condition and sentenced the Appellant to 30 years imprisonment. The trial court exercised its discretion in imposing the sentence which it considered appropriate in the circumstances. 34.In the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR it was stated as follows:“It is now settled law, following several authorities by this court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor took into account some wrong material, or acted on a wrong principle. Even if, the appellate court feels that the sentence is heavy and that the appellate court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless any one of the matters already stated is shown to exist.” In the circumstances, I find no reason to interfere with the sentence meted out by the trial court. 35.I have noted that the trial magistrate did not mention whether she took into consideration the time spent by the Appellant in custody as required by law. Section 333(2) of the Criminal Procedure Code provides that:(2)Subject to the provisions of section 38 of the Penal Code every sentence shall be deemed to commence from and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, before such sentence, been held in custody, the sentence shall take account of the period spent in custody. 36.Further, the Judiciary Sentencing Policy Guidelines (2014) provides as follows:-“The proviso to section 333 (2) of the Criminal Procedure Code obligates the court to take into account the time already served in custody if the convicted person had been in custody during the trial. Failure to do so impacts the overall period of detention which may result in an excessive punishment that is not proportional to the offence committed. In determining the period of imprisonment that should be served by an offender, the court must take into account the period in which the offender was held in custody during the trial.” 37.From the trial court record, the appellant was arrested on 6th February 2021 and judgment was delivered on 22nd November 2022. He was in custody throughout the trial period. It is appropriate to take into consideration the period spent in custody during trial. 38.In the upshot, the appeal herein lacks merit and is dismissed. The conviction and sentence by the trial court are upheld. Considering the time spent in custody by the appellant, the 20-year prison sentence will run from the day of his arrest, that is 6th February 2021. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JUNE 2026.…………………………..………………L. M. WACHIRAJUDGEIn the presence of:Kevine – Court assistantAppellant – present in person (virtually from Kisumu Max.)Ms Jebichi - for the State/Respondent.