https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1494

Wekesa v Republic (Criminal Appeal E208 of 2022) [2026] KECA 1494 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1494 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E208 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 24, 2026 Between Rodgers Wekesa Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Eldoret (H. A. Omondi, J.) delivered on 12th July, 2018 in HCCRA No. 71 of 2015) Judgment 1.The appellant, Rodgers Wekesa, was charged before the Chief Magistrate's Court at Eldoret in Criminal Case No. 4661 of 2013 with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act (the Act). The particulars of the offence were that on 9th October 2013 within Uasin Gishu County, he intentionally and unlawfully caused his penis to penetrate the vagina of JIK, a child aged 9 years. The appellant faced an alternative count of committing an indecent act with a child contrary to section 11 of the Act. 2.Following a trial in which the prosecution called 7 witnesses, the trial court, in its judgement dated 12th July, 2018 found that the prosecution had proved the case beyond reasonable doubt. It convicted the appellant of the offence of defilement and sentenced him to life imprisonment. 3.Dissatisfied by the said decision, the appellant appealed to the High Court at Eldoret in Criminal Appeal No. 71 of 2015 seeking to overturn his conviction and sentence. After hearing the appeal, Omondi, J. (as she was then) upheld both the conviction and sentence and dismissed the appeal on 12th July 2018. 4.The appellant is now before us in this second appeal, seeking to reverse the High Court decision citing 3 grounds in his supplementary memorandum of appeal dated 18th May 2026, namely:a.the learned Judge erred in law by finding that the complainant was below 18 years without tangible proof;b.the learned Judge erred in law by failing to comply with section 200 of the Criminal Procedure Code thereby denying the appellant a fair trial under Article 50 of the Constitution; andc.the learned Judge erred in law by upholding a life sentence which was harsh and excessive given that the appellant was a first offender and has undergone rehabilitation. 5.This is a second appeal, therefore, our jurisdiction is limited to considering matters of law as stipulated by section 361 of the Criminal Procedure Code. A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at their findings. (See David Njoroge Macharia vs. Republic [2011] eKLR and Karani vs. R. [2010] 1 KLR 73). Similarly, the Supreme Court in Republic vs. Joshua Gichuki Mwangi (supra) stated as follows:“Thus, the Court of Appeal's jurisdiction on second appeals is limited to only matters of law and it could not interfere with the decision of the High Court on facts unless it was shown that the trial court and the first appellate court considered matters they ought not to have considered, failed to consider matters they should have considered, or were plainly wrong in their decision when considering the evidence as a whole.” 6.Before considering the appeal, it is useful to consider the evidence presented before the trial court as well as the appellant’s defence. 7.The prosecution case rested on the testimony of 7 witnesses, namely, the complainant (PW2), who gave sworn evidence, the complainant's mother (PW1), the complainant's sister (PW3), a neighbour (PW4), a Police Officer (PW5), a Clinical Officer (PW6) and the Investigating Officer (PW7). The defence case rested on the appellant's sworn testimony. He did not call any witness in support of his defence. At the conclusion of the case, the trial court returned a verdict of guilty on the main count of defilement. After considering the appellant's mitigation, the trial Magistrate sentenced him to serve life imprisonment as decreed by section 8(2) of the Sexual Offences Act. We will revisit the evidence when addressing the grounds of appeal by the appellant. 8.During the hearing of this appeal, the appellant appeared virtually in person from Eldoret main prison, while the respondent was represented by learned counsel Mr. Okoth, Assistant Director of Public Prosecutions. Both parties relied on their written submissions. 9.In support of his appeal, the appellant submitted that the age of the complainant was not proved as there were inconsistencies in the evidence; the trial court failed to comply with section 200 of the Criminal Procedure Code when the first magistrate was transferred; and the life sentence imposed on him is harsh and excessive. 10.In opposing the appeal, the respondent's counsel Mr. Okoth, submitted on 3 main points, essentially, maintaining that the ingredients of the offence were proved. He argued that there was overwhelming evidence of penetration. He recalled PW2's evidence that the appellant pulled her into his house, removed her panty, removed his trousers and inner pants and inserted his penis into her vagina. Further, the doctor confirmed that she was defiled. 11.Regarding the complainant's age as at the time of the defilement, Mr. Okoth maintained that the charge sheet indicated that she was aged 9 years, and the clinic card produced as Exhibit No. 1 indicated that she was born on 31st August 2002. Therefore, at the time of the offence, she was 11 years old. Her age was sufficiently proved as was rightly observed by the trial court and the High Court. 12.Submitting on the ingredient of identification, Mr. Okoth maintained that the complainant was not mistaken in identifying the appellant since he worked for her uncle and she knew him well. PW3 and PW4 also knew the appellant and found him with the complainant in his house, therefore her evidence was credible and truthful and the same was rightfully acted upon by the two courts below. 13.Regarding the sentence, Mr. Okoth submitted that the mandatory sentence applicable for the offence is life imprisonment and there cannot be a departure from it. 14.We have carefully read the record as well as the submissions. In our view, the issues for determination are:(a)whether the offence of defilement was proved beyond reasonable doubt;(b)whether the appellant's right to a fair trial under section 200 of the Criminal Procedure Code and Article 50 of the Constitution was violated; and(c)whether the sentence of life imprisonment was lawful. 15.In order to establish the offence of defilement under the Sexual Offences Act, the prosecution must prove beyond reasonable doubt, the age of the victim, the act of penetration and the identity of the perpetrator. 16.We will first address the question of age. PW2, testified that she was 12 years old at the time that she was testifying, which was on 27th February 2014. PW1, CK, the mother, testified that at the time of the commission of the offence, the complainant was 9 years old. The clinic card produced by PW7 gives her date of birth as 31st August 2002. Therefore, at the time of the offence, she was aged 11 years. This Court in Mwalongo Chichoro Mwanjembe vs. Republic [2016] eKLR stated 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 documentary 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." 17.We are persuaded that the evidence tendered sufficiently proved that the complainant was 11 years old at the time when she was defiled. In terms of section 8(2) of the Sexual Offences Act, she was aged below 11 years which brings her within the purview of the said section. Therefore, the ingredient of the complainant's age was proved beyond reasonable doubt. Age is an issue of fact, we find no reason to depart from the concurrent findings by the two courts below on this issue. It has not been demonstrated that the two courts below misconstrued the evidence or based their findings on irrelevant considerations or failed to consider relevant material. Importantly, the evidence on age was not discredited. The clinic card was issued years before the offence and the suggestion that it was doctored has no basis. 18.The next issue for determination is whether penetration was proved to the required standard. The trial court and the first appellate court were persuaded that the evidence tendered established that the complainant was defiled. PW2, in her sworn testimony recalled how the appellant called her to his house, pulled her by the hand and put her on his bed. She narrated how the appellant removed her panty and also removed his trouser and inner pant and inserted his penis into her vagina. It was her evidence that she heard Mercy talk, upon which the appellant dressed up and opened the door. PW3, testified that she and Mercy found PW2 at the appellant's house crying and disclosed that the appellant had defiled her. Her evidence was corroborated by PW6, the Clinical Officer who testified that he examined the complainant on 9th October 2013. He noted that her labia minora had minor injuries and the hymen had been torn. The results from the laboratory indicated numerous epithelial cells. We have re- evaluated the evidence on record, we see no reason to doubt the concurrent findings by the two courts below and there is nothing to suggest misdirection on the part of the two courts nor has it been demonstrated that they failed to consider relevant matters or took into account irrelevant considerations. 19.Lastly, is the question whether the appellant was properly identified as the offender. Notably, it was not disputed that the complainant and the appellant knew each other prior to the incident as the appellant worked for the complainant’s uncle. Addressing this issue, the first appellate court stated as follows:The appellant was well known to her and she referred to him by name as Rodgers. PW3 (Faith) also confirmed that the appellant was known to her as he was their uncle's employee, so identification was by recognition. Apart from that, PW3 and PW4 actually got the accused inside the house with the minor - this placing him at the scene, and demonstrating appellant had opportunity to commit the offence." 19.There is no doubt that this was a case of recognition rather than identification. The appellant did not demonstrate by way of evidence that his identification was erroneous or unsafe. He did not deny that he was known to PW2 who also stated that he had defiled her. Having considered the evidence of PW2, PW3 and PW4, we find that the evidence on identification irresistibly pointed to the appellant as the offender. In her evidence, PW2 stated that she knew the appellant, who used to work for Jonah, her uncle. The evidence was consistent in the cross-examination by the appellant. Just like the two courts below, we are satisfied that the identification of the appellant was proved to the required standard and find no reason to fault their finding on this issue. 19.The other ground by the appellant was that, the first appellate court failed to comply with section 200 of the Criminal Procedure Code. The record shows that when the matter was taken over by Hon. Telewa from Hon. Bartoo, the court directed that the case proceeds from where it had stopped. The appellant requested that the matter starts de novo. The prosecution indicated that the appellant had been given a chance to cross-examine the witnesses. The trial court then ruled that the case proceeds from where it had stopped. Section 200(3) Criminal Procedure Code provides that where a succeeding magistrate commences the hearing of proceedings and part of the evidence had been recorded by their predecessor, the accused person may demand that any witness be re-summoned and reheard and the succeeding magistrate shall inform the accused person of that right. 19.The High Court addressed this issue and stated as follows:“Certainly the trial Magistrate ought to have given flesh to these directions, and explain to the appellant why his option had been overruled. From what is recorded, it is even not clear whether what accused referred to as not expecting were the questions he asked on cross examination of the witnesses; or, when he was being cross examined - the statement is ambiguous and gives the impression of an attempt to now patch up his case. I would under the circumstances therefore not find it prudent to order a retrial." 19.The record shows that the case was taken over by Hon. S.N. Telewa, RM on 3rd July 2014. The prosecutor is recorded as saying... “it’s a part heard before Hon. Bartoo, accused to take directions under section 200 of CPC”. The appellant is recorded to have said, “that it start afresh when the case proceeded, I did not expect those kinds of questions”. The prosecutor responded that the appellant had been given a chance to cross-examine the witnesses. The record shows that the magistrate ruled... “the case to proceed from where it had stopped. Proceedings to be typed”. The case was then mentioned on 6th August 2014 when the court confirmed that the proceedings had been typed and fixed the case for hearing on 4th September 2015. On the day of the hearing, the appellant is recorded saying… “I am ready.” The record of the trial court shows that the appellant participated in the trial and cross- examined the witnesses. Therefore, there is nothing to show that the appellant suffered substantial injustice. Consequently, we do not find any merit in the appellant's argument that his right to a fair trial under Article 50 of the Constitution was violated. 19.Regarding the constitutionality or otherwise of the sentence of life imprisonment and the contention that the sentence is harsh and excessive, it is noteworthy that the sentence provided for defilement of a child aged 11 years or below under section 8(2) of the Sexual Offences Act is life imprisonment. The Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) clarified that in the Muruatetu case, the Court solely considered the mandatory sentence of death under section 204 of the Penal Code in relation to murder cases and that the mandatory sentences under the Sexual Offences Act remain lawful. The sentence meted upon the appellant was legal. In the circumstances, we have no discretion to interfere with the sentence as it is the sentence provided for the offence the appellant was convicted of. 19.Consequently, having carefully considered all the grounds of appeal, this appeal is devoid of merit and it is dismissed in its entirety. Orders accordingly. DATED AND DELIVERED AT ELDORET ON THIS 24TH DAY OF JULY, 2026.M. GACHOKA C.Arb, FCIArb..................................JUDGE OF APPEALW. KORIR....................................JUDGE OF APPEALL. M. NDOLO.....................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR