Gordon Amos Onunga Oliech v Republic

defilement and sentenced to 15 years’ imprisonment. His appeal to the Page 2 of 12

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High Court against both conviction and sentence was dismissed vide a judgment dated 17th October 2024. 3. Aggrieved by the decision of the High Court, the appellant has come before us on a second appeal. The main ground supporting the appeal is that the appellant’s right to fair trial was compromised, by failure by the two courts below to inform him that he was entitled to legal representation at the expense of the State. The appellant claims to have suffered substantial injustice as he was not able to adequately cross examine the prosecution witnesses or defend himself. He therefore urges us to quash the conviction and order a retrial. 4. At the trial before the Chief Magistrate’s Court at Makadara, the prosecution called five (5) witnesses. The complainant testified as PW1. She was a day scholar in a high school in Kayole and was barely two weeks old at the school when the appellant, who was the school principal, proposed a romantic relationship with her, which she declined. Subsequent to this, the appellant severally invited the complainant to his house, and on the third invitation, the complainant accepted to visit the appellant on 29th November 2022. When the complainant wanted to leave, the appellant pulled her back, locked the door and proceeded to defile her. 5. Upon getting home, the complainant had an altercation with her father and she therefore escaped to live with her sister, PNS, who testified as PW3. The complainant stayed Page 3 of 12

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with her sister until 1st January 2022 and on 31st January 2022, she notified the appellant that she had missed her monthly Page 4 of 12

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periods. A pregnancy test confirmed that the complainant was pregnant. This evidence was corroborated by PW3. The complainant was treated at Mama Lucy Hospital where her P3 and PRC forms were completed. The complainant’s father made a report at Kayole Police Station, and the appellant was arrested. In the month of April 2022, the complainant had a miscarriage. 6. The complainant’s mother, PKM, testified as PW2. She produced a birth certificate showing that the complainant was born on 27th October 2004. Farah Mohamed (PW4) was the Medical Officer who attended to the complainant at Mama Lucy Hospital. He produced the P3 and PRC forms and confirmed that upon examination, the complainant was found to be pregnant, in addition to having old hymenal tears at 3, 6 and 9 o’clock. 7. Police Constable Mercy Kamau (PW5) was the investigating officer; she issued the complainant with a P3 form, arrested the appellant and recorded witness statements. 8. When put on his defence, the appellant gave a sworn statement, denying the charge and accusing the complainant’s family and the police of pressurizing him to admit culpability for an offence he did not commit. 9. The appellant testified that in February 2022 while on leave in his rural home, he was recalled by the school director, Risper Onyango, who informed him that the complainant’s parents had lodged a complaint against Page 5 of 12

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him. The appellant, Page 6 of 12

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who maintained that he was innocent, was arrested on 8 th February 2022 and was booked at Kayole Police Station. 10. The appeal was heard before us on 11 th March 2026 with learned counsel Ms Bonyo appearing for the appellant and learned prosecution counsel, Ms Vitsengwa appearing for the respondent. The parties relied on their respective submissions filed in court. 11. In his submissions dated 26th March 2025, the appellant submits that under Article 50(2)(g) and (h), every accused person has a right to choose and be represented by an advocate, a right to be informed of this right promptly, and the right to be provided with an advocate at the expense of the State. 12. The appellant complains that the trial court failed to inform him of his right to representation by counsel at State expense. Learned counsel Ms Bonyo appearing for the appellant reiterated that the appellant’s right to fair trial was compromised. She gave a chronology of court appearances as follows; plea was taken on 8 th February 2022, the matter came up for mention severally and on 13th April 2022, the appellant informed the trial court that he had instructed counsel who was not present in court. On 14th April 2022, the appellant informed the court that the advocate was not willing to take up the matter and he would therefore act in person. 13. The respondent relied on its submissions dated 6 th March 2026, maintaining that the prosecution had proved the Page 7 of 12

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charge of defilement against the appellant, beyond reasonable doubt. While conceding that the complainant was the only eyewitness, the respondent submitted that she was truthful and consistent, even under cross examination. The respondent relied on section 124 of the Evidence Act, which provides that a conviction in a sexual offence may be sustained on the strength of the sole testimony of the victim. The respondent further submitted that the medical evidence tendered corroborated the testimony of the complainant. 14. Regarding the issue of legal representation under Article 50(2)(g) and (h) of the Constitution, the respondent, referring to the court record, pointed out that on 13th April 2022, when the appellant informed the trial court that he could not reach his advocate, he was given time to retain another one. The respondent therefore maintains that the appellant was representation. fully aware Relying on of his Article right to legal 50(2)(h), the respondent submits that the right to legal representation at the expense of the State is not automatic. 15. This is a second appeal, and our remit is therefore restricted within the confines of section 361(1) of the Criminal Procedure Code, which dictates that the jurisdiction of a second appellate court is limited to matters of law only. 16. This position has been affirmed in a long line of decisions of this Court. In Karingo & 2 Others vs R [1982] KECA 23 (KLR) it was held that: Page 8 of 12

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“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the Page 9 of 12

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two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did (Reuben Karari s/o Karanja v Republic (1950) 17 EACA 146).” 17. With the foregoing in mind, the issues falling for our determination are three; the first is whether the appellant’s right to fair trial was violated, the second is whether the charge of defilement was proved against the appellant, and the third is whether the 15 years’ imprisonment imposed on the appellant should stand. 18. Regarding the first issue, the appellant’s complaint is that he was not availed access to legal counsel as required under Article 50(2)(g) & (h) of the Constitution. In view of the centrality of these provisions, we have taken the liberty to reproduce them: (2) 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 at the State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; 19. In the High Court judgment from which this appeal proceeds, the learned Judge referred to the decision in N.M.T. alias Page 10 of 12

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Aunty vs Republic [2019] eKLR where Mrima, J drew the distinction between Article 50(2)(g) and 50(2)(h) as follows: “The right under Article 50(2)(g) of the Constitution must be distinguished from the right under Article 50(2)(h) of the Constitution given that in many instances the rights under Article 50(2)(g) and (h) of the Constitution are dealt with contemporaneously. The right under Article 50(2)(h) of the Constitution on one hand places a duty on the State to assign an Advocate to an accused person at its own expense if substantial injustice will otherwise result. The right under Article 50(2)(g) of the Constitution on the other hand deals with informing an accused person of his/her right to be represented by an Advocate of one’s choice further to giving necessary information to the accused person and calling him/her to make a choice on his/her legal representation. Put differently, the right under Article 50(2)(h) of the Constitution deals with instances where the State must assign an Advocate to an accused person.” 20. From the record, the appellant was afforded adequate opportunity to procure his own advocate, and when the advocate did not turn up at trial, the appellant elected to proceed in person. We are therefore satisfied that his right under Article 50(2)(g) was upheld. The question that remains is whether the appellant was entitled to State funded legal representation as contemplated under Article 50(2)(h). On this account, we agree with the first appellate court that the threshold for State funded legal services is met where substantial Page 11 of 12 injustice would

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otherwise result. 21. Section 43 of the Legal Aid Act requires that: Page 12 of 12

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(1) A court before which an unrepresented accused person is presented shall(a) Promptly inform the accused person of his or her right to legal representation; (b) If substantial injustice is likely to result, promptly inform the accused of the right to have an advocate assigned to him or her; and (c) Inform the Service to provide legal aid to the accused person. 22. Section 43(1A) sets out the factors to be taken into account in determining whether substantial injustice would result being; severity of the charge and sentence, complexity of the case and the capacity of the accused to defend themselves. 23. In its decision in Republic vs Karisa Chengo & 2 Others [2017] KESC 15 (KLR) the Supreme Court held that the right for an accused person to be availed State funded legal services is not open ended; it only becomes available if substantial injustice would otherwise result. The Supreme Court went further to list the factors to be taken into account in determining whether an accused person is entitled to the right under Article 50(2)(h) as; the seriousness of the offence, severity of the sentence, the ability of the accused person to procure own legal representation, whether the accused is a minor, the literacy of the accused and the complexity of the charge against the accused. Page 13 of 12

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24. In its decision in David Njoroge Macharia vs Republic [2011] KECA 406 (KLR) this Court, while conceding that Page 14 of 12

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‘substantial injustice’ is not defined in the Constitution, stated that: “…provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2(6). Therefore provisions of the ICCPR and commentaries by the Human Rights Committee may provide instances where legal aid is mandatory. We are of the considered view that in addition to situations where ‘substantial injustice would otherwise result’ persons accused of capital offences where the penalty is loss of life have the right to legal representation at State expense.” 25. We agree with the first appellate court that the appellant, being a high school teacher, was an enlightened person with authority over the complainant. He went ahead to source for his own advocate, and when this advocate did not turn up in court, the appellant made a well-informed decision to proceed in person. He understood the charge facing him and was availed ample opportunity to cross examine all the prosecution witnesses and present his defence. Overall, we are satisfied that the appellant did not suffer substantial injustice in the trial proceedings. 26. We now turn to the question whether the prosecution proved the charge of defilement against the appellant. There are three ingredients attaching to the offence of defilement namely; the age of the victim, penetration and identification of the offender. Page 15 of 12

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27. On the ingredient of age, this Court, in its decision in Mwalengo Chichoro Mwajembe vs Republic [2016] eKLR stated the following: “…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 parent or guardian or medical evidence or other credible forms of proof.” 28. In this case, the complainant’s mother, who testified as PW2 produced a birth certificate showing that the complainant was born on 27th October 2004. It would follow therefore that as at 29th November 2021, when the offence was committed, the complainant was 17 years old. That is all we will say on this issue. 29. Regarding penetration, there was irrefutable medical evidence in the form of a P3 form that upon examination, the complainant was not only found to be pregnant but also had old hymenal tears at 3, 6 and 9 o’clock. This evidence fully corroborated the complainant’s testimony that she had been defiled. 30. Turning to the issue of identification of the perpetrator of the offence, we are alive to the fact that the complainant was the only eyewitness. While denying the charge, the appellant made heavy weather of the fact that there was no Deoxyribonucleic Acid (DNA) examination confirming paternity of the foetus said to have been the result of the Page 16 of 12

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defilement. It is however on solid ground that the act of defilement is not proved by DNA examination but by way of evidence (see AML vs Republic [2012] eKLR). 31. Under the proviso to section 124 of the Evidence Act, conviction for a sexual offence can be sustained by the sole testimony of the victim, if the court is satisfied that the victim is telling the truth, the only caveat being that the court is to record the reasons for its belief that the victim is telling the truth. In its decision in Williamson Sowa Mbwanga vs Republic [2016] KECA 147 (KLR) this Court stated that: “The import of the proviso to section 124 of the Evidence Act is that the trial court can convict an accused facing a charge of defilement solely on the evidence of the victim, if for reasons to be recorded, the court is satisfied that the victim is telling the truth. Medical evidence is not mandatory under that proviso…” 32. The complainant was clear who her defiler was, she led her parents to the school where the appellant was the principal. Moreover, there was medical evidence that the complainant had been defiled. The complainant had no reason to lie and the trial court considered the appellant’s defence and rejected it. We are satisfied that the appellant was positively identified as the perpetrator. Ultimately, we are satisfied that the offence of defilement was proved beyond reasonable doubt. 33. On the question of sentence, the only thing we will say is that under section 8(4) of the Sexual Offences Act, Page 17 of 12

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defilement of a child of sixteen to eighteen years attracts the minimum Page 18 of 12

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sentence of 15 years’ imprisonment. This is the sentence meted out by the trial court and as held by the Supreme Court in Republic vs Manyeso [2025] KESC 16 (KLR) and Republic vs Ayako [2025] KESC 20 (KLR) where a minimum sentence is imposed by statute, courts have no power to tinker with such a sentence. 34. In the end, we find that this appeal is without merit and is dismissed in its entirety. Dated and delivered at Nairobi this 25th day of September, 2026. W. KORIR …………………….………….. JUDGE OF APPEAL L.M. NDOLO …………………….………….. JUDGE OF APPEAL A.I. HASSAN …………………….………….. JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. Page 19 of 12

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