Hussein Abdi Noo v Republic

her, and deled her. The complainant reported the incident to her father, PW2 (AA), who together with relatives and police ocers apprehended the appellant the following day. The complainant was examined by PW5 (Jeremiah Musombei), a Reproductive Health Ocer, who lled a P3 form and arranged an age assessment. In his defence, the appellant gave an unsworn statement amounting to a mere denial of the oence. 4. The appeal came up for hearing before us on 2nd March 2026. The appellant, who appeared from Kamiti Medium Security Prison via video link, indicated that he relied entirely on his written submissions. When the Court inquired whether he understood Swahili, he stated that he did not understand it very well. We noted that the appellant's written submissions were drawn in English, and that this being a second appeal conned to points of law, the appellant would not be required to respond to legal submissions. We therefore proceeded, with the Court Assistant interpreting the proceedings into Swahili for the appellant's benet. 5. Ms. Matiru, learned Senior Assistant Deputy Director of Public Prosecutions, appeared for the respondent. She opposed the appeal and relied on her written submissions. She submitted that all ingredients of delement were proved: the age of the complainant was established via an age assessment report produced by PW2 and the complainant's own testimony that she was 16 years old and a Class 6 pupil at [Particulars Withheld] Primary School; penetration was proved by PW5, who found a broken hymen and dead immotile spermatozoa; and identication was by recognition, as the appellant was known to the complainant prior to the incident. She urged us to dismiss the appeal. 6. Upon being questioned by the court, Ms. Matiru rightly conceded that time spent in custody was not taken into account, contrary to the provisions of Section 333(2) of the Criminal Procedure Code (CPC). 7. This being a second appeal, our jurisdiction is strictly limited to matters of law under Section 361(1) (a) of the Criminal Procedure Code. As enunciated in Mwangi v Republic [1983] KLR 522 and Chemagong v Republic [1984] KLR 611, the exact principles governing our jurisdiction dictate that we will not interfere with concurrent ndings of fact by the two courts below. The principles establish that an appellate court on a second appeal is precluded from re-evaluating factual ndings and will only disturb such concurrent ndings if it is armatively demonstrated that: 8. 9. i. the ndings are based on no evidence; ii. no reasonable tribunal properly directing itself could have arrived at such conclusions; or iii. the lower courts misapprehended the evidence on record, thereby arriving at erroneous conclusions. Having considered the record, the written submissions, and the oral highlights by counsel, we nd that the following issues fall for determination: a. Whether the conviction was based on sound legal principles; and b. Whether the sentence requires adjustment regarding time spent in remand custody. We now turn to the appellant's grounds. As regards the alleged defective charge sheet, Section 382 of the Criminal Procedure Code is clear that no nding or order shall be reversed or altered on account of an error, omission, or irregularity unless it has occasioned a failure of justice. The charge sheet stated the complainant's age as 12 years, while the age assessment report produced as Exhibit 3 indicated an age of 15 years. During the hearing, the complainant testied that she was 16 years old at trial. The two courts below presumably preferred the age assessment report. In any event, both 12 years (as per the charge https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1840/eng@2026-09-25 2

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sheet) and 15 years (as per the age assessment) fall within the age bracket of 12 to 15 years prescribed under Section 8(3) of the Sexual Offences Act, which attracts a minimum sentence of twenty years. The variance in the age stated in the charge sheet and the age assessment therefore did not prejudice the appellant, as both ages attract the same sentencing regime. The minor discrepancies in dates mentioned by a minor witness do not invalidate the prosecution's case. 10. On penetration, the appellant's contention is that "dead spermatozoa" and a "broken hymen" do not prove penetration. Section 2 of the Sexual Offences Act denes penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. The appellant’s argument is therefore a misapprehension of the law. 11. The record shows that PW5, Jeremiah Musombei, a Reproductive Health Ocer holding a Higher Diploma in Reproductive Health and a Diploma in Clinical Medicine, examined the complainant and found that her hymen was broken, with a whitish discharge in the vaginal area. Laboratory results from a high vaginal swab revealed dead, immotile spermatozoa, while a pregnancy test was negative. He concluded that there had been delement. 12. The nding of a broken hymen and the presence of spermatozoa, regardless of their state of motility, coupled with the complainant's testimony, was sucient to prove penetration. As this Court stated in Mark Ouiriri Mose v Republic [2013] eKLR, the law does not require evidence of live spermatozoa or a complete sexual act; so long as there is penetration, whether partial or on the surface, the ingredient of the oence is demonstrated. 13. Regarding the appellant's contention that PW5 was not a qualied medical practitioner and that his evidence ought to have been rejected under Section 70 of the Evidence Act, it is trite law in Kenya that a Clinical Ocer of the rank held by PW5 is legally recognized as a medical practitioner competent to examine victims of sexual oences and ll P3 forms. Section 70 of the Evidence Act, which restricts opinions on foreign law, science, art, or handwriting to persons specially skilled in those elds, does not disqualify a Clinical Ocer or Reproductive Health Ocer from giving medical evidence within the scope of their training and practice. The appellant's invocation of that provision is therefore misplaced and does not render the medical evidence inadmissible. See Georey Ngotho Kariuki v Republic [2020] eKLR. 14. On identication, the oence occurred at 4.00 p.m. in broad daylight. The complainant knew the appellant as a person known to her as Hussein, and she had seen him on many occasions prior to the incident. She therefore identied him by recognition, which, as was held in Anjonini v Republic [1976- 80] 1 KLR 1560, is usually more reliable than identication of a stranger. Furthermore, the appellant was apprehended by PW2, the complainant's father, with the assistance of relatives, police ocers, and his employer, after the complainant identied him. The appellant's initial attempt to ee upon sighting police ocers was further corroboration of his guilt. We associate ourselves with the concurrent ndings of the trial court and the High Court. We nd no merit in this ground. 15. On the alleged contradictions and failure to call witnesses, the trial court properly evaluated the inconsistencies in the prosecution's evidence and rightly found them to be minor and not material to the core issues. The failure to call the complainant's younger sister or the rst report person, Barwako, did not create a gap in the prosecution's case, as their evidence would merely have been corroborative of what was already established by the complainant's testimony, the medical evidence, and the evidence of the arrest. The two courts below properly applied the principles in Bukenya & Others v Uganda [1972] EA 549 and Chila v Republic [1988] KLR 26, to the eect that the prosecution is not obliged to call every conceivable witness, only those who are material to the proof of its case. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1840/eng@2026-09-25 3

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16. As regards the appellant's complaint that the learned trial Judge failed to take into consideration his defence, the record shows that the appellant gave an unsworn statement which amounted to a bare denial of the oence. It is settled law that an unsworn statement does not subject the accused to crossexamination and therefore carries less weight than sworn testimony. Where the prosecution's evidence is cogent and credible, a mere denial in unsworn testimony cannot dislodge it. The trial court and the rst appellate court both considered the appellant's defence and correctly found it to be insucient to raise a reasonable doubt. There was therefore no failure to consider the defence, and no misdirection in law. 17. In the result, we nd no error of law by the High Court in upholding the conviction. The conviction is safe. 18. On sentence, the appellant was arrested on 15th October 2016. He was sentenced on 15th March 2018. This means he spent approximately one (1) year and ve (5) months in remand custody. A perusal of the trial court's sentencing remarks reveals that while the court imposed the statutory minimum of 20 years under Section 8(3) of the Sexual Offences Act, it did not expressly state that the period spent in remand would be deducted from the sentence. 19. Section 333(2) of the CPC dictates that, subject to Section 38 of the Prisons Act, the sentence imposed on an accused person shall take into account the time spent in remand custody. As this Court and the Supreme Court have repeatedly held, failure to deduct the remand period violates the appellant's constitutional right to a fair trial. See Ahamad Abolfathi Mohamed & Another v Republic [2018] eKLR; Francis Karioko Muruatetu & Another v Republic [2017] eKLR. During the hearing, the respondent's counsel rightly conceded to this legal defect. From the foregoing, the sentence must be adjusted to reect the time the appellant spent in custody before his conviction. 20. From the foregoing, we make the following orders: a. The appeal against conviction is hereby dismissed. b. The appeal against sentence partly succeeds to the extent that the period spent in remand custody was not accounted for. c. In substitution therefore, the appellant's sentence of twenty (20) years' imprisonment shall take eect from 15th October 2016 (the date of arrest), to explicitly account for the period spent in remand custody. Orders accordingly. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. P. O. KIAGE ……………………………………………………………… JUDGE OF APPEAL R. NGETICH ……………………………………………………………… JUDGE OF APPEAL STEPHEN RADIDO ……………………………………………………………… https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1840/eng@2026-09-25 4

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JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1840/eng@2026-09-25 5

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