Dennis Musungu Nyambane v Republic

road, whereupon LOM told him that "Uncle Kibabe" took her to a cane plantation, undressed her, and assaulted her from behind. SK inspected LOM and observed tearing and bleeding in her anal area, and rushed the child to Masanga Hospital. PW1 produced LOM’s birth certicate as an exhibit that indicated that LOM was born on 3rd February 2011, and was four years old at the time of commission of the oence. 4. PW2 reiterated this account in his testimony, and stated that he noticed LOM was bleeding from her private parts and had fecal matter on her back. He took her home, washed her, and waited for their mother. He pointed out that the appellant in court as the perpetrator and stated that he saw him heading into the sugarcane eld. 5. Wyclie Atambo (PW3), a clinical ocer at Gucha Level 4 Hospital, testied that he examined the victim on 15th June 2014, and noted signs of sodomy and delement, including perianal tearing, active bleeding, the presence of semen, and severe distress. He produced the P3 form and PRC (Post-Rape Care) form as court exhibits. He also testied that he examined the appellant and he had a penile bruise. PC Nicholas Gitonga (PW4) testied regarding the investigation and arrest of the appellant. He produced the victim's clothes recovered from the scene as exhibits. 6. The appellant gave an unsworn statement in his defense and denied the charges, claiming he was framed due to local disputes and grudges, maintained that he did not go by the name "Kebaba," and asserted he was nowhere near the scene of the alleged crime on the date in question. 7. The trial Court found that the prosecution case has been proved to the required standard of beyond reasonable doubt. On appeal, the High Court (D.S Majanja J.) held as follows: 8. “ 17. I am therefore satised that the prosecution proved that it is the appellant who committed the felonious act of penetration. 18. The prosecution proved that the appellant was a child. The precise age of the child was proved by production of the birth certicate. She was under the age of 11 years which, under section 8(2) of the Act, the sentence of life imprisonment is mandatory. 19. I arm the conviction and sentence and dismiss the appeal.” As this is a second appeal, the role of this Court was set out in Karani vs R (2010) 1 KLR 73 as follows: “ This is a second appeal. By dint of the provision of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with decision of the superior Court on fact unless it is demonstrated that the trial court and the rst appellate Court considered matters, they ought not to have considered or that they failed to consider matter they should have considered or that looking at the evidence as a whole they were plainly wrong decision, in which case such omission or commission would be treated as a matter of law.” It was further explained in Njoroge vs Republic [1982] KLR 388 and Kaingo vs Republic [1982] KLR 213, that on a second appeal, this Court will not interfere with concurrent ndings of fact unless those ndings are unsupported by the evidence on record. 9. The grounds of appeal raised by the appellant in the Memorandum of Appeal he led in this Court are that the learned High Court Judge erred in law by failing to consider the appellant’s right to legal representation in violation of Article 50 (2) (g) (h) of the Constitution; the prosecution failed to prove its https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1882/eng@2026-09-25 2

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case beyond reasonable doubt; the Learned High Court Judge erred in law in upholding his conviction relying on evidence which was not direct evidence to link the appellant on this alleged oence; the child was not called in Court to testify whereby her mother was directed to testify in her own right violating Article 50 (7) and section 31 of the Children Act and section 30 of the Sexual Oence Act; the two Courts below erred by convicting the Appellant relying on circumstantial evidence; penetration was not proved; the age of the child was not proved; the appellant’s identity was doubtful; the evidence that was uncorroborated; there were some contradicting evidence which were not resolved by the prosecution; the P3 form, PRC Form, treatment notes form details show no delement and does not point at me as the sole perpetrator of the present case; the medical evidence exonerated him from the case; the prosecution witness were not credible; the burden of proof was shifted to the appellant; the case was shoddily investigated; the two courts based his conviction on contradictory and inconsistent evidence disregarding the glaring gaps; the life sentence be set aside in favour of an appropriate sentence; and section 333 (2) of the CPC (Criminal Procedure code) be considered in light of the period the appellant spent in custody since his arrest in 2014. 10. These grounds of appeal can be collapsed into three legal issues. The rst is whether there was a violation of the right to legal representation, the second, whether the evidence adduced was sucient to convict the appellant, and the last whether there is any legal ground to set aside or review the sentence imposed on the appellant of life imprisonment. 11. On the rst issue on the denial of the right to legal representation, the appellant argues that his constitutional right under Article 50(2)(g)(h) was violated because he was not informed of his right to state-funded legal aid as an indigent person, despite the complexity and severity of the charge. The appellant cited the decisions in Republic vs Karisa Chengo and 2 Others (2017) eKLR and William Okungo Arunda (Patrick Oduor Ochieng) vs Republic (2022) KECA 23 KLR in support of this position. The respondent’s counsel did not make any submissions on this issue. 12. Indeed, this Court held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) vs Republic (supra) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The Court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. 13. We have perused the record in the present appeal, and note that the appellant did not request for a lawyer during trial, on the contrary he indicated that he was ready to proceed with the trial on 25th September 2014, and participated in the trial and cross-examined the witnesses. It is not evident that he suered any or any substantial injustice. In addition, in his rst appeal he never raised violation of his rights under Article 50(2) (g) and (h), and instead raised violation of his rights under Article 50(2) (j) and (k) to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence; and to adduce and challenge evidence. The appellant cannot therefore raise this violation in his second appeal if it was not the subject of the judgment by the High Court. For these reasons, we do not nd any merit in the appellant’s arguments that his right to legal representation under Articles 50(2)(g) and 50(2)(h) of the Constitution was violated. 14. As regards the second issue on whether the appellant’s conviction was supported by the evidence, the appellant made several arguments. Firstly, that the minor victim was not called to testify in court, and instead, the trial court directed the mother (PW1) to testify in her own right rather than acting as an intermediary, violating Article 50(7) of the Constitution and section 30 of the Sexual Offences Act. Second, that the statements made by the victim regarding the perpetrator ("Uncle Kibabe") https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1882/eng@2026-09-25 3

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were hearsay through PW1 and PW2 and no independent or direct evidence linked the appellant to the crime scene or identity. Third, that there were contradictions in evidence and lack of proof, and specically that contradictions exist between PW1 and PW2 regarding the nature of the injuries suered by the victim as to anal tearing or bleeding from private parts, and the medical records (P3 form, PRC form, treatment notes) contain conicting times and scene locations and the alleged semen and clothing evidence was unveried, untested, and uncorroborated. 15. Lastly, that the prosecution failed to properly establish the victim's age, and the medical documents produced in court referenced unrelated individuals casting doubt on the age evidence. The appellant cited the decision in Ndungu Kimanyi vs Republic (1979) KLR, that it is unsafe to base a conviction on prosecution evidence that contains unresolved material contradictions or raises signicant doubts. 16. Counsel for the respondent submitted that the elements of the oence of delement were proved, and particularly that on the victim’s age, the complainant’s mother (PW1) testied that the child was 4 years old and produced a birth certicate conrming her date of birth as 13th April 2010; penetration was proved by the testimony of PW1 who found the victim crying with injuries, and the clinical ocer (PW3) noted perianal injuries, blood, and sperms owing from her anus, and the appellant also had a penile bruise, and the victim identied her assailant as "Uncle Kibabe", a person known to her. Counsel relied on the decisions in Charles Wamukoya Karani vs Republic (Criminal Appeal No. 72 of 2013) on the ingredients of the oence of delement and in Mwalango Chichoro Mwanjembe vs Republic [2015] eKLR on the proof of age in sexual oence cases. 17. We shall rst address the arguments made on the legal eect of the victim not being called to testify. The victim was a four-year old child, and on 15th October 2014, the prosecutor applied that the trial court invokes section 30 of the Sexual Offences Act for an intermediary to testify as the victim could not testify. The trial Court in purporting to invoke section 30 of the Sexual Offences Act called the victim’s mother to testify Under the Sexual Offences Act, an intermediary is dened in section 2 thereof as “ a person authorized by a court, on account of his or her expertise or experience, to give evidence on behalf of a vulnerable witness and may include a parent, relative, psychologist, counsellor, guardian, children’s ocer or social worker’ and there is a procedure set out in section 31 of the Act for the appointment of an intermediary and the communication between the Court, intermediary and victim including the conveying of questions and answers by the intermediary and accused person, which was not followed by the trial Court. 18. While acknowledging that the mistake made by trial Magistrate as regards the procedure of vulnerable witnesses give evidence through an intermediary, the learned Judge of the High Court held as follows: “ 12. The rst question I will consider is whether the failure of the child to testify was fatal. From the record, the trial magistrate ruled that the child was vulnerable and under section 31 of the Children Act and directed that mother of child testify. It appears that the trial magistrate misapprehended the purpose for which the intermediary was required but instead directed the PW 1 to testify in her own right. 13. I do not consider this fatal because the issue is whether there was sucient evidence to sustain a conviction as the court can rely on direct or circumstantial evidence to prove its case. In this case it was clear that the child was vulnerable. I do not nd any evidence in the proceeding that would make me make an adverse inference for her failure to testify”. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1882/eng@2026-09-25 4

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19. We agree that the procedure followed by the trial Magistrate was not fatal, since section 143 of the Evidence Act stipulates that no particular number of witnesses shall be required for purposes of proof of any fact. What the law therefore requires is that the prosecution calls sucient witnesses to prove the charge beyond reasonable doubt. It was accordingly explained by this Court in Mathenge vs Republic [2026] KECA 1643 (KLR) as follows: “69.The governing principle was stated in Bukenya & Others v Uganda [1972] EA 549, where the former East African Court of Appeal held that while the prosecution need not call a superuity of witnesses, it must make available all witnesses necessary to establish the truth, even if their evidence may be inconsistent. The Court further stated that where essential witnesses are not called, and the evidence adduced appears barely adequate, the court may draw an adverse inference that the uncalled evidence would have been adverse to the prosecution. 70.We are alive to the caution that Bukenya does not create an automatic rule that failure to call a particular witness is fatal. The question is always contextual: whether the missing witness was necessary to prove a material ingredient of the charge...” 20. 21. The elements that require to be proved in the oence delement were emphasized by this Court in John Mutua Munyoki vs Republic, [2017] eKLR as penetration, including identication of the perpetrator and proof of age of the victim. As regards whether these elements were proved, the learned Judge of the High Court proceeded to hold as follows: “ 14. The fact of penetration of the child was proved by PW 1, PW2, PW 3,PW 4 and PW 5 who all armed that they saw the child in a state of distress, her anus had been injured and she was in pain on the material day and that the anus was bleeding and oozing sperm. The evidence of PW4 is particularly pointed because it conrms the fact that spermatozoa were detected in the anal swab thus buttressing the prosecution case that an intentional act of sexual penetration did indeed take place. 15. The key question in this case is whether it is the appellant who committed the felonious act. Since the child did not testify what she told PW 1 and PW 2 was not direct testimony within the meaning of section 63 of the Evidence Act. In other words it was hearsay testimony hence the appellant could only be convicted if there was any other independent evidence implicating him. 16. The key evidence on this issue is that the child showed PW 2 where she had been assaulted in the sugarcane plantation. He further stated that when he went to the road, he saw the appellant heading into the sugarcane. PW 2 remained rm in cross- examination when he stated that "You went into the sugarcane and started chewing the cane then went out the other side. You were alone”. This evidence places the appellant at the locus in quo as the person who sexually assaulted the accused. That he committed an act of penetration is corroborated by the fact that PW 3 testied that he had a penile bruise. On this (sic) two issues the appellant said nothing in his defence.” These ndings were indeed supported by the evidence on record which we summarised at the start of this judgment, and there is therefore no reason for this Court to interfere or overturn them. The failure to call the victim to testify did not create any gap that needed to be lled as regards the proof of delement, and as the lack of forensic tests on the victims clothing did not water down the evidence, as this aspect is not an essential element in the proof of delement. The learned Judge of the High Court https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1882/eng@2026-09-25 5

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also found that the precise age of the child was proved by production of the birth certicate by PW1, and she was under the age of 11 years which, under section 8(2) of the Act, carries a mandatory the sentence of life imprisonment. 22. This brings us to the last issue raised by the appellant on this sentence being unconstitutional. While citing the decision by the European Court on Human Rights in Vinter & Others ss The United Kingdom (2013) ECHR 317, the appellant submitted that the mandatory and indeterminate life imprisonment is cruel, inhuman, and degrading punishment. He requested for a lenient sentence, citing his status as a rst oender who has been rehabilitated during imprisonment since 2014. 23. In reply, the respondent’s counsel submitted that the Sexual Offences Act graduates the punishment under Section 8 providing for sentencing in relation to the age of the victim and the appellant was charged with delement contrary to Section 8(1) as read with Section 8(2) which provides for a sentence of life imprisonment. Further that the Supreme Court resolved the issue of the constitutionality of mandatory minimum sentences under the Sexual Offences Act in Republic vs Joshua Gichuki Mwangi & Others (Petition No. E018 of 2023 [2024] KESC 34 KLR). 24. We are alive to the provisions of section 8(2) of the Sexual Offences Act which provide for the sentence of life imprisonment as the minimum sentence for the oence of delement of a child aged eleven years and less, and the said sentence is therefore not illegal. The Supreme Court of Kenya claried in Francis Karioko Muruatetu & Another vs. Republic; Katiba Institute & 5 others Amicus Curiae) [2021] eKLR and reiterated in Republic vs Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (supra) that it did not invalidate mandatory sentences or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute, and they remain constitutional. 25. The Supreme Court further armed the validity of life imprisonment as a lawful punishment in Republic vs Manyeso [2025] KESC 16 (KLR), and held that setting the duration of a life sentence falls under legislative power, and courts cannot amend statutes to dene it as a xed term, and the decision in the Muruatetu Case could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution. We therefore have no jurisdiction to set aside or interfere with the sentence imposed on the appellant in light of the abovecited decisions by the Supreme Court, and can only observe that the appellant awaits a change in the law in this regard. 26. We accordingly uphold both the conviction of the appellant for the oence of delement contrary to section 8 (1) and (2) of the Sexual Offences Act, and the sentence of life imprisonment. This appeal is accordingly dismissed in its entirety. 27. Orders accordingly. DATED AND DELIVERED AT KISUMU THIS 25TH DAY OF SEPTEMBER, 2026 P. NYAMWEYA ………………………………… JUDGE OF APPEAL L. ACHODE ………………………………… JUDGE OF APPEAL J. MATIVO https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1882/eng@2026-09-25 6

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………………………………… JUDGE OF APPEAL I certify that this is a true copy of the original DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1882/eng@2026-09-25 7

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