REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MIGORI
CRIMINAL APPEAL NO. E127 OF 2025
BEN OWUOR OTIENO Alias OCHIENG …..………………… APPELLANT
VERSUS
REPUBLIC ………………………………………………..…….. RESPONDENT
( Being an appeal from the Judgment and Conviction of Hon. S. Mutava, Resident Magistrate, dated 29 th of October, 2025 at the Magistrates Court at Rongo, Sexual Offence Case No. E005 of 2025 )
JUDGMENT
Introduction and Background
1. The Appellant was charged before the Rongo subordinate court with the offence Defilement contrary to section 8(3) of the Sexual Offence Act, No. 3 of 2006 . The particulars of the offence are that on the 24 th of January 2025, at Komolorume area within Awendo Sub County, within Migori County, in the Republic of Kenya, he intentionally caused his penis to penetrate the vagina of MAA, a child aged 15 years. He denied the charge.
2. The Appellant also faced an alternative charge of an Indecent Act with a child, contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that on the 24 th of January 2025, at Komolorume area of Awendo Sub County of Migori County, he unlawfully caused his hands and penis to touch the breasts and vagina of a child, MAA aged 15 years. He equally denied the charge.
3. The prosecution, now Respondent did call four witnesses to support the prosecution’s case. At the close of the prosecution case, the court found the accused had a case to answer and placed him on his defence. The accused, upon being guided by the court as required under section 211 of the Criminal Procedure Code (CPC), opted to give an unsworn statement. He did not call any witnesses. On the 29 th of October, 2025, the court found the accused guilty on the main charge and sentenced the accused to 30 years’ imprisonment on 25 th November, 2025.
4. It is this determination that the accused has appealed against and the Grounds of Appeal are as set out in the undated Petition of Appeal. Upon the appeal being admitted, the parties agreed to proceed by way of written submissions by the parties.
Analysis and Determination
5. The duty of the first appellate court is to re-analyse and re-evaluate the evidence of the trial court and come to its own conclusion based on the evidence presented before the said court and determine if the court arrived at the correct conclusion. The Court of Appeal in Okeno v Republic [1972] EA. 32 , laid out that principle.
6. At the trial, the state called four witnesses. PW, the complainant/victim, stated that the Appellant is her cousin and together with her brother, PW2, they had been staying at the Appellants home, with the Appellant’s mother, since they did nit know the whereabouts of their parents. On the 24 th of January, 2025, at about 9pm, the she was sent by the cousin, to go fetch a basin so that they would harvest rain water. In the process, she met the Appellant who asked her about the whereabouts of shoe polish, and she stated she did not know the same.
7. The Appellant then directed her to follow him and warned her about shouting as he threatened to beat her. He took her to his house where his two children were sleeping and threw the complainant on the bed and per the complainant words, inserted his penis into his vagina. The Appellants wife was not in at the time of the incident. Once done, the Appellant grabbed her hand and took her back to her aunt’s house. She went and slept on the sofa and when asked by her cousins where she had been, she informed them of what had happened. The cousins informed a neighbour called Ben who then took her to hospital.
8. It was her evidence that the Appellant and the aunt tried to have the matter resolved and the Appellant admitted to defiling the complainant. She was latter sent away from the aunt’s place. The matter was also reported to the police with the help of the Assistant Chief. She was examined together with the Appellant and the treatment and PRC reports prepared which were produced by PW4, the Clinical Officer.
9. PW2, brother to the complainant stated at the time of the incident, he was living with the aunt but had since gone to stay with the father. He stated that on the 24 th of January, 2025, the complainant was sent to fetch a basin to harvest rain water and he had gone to sleep. He later saw her return with the Appellant and on asking her, she shouted that she had gone to use the toilet. He went back to sleep. The next morning, PW1 was not at home and the aunt asked him to go find out her whereabouts. He confirmed that the Appellants wife was not in that evening but the two children were present.
10. PW3, the Investigating Officer testified that he was instructed to undertake investigations in the matter. He recorded the statement of the complainant and had her escorted to the hospital for treatment and assessment. The complainant restated the events of the evening of 24 th January 2025. He also produced the complainants birth certificate that showed the complainant was born on the 2 nd August, 2009. The accused was arrested on the 28 th January 2025 as he had allegedly fled from home. He was arrested at the Awendo boda boda stage. The victims statement and the medical report supported the allegations of defilement.
11. PW4, the Clinical Officer stated that he examined the complainant on 26 th January 2025 at Awendo Sub County hospital. He found a whitish/green discharge but all the other tests were normal. She was also not pregnant. A high vaginal swab did not return any sperms but the complainant had a urinary tract infection, which was also found on the Appellant. The complainant hymen was also broken. It was however not freshly broken.
12. The state made effort to call a witness by the name Elizabeth Atieno without success.
13. In his defence, the Appellant gave an unsworn statement only stating that on the night of the alleged defilement, he went to hospital and on return found his mother unwell. He then took her also to hospital and returned at 11pm. He found his wife had gone for a “ kesha ”. He was later summoned and arrested by the police on the allegations of defilement.
14. In considering a charge of defilement, the prosecution has a duty to prove three critical elements. These are:
a. The victim was a minor
b. There was penetration
c. The perpetrator was properly identified .
15. In the judgment of the trial court, the learned trial magistrates analysed the evidence at length and found the state had proved the three items and proceeded to convict the Appellant. In the first instance, there is not dispute as to the age of the complainant. The evidence of PW3 as regards the complainants Birth Certificate is unchallenged. The complainant was born on the 2 nd August 2009 and the defilement is stated to have occurred on the 24 th January 2025. The complainant was thus clearly 15 years and 4 months. The trial magistrate did a commendable analysis of the same and I propose not to reproduce it here. The age of the complainant is thus not in dispute.
16. I have considered the submissions of the Appellant and the reliance on the decision in Hadson Ali Mwachango vs Republic CA (Mombasa) and the arguments of the court in that matter regarding the exact age of the victim of a sexual offence. In the present case, the complainant was born on 2 nd August, 2009. The offence was committed on 24 th January 2025. She was thus 15 years, 5 months and 22 days. As the Appellant would wish the court to side with him, the victim is not even past the half way mark to allow for the rounding off as he seeks to suggest in order to benefit from a lower sentence based on the minimum statutory sentences provided for under the Act.
17. There is no difficulty in finding the intent of the drafters of the statute in this regard. By placing bands on the age, it is clear that age was based on actual age, where the same is certain or estimated age, where the same is uncertain. In the present case, where the date of birth of the victim is known, 2 nd August 2009, then it is clear that she falls within the provisions of section 8(3) of the Act, between 12 and 15 years. The rules of interpretation would thus place any child from 12 years and one day to 15 years and 11 months and 29 days within that bracket. The victim herein fits within that bracket.
18. On the second limb of penetration, the trial court considered the evidence on record, both of the complainant and the Clinical Officer. This court is conscious of the settled principles as regards penetration. First, penetration can be partial or full. Either constitutes an offence. Secondly, the courts have consistently held that sexual offences are private offences and it is unlikely that there will always be witnesses to the offence. It is the reason the Evidence Act at Cap at section 124 allows a court, with reasons provided to convict on the evidence of the single witness, in this case the complainant.
19. In addition, in the present case, the medical evidence supported the evidence of the complainant, and the trial court went into details connecting the oral evidence of the complainant and the medical evidence adduced by the Clinical Officer. The complainant’s hymen was broken and as she testified the Appellant had previously defiled her and the complainant compelled by the Appellants mother to keep quiet about it. The court takes note that the hymen could be broken by other mechanisms but none was proffered by the Appellant during the trial.
20. More intriguingly, the complainant had the same infection as the Appellant. I do not deem that the same was a coincidence. The Appellant, in both the evidence at the trial and in his submissions in this appeal, has not rebutted the report by PW4 on having had an infection when he was examined 6 days after the alleged defilement.
21. The submissions by the Appellant that the trial court relied on the unsworn evidence of PW1 and PW2, who are minors, and relied on the dicta in Mercy Kajuju & Others vs Republic (2009) eKLR, Oloo vs Republic (2009) KLR and Johnson Muiruri vs Republic (1983) , on the probative value of unsworn evidence. These submissions need to be considered in light of the provisions of section 19 (1) of the Oaths and Statutory Declarations Act , that sets out the persons who may make statements on Oath. It states thus:
“ Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section ”.
22. The courts in thus applying this provisions of law have provided for courts before taking the evidence of children, especially those of tender years to undertake the voire dire proceedings to gauge the understanding of the witness on the purpose of an oath, and to undertake to state the truth, with the caveat for sanctions in the event of deliberate falsehoods by the minor witness as provided for under section 19 (2) of the said Act.
23. And who is a child of tender years? The courts have settled this with the pronouncement in J.O v. S.A.O [2016] eKLR, where tender years are stated to be 10 years and below. The witnesses herein were 15 and 17 years of age. Children yes but not of tender years. Children below 18 years are correctly taken through the voire dire process to test their understanding and that is what the court did. The law thus allows children to give unsworn evidence but the same is subjected to cross examination as happened herein. Section 19 (1) of the Oaths and Statutory Declarations Act, places value of that evidence, beyond the value contemplated in the cited cases of the Appellant.
24. Indeed, it is the Appellants unsworn evidence that falls within the ambit of the cited cases. It is noteworthy that the Appellant was not taken through cross examination and thus the value of his defence is very minimal.
25. On the aspect of the identification of the assailant, the witnesses created no doubt that the victim and the Appellant were known to each other. They are cousins. They had lived together for over one year. They were well known to each other. In that regard, the identity of the parties is a non-issue.
26. On the conviction of the Appellant, I find no fault in the analysis and conclusion reached by the trial Magistrate and I will uphold the same.
27. The Appellant has also asked the court to review the sentence of 30 years stating that the same was excessive in consideration of the offence and circumstances. The provisions of section 8(3) of the Sexual Offences Act, No. 3 of 2006 provide for a minimum sentence of 20 years upon conviction.
28. Before the trial Magistrate sentenced the Appellant, a pre- sentence and social inquiry report was prepared and presented to the court. Upon consideration of the same, the court meted out the sentence of 30 years, with effect from 25 th September 2025. The reports indicate that the Appellant was a 1 st Offender. The social inquiry report stated that the Appellant had no previous history of crime in the community and was a father of two young children. While lawful, I deem that the trial court should have provided reasons to support the enhancement from 20 years to 30 years. No reason was provided.
29. Noting the mitigation and the substance of the social inquiry report, I deem that the Appellant should benefit from the sentence lower than that imposed by the trial court. I will thus review the sentence from 30 years to 20 years, with effect from 25 th of September 2025.
30. The upshot is that the appeal succeeds only in part and I proceed to give the following orders:
a. The conviction of the accused for the offence of defilement contrary to section 8(3) of the Sexual Offences Act, No. 3 of 2006 is upheld.
b. The sentence of the Appellant of 30 years is reviewed and substituted with a sentence of 20 years.
Dated, signed and delivered virtually via Microsoft Teams thus 25 th Day of June, 2026 .
In the presence of:
No Appearance for the parties.
MIGORI HCCRA NO. E127 OF 2025 BEN OWUOR OTIENO VS REPUBLIC JUDGMENT Pg. 7
IN THE HIGH COURT OF KENYA AT MIGORI
CRIMINAL APPEAL NO. E127 OF 2025
BEN OWUOR OTIENO Alias OCHIENG …..………………… APPELLANT
VERSUS
REPUBLIC ………………………………………………..…….. RESPONDENT
( Being an appeal from the Judgment and Conviction of Hon. S. Mutava, Resident Magistrate, dated 29 th of October, 2025 at the Magistrates Court at Rongo, Sexual Offence Case No. E005 of 2025 )
JUDGMENT
Introduction and Background
1. The Appellant was charged before the Rongo subordinate court with the offence Defilement contrary to section 8(3) of the Sexual Offence Act, No. 3 of 2006 . The particulars of the offence are that on the 24 th of January 2025, at Komolorume area within Awendo Sub County, within Migori County, in the Republic of Kenya, he intentionally caused his penis to penetrate the vagina of MAA, a child aged 15 years. He denied the charge.
2. The Appellant also faced an alternative charge of an Indecent Act with a child, contrary to section 11(1) of the Sexual Offences Act, No. 3 of 2006 . The particulars of the offence are that on the 24 th of January 2025, at Komolorume area of Awendo Sub County of Migori County, he unlawfully caused his hands and penis to touch the breasts and vagina of a child, MAA aged 15 years. He equally denied the charge.
3. The prosecution, now Respondent did call four witnesses to support the prosecution’s case. At the close of the prosecution case, the court found the accused had a case to answer and placed him on his defence. The accused, upon being guided by the court as required under section 211 of the Criminal Procedure Code (CPC), opted to give an unsworn statement. He did not call any witnesses. On the 29 th of October, 2025, the court found the accused guilty on the main charge and sentenced the accused to 30 years’ imprisonment on 25 th November, 2025.
4. It is this determination that the accused has appealed against and the Grounds of Appeal are as set out in the undated Petition of Appeal. Upon the appeal being admitted, the parties agreed to proceed by way of written submissions by the parties.
Analysis and Determination
5. The duty of the first appellate court is to re-analyse and re-evaluate the evidence of the trial court and come to its own conclusion based on the evidence presented before the said court and determine if the court arrived at the correct conclusion. The Court of Appeal in Okeno v Republic [1972] EA. 32 , laid out that principle.
6. At the trial, the state called four witnesses. PW, the complainant/victim, stated that the Appellant is her cousin and together with her brother, PW2, they had been staying at the Appellants home, with the Appellant’s mother, since they did nit know the whereabouts of their parents. On the 24 th of January, 2025, at about 9pm, the she was sent by the cousin, to go fetch a basin so that they would harvest rain water. In the process, she met the Appellant who asked her about the whereabouts of shoe polish, and she stated she did not know the same.
7. The Appellant then directed her to follow him and warned her about shouting as he threatened to beat her. He took her to his house where his two children were sleeping and threw the complainant on the bed and per the complainant words, inserted his penis into his vagina. The Appellants wife was not in at the time of the incident. Once done, the Appellant grabbed her hand and took her back to her aunt’s house. She went and slept on the sofa and when asked by her cousins where she had been, she informed them of what had happened. The cousins informed a neighbour called Ben who then took her to hospital.
8. It was her evidence that the Appellant and the aunt tried to have the matter resolved and the Appellant admitted to defiling the complainant. She was latter sent away from the aunt’s place. The matter was also reported to the police with the help of the Assistant Chief. She was examined together with the Appellant and the treatment and PRC reports prepared which were produced by PW4, the Clinical Officer.
9. PW2, brother to the complainant stated at the time of the incident, he was living with the aunt but had since gone to stay with the father. He stated that on the 24 th of January, 2025, the complainant was sent to fetch a basin to harvest rain water and he had gone to sleep. He later saw her return with the Appellant and on asking her, she shouted that she had gone to use the toilet. He went back to sleep. The next morning, PW1 was not at home and the aunt asked him to go find out her whereabouts. He confirmed that the Appellants wife was not in that evening but the two children were present.
10. PW3, the Investigating Officer testified that he was instructed to undertake investigations in the matter. He recorded the statement of the complainant and had her escorted to the hospital for treatment and assessment. The complainant restated the events of the evening of 24 th January 2025. He also produced the complainants birth certificate that showed the complainant was born on the 2 nd August, 2009. The accused was arrested on the 28 th January 2025 as he had allegedly fled from home. He was arrested at the Awendo boda boda stage. The victims statement and the medical report supported the allegations of defilement.
11. PW4, the Clinical Officer stated that he examined the complainant on 26 th January 2025 at Awendo Sub County hospital. He found a whitish/green discharge but all the other tests were normal. She was also not pregnant. A high vaginal swab did not return any sperms but the complainant had a urinary tract infection, which was also found on the Appellant. The complainant hymen was also broken. It was however not freshly broken.
12. The state made effort to call a witness by the name Elizabeth Atieno without success.
13. In his defence, the Appellant gave an unsworn statement only stating that on the night of the alleged defilement, he went to hospital and on return found his mother unwell. He then took her also to hospital and returned at 11pm. He found his wife had gone for a “ kesha ”. He was later summoned and arrested by the police on the allegations of defilement.
14. In considering a charge of defilement, the prosecution has a duty to prove three critical elements. These are:
a. The victim was a minor
b. There was penetration
c. The perpetrator was properly identified .
15. In the judgment of the trial court, the learned trial magistrates analysed the evidence at length and found the state had proved the three items and proceeded to convict the Appellant. In the first instance, there is not dispute as to the age of the complainant. The evidence of PW3 as regards the complainants Birth Certificate is unchallenged. The complainant was born on the 2 nd August 2009 and the defilement is stated to have occurred on the 24 th January 2025. The complainant was thus clearly 15 years and 4 months. The trial magistrate did a commendable analysis of the same and I propose not to reproduce it here. The age of the complainant is thus not in dispute.
16. I have considered the submissions of the Appellant and the reliance on the decision in Hadson Ali Mwachango vs Republic CA (Mombasa) and the arguments of the court in that matter regarding the exact age of the victim of a sexual offence. In the present case, the complainant was born on 2 nd August, 2009. The offence was committed on 24 th January 2025. She was thus 15 years, 5 months and 22 days. As the Appellant would wish the court to side with him, the victim is not even past the half way mark to allow for the rounding off as he seeks to suggest in order to benefit from a lower sentence based on the minimum statutory sentences provided for under the Act.
17. There is no difficulty in finding the intent of the drafters of the statute in this regard. By placing bands on the age, it is clear that age was based on actual age, where the same is certain or estimated age, where the same is uncertain. In the present case, where the date of birth of the victim is known, 2 nd August 2009, then it is clear that she falls within the provisions of section 8(3) of the Act, between 12 and 15 years. The rules of interpretation would thus place any child from 12 years and one day to 15 years and 11 months and 29 days within that bracket. The victim herein fits within that bracket.
18. On the second limb of penetration, the trial court considered the evidence on record, both of the complainant and the Clinical Officer. This court is conscious of the settled principles as regards penetration. First, penetration can be partial or full. Either constitutes an offence. Secondly, the courts have consistently held that sexual offences are private offences and it is unlikely that there will always be witnesses to the offence. It is the reason the Evidence Act at Cap at section 124 allows a court, with reasons provided to convict on the evidence of the single witness, in this case the complainant.
19. In addition, in the present case, the medical evidence supported the evidence of the complainant, and the trial court went into details connecting the oral evidence of the complainant and the medical evidence adduced by the Clinical Officer. The complainant’s hymen was broken and as she testified the Appellant had previously defiled her and the complainant compelled by the Appellants mother to keep quiet about it. The court takes note that the hymen could be broken by other mechanisms but none was proffered by the Appellant during the trial.
20. More intriguingly, the complainant had the same infection as the Appellant. I do not deem that the same was a coincidence. The Appellant, in both the evidence at the trial and in his submissions in this appeal, has not rebutted the report by PW4 on having had an infection when he was examined 6 days after the alleged defilement.
21. The submissions by the Appellant that the trial court relied on the unsworn evidence of PW1 and PW2, who are minors, and relied on the dicta in Mercy Kajuju & Others vs Republic (2009) eKLR, Oloo vs Republic (2009) KLR and Johnson Muiruri vs Republic (1983) , on the probative value of unsworn evidence. These submissions need to be considered in light of the provisions of section 19 (1) of the Oaths and Statutory Declarations Act , that sets out the persons who may make statements on Oath. It states thus:
“ Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section ”.
22. The courts in thus applying this provisions of law have provided for courts before taking the evidence of children, especially those of tender years to undertake the voire dire proceedings to gauge the understanding of the witness on the purpose of an oath, and to undertake to state the truth, with the caveat for sanctions in the event of deliberate falsehoods by the minor witness as provided for under section 19 (2) of the said Act.
23. And who is a child of tender years? The courts have settled this with the pronouncement in J.O v. S.A.O [2016] eKLR, where tender years are stated to be 10 years and below. The witnesses herein were 15 and 17 years of age. Children yes but not of tender years. Children below 18 years are correctly taken through the voire dire process to test their understanding and that is what the court did. The law thus allows children to give unsworn evidence but the same is subjected to cross examination as happened herein. Section 19 (1) of the Oaths and Statutory Declarations Act, places value of that evidence, beyond the value contemplated in the cited cases of the Appellant.
24. Indeed, it is the Appellants unsworn evidence that falls within the ambit of the cited cases. It is noteworthy that the Appellant was not taken through cross examination and thus the value of his defence is very minimal.
25. On the aspect of the identification of the assailant, the witnesses created no doubt that the victim and the Appellant were known to each other. They are cousins. They had lived together for over one year. They were well known to each other. In that regard, the identity of the parties is a non-issue.
26. On the conviction of the Appellant, I find no fault in the analysis and conclusion reached by the trial Magistrate and I will uphold the same.
27. The Appellant has also asked the court to review the sentence of 30 years stating that the same was excessive in consideration of the offence and circumstances. The provisions of section 8(3) of the Sexual Offences Act, No. 3 of 2006 provide for a minimum sentence of 20 years upon conviction.
28. Before the trial Magistrate sentenced the Appellant, a pre- sentence and social inquiry report was prepared and presented to the court. Upon consideration of the same, the court meted out the sentence of 30 years, with effect from 25 th September 2025. The reports indicate that the Appellant was a 1 st Offender. The social inquiry report stated that the Appellant had no previous history of crime in the community and was a father of two young children. While lawful, I deem that the trial court should have provided reasons to support the enhancement from 20 years to 30 years. No reason was provided.
29. Noting the mitigation and the substance of the social inquiry report, I deem that the Appellant should benefit from the sentence lower than that imposed by the trial court. I will thus review the sentence from 30 years to 20 years, with effect from 25 th of September 2025.
30. The upshot is that the appeal succeeds only in part and I proceed to give the following orders:
a. The conviction of the accused for the offence of defilement contrary to section 8(3) of the Sexual Offences Act, No. 3 of 2006 is upheld.
b. The sentence of the Appellant of 30 years is reviewed and substituted with a sentence of 20 years.
Dated, signed and delivered virtually via Microsoft Teams thus 25 th Day of June, 2026 .
In the presence of:
No Appearance for the parties.
MIGORI HCCRA NO. E127 OF 2025 BEN OWUOR OTIENO VS REPUBLIC JUDGMENT Pg. 7