REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. E054 OF 2025
BILL CLINTON AYOO OUMA..……………………………..APPELLANT
-VERSUS-
REPUBLIC………………………….. …..………………… RESPONDENT
JUDGMENT
1. The appellant Bill Clinton Ayoo Ouma, after full trial, convicted on the offence of defilement contrary to Section 8(i) as read with Section 8 (3) of the Sexual Offence Act No. 3 of 2006. He was sentenced to 20 years’ imprisonment on 20.6 2022.
2. Aggrieved by both the conviction and sentence the appellant prepared the appeal and listed the following grounds: -
(i) That the trial learned magistrate erred in both law and fact by failing to prove the aspect of medical evidence produced in term of examination, test carried and the amount of injuries inflicted.
(ii) That the trial learned magistrate erroneously failed to prove the formal evidence following the offence in question.
(iii) That the trial learned magistrate insubordinately (sic) conducted the case by failing to hatch (sic) the consonants of Article 50 (2) of our 2010 constitution.
(iv) That the trial magistrate erred in both law and fact by dismissing the defence of alibi thus cogent and sound.
(v) That the trial learned magistrate erred in both law and fact by failing to review the offence as null and void due to the poor and shoddy investigative element.
(vi) That the trial learned magistrate failed to consider that the appellant is/was a first offender, a stranger to the court proceedings discriminated during plea reading thus sentence meted was discretionary ambiguous.
3. This is a first appeal. At this stage my duty is to re-examine and re-evaluate the evidence tendered before the trial court. The court is expected to come to its own independent conclusion while bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence. The Court of Appel settled this in Okeno versus Republic (1977) EALR 32 and Mark Oiruri Mose versus Republic (2013) eKLR.
4. The trial court heard four witnesses called by the prosecution. In defence the appellant gave an un-sworn statement.
5. This appeal was canvassed by way of written submissions. The appellant by and large submitted that the state did not establish and prove the ingredients for defilement beyond reasonable doubt. He was of the view that the respondents case was riddled with contradictions that made it fall below the required standards of proof.
6. The respondent in their submissions went through the grounds of appeal and submitted that the formal ingredients of the offence of defilement were proved beyond reasonable doubt. It was further submitted that the trial court complied with Article 50 (2) (p) of the Constitution. That the appellant was accorded fair trial.
7. The respondent further dismissed the ground referring to alibi saying that the appellant did not give any particulars. That prosecution witnesses were credible.
8. I have considered the record of appeal and the submissions by the parties. As I consider and evaluate the evidence and record it is my duty to satisfy myself that the ingredients of the offence of defilement were proved beyond reasonable doubt.
9. The ingredients of the offence of defilement are proof of the age of the victim, proof of penetration and proof that the perpetrator was properly and positively identified.
10. On the age of complaint, she testified that she was 14 years old. The complainant’s mother produced a birth certificate showing that she was born in 18/11/2005. On 7/8/2020 when the incident is said to have occurred the complaint was 14 years 9 months old.
11. In this case, I do not find much dispute on the issue of age. I have seen in the appellant submissions oblique references to deception as to the age of the complaint. That she looked like an adult.
12. I have looked at the record. The appellant did not raise the defence either in cross-examination or his unsworn statement. This submission is without factual basis. It does not comply with the conditions set out under Section 8 (5) of the Sexual Offence Act.
13. In conclusion the prosecution proves to the required standard that the complaint fell with Section 8 (1) and 8 (3) of the Sexual Offence Act.
14. On penetration the complainant gave a testimony of how in a single day she was defiled by three different men. That on 7/8/2020 at around 3 pm she was defiled by two boda boda riders in turn. This was as she was looking for one Vin who had her school bag. She stated that she left Vin’s house and went to look for one Jerry who was a boda boda rider. She testified that as she looked for him she met the appellant.
15. It was her further testimony that the appellant took her home. That they took supper and went to bed. According to her she spent the night in the kitchen with the appellant while the appellant’s mother and sister slept in the main house. She said that they had what is recorded as ‘sexual intercourse’ once. That at around 2 am her father and other people went to the house. PW1 testified that she slept in that house till morning.
16. PW3 Nelson Mandela Opolo a clinical officer produced a P3 form filled by Olivia Omondi. On examination the clinical officer noted that the hymen was broken. She made a conclusion that there was evidence of recent sexual intercourse and therefore defilement.
17. The complainant’s testimony taken together with the medical report established that the complainant was penetrated as defined under Section 2 of the Sexual Offence Act. I note that the appellant referred to the part by evidence where complainant said that the appellant did not touch her private parts. Penetration is not touching. She clearly said, that they had sexual intercourse once. This is a 14year old. She knew what sexual intercourse meant. This ingredient was established.
18. As to whether the perpetrator was identified I have noted above that the complainant told the court of a defilement by two other men earlier in the day. Those two are not subject of this case. The accused is a person well known to the complaint. She stated that they spent night together. That they had what she called sexual intercourse. That the appellant used condom. That the following day she was escorted to bus stage by the appellant’s sister and given fare.
19. I note that the appellant pleaded alibi and Section 8 (5) of the Sexual Offence Act simultaneously. This is contradictory. Either he was with the victim and thought she was an adult or he was not at the scene at all. It cannot be both.
20. My analysis of the evidence on the identification is that the complainant was talking about someone well known to her. She went with him to his house and they had coitus. It is therefore proved to the required standard that the appellant is the one who penetrated the complainant. He was properly and positively identified.
21. The three ingredients have been proved. I note that the appellant raised a complaint that the trial court violated Article 50 (2) (p) of the constitution. This provides for the right to adduce and challenge evidence. The record shows that the appellant was present throughout the trial. He got the opportunity to cross examine witnesses having been supplied with witness statements and copies of exhibits.
22. The appellant was given the chance to defend himself. He opted to testify unsworn. As submitted by the respondent the appellant was not specific on which right and exactly how it was violated. I find that this ground of appeal is unsubstantiated. The same is dismissed.
23. In the result and for reasons given above the appeal on conviction is one without merits. It is hereby dismissed.
24. The appellant raised issues with the sentence imposed. He stated that the learned magistrate did not consider that he was a first offender. The Sexual Offences Act provides a minimum sentence of 20 years where one is convicted under Section 8(1) and (3) of the Act. The trial court had no discretion on the minimum sentence. It could have been higher. He was sentenced to the minimum sentence available. This was after the trial court considered his plea in mitigation and the pre-sentence report. No notice was given to enhance the sentence. I find no reason to interfere with the sentence given. The appeal on sentence is accordingly dismissed.
25. In conclusion the appeal is hereby dismissed in its entirety. Orders accordingly.
DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…10 TH DAY OF JULY… .. 2026.
HON. ALEX. K. ITHUKU
JUDGE
Ms. Onyango for the state.
The appellant appearing virtually from Kisumu Maximum Prison.
Mr. Gitonga – Court Assistant
HON. ALEX. K. ITHUKU
JUDGE
6 | Page KISUMU HCCA E054 OF 2025
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. E054 OF 2025
BILL CLINTON AYOO OUMA..……………………………..APPELLANT
-VERSUS-
REPUBLIC………………………….. …..………………… RESPONDENT
JUDGMENT
1. The appellant Bill Clinton Ayoo Ouma, after full trial, convicted on the offence of defilement contrary to Section 8(i) as read with Section 8 (3) of the Sexual Offence Act No. 3 of 2006. He was sentenced to 20 years’ imprisonment on 20.6 2022.
2. Aggrieved by both the conviction and sentence the appellant prepared the appeal and listed the following grounds: -
(i) That the trial learned magistrate erred in both law and fact by failing to prove the aspect of medical evidence produced in term of examination, test carried and the amount of injuries inflicted.
(ii) That the trial learned magistrate erroneously failed to prove the formal evidence following the offence in question.
(iii) That the trial learned magistrate insubordinately (sic) conducted the case by failing to hatch (sic) the consonants of Article 50 (2) of our 2010 constitution.
(iv) That the trial magistrate erred in both law and fact by dismissing the defence of alibi thus cogent and sound.
(v) That the trial learned magistrate erred in both law and fact by failing to review the offence as null and void due to the poor and shoddy investigative element.
(vi) That the trial learned magistrate failed to consider that the appellant is/was a first offender, a stranger to the court proceedings discriminated during plea reading thus sentence meted was discretionary ambiguous.
3. This is a first appeal. At this stage my duty is to re-examine and re-evaluate the evidence tendered before the trial court. The court is expected to come to its own independent conclusion while bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence. The Court of Appel settled this in Okeno versus Republic (1977) EALR 32 and Mark Oiruri Mose versus Republic (2013) eKLR.
4. The trial court heard four witnesses called by the prosecution. In defence the appellant gave an un-sworn statement.
5. This appeal was canvassed by way of written submissions. The appellant by and large submitted that the state did not establish and prove the ingredients for defilement beyond reasonable doubt. He was of the view that the respondents case was riddled with contradictions that made it fall below the required standards of proof.
6. The respondent in their submissions went through the grounds of appeal and submitted that the formal ingredients of the offence of defilement were proved beyond reasonable doubt. It was further submitted that the trial court complied with Article 50 (2) (p) of the Constitution. That the appellant was accorded fair trial.
7. The respondent further dismissed the ground referring to alibi saying that the appellant did not give any particulars. That prosecution witnesses were credible.
8. I have considered the record of appeal and the submissions by the parties. As I consider and evaluate the evidence and record it is my duty to satisfy myself that the ingredients of the offence of defilement were proved beyond reasonable doubt.
9. The ingredients of the offence of defilement are proof of the age of the victim, proof of penetration and proof that the perpetrator was properly and positively identified.
10. On the age of complaint, she testified that she was 14 years old. The complainant’s mother produced a birth certificate showing that she was born in 18/11/2005. On 7/8/2020 when the incident is said to have occurred the complaint was 14 years 9 months old.
11. In this case, I do not find much dispute on the issue of age. I have seen in the appellant submissions oblique references to deception as to the age of the complaint. That she looked like an adult.
12. I have looked at the record. The appellant did not raise the defence either in cross-examination or his unsworn statement. This submission is without factual basis. It does not comply with the conditions set out under Section 8 (5) of the Sexual Offence Act.
13. In conclusion the prosecution proves to the required standard that the complaint fell with Section 8 (1) and 8 (3) of the Sexual Offence Act.
14. On penetration the complainant gave a testimony of how in a single day she was defiled by three different men. That on 7/8/2020 at around 3 pm she was defiled by two boda boda riders in turn. This was as she was looking for one Vin who had her school bag. She stated that she left Vin’s house and went to look for one Jerry who was a boda boda rider. She testified that as she looked for him she met the appellant.
15. It was her further testimony that the appellant took her home. That they took supper and went to bed. According to her she spent the night in the kitchen with the appellant while the appellant’s mother and sister slept in the main house. She said that they had what is recorded as ‘sexual intercourse’ once. That at around 2 am her father and other people went to the house. PW1 testified that she slept in that house till morning.
16. PW3 Nelson Mandela Opolo a clinical officer produced a P3 form filled by Olivia Omondi. On examination the clinical officer noted that the hymen was broken. She made a conclusion that there was evidence of recent sexual intercourse and therefore defilement.
17. The complainant’s testimony taken together with the medical report established that the complainant was penetrated as defined under Section 2 of the Sexual Offence Act. I note that the appellant referred to the part by evidence where complainant said that the appellant did not touch her private parts. Penetration is not touching. She clearly said, that they had sexual intercourse once. This is a 14year old. She knew what sexual intercourse meant. This ingredient was established.
18. As to whether the perpetrator was identified I have noted above that the complainant told the court of a defilement by two other men earlier in the day. Those two are not subject of this case. The accused is a person well known to the complaint. She stated that they spent night together. That they had what she called sexual intercourse. That the appellant used condom. That the following day she was escorted to bus stage by the appellant’s sister and given fare.
19. I note that the appellant pleaded alibi and Section 8 (5) of the Sexual Offence Act simultaneously. This is contradictory. Either he was with the victim and thought she was an adult or he was not at the scene at all. It cannot be both.
20. My analysis of the evidence on the identification is that the complainant was talking about someone well known to her. She went with him to his house and they had coitus. It is therefore proved to the required standard that the appellant is the one who penetrated the complainant. He was properly and positively identified.
21. The three ingredients have been proved. I note that the appellant raised a complaint that the trial court violated Article 50 (2) (p) of the constitution. This provides for the right to adduce and challenge evidence. The record shows that the appellant was present throughout the trial. He got the opportunity to cross examine witnesses having been supplied with witness statements and copies of exhibits.
22. The appellant was given the chance to defend himself. He opted to testify unsworn. As submitted by the respondent the appellant was not specific on which right and exactly how it was violated. I find that this ground of appeal is unsubstantiated. The same is dismissed.
23. In the result and for reasons given above the appeal on conviction is one without merits. It is hereby dismissed.
24. The appellant raised issues with the sentence imposed. He stated that the learned magistrate did not consider that he was a first offender. The Sexual Offences Act provides a minimum sentence of 20 years where one is convicted under Section 8(1) and (3) of the Act. The trial court had no discretion on the minimum sentence. It could have been higher. He was sentenced to the minimum sentence available. This was after the trial court considered his plea in mitigation and the pre-sentence report. No notice was given to enhance the sentence. I find no reason to interfere with the sentence given. The appeal on sentence is accordingly dismissed.
25. In conclusion the appeal is hereby dismissed in its entirety. Orders accordingly.
DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…10 TH DAY OF JULY… .. 2026.
HON. ALEX. K. ITHUKU
JUDGE
Ms. Onyango for the state.
The appellant appearing virtually from Kisumu Maximum Prison.
Mr. Gitonga – Court Assistant
HON. ALEX. K. ITHUKU
JUDGE
6 | Page KISUMU HCCA E054 OF 2025