REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
MAKADARA HIGH COURT
CRIMINAL APPEAL NO. E089 OF 2025
BRIAN ODHIAMBO………………..…...…..……………APPLICANT
VERSUS
REPUBLIC…………………………….….………........…RESPONDENT
(Being an appeal from Original conviction and sentence in Criminal case no. E007 IOF 2025 of the Senior Principal Magistrate’s court at Winam)
JUDGMENT
1. The appellant in this case BRIAN ODHIAMBO was convicted on charges of defilement contrary to Section 8(i) as read with Section 8 (3) of the Sexual Offence Act Number 3 of 2006. The particulars are that on diverse dates between 25th January and 1st February 2025 at Ramula Sub-location, Muhoroni Sub County within Kisumu County the accused intentionally caused his genital organ (penis) to penetrate the genial area of B.A.O a child aged 15 years. On 8/9/2025 the appellant was sentenced to ten years’ imprisonment.
2. The appellant was dissatisfied with the conviction and filed a petition of appeal dated 17/09/2025. He listed the following grounds: -
i. That the learned trial magistrate erred in law and fact when he convicted the appellant without sufficient evidence to support the conviction.
ii. That the learned trial magistrate erred in law and facts when he relied on contradictory evidence to convict the appellant.
iii. That the learned trial magistrate erred in law and fact when he failed to warn himself first on the risk of convicting the appellant when some crucial witnesses did not testify.
iv. That the learned trial magistrate erred in law and fact when he made scientific conclusion and or relied on conjecture regarding penetration, with no supporting evidence thereby wrongly convicting the appellant.
v. That the learned trial magistrate erred in law and fact when he held that the complainant’s age was proved when in fact the evidence thereto was inconclusive.
vi. That the learned trial magistrate erred in law when he took into consideration extraneous matters and failed to take into account relevant facts thereby wrongly convicting the appellant.
vii. That the learned magistrate erred in law and fact when he failed to consider the defence of the accused person.
viii. That the learned magistrate erred in law and fact when he resolved doubts raised in the prosecution evidence in favour of the prosecution instead of the appellant thereby convicting the appellant.
ix. That the learned trial magistrate’s judgment was biased against the appellant
3. The first thing I note is that the grounds of appeal are prolix and repetitive. The challenge posed by repetition of grounds is that they tend to cloud the key issues for determination.
4. In the current appeal the many grounds are stating in different ways that the case was not proven to the required standard. That the charges were not proved beyond reasonable doubt.
5. The appeal was canvassed by way of written submissions. The appellant stated in his submissions that the three ingredients required to prove defilement that is age, penetration and positive identification had not been proved beyond reasonable doubt. He took issues with the manner of the arrest of his arrest. He finally submitted that the trial court did not give his defence due consideration.
6. The respondent briefly submitted in response that the case was proved beyond reasonable doubt and that the trial court applied the law to the facts. That the conviction was safe as the ingredients of defilement was proved to the require standard. That the appeal should be dismissed.
7. I am sitting as the first appellate court. My duty is well spelt out. I have to re- evaluate and re- examine the evidence tendered before the trial court and subject the same to a fresh analysis so as to arrive to an independent conclusion. The case of Okeno versus Republic (1972) EA by the Court of Appeal set out the duty as follows: -
‘An appellant on the first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala versus Republic (1957) EA 570). It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion. It must make its own findings and draw its own conclusion. Only then can it decide whether the Magistrate’s findings should be supported.
In doing so, it should make allowance from the fact that the trial court has had the advantage of hearing and seeing the witness see Peters versus Sunday Post (1958) E.A 424’
8. In a similar vein in Kiilu & Another versus Republic (2005) eKLR the Court of Appeal stated: -
‘An appellant on the first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion”.
9. To satisfy the duty, I will go through the evidence as taken by the trial court.
10. PW1 B.A introduced herself as a 16 years old girl stating that she was born in October 2009. That on 29/1/2025 at 4 pm she was at the appellant’s house. That she was taken there by the appellant and his friends forcefully. That she knew him as he was a neighbour. That she was locked inside the house and the appellant and his friends left. That when she woke up the following morning she found the appellant in bed. She stayed in the house up to 10 pm the following day. She told the court that she had sex with the appellant and on the second day at 9 pm the appellant used a condom. That it was the first time they had sex.
11. In cross –examination the complaint said that the appellant was arrested outside his house. That they were not lovers. That on that day she had gone to school.
12. PW2 Nicholas Ochieng Odoyo stated that the complainant was his daughter. He said that he was informed that the complainant had been abducted by the appellant and two others. He reported to police at Ombeyi Police post. He was later told that PW1 was in a certain house. PW2 visited the house with the area chief. They found PW1 locked inside the house belonged to the appellant. The appellant was outside the house armed with a panga. They rescued the complainant and arrested the appellant.
13. PW2 told the court that the appellant was somebody known to him. That the complainant was 15 years old. He relied on a birth certificate showing that she was born on 13/10/2009.
14. PW3 Erick Okoth Wambogo stated that he was a pastor. That he was informed about abduction of PW1 by PW2. He accompanied PW2 to report to the police. They also informed the area chief. He was present when the appellant was arrested. He told the court that it is the chief who broke the house and rescued the girl.
15. PW4 CPL Duke Nyasato was the investigating officer. He is the one who received the report of disappearance of the complainant. He also received the appellant when he was arrested. He took both the complainant and the appellant to Ahero Sub-county hospital. He charged as present. He produced a birth certificate showing date of birth as 13/10/2009.
16. The clinical officer was the last witness. He produced P3 and PRC forms. He said that the victim had history of defilement by a known person. On examination hymen was missing. It was an old scar. No infection was noted.
17. I note that PW1 was recalled for cross examination. She said that appellant was her boyfriend. That she stayed with him for two days. That she had known him for long.
18. On being part on his defence the appellant stated that the complainant was his friend. That they had been friends for three months. That he did not know that she was school going. That she was 18 by 21/12/2024. That they were together on 31/1/2025. He admitted that they stayed in the same house. That he was arrested by complainant’s father and one Eric. He complained about being arrested by a non-police officer. That he did not force the girl to go with him. He denied having sex with the complainant.
19. In cross examination he described the complainant as his lover of three months. That he sought to know whether she was under age.
20. Having laid out the evidence as above and having considered the appeal/petition and submissions by both side the issues for determination are: -
(a) Whether the charges were proven beyond reasonable doubt before the trial court.
21. Section 8(i) and (3) of the Sexual offence act provides as follows: -
‘8(i) A person who commits an act which causes penetration which is guilty of an offence termed as defilement
2………
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon convict to imprisonment for a term of not less than twenty years.
24. To found a conviction on a charge of defilement the prosecution was to prove certain settled ingredients. The first is whether the complainant is a child, the second is whether there was penetration of the complainant genitalia and thirdly whether the perpetrator is positively identified. In the case of Charles Wamukuya Karani vs Republic Criminal Appeal No. 72 of 2013 the court stated:
‘The critical ingredients forming the offence of defilement are age of the complainant, proof of penetration and positive identification of the assailant.’
25.I will subject the evidence on record to the three ingredients starting with age of the victim. Apart from the fact that defilement itself implies sexual relations with a child the sentence imposed under the Sexual offence act are dependent on the age of the victim. In the case of Alfayo Okello versus Republic (2010) eKLR the Court stated:
“In its wisdom parliament chose to categorize the gravity of that offence on the basis of the age of the victim and consequently the age of the victim as a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under Section 8 (1). Proof of age is a general fact in cases of defilement under Sexual Offences Act. It must be proved failing which the offence will not have been proved beyond reasonable doubt in material particulars.”
26. I have noted that the appellant raised issues with the age in his submissions. It is submitted that the victim was between 15 and 16 years at the time of the alleged offence. That Section 8(3) of the Act does not apply. Counsel talks about a lacuna in the law.
27.I have considered the record. The complainant stated that she was born in December 2009. She could not remember the exact date. Her father testified that she was born on 13/10/2009. He referred to the birth certificate. I note that the appellant tried to cast doubt on the birth certificate. The fact that it may have been issued after the incident does not invalidate it. There is no suggestion that the same is forged. Considering the date of the offence this would put her age at around 15 years 2 months. For purposes of the Sexual Offences Act and Children Act Cap 141 the victim was a child. Any sexual intercourse with her will amount to defilement whether 15 or 16 years old.
28.On the issue of penetration the complainant testified that during the night which she spent at the appellant persons house they had sex. At the time of her testimony she was a 16 years old girl. She told the court that the appellant was her boyfriend. The complainant was found at the appellant’s house. This evidence is uncontroverted.
29. PW5 the clinical officer examined the victim and noted that her hymen was broken. The appellant took issue with the absence of spermatozoa. As held in Mwangi versus Republic (1984) eKLR absence of spermatozoa is not proof that no penetration occurred. Sexual intercourse can occur without ejaculation. The appellant in his defence admitted that they spent the night together but denied having sex with the victim. I note that he was arrested at the scene when PW2 and PW3 went to rescue PW1. I am in agreement with the findings by the trial court that the penetration was proved to the required standard.
30. On identification the evidence on record shows clearly that the appellant was very well known to the victim and her father. He was arrested with the victim at the scene of crime. He is directly linked to the offence. I find no reason to disturb the finding of the trial court on identification.
31. My finding above on the ingredients lead me to conclude that the charges of defilement were proved beyond reasonable doubt. In the result the appeal herein is without merit. The conviction is safe. The appeal is hereby dismissed.
32. I note that there was no appeal against the sentence. The appellant was sentenced to ten years’ imprisonment. Under section 8(3) of the Sexual Offences Act it is provided;
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years”.
33. While there was some contention as to whether the victim was 16 years old and therefore falling under section 8(4) of the Act I note that this was not the finding of the trial court. The sentence of ten years is clearly without legal basis. I also note that the respondents have not raised any issue with the sentence. As a matter of fact, they support. No notice or application was made to have it enhanced. I will leave at that.
34. The final orders are that the appeal is hereby dismissed in its entirety. It is so ordered.
Delivered, dated and signed this ……12th……………..day of June 2026
Hon. A.K. Ithuku (Mr.)
JUDGE
…………………………………Prosecutor
…………………………………Appellant
…………………………………Court Assistant
Hon. A.K. Ithuku (Mr.)
JUDGE
IN THE HIGH COURT OF KENYA AT KISUMU
MAKADARA HIGH COURT
CRIMINAL APPEAL NO. E089 OF 2025
BRIAN ODHIAMBO………………..…...…..……………APPLICANT
VERSUS
REPUBLIC…………………………….….………........…RESPONDENT
(Being an appeal from Original conviction and sentence in Criminal case no. E007 IOF 2025 of the Senior Principal Magistrate’s court at Winam)
JUDGMENT
1. The appellant in this case BRIAN ODHIAMBO was convicted on charges of defilement contrary to Section 8(i) as read with Section 8 (3) of the Sexual Offence Act Number 3 of 2006. The particulars are that on diverse dates between 25th January and 1st February 2025 at Ramula Sub-location, Muhoroni Sub County within Kisumu County the accused intentionally caused his genital organ (penis) to penetrate the genial area of B.A.O a child aged 15 years. On 8/9/2025 the appellant was sentenced to ten years’ imprisonment.
2. The appellant was dissatisfied with the conviction and filed a petition of appeal dated 17/09/2025. He listed the following grounds: -
i. That the learned trial magistrate erred in law and fact when he convicted the appellant without sufficient evidence to support the conviction.
ii. That the learned trial magistrate erred in law and facts when he relied on contradictory evidence to convict the appellant.
iii. That the learned trial magistrate erred in law and fact when he failed to warn himself first on the risk of convicting the appellant when some crucial witnesses did not testify.
iv. That the learned trial magistrate erred in law and fact when he made scientific conclusion and or relied on conjecture regarding penetration, with no supporting evidence thereby wrongly convicting the appellant.
v. That the learned trial magistrate erred in law and fact when he held that the complainant’s age was proved when in fact the evidence thereto was inconclusive.
vi. That the learned trial magistrate erred in law when he took into consideration extraneous matters and failed to take into account relevant facts thereby wrongly convicting the appellant.
vii. That the learned magistrate erred in law and fact when he failed to consider the defence of the accused person.
viii. That the learned magistrate erred in law and fact when he resolved doubts raised in the prosecution evidence in favour of the prosecution instead of the appellant thereby convicting the appellant.
ix. That the learned trial magistrate’s judgment was biased against the appellant
3. The first thing I note is that the grounds of appeal are prolix and repetitive. The challenge posed by repetition of grounds is that they tend to cloud the key issues for determination.
4. In the current appeal the many grounds are stating in different ways that the case was not proven to the required standard. That the charges were not proved beyond reasonable doubt.
5. The appeal was canvassed by way of written submissions. The appellant stated in his submissions that the three ingredients required to prove defilement that is age, penetration and positive identification had not been proved beyond reasonable doubt. He took issues with the manner of the arrest of his arrest. He finally submitted that the trial court did not give his defence due consideration.
6. The respondent briefly submitted in response that the case was proved beyond reasonable doubt and that the trial court applied the law to the facts. That the conviction was safe as the ingredients of defilement was proved to the require standard. That the appeal should be dismissed.
7. I am sitting as the first appellate court. My duty is well spelt out. I have to re- evaluate and re- examine the evidence tendered before the trial court and subject the same to a fresh analysis so as to arrive to an independent conclusion. The case of Okeno versus Republic (1972) EA by the Court of Appeal set out the duty as follows: -
‘An appellant on the first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya versus Republic (1957) EA 336) and the appellate court own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala versus Republic (1957) EA 570). It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower courts finding and conclusion. It must make its own findings and draw its own conclusion. Only then can it decide whether the Magistrate’s findings should be supported.
In doing so, it should make allowance from the fact that the trial court has had the advantage of hearing and seeing the witness see Peters versus Sunday Post (1958) E.A 424’
8. In a similar vein in Kiilu & Another versus Republic (2005) eKLR the Court of Appeal stated: -
‘An appellant on the first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion”.
9. To satisfy the duty, I will go through the evidence as taken by the trial court.
10. PW1 B.A introduced herself as a 16 years old girl stating that she was born in October 2009. That on 29/1/2025 at 4 pm she was at the appellant’s house. That she was taken there by the appellant and his friends forcefully. That she knew him as he was a neighbour. That she was locked inside the house and the appellant and his friends left. That when she woke up the following morning she found the appellant in bed. She stayed in the house up to 10 pm the following day. She told the court that she had sex with the appellant and on the second day at 9 pm the appellant used a condom. That it was the first time they had sex.
11. In cross –examination the complaint said that the appellant was arrested outside his house. That they were not lovers. That on that day she had gone to school.
12. PW2 Nicholas Ochieng Odoyo stated that the complainant was his daughter. He said that he was informed that the complainant had been abducted by the appellant and two others. He reported to police at Ombeyi Police post. He was later told that PW1 was in a certain house. PW2 visited the house with the area chief. They found PW1 locked inside the house belonged to the appellant. The appellant was outside the house armed with a panga. They rescued the complainant and arrested the appellant.
13. PW2 told the court that the appellant was somebody known to him. That the complainant was 15 years old. He relied on a birth certificate showing that she was born on 13/10/2009.
14. PW3 Erick Okoth Wambogo stated that he was a pastor. That he was informed about abduction of PW1 by PW2. He accompanied PW2 to report to the police. They also informed the area chief. He was present when the appellant was arrested. He told the court that it is the chief who broke the house and rescued the girl.
15. PW4 CPL Duke Nyasato was the investigating officer. He is the one who received the report of disappearance of the complainant. He also received the appellant when he was arrested. He took both the complainant and the appellant to Ahero Sub-county hospital. He charged as present. He produced a birth certificate showing date of birth as 13/10/2009.
16. The clinical officer was the last witness. He produced P3 and PRC forms. He said that the victim had history of defilement by a known person. On examination hymen was missing. It was an old scar. No infection was noted.
17. I note that PW1 was recalled for cross examination. She said that appellant was her boyfriend. That she stayed with him for two days. That she had known him for long.
18. On being part on his defence the appellant stated that the complainant was his friend. That they had been friends for three months. That he did not know that she was school going. That she was 18 by 21/12/2024. That they were together on 31/1/2025. He admitted that they stayed in the same house. That he was arrested by complainant’s father and one Eric. He complained about being arrested by a non-police officer. That he did not force the girl to go with him. He denied having sex with the complainant.
19. In cross examination he described the complainant as his lover of three months. That he sought to know whether she was under age.
20. Having laid out the evidence as above and having considered the appeal/petition and submissions by both side the issues for determination are: -
(a) Whether the charges were proven beyond reasonable doubt before the trial court.
21. Section 8(i) and (3) of the Sexual offence act provides as follows: -
‘8(i) A person who commits an act which causes penetration which is guilty of an offence termed as defilement
2………
(3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon convict to imprisonment for a term of not less than twenty years.
24. To found a conviction on a charge of defilement the prosecution was to prove certain settled ingredients. The first is whether the complainant is a child, the second is whether there was penetration of the complainant genitalia and thirdly whether the perpetrator is positively identified. In the case of Charles Wamukuya Karani vs Republic Criminal Appeal No. 72 of 2013 the court stated:
‘The critical ingredients forming the offence of defilement are age of the complainant, proof of penetration and positive identification of the assailant.’
25.I will subject the evidence on record to the three ingredients starting with age of the victim. Apart from the fact that defilement itself implies sexual relations with a child the sentence imposed under the Sexual offence act are dependent on the age of the victim. In the case of Alfayo Okello versus Republic (2010) eKLR the Court stated:
“In its wisdom parliament chose to categorize the gravity of that offence on the basis of the age of the victim and consequently the age of the victim as a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under Section 8 (1). Proof of age is a general fact in cases of defilement under Sexual Offences Act. It must be proved failing which the offence will not have been proved beyond reasonable doubt in material particulars.”
26. I have noted that the appellant raised issues with the age in his submissions. It is submitted that the victim was between 15 and 16 years at the time of the alleged offence. That Section 8(3) of the Act does not apply. Counsel talks about a lacuna in the law.
27.I have considered the record. The complainant stated that she was born in December 2009. She could not remember the exact date. Her father testified that she was born on 13/10/2009. He referred to the birth certificate. I note that the appellant tried to cast doubt on the birth certificate. The fact that it may have been issued after the incident does not invalidate it. There is no suggestion that the same is forged. Considering the date of the offence this would put her age at around 15 years 2 months. For purposes of the Sexual Offences Act and Children Act Cap 141 the victim was a child. Any sexual intercourse with her will amount to defilement whether 15 or 16 years old.
28.On the issue of penetration the complainant testified that during the night which she spent at the appellant persons house they had sex. At the time of her testimony she was a 16 years old girl. She told the court that the appellant was her boyfriend. The complainant was found at the appellant’s house. This evidence is uncontroverted.
29. PW5 the clinical officer examined the victim and noted that her hymen was broken. The appellant took issue with the absence of spermatozoa. As held in Mwangi versus Republic (1984) eKLR absence of spermatozoa is not proof that no penetration occurred. Sexual intercourse can occur without ejaculation. The appellant in his defence admitted that they spent the night together but denied having sex with the victim. I note that he was arrested at the scene when PW2 and PW3 went to rescue PW1. I am in agreement with the findings by the trial court that the penetration was proved to the required standard.
30. On identification the evidence on record shows clearly that the appellant was very well known to the victim and her father. He was arrested with the victim at the scene of crime. He is directly linked to the offence. I find no reason to disturb the finding of the trial court on identification.
31. My finding above on the ingredients lead me to conclude that the charges of defilement were proved beyond reasonable doubt. In the result the appeal herein is without merit. The conviction is safe. The appeal is hereby dismissed.
32. I note that there was no appeal against the sentence. The appellant was sentenced to ten years’ imprisonment. Under section 8(3) of the Sexual Offences Act it is provided;
“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years”.
33. While there was some contention as to whether the victim was 16 years old and therefore falling under section 8(4) of the Act I note that this was not the finding of the trial court. The sentence of ten years is clearly without legal basis. I also note that the respondents have not raised any issue with the sentence. As a matter of fact, they support. No notice or application was made to have it enhanced. I will leave at that.
34. The final orders are that the appeal is hereby dismissed in its entirety. It is so ordered.
Delivered, dated and signed this ……12th……………..day of June 2026
Hon. A.K. Ithuku (Mr.)
JUDGE
…………………………………Prosecutor
…………………………………Appellant
…………………………………Court Assistant
Hon. A.K. Ithuku (Mr.)
JUDGE