( Being an appeal from the conviction and sentence in Migori MCSO Case No. E047 of 25 vide a judgement delivered by Hon. Angela Munyuny Senior Resident Magistrate, on 23 rd October, 2025)
JUDGMENT
INTRODUCTION
1. The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act , No. 3 of 2006. The particulars of the that the Appellant on the 8 th day of July, 2024 at PINY Owacho Village, Central Kanyamkago location Uriri Sub County in Migori County within the Republic of Kenya intentionally and unlawfully caused your penis to penetrate to vagina of M.A a girl aged Nine (9) years .
2. The appellant was charged with an Alternative count of committing 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 were that the appellant, on the 8 th day of July, 2024 at Piny Owacho Village, Central Kanyamkago Location, Uriri sub county in Migori County within the Republic of Kenya willfully and unlawfully caused contact with your hands and Penis to the breasts, vagina and thighs of M.A a girl aged (9) years.
3. The appellant was informed of his rights under Article 50 of the Constitution at the commencement of the suit which he informed Court that he understood and he opted to proceeded by way of self-representation. The Appellant was eventually convicted of the offence of defilement and was sentenced to life imprisonment.
4. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
a) That the learned trial magistrate erred in law and fact by failing to appreciate the material contradiction in the case of the prosecution.
b) That the learned trial magistrate erred in law and fact by failing to give reasons why she believed the victim where there was no corroboration.
c) That the learned trial court erred in law and fact by failing to consider there was bad blood between the parties.
d) That the learned trial magistrate erred in law and fact by failing to consider the defence of the accused.
e) That the learned trial magistrate erred in law and fact by meting out excessive sentence of life imprisonment against a first offender .
5. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 14 th May, 2026. The Respondent, through the Office of the Director of Public Prosecutions, likewise filed written submissions dated 9 th day of May, urging this Court to dismiss the appeal and uphold both the conviction and the sentence stating that the sentence meted by the trial court was within the jurisdiction of the said trial court.
6. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different” .
7. This duty was also articulated by the former Court of Appeal for East Africa in Okeno v Republic [1972] EA 32
ISSUES FOR DETERMINATION
8. Having considered the Petition of Appeal, the record of the trial court, and the rival submissions, the following issues arise for determination;
a) Whether the age of the complainant was proved beyond reasonable doubt.
b) Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
c) Whether the Appellant was positively identified as the perpetrator of the Offence.
d) Whether there was contradiction in the prosecution case?
e) Whether the Appellant’s defence was considered by the trial court.
f) Whether the sentence imposed was harsh, excessive, or unlawful .
ANALYSIS & DETERMINATION
9. On whether the Age of the Complainant was proved, the Court takes note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position was stated in George Opondo Olunga vs. Republic (2016) e KLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice .”
10. The victim in this case is said to be a Nine (9) years Minor. This is as indicated by the Charge Sheet. Further a birth certificate was produced showing that the minor was born on the 20 th day of May, 2015. The offence was allegedly committed on the 8 th July 2024. The complainant had just celebrated her 9 th birthday but was below 10 years of age.
11. The age stated in the charge sheet was therefore an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant well around the age of Nine (9) years. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed.
12. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
13. On whether Penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
14. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
15. In the present case, the Doctor, who testified before Court as PW6 informed the trial Court that upon conducting some test the doctor found that there were no spermatozoa but epithelial cells were seen, on physical examination there was freshly torn hymen with redness around the genetalia and discomfort during the physical examination. There was also blood like stain on the undergarments. The doctor also observed that there was redness on the labia majora and minora and lastly there was white discharge and tenderness upon the doctor conducting high vaginal swab.
16. In light of the statutory definition and the binding authority of the Court of Appeal. The medical findings were consistent with partial penetration within the meaning of section 2 of the Act. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
17. On the issue of Identification of the Appellant, the complainant referred to the assailant as “Deno” and she further stated that the Appellant was grazing cattle’s and that he works for her grandmother who lived nearby. This is evident that the Appellant was well known to the Complainant. To further buttress the above, the Appellant while testifying confirmed that he knew the Complainant as well.
18. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other ”
19. The court is satisfied that the appellant was recognized by the minor, who knew him. Consequently, it was provided that the appellant was the perpetrator. In the circumstances of this case, the prosecution evidence sufficiently established the elements of the offence.
20. On the issue of contradiction in the prosecution’s case, the court has perused the trial court proceedings. Although corroboration is not a mandatory requirement in sexual offences by virtue of Section 124 of the Evidence Act, the evidence on record was, in any event, materially corroborated. The medical evidence confirmed injuries consistent with the complainant's account, while the testimony of the other prosecution witnesses regarding the events immediately before and after the incident lent further support to the complainant's narrative. The consistency between the complainant's testimony and the surrounding circumstantial and medical evidence reinforces the credibility of the prosecution's case and leaves no reasonable doubt as to the appellant's guilt.
21. Accordingly, the Court is persuaded that the evidence of recognition was reliable and safely formed the basis of the conviction and I so hold.
22. On the issue of whether the Appellants defence was considered, the Appellant's defence was duly considered. It is noteworthy that the allegation of bad blood between the Appellant and the Complainant's mother was raised for the first time at the defence stage. The Appellant contended that the alleged animosity stemmed from his former employment, where he had worked for two years under his employer, who was the mother-in-law of the Complainant's mother. However, this assertion was not put to any of the prosecution witnesses during cross-examination, nor was any independent evidence adduced to substantiate the alleged grudge.
23. Consequently, I am persuaded that the allegation remained a mere assertion incapable of displacing the prosecution's evidence.
24. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was harsh and excessive.
25. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below and the Appellant was sentenced to life imprisonments.
26. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [ 2024] KESC 34 (KLR ) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful.
27. Consequently, by law, a person convicted of defilement under section 8(1) as read with 8(2) of the Sexual Offences Act, ought to be sentenced to the mandatory life imprisonment. Any term sentence will be unlawful.
28. Accordingly, this court finds no basis for interfering with the sentence.
DISPOSITION
29. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction was sound and the sentence lawful.
b) The appeal against both conviction and sentence is dismissed in its entirety.
c) The sentence of imposed by the trial court is hereby affirmed .
It is so ordered
Dated, signed and delivered virtually via Microsoft Teams thus 6 th Day of August 2026.
HCCRA NO. E123 OF 2025 DENISH OTIENO VS REPUBLIC JUDGMENT Pg. 2
JUDGMENT
INTRODUCTION
1. The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act , No. 3 of 2006. The particulars of the that the Appellant on the 8 th day of July, 2024 at PINY Owacho Village, Central Kanyamkago location Uriri Sub County in Migori County within the Republic of Kenya intentionally and unlawfully caused your penis to penetrate to vagina of M.A a girl aged Nine (9) years .
2. The appellant was charged with an Alternative count of committing 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 were that the appellant, on the 8 th day of July, 2024 at Piny Owacho Village, Central Kanyamkago Location, Uriri sub county in Migori County within the Republic of Kenya willfully and unlawfully caused contact with your hands and Penis to the breasts, vagina and thighs of M.A a girl aged (9) years.
3. The appellant was informed of his rights under Article 50 of the Constitution at the commencement of the suit which he informed Court that he understood and he opted to proceeded by way of self-representation. The Appellant was eventually convicted of the offence of defilement and was sentenced to life imprisonment.
4. The appellant was aggrieved by the conviction and filed this appeal. He set out the following grounds of appeal:
a) That the learned trial magistrate erred in law and fact by failing to appreciate the material contradiction in the case of the prosecution.
b) That the learned trial magistrate erred in law and fact by failing to give reasons why she believed the victim where there was no corroboration.
c) That the learned trial court erred in law and fact by failing to consider there was bad blood between the parties.
d) That the learned trial magistrate erred in law and fact by failing to consider the defence of the accused.
e) That the learned trial magistrate erred in law and fact by meting out excessive sentence of life imprisonment against a first offender .
5. The appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 14 th May, 2026. The Respondent, through the Office of the Director of Public Prosecutions, likewise filed written submissions dated 9 th day of May, urging this Court to dismiss the appeal and uphold both the conviction and the sentence stating that the sentence meted by the trial court was within the jurisdiction of the said trial court.
6. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:
“ On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different” .
7. This duty was also articulated by the former Court of Appeal for East Africa in Okeno v Republic [1972] EA 32
ISSUES FOR DETERMINATION
8. Having considered the Petition of Appeal, the record of the trial court, and the rival submissions, the following issues arise for determination;
a) Whether the age of the complainant was proved beyond reasonable doubt.
b) Whether penetration, within the meaning of section 2 of the Sexual Offences Act was proved.
c) Whether the Appellant was positively identified as the perpetrator of the Offence.
d) Whether there was contradiction in the prosecution case?
e) Whether the Appellant’s defence was considered by the trial court.
f) Whether the sentence imposed was harsh, excessive, or unlawful .
ANALYSIS & DETERMINATION
9. On whether the Age of the Complainant was proved, the Court takes note that the offence of defilement is constituted by three essential ingredients, namely proof that the complainant was a minor, proof of penetration, and proof of the identity of the perpetrator. This position was stated in George Opondo Olunga vs. Republic (2016) e KLR and reiterated in John Mutua Munyoki v Republic [2017] eKLR , which held that:
“ For an offence of defilement to be committed, the prosecution must prove each of the following ingredients: The victim must be a minor, there must be penetration of the genital organ by the accused and such penetration need not be complete or absolute. The partial penetration will suffice .”
10. The victim in this case is said to be a Nine (9) years Minor. This is as indicated by the Charge Sheet. Further a birth certificate was produced showing that the minor was born on the 20 th day of May, 2015. The offence was allegedly committed on the 8 th July 2024. The complainant had just celebrated her 9 th birthday but was below 10 years of age.
11. The age stated in the charge sheet was therefore an approximation and was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant well around the age of Nine (9) years. Consequently, the charge of defilement under section 8(1) as read with section 8(2) of the Sexual Offences Act was properly framed.
12. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the charge as laid was lawful and appropriate.
13. On whether Penetration was proved, penetration is defined under section 2 of the Sexual Offences Act as the partial or complete insertion of the genital organs of a person into the genital organs of another person.
14. The Court of Appeal in Mark Oiruri Mose v Republic [2013] KECA 67 (KLR ) authoritatively held that penetration need not be deep and that even surface or partial penetration is sufficient to establish this ingredient of the offence.
15. In the present case, the Doctor, who testified before Court as PW6 informed the trial Court that upon conducting some test the doctor found that there were no spermatozoa but epithelial cells were seen, on physical examination there was freshly torn hymen with redness around the genetalia and discomfort during the physical examination. There was also blood like stain on the undergarments. The doctor also observed that there was redness on the labia majora and minora and lastly there was white discharge and tenderness upon the doctor conducting high vaginal swab.
16. In light of the statutory definition and the binding authority of the Court of Appeal. The medical findings were consistent with partial penetration within the meaning of section 2 of the Act. I accordingly find that the prosecution proved the element of penetration beyond reasonable doubt.
17. On the issue of Identification of the Appellant, the complainant referred to the assailant as “Deno” and she further stated that the Appellant was grazing cattle’s and that he works for her grandmother who lived nearby. This is evident that the Appellant was well known to the Complainant. To further buttress the above, the Appellant while testifying confirmed that he knew the Complainant as well.
18. The minor did not just do identification but recognition. On identification, in Anjoroni v Republic 1980 KLR 59 the court thus:
“ Recognition of an assailant is mere satisfactory, mere assenting, and mere variable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other ”
19. The court is satisfied that the appellant was recognized by the minor, who knew him. Consequently, it was provided that the appellant was the perpetrator. In the circumstances of this case, the prosecution evidence sufficiently established the elements of the offence.
20. On the issue of contradiction in the prosecution’s case, the court has perused the trial court proceedings. Although corroboration is not a mandatory requirement in sexual offences by virtue of Section 124 of the Evidence Act, the evidence on record was, in any event, materially corroborated. The medical evidence confirmed injuries consistent with the complainant's account, while the testimony of the other prosecution witnesses regarding the events immediately before and after the incident lent further support to the complainant's narrative. The consistency between the complainant's testimony and the surrounding circumstantial and medical evidence reinforces the credibility of the prosecution's case and leaves no reasonable doubt as to the appellant's guilt.
21. Accordingly, the Court is persuaded that the evidence of recognition was reliable and safely formed the basis of the conviction and I so hold.
22. On the issue of whether the Appellants defence was considered, the Appellant's defence was duly considered. It is noteworthy that the allegation of bad blood between the Appellant and the Complainant's mother was raised for the first time at the defence stage. The Appellant contended that the alleged animosity stemmed from his former employment, where he had worked for two years under his employer, who was the mother-in-law of the Complainant's mother. However, this assertion was not put to any of the prosecution witnesses during cross-examination, nor was any independent evidence adduced to substantiate the alleged grudge.
23. Consequently, I am persuaded that the allegation remained a mere assertion incapable of displacing the prosecution's evidence.
24. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was harsh and excessive.
25. Section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment where the victim is aged eleven years or below and the Appellant was sentenced to life imprisonments.
26. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [ 2024] KESC 34 (KLR ) the Supreme Court reaffirmed the legality of the mandatory minimum sentences in the Sexual Offences Act holding that for as long as section 8 of the Sexual Offences Act remain valid, the various mandatory minimum sentences therein remain lawful.
27. Consequently, by law, a person convicted of defilement under section 8(1) as read with 8(2) of the Sexual Offences Act, ought to be sentenced to the mandatory life imprisonment. Any term sentence will be unlawful.
28. Accordingly, this court finds no basis for interfering with the sentence.
DISPOSITION
29. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction was sound and the sentence lawful.
b) The appeal against both conviction and sentence is dismissed in its entirety.
c) The sentence of imposed by the trial court is hereby affirmed .
It is so ordered
Dated, signed and delivered virtually via Microsoft Teams thus 6 th Day of August 2026.
HCCRA NO. E123 OF 2025 DENISH OTIENO VS REPUBLIC JUDGMENT Pg. 2