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JudgmentEVANS OMBATI ONG'AYO VS The Republic3 min read

EVANS OMBATI ONG'AYO VS The Republic

High Court at Kisii High Court · · Anne Ong'injo


The Appellant Evans Ombati Ong’ayo was charged in Ogembo Magistrate Court Sexual Offence case No. E077 of 2022 with the offence of Defilement Contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No. 3 of 2006.

Particulars were that on diverse dates between 1st July 2022 and 27th August 2022 at Endereti Village in Kenyenya Sub-County within Kisii County intentionally caused his penis to penetrate the vagina of D.K. a child aged 15 years.

The Appellant was convicted and sentenced to serve 10 years jail term for reasons he had taken advantage of a minor and got her pregnant.

The Appellant preferred the Appeal on the grounds that:-

  1. The offence of defilement was not proved beyond all reasonable doubt.
  2. That the trial Magistrate erred in sentencing him to 30 years without considering that the investigations conducted in this case was scanty and shady which could not be used to secure conviction.
  3. That the Medical Report tendered before the trial court was malice which was only generated in order to fix him.
  4. That the trial Magistrate erred in law and facts by convicting the Appellant to serve a huge and punitive sentence of 10 years without considering his age and academics, bearing in mind that he was a school going boy in form 4 thus asking the court to review the finding of the Lower Court in the interest of justice.
  5. That the learned Magistrate erred in both law and facts by convicting the Appellant to 10 years despite glaring contradictions.
  6. The Appellant prayed to be served with records of the trial court to enable him raise more grounds of appeal and he wished to be present during trial.

Directions were taken on 7/10/2024 for hearing of the Appeal by way of written submissions whereas the Respondents counsel filed submissions dated 15/11/2024 together with notice of enhancement of sentence dated 15/11/2024 opposing the Appeal, the Appellant did not file any submissions. When the Appeal   came up for hearing the appellant submitted orally that he was not of appeal against convictions but only prayed that his sentence be reviewed.  He said he was 22 years old and that he has just completed form IV when he was arrested.

PW5 the complainant in her evidence in court confirmed that  the Appellant had done his KCSE exam by the time he was arrested.  She said that the Appellant was her boyfriend and that she stayed with him in their home from April, 2022 to August 2022 and she got pregnant and delivered a baby who was 5 years by the time she testified on 13.3.2023.

In his defence the Appellant said the complainant was his girlfriend and he did not know that she was a student.

The trial magistrate, found all the ingredients of the offence of defilement had been proved but did not address the Appellants defence under Section 8 (5) of the Sexual Offences Act, that he did not know that the Complainant was a student. I do find that the conviction in the absence of the court dressing the defence in consideration  that the Appellant and  complainant engaged  in consensual sexual  intercourse was unsafe.  PW5’s parents left her under the care of her sister PW1 and for 4 months she cohabited willingly with the Appellant who had  just sat for his form 4  examinations.

The conviction is unsafe, the same is quashed and sentence set aside.  The Appellant to be set at liberty forthwith.

DELIVERED, DATED and SIGNED at MIGORI this 10th day of January, 2025.

    EVANS OMBATI ONG'AYO VS The Republic EVANS OMBATI ONG'AYO VS The Republic