(Being an Appeal from the Judgment of Hon. S. Mutava in Migori Law Courts MCSO No. E028 of 2024)
1. The Appellant was charged 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. He equally faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
2. The particulars of the offence were that on diverse dates between March and April, 2024, at Kanyawanga Sub- location, South West Kamagambo location, Rongo Sub-County within Migori County, intentionally and unlawfully caused his penis to penetrate into the vagina of L.A.A a female child aged 14 years.
3. The appellant was found guilty as charged, convicted and sentenced to 30 years imprisonment and discharged on the alternative charge. Being dissatisfied with the conviction and sentence, he instituted the present appeal based on the following grounds:
(i) That the trial court erred in law and fact by failing to comply with the provisions of Article 50(2)(h) of the Constitution.
(ii) That the trial court erred in law and fact by not observing that the ingredients of the offence herein were not proved to the required standard in law and fact.
4. He filed his written submissions dated 9 th March, 2026 while those of the respondent are dated 14 th May, 2026. The judgment herein is based on the written submissions which both parties relied upon in their entirety. I do not need to reproduce verbatim.
5. This being the first appellate court, this Court will re-evaluate and analyse the evidence adduced in the trial court for this court to come up with an independent conclusion. In doing so, this court bears in mind that, unlike the trial court, it did not have the opportunity of observing the demeanour of the witnesses as they testified. See Okeno vs. Republic [1972] E.A 32.
6. This court has carefully considered the petition of appeal, and grounds of appeal, appellant’s written submissions as well as those of the respondent, the proceedings before the trial court and the judgment as well as the evidence on record and come up with the following issues for determination-
(i) Whether or not the trial court complied with Article 50(2) (g) (h) of the Constitution;
(ii) Whether the prosecution proved its case beyond reasonable doubt considering the ingredients of defilement; and
(iii) Whether or not the sentence meted upon the appellant by the trial Court was lawful, harsh or excessive in the circumstances.
7. On w hether or not the trial Court complied with Article 50(2)(g) and (h) of the Constitution , the appellant averred that the trial court did not meet the requirements of Article 50(2)(g) and (h) of the Constitution. A perusal of the proceedings show that the appellant was informed by the trial court of his right to legal representation of his choice. He was also informed that he was entitled to apply to the Legal Aid Board for assistance should he desire.
8. From the court record, the appellant chose to represent himself when he took plea on 2 nd September, 2024. The appellant proceeded with the trial and he did not demonstrate that he requested to be provided with legal representation or that his request was declined and/or demonstrate that he was likely to suffer substantial injustice if he proceeded without legal representation. He was able to follow proceedings and effectively cross- examined witnesses.
9. For the reasons stated above, this Court is satisfied that failure to have legal representation throughout the trial did not prejudice the appellant in this case. The appellant’s constitutional and fundamental right to legal representation under Article 50(2)(g) and (h) of the Constitution were not violated.
10. On whether or not the prosecution proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court will consider the ingredients of the offence of defilement as settled in in the case of George Opondo Olunga vs Republic [2016] eKLR under the following distinct heads.
A. Age
11. The appellant did not submit on the issue of age. On its part, the respondent placed reliance on the Court of Appeal decision in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR where the court stated as follows i n respect of proving the age of a victim in cases of defilement:
“ ... the question of prove of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable."
12. The Sexual Offences Rules of Court, 2014 under Rule 4 provides that-
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.”
13. In this particular case a valid birth certificate serial No. 001152016 was produced as Prosecution Exhibit l, showing that PW1 was born on 06/03/2010. She was therefore 14 years of age at the time of the incident and within the delimitation of the law hence proving the element of age as set under 8 subsection 3 of the Sexual Offences Act.
14. The Appellant did not challenge the production of the birth certificate and did not rebut the said evidence by adducing any evidence to the contrary, and therefore, this court is satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at the time of the incident.
B. Identification
15. The Appellant did not submit on this issue. The Respondent on its part submitted that the Appellant was a person well known to the complainant. She knew him as “Awasi”. She was living with her family in the appellant’s compound, and she used to go sleep in his house with his daughter Saifin. PW3, the mother of the complainant, also stated that she had taken her daughter, PWI to the Appellant's home in the months of March and April to sleep there since they were living with the other family members in a single room. She affirmed that PWI was at the Appellant's home for three months. The appellant is known to her as Baba Fidel. From the said witnesses, PWI and PW2 it is safe to conclude that proper identification of the perpetrator was done.
16. A perusal of the proceedings indicate that PW 1 testified that she used to sleep in the appellant’s home together with his 6-year-old daughter Saifin. She recounted that on three different occasions, the appellant would sneak into her bed where he would defile her and would threaten to harm her .
17. She further testified that she stopped sleeping at the appellant’s home when his wife left. She informed the court that the incident came to light when her mother asked her about her pregnancy. She stated that she chose to keep quiet because the appellant had threatened to harm her.
18. Under cross-examination, PW1 maintained that she did not report the incident because the appellant had threatened to harm her. She further stated the appellant is known by the community members as short-tempered person who is capable of killing.
19. From the evidence on record, PW 1 and her family knew the appellant. They lived in the same compound and PW1 had been sleeping at the appellant’s home with his daughter. She could not have mistaken his identity. The Appellant did not dispute this fact.
20. From the foregoing, this court comes to a conclusion that the prosecution proved the ingredient of identification of the perpetrator beyond any reasonable doubt.
C. Penetration
21. The Appellant contended that there was no conclusive proof that he was responsible for the complainant’s pregnancy. He lamented that he remained in custody for five months following an application by the prosecution to have a DNA test carried out at Kisumu Government chemist to establish the paternity of the complainant’s child. He stated that out of flimsy reasons, the DNA test was never carried out. He cited the provisions of Article 47 of the Constitution pointing out that his rights to fair administrative action was violated.
22. On its part, the Respondent submitted that PW1 recounted what used to happen and the fact that the appellant had sex with her on multiple occasions. PW3 Clifford Odera, a clinical officer confirmed that he examined the minor and it was his expert opinion that the minor had been defiled as the hymen was broken and the minor was four months pregnant at the time. The treatment notes, P3 form and PRC forms were produced as exhibits in support of the prosecution’s case.
23. The Appellant gave unsworn statement and did not call any witnesses to defend his case. He simply denied the allegations and claimed that he was away in the months of February and March 2024 preaching at Kadembe Area. He stated that upon his return, his wife informed him that one Joseph Ouma was inquiring for some land. He further stated that the complainant was pregnant but he denied being responsible for the pregnancy. The appellant did not call any witnesses to corroborate his alibi nor any other witness to support his claim.
24. Having analysed the trial court proceedings and the evidence on record, this court comes into conclusion that the prosecution proved its case to the required standard, which in criminal cases, is proof beyond reasonable doubt.
25. It is therefore, the considered view of this court that PW1’s evidence was well corroborated by factual and scientific evidence of other prosecution witnesses. Ground of appeal No. 3 is therefore not merited and the same is hereby dismissed.
26. On whether or not the sentence meted upon the applicant was lawful, the Respondent did not submit on this issue. Although it was not a ground of appeal, the appellant submitted extensively challenging that the sentence imposed on him was harsh and disproportionate. He pointed out that section 8(3) of the sexual offences Act provides for a minimum sentence of 20 years imprisonment. He argued that there was no legal basis for the trial court to sentence him for 30 years.
27. The appellant further argued that sections 216 and 329 of the Criminal Procedure Code give room for pre-sentencing trials and mitigation which the court should consider during sentencing. He stated that the court ignored his mitigating factors.
28. The Appellant was sentenced under Section 8(3) of the Sexual Offences Act which provides that-
“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.”
29. This court takes into consideration that a n appellate court will interfere with sentence only where the trial court acted on wrong principles, overlooked a material factor, considered irrelevant matters or imposed a manifestly excessive sentence.
30. I have considered the record and note that the appellant was held in custody for five months awaiting the DNA analysis. Although the offence committed is undoubtedly serious with aggravating circumstances, the sentence of 30 years imprisonment was, in the circumstances, manifestly excessive. The interests of justice will be adequately served by a lesser sentence prescribed by section 8(3) of the sexual offences Act. I also take into consideration the totality of the circumstances in this case and objectives of sentencing.
31. Accordingly, the appeal against sentence partially succeeds. The sentence of 30 years imprisonment is substituted with a sentence of twenty (20) years' imprisonment, to run from 30 th August, 2024, being the date of the appellant's arrest, pursuant to section 333(2) of the Criminal Procedure Code.
32. Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 6 TH DAY OF AUGUST, 2026
Judgment delivered virtually in the presence of:
Respondent- Absent
George Odhiambo Akach- Appellant present
Susan Nzioka – Court Assistant
2
1. The Appellant was charged 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. He equally faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act.
2. The particulars of the offence were that on diverse dates between March and April, 2024, at Kanyawanga Sub- location, South West Kamagambo location, Rongo Sub-County within Migori County, intentionally and unlawfully caused his penis to penetrate into the vagina of L.A.A a female child aged 14 years.
3. The appellant was found guilty as charged, convicted and sentenced to 30 years imprisonment and discharged on the alternative charge. Being dissatisfied with the conviction and sentence, he instituted the present appeal based on the following grounds:
(i) That the trial court erred in law and fact by failing to comply with the provisions of Article 50(2)(h) of the Constitution.
(ii) That the trial court erred in law and fact by not observing that the ingredients of the offence herein were not proved to the required standard in law and fact.
4. He filed his written submissions dated 9 th March, 2026 while those of the respondent are dated 14 th May, 2026. The judgment herein is based on the written submissions which both parties relied upon in their entirety. I do not need to reproduce verbatim.
5. This being the first appellate court, this Court will re-evaluate and analyse the evidence adduced in the trial court for this court to come up with an independent conclusion. In doing so, this court bears in mind that, unlike the trial court, it did not have the opportunity of observing the demeanour of the witnesses as they testified. See Okeno vs. Republic [1972] E.A 32.
6. This court has carefully considered the petition of appeal, and grounds of appeal, appellant’s written submissions as well as those of the respondent, the proceedings before the trial court and the judgment as well as the evidence on record and come up with the following issues for determination-
(i) Whether or not the trial court complied with Article 50(2) (g) (h) of the Constitution;
(ii) Whether the prosecution proved its case beyond reasonable doubt considering the ingredients of defilement; and
(iii) Whether or not the sentence meted upon the appellant by the trial Court was lawful, harsh or excessive in the circumstances.
7. On w hether or not the trial Court complied with Article 50(2)(g) and (h) of the Constitution , the appellant averred that the trial court did not meet the requirements of Article 50(2)(g) and (h) of the Constitution. A perusal of the proceedings show that the appellant was informed by the trial court of his right to legal representation of his choice. He was also informed that he was entitled to apply to the Legal Aid Board for assistance should he desire.
8. From the court record, the appellant chose to represent himself when he took plea on 2 nd September, 2024. The appellant proceeded with the trial and he did not demonstrate that he requested to be provided with legal representation or that his request was declined and/or demonstrate that he was likely to suffer substantial injustice if he proceeded without legal representation. He was able to follow proceedings and effectively cross- examined witnesses.
9. For the reasons stated above, this Court is satisfied that failure to have legal representation throughout the trial did not prejudice the appellant in this case. The appellant’s constitutional and fundamental right to legal representation under Article 50(2)(g) and (h) of the Constitution were not violated.
10. On whether or not the prosecution proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court will consider the ingredients of the offence of defilement as settled in in the case of George Opondo Olunga vs Republic [2016] eKLR under the following distinct heads.
A. Age
11. The appellant did not submit on the issue of age. On its part, the respondent placed reliance on the Court of Appeal decision in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR where the court stated as follows i n respect of proving the age of a victim in cases of defilement:
“ ... the question of prove of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable."
12. The Sexual Offences Rules of Court, 2014 under Rule 4 provides that-
“When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document.”
13. In this particular case a valid birth certificate serial No. 001152016 was produced as Prosecution Exhibit l, showing that PW1 was born on 06/03/2010. She was therefore 14 years of age at the time of the incident and within the delimitation of the law hence proving the element of age as set under 8 subsection 3 of the Sexual Offences Act.
14. The Appellant did not challenge the production of the birth certificate and did not rebut the said evidence by adducing any evidence to the contrary, and therefore, this court is satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at the time of the incident.
B. Identification
15. The Appellant did not submit on this issue. The Respondent on its part submitted that the Appellant was a person well known to the complainant. She knew him as “Awasi”. She was living with her family in the appellant’s compound, and she used to go sleep in his house with his daughter Saifin. PW3, the mother of the complainant, also stated that she had taken her daughter, PWI to the Appellant's home in the months of March and April to sleep there since they were living with the other family members in a single room. She affirmed that PWI was at the Appellant's home for three months. The appellant is known to her as Baba Fidel. From the said witnesses, PWI and PW2 it is safe to conclude that proper identification of the perpetrator was done.
16. A perusal of the proceedings indicate that PW 1 testified that she used to sleep in the appellant’s home together with his 6-year-old daughter Saifin. She recounted that on three different occasions, the appellant would sneak into her bed where he would defile her and would threaten to harm her .
17. She further testified that she stopped sleeping at the appellant’s home when his wife left. She informed the court that the incident came to light when her mother asked her about her pregnancy. She stated that she chose to keep quiet because the appellant had threatened to harm her.
18. Under cross-examination, PW1 maintained that she did not report the incident because the appellant had threatened to harm her. She further stated the appellant is known by the community members as short-tempered person who is capable of killing.
19. From the evidence on record, PW 1 and her family knew the appellant. They lived in the same compound and PW1 had been sleeping at the appellant’s home with his daughter. She could not have mistaken his identity. The Appellant did not dispute this fact.
20. From the foregoing, this court comes to a conclusion that the prosecution proved the ingredient of identification of the perpetrator beyond any reasonable doubt.
C. Penetration
21. The Appellant contended that there was no conclusive proof that he was responsible for the complainant’s pregnancy. He lamented that he remained in custody for five months following an application by the prosecution to have a DNA test carried out at Kisumu Government chemist to establish the paternity of the complainant’s child. He stated that out of flimsy reasons, the DNA test was never carried out. He cited the provisions of Article 47 of the Constitution pointing out that his rights to fair administrative action was violated.
22. On its part, the Respondent submitted that PW1 recounted what used to happen and the fact that the appellant had sex with her on multiple occasions. PW3 Clifford Odera, a clinical officer confirmed that he examined the minor and it was his expert opinion that the minor had been defiled as the hymen was broken and the minor was four months pregnant at the time. The treatment notes, P3 form and PRC forms were produced as exhibits in support of the prosecution’s case.
23. The Appellant gave unsworn statement and did not call any witnesses to defend his case. He simply denied the allegations and claimed that he was away in the months of February and March 2024 preaching at Kadembe Area. He stated that upon his return, his wife informed him that one Joseph Ouma was inquiring for some land. He further stated that the complainant was pregnant but he denied being responsible for the pregnancy. The appellant did not call any witnesses to corroborate his alibi nor any other witness to support his claim.
24. Having analysed the trial court proceedings and the evidence on record, this court comes into conclusion that the prosecution proved its case to the required standard, which in criminal cases, is proof beyond reasonable doubt.
25. It is therefore, the considered view of this court that PW1’s evidence was well corroborated by factual and scientific evidence of other prosecution witnesses. Ground of appeal No. 3 is therefore not merited and the same is hereby dismissed.
26. On whether or not the sentence meted upon the applicant was lawful, the Respondent did not submit on this issue. Although it was not a ground of appeal, the appellant submitted extensively challenging that the sentence imposed on him was harsh and disproportionate. He pointed out that section 8(3) of the sexual offences Act provides for a minimum sentence of 20 years imprisonment. He argued that there was no legal basis for the trial court to sentence him for 30 years.
27. The appellant further argued that sections 216 and 329 of the Criminal Procedure Code give room for pre-sentencing trials and mitigation which the court should consider during sentencing. He stated that the court ignored his mitigating factors.
28. The Appellant was sentenced under Section 8(3) of the Sexual Offences Act which provides that-
“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.”
29. This court takes into consideration that a n appellate court will interfere with sentence only where the trial court acted on wrong principles, overlooked a material factor, considered irrelevant matters or imposed a manifestly excessive sentence.
30. I have considered the record and note that the appellant was held in custody for five months awaiting the DNA analysis. Although the offence committed is undoubtedly serious with aggravating circumstances, the sentence of 30 years imprisonment was, in the circumstances, manifestly excessive. The interests of justice will be adequately served by a lesser sentence prescribed by section 8(3) of the sexual offences Act. I also take into consideration the totality of the circumstances in this case and objectives of sentencing.
31. Accordingly, the appeal against sentence partially succeeds. The sentence of 30 years imprisonment is substituted with a sentence of twenty (20) years' imprisonment, to run from 30 th August, 2024, being the date of the appellant's arrest, pursuant to section 333(2) of the Criminal Procedure Code.
32. Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 6 TH DAY OF AUGUST, 2026
Judgment delivered virtually in the presence of:
Respondent- Absent
George Odhiambo Akach- Appellant present
Susan Nzioka – Court Assistant
2