( Being an appeal from the conviction and sentence in Rongo MCSO Case No. E026 of 2023 by Hon. C.N.C Oruo, Principal Magistrate against the Judgement dated 13 th October, 2025 )
JUDGMENT
INTRODUCTION
1. The Appellant in this case had been 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. The Particulars of the charge were that on the night of 20 th August, 2023 at Kadera Kwoyo area, Awendo Sub -County in Migori County within the Republic of Kenya, intentionally caused your penis to penetrate the vagina of J.A.O a girl aged 15 years.
2. In the alternative count he was charged with the offence 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 charge were that on the night of 20 th August, 2023 at Kadera Kwoyo area, Awendo Sub – County in Migori County within the Republic of Kenya, unlawfully and intentionally touched the vagina of J.A.O a girl aged 15 years with your penis.
3. He was convicted on the first count of committing the offence of defilement. He was subsequently sentenced to serve fifteen (15) years imprisonment whereas the alternative charge was held in abeyance.
4. He has appealed against both the conviction and sentence. He has raised the following grounds of appeal:
i) That I pleaded not guilty to the charge herein.
ii) That the ingredients of defilement were not proved to the required standard of law.
iii) That my right to mitigation and presentencing report was overlooked by the trial court thus against the tenets of fair trial.
iv) That no prima facie case was established against me.
v) That the witness testimonies were full of inconsistencies and discrepancies thus could not sustain a conviction.
vi) That the sentence pronounced by the trial court is harsh, excessive and unreasonable as it goes against the tenets of fair trial under Article 50 (2) of the Constitution.
5. The prosecution called 4 witnesses in its endeavor to prove its case. PW1 , the Complainant informed the trial court that she knew the Appellant having known him for a period of around a month. At the time the Appellant was a student and PW1 would see him with school uniform when he was coming from Secondary School. That the Appellant was walking with friends on the 20/8/2023 when they met and that they spoke and they agreed that the Complainant would visit him. Further she informed the trial court that she knew the accused person’s home as they were neighbors and that night at around 10.00 P.M she went to the Bedroom of the Appellant where they spent the night.
6. PW1 at this point was stood down and remanded at Manga Children’s Remand Home and another date given. When the matter came up again before Court, PW1 continued and informed the Honourable Court she spent the night at the Appellant’s bedroom where she had sex with the said Appellant for two hours. She further stated that it was the first time she was having sex with the Appellant where they engaged in sexual activities for two hours then she went to sleep. PW1 informed Court that at around 5.pm in the evening she went home and on the way she met his brother on the road who asked where she was and she said that she was at the Appellant’s place. On cross examination PW1 informed the trial Court that she is the one who went to meet with the Appellant and that the Appellant never came for her. That the distance between her home and the Appellant’s Home is about 2 hours away.
7. PW2 PC Simbi Sarah informed the Court she was not the investigating officer but has taken over from the investigating officer.
8. PW3 a clinicial officer produced a copy of P3 Form, PRC Form for the Complainant who also informed her that she already had 3 instances of sexual encounters before the current incident before Court. From the examination of the Complainant, it was evident that a blunt object had been used, there was discharge that looked candid like, hymen was broken and the entries on the P3 form were similar to the one on the PRC Form. Further she produced P3 Form and Filter Clinic Attendance Card for the Appellant and according to the examination there were no injuries to his body. The Appellant did not have any questions on cross examination.
9. PW4 PC Vincent Ngeno testified to the effect that he was the arresting officer after being informed to arrest the accused on grounds that the Accused person had defiled a minor and together with Sergent Koech they proceeded and arrested the Accused and informed OCS Awendo Police Station who later came for the Accused person. On cross examination by the Accused person PW4 informed Court that the Accused person was alone without the minor but he was with several boys.
10. Upon being placed in his Defence the Appellant denied the charges before Court and stated that the Complainant was beaten for her to read her statement.
11. Both parties filed their submissions to which they relied upon. It was the Appellant’s submissions that that the Complainant gave false testimony in court and that her evidence and the evidence of PW3 did not tally on the number of times the Complainant had engaged in sexual expeditions. He submitted that the required standard in criminal matters was not met as the ingredients of the offence had not been proved beyond reasonable doubt. He further submitted that he is a child of young age being 20 years and prayed for the conviction to be quashed and sentence set aside.
12. It was the Respondent’s submissions that the Appellant failed to rebut any of the prosecution evidence tendered in trial and that they proved all the ingredients of the offence herein.
ANALYSIS AND DETERMINATION
13. This being a first appeal, this court has a duty to re-examine all the evidence adduced before the trial court afresh, analyze it and arrive at its own conclusions but always bear in mind that this court did not see or hear the witnesses testifying. The court is guided by the decision of the court of Appeal in Kiilu & Another -vs- Republic [2005]1KLR 174 , where the court said: -
“An Appellant on first appeal is entitled to expect the evidence as a whole submitted to fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of the first appellate Court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses.”
(See also Okeno v Republic (1972) E.A. 32)
14. To this end I have reviewed the evidence, tendered in the trial court, and the oral submissions and the court finds that there are three two issues for determination;
1. Whether the trial was conducted in contravention of Article 50 of the Constitution on fair trial
2. Whether the charge of defilement was proved?
3. Whether the sentence is excessive?
15. On the first issue, I note that the Appellant, though indicated as 20 years in the treatment card, no effort was made to confirm his age. This was critical, because just as the complainant, the Appellant was said to be a secondary school student. In his submissions in this appeal, he has stated he is 20 years old. It was incumbent on the state to confirm the age of the Appellant at the time he was being arraigned in court to ensure that in the event he was a minor, then the applicable procedure was followed.
16. In addition, two other issues come to the fore. First, the complainant commenced her testimony on the 25 th September 2023. The proceedings before the trial court indicate that the trial court without any application decided to remand the complainant at Manga Children Home. It is evident from the record that the complainant prior to the hearing had not been in remand. Was the remand of the complainant appropriate without any application by the parties? Did it affect the subsequent evidence of the victim that was adduced on the 4 th October 2023?
17. Secondly, the Appellant had an Advocate on the 4 th October 2023 and 13 th December 2023. The subsequent proceedings indicate the proceedings went on without the Advocate, and no reason is indicated in the file. Understanding the gravity of the offence and the age of the Appellant, it was critical for the court to determine whether the Appellant wished to proceed with or without legal representation. Article 50 (2) (g) (h) of the Constitution provides these safeguards for an accused person. It states as follows:
“(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly ”;
18. These edicts are not perfunctory but a solemn responsibility to be exercised by the relevant organs including the Judiciary in the administration of justice. There is no indication that the Appellant was informed of these rights and opted to represent himself after the Counsel failed to turn up. There is no indication that Counsel applied to cease acting or that he was informed of the subsequent hearing after the two sessions he attended. That was a major flaw to the entire subsequent trial. In dealing with the infractions of Article 50 (2) of the Constitution, the Supreme Court had this to say in Petition No. 5 of 2015 Republic -vs- Karisa Chengo & 2 Others [2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows:
“ the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more ”.
19. In addition, the provisions of The International Convention on Civil and Political Rights (ICCPR) which Kenya is a party after adopting it on 16 th December 1966. Article 14(3)(d) thereof entitles an accused person of the following rights: -
“ To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it ”;
20. Where the court finds that the proceedings were vitiated by a critical gap in the process, what is the appropriate action to take? This court finds guidance in the decision made in Ahmed Sumar vs. R (1964) EALR 483 , where the Court stated as concerns the issue of retrial in criminal cases as follows:
“ It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person (emphasis mine)”.
21. This position is echoed in the decision made in Lolimo Ekimat vs. R, Criminal Appeal No. 151 of 2004 (unreported), when this Court stated as follows:
“ the principle that has been accepted to courts is that each case must depend on the particular facts and circumstances of that each case but an order for the retrial should only be made where interests of justice require it ”.
22. Equally, the High Court cited the case of Fatehali Manji v Republic [1966] EA 343 in Ojoo v Republic (Criminal Appeal 138 of 2016)[2023] KEHC 255 (KLR)(25 January 2023)(Judgment ) where the stated:
“ In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person .”
23. Suffice to state that the circumstances of this case being that the age of the Appellant was probably just above teenage, and further that the Appellant has been in custody for about one year and that some of the core witnesses of the prosecution were unavailable at the trial to testify including the victim’s brothers who allegedly were the first persons to meet the victim as she went back home after visiting the home of the Appellant. I do deem that an order of retrial would not be appropriate. The Appellant’s trial was compromised from that time and the proceedings thus leading to the conviction are not sustainable and are a nullity.
24. Having so determined, it would be inappropriate for the court to get into the substance and merit of the facts that led the trial court to convict the Appellant.
25. I will thus proceed to allow the appeal with the consequence that the conviction and sentence of the Appellant made on the 29 th October 2025 is hereby set aside and the Appellant is hereby acquitted of the charges and set free unless otherwise lawfully held.
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 23 rd Day of July 2026 .
HCCRA NO. E121 OF 2025 HESBORN ODIWUOR OKOMO VS REPUBLIC JUDGMENT Pg. 9
JUDGMENT
INTRODUCTION
1. The Appellant in this case had been 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. The Particulars of the charge were that on the night of 20 th August, 2023 at Kadera Kwoyo area, Awendo Sub -County in Migori County within the Republic of Kenya, intentionally caused your penis to penetrate the vagina of J.A.O a girl aged 15 years.
2. In the alternative count he was charged with the offence 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 charge were that on the night of 20 th August, 2023 at Kadera Kwoyo area, Awendo Sub – County in Migori County within the Republic of Kenya, unlawfully and intentionally touched the vagina of J.A.O a girl aged 15 years with your penis.
3. He was convicted on the first count of committing the offence of defilement. He was subsequently sentenced to serve fifteen (15) years imprisonment whereas the alternative charge was held in abeyance.
4. He has appealed against both the conviction and sentence. He has raised the following grounds of appeal:
i) That I pleaded not guilty to the charge herein.
ii) That the ingredients of defilement were not proved to the required standard of law.
iii) That my right to mitigation and presentencing report was overlooked by the trial court thus against the tenets of fair trial.
iv) That no prima facie case was established against me.
v) That the witness testimonies were full of inconsistencies and discrepancies thus could not sustain a conviction.
vi) That the sentence pronounced by the trial court is harsh, excessive and unreasonable as it goes against the tenets of fair trial under Article 50 (2) of the Constitution.
5. The prosecution called 4 witnesses in its endeavor to prove its case. PW1 , the Complainant informed the trial court that she knew the Appellant having known him for a period of around a month. At the time the Appellant was a student and PW1 would see him with school uniform when he was coming from Secondary School. That the Appellant was walking with friends on the 20/8/2023 when they met and that they spoke and they agreed that the Complainant would visit him. Further she informed the trial court that she knew the accused person’s home as they were neighbors and that night at around 10.00 P.M she went to the Bedroom of the Appellant where they spent the night.
6. PW1 at this point was stood down and remanded at Manga Children’s Remand Home and another date given. When the matter came up again before Court, PW1 continued and informed the Honourable Court she spent the night at the Appellant’s bedroom where she had sex with the said Appellant for two hours. She further stated that it was the first time she was having sex with the Appellant where they engaged in sexual activities for two hours then she went to sleep. PW1 informed Court that at around 5.pm in the evening she went home and on the way she met his brother on the road who asked where she was and she said that she was at the Appellant’s place. On cross examination PW1 informed the trial Court that she is the one who went to meet with the Appellant and that the Appellant never came for her. That the distance between her home and the Appellant’s Home is about 2 hours away.
7. PW2 PC Simbi Sarah informed the Court she was not the investigating officer but has taken over from the investigating officer.
8. PW3 a clinicial officer produced a copy of P3 Form, PRC Form for the Complainant who also informed her that she already had 3 instances of sexual encounters before the current incident before Court. From the examination of the Complainant, it was evident that a blunt object had been used, there was discharge that looked candid like, hymen was broken and the entries on the P3 form were similar to the one on the PRC Form. Further she produced P3 Form and Filter Clinic Attendance Card for the Appellant and according to the examination there were no injuries to his body. The Appellant did not have any questions on cross examination.
9. PW4 PC Vincent Ngeno testified to the effect that he was the arresting officer after being informed to arrest the accused on grounds that the Accused person had defiled a minor and together with Sergent Koech they proceeded and arrested the Accused and informed OCS Awendo Police Station who later came for the Accused person. On cross examination by the Accused person PW4 informed Court that the Accused person was alone without the minor but he was with several boys.
10. Upon being placed in his Defence the Appellant denied the charges before Court and stated that the Complainant was beaten for her to read her statement.
11. Both parties filed their submissions to which they relied upon. It was the Appellant’s submissions that that the Complainant gave false testimony in court and that her evidence and the evidence of PW3 did not tally on the number of times the Complainant had engaged in sexual expeditions. He submitted that the required standard in criminal matters was not met as the ingredients of the offence had not been proved beyond reasonable doubt. He further submitted that he is a child of young age being 20 years and prayed for the conviction to be quashed and sentence set aside.
12. It was the Respondent’s submissions that the Appellant failed to rebut any of the prosecution evidence tendered in trial and that they proved all the ingredients of the offence herein.
ANALYSIS AND DETERMINATION
13. This being a first appeal, this court has a duty to re-examine all the evidence adduced before the trial court afresh, analyze it and arrive at its own conclusions but always bear in mind that this court did not see or hear the witnesses testifying. The court is guided by the decision of the court of Appeal in Kiilu & Another -vs- Republic [2005]1KLR 174 , where the court said: -
“An Appellant on first appeal is entitled to expect the evidence as a whole submitted to fresh and exhaustive examination and to the appellate Court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of the first appellate Court to merely scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses.”
(See also Okeno v Republic (1972) E.A. 32)
14. To this end I have reviewed the evidence, tendered in the trial court, and the oral submissions and the court finds that there are three two issues for determination;
1. Whether the trial was conducted in contravention of Article 50 of the Constitution on fair trial
2. Whether the charge of defilement was proved?
3. Whether the sentence is excessive?
15. On the first issue, I note that the Appellant, though indicated as 20 years in the treatment card, no effort was made to confirm his age. This was critical, because just as the complainant, the Appellant was said to be a secondary school student. In his submissions in this appeal, he has stated he is 20 years old. It was incumbent on the state to confirm the age of the Appellant at the time he was being arraigned in court to ensure that in the event he was a minor, then the applicable procedure was followed.
16. In addition, two other issues come to the fore. First, the complainant commenced her testimony on the 25 th September 2023. The proceedings before the trial court indicate that the trial court without any application decided to remand the complainant at Manga Children Home. It is evident from the record that the complainant prior to the hearing had not been in remand. Was the remand of the complainant appropriate without any application by the parties? Did it affect the subsequent evidence of the victim that was adduced on the 4 th October 2023?
17. Secondly, the Appellant had an Advocate on the 4 th October 2023 and 13 th December 2023. The subsequent proceedings indicate the proceedings went on without the Advocate, and no reason is indicated in the file. Understanding the gravity of the offence and the age of the Appellant, it was critical for the court to determine whether the Appellant wished to proceed with or without legal representation. Article 50 (2) (g) (h) of the Constitution provides these safeguards for an accused person. It states as follows:
“(g) to choose, and be represented by, an advocate, and to be informed of this right promptly;
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly ”;
18. These edicts are not perfunctory but a solemn responsibility to be exercised by the relevant organs including the Judiciary in the administration of justice. There is no indication that the Appellant was informed of these rights and opted to represent himself after the Counsel failed to turn up. There is no indication that Counsel applied to cease acting or that he was informed of the subsequent hearing after the two sessions he attended. That was a major flaw to the entire subsequent trial. In dealing with the infractions of Article 50 (2) of the Constitution, the Supreme Court had this to say in Petition No. 5 of 2015 Republic -vs- Karisa Chengo & 2 Others [2017] eKLR while dealing with various aspects of the right to a fair hearing under Article 50 of the Constitution stated as follows:
“ the right to legal representation…...under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more ”.
19. In addition, the provisions of The International Convention on Civil and Political Rights (ICCPR) which Kenya is a party after adopting it on 16 th December 1966. Article 14(3)(d) thereof entitles an accused person of the following rights: -
“ To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it ”;
20. Where the court finds that the proceedings were vitiated by a critical gap in the process, what is the appropriate action to take? This court finds guidance in the decision made in Ahmed Sumar vs. R (1964) EALR 483 , where the Court stated as concerns the issue of retrial in criminal cases as follows:
“ It is true that where a conviction is vitiated by a gap in the evidence or other defect for which the prosecution is to blame, the Court will not order a retrial. But where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame it does not in our view follow that a retrial should be ordered………In this judgment the court accepted that a retrial should not be ordered unless the Court was of the opinion that on consideration of the admissible or potentially admissible evidence a conviction might result. Each case must depend on the particular facts and circumstances of that case but an order for the retrial should only be made where the interests of justice required it and should not be ordered when it is likely to cause an injustice to an accused person (emphasis mine)”.
21. This position is echoed in the decision made in Lolimo Ekimat vs. R, Criminal Appeal No. 151 of 2004 (unreported), when this Court stated as follows:
“ the principle that has been accepted to courts is that each case must depend on the particular facts and circumstances of that each case but an order for the retrial should only be made where interests of justice require it ”.
22. Equally, the High Court cited the case of Fatehali Manji v Republic [1966] EA 343 in Ojoo v Republic (Criminal Appeal 138 of 2016)[2023] KEHC 255 (KLR)(25 January 2023)(Judgment ) where the stated:
“ In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purposes of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its particular facts and circumstances and an order for retrial should only be made where the interests of justice require it and should not be ordered where it is likely to cause injustice to the accused person .”
23. Suffice to state that the circumstances of this case being that the age of the Appellant was probably just above teenage, and further that the Appellant has been in custody for about one year and that some of the core witnesses of the prosecution were unavailable at the trial to testify including the victim’s brothers who allegedly were the first persons to meet the victim as she went back home after visiting the home of the Appellant. I do deem that an order of retrial would not be appropriate. The Appellant’s trial was compromised from that time and the proceedings thus leading to the conviction are not sustainable and are a nullity.
24. Having so determined, it would be inappropriate for the court to get into the substance and merit of the facts that led the trial court to convict the Appellant.
25. I will thus proceed to allow the appeal with the consequence that the conviction and sentence of the Appellant made on the 29 th October 2025 is hereby set aside and the Appellant is hereby acquitted of the charges and set free unless otherwise lawfully held.
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 23 rd Day of July 2026 .
HCCRA NO. E121 OF 2025 HESBORN ODIWUOR OKOMO VS REPUBLIC JUDGMENT Pg. 9