DRAFTDRAFT
( Being an appeal from the Conviction and Sentence in Criminal Case Number SO E040 of 2024 by Hon. Stella Abuya in the Senior Principal Magistrate’s Court at Kisii )
Introduction
1. The Appellant Hesbon Onami Obwaya was convicted on 14 th October 2024 of the offense of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (SOA) in Kisii Sexual Offence Case No. E040 of 2024. The Particulars of the offence are that on diverse dates between 29 th April 2024 to 10 th May 2024 at Nyanchwa Township Location, Kitutu Central Sub County, within Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of CN , a child aged 12 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (SOA) . Following a full hearing the Appellant was convicted and sentenced to serve 20 years’ imprisonment.
2. Aggrieved by both the conviction and sentence, the Appellant vide a Petition of Appeal dated 24 th October 2024 preferred the Appeal herein. In summary, the trial court erred in failing to consider that the prosecution did not prove its case against him beyond reasonable doubt, failing to consider his defence, that the matter was domestic feud and he was acquitted in a similar case Keroka CM Criminal Case E057 of 2022 and the sentence of 20 years’ imprisonment meted was punitive and harsh in the circumstances. Lastly, he states that the trial court failed to consider that the Appellant person was not represented by a lawyer. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence. In the alternative review the excessive sentence.
3. On 21 st May 2026, parties took directions on disposal of the appeal, parties agreed to have the appeal canvassed by way of written submissions, the Appellant filed his submissions dated 19 th February 2026 . Respondent filed its written submissions dated 6 th March 2026.
4. To start off, this court has to recap and appreciate the evidence adduced at the trial court.
The Prosecution Case
5. In support of its case, the prosecution called 5 witnesses at the trial court. PW1, C.N. the Complainant in this case, swore and stated that she is 12 years old. The Appellant who was the Accused is her father. It is her testimony that the Appellant took her mother to work, and they remained alone in the house behind a closed door. He told her to remove all her clothes while he removed his. She lay on the bed and the Appellant lay on top of her, then the Appellant started putting his penis into her vagina. ( Aliweka susu yake kwa susu yangu ) The Appellant (her father) finished, they both dressed up, and the Appellant left and started watching TV. Later the neighbour asked her what happened and she told them what the Appellant did, then they were taken to the police. In the morning she was taken to hospital. It was the first time the Appellant did that to her.
6. On cross-examination by the Appellant, stated that nobody told her what to say in court. That during the ordeal she felt pain. She testified that the Appellant does not have a good relationship with the Neighbours, that also the Appellant has never beaten her or her siblings, or quarreled with them. She further states that the Appellant leaves in the morning with her mother off to work, and her mother sends money to the shopkeeper so they can buy lunch, if they have not left any. Lastly, she wants to go home with the Appellant and her mother.
7. PW2, Mary Kemunto Obwaya, the Complainant’s mother who is the complainant stated that she resides at Mwembe and is employed selling clothes. The Appellant is her husband and PW1's step-father. PW1 is 12 years old. On 11 th May 2024 at 5.00 a.m. the Appellant escorted her to the stage as she was going to sell clothes in Oyugis. She returned to Kisii at 6.00 p.m whereupon she realized she had missed several calls. Upon her return she found the Appellant waiting for her at the stage, and they took the luggage to her employer's place. When they arrived home, the neighbours and the caretaker called her and asked whether she knew what her husband the Appellant does to her child. She said no. The neighbours informed her that the Appellant was doing bad things to PW1, not just once, and that PW1 had informed them of it. The neighbours told the Appellant to get out of the house; he then told them what he was doing to PW1. A confrontation ensued. PWI and the Appellant were taken to Nyanchwa Police Station. She later went to Nyanchwa Police Station, spoke to PW1, who told her the Appellant sleeps with her and does bad things to her several times. On cross examination she stated that she has informed the Court the truth and she will leave it to the court to determine the rest She further affirmed that PW1 is truthful and she never lies.
8. PW3, Doctor Peter Morebu Momanyi, stated that he works at KTRH Head of Medical Legal. He states that PW1 reported that she had had sex with an adult on 29 th April 2024 . His findings were that there was an old broken hymen and the vagina was otherwise normal, and the laboratory findings were normal. He produced PW1's P3 form, PRC form and laboratory results as exhibits 2 to 4 respectively. On cross he stated that he only recorded what he had examined.
9. PW4, P.C. Priscilla Makena No. 100768 of Nyanchwa Police Station, testified that she was alerted of the defilement case on the night of 10 th May 2024 , by which time the child and the suspect were already at Nyanchwa Police Station. Upon speaking to PW1, the child disclosed that her father, the Appellant, had defiled her on several occasions, typically taking advantage of moments when he had sent her siblings out to buy mandazi and her mother was away from home. PW4 booked the matter in the Occurrence Book, escorted PW1 to Kisii Teaching and Referral Hospital for examination, ensured the PRC and P3 forms were completed, recorded witness statements, visited the scene, and ultimately charged the Appellant with defilement, producing PW1's birth certificate as proof of age. Under cross-examination, she conceded a gap between the date of the offence the 29 th April 2024 and the date the P3 form was filled the 11 th May 2024 , with the incident only reported on the 10 th May 2024 . Significantly, she confirmed that PW1 had recounted being defiled seven times in total, three times in the first week and four times in the second week indicating a sustained pattern of abuse rather than an isolated act. She further testified that the Appellant had told the neighbours "aliweka kofia peke yake,"
10. PW5, Edith Osembe Sireti, a neighbour, gave a lengthy account in her testimony. She recalled that on the morning of 10 th May 2024 she saw the Appellant send away his other children out and lock his door, behavior that, on inquiry through her house-help Belinda, was linked to a practice whereby the Appellant would chase other children away whenever he arrived home so as to remain alone with PW1. Belinda later reported that PW1 had confided that the Appellant "does bad manners" to her after escorting her mother to work, and had warned her not to tell anyone. PW1 repeated this account to PW5 directly, adding that the Appellant had threatened to kill her if she informed anyone. When the matter was raised with PW2, the child's mother, she broke down, admitting she had been warned before, even while living at a previous plot, but had dismissed the warnings as lies told by neighbours who disliked her husband. Confronted directly, the Appellant initially deflected, claiming he gets mapepo (bad spirits) upon entering the house, but under pressure from a neighbour named Kizito, who threatened him, he admitted to inserting his penis a bit, not fully, and claimed this had occurred only once, on the 10 th May 2024 . That the Appellant and PW1 were taken to Nyanchwa Police Station. PW5 confirmed that PW2 had only moved to that plot in March and had no prior dispute with the Appellant.
Defence Case
11. The Appellant, Hesbon Onami Obwaya, in his defence, gave a sworn statement and then closed his case, stated that he is a boda-boda rider and resides at Butori. On 10 th May 2024 at 8.00 p.m. he came home with his wife (PW2). The neighbours called his wife; she stayed out for 30 minutes while he was in the house watching TV. He was then suddenly called by neighbours including (PW5). PW5 said he had told them what he did to the child that morning; he denied this, and there was no way he could have defiled the child. He told them that if they suspected he had defiled the child; they should take her to hospital to be examined. While he stood at the door, one man slapped him and another shouted that he should be burnt. He remained quiet. On the way to the police station, two people defended him, saying that if he had done the act the law would take its course, but others beat him. On arrival at the station, he was placed in the cells.
12. In his further testimony he states that the police took him and the child to hospital together, but he was not examined. The Investigating Officer later recorded his statement, and he told the officer that he does not get along with the neighbours who started the issue. On the 13 th May 2024, he was brought to court and denied the charges. He stated that PW1 told the court she was defiled once, but in her statement said she was defiled between 29/4/24 and 11/5/24 . He said PW1 stated he had never beaten her or done anything bad to her. He noted that PW1 and PW2 confirmed in court that he does not get along with the people who started the issue. The Doctor confirmed he saw an old broken hymen but that everything else was normal, and that he did not examine the Appellant as the Appellant was not present. He submitted that PW5's evidence in court contradicted her police statement, that he does not have a good relationship with PW5, and that they do not greet each other. He urged the court to look at both sides, as there are contradictions in the witness statements. On cross-examination, the Appellant stated that he had lived on that plot for 7 months, which had 40 houses. He had only disagreed with PW5 and Belinda, and not the other neighbours, as they had taught his wife PW2 bad manners. PW5 did not greet him that morning. Every day he left home in the morning and returned at night; the children remained at home alone. In Keroka CMSO. 75/22 he is also the complainant's step-father, PW1 being the complainant in that case as well. They shifted to Kisii and he was brought to court over the same issue.
The Appellant's Submissions
13. The Appellant, submits that the charge sheet itself is fatally defective, since it alleges the offence occurred on diverse dates between 29 th April and 10 th May 2024 rather than specifying a single date, which he argues offends Article 50(2)(b ) of the Constitution and Section 134 of the Criminal Procedure Code , both of which require charges to be specific and unambiguous. He urges the court, sitting as a first appellate court, to subject the entire record to fresh and exhaustive scrutiny rather than merely checking whether some evidence supported the trial court's findings, relying on Okeno v Republic (1972) EA , Pandya v Republic (1975) EA 336 , and Shantilal M. Rewala v Republic (1970) EA 570 , and invokes David Aketch v R 2015 eKLR, for the proposition that glaring inconsistencies in prosecution evidence should not be relied upon.
14. Further he argues that the case appears to have been booked roughly seven months after the alleged offence and in breach of his constitutional rights under Articles 49 and 22 . He singles out PW5 as the prime mover of the case, pointing to contradiction on quarrelling testimony, arguing under Richard Aspella v Republic Appeal No. 45 of 1981 CA and Ramkrishna Denkerai Pandya v Republic Appeal No. 06 of 1990 EACA 93 that contradictory testimony cannot both be true and should not be believed. He suggests PW5 and her house-help Belinda are malicious. He also raises the existence of a prior, apparently acquitted ( Which the Court notes that the matter is still active) similar case at Keroka (SO No. E075 of 2022), suggesting this shows a pattern of him being targeted.
15. On the medical evidence, he stresses that PW3 found an old broken hymen but an otherwise normal vagina and normal lab results, questioning how this is consistent with repeated defilement, and notes that the PRC form recorded an incident date of 6 th May 2024 , inconsistent with the charge sheet's date range, citing Ombena v Republic Court of Appeal Kisumu Criminal Appeal No. 36 of 1981 on the danger of mismatches between charge and proof. He further submits that PW1 never testified to a specific date or time for the offence, and that PW2's account is confused and largely hearsay as to when the incident even occurred. He also flags an inconsistency between PW4's evidence that the OCS informed her of the case on 10 th May 2024 at 11:00 p.m. and the Medical Examination Report, which recorded the report as made on 11 th May 2024 at 2300 hrs. Relying on Okethi Okale v Republic 1965 EA 55 , Karura v Republic Court of Appeal Nairobi Criminal App No 170 of 1984 , and Danson Mgunya v Republic Mombasa Court of Appeal Crininal Appeal No. 21 of 2016 , he submits the trial court failed to properly weigh the defence case alongside the prosecution's, and closes by praying that the appeal be admitted, the conviction quashed, and the 20-year sentence set aside.
The Respondent's Submissions
16. The Respondent, opposed the appeal on two issues for determination: whether the conviction was proper in law, and whether the sentence was manifestly harsh, excessive, or unlawful. On conviction, counsel relies on Nyokabi v Republic [2024] KECA 1199 for the three essential ingredients of defilement, that the Complainant is a child, that penetration occurred, and that the accused was positively identified as the perpetrator. The Respondent submits that all three were proved to the required standard. On the age of the complainant, the Respondent points to PW1's own testimony together with the birth certificate produced as an exhibit, setting her age at approximately twelve years, and submits this discharged the prosecution's burden on that element, citing Mwangi v Republic Criminal Appeal E001 of 2022 and Kalungu Kasomo v Republic Criminal Appeal No. 504 of 2010 on the centrality of proving age in sexual offences.
17. On penetration, the Respondent relies on the statutory definition under Section 2 of the Sexual Offences Act and submits that PW1's own account of being undressed, laid on the bed, and penetrated was clear and unequivocal, further corroborated by the medical evidence of PW3. Citing Muhendu v Republic [2024] KECA 322(KLR), counsel submits that penetration may be proved by direct or circumstantial evidence, and that the survivor's own testimony is the primary evidence required, with corroboration not being a strict legal requirement under the proviso to Section 124 of the Evidence Act , though corroboration was nonetheless present here. On identification, the Respondent characterizes this as a case of recognition rather than identification, since PW1 knew the Appellant well as her step-father, and notes that her account was independently corroborated by PW5, who saw the Appellant enter the house with the Complainant while sending the other children away on an errand. The Respondent submits the trial court correctly found the complainant had no reason to frame the Appellant, and that the defence amounted to nothing more than a bare denial incapable of displacing the prosecution's evidence.
18. On sentence, the Respondent submits that Section 8(3) of the Sexual Offences Act prescribes a mandatory minimum sentence of twenty years for defilement of a child aged between twelve and fifteen years, and that the twenty-year sentence imposed is therefore the least possible term available under the law, not one that can be characterized as harsh or excessive. This is supported by reference to the Supreme Court's decision in Republic v Joshua Gichuki Mwangi [2024] KESC 34, which settled the legality of the mandatory minimum sentence under the Act, and the Court of Appeal's decision in Charles & another v Republic [2024] KECA 1902. The Respondent concludes by urging the court to find the conviction safe, uphold both the conviction and sentence, and dismiss the appeal in its entirety
Analysis And Determination
19. This being a first appellate court, it has a duty to scrutinize and evaluate the evidence afresh, while cautioned enough, that it did not have the advantage of seeing or hearing the witnesses testify during trial, whilst giving due allowance for the trial court’s findings. This is well set out in decision of the Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 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 demeanour, 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 demeanour which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
20. I have read the respective parties’ submissions, given due consideration to the trial court’s proceedings as well as the record of Appeal . The following issues arise for my determination: -
a. Whether the Prosecution proved its case beyond reasonable doubt.
b. Whether the sentence was harsh and excessive.
Whether the Prosecution proved its case beyond reasonable doubt.
21. The Appellant was charged under Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act which provides; -
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) 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”
22. The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act, the main elements of the offence of defilement are that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice.
23. In Mwalango Chichoro Mwanjembe V. Republic , Mombasa Criminal Appeal No. 24 of 2015 the Court stated:
“The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary 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. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R ,Cr.Appeal No.19 of 2014 and Omar Uche v R ,Cr.App.No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda , Crim.Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable.
24. As to the age of the Complainant, there is no doubt and/or contestation of the age of the Complainant. the Complainant’s birth certificate was produced as PExh 1, indicating she was born on 27 th July 2012 . She was approximately 11 Years 9 Months old as at 10 th May 2024 when the offence took place. The trial court seems to have rounded up the years to 12 which cannot be held to be entirely wrong since the Complainant was 3 months’ shy of 12 years. The birth certificate duly exhibited is clear on the age of the complainant and removes any doubts thereon. Therefore, the age of the minor was proved by the birth certificate.
25. On penetration, the Complainant testified that the appellant had sex with her. She narrates that Appellant took her mother to work, and behind closed doors he told her to remove all her clothes while he removed his. She lay on the bed and the Appellant lay on top of her, then the Appellant started putting his penis into her vagina. ( Aliweka susu yake kwa susu yangu ). The Appellant finished, they both dressed up, and the Appellant left and she started watching TV. It is PW5 testimony that the Appellant was seen and admitted that he only inserted the head. PW5 states that the Complainant equally informed her of the sex activities by the Appellant, information which she was equally informed by her House Help Belinda. This information is corroborated by the testimony of PW2 and PW4.
26. PW3 Doctor Peter Morebu Momanyi KTRH Head Medical Legal testified that he examined the Complainant and he observed that there was an old broken hymen and vagina was normal. He produces the Treatment notes, Laboratory Request Forms, Post Rape Care form and P3 Form.
27. On his defence, the Appellant denied having any sexual activities with the Complainant. That he was not examined and that he had good relations with the Neighbors save for PW5 and her Househelp Belinda. He confirms that he has a similar case in Keroka SO E075 of 2022 over the same issue.
28. This court having noted that the findings of the Medical examination were not conclusive, the Doctor indicated the presence of old broken hymen only. The court will proceed to rely on the evidence of the Complainant which was adequately corroborated by PW2, PW4 & PW5.
29. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
30. The above section brings out the two main ingredients of defilement; the mens rea which constitutes the intention to insert a genital organ of the other into the genitals of the other and the actus reus which constitutes the act of penetration which ought not to be complete.
31. The Court of Appeal in the case of Mark Ouiruri v Republic (2013) eKLR , expressed itself on what amounts to penetration as follows: -
"…... In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and the penetration need not be deep inside the girl’s organ….”
32. The complainant gave sworn testimony that she knew the Appellant as the Father, the identification was corroborated PW5 who saw the Appellant send away other children and locked the door. She further testifies that aliweka susu yake kwa susu yangu, to mean he inserted his genitalia into her genitalia.
33. On identification of the perpetrator, the Complainant stated that it was the Father, the Appellant who repeatedly defiled her. She stated that she lived with Mum , Dad Sister and Brother, she confirms that the Appellant is the Father and it was Dad who closed the Door, told her to undress and inserted his genitalia on her genitalia. On cross she further stated that she felt a pain and that she loved him and not the bad manners.
34. The trial court subjected the Complainant to a voir dire test for reason that the sole evidence of the penetration was that of the complainant. As guided Section 124 of the Evidence Act allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth .” (Underlined for emphasis)
35. The Trial court upon ascertaining that the Complainant was 12 years of age, she was sworn in and testified, a trial court must be satisfied that the Complainant is telling the truth. In its judgment, the trial court was persuaded that the Complainant of 12 years identified the Appellant in broad daylight, she had an ample time to observe what was happening and he positively identified the assailant as the step-father. The trial court rightfully found that the Appellant’s defence was a mere denial and a blame shift that he was being fixed by PW5 and Belinda was not believable. This court observed that the Complainant in cross examination held that she was not instructed on how to testify, she doesn’t have an issue with the Father save for his bad manners and she would love that they all go home. Notably, the issue that the Appellant was framed did not arise during the cross-examination of PW2.
36. In his submission, the Appellant pointed out that the diverse dates as captured in the charge sheet amounted to inconsistencies, thus the charge sheet is defective. It has been held that a court must consider the defects in a charge from a two-step test. First is to determine whether the charge is defective and if so, whether such defect can be remedied. This was stated by the Court of Appeal in Peter Ngure Mwangi v Republic [2014] Eklr
37. From a cursory perusal of the record, it is possible that the appellant may have committed the offence numerous times and on diverse dates as testified by PW1, precisely two successive weeks and the last day being 10 th April 2026. Ordinarily incidents of the commission of the offence may be in close succession or in long intervals. Resultantly a charge framed in that manner is not defective.
38. It is this Court’s finding that the charge sheet as framed contained, a statement of the specific offence with which the appellant is charged, together with such particulars as to place, period and manner of commission as was necessary for giving reasonable information as to the nature of the offence charged.
39. I am of the considered view that the phrase diverse dates does not amount to a discrepancy, thus unfounded and immaterial. This court is guided by Section 382 of the Criminal Procedure Code which provides that no finding shall be reversed on account of an error or irregularity unless it has occasioned a failure of justice. In Joseph Maina Mwangi v Republic [2000] eKLR, the Court held that discrepancies must be fundamental to create doubt as to the guilt or otherwise of the accused.
40. Based on this analysis therefore, the court is satisfied that the elements of defilement were proved beyond reasonable doubt.
Whether the sentence was harsh and excessive.
41. As to whether the sentence to serve 20 years’ imprisonment was harsh and punitive? The Appellant states that the trial court erred for meting out a 20-year sentence yet the prosecution did not prove its case beyond any reasonable doubt and without any credible evidence from the doctor.
42. The trial court before meting out the sentence allowed the Appellant to mitigate, wherein he prayed for leniency and non-custodial sentence.
43. This court therefore finds no basis in interfering with the Trial court’s sentence.
44. On the right to counsel, Article 50(2) (g & j) of the Constitution provides that an accused person has a right to appoint an advocate of choice. Further the Court shall appoint an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result .
45. A careful review of the record shows that at plea, the charges were read over to the Appellant and explained in Kiswahili, which a plea of not guilty was entered, the record indicates that both English and Kiswahili were used in court. The
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( Being an appeal from the Conviction and Sentence in Criminal Case Number SO E040 of 2024 by Hon. Stella Abuya in the Senior Principal Magistrate’s Court at Kisii )
Introduction
1. The Appellant Hesbon Onami Obwaya was convicted on 14 th October 2024 of the offense of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act (SOA) in Kisii Sexual Offence Case No. E040 of 2024. The Particulars of the offence are that on diverse dates between 29 th April 2024 to 10 th May 2024 at Nyanchwa Township Location, Kitutu Central Sub County, within Kisii County intentionally and unlawfully caused his penis to penetrate the vagina of CN , a child aged 12 years old. He was charged with an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act (SOA) . Following a full hearing the Appellant was convicted and sentenced to serve 20 years’ imprisonment.
2. Aggrieved by both the conviction and sentence, the Appellant vide a Petition of Appeal dated 24 th October 2024 preferred the Appeal herein. In summary, the trial court erred in failing to consider that the prosecution did not prove its case against him beyond reasonable doubt, failing to consider his defence, that the matter was domestic feud and he was acquitted in a similar case Keroka CM Criminal Case E057 of 2022 and the sentence of 20 years’ imprisonment meted was punitive and harsh in the circumstances. Lastly, he states that the trial court failed to consider that the Appellant person was not represented by a lawyer. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence. In the alternative review the excessive sentence.
3. On 21 st May 2026, parties took directions on disposal of the appeal, parties agreed to have the appeal canvassed by way of written submissions, the Appellant filed his submissions dated 19 th February 2026 . Respondent filed its written submissions dated 6 th March 2026.
4. To start off, this court has to recap and appreciate the evidence adduced at the trial court.
The Prosecution Case
5. In support of its case, the prosecution called 5 witnesses at the trial court. PW1, C.N. the Complainant in this case, swore and stated that she is 12 years old. The Appellant who was the Accused is her father. It is her testimony that the Appellant took her mother to work, and they remained alone in the house behind a closed door. He told her to remove all her clothes while he removed his. She lay on the bed and the Appellant lay on top of her, then the Appellant started putting his penis into her vagina. ( Aliweka susu yake kwa susu yangu ) The Appellant (her father) finished, they both dressed up, and the Appellant left and started watching TV. Later the neighbour asked her what happened and she told them what the Appellant did, then they were taken to the police. In the morning she was taken to hospital. It was the first time the Appellant did that to her.
6. On cross-examination by the Appellant, stated that nobody told her what to say in court. That during the ordeal she felt pain. She testified that the Appellant does not have a good relationship with the Neighbours, that also the Appellant has never beaten her or her siblings, or quarreled with them. She further states that the Appellant leaves in the morning with her mother off to work, and her mother sends money to the shopkeeper so they can buy lunch, if they have not left any. Lastly, she wants to go home with the Appellant and her mother.
7. PW2, Mary Kemunto Obwaya, the Complainant’s mother who is the complainant stated that she resides at Mwembe and is employed selling clothes. The Appellant is her husband and PW1's step-father. PW1 is 12 years old. On 11 th May 2024 at 5.00 a.m. the Appellant escorted her to the stage as she was going to sell clothes in Oyugis. She returned to Kisii at 6.00 p.m whereupon she realized she had missed several calls. Upon her return she found the Appellant waiting for her at the stage, and they took the luggage to her employer's place. When they arrived home, the neighbours and the caretaker called her and asked whether she knew what her husband the Appellant does to her child. She said no. The neighbours informed her that the Appellant was doing bad things to PW1, not just once, and that PW1 had informed them of it. The neighbours told the Appellant to get out of the house; he then told them what he was doing to PW1. A confrontation ensued. PWI and the Appellant were taken to Nyanchwa Police Station. She later went to Nyanchwa Police Station, spoke to PW1, who told her the Appellant sleeps with her and does bad things to her several times. On cross examination she stated that she has informed the Court the truth and she will leave it to the court to determine the rest She further affirmed that PW1 is truthful and she never lies.
8. PW3, Doctor Peter Morebu Momanyi, stated that he works at KTRH Head of Medical Legal. He states that PW1 reported that she had had sex with an adult on 29 th April 2024 . His findings were that there was an old broken hymen and the vagina was otherwise normal, and the laboratory findings were normal. He produced PW1's P3 form, PRC form and laboratory results as exhibits 2 to 4 respectively. On cross he stated that he only recorded what he had examined.
9. PW4, P.C. Priscilla Makena No. 100768 of Nyanchwa Police Station, testified that she was alerted of the defilement case on the night of 10 th May 2024 , by which time the child and the suspect were already at Nyanchwa Police Station. Upon speaking to PW1, the child disclosed that her father, the Appellant, had defiled her on several occasions, typically taking advantage of moments when he had sent her siblings out to buy mandazi and her mother was away from home. PW4 booked the matter in the Occurrence Book, escorted PW1 to Kisii Teaching and Referral Hospital for examination, ensured the PRC and P3 forms were completed, recorded witness statements, visited the scene, and ultimately charged the Appellant with defilement, producing PW1's birth certificate as proof of age. Under cross-examination, she conceded a gap between the date of the offence the 29 th April 2024 and the date the P3 form was filled the 11 th May 2024 , with the incident only reported on the 10 th May 2024 . Significantly, she confirmed that PW1 had recounted being defiled seven times in total, three times in the first week and four times in the second week indicating a sustained pattern of abuse rather than an isolated act. She further testified that the Appellant had told the neighbours "aliweka kofia peke yake,"
10. PW5, Edith Osembe Sireti, a neighbour, gave a lengthy account in her testimony. She recalled that on the morning of 10 th May 2024 she saw the Appellant send away his other children out and lock his door, behavior that, on inquiry through her house-help Belinda, was linked to a practice whereby the Appellant would chase other children away whenever he arrived home so as to remain alone with PW1. Belinda later reported that PW1 had confided that the Appellant "does bad manners" to her after escorting her mother to work, and had warned her not to tell anyone. PW1 repeated this account to PW5 directly, adding that the Appellant had threatened to kill her if she informed anyone. When the matter was raised with PW2, the child's mother, she broke down, admitting she had been warned before, even while living at a previous plot, but had dismissed the warnings as lies told by neighbours who disliked her husband. Confronted directly, the Appellant initially deflected, claiming he gets mapepo (bad spirits) upon entering the house, but under pressure from a neighbour named Kizito, who threatened him, he admitted to inserting his penis a bit, not fully, and claimed this had occurred only once, on the 10 th May 2024 . That the Appellant and PW1 were taken to Nyanchwa Police Station. PW5 confirmed that PW2 had only moved to that plot in March and had no prior dispute with the Appellant.
Defence Case
11. The Appellant, Hesbon Onami Obwaya, in his defence, gave a sworn statement and then closed his case, stated that he is a boda-boda rider and resides at Butori. On 10 th May 2024 at 8.00 p.m. he came home with his wife (PW2). The neighbours called his wife; she stayed out for 30 minutes while he was in the house watching TV. He was then suddenly called by neighbours including (PW5). PW5 said he had told them what he did to the child that morning; he denied this, and there was no way he could have defiled the child. He told them that if they suspected he had defiled the child; they should take her to hospital to be examined. While he stood at the door, one man slapped him and another shouted that he should be burnt. He remained quiet. On the way to the police station, two people defended him, saying that if he had done the act the law would take its course, but others beat him. On arrival at the station, he was placed in the cells.
12. In his further testimony he states that the police took him and the child to hospital together, but he was not examined. The Investigating Officer later recorded his statement, and he told the officer that he does not get along with the neighbours who started the issue. On the 13 th May 2024, he was brought to court and denied the charges. He stated that PW1 told the court she was defiled once, but in her statement said she was defiled between 29/4/24 and 11/5/24 . He said PW1 stated he had never beaten her or done anything bad to her. He noted that PW1 and PW2 confirmed in court that he does not get along with the people who started the issue. The Doctor confirmed he saw an old broken hymen but that everything else was normal, and that he did not examine the Appellant as the Appellant was not present. He submitted that PW5's evidence in court contradicted her police statement, that he does not have a good relationship with PW5, and that they do not greet each other. He urged the court to look at both sides, as there are contradictions in the witness statements. On cross-examination, the Appellant stated that he had lived on that plot for 7 months, which had 40 houses. He had only disagreed with PW5 and Belinda, and not the other neighbours, as they had taught his wife PW2 bad manners. PW5 did not greet him that morning. Every day he left home in the morning and returned at night; the children remained at home alone. In Keroka CMSO. 75/22 he is also the complainant's step-father, PW1 being the complainant in that case as well. They shifted to Kisii and he was brought to court over the same issue.
The Appellant's Submissions
13. The Appellant, submits that the charge sheet itself is fatally defective, since it alleges the offence occurred on diverse dates between 29 th April and 10 th May 2024 rather than specifying a single date, which he argues offends Article 50(2)(b ) of the Constitution and Section 134 of the Criminal Procedure Code , both of which require charges to be specific and unambiguous. He urges the court, sitting as a first appellate court, to subject the entire record to fresh and exhaustive scrutiny rather than merely checking whether some evidence supported the trial court's findings, relying on Okeno v Republic (1972) EA , Pandya v Republic (1975) EA 336 , and Shantilal M. Rewala v Republic (1970) EA 570 , and invokes David Aketch v R 2015 eKLR, for the proposition that glaring inconsistencies in prosecution evidence should not be relied upon.
14. Further he argues that the case appears to have been booked roughly seven months after the alleged offence and in breach of his constitutional rights under Articles 49 and 22 . He singles out PW5 as the prime mover of the case, pointing to contradiction on quarrelling testimony, arguing under Richard Aspella v Republic Appeal No. 45 of 1981 CA and Ramkrishna Denkerai Pandya v Republic Appeal No. 06 of 1990 EACA 93 that contradictory testimony cannot both be true and should not be believed. He suggests PW5 and her house-help Belinda are malicious. He also raises the existence of a prior, apparently acquitted ( Which the Court notes that the matter is still active) similar case at Keroka (SO No. E075 of 2022), suggesting this shows a pattern of him being targeted.
15. On the medical evidence, he stresses that PW3 found an old broken hymen but an otherwise normal vagina and normal lab results, questioning how this is consistent with repeated defilement, and notes that the PRC form recorded an incident date of 6 th May 2024 , inconsistent with the charge sheet's date range, citing Ombena v Republic Court of Appeal Kisumu Criminal Appeal No. 36 of 1981 on the danger of mismatches between charge and proof. He further submits that PW1 never testified to a specific date or time for the offence, and that PW2's account is confused and largely hearsay as to when the incident even occurred. He also flags an inconsistency between PW4's evidence that the OCS informed her of the case on 10 th May 2024 at 11:00 p.m. and the Medical Examination Report, which recorded the report as made on 11 th May 2024 at 2300 hrs. Relying on Okethi Okale v Republic 1965 EA 55 , Karura v Republic Court of Appeal Nairobi Criminal App No 170 of 1984 , and Danson Mgunya v Republic Mombasa Court of Appeal Crininal Appeal No. 21 of 2016 , he submits the trial court failed to properly weigh the defence case alongside the prosecution's, and closes by praying that the appeal be admitted, the conviction quashed, and the 20-year sentence set aside.
The Respondent's Submissions
16. The Respondent, opposed the appeal on two issues for determination: whether the conviction was proper in law, and whether the sentence was manifestly harsh, excessive, or unlawful. On conviction, counsel relies on Nyokabi v Republic [2024] KECA 1199 for the three essential ingredients of defilement, that the Complainant is a child, that penetration occurred, and that the accused was positively identified as the perpetrator. The Respondent submits that all three were proved to the required standard. On the age of the complainant, the Respondent points to PW1's own testimony together with the birth certificate produced as an exhibit, setting her age at approximately twelve years, and submits this discharged the prosecution's burden on that element, citing Mwangi v Republic Criminal Appeal E001 of 2022 and Kalungu Kasomo v Republic Criminal Appeal No. 504 of 2010 on the centrality of proving age in sexual offences.
17. On penetration, the Respondent relies on the statutory definition under Section 2 of the Sexual Offences Act and submits that PW1's own account of being undressed, laid on the bed, and penetrated was clear and unequivocal, further corroborated by the medical evidence of PW3. Citing Muhendu v Republic [2024] KECA 322(KLR), counsel submits that penetration may be proved by direct or circumstantial evidence, and that the survivor's own testimony is the primary evidence required, with corroboration not being a strict legal requirement under the proviso to Section 124 of the Evidence Act , though corroboration was nonetheless present here. On identification, the Respondent characterizes this as a case of recognition rather than identification, since PW1 knew the Appellant well as her step-father, and notes that her account was independently corroborated by PW5, who saw the Appellant enter the house with the Complainant while sending the other children away on an errand. The Respondent submits the trial court correctly found the complainant had no reason to frame the Appellant, and that the defence amounted to nothing more than a bare denial incapable of displacing the prosecution's evidence.
18. On sentence, the Respondent submits that Section 8(3) of the Sexual Offences Act prescribes a mandatory minimum sentence of twenty years for defilement of a child aged between twelve and fifteen years, and that the twenty-year sentence imposed is therefore the least possible term available under the law, not one that can be characterized as harsh or excessive. This is supported by reference to the Supreme Court's decision in Republic v Joshua Gichuki Mwangi [2024] KESC 34, which settled the legality of the mandatory minimum sentence under the Act, and the Court of Appeal's decision in Charles & another v Republic [2024] KECA 1902. The Respondent concludes by urging the court to find the conviction safe, uphold both the conviction and sentence, and dismiss the appeal in its entirety
Analysis And Determination
19. This being a first appellate court, it has a duty to scrutinize and evaluate the evidence afresh, while cautioned enough, that it did not have the advantage of seeing or hearing the witnesses testify during trial, whilst giving due allowance for the trial court’s findings. This is well set out in decision of the Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 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 demeanour, 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 demeanour which may show whether a statement is credible or not which may warrant a court differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.”
20. I have read the respective parties’ submissions, given due consideration to the trial court’s proceedings as well as the record of Appeal . The following issues arise for my determination: -
a. Whether the Prosecution proved its case beyond reasonable doubt.
b. Whether the sentence was harsh and excessive.
Whether the Prosecution proved its case beyond reasonable doubt.
21. The Appellant was charged under Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act which provides; -
“(1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.
(3) 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”
22. The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act, the main elements of the offence of defilement are that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice.
23. In Mwalango Chichoro Mwanjembe V. Republic , Mombasa Criminal Appeal No. 24 of 2015 the Court stated:
“The question of proof of age has finally been settled by recent decisions of this Court to the effect that it can be proved by documentary 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. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R ,Cr.Appeal No.19 of 2014 and Omar Uche v R ,Cr.App.No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda , Crim.Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable.
24. As to the age of the Complainant, there is no doubt and/or contestation of the age of the Complainant. the Complainant’s birth certificate was produced as PExh 1, indicating she was born on 27 th July 2012 . She was approximately 11 Years 9 Months old as at 10 th May 2024 when the offence took place. The trial court seems to have rounded up the years to 12 which cannot be held to be entirely wrong since the Complainant was 3 months’ shy of 12 years. The birth certificate duly exhibited is clear on the age of the complainant and removes any doubts thereon. Therefore, the age of the minor was proved by the birth certificate.
25. On penetration, the Complainant testified that the appellant had sex with her. She narrates that Appellant took her mother to work, and behind closed doors he told her to remove all her clothes while he removed his. She lay on the bed and the Appellant lay on top of her, then the Appellant started putting his penis into her vagina. ( Aliweka susu yake kwa susu yangu ). The Appellant finished, they both dressed up, and the Appellant left and she started watching TV. It is PW5 testimony that the Appellant was seen and admitted that he only inserted the head. PW5 states that the Complainant equally informed her of the sex activities by the Appellant, information which she was equally informed by her House Help Belinda. This information is corroborated by the testimony of PW2 and PW4.
26. PW3 Doctor Peter Morebu Momanyi KTRH Head Medical Legal testified that he examined the Complainant and he observed that there was an old broken hymen and vagina was normal. He produces the Treatment notes, Laboratory Request Forms, Post Rape Care form and P3 Form.
27. On his defence, the Appellant denied having any sexual activities with the Complainant. That he was not examined and that he had good relations with the Neighbors save for PW5 and her Househelp Belinda. He confirms that he has a similar case in Keroka SO E075 of 2022 over the same issue.
28. This court having noted that the findings of the Medical examination were not conclusive, the Doctor indicated the presence of old broken hymen only. The court will proceed to rely on the evidence of the Complainant which was adequately corroborated by PW2, PW4 & PW5.
29. Penetration is defined under Section 2 of the Sexual Offences Act as follows:
“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.”
30. The above section brings out the two main ingredients of defilement; the mens rea which constitutes the intention to insert a genital organ of the other into the genitals of the other and the actus reus which constitutes the act of penetration which ought not to be complete.
31. The Court of Appeal in the case of Mark Ouiruri v Republic (2013) eKLR , expressed itself on what amounts to penetration as follows: -
"…... In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and the penetration need not be deep inside the girl’s organ….”
32. The complainant gave sworn testimony that she knew the Appellant as the Father, the identification was corroborated PW5 who saw the Appellant send away other children and locked the door. She further testifies that aliweka susu yake kwa susu yangu, to mean he inserted his genitalia into her genitalia.
33. On identification of the perpetrator, the Complainant stated that it was the Father, the Appellant who repeatedly defiled her. She stated that she lived with Mum , Dad Sister and Brother, she confirms that the Appellant is the Father and it was Dad who closed the Door, told her to undress and inserted his genitalia on her genitalia. On cross she further stated that she felt a pain and that she loved him and not the bad manners.
34. The trial court subjected the Complainant to a voir dire test for reason that the sole evidence of the penetration was that of the complainant. As guided Section 124 of the Evidence Act allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth .” (Underlined for emphasis)
35. The Trial court upon ascertaining that the Complainant was 12 years of age, she was sworn in and testified, a trial court must be satisfied that the Complainant is telling the truth. In its judgment, the trial court was persuaded that the Complainant of 12 years identified the Appellant in broad daylight, she had an ample time to observe what was happening and he positively identified the assailant as the step-father. The trial court rightfully found that the Appellant’s defence was a mere denial and a blame shift that he was being fixed by PW5 and Belinda was not believable. This court observed that the Complainant in cross examination held that she was not instructed on how to testify, she doesn’t have an issue with the Father save for his bad manners and she would love that they all go home. Notably, the issue that the Appellant was framed did not arise during the cross-examination of PW2.
36. In his submission, the Appellant pointed out that the diverse dates as captured in the charge sheet amounted to inconsistencies, thus the charge sheet is defective. It has been held that a court must consider the defects in a charge from a two-step test. First is to determine whether the charge is defective and if so, whether such defect can be remedied. This was stated by the Court of Appeal in Peter Ngure Mwangi v Republic [2014] Eklr
37. From a cursory perusal of the record, it is possible that the appellant may have committed the offence numerous times and on diverse dates as testified by PW1, precisely two successive weeks and the last day being 10 th April 2026. Ordinarily incidents of the commission of the offence may be in close succession or in long intervals. Resultantly a charge framed in that manner is not defective.
38. It is this Court’s finding that the charge sheet as framed contained, a statement of the specific offence with which the appellant is charged, together with such particulars as to place, period and manner of commission as was necessary for giving reasonable information as to the nature of the offence charged.
39. I am of the considered view that the phrase diverse dates does not amount to a discrepancy, thus unfounded and immaterial. This court is guided by Section 382 of the Criminal Procedure Code which provides that no finding shall be reversed on account of an error or irregularity unless it has occasioned a failure of justice. In Joseph Maina Mwangi v Republic [2000] eKLR, the Court held that discrepancies must be fundamental to create doubt as to the guilt or otherwise of the accused.
40. Based on this analysis therefore, the court is satisfied that the elements of defilement were proved beyond reasonable doubt.
Whether the sentence was harsh and excessive.
41. As to whether the sentence to serve 20 years’ imprisonment was harsh and punitive? The Appellant states that the trial court erred for meting out a 20-year sentence yet the prosecution did not prove its case beyond any reasonable doubt and without any credible evidence from the doctor.
42. The trial court before meting out the sentence allowed the Appellant to mitigate, wherein he prayed for leniency and non-custodial sentence.
43. This court therefore finds no basis in interfering with the Trial court’s sentence.
44. On the right to counsel, Article 50(2) (g & j) of the Constitution provides that an accused person has a right to appoint an advocate of choice. Further the Court shall appoint an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result .
45. A careful review of the record shows that at plea, the charges were read over to the Appellant and explained in Kiswahili, which a plea of not guilty was entered, the record indicates that both English and Kiswahili were used in court. The
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