1. Joseph Ouma Odhiambo, the appellant herein, was convicted of the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006.
2. The particulars of the offence are that on diverse dates between the 3rd day of December 2021 and the 4th day of December 2021, at God Kwach village, Nyatike sub-county within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of V.A.O, a child aged seven years.
3. The appellant was sentenced to serve forty-five years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) That the trial magistrate erred by relying on the evidence that was full of contradictions.
b) That the court erred by admitting evidence that had no nexus to the appellant and shifted the burden of proof from the prosecution.
c) That the court erred by finding that the charge had been proved.
d) That the court erred by imposing an irregular, punitive, and harsh sentence.
4. The state opposed the appeal through M/s Elizabeth Kogos, learned counsel. She contended that the appeal lacked merit.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32.
6. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator and
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR. Ngugi J. (as he was then) said:
Going by this definition of defilement… the issues which the court needs to determine…first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
7. I will determine if the prosecution proved these ingredients to the required standards.
8. V.A.O (PW1), the complainant, underwent an age assessment, which was conducted by Dr Dalcie Nyagito, who estimated her age to be 7 years. Therefore, her age was successfully established as required.
9. On December 4, 2021, E.A. (PW2), her mother, sent the complainant to deliver some gruel to her grandmother. PW1 testified that while she was on her way, the appellant asked to accompany her. He led her through a bush, where he assaulted her. This was the second time he had defiled her. She did not tell her parents about it because she feared punishment.
10. When E.A. (PW2) observed the complainant walking with a limp, she asked about the cause. The complainant explained she had been defiled and identified her defiler, which resulted in the arrest of the appellant.
11. Victor Otieno Ngito (PW4) examined the complainant and found that her vagina was torn, her hymen was broken, and she had blood-stained discharge. He concluded that she had been defiled.
12. Joseph Ouma Odhiambo, the appellant, contended that he was falsely implicated by PW2 because her husband owed him some money for services he had rendered. He never confronted PW2 with the allegation, even though he had said she had fabricated the case against him. H.O.A (PW3), the complainant’s father, denied having employed him in 2020.
13. The appellant’s claim of being falsely accused was unconvincing, and the trial magistrate correctly rejected this defence.
14. The complainant’s father saw the appellant leave in the company of the complainant when she was sent. The issue of mistaken identity did not arise.
15. After examining the available evidence, I found no reason for the trial magistrate to doubt the minor. The evidence was sufficient to connect the appellant to the crime.
16. Section 8(2) of the Sexual Offences Act provides:
A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
17. Although the appellant claimed the sentence was harsh, he was actually given an illegal sentence that was shorter than what is legally prescribed. Because the state did not seek an enhancement and failed to provide him with the necessary notice, I will not modify the sentence.
18. The conclusion from the above analysis of the available evidence is that the appeal has no merit and the same is dismissed.
Delivered and signed at Migori on this 23rd day of February 2026
2. The particulars of the offence are that on diverse dates between the 3rd day of December 2021 and the 4th day of December 2021, at God Kwach village, Nyatike sub-county within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of V.A.O, a child aged seven years.
3. The appellant was sentenced to serve forty-five years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) That the trial magistrate erred by relying on the evidence that was full of contradictions.
b) That the court erred by admitting evidence that had no nexus to the appellant and shifted the burden of proof from the prosecution.
c) That the court erred by finding that the charge had been proved.
d) That the court erred by imposing an irregular, punitive, and harsh sentence.
4. The state opposed the appeal through M/s Elizabeth Kogos, learned counsel. She contended that the appeal lacked merit.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs the Republic [1972] EA 32.
6. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator and
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR. Ngugi J. (as he was then) said:
Going by this definition of defilement… the issues which the court needs to determine…first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
7. I will determine if the prosecution proved these ingredients to the required standards.
8. V.A.O (PW1), the complainant, underwent an age assessment, which was conducted by Dr Dalcie Nyagito, who estimated her age to be 7 years. Therefore, her age was successfully established as required.
9. On December 4, 2021, E.A. (PW2), her mother, sent the complainant to deliver some gruel to her grandmother. PW1 testified that while she was on her way, the appellant asked to accompany her. He led her through a bush, where he assaulted her. This was the second time he had defiled her. She did not tell her parents about it because she feared punishment.
10. When E.A. (PW2) observed the complainant walking with a limp, she asked about the cause. The complainant explained she had been defiled and identified her defiler, which resulted in the arrest of the appellant.
11. Victor Otieno Ngito (PW4) examined the complainant and found that her vagina was torn, her hymen was broken, and she had blood-stained discharge. He concluded that she had been defiled.
12. Joseph Ouma Odhiambo, the appellant, contended that he was falsely implicated by PW2 because her husband owed him some money for services he had rendered. He never confronted PW2 with the allegation, even though he had said she had fabricated the case against him. H.O.A (PW3), the complainant’s father, denied having employed him in 2020.
13. The appellant’s claim of being falsely accused was unconvincing, and the trial magistrate correctly rejected this defence.
14. The complainant’s father saw the appellant leave in the company of the complainant when she was sent. The issue of mistaken identity did not arise.
15. After examining the available evidence, I found no reason for the trial magistrate to doubt the minor. The evidence was sufficient to connect the appellant to the crime.
16. Section 8(2) of the Sexual Offences Act provides:
A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.
17. Although the appellant claimed the sentence was harsh, he was actually given an illegal sentence that was shorter than what is legally prescribed. Because the state did not seek an enhancement and failed to provide him with the necessary notice, I will not modify the sentence.
18. The conclusion from the above analysis of the available evidence is that the appeal has no merit and the same is dismissed.
Delivered and signed at Migori on this 23rd day of February 2026