REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E012 OF 2025
OSCAR MWANGA KISIENYA ‘A’ (DOCTOR)………………………. APPELLANT
VERSUS
REPUBLIC…………………………………………………………………RESPONDENT
(Being an Appeal from the Judgment of Hon S.K. Manyura (RM) delivered at Vihiga in the Senior Principal Magistrate’s Court at Hamisi in Sexual Offence Case No. E062 of 2022 on 29 th January 2024)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act.
2. The Trial Court, Hon S.K. Manyura (RM) convicted him of the main charge and sentenced him to twenty-five (25) years’ imprisonment.
3. Being dissatisfied with the said Judgement, on 25 th March 2025, he lodged an appeal herein. His Petition of Appeal was dated 19 th March 2025 and filed on 25 th March 2025. He set out five (5) grounds of appeal.
4. His Written Submissions were dated 7 th August 2025 and filed on 9 th October 2025 while those of the Respondent were dated 15 th December 2025 and filed on even date. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the Court of Appeal held that the appellate court was not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own conclusions, it had to bear in mind that it neither saw nor heard the witnesses testify and therefore had make due allowance in that regard.
7. Having looked at the Petition of Appeal, the Appellant’s Written Submissions and the Respondent’s Written Submissions, this court noted that the issues that arose for determination were as follows: -
a. Whether or not the Prosecution proved its case against the Appellant beyond reasonable doubt;
b. Whether or not, in the circumstances of this case, the sentence that was meted upon the Appellant herein by the trial court was lawful and/or warranted;
8. The court therefore dealt with the said issues and the rest of the Grounds of Appeal under the following distinct and separate heads.
I. PROOF OF PROSECUTION’S CASE
1. Ground of Appeal Nos (1), (2) and (3) were dealt with under this head as they were all related.
2. In determining whether the Prosecution proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
3. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court considered each ingredient separately.
A. AGE
4. The Appellant did not dispute PW 1’s age or submit on the same. On the other hand, the Respondent submitted that the Complainant’s grandmother, Sarah Agoza Abwere (hereinafter referred to as “PW 2”) told the trial court that the Complainant (hereinafter referred to as “PW 1”) was thirteen (13) years old, while the Investigating Officer No 254649 Kevin Oako (hereinafter referred to as “PW 5”) produced PW 1’s Birth Certificate which corroborated PW 2’s evidence. It, therefore, submitted that the Prosecution had satisfactorily proved PW 1’s age.
5. This court noted that the aforesaid Birth Certificate showed that PW 1 was born on 27 th September 2009. The offence was committed between 22 nd and 24 th October 2022. He was thus thirteen (13) years and one (1) month old at the time the offence was committed. This court was, therefore, satisfied that the Trial Court correctly found that PW 1 was aged thirteen (13) years of age and hence, it was proved beyond reasonable doubt and that he was a child at all material times.
B. IDENTIFICATION
6. The Appellant did not directly challenge his identification. However, he contested the sufficiency of the evidence linking him to the offence. He submitted that PW 1 was the only witness who connected him to the offence and that the failure by the Prosecution to call Fidel and Bravin who were present during the alleged incident,weakened its case and failed to provide independent evidence linking him to the offence.
7. He relied on case of Kiilu & Another vs Republic (2005) 1 KLR 174 where the Court of Appeal held that although a fact could be proved through the testimony of a single witness, such evidence had to be carefully tested.
8. On its part, the Respondent submitted that positive identification of the assailant was one of the essential ingredients in proving the offence of defilement. It relied on case of Charles Wamukoya Karani vs Republic Criminal Appeal No 72 of 2013 (KLR citation not given) where the Court of Appeal held that the ingredients of defilement included proof of the age of the complainant, penetration and positive identification of the perpetrator.
9. It pointed out that PW 1 did not initially know the Appellant when the first incident occurred on 22 nd October 2022 but that on 24 th October 2022, the Appellant lured him to his house, offered him tea and mandazi and thereafter defiled him. It argued that there was, therefore, no possibility of mistaken identity during the second incident.
10. It averred that the evidence before the Trial Court amounted to recognition rather than identification of a stranger. It placed reliance on the case of Anjononi & Others vs Republic (1976-80)1 KLR 1566, 1568 where the Court of Appeal held that recognition of an assailant was more satisfactory, assuring and reliable than identification of a stranger because it was based on prior personal knowledge.
11. It, therefore, submitted that PW 1 properly recognised the Appellant as the perpetrator and that the evidence on identification was sufficient to prove beyond reasonable doubt that the Appellant was the person who committed the offence.
12. This court noted that under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), the law did not require corroboration of the evidence of a complainant in a sexual offence. However, the presence of corroborative evidence could strengthen the prosecution’s case.
13. The proviso to Section 124 of the Evidence Act states that: -
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused 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 victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth (emphasis) . ”
14. According to PW 1, on the material dates of 22 nd and 24 th October 2022, he and ,Brian and Fidel, who were his friends, sought shelter at the Appellant’s person's house after it started raining. While there, the Appellant played pornographic movies before calling him into the bedroom, where he instructed him to remove his clothes and forced him to engage in what PW 1 described as "bad manners", being that the Appellant put his penis in his anus. PW 1 attempted to raise an alarm, but the Appellant squeezed him into the mattress. He stated that he then went home and left his friends here.
15. He further testified that the Appellant repeated the same sexual act on 24 th October 2022 when he returned to his person's house with Fidel. He said that the teachers had sent them to fetch water but that he and Fidel again went to the Appellant’s house where he offered them tea and instructed them to clean the house.
16. He told the Trial Court that the Appellant then called PW 1 into the bedroom and again subjected him to the same sexual act as on 22 nd October 2022. He said that Bravin went to the Appellant’s home earlier and that the Appellant called them one by one. He said that PW 2 came to the Appellant’s house after being led there by his classmates but he hid under the bed. He averred that after leaving the Appellant’s house, he disclosed the incidents to his grandmother, who took him to hospital for medical examination before the matter was reported to the police.
17. This court noted that PW 1 was the principal identifying witness and identified the Appellant in court, as having been the person who committed the offence. The Appellant had defiled him twice so PW 1 had become acquainted with him when he defiled him the second time. This court found that there was no possibility of mistaken identity. Further, PW 1’s evidence on identification was supported by the testimony of PW 2 who confirmed that PW 1 was at the Appellant’s house..
18. The Appellant’s assertions that the Trial Court did not consider his defence fell by the wayside. His defence amounted to a mere denial which did not displace the cogent evidence presented by the Prosecution. This is because the circumstances placed the issue of identification within the context of recognition rather than identification of a stranger. This court, therefore, found that the Prosecution had proved the ingredient of identification beyond reasonable doubt.
C. PENETRATION
19. The Appellant did not did not raise any specific challenge regarding the medical evidence, proof of penetration or the sufficiency of the evidence establishing penetration. His submissions were primarily centered on the failure by the Prosecution to prove its case beyond reasonable doubt, the existence of contradictions and inconsistencies in the evidence of the Prosecution’s witnesses, the circumstances surrounding the offence and the failure by the Prosecution to call crucial witnesses.
20. He submitted that the Prosecution bore the burden of proving all the ingredients of the offence beyond reasonable doubt. He relied on Section 107(1) of the Evidence Act Cap 80 (Laws of Kenya), and submitted that the Prosecution was required to place before the court evidence sufficient to sustain a conviction.
21. He argued that defilement was an offence that was ordinarily committed in private and that the court ought to have carefully considered the circumstances under which the offence occurred while determining whether the ingredients of the offence had been established.
22. He relied on the case of P.O.N v Republic [2019] eKLR where the Court of Appeal held that the guilt of an accused person was not only rational reference but that it had to be drawn from the circumstances.
23. He further relied on the case Absalom Amboka Okila v Republic [2020] eKLR where the court observed that the circumstances under which an offence was alleged to have been committed could not be ignored when determining whether a sexual offence had been proved.
24. He asserted that the Trial Court failed to analyse contradictions by PW 1 on where he was. He pointed out that PW 1 said that he left Bravin and Fidel and went home where he got PW 2 while PW 2 said that when she asked PW 1 where he was, he said that he was with Fidel. He also averred that PW 2 said that she visited his home and heard PW 1’s voice but at the Station, she said that PW 1 was not at his homestead.
25. He asserted that the Prosecution’s case had been fabricated and that PW 2, had a motive to falsely accuse him, which explained why the Prosecution never called Fidel and Bravin as witnesses to testify.
26. He submitted that the evidence the Prosecution tendered did not meet the required threshold of proof required in criminal cases, which was proof beyond reasonable doubt . He maintained that conviction was unsafe and urged this court to quash the conviction and set aside the sentence of twenty-five (25) years’ imprisonment, and order his release.
27. On its part, the Respondent rehashed the evidence that was adduced by the Prosecution in its Written Submissions. It submitted that the evidence of the Clinical Officer, Cornelius Charles Ongaya (hereinafter referred to as PW 6) confirmed the presence of minimal bruising in the anal region leading him to formed the opinion that PW 1 had been sodomised.
28. It relied on the case of Mohammed Omar Mohammed vs Republic [2020] eKLR in which it was held that in order to prove penetration in rape and penetration, the testimony of the complainant was the primary evidence in proving penetration and could be corroborated by medical evidence. It relied on Section 2 of the Sexual Offences Act which defined “penetration” as “the partial or complete insertion of the genital organs of one person into the genital organs of another person.”
29. It also placed reliance on case of S.O.O vs Republic (2018) eKLR which adopted the reasoning in the case of Dickson Elia Nsamba Shapwata & Another vs Republic Criminal Appeal No 92 of 2007 (KLR citation not given) where the court held that when evaluating contradictions, inconsistencies and omissions, the court had to determine whether they were minor or whether they went to the root of the case.
30. It submitted that the Appellant had not demonstrated any contradictions that affected the essential ingredients of the offence of defilement or created reasonable doubt. It argued that the inconsistencies relating to the sequence of events and the evidence of the witnesses did not displace the Prosecution’s evidence on the age of the PW 1, penetration, and identification of the Appellant.
31. It added that it was not required to call every person who may have witnessed part of the events. In this regard, it relied on Section 143 of the Evidence Act, which provided that no particular number of witnesses was required to prove any fact unless the law provided otherwise as was also held in the case of Keter vs Republic (2007) EA 135 where the court held that the prosecution was not required to call a superfluity of witnesses but only such witnesses as were sufficient to establish the charge beyond reasonable doubt. It was emphatic that it had called the crucial witnesses to prove its case being PW 1 and PW 6 who corroborated his evidence.
32. It averred that the Trial Court considered the Appellant’s defence and hence, he did not rebut the Prosecution’s evidence. Hence, it urged this court to dismiss the Appeal herein.
33. PW 6 confirmed that that he examined PW 1 and noted that PW 1 had minimal bruising at anal region with no discharge. He, therefore, formed the opinion that PW 1 had been sodomised.
34. It was evident that the evidence of PW 1 was corroborated and supported by the medical evidence tendered by PW 6. The Appellant’s contention that penetration had not been proved beyond reasonable doubt therefore could not stand.
35. Accordingly, Grounds of Appeal Nos (1), (2) and (3) of the Petition of Appeal were not merited and the same be and are hereby dismissed.
II. SENTENCE
36. Ground of Appeal No (4) was dealt under this head.
37. The Appellant submitted that the Trial Court convicted him of the offence of defilement and sentenced him to twenty-five (25) years’ imprisonment. He urged this court to quash it and set him at liberty. He had raised the issue of the period he had spent in remand while his case was on-going in line with Section 333(2) of the Criminal Procedure Code but he did not submit on the same.
38. The Respondent submitted that the Trial court correctly sentenced him to twenty-five (25) years’ imprisonment as Section 8 (3) of the Sexual Offences Act prescribed a minimum sentence of twenty (20) years’ imprisonment for defilement involving a child aged between twelve (12) and fifteen (15) years. It urged this court to uphold the sentence in view of the gravity of the offence.
39. It, however, acknowledged that the Trial Court did not expressly indicate that it had taken into account the period the Appellant spent in custody as required under Section 333 (2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). It relied on the case of Ahamad Abolfathi Mohammed & Another vs Republic (2018) eKLR where the Court of Appeal held that taking into account the period spent in custody meant that the sentence-imposed ought to be reduced proportionately by the period already spent in custody.
40. Section 8(3) of the Sexual Offences Act Cap 63 A (Laws of Kenya) provides as follows: -
“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”
41. The Trial Court could not be faulted for sentencing the Appellant to twenty-five (25) years’ imprisonment since it was lawful. However, it did not indicate what aggravating factors it considered to mete on the Appellant a higher sentence that the mandatory minimum that was prescribed under Section 8(2) of the Sexual Offences Act.
42. Indeed, Article 50(2)(p) of the Constitution of Kenya, 2010 provides as follows:-
“Every accused person has the right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing”
43. This court was aware of the decision that was delivered on 12 th July 2024 in which the Supreme Court overturned the decision of the Court of Appeal in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR and held that the Court of Appeal had no jurisdiction to mete out any sentence that is less than the mandatory minimum sentence that is prescribed in the Sexual Offences Act.
44. While this court was bound by the decisions of superior courts, it noted that the sentence of twenty-five (25) years was not the mandatory minimum and hence, it could interfere with the same. In the absence of any justification why the Appellant could not enjoy the benefit of the least prescribed sentence as was guaranteed to him by Article 50(2)(p) of the Constitution of Kenya, this court found and held that a sentence of twenty (20) years was most appropriate in the circumstances of the case herein.
45. Going further, this court was mandated to consider the period the Appellant spent in remand custody during the trial as provided under Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) which provides that: -
“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody ” (emphasis court).
46. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that: -
“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: …
Time already spent in prison by the convict…”
47. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
48. This court perused the proceedings of the Trial Court which indicated that the Appellant was arrested and charged on 25 th October 2022. Although he was granted bail, he did not appear to have gone out on bond. He was sentenced on 29 th January 2024. The period that he spent in custody while his trial was ongoing, therefore, ought to have been taken into account in line Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). The Trial Court, therefore, erred for not having taken the said period into account while sentencing the Appellant herein.
49. In the premises foregoing, Ground of Appeal No (4) was merited and the same be and is hereby allowed.
DISPOSITION
50. For the foregoing reasons, this court found was that the Appellant’s Petition of Appeal dated 19 th March 2025 and filed on 25 th March 2025 was partially merited. The conviction be and is hereby upheld as the same was safe. However, the sentence of twenty- five (25) years be and is hereby set aside and/or vacated and replaced with an order that the Appellant be and is hereby sentenced to twenty (20) years imprisonment that is to run from the date of the sentence of the lower court.
51. For the avoidance of doubt, the period spent by the Appellant in custody between 25 th October 2022 and 28 th January 2024 be and is hereby taken into account in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) when computing his sentence.
52. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of July 2026
J. KAMAU
JUDGE
HCCRA NO e012 OF 20252
IN THE HIGH COURT OF KENYA AT VIHIGA
CRIMINAL APPEAL NO E012 OF 2025
OSCAR MWANGA KISIENYA ‘A’ (DOCTOR)………………………. APPELLANT
VERSUS
REPUBLIC…………………………………………………………………RESPONDENT
(Being an Appeal from the Judgment of Hon S.K. Manyura (RM) delivered at Vihiga in the Senior Principal Magistrate’s Court at Hamisi in Sexual Offence Case No. E062 of 2022 on 29 th January 2024)
JUDGMENT
INTRODUCTION
1. The Appellant herein was charged with the offence of defilement contrary to Section 8 (1) as read with Section 8 (3) of the Sexual Offences Act No 3 of 2006. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11 (1) of the Sexual Offences Act.
2. The Trial Court, Hon S.K. Manyura (RM) convicted him of the main charge and sentenced him to twenty-five (25) years’ imprisonment.
3. Being dissatisfied with the said Judgement, on 25 th March 2025, he lodged an appeal herein. His Petition of Appeal was dated 19 th March 2025 and filed on 25 th March 2025. He set out five (5) grounds of appeal.
4. His Written Submissions were dated 7 th August 2025 and filed on 9 th October 2025 while those of the Respondent were dated 15 th December 2025 and filed on even date. The Judgment herein is based on the said Written Submissions which both parties relied upon in their entirety.
LEGAL ANALYSIS
5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify.
6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the Court of Appeal held that the appellate court was not bound by the findings of fact of the trial court. However, in re-considering and re-evaluating the evidence so as to draw its own conclusions, it had to bear in mind that it neither saw nor heard the witnesses testify and therefore had make due allowance in that regard.
7. Having looked at the Petition of Appeal, the Appellant’s Written Submissions and the Respondent’s Written Submissions, this court noted that the issues that arose for determination were as follows: -
a. Whether or not the Prosecution proved its case against the Appellant beyond reasonable doubt;
b. Whether or not, in the circumstances of this case, the sentence that was meted upon the Appellant herein by the trial court was lawful and/or warranted;
8. The court therefore dealt with the said issues and the rest of the Grounds of Appeal under the following distinct and separate heads.
I. PROOF OF PROSECUTION’S CASE
1. Ground of Appeal Nos (1), (2) and (3) were dealt with under this head as they were all related.
2. In determining whether the Prosecution proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement.
3. It is now settled that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR . This court considered each ingredient separately.
A. AGE
4. The Appellant did not dispute PW 1’s age or submit on the same. On the other hand, the Respondent submitted that the Complainant’s grandmother, Sarah Agoza Abwere (hereinafter referred to as “PW 2”) told the trial court that the Complainant (hereinafter referred to as “PW 1”) was thirteen (13) years old, while the Investigating Officer No 254649 Kevin Oako (hereinafter referred to as “PW 5”) produced PW 1’s Birth Certificate which corroborated PW 2’s evidence. It, therefore, submitted that the Prosecution had satisfactorily proved PW 1’s age.
5. This court noted that the aforesaid Birth Certificate showed that PW 1 was born on 27 th September 2009. The offence was committed between 22 nd and 24 th October 2022. He was thus thirteen (13) years and one (1) month old at the time the offence was committed. This court was, therefore, satisfied that the Trial Court correctly found that PW 1 was aged thirteen (13) years of age and hence, it was proved beyond reasonable doubt and that he was a child at all material times.
B. IDENTIFICATION
6. The Appellant did not directly challenge his identification. However, he contested the sufficiency of the evidence linking him to the offence. He submitted that PW 1 was the only witness who connected him to the offence and that the failure by the Prosecution to call Fidel and Bravin who were present during the alleged incident,weakened its case and failed to provide independent evidence linking him to the offence.
7. He relied on case of Kiilu & Another vs Republic (2005) 1 KLR 174 where the Court of Appeal held that although a fact could be proved through the testimony of a single witness, such evidence had to be carefully tested.
8. On its part, the Respondent submitted that positive identification of the assailant was one of the essential ingredients in proving the offence of defilement. It relied on case of Charles Wamukoya Karani vs Republic Criminal Appeal No 72 of 2013 (KLR citation not given) where the Court of Appeal held that the ingredients of defilement included proof of the age of the complainant, penetration and positive identification of the perpetrator.
9. It pointed out that PW 1 did not initially know the Appellant when the first incident occurred on 22 nd October 2022 but that on 24 th October 2022, the Appellant lured him to his house, offered him tea and mandazi and thereafter defiled him. It argued that there was, therefore, no possibility of mistaken identity during the second incident.
10. It averred that the evidence before the Trial Court amounted to recognition rather than identification of a stranger. It placed reliance on the case of Anjononi & Others vs Republic (1976-80)1 KLR 1566, 1568 where the Court of Appeal held that recognition of an assailant was more satisfactory, assuring and reliable than identification of a stranger because it was based on prior personal knowledge.
11. It, therefore, submitted that PW 1 properly recognised the Appellant as the perpetrator and that the evidence on identification was sufficient to prove beyond reasonable doubt that the Appellant was the person who committed the offence.
12. This court noted that under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), the law did not require corroboration of the evidence of a complainant in a sexual offence. However, the presence of corroborative evidence could strengthen the prosecution’s case.
13. The proviso to Section 124 of the Evidence Act states that: -
“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused 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 victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth (emphasis) . ”
14. According to PW 1, on the material dates of 22 nd and 24 th October 2022, he and ,Brian and Fidel, who were his friends, sought shelter at the Appellant’s person's house after it started raining. While there, the Appellant played pornographic movies before calling him into the bedroom, where he instructed him to remove his clothes and forced him to engage in what PW 1 described as "bad manners", being that the Appellant put his penis in his anus. PW 1 attempted to raise an alarm, but the Appellant squeezed him into the mattress. He stated that he then went home and left his friends here.
15. He further testified that the Appellant repeated the same sexual act on 24 th October 2022 when he returned to his person's house with Fidel. He said that the teachers had sent them to fetch water but that he and Fidel again went to the Appellant’s house where he offered them tea and instructed them to clean the house.
16. He told the Trial Court that the Appellant then called PW 1 into the bedroom and again subjected him to the same sexual act as on 22 nd October 2022. He said that Bravin went to the Appellant’s home earlier and that the Appellant called them one by one. He said that PW 2 came to the Appellant’s house after being led there by his classmates but he hid under the bed. He averred that after leaving the Appellant’s house, he disclosed the incidents to his grandmother, who took him to hospital for medical examination before the matter was reported to the police.
17. This court noted that PW 1 was the principal identifying witness and identified the Appellant in court, as having been the person who committed the offence. The Appellant had defiled him twice so PW 1 had become acquainted with him when he defiled him the second time. This court found that there was no possibility of mistaken identity. Further, PW 1’s evidence on identification was supported by the testimony of PW 2 who confirmed that PW 1 was at the Appellant’s house..
18. The Appellant’s assertions that the Trial Court did not consider his defence fell by the wayside. His defence amounted to a mere denial which did not displace the cogent evidence presented by the Prosecution. This is because the circumstances placed the issue of identification within the context of recognition rather than identification of a stranger. This court, therefore, found that the Prosecution had proved the ingredient of identification beyond reasonable doubt.
C. PENETRATION
19. The Appellant did not did not raise any specific challenge regarding the medical evidence, proof of penetration or the sufficiency of the evidence establishing penetration. His submissions were primarily centered on the failure by the Prosecution to prove its case beyond reasonable doubt, the existence of contradictions and inconsistencies in the evidence of the Prosecution’s witnesses, the circumstances surrounding the offence and the failure by the Prosecution to call crucial witnesses.
20. He submitted that the Prosecution bore the burden of proving all the ingredients of the offence beyond reasonable doubt. He relied on Section 107(1) of the Evidence Act Cap 80 (Laws of Kenya), and submitted that the Prosecution was required to place before the court evidence sufficient to sustain a conviction.
21. He argued that defilement was an offence that was ordinarily committed in private and that the court ought to have carefully considered the circumstances under which the offence occurred while determining whether the ingredients of the offence had been established.
22. He relied on the case of P.O.N v Republic [2019] eKLR where the Court of Appeal held that the guilt of an accused person was not only rational reference but that it had to be drawn from the circumstances.
23. He further relied on the case Absalom Amboka Okila v Republic [2020] eKLR where the court observed that the circumstances under which an offence was alleged to have been committed could not be ignored when determining whether a sexual offence had been proved.
24. He asserted that the Trial Court failed to analyse contradictions by PW 1 on where he was. He pointed out that PW 1 said that he left Bravin and Fidel and went home where he got PW 2 while PW 2 said that when she asked PW 1 where he was, he said that he was with Fidel. He also averred that PW 2 said that she visited his home and heard PW 1’s voice but at the Station, she said that PW 1 was not at his homestead.
25. He asserted that the Prosecution’s case had been fabricated and that PW 2, had a motive to falsely accuse him, which explained why the Prosecution never called Fidel and Bravin as witnesses to testify.
26. He submitted that the evidence the Prosecution tendered did not meet the required threshold of proof required in criminal cases, which was proof beyond reasonable doubt . He maintained that conviction was unsafe and urged this court to quash the conviction and set aside the sentence of twenty-five (25) years’ imprisonment, and order his release.
27. On its part, the Respondent rehashed the evidence that was adduced by the Prosecution in its Written Submissions. It submitted that the evidence of the Clinical Officer, Cornelius Charles Ongaya (hereinafter referred to as PW 6) confirmed the presence of minimal bruising in the anal region leading him to formed the opinion that PW 1 had been sodomised.
28. It relied on the case of Mohammed Omar Mohammed vs Republic [2020] eKLR in which it was held that in order to prove penetration in rape and penetration, the testimony of the complainant was the primary evidence in proving penetration and could be corroborated by medical evidence. It relied on Section 2 of the Sexual Offences Act which defined “penetration” as “the partial or complete insertion of the genital organs of one person into the genital organs of another person.”
29. It also placed reliance on case of S.O.O vs Republic (2018) eKLR which adopted the reasoning in the case of Dickson Elia Nsamba Shapwata & Another vs Republic Criminal Appeal No 92 of 2007 (KLR citation not given) where the court held that when evaluating contradictions, inconsistencies and omissions, the court had to determine whether they were minor or whether they went to the root of the case.
30. It submitted that the Appellant had not demonstrated any contradictions that affected the essential ingredients of the offence of defilement or created reasonable doubt. It argued that the inconsistencies relating to the sequence of events and the evidence of the witnesses did not displace the Prosecution’s evidence on the age of the PW 1, penetration, and identification of the Appellant.
31. It added that it was not required to call every person who may have witnessed part of the events. In this regard, it relied on Section 143 of the Evidence Act, which provided that no particular number of witnesses was required to prove any fact unless the law provided otherwise as was also held in the case of Keter vs Republic (2007) EA 135 where the court held that the prosecution was not required to call a superfluity of witnesses but only such witnesses as were sufficient to establish the charge beyond reasonable doubt. It was emphatic that it had called the crucial witnesses to prove its case being PW 1 and PW 6 who corroborated his evidence.
32. It averred that the Trial Court considered the Appellant’s defence and hence, he did not rebut the Prosecution’s evidence. Hence, it urged this court to dismiss the Appeal herein.
33. PW 6 confirmed that that he examined PW 1 and noted that PW 1 had minimal bruising at anal region with no discharge. He, therefore, formed the opinion that PW 1 had been sodomised.
34. It was evident that the evidence of PW 1 was corroborated and supported by the medical evidence tendered by PW 6. The Appellant’s contention that penetration had not been proved beyond reasonable doubt therefore could not stand.
35. Accordingly, Grounds of Appeal Nos (1), (2) and (3) of the Petition of Appeal were not merited and the same be and are hereby dismissed.
II. SENTENCE
36. Ground of Appeal No (4) was dealt under this head.
37. The Appellant submitted that the Trial Court convicted him of the offence of defilement and sentenced him to twenty-five (25) years’ imprisonment. He urged this court to quash it and set him at liberty. He had raised the issue of the period he had spent in remand while his case was on-going in line with Section 333(2) of the Criminal Procedure Code but he did not submit on the same.
38. The Respondent submitted that the Trial court correctly sentenced him to twenty-five (25) years’ imprisonment as Section 8 (3) of the Sexual Offences Act prescribed a minimum sentence of twenty (20) years’ imprisonment for defilement involving a child aged between twelve (12) and fifteen (15) years. It urged this court to uphold the sentence in view of the gravity of the offence.
39. It, however, acknowledged that the Trial Court did not expressly indicate that it had taken into account the period the Appellant spent in custody as required under Section 333 (2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). It relied on the case of Ahamad Abolfathi Mohammed & Another vs Republic (2018) eKLR where the Court of Appeal held that taking into account the period spent in custody meant that the sentence-imposed ought to be reduced proportionately by the period already spent in custody.
40. Section 8(3) of the Sexual Offences Act Cap 63 A (Laws of Kenya) provides as follows: -
“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”
41. The Trial Court could not be faulted for sentencing the Appellant to twenty-five (25) years’ imprisonment since it was lawful. However, it did not indicate what aggravating factors it considered to mete on the Appellant a higher sentence that the mandatory minimum that was prescribed under Section 8(2) of the Sexual Offences Act.
42. Indeed, Article 50(2)(p) of the Constitution of Kenya, 2010 provides as follows:-
“Every accused person has the right to a fair trial, which includes the right to the benefit of the least severe of the prescribed punishments for an offence, if the prescribed punishment for the offence has been changed between the time that the offence was committed and the time of sentencing”
43. This court was aware of the decision that was delivered on 12 th July 2024 in which the Supreme Court overturned the decision of the Court of Appeal in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR and held that the Court of Appeal had no jurisdiction to mete out any sentence that is less than the mandatory minimum sentence that is prescribed in the Sexual Offences Act.
44. While this court was bound by the decisions of superior courts, it noted that the sentence of twenty-five (25) years was not the mandatory minimum and hence, it could interfere with the same. In the absence of any justification why the Appellant could not enjoy the benefit of the least prescribed sentence as was guaranteed to him by Article 50(2)(p) of the Constitution of Kenya, this court found and held that a sentence of twenty (20) years was most appropriate in the circumstances of the case herein.
45. Going further, this court was mandated to consider the period the Appellant spent in remand custody during the trial as provided under Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) which provides that: -
“Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code
Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody ” (emphasis court).
46. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that: -
“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing: …
Time already spent in prison by the convict…”
47. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in the case of Ahamad Abolfathi Mohammed & Another vs Republic (Supra).
48. This court perused the proceedings of the Trial Court which indicated that the Appellant was arrested and charged on 25 th October 2022. Although he was granted bail, he did not appear to have gone out on bond. He was sentenced on 29 th January 2024. The period that he spent in custody while his trial was ongoing, therefore, ought to have been taken into account in line Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). The Trial Court, therefore, erred for not having taken the said period into account while sentencing the Appellant herein.
49. In the premises foregoing, Ground of Appeal No (4) was merited and the same be and is hereby allowed.
DISPOSITION
50. For the foregoing reasons, this court found was that the Appellant’s Petition of Appeal dated 19 th March 2025 and filed on 25 th March 2025 was partially merited. The conviction be and is hereby upheld as the same was safe. However, the sentence of twenty- five (25) years be and is hereby set aside and/or vacated and replaced with an order that the Appellant be and is hereby sentenced to twenty (20) years imprisonment that is to run from the date of the sentence of the lower court.
51. For the avoidance of doubt, the period spent by the Appellant in custody between 25 th October 2022 and 28 th January 2024 be and is hereby taken into account in accordance with Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) when computing his sentence.
52. It is so ordered.
DATED and DELIVERED at VIHIGA this 28 th day of July 2026
J. KAMAU
JUDGE
HCCRA NO e012 OF 20252