The Appellant Paul Otieno Ojwang was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006.
Particulars of the offense are that during the month of October 2022 at Ombo area in Suna East Sub County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully caused his male genital organ namely penis to penetrate the female genital organ namely vagina of W.A a child aged 9yrs.
He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars of the Alternative charge are that during the month of October 2022 at Ombo area in Suna East Sub County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully touched the female genital organ namely vagina of W.A a child aged 9yrs with his male genital organ namely penis.
Based on the evidence of four (4) prosecution witnesses against the evidence of the Appellant, the Trial Magistrate convicted him and sentenced him to serve 20 years’ imprisonment.
The Appellant lodged a Petition for appeal for leniency against the sentence only dated 23rd January 2024 based on the following grounds:
1. That he pleaded not guilty to the charge herein
2. That the sentence meted although lawful was manifestly harsh and excessive in the circumstances hence he prayed the sentence be reduced.
Reasons wherefore the Appellant prayed that the sentence be reduced and a leave of the court be granted to adduce more grounds of appeal after reception of the lower court’s proceedings.
The Prosecution’s case was backed up by four (4) witnesses who testified as follows:
PW1 - W.A the Complainant herein gave evidence after the Trial Court conducted a voire dire examination and established that she was intelligent enough to testify. She stated that she lived with her Aunt Sharon Achieng and grandmother at Ombok and schooled at Kadika Primary School in Grade 4. It was her testimony that in October 2022 she was in the house with her Cousin Smith who informed her that the Appellant who was their neighbor was calling her. That she woke up from her sleep and went outside to check and found the Appellant Standing by the door. It was PW1’s testimony that her Aunt and grandmother were away and the Appellant told her to go to the bathroom as they lived in the same plot which had 3 houses within the compound.
She stated that it was around 1.00 p.m. and the Appellant held her right hand and took her behind the bathroom. That while behind the bathroom the Appellant removed her inner pant and put her on the ground while facing upwards then he removed his trousers and did "tabia mbaya" to her. She described that the Appellant removed his penis and inserted into her vagina and after he was through he left and told her to go and take a bath. That when the Appellant was doing "tabia mbaya" to her she tried to scream but he covered her mouth. She stated further that on another occasion, the Appellant called her to his house and told her to go and buy a soda for him. It was PW1’s testimony that the Appellant was married and had 4 children who were not present at the time. She stated that the Appellant lifted her onto his bed and repeated what he had done to her previously.
That when the Appellant’s son came from school and questioned why PW1’s slippers were under the bed she informed him of what his father had done to her and the son promised to inform his mother about the incident. It was PW1’s testimony that the Appellant did “tabia mbaya” to her about five times and she only informed her Aunt what she was going through when the Aunt saw her standing behind the toilet with the Appellant on the incident day. She stated that she did not tell her Aunt earlier for fear of being beaten up. That after she disclosed to her Aunt she was taken to the police where she recorded her statements then Accompanied her Aunt to the District hospital where she was examined and various forms filled including: Laboratory report form, treatment notes, P3 and PRC forms marked MFI 1-4. PW1 then presented her birth certificate marked MFI 5 indicating that she was born on 4/7/2013.
In cross-examination she stated that in October she was living with her grandmother and no one had sex with her. That her Aunt Sharon never coached her on what to say in court.
PW2 Sharon Achieng the Complainant’s aunt testified that on a Tuesday in October 2022 she came from work at around 5.00 pm and upon arriving at home, she saw the Complainant behind the bathroom and her neighbor the Appellant was also around the same area. That she became suspicious from the manner the Complainant was walking and inquired what she was doing behind the bathroom. She stated that the Complainant informed her that the Appellant had removed her underpants and inserted his penis into her vagina. That she inquired from the Complainant how many times such had happened to her and she responded that the Appellant had done that to her several times in exchange for between Ksh.15- Ksh.20. PW2 stated that she made a report to Migori police station two weeks after talking to Complainant who accompanied her to the police station and later to the District hospital for examination and treatment. She testified that She later identified the Appellant to the police and he was arrested. She then produced the following documents before the court; Laboratory request form, Treatment Notes, P3 and PRC forms, and the Complainant’s Birth Certificate indicating that she was born on 4/7/2013 as MFI 1-5.
In cross-examination she stated that she saw the Appellant and the Complainant behind the toilet/bathroom before the Complainant emerged and went into the house.
PW3 Chrisphin Ochieng Owiti the Clinical Officer testified that he examined W.A aged 9 years and Paul Otieno aged 35 years and presented the laboratory request form, treatment notes, P3 and PRC forms in respect of the Complainant as MFI 1-4 and the treatments notes for the Appellant Paul Otieno as MFI 6. He stated that the minor had a history of having been defiled by a neighbor and confirmed that he examined and treated her. PW3 testified that on examination, the Complainant was in good general medical condition and the external genitalia was normal. He stated that there was mild inflammation and both the Labia Majora and Labia Minora were intact and there was no active bleeding or injury. That the Complainant’s hymen was broken though not freshly broken meaning that time was penetrative sex. He stated that he also examined the Appellant’s genitalia and found that he had normal genitalia and there was no discharge. That the Appellant had a history of defiling a minor two weeks earlier. PW3 further stated that he sent the Complainant for lab investigations and it was found that the Urine was normal and the HIV test turned negative. That there was no sexually transmitted disease.
In cross-examination he confirmed that he examined the Appellant and stated that the test could not show with certainty whether the Appellant defiled the minor or not. That the hymen was broken but not freshly broken and he was informed that the defilement had taken place 2 weeks prior to the examination.
PW4 P.C Doreen Atieno attached at Migori police station who investigated this matter testified that on 12/4/2022 the OCS forwarded a case of defilement to her and she initiated the investigations. She stated that she called the mother to the Complainant who went accompanied by the Complainant’s Aunt. She stated that the complainant was 9 years old and she established that she had been defiled severally by a person known to her. That the suspect who was the Appellant was a neighbor to the complainant and in the year 2022, he called the minor who was in her house with her cousin called Smith and took her behind the toilet where he removed her under pant and inserted his penis into her vagina. That the Appellant then threatened to her beat her if she ever revealed that to anyone.
It was PW4’s testimony that in October 2022, the Complainant’s Aunt saw the minor with the Appellant behind the toilet and she became suspicious. That she questioned the minor who revealed to her that she had been defiled by the Appellant and she reported the case to the police. PW4 stated that she took the minor to hospital on 12/11/2022 which was the same date the case was presented. She stated that the Complainant identified the Appellant before he was arrested and further testified that she was shown an agreement in Dholuo prepared by the village elder dated 2015 on a case of attempted defilement where the Appellant had attempted to defile the Complainant who was but 3 years old by then which then translated to English language. PW4 then presented the Complainant’s Birth Certificate, the Dholuo Agreement, the translated English version of the agreement, and the certificate of Translation as Exhibits 5, and Exhibits 7-9.
The Trial Court considered the evidence on record and ruled that the prosecution had established a case against the Appellant and he was put on his defense.
The Appellant elected to give unsworn statement and stated that he worked and lived in Ombo area as a casual laborer. He stated that he understood the charges against him and denied defiling the Complainant.
The Appeal was heard by way of written submissions.
The Appellant’s submissions are undated and he supplemented and Amended his previous grounds of appeal and contested against both the conviction and sentence on the following grounds:
1. That the Trial Magistrate erred in law and fact to convict the Appellant herein on evidence that was not obtained through the laid down procedure hence prejudiced.
2. That the learned Trial Magistrate erred in law and fact to warrant conviction based on the prosecution evidence that was unfairly obtained and proceeded on to impose different sentence.
The Appellant submitted that the most obvious aspect of formal justice is that all cases should be treated alike as every person is equal before the law thus being the reason why a trial is a lawfully laid down procedure purposefully for ensuring fairness in access to justice since where freedom of a person is at stake justice exceed certainty. That by the dint of the foregoing prospective of a fair trial it was submitted that the Trial Magistrate as an arbitrator failed to confirm a fair trial hence contravened the Appellant's right under Article 25(c), 27(1) & (2) and 50(2)(j) & (k) of the constitution in that, the voire dire examination was not properly conducted in determination as to whether PW1 (victim) understood the importance of oath as the imposed questions were only the determination of PW 1's intelligence but for the determination as to whether she understood the importance of oath.
The Above referred to Articles provide as follows:
Article 25 (c):
“Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited--
(c) the right to a fair trial; and”
Article 27 (1) & (2):
“(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.”
Article 50 (2) (j) & (k):
“(2) Every accused person has the right to a fair trial, which includes the right--
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;”
The Appellant questioned the credibility of the PW1’s evidence and faulted the Trial Magistrate for failing to conduct a fair trial
The Appellant also submitted that he was partially excluded from the trial in that he was not given a copy of the prosecution’s submission to know what the submission was thus both parties where not accorded equal rights contrary to the said Article 25(c) as read with article 50(2) (j) (k) of the constitution. He cited the case of Akhuya v Republic [2003] eKLR where the Court of Appeal expressed that
“On our part we say this. The CPC provides a procedure for the making of submissions to the Court. In no part of the legislation is there a mention of written submissions. A presiding officer of a court is expected to orally hear such submissions as both sides in a criminal case wish to make and to seek clarification of such submissions as found necessary, in order to appreciate each side’s case before delivering his opinion. The accused person is also supposed to hear those submissions and has the right to clarify any point raised or to object to it being raised where he considers it necessary for his benefit. Written submissions deny the accused that fundamental right. It is fundamental because if it were not so, the drafters of the Constitution of this Republic would not have entrenched it in the Constitution. An accused has a constitutional right to listen to and understand all that is said at his trial.”
It was submitted further that in an event whereby a fair trial was not confirmed the Trial Magistrate ought not to warrant any conviction. Consequently, the Appellant argued that even the imposed sentence was unlawfully based as it was derived from unfair trial.
In conclusion the Appellant urged the Court to declare the whole trial process as null and void, quash the conviction, set aside the sentence set him at liberty.
The Respondent opposed the Appeal and filed submissions dated 19th November 2024.
It was submitted that under Section 107 of the Evidence Act, the prosecution bears the burden of proof on every element in a criminal charge which must be discharged beyond reasonable doubt. That to prove the offence of defilement in this case, the following ingredients ought to have been proved in order to sustain a conviction against the appellant; Proof of penetration, Age of the victim and Positive identification of the assailant.
On proof of penetration, it was submitted that Section 2 (1) of the Sexual Offences Act no.3 of 2006 defines penetration to mean;
“the partial or complete insertion of the genital organs of a person into the genital organs of another person"
That under the same section, Genital Organs are defined to:
"includes the whole or part of male or female genital organs and for purposes of this Act includes the anus.”
It was submitted that PW1 testified that she was informed that the Appellant was calling her and she found the Appellant standing by the door. That the Appellant told her to go to the bathroom, held her right hand and took her behind the bathroom where he removed her inner pant and put her on the ground. It was submitted that the Appellant then removed his trousers and did 'tabia mbaya' to the Complainant and stated that he removed his penis and inserted into her vagina. That PW 3 testified that the hymen was broken meaning that there was penetrative sex.
It was submitted that the prosecution proved penetration of the victim of very tender years.
On whether the Age of the Child was proved it was submitted that PW2 testified that PW1 was born on 13th July 2013 and that Section 2 of the Children Act 2001 defines a child as any human being under the age of eighteen years.
It was submitted that the victim was below 18 years during the incident and that the prosecution therefore proved beyond any reasonable doubt that the victim was 9 years old at the time of the incident.
On positive identification of the assailant it was submitted that it was in evidence that the Appellant was the neighbor of PW1 and that he called the minor who went and he instructed the minor to go to the bathroom. That the complainant also testified that the Appellant had defiled her about 5 times. It was submitted that it was the testimony of a 9-year-old against the Appellant and there was no doubt that she could identify the Appellant.
The Respondent submitted that proof of identification of the perpetrator was met.
On the Appellant’s ground that he did not plead guilty it was submitted that the Appellant was sentenced to twenty (20) years imprisonment after being accorded a fair hearing when he pleaded not guilty to the charges against him and the matter went on full trial where he was found guilty and convicted.
The Respondent prayed that the court upholds the conviction and the sentence.
On the ground of the sentence being manifestly harsh, and excessive in the circumstances, it was submitted that the sentence was as per the discretion of the court and that it was lenient considering that the child was 9 years old and Section 8 (2) of the Act prescribes life imprisonment.
The Respondent urged the court to uphold the sentence meted out against the Appellant.
It was also submitted that the court takes into consideration the agreement made in 2015 and signed by the Appellant and PW1’s mother when the Complainant herein was just 3 years old.
In conclusion it was submitted that this Honorable Court dismisses the Appeal since the prosecution sufficiently proved the offence of defilement and upholds the sentence and conviction of the trial court.
Analysis and Determination
The duty of an Appellate Court on first appeal was outlined in the case of Okeno v Republic [1972] EA 32, where the East Africa Court of Appeal stated that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
1. Whether the evidence presented by the prosecution was obtained unfairly hence prejudicial to the Appellant.
2. Whether the sentence meted by the Trial Court was manifestly harsh and excessive hence warranting a reduction.
On whether the evidence presented by the prosecution was obtained unfairly hence prejudicial to the Appellant during trial;
In the case of Morris Murimi v Republic (Criminal Appeal E061 of 2021) [2021] KEHC 2297 (KLR) (8 November 2021) (Judgment) the High Court of Kenya at Meru held that;
“The evidence of the prosecution in a case of defilement contrary to section 8 (1) of the Sexual Offences Act must prove the ingredients of the offence which are the minor age of the victim as charged, the fact of penetration, partial or complete and the identification of the accused as the perpetrator.”
In this case, PW1 gave her evidence that on the material day the Appellant sent her cousin to summon her and when she went to the Appellant, he told her to go to the bathroom, held her by the right hand and took her behind the bathroom where he undressed her and lay her on the ground, undressed himself and proceeded to defile the Complainant.
PW2 also gave evidence that she saw the Appellant and the Complainant behind the bathroom when she arrived home from work and became suspicious of what had happened after she observed the manner PW1 walked back to the house. Upon Inquiry the Complainant informed her that the Appellant had removed her underpants and inserted his penis into her vagina. That she inquired from the Complainant how many times such had happened to her and she responded that the Appellant had done that to her several times in exchange for between Ksh.15- Ksh.20.
PW3 the Clinical Officer testified that he examined the Complainant and established that there was mild inflammation and both the Labia Majora and Labia Minora were intact and there was no active bleeding or injury. He also established that the Complainant’s hymen was broken though not freshly broken meaning that there was penetrative sex.
Likewise, PW4 testified that she investigated this matter and established that the minor had been defiled severally by the Appellant. It was through her investigations that she came across the Agreement made in Dholuo language between the Appellant and the Complainant’s mother where the Appellant had also attempted to defile the Complainant who was just 3 years old by then.
When placed on defense, the Appellant in his unsworn statement merely denied that he did not defile the Complainant.
Based on the foregoing, the prosecution’s case was proved beyond all reasonable doubt as the evidence of PW1 was corroborated by that of PW2 who saw both the Appellant and the Complainant behind the bathroom and inquiry established that the Appellant had defiled the child. PW3 examined the minor and established that there was penetration. Investigations by PW4 confirmed that the Appellant had defiled the child severally and even recovered an agreement made in Dholuo in 2015 between the Appellant and the Complainant’s mother exposing the predatory habits of the Appellant. The said agreement also brings to light other minors that the Appellant attempted to defile and those that he lured and asked for sex from- a fact which was confirmed by the Appellant’s own wife one Linet Atieno.
The Appellant’s claim that the prosecution evidence was unfairly obtained and that the same prejudiced him is unfounded as the evidence was either given orally or obtained through investigations by the Investigating Officer.
On whether the sentence meted by the Trial Court was manifestly harsh and excessive hence warranting a reduction;
Section 8(2) of the Sexual Offence Act No. 3 of 2006 provides that:
“(2) 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.”
The Court of Appeal of East Africa stated in Wanjema v Republic [1971] EA 494 that:-
“An appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on the wrong principle, or the sentence is manifestly excessive in the circumstances of the case.”
In this case the Complainant was 9 years old and in light of Section 8(2) of the Sexual Offence Act No. 3 of 2006 the Appellant ought to have been sentenced to the mandatory life imprisonment.
In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) it was held as follows:
“…the life imprisonment sentence remains lawful and in line with Section 8 of the Sexual Offences Act.”
Further in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) the Supreme Court of Kenya held:
“…In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. …’’
While sentencing the Appellant, the Trial Magistrate said;
“…Accused committed a serious offence against a very young girl. He took advantage of her innocence. This calls for deterrence.”
The Trial Magistrate did not give reasons why he deviated from the mandatory sentence provided for under Section 8(2) of the Sexual Offences Act after finding that the conduct of the Appellant was aggravating in nature. This Court therefore finds that the Trial Magistrate exercised his discretion against the mandatory provisions of the law and the sentence meted out was unlawful.
The sentence of 20 years is hereby set aside and substituted thereof with the correct sentence under Section 8(2) of the Sexual Offences Act that is life imprisonment.
The appeal herein lacks merit and the same is dismissed.
Right of Appeal within 14 days explained.
Dated, Signed and Delivered at Migori this 19th Day of June 2025.
Particulars of the offense are that during the month of October 2022 at Ombo area in Suna East Sub County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully caused his male genital organ namely penis to penetrate the female genital organ namely vagina of W.A a child aged 9yrs.
He was also charged with an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006.
Particulars of the Alternative charge are that during the month of October 2022 at Ombo area in Suna East Sub County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully touched the female genital organ namely vagina of W.A a child aged 9yrs with his male genital organ namely penis.
Based on the evidence of four (4) prosecution witnesses against the evidence of the Appellant, the Trial Magistrate convicted him and sentenced him to serve 20 years’ imprisonment.
The Appellant lodged a Petition for appeal for leniency against the sentence only dated 23rd January 2024 based on the following grounds:
1. That he pleaded not guilty to the charge herein
2. That the sentence meted although lawful was manifestly harsh and excessive in the circumstances hence he prayed the sentence be reduced.
Reasons wherefore the Appellant prayed that the sentence be reduced and a leave of the court be granted to adduce more grounds of appeal after reception of the lower court’s proceedings.
The Prosecution’s case was backed up by four (4) witnesses who testified as follows:
PW1 - W.A the Complainant herein gave evidence after the Trial Court conducted a voire dire examination and established that she was intelligent enough to testify. She stated that she lived with her Aunt Sharon Achieng and grandmother at Ombok and schooled at Kadika Primary School in Grade 4. It was her testimony that in October 2022 she was in the house with her Cousin Smith who informed her that the Appellant who was their neighbor was calling her. That she woke up from her sleep and went outside to check and found the Appellant Standing by the door. It was PW1’s testimony that her Aunt and grandmother were away and the Appellant told her to go to the bathroom as they lived in the same plot which had 3 houses within the compound.
She stated that it was around 1.00 p.m. and the Appellant held her right hand and took her behind the bathroom. That while behind the bathroom the Appellant removed her inner pant and put her on the ground while facing upwards then he removed his trousers and did "tabia mbaya" to her. She described that the Appellant removed his penis and inserted into her vagina and after he was through he left and told her to go and take a bath. That when the Appellant was doing "tabia mbaya" to her she tried to scream but he covered her mouth. She stated further that on another occasion, the Appellant called her to his house and told her to go and buy a soda for him. It was PW1’s testimony that the Appellant was married and had 4 children who were not present at the time. She stated that the Appellant lifted her onto his bed and repeated what he had done to her previously.
That when the Appellant’s son came from school and questioned why PW1’s slippers were under the bed she informed him of what his father had done to her and the son promised to inform his mother about the incident. It was PW1’s testimony that the Appellant did “tabia mbaya” to her about five times and she only informed her Aunt what she was going through when the Aunt saw her standing behind the toilet with the Appellant on the incident day. She stated that she did not tell her Aunt earlier for fear of being beaten up. That after she disclosed to her Aunt she was taken to the police where she recorded her statements then Accompanied her Aunt to the District hospital where she was examined and various forms filled including: Laboratory report form, treatment notes, P3 and PRC forms marked MFI 1-4. PW1 then presented her birth certificate marked MFI 5 indicating that she was born on 4/7/2013.
In cross-examination she stated that in October she was living with her grandmother and no one had sex with her. That her Aunt Sharon never coached her on what to say in court.
PW2 Sharon Achieng the Complainant’s aunt testified that on a Tuesday in October 2022 she came from work at around 5.00 pm and upon arriving at home, she saw the Complainant behind the bathroom and her neighbor the Appellant was also around the same area. That she became suspicious from the manner the Complainant was walking and inquired what she was doing behind the bathroom. She stated that the Complainant informed her that the Appellant had removed her underpants and inserted his penis into her vagina. That she inquired from the Complainant how many times such had happened to her and she responded that the Appellant had done that to her several times in exchange for between Ksh.15- Ksh.20. PW2 stated that she made a report to Migori police station two weeks after talking to Complainant who accompanied her to the police station and later to the District hospital for examination and treatment. She testified that She later identified the Appellant to the police and he was arrested. She then produced the following documents before the court; Laboratory request form, Treatment Notes, P3 and PRC forms, and the Complainant’s Birth Certificate indicating that she was born on 4/7/2013 as MFI 1-5.
In cross-examination she stated that she saw the Appellant and the Complainant behind the toilet/bathroom before the Complainant emerged and went into the house.
PW3 Chrisphin Ochieng Owiti the Clinical Officer testified that he examined W.A aged 9 years and Paul Otieno aged 35 years and presented the laboratory request form, treatment notes, P3 and PRC forms in respect of the Complainant as MFI 1-4 and the treatments notes for the Appellant Paul Otieno as MFI 6. He stated that the minor had a history of having been defiled by a neighbor and confirmed that he examined and treated her. PW3 testified that on examination, the Complainant was in good general medical condition and the external genitalia was normal. He stated that there was mild inflammation and both the Labia Majora and Labia Minora were intact and there was no active bleeding or injury. That the Complainant’s hymen was broken though not freshly broken meaning that time was penetrative sex. He stated that he also examined the Appellant’s genitalia and found that he had normal genitalia and there was no discharge. That the Appellant had a history of defiling a minor two weeks earlier. PW3 further stated that he sent the Complainant for lab investigations and it was found that the Urine was normal and the HIV test turned negative. That there was no sexually transmitted disease.
In cross-examination he confirmed that he examined the Appellant and stated that the test could not show with certainty whether the Appellant defiled the minor or not. That the hymen was broken but not freshly broken and he was informed that the defilement had taken place 2 weeks prior to the examination.
PW4 P.C Doreen Atieno attached at Migori police station who investigated this matter testified that on 12/4/2022 the OCS forwarded a case of defilement to her and she initiated the investigations. She stated that she called the mother to the Complainant who went accompanied by the Complainant’s Aunt. She stated that the complainant was 9 years old and she established that she had been defiled severally by a person known to her. That the suspect who was the Appellant was a neighbor to the complainant and in the year 2022, he called the minor who was in her house with her cousin called Smith and took her behind the toilet where he removed her under pant and inserted his penis into her vagina. That the Appellant then threatened to her beat her if she ever revealed that to anyone.
It was PW4’s testimony that in October 2022, the Complainant’s Aunt saw the minor with the Appellant behind the toilet and she became suspicious. That she questioned the minor who revealed to her that she had been defiled by the Appellant and she reported the case to the police. PW4 stated that she took the minor to hospital on 12/11/2022 which was the same date the case was presented. She stated that the Complainant identified the Appellant before he was arrested and further testified that she was shown an agreement in Dholuo prepared by the village elder dated 2015 on a case of attempted defilement where the Appellant had attempted to defile the Complainant who was but 3 years old by then which then translated to English language. PW4 then presented the Complainant’s Birth Certificate, the Dholuo Agreement, the translated English version of the agreement, and the certificate of Translation as Exhibits 5, and Exhibits 7-9.
The Trial Court considered the evidence on record and ruled that the prosecution had established a case against the Appellant and he was put on his defense.
The Appellant elected to give unsworn statement and stated that he worked and lived in Ombo area as a casual laborer. He stated that he understood the charges against him and denied defiling the Complainant.
The Appeal was heard by way of written submissions.
The Appellant’s submissions are undated and he supplemented and Amended his previous grounds of appeal and contested against both the conviction and sentence on the following grounds:
1. That the Trial Magistrate erred in law and fact to convict the Appellant herein on evidence that was not obtained through the laid down procedure hence prejudiced.
2. That the learned Trial Magistrate erred in law and fact to warrant conviction based on the prosecution evidence that was unfairly obtained and proceeded on to impose different sentence.
The Appellant submitted that the most obvious aspect of formal justice is that all cases should be treated alike as every person is equal before the law thus being the reason why a trial is a lawfully laid down procedure purposefully for ensuring fairness in access to justice since where freedom of a person is at stake justice exceed certainty. That by the dint of the foregoing prospective of a fair trial it was submitted that the Trial Magistrate as an arbitrator failed to confirm a fair trial hence contravened the Appellant's right under Article 25(c), 27(1) & (2) and 50(2)(j) & (k) of the constitution in that, the voire dire examination was not properly conducted in determination as to whether PW1 (victim) understood the importance of oath as the imposed questions were only the determination of PW 1's intelligence but for the determination as to whether she understood the importance of oath.
The Above referred to Articles provide as follows:
Article 25 (c):
“Despite any other provision in this Constitution, the following rights and fundamental freedoms shall not be limited--
(c) the right to a fair trial; and”
Article 27 (1) & (2):
“(1) Every person is equal before the law and has the right to equal protection and equal benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and fundamental freedoms.”
Article 50 (2) (j) & (k):
“(2) Every accused person has the right to a fair trial, which includes the right--
(j) to be informed in advance of the evidence the prosecution intends to rely on, and to have reasonable access to that evidence;
(k) to adduce and challenge evidence;”
The Appellant questioned the credibility of the PW1’s evidence and faulted the Trial Magistrate for failing to conduct a fair trial
The Appellant also submitted that he was partially excluded from the trial in that he was not given a copy of the prosecution’s submission to know what the submission was thus both parties where not accorded equal rights contrary to the said Article 25(c) as read with article 50(2) (j) (k) of the constitution. He cited the case of Akhuya v Republic [2003] eKLR where the Court of Appeal expressed that
“On our part we say this. The CPC provides a procedure for the making of submissions to the Court. In no part of the legislation is there a mention of written submissions. A presiding officer of a court is expected to orally hear such submissions as both sides in a criminal case wish to make and to seek clarification of such submissions as found necessary, in order to appreciate each side’s case before delivering his opinion. The accused person is also supposed to hear those submissions and has the right to clarify any point raised or to object to it being raised where he considers it necessary for his benefit. Written submissions deny the accused that fundamental right. It is fundamental because if it were not so, the drafters of the Constitution of this Republic would not have entrenched it in the Constitution. An accused has a constitutional right to listen to and understand all that is said at his trial.”
It was submitted further that in an event whereby a fair trial was not confirmed the Trial Magistrate ought not to warrant any conviction. Consequently, the Appellant argued that even the imposed sentence was unlawfully based as it was derived from unfair trial.
In conclusion the Appellant urged the Court to declare the whole trial process as null and void, quash the conviction, set aside the sentence set him at liberty.
The Respondent opposed the Appeal and filed submissions dated 19th November 2024.
It was submitted that under Section 107 of the Evidence Act, the prosecution bears the burden of proof on every element in a criminal charge which must be discharged beyond reasonable doubt. That to prove the offence of defilement in this case, the following ingredients ought to have been proved in order to sustain a conviction against the appellant; Proof of penetration, Age of the victim and Positive identification of the assailant.
On proof of penetration, it was submitted that Section 2 (1) of the Sexual Offences Act no.3 of 2006 defines penetration to mean;
“the partial or complete insertion of the genital organs of a person into the genital organs of another person"
That under the same section, Genital Organs are defined to:
"includes the whole or part of male or female genital organs and for purposes of this Act includes the anus.”
It was submitted that PW1 testified that she was informed that the Appellant was calling her and she found the Appellant standing by the door. That the Appellant told her to go to the bathroom, held her right hand and took her behind the bathroom where he removed her inner pant and put her on the ground. It was submitted that the Appellant then removed his trousers and did 'tabia mbaya' to the Complainant and stated that he removed his penis and inserted into her vagina. That PW 3 testified that the hymen was broken meaning that there was penetrative sex.
It was submitted that the prosecution proved penetration of the victim of very tender years.
On whether the Age of the Child was proved it was submitted that PW2 testified that PW1 was born on 13th July 2013 and that Section 2 of the Children Act 2001 defines a child as any human being under the age of eighteen years.
It was submitted that the victim was below 18 years during the incident and that the prosecution therefore proved beyond any reasonable doubt that the victim was 9 years old at the time of the incident.
On positive identification of the assailant it was submitted that it was in evidence that the Appellant was the neighbor of PW1 and that he called the minor who went and he instructed the minor to go to the bathroom. That the complainant also testified that the Appellant had defiled her about 5 times. It was submitted that it was the testimony of a 9-year-old against the Appellant and there was no doubt that she could identify the Appellant.
The Respondent submitted that proof of identification of the perpetrator was met.
On the Appellant’s ground that he did not plead guilty it was submitted that the Appellant was sentenced to twenty (20) years imprisonment after being accorded a fair hearing when he pleaded not guilty to the charges against him and the matter went on full trial where he was found guilty and convicted.
The Respondent prayed that the court upholds the conviction and the sentence.
On the ground of the sentence being manifestly harsh, and excessive in the circumstances, it was submitted that the sentence was as per the discretion of the court and that it was lenient considering that the child was 9 years old and Section 8 (2) of the Act prescribes life imprisonment.
The Respondent urged the court to uphold the sentence meted out against the Appellant.
It was also submitted that the court takes into consideration the agreement made in 2015 and signed by the Appellant and PW1’s mother when the Complainant herein was just 3 years old.
In conclusion it was submitted that this Honorable Court dismisses the Appeal since the prosecution sufficiently proved the offence of defilement and upholds the sentence and conviction of the trial court.
Analysis and Determination
The duty of an Appellate Court on first appeal was outlined in the case of Okeno v Republic [1972] EA 32, where the East Africa Court of Appeal stated that:
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.”
Likewise, in the case of Mark Oiruri Mose vs R (2013) eKLR, it was reiterated that:
“… the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyze it, evaluate it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and to give allowance for that.”
Having considered the grounds of Appeal, and reviewed/revisited the evidence tendered before the trial court afresh as well as the submissions by the rival parties, the issues for determination are: -
1. Whether the evidence presented by the prosecution was obtained unfairly hence prejudicial to the Appellant.
2. Whether the sentence meted by the Trial Court was manifestly harsh and excessive hence warranting a reduction.
On whether the evidence presented by the prosecution was obtained unfairly hence prejudicial to the Appellant during trial;
In the case of Morris Murimi v Republic (Criminal Appeal E061 of 2021) [2021] KEHC 2297 (KLR) (8 November 2021) (Judgment) the High Court of Kenya at Meru held that;
“The evidence of the prosecution in a case of defilement contrary to section 8 (1) of the Sexual Offences Act must prove the ingredients of the offence which are the minor age of the victim as charged, the fact of penetration, partial or complete and the identification of the accused as the perpetrator.”
In this case, PW1 gave her evidence that on the material day the Appellant sent her cousin to summon her and when she went to the Appellant, he told her to go to the bathroom, held her by the right hand and took her behind the bathroom where he undressed her and lay her on the ground, undressed himself and proceeded to defile the Complainant.
PW2 also gave evidence that she saw the Appellant and the Complainant behind the bathroom when she arrived home from work and became suspicious of what had happened after she observed the manner PW1 walked back to the house. Upon Inquiry the Complainant informed her that the Appellant had removed her underpants and inserted his penis into her vagina. That she inquired from the Complainant how many times such had happened to her and she responded that the Appellant had done that to her several times in exchange for between Ksh.15- Ksh.20.
PW3 the Clinical Officer testified that he examined the Complainant and established that there was mild inflammation and both the Labia Majora and Labia Minora were intact and there was no active bleeding or injury. He also established that the Complainant’s hymen was broken though not freshly broken meaning that there was penetrative sex.
Likewise, PW4 testified that she investigated this matter and established that the minor had been defiled severally by the Appellant. It was through her investigations that she came across the Agreement made in Dholuo language between the Appellant and the Complainant’s mother where the Appellant had also attempted to defile the Complainant who was just 3 years old by then.
When placed on defense, the Appellant in his unsworn statement merely denied that he did not defile the Complainant.
Based on the foregoing, the prosecution’s case was proved beyond all reasonable doubt as the evidence of PW1 was corroborated by that of PW2 who saw both the Appellant and the Complainant behind the bathroom and inquiry established that the Appellant had defiled the child. PW3 examined the minor and established that there was penetration. Investigations by PW4 confirmed that the Appellant had defiled the child severally and even recovered an agreement made in Dholuo in 2015 between the Appellant and the Complainant’s mother exposing the predatory habits of the Appellant. The said agreement also brings to light other minors that the Appellant attempted to defile and those that he lured and asked for sex from- a fact which was confirmed by the Appellant’s own wife one Linet Atieno.
The Appellant’s claim that the prosecution evidence was unfairly obtained and that the same prejudiced him is unfounded as the evidence was either given orally or obtained through investigations by the Investigating Officer.
On whether the sentence meted by the Trial Court was manifestly harsh and excessive hence warranting a reduction;
Section 8(2) of the Sexual Offence Act No. 3 of 2006 provides that:
“(2) 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.”
The Court of Appeal of East Africa stated in Wanjema v Republic [1971] EA 494 that:-
“An appellate court should not interfere with the discretion which a trial court extended as to sentence unless it is evident that it overlooked some material factors, took into account some immaterial factors, acted on the wrong principle, or the sentence is manifestly excessive in the circumstances of the case.”
In this case the Complainant was 9 years old and in light of Section 8(2) of the Sexual Offence Act No. 3 of 2006 the Appellant ought to have been sentenced to the mandatory life imprisonment.
In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) it was held as follows:
“…the life imprisonment sentence remains lawful and in line with Section 8 of the Sexual Offences Act.”
Further in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) (12 July 2024) (Judgment) the Supreme Court of Kenya held:
“…In any case, the sentence imposed by the trial court against the Respondent and affirmed by the first appellate court was lawful and remains lawful as long as Section 8 of the Sexual Offences Act remains valid. …’’
While sentencing the Appellant, the Trial Magistrate said;
“…Accused committed a serious offence against a very young girl. He took advantage of her innocence. This calls for deterrence.”
The Trial Magistrate did not give reasons why he deviated from the mandatory sentence provided for under Section 8(2) of the Sexual Offences Act after finding that the conduct of the Appellant was aggravating in nature. This Court therefore finds that the Trial Magistrate exercised his discretion against the mandatory provisions of the law and the sentence meted out was unlawful.
The sentence of 20 years is hereby set aside and substituted thereof with the correct sentence under Section 8(2) of the Sexual Offences Act that is life imprisonment.
The appeal herein lacks merit and the same is dismissed.
Right of Appeal within 14 days explained.
Dated, Signed and Delivered at Migori this 19th Day of June 2025.