A. THE CHARGES.
1. The Appellant Richard Omondi Olumbe was in the principal count charged before the trial court 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.
2. As is instructive from the charge sheet, the particulars of the principal count were that on the 9th of January, 2023 at Nyang’oma Location in Muhoroni Subcounty within Kisumu County, the Appellant intentionally caused his penis to penetrate the vagina of RAK (name withheld, hereinafter referred to as “the survivor”), a child aged 14 years.
3. In the alternative count, the Appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. The particulars of the alternative count were that that on the 9th of January, 2023 at Nyang’oma Location in Muhoroni Subcounty within Kisumu County, the Appellant intentionally and unlawfully touched the vagina, breasts and buttocks of RAK a child aged 14 years.
5. The Appellant denied both counts, which then called for a full trial.
B. THE GROUNDS OF APPEAL.
6. The prosecution case was founded on the evidence of five witnesses. while the defence comprised of the Appellant’s unsworn statement. Following the conclusion of the trial, the Appellant was convicted on the principal count and subsequently sentenced to serve 30 years imprisonment.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 9th December, 2024 in which he raised the following grounds of appeal:
a. THAT, the learned trial Magistrate erred in both law and in facts by failing to observe that penetration was not proved beyond reasonable doubt.
b. THAT, the learned trial Magistrate erred in both law and in facts by failing to observe that the Appellant was not accorded a fair trial pursuant to Article 50 as read with Article 25(c) of the Constitution of Kenya 2010, by not according the Appellant chance to mitigate.
c. THAT, the sentence was manifestly harsh and excessive as it offended the tenets of Section 8(3) of the Sexual Offences Act No. 3 of 2006.
d. THAT, the learned trial Magistrate erred in law in arriving at a decision while basing on evidence that were full of contradictions and without analyzing the same.
e. THAT, the learned trial Magistrate erred in both law and in facts by relying on uncorroborated evidences of a single eye witness and failing to call certain crucial witnesses.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the sentence of imprisonment for 30 years.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
C. THE PROSECUTION CASE.
11. The first prosecution witness (PW1) was the survivor, RAK, who told the trial court that she was 14 years of age and a form two learner at at AB Secondary School (details withheld) and a resident of XY (details withheld).
12. PW1, testified that on 9th January, 2023 at about 4:30am, she had arrived at Awasi Petrol Station from Nairobi where she had visited her brother. She stated that she proceeded to board a boda boda with the intention of proceeding to her home and was approached by a rider who agreed to ferry her for a fare of Ksh.70. She testified that there was light and that the rider, whose motor cycle had no side mirrors and who was dressed in a black jacket and trousers and had missing lower front teeth, led her off the main road towards Nyando River, where the incident giving rise to the charge occurred.
13. PW1 stated that on realizing that the rider had taken a course off the route to her home, she alighted, and fearing for herself, took to her heels. The rider ran after her and on catching up with her, grabbed her and threatened to kill her with a knife, which he had, if she screamed.
14. The survivor testified further that the rider then carried her on his shoulder and took her near the river, where she saw another motorcycle. He then forcefully undressed her and took of his trousers and underpants before proceeding to violate her by forcefully inserting his penis into her vagina.
15. The survivor further testified that after the assault, the assailant instructed her to get dressed and accompanied her part of the way on the motorcycle. She stated that he demanded and took possession of her box containing assorted items, including sugar, soap, cooking oil and cash in the sum of Ksh.2,000/-. Thereafter, he dropped her at a nearby river and left with her belongings, after which she proceeded home, which was not far from the scene.
16. The complainant testified that upon arriving home, she immediately informed her mother that she had been defiled by a boda boda rider and gave a description of the assailant, including his clothing and the fact that he had missing lower front teeth. She stated that her mother reported the matter, leading to police intervention. The complainant further testified that the following day, she accompanied her family and police officers to Awasi Police Station, where the suspect was traced to a boda boda stage and subsequently arrested while wearing the same clothing she had described.
17. The survivor further testified that she was subsequently taken to hospital for medical examination and treatment, including prophylactic medication. She also stated that police officers escorted her to the scene of the incident, where she recovered one of her undergarments and some of the items she had been carrying, which had fallen there. She added that the scene and the recovered items were photographed by the police.
18. In her further testimony, the survivor told the trial court that she was later called upon to identify the assailant at an identification parade that was conducted at Awasi Police Station, where she positively identified the Appellant based on his physical appearance and clothing, stating that she was able to recognize him when he was presented among other persons. She stated that the identification parade was conducted comprised nine persons.
19. The survivor explained that on the first instance the suspect was not included in the parade, but upon repetition he was later placed among the participants. She maintained that she was able to positively identify him during the parade, relying on his appearance and clothing, and that she physically pointed him out by holding his hand. The identification parade form was produced in evidence.
20. PW1 further testified that medical evidence was collected and that she was examined at hospital where samples were taken from her mouth and vagina for forensic analysis. She produced her birth certificate to confirm that she was 14 years old at the time of the incident. She reiterated that she did not know the accused prior to the incident and only encountered him on the material night at a place illuminated by street lighting and the motorcycle’s headlight.
21. On cross-examination by the Appellant, the PW1 maintained that she had not met him before the incident and that he was the boda boda rider who ferried her that night. She stated that she clearly saw him under street lighting and motorcycle light and described his physical appearance, including his hairstyle. She denied that she had falsely implicated him and maintained that she was able to recognize him during the arrest and identification parade.
22. On re-examination, the survivor reaffirmed her testimony and stated that she reported the loss of her belongings, including the box containing her items and money. She maintained that the Appellant was arrested following her report and identification. She also reiterated that she did not see or know the reason why other persons were arrested in connection with the matter.
23. PW2, was Lewis Miruka Otieno, a clinical officer working at Ahero County Hospital and holder of a Diploma in Clinical Medicine and Surgery. The witness testified that he examined and treated the survivor, RAK, who was escorted to the facility by police.
24. He testified that the complainant gave a history of having been forced into sexual intercourse by a person she identified through his clothing after he allegedly diverted her on a motorcycle into a bushy area. PW2 stated that upon examination, the complainant was in fair general condition and had a bruise on the chin, consistent with a blunt force injury. He further noted that her clothing, specifically a pink trouser, was torn and soiled with mud.
25. PW2 testified that a genital examination revealed that the complainant’s hymen was absent but not freshly torn, and there was a whitish vaginal discharge, although no fresh genital injuries were observed. He stated that samples were collected for laboratory analysis, including high vaginal swabs, and forwarded for testing. He concluded that, based on the history and findings, the injuries were consistent with defilement.
26. PW2 also produced laboratory results which indicated, inter alia, that tests for sexually transmitted infections such as Hepatitis B and VDRL were negative, while the vaginal swab showed the presence of epithelial cells. He stated that additional medical documentation was prepared for the complainant.
27. PW2 produced the survivor’s P3 form, treatment notes, PRC form and laboratory results relating to the complainant’s examination.
28. In cross-examination, PW2 stated that forensic fingerprint analysis was not conducted and that identification of the assailant was based on the complainant’s account. He further confirmed that absence of a hymen does not, on its own, establish defilement, but maintained that clinical and laboratory findings are considered together in reaching a medical conclusion. He also confirmed that samples were collected from both the complainant and the Appellant for laboratory analysis, with part of the samples being sent to the Government Analyst in Kisumu. He maintained his findings as contained in the P3 form and treatment notes.
29. The witness produced the following exhibits:
- The survivor’s PRC form – PExh1.
- The survivor’s P3 form – PExh2.
- The survivor’s treatment notes and laboratory results – PExh4a and PExh4b.
30. PW3, Police Constable Jane Atieno Ojuok, attached to Awasi Police Station and the investigating officer in the case, testified that on 9th January, 2023 at about 6:45am, she received a report regarding an alleged defilement incident and proceeded to the report office, where she met the survivor, RAK, accompanied by her father, who formally reported the incident.
31. PW3 testified that the survivor reported that she had boarded a boda boda at Awasi after arriving from Nairobi and had agreed with the rider on the fare and destination. She stated that the survivor alleged that the rider diverted from the agreed route after crossing River Nyando, proceeded to a secluded area, and unlawfully assaulted and forcefully had sexual intercourse with her, before later releasing her. She further stated that the survivor also reported that the assailant took her personal belongings and issued threats cautioning her against disclosing the incident.
32. PW3 further testified that after the report, the survivor and her father were referred to Ahero Sub-County Hospital for medical examination and treatment. She stated that investigations were commenced, during which the survivor provided a description of the suspect, including his physical appearance and the motorcycle he was allegedly riding. PW3 testified that acting on this information, police officers traced and arrested the Appellant.
33. PW3 testified that an identification parade was subsequently conducted under the supervision of another officer, during which the survivor positively identified the Appellant on several occasions despite changes in the positioning and arrangement of the participants. She further stated that the identification parade form was duly completed.
34. PW3 produced the following exhibits:
- Identification parade form – PExh3.
- The survivor’s certificate of birth – PExh5.
- Motor cycle registration number KMEZ 744C make TVS – PExh6.
- The survivor’s white open shoes – PExh7a.
- The survivor’s pair of socks – PExh7c.
- The survivor’s multi-coloured T shirt – PExh7c.
- The survivor’s pink trousers – PExh7d.
- The survivor’s pink underpants – PExh7e.
- Exhibit memo form – PExh8a.
35. The witness noted that the survivor’s certificate of birth bore her date of birth as 17th April, 2008.
36. During cross-examination, PW3 maintained that the survivor was the primary identifying witness and that the Appellant was arrested based on the description given by the survivor. She stated that the identification parade was conducted in accordance with proper procedure, including the use of persons of similar appearance and the alteration of positions of participants to ensure fairness. She further testified that other individuals initially arrested in connection with the matter were released after no evidence linked them to the offence, and she maintained that the Appellant was consistently identified by the survivor during the identification process.
37. PW3 further stated that the survivor was not present during the arrest of the Appellant and only saw him during the identification parade. She testified that the investigation was confined to the scene of the incident and relevant inquiries, and that items linked to the survivor were recovered during the process. She maintained that the identification exercise was conducted fairly and that the Appellant was the only person positively identified as the suspect throughout the investigation.
38. PW3, on re-examination, reiterated that the investigation was guided by the description given by the survivor, which enabled the tracing and arrest of the Appellant. She maintained that multiple suspects were initially brought forward but were released after the survivor did not identify them, and that only the Appellant was consistently identified during the identification parade. She further stated that the identification process was conducted in compliance with proper procedure and that the survivor had no prior acquaintance with the Appellant before the incident.
39. PW4, GKM., a farmer from Chemelil engaged in sugarcane farming, testified that the survivor, RAK, was his daughter, and that she had travelled from her brother’s residence and was expected home in the early morning hours of 9th January, 2023. He stated that she arrived at about 4:00am and knocked at their door, appearing distressed and in tears, and was thereafter admitted into the home.
40. PW4 further testified that the complainant reported that after boarding a boda boda at Awasi, the rider diverted from the agreed route and took her to a secluded area, where he defiled her. He stated that she was thereafter dropped near Ose Bridge, close to their home, and that the rider took her shopping items, including soap, cooking oil and sugar, before warning her not to report the incident to anyone.
41. PW4 further testified that he immediately reported the matter at Awasi Police Station and thereafter accompanied the survivor to Ahero County Hospital for medical examination and treatment. He stated that medical personnel examined the survivor and confirmed that she had been sexually violated. He stated that the survivor was a minor and a student at the time of the incident.
42. PW4 testified that the survivor was dressed in a pink trouser and jumper which appeared soiled at the time she returned home. He stated that she was visibly distressed and reported that she had been threatened with harm during the incident.
43. PW4 further testified that the survivor was able to provide a description of the person she alleged was involved in the incident, which assisted the police in their investigations and ultimately led to the identification of a suspect. He reiterated that he had no prior knowledge of the Appellant and came to know him only after his arrest in connection with the case.
44. In cross-examination, PW4 stated that he did not witness the incident and relied entirely on what the survivor narrated upon her return home. He confirmed that he escorted her to report the matter to the police and thereafter to hospital for medical attention. He further maintained that he did not know the Appellant prior to the incident and only saw him after his arrest. He reiterated that the survivor appeared distressed when she arrived home and that she was subsequently examined by medical personnel.
45. On re-examination, PW4 reiterated that he had no prior acquaintance with the Appellant and only came to know him in the course of these proceedings. He maintained his earlier testimony regarding the survivor’s report and the steps taken thereafter to report the matter to the police and seek medical attention.
46. PW5, Godwin Khamala Waliama, a Government Analyst attached to the Government Chemist Laboratory in Kisumu, testified that and stated that he prepared a forensic report in respect of exhibits submitted to the laboratory through an exhibit memo form that he received from Awasi Police Station dated 10th January, 2023.
47. The witness testified that the exhibits submitted included a high vaginal swab and buccal swabs taken from the survivor, RAK, and the Appellant, Richard Omondi Olumbe. PW5 stated that DNA analysis was conducted on the submitted samples, and that the results revealed the presence of male DNA profiles. He stated that the DNA profile obtained from the high vaginal swab matched the DNA profile generated from the Appellant’s buccal swab.
48. PW5 further stated that he prepared and signed the forensic report, which he produced in evidence as PExh8b. He confirmed that the findings were contained in the report presented before the court.
49. In cross-examination, PW5 stated that the Appellant was physically presented at the Government Chemist by the investigating officer for sampling. He further confirmed that the vaginal swab analyzed originated from the medical examination conducted at the health facility.
D. THE DEFENCE CASE.
50. The Appellant Richard Omondi Olumbe (DW1), stated in his unsworn statement that he was a resident of Kisumu County, Muhoroni Subcounty, Nyangoma Location, and worked as a jua kali artisan.
51. The Appellant told the trial court that he resided near the survivor’s family home and that there had been a dispute between him and PW4 regarding land allegedly belonging to his grandfather, on which he had planted sugarcane in September, 2022.
52. DW1 alleged that due to the said dispute, PW4 had threatened him that he would ensure his arrest and that he would not benefit from the harvest. He further stated that on the material day, while travelling on his motorcycle, he was confronted by individuals who accused him of being involved in the land dispute and thereafter took him to the police station, where he was placed in custody without being informed of the reason for his arrest.
53. DW1 stated that he was later charged in court with the offence of defilement, which he denied. He maintained that he did not commit the offence.
54. The Appellant did not call any witness and closed the defence case at that stage.
E. THE TRIAL COURT’S FINDINGS.
55. In her judgement rendered on 3rd December, 2024, the learned trial Magistrate reached the finding that the prosecution had proved the principal charge against the Appellant beyond reasonable doubt and proceeded to convict him on the same in line with Section 215 of the Criminal Procedure Code. He subsequently sentenced him to serve 30 years imprisonment.
56. The instant appeal, which proceeded by way of written submissions, seeks to upset the conviction and sentence of the trial court.
F. THE APPELLANT’S SUBMISSIONS ON APPEAL.
57. The Appellant submits that the trial court erred both in law and fact in convicting him on the basis of mistaken, inconclusive and flawed evidence of identification by a single witness under difficult conditions. He argues that the alleged offence occurred at about 4:30am in darkness, and that the survivor (PW1) initially reported that she had been attacked by a person not well known to her, thus negating any claim of recognition.
58. The Appellant further points to what he terms material contradictions in the description of the assailant, noting that PW1 described the attacker as wearing a black jacket and trousers and having missing lower front teeth, while PW2 described the perpetrator as a short man with dreadlocks.
59. According to the Appellant, these inconsistencies rendered the identification evidence unreliable and devoid of probative value. He faults the trial court for misdirecting itself in finding that there was sufficient time for observation, arguing instead that the only clear opportunity for observation was a brief moment at a petrol station, amounting to a fleeting glance.
60. Reliance is placed on the principles in R v Turnbull [1976] 3 All ER 549, to the effect that where identification is made under difficult conditions and is of poor quality, the court ought to treat such evidence with the greatest caution.
61. The Appellant further challenges the identification parade, submitting that it was compromised and of no evidential value. He contends that PW1 had already seen him under arrest prior to the parade, thereby influencing her subsequent identification. He also argues that the parade was improperly conducted, as he was made to wear a hood while other members wore marvins, making him stand out and rendering the exercise unfair. Additionally, the failure by the prosecution to call the parade officer and to produce the identification parade form through its maker is said to have rendered the evidence inadmissible and adverse to the prosecution case.
62. On the DNA evidence, the Appellant submits that the same was obtained in contravention of the law and ought to have been excluded under Article 50(4) of the Constitution. He relies on Sections 122A, 122C and 122D of the Penal Code, arguing that there was neither a written order from an officer of or above the rank of inspector of police nor his consent to undergo DNA sampling. He points out that the sampling was ordered by a police constable, who lacked the legal authority to do so, thereby rendering the resultant analysis inadmissible.
63. The Appellant also contends that the prosecution failed to prove penetration beyond reasonable doubt. He argues that the P3 form, PRC form and treatment notes were not properly produced as exhibits and therefore should not have been relied upon. He further submits that the medical findings, including the absence of a hymen and the presence of spermatozoa, were not conclusive proof of penetration. In this regard, he relies on the decisions in P.K.W v Republic [2012] eKLR, R v Vincent Quitanila 1999 ABQB 769 and Mwangi v Republic. He maintains that the survivor’s evidence was inconsistent and untruthful, particularly regarding the sequence of events, and that the trial court failed to record reasons for believing her as required under Section 124 of the Evidence Act.
64. The Appellant further argues that the circumstances described by PW1, including the alleged interruption by another motorcycle, cast doubt on the possibility of the offence having occurred as alleged. He submits that such inconsistencies, coupled with his defence of a land dispute with the survivor’s family, created reasonable doubt which ought to have been resolved in his favour.
65. The Appellant also contends that his constitutional right to a fair trial was violated, as he was not informed of his right to legal representation at state expense as provided under Articles 50(2)(g) and (h) as read with Article 25(c) of the Constitution. He submits that given the seriousness of the charge and the potential sentence, failure to accord him legal representation occasioned substantial injustice.
66. Lastly, the Appellant challenges the sentence imposed, arguing that the trial court violated his right to the least severe sentence under Articles 25(c) and 50(2)(p) of the Constitution. He notes that although the minimum sentence under Section 8(3) of the Sexual Offences Act is 20 years, he was sentenced to 30 years imprisonment. He contends that the trial court improperly considered an unproven offence of robbery as an aggravating factor.
67. In the alternative, he urges the court, should the conviction be upheld, to impose the minimum sentence and to order that the same run from the date of his arrest in accordance withSsection 333(2) of the Criminal Procedure Code.
G. THE RESPONDENT’S SUBMISSIONS ON APPEAL.
68. The Respondent submits that the prosecution case was proved beyond reasonable doubt and that the evidence on record was consistent, cogent and mutually corroborative. It is argued that the complainant’s description of the assailant led to the Appellant’s arrest, and that a properly conducted identification parade, carried out in several rounds with the suspect changing positions and clothing, resulted in the complainant positively identifying the Appellant on each occasion.
69. The Respondent reviews the prosecution evidence, submitting that the five witnesses called established the case against the Appellant. The survivor gave a clear, detailed and consistent account of the incident which remained unshaken under cross-examination. The clinical officer confirmed findings consistent with sexual assault and/or defilement, including physical injuries and laboratory findings. The investigating officer testified on the investigative steps taken, including the identification parade, while the survivor’s father corroborated the immediate report and her distressed condition. The Government Analyst adduced DNA evidence linking the Appellant to the offence.
70. It is further submitted by the Respondent that the DNA analysis conclusively established that the Appellant’s genetic profile matched the male DNA obtained from the complainant’s samples, thereby providing strong scientific evidence connecting the Appellant to the offence. Reliance is placed on Joseph Karanja Njuguna vs Republic [2014] eKLR, for the proposition that DNA evidence, when properly obtained and analyzed constitutes conclusive proof of identity.
71. On the defence case, the Respondent submits that the Appellant merely gave an unsworn denial and raised allegations of a land dispute, which were neither substantiated nor supported by any evidence. It is contended that the trial court properly rejected that defence.
72. The Respondent supports the findings of the trial court, submitting that the learned magistrate correctly identified and addressed the key issues for determination, namely the age of the complainant, proof of penetration, identification of the perpetrator and whether the prosecution proved its case beyond reasonable doubt.
73. On the age of the complainant, the Respondent submits that the same was proved by documentary and oral evidence, which the trial court properly relied upon.
74. On penetration, the Respondent submits that it was proved beyond reasonable doubt through the complainant’s direct testimony, medical evidence and DNA findings, all of which were consistent and mutually reinforcing.
75. On identification, the Respondent submits that the trial court properly applied the principles set out in Mwaura vs Republic [1987] KLR 645, by considering the circumstances of identification, including the lighting, duration of interaction and proximity between the complainant and the assailant. Further reliance is placed on the authority of Wamunga vs Republic [2006] 1 KLR 195, for the principle that courts must exercise caution when dealing with identification evidence and carefully examine the prevailing conditions. It is contended that in the present case, the conditions favoured a positive and reliable identification, which was further strengthened by the identification parade and DNA evidence.
76. The Respondent further submits that, as a first appellate court, this Court is guided by the principles in Okeno vs Republic [1972] EA 32 and Kiilu & Another vs Republic [2005] 1 KLR 174, which require the Court to re-evaluate the evidence and draw its own conclusions while bearing in mind that it did not see or hear the witnesses.
77. On the complaint that the Appellant was denied a fair trial, the Respondent submits that the record demonstrates full compliance with Article 50 of the Constitution. The Respondent urges that the Appellant was informed of the charges, participated fully in the trial, cross-examined witnesses and was placed on his defence. It is further submitted that he was afforded an opportunity to mitigate, which he exercised, and therefore the allegation is unfounded.
78. With regard to sentence, the Respondent submits that the same was lawful and within the statutory limits prescribed under Section 8(3) of the Sexual Offences Act. It is argued that the trial court properly considered both mitigating and aggravating factors. Reliance is placed on Ogola s/o Owuor vs Republic [1954] 21 EACA 270, for the principle that an appellate court shoul
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1. The Appellant Richard Omondi Olumbe was in the principal count charged before the trial court 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.
2. As is instructive from the charge sheet, the particulars of the principal count were that on the 9th of January, 2023 at Nyang’oma Location in Muhoroni Subcounty within Kisumu County, the Appellant intentionally caused his penis to penetrate the vagina of RAK (name withheld, hereinafter referred to as “the survivor”), a child aged 14 years.
3. In the alternative count, the Appellant was charged with the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006.
4. The particulars of the alternative count were that that on the 9th of January, 2023 at Nyang’oma Location in Muhoroni Subcounty within Kisumu County, the Appellant intentionally and unlawfully touched the vagina, breasts and buttocks of RAK a child aged 14 years.
5. The Appellant denied both counts, which then called for a full trial.
B. THE GROUNDS OF APPEAL.
6. The prosecution case was founded on the evidence of five witnesses. while the defence comprised of the Appellant’s unsworn statement. Following the conclusion of the trial, the Appellant was convicted on the principal count and subsequently sentenced to serve 30 years imprisonment.
7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 9th December, 2024 in which he raised the following grounds of appeal:
a. THAT, the learned trial Magistrate erred in both law and in facts by failing to observe that penetration was not proved beyond reasonable doubt.
b. THAT, the learned trial Magistrate erred in both law and in facts by failing to observe that the Appellant was not accorded a fair trial pursuant to Article 50 as read with Article 25(c) of the Constitution of Kenya 2010, by not according the Appellant chance to mitigate.
c. THAT, the sentence was manifestly harsh and excessive as it offended the tenets of Section 8(3) of the Sexual Offences Act No. 3 of 2006.
d. THAT, the learned trial Magistrate erred in law in arriving at a decision while basing on evidence that were full of contradictions and without analyzing the same.
e. THAT, the learned trial Magistrate erred in both law and in facts by relying on uncorroborated evidences of a single eye witness and failing to call certain crucial witnesses.
8. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction and acquit him and set aside the sentence of imprisonment for 30 years.
9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.)
10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence.
C. THE PROSECUTION CASE.
11. The first prosecution witness (PW1) was the survivor, RAK, who told the trial court that she was 14 years of age and a form two learner at at AB Secondary School (details withheld) and a resident of XY (details withheld).
12. PW1, testified that on 9th January, 2023 at about 4:30am, she had arrived at Awasi Petrol Station from Nairobi where she had visited her brother. She stated that she proceeded to board a boda boda with the intention of proceeding to her home and was approached by a rider who agreed to ferry her for a fare of Ksh.70. She testified that there was light and that the rider, whose motor cycle had no side mirrors and who was dressed in a black jacket and trousers and had missing lower front teeth, led her off the main road towards Nyando River, where the incident giving rise to the charge occurred.
13. PW1 stated that on realizing that the rider had taken a course off the route to her home, she alighted, and fearing for herself, took to her heels. The rider ran after her and on catching up with her, grabbed her and threatened to kill her with a knife, which he had, if she screamed.
14. The survivor testified further that the rider then carried her on his shoulder and took her near the river, where she saw another motorcycle. He then forcefully undressed her and took of his trousers and underpants before proceeding to violate her by forcefully inserting his penis into her vagina.
15. The survivor further testified that after the assault, the assailant instructed her to get dressed and accompanied her part of the way on the motorcycle. She stated that he demanded and took possession of her box containing assorted items, including sugar, soap, cooking oil and cash in the sum of Ksh.2,000/-. Thereafter, he dropped her at a nearby river and left with her belongings, after which she proceeded home, which was not far from the scene.
16. The complainant testified that upon arriving home, she immediately informed her mother that she had been defiled by a boda boda rider and gave a description of the assailant, including his clothing and the fact that he had missing lower front teeth. She stated that her mother reported the matter, leading to police intervention. The complainant further testified that the following day, she accompanied her family and police officers to Awasi Police Station, where the suspect was traced to a boda boda stage and subsequently arrested while wearing the same clothing she had described.
17. The survivor further testified that she was subsequently taken to hospital for medical examination and treatment, including prophylactic medication. She also stated that police officers escorted her to the scene of the incident, where she recovered one of her undergarments and some of the items she had been carrying, which had fallen there. She added that the scene and the recovered items were photographed by the police.
18. In her further testimony, the survivor told the trial court that she was later called upon to identify the assailant at an identification parade that was conducted at Awasi Police Station, where she positively identified the Appellant based on his physical appearance and clothing, stating that she was able to recognize him when he was presented among other persons. She stated that the identification parade was conducted comprised nine persons.
19. The survivor explained that on the first instance the suspect was not included in the parade, but upon repetition he was later placed among the participants. She maintained that she was able to positively identify him during the parade, relying on his appearance and clothing, and that she physically pointed him out by holding his hand. The identification parade form was produced in evidence.
20. PW1 further testified that medical evidence was collected and that she was examined at hospital where samples were taken from her mouth and vagina for forensic analysis. She produced her birth certificate to confirm that she was 14 years old at the time of the incident. She reiterated that she did not know the accused prior to the incident and only encountered him on the material night at a place illuminated by street lighting and the motorcycle’s headlight.
21. On cross-examination by the Appellant, the PW1 maintained that she had not met him before the incident and that he was the boda boda rider who ferried her that night. She stated that she clearly saw him under street lighting and motorcycle light and described his physical appearance, including his hairstyle. She denied that she had falsely implicated him and maintained that she was able to recognize him during the arrest and identification parade.
22. On re-examination, the survivor reaffirmed her testimony and stated that she reported the loss of her belongings, including the box containing her items and money. She maintained that the Appellant was arrested following her report and identification. She also reiterated that she did not see or know the reason why other persons were arrested in connection with the matter.
23. PW2, was Lewis Miruka Otieno, a clinical officer working at Ahero County Hospital and holder of a Diploma in Clinical Medicine and Surgery. The witness testified that he examined and treated the survivor, RAK, who was escorted to the facility by police.
24. He testified that the complainant gave a history of having been forced into sexual intercourse by a person she identified through his clothing after he allegedly diverted her on a motorcycle into a bushy area. PW2 stated that upon examination, the complainant was in fair general condition and had a bruise on the chin, consistent with a blunt force injury. He further noted that her clothing, specifically a pink trouser, was torn and soiled with mud.
25. PW2 testified that a genital examination revealed that the complainant’s hymen was absent but not freshly torn, and there was a whitish vaginal discharge, although no fresh genital injuries were observed. He stated that samples were collected for laboratory analysis, including high vaginal swabs, and forwarded for testing. He concluded that, based on the history and findings, the injuries were consistent with defilement.
26. PW2 also produced laboratory results which indicated, inter alia, that tests for sexually transmitted infections such as Hepatitis B and VDRL were negative, while the vaginal swab showed the presence of epithelial cells. He stated that additional medical documentation was prepared for the complainant.
27. PW2 produced the survivor’s P3 form, treatment notes, PRC form and laboratory results relating to the complainant’s examination.
28. In cross-examination, PW2 stated that forensic fingerprint analysis was not conducted and that identification of the assailant was based on the complainant’s account. He further confirmed that absence of a hymen does not, on its own, establish defilement, but maintained that clinical and laboratory findings are considered together in reaching a medical conclusion. He also confirmed that samples were collected from both the complainant and the Appellant for laboratory analysis, with part of the samples being sent to the Government Analyst in Kisumu. He maintained his findings as contained in the P3 form and treatment notes.
29. The witness produced the following exhibits:
- The survivor’s PRC form – PExh1.
- The survivor’s P3 form – PExh2.
- The survivor’s treatment notes and laboratory results – PExh4a and PExh4b.
30. PW3, Police Constable Jane Atieno Ojuok, attached to Awasi Police Station and the investigating officer in the case, testified that on 9th January, 2023 at about 6:45am, she received a report regarding an alleged defilement incident and proceeded to the report office, where she met the survivor, RAK, accompanied by her father, who formally reported the incident.
31. PW3 testified that the survivor reported that she had boarded a boda boda at Awasi after arriving from Nairobi and had agreed with the rider on the fare and destination. She stated that the survivor alleged that the rider diverted from the agreed route after crossing River Nyando, proceeded to a secluded area, and unlawfully assaulted and forcefully had sexual intercourse with her, before later releasing her. She further stated that the survivor also reported that the assailant took her personal belongings and issued threats cautioning her against disclosing the incident.
32. PW3 further testified that after the report, the survivor and her father were referred to Ahero Sub-County Hospital for medical examination and treatment. She stated that investigations were commenced, during which the survivor provided a description of the suspect, including his physical appearance and the motorcycle he was allegedly riding. PW3 testified that acting on this information, police officers traced and arrested the Appellant.
33. PW3 testified that an identification parade was subsequently conducted under the supervision of another officer, during which the survivor positively identified the Appellant on several occasions despite changes in the positioning and arrangement of the participants. She further stated that the identification parade form was duly completed.
34. PW3 produced the following exhibits:
- Identification parade form – PExh3.
- The survivor’s certificate of birth – PExh5.
- Motor cycle registration number KMEZ 744C make TVS – PExh6.
- The survivor’s white open shoes – PExh7a.
- The survivor’s pair of socks – PExh7c.
- The survivor’s multi-coloured T shirt – PExh7c.
- The survivor’s pink trousers – PExh7d.
- The survivor’s pink underpants – PExh7e.
- Exhibit memo form – PExh8a.
35. The witness noted that the survivor’s certificate of birth bore her date of birth as 17th April, 2008.
36. During cross-examination, PW3 maintained that the survivor was the primary identifying witness and that the Appellant was arrested based on the description given by the survivor. She stated that the identification parade was conducted in accordance with proper procedure, including the use of persons of similar appearance and the alteration of positions of participants to ensure fairness. She further testified that other individuals initially arrested in connection with the matter were released after no evidence linked them to the offence, and she maintained that the Appellant was consistently identified by the survivor during the identification process.
37. PW3 further stated that the survivor was not present during the arrest of the Appellant and only saw him during the identification parade. She testified that the investigation was confined to the scene of the incident and relevant inquiries, and that items linked to the survivor were recovered during the process. She maintained that the identification exercise was conducted fairly and that the Appellant was the only person positively identified as the suspect throughout the investigation.
38. PW3, on re-examination, reiterated that the investigation was guided by the description given by the survivor, which enabled the tracing and arrest of the Appellant. She maintained that multiple suspects were initially brought forward but were released after the survivor did not identify them, and that only the Appellant was consistently identified during the identification parade. She further stated that the identification process was conducted in compliance with proper procedure and that the survivor had no prior acquaintance with the Appellant before the incident.
39. PW4, GKM., a farmer from Chemelil engaged in sugarcane farming, testified that the survivor, RAK, was his daughter, and that she had travelled from her brother’s residence and was expected home in the early morning hours of 9th January, 2023. He stated that she arrived at about 4:00am and knocked at their door, appearing distressed and in tears, and was thereafter admitted into the home.
40. PW4 further testified that the complainant reported that after boarding a boda boda at Awasi, the rider diverted from the agreed route and took her to a secluded area, where he defiled her. He stated that she was thereafter dropped near Ose Bridge, close to their home, and that the rider took her shopping items, including soap, cooking oil and sugar, before warning her not to report the incident to anyone.
41. PW4 further testified that he immediately reported the matter at Awasi Police Station and thereafter accompanied the survivor to Ahero County Hospital for medical examination and treatment. He stated that medical personnel examined the survivor and confirmed that she had been sexually violated. He stated that the survivor was a minor and a student at the time of the incident.
42. PW4 testified that the survivor was dressed in a pink trouser and jumper which appeared soiled at the time she returned home. He stated that she was visibly distressed and reported that she had been threatened with harm during the incident.
43. PW4 further testified that the survivor was able to provide a description of the person she alleged was involved in the incident, which assisted the police in their investigations and ultimately led to the identification of a suspect. He reiterated that he had no prior knowledge of the Appellant and came to know him only after his arrest in connection with the case.
44. In cross-examination, PW4 stated that he did not witness the incident and relied entirely on what the survivor narrated upon her return home. He confirmed that he escorted her to report the matter to the police and thereafter to hospital for medical attention. He further maintained that he did not know the Appellant prior to the incident and only saw him after his arrest. He reiterated that the survivor appeared distressed when she arrived home and that she was subsequently examined by medical personnel.
45. On re-examination, PW4 reiterated that he had no prior acquaintance with the Appellant and only came to know him in the course of these proceedings. He maintained his earlier testimony regarding the survivor’s report and the steps taken thereafter to report the matter to the police and seek medical attention.
46. PW5, Godwin Khamala Waliama, a Government Analyst attached to the Government Chemist Laboratory in Kisumu, testified that and stated that he prepared a forensic report in respect of exhibits submitted to the laboratory through an exhibit memo form that he received from Awasi Police Station dated 10th January, 2023.
47. The witness testified that the exhibits submitted included a high vaginal swab and buccal swabs taken from the survivor, RAK, and the Appellant, Richard Omondi Olumbe. PW5 stated that DNA analysis was conducted on the submitted samples, and that the results revealed the presence of male DNA profiles. He stated that the DNA profile obtained from the high vaginal swab matched the DNA profile generated from the Appellant’s buccal swab.
48. PW5 further stated that he prepared and signed the forensic report, which he produced in evidence as PExh8b. He confirmed that the findings were contained in the report presented before the court.
49. In cross-examination, PW5 stated that the Appellant was physically presented at the Government Chemist by the investigating officer for sampling. He further confirmed that the vaginal swab analyzed originated from the medical examination conducted at the health facility.
D. THE DEFENCE CASE.
50. The Appellant Richard Omondi Olumbe (DW1), stated in his unsworn statement that he was a resident of Kisumu County, Muhoroni Subcounty, Nyangoma Location, and worked as a jua kali artisan.
51. The Appellant told the trial court that he resided near the survivor’s family home and that there had been a dispute between him and PW4 regarding land allegedly belonging to his grandfather, on which he had planted sugarcane in September, 2022.
52. DW1 alleged that due to the said dispute, PW4 had threatened him that he would ensure his arrest and that he would not benefit from the harvest. He further stated that on the material day, while travelling on his motorcycle, he was confronted by individuals who accused him of being involved in the land dispute and thereafter took him to the police station, where he was placed in custody without being informed of the reason for his arrest.
53. DW1 stated that he was later charged in court with the offence of defilement, which he denied. He maintained that he did not commit the offence.
54. The Appellant did not call any witness and closed the defence case at that stage.
E. THE TRIAL COURT’S FINDINGS.
55. In her judgement rendered on 3rd December, 2024, the learned trial Magistrate reached the finding that the prosecution had proved the principal charge against the Appellant beyond reasonable doubt and proceeded to convict him on the same in line with Section 215 of the Criminal Procedure Code. He subsequently sentenced him to serve 30 years imprisonment.
56. The instant appeal, which proceeded by way of written submissions, seeks to upset the conviction and sentence of the trial court.
F. THE APPELLANT’S SUBMISSIONS ON APPEAL.
57. The Appellant submits that the trial court erred both in law and fact in convicting him on the basis of mistaken, inconclusive and flawed evidence of identification by a single witness under difficult conditions. He argues that the alleged offence occurred at about 4:30am in darkness, and that the survivor (PW1) initially reported that she had been attacked by a person not well known to her, thus negating any claim of recognition.
58. The Appellant further points to what he terms material contradictions in the description of the assailant, noting that PW1 described the attacker as wearing a black jacket and trousers and having missing lower front teeth, while PW2 described the perpetrator as a short man with dreadlocks.
59. According to the Appellant, these inconsistencies rendered the identification evidence unreliable and devoid of probative value. He faults the trial court for misdirecting itself in finding that there was sufficient time for observation, arguing instead that the only clear opportunity for observation was a brief moment at a petrol station, amounting to a fleeting glance.
60. Reliance is placed on the principles in R v Turnbull [1976] 3 All ER 549, to the effect that where identification is made under difficult conditions and is of poor quality, the court ought to treat such evidence with the greatest caution.
61. The Appellant further challenges the identification parade, submitting that it was compromised and of no evidential value. He contends that PW1 had already seen him under arrest prior to the parade, thereby influencing her subsequent identification. He also argues that the parade was improperly conducted, as he was made to wear a hood while other members wore marvins, making him stand out and rendering the exercise unfair. Additionally, the failure by the prosecution to call the parade officer and to produce the identification parade form through its maker is said to have rendered the evidence inadmissible and adverse to the prosecution case.
62. On the DNA evidence, the Appellant submits that the same was obtained in contravention of the law and ought to have been excluded under Article 50(4) of the Constitution. He relies on Sections 122A, 122C and 122D of the Penal Code, arguing that there was neither a written order from an officer of or above the rank of inspector of police nor his consent to undergo DNA sampling. He points out that the sampling was ordered by a police constable, who lacked the legal authority to do so, thereby rendering the resultant analysis inadmissible.
63. The Appellant also contends that the prosecution failed to prove penetration beyond reasonable doubt. He argues that the P3 form, PRC form and treatment notes were not properly produced as exhibits and therefore should not have been relied upon. He further submits that the medical findings, including the absence of a hymen and the presence of spermatozoa, were not conclusive proof of penetration. In this regard, he relies on the decisions in P.K.W v Republic [2012] eKLR, R v Vincent Quitanila 1999 ABQB 769 and Mwangi v Republic. He maintains that the survivor’s evidence was inconsistent and untruthful, particularly regarding the sequence of events, and that the trial court failed to record reasons for believing her as required under Section 124 of the Evidence Act.
64. The Appellant further argues that the circumstances described by PW1, including the alleged interruption by another motorcycle, cast doubt on the possibility of the offence having occurred as alleged. He submits that such inconsistencies, coupled with his defence of a land dispute with the survivor’s family, created reasonable doubt which ought to have been resolved in his favour.
65. The Appellant also contends that his constitutional right to a fair trial was violated, as he was not informed of his right to legal representation at state expense as provided under Articles 50(2)(g) and (h) as read with Article 25(c) of the Constitution. He submits that given the seriousness of the charge and the potential sentence, failure to accord him legal representation occasioned substantial injustice.
66. Lastly, the Appellant challenges the sentence imposed, arguing that the trial court violated his right to the least severe sentence under Articles 25(c) and 50(2)(p) of the Constitution. He notes that although the minimum sentence under Section 8(3) of the Sexual Offences Act is 20 years, he was sentenced to 30 years imprisonment. He contends that the trial court improperly considered an unproven offence of robbery as an aggravating factor.
67. In the alternative, he urges the court, should the conviction be upheld, to impose the minimum sentence and to order that the same run from the date of his arrest in accordance withSsection 333(2) of the Criminal Procedure Code.
G. THE RESPONDENT’S SUBMISSIONS ON APPEAL.
68. The Respondent submits that the prosecution case was proved beyond reasonable doubt and that the evidence on record was consistent, cogent and mutually corroborative. It is argued that the complainant’s description of the assailant led to the Appellant’s arrest, and that a properly conducted identification parade, carried out in several rounds with the suspect changing positions and clothing, resulted in the complainant positively identifying the Appellant on each occasion.
69. The Respondent reviews the prosecution evidence, submitting that the five witnesses called established the case against the Appellant. The survivor gave a clear, detailed and consistent account of the incident which remained unshaken under cross-examination. The clinical officer confirmed findings consistent with sexual assault and/or defilement, including physical injuries and laboratory findings. The investigating officer testified on the investigative steps taken, including the identification parade, while the survivor’s father corroborated the immediate report and her distressed condition. The Government Analyst adduced DNA evidence linking the Appellant to the offence.
70. It is further submitted by the Respondent that the DNA analysis conclusively established that the Appellant’s genetic profile matched the male DNA obtained from the complainant’s samples, thereby providing strong scientific evidence connecting the Appellant to the offence. Reliance is placed on Joseph Karanja Njuguna vs Republic [2014] eKLR, for the proposition that DNA evidence, when properly obtained and analyzed constitutes conclusive proof of identity.
71. On the defence case, the Respondent submits that the Appellant merely gave an unsworn denial and raised allegations of a land dispute, which were neither substantiated nor supported by any evidence. It is contended that the trial court properly rejected that defence.
72. The Respondent supports the findings of the trial court, submitting that the learned magistrate correctly identified and addressed the key issues for determination, namely the age of the complainant, proof of penetration, identification of the perpetrator and whether the prosecution proved its case beyond reasonable doubt.
73. On the age of the complainant, the Respondent submits that the same was proved by documentary and oral evidence, which the trial court properly relied upon.
74. On penetration, the Respondent submits that it was proved beyond reasonable doubt through the complainant’s direct testimony, medical evidence and DNA findings, all of which were consistent and mutually reinforcing.
75. On identification, the Respondent submits that the trial court properly applied the principles set out in Mwaura vs Republic [1987] KLR 645, by considering the circumstances of identification, including the lighting, duration of interaction and proximity between the complainant and the assailant. Further reliance is placed on the authority of Wamunga vs Republic [2006] 1 KLR 195, for the principle that courts must exercise caution when dealing with identification evidence and carefully examine the prevailing conditions. It is contended that in the present case, the conditions favoured a positive and reliable identification, which was further strengthened by the identification parade and DNA evidence.
76. The Respondent further submits that, as a first appellate court, this Court is guided by the principles in Okeno vs Republic [1972] EA 32 and Kiilu & Another vs Republic [2005] 1 KLR 174, which require the Court to re-evaluate the evidence and draw its own conclusions while bearing in mind that it did not see or hear the witnesses.
77. On the complaint that the Appellant was denied a fair trial, the Respondent submits that the record demonstrates full compliance with Article 50 of the Constitution. The Respondent urges that the Appellant was informed of the charges, participated fully in the trial, cross-examined witnesses and was placed on his defence. It is further submitted that he was afforded an opportunity to mitigate, which he exercised, and therefore the allegation is unfounded.
78. With regard to sentence, the Respondent submits that the same was lawful and within the statutory limits prescribed under Section 8(3) of the Sexual Offences Act. It is argued that the trial court properly considered both mitigating and aggravating factors. Reliance is placed on Ogola s/o Owuor vs Republic [1954] 21 EACA 270, for the principle that an appellate court shoul
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