A. THE CHARGES.
1. The Appellant Richard Ouko Odenya 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 diverse dates between 29th October, 2021 and 31st October, 2021 in Kisumu Manyatta within Kisumu County, the Appellant and unlawfully inserted his penis into the anus of BJO (name withheld, hereinafter referred to as “the complainant”), a child aged 13 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 on diverse dates between 29th October, 2021 and 31st October, 2021 in Kisumu Manyatta within Kisumu County, the Appellant intentionally and unlawfully committed an indecent act with a child, by touching private parts namely the anus of BJO, a child aged 13 years, with his penis.
5. The Appellant was in the 2nd count charged with the offence of deliberate transmission of HIV contrary to Section 26(1) as read with Section 26(3) of the Sexual Offences Act, No. 3 of 2006.
6. The particulars of the 2nd count were that on diverse dates between 29th October, 2021 and 31st October, 2021 in Kisumu Manyatta within Kisumu County, having actual knowledge that he was infected with HIV, the Appellant intentionally, knowingly and willfully had unprotected sexual intercourse with BJO, a child aged 13 years, which infected the said child with HIV.
7. In the 3rd count, the Appellant charged with the offence of kidnapping a child under 14 years of age with intent to steal contrary to Section 262 of the Penal Code.
8. The prosecution alleged in the particulars of the 3rd count that on 29th October, 2021 at Kondele Township in Kisumu Town within Kisumu County, the Appellant kidnapped BJO, a child aged 13 years, with the intention of dishonestly taking money from EAO (name withheld), the mother of the said child.
9. The Appellant denied all the counts, which then called for a full trial.
B. THE GROUNDS OF APPEAL.
10. The prosecution case was founded on the evidence of five witnesses. while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted on count 1 and subsequently sentenced to serve 20 years imprisonment. He was acquitted on all the other counts.
11. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 22nd August, 2024 in which he raised the following grounds of appeal:
a. THAT, the learned trial Magistrate erred in law by failing to establish that the prosecution side did not prove their case beyond reasonable doubt.
b. THAT, the learned trial Magistrate erred in law by relying on evidence that was contradictory.
12. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction on count 1 and acquit him and set aside the sentence of imprisonment for 20 years.
C. THE DUTY OF THIS COURT.
13. 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.)
14. 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.
D. THE PROSECUTION CASE.
15. The prosecution called Paul Muturi Ndung’u, a registered clinical officer as PW1. In his testimony before the trial court, the witness testified that he was a registered clinical officer, Registration No. 6428, and had been working at Coptic Hospital since 2009 and in the Gender Clinic since 2017, where he attended to survivors of violence.
16. He testified that on 1st November, 2021, he examined the complainant, BJO, who had been brought to the hospital by a police officer. The complainant reported that he had been abducted by an unknown man, taken to an unknown place, given food, and forcefully penetrated through the anus without protection.
17. PW1 stated that he conducted a head-to-toe examination and completed a Post Rape Care (PRC) form. His findings revealed a normal general examination, no discharge from the anus, loose external and internal anal sphincter muscles, and a visible anal laceration at the 12 o’clock to 6 o’clock position.
18. He testified that the complainant was compliant during the examination. He further stated that the complainant was treated with Post Exposure Prophylaxis (PEP) and medication for sexually transmitted infections. Laboratory tests, including urine analysis, blood tests, HIV screening, STI screening and Hepatitis B testing, all yielded negative results.
19. PW1 produced the PRC form dated 1st November, 2021 as Prosecution Exhibit 1. He further testified that he later completed a P3 form in respect of the complainant, noting that there was no notable difference between the information contained in the P3 form and the PRC form apart from the dates. The P3 form was produced as Prosecution Exhibit 2. He also produced the prescription for PEP medication dated 1st November, 2021 as Prosecution Exhibit 3 and the prescription for STI antibiotics as Prosecution Exhibit 4.
20. The witness further testified that he examined the Appellant, Richard Ouko, and conducted blood and urine screening tests. The results showed that Hepatitis B, STI screening, urine analysis, and blood tests were all negative. The test results relating to the appellant were produced as Prosecution Exhibit 5.
21. PW1 concluded that the injuries noted in the PRC form were consistent with the offence alleged.
22. During cross-examination by the Appellant, he confirmed that he had personally examined him at Coptic Hospital. In re-examination, PW1 clarified that although an HIV test had been conducted in a Voluntary Counselling and Testing (VCT) set-up, the results were not in his possession as they were recorded in a different form.
23. The prosecution called the complainant as PW2. In his testimony before the trial court, the complainant testified that he was a 13-year-old pupil in Class 8 at B. O. Primary School (particulars withheld) and resided in Kajulu with his mother. He stated that on 29th October, 2021, he was sent home from school to obtain a mathematical set. Upon learning that his mother was unable to provide one, he proceeded to Agape Children’s Home in an attempt to seek assistance from his sponsor. However, he was unable to find the sponsor and later commenced his journey home in the evening. While on his way home, he encountered the Appellant, who was previously unknown to him, and who offered him accommodation for the night on account of the late hour. The complainant testified that he accompanied the Appellant to his residence, where they spent the night.
24. The complainant further testified that after arriving at the Appellant’s residence, he remained there overnight. He stated that the Appellant threatened him with a knife, causing him fear and preventing him from seeking help. According to the complainant, he was not allowed to leave the house and remained under the Appellant’s control.
25. The complainant told the trial court that at about 11.00pm, he felt the Appellant touching him. He realized that he and the Appellant were naked. The Appellant then took some oil and applied it in the complainant’s anus. The Appellant then held the knife and told the complainant not to make any noise. He proceeded to defile the complainant by penetrating his penis into his anus.
26. He further testified that the Appellant then contacted the complainant’s mother and demanded money before he could be released. The complainant stated that he remained confined in the house until police officers eventually arrived and rescued him.
27. The complainant further testified that police officers and other persons later arrived at the Appellant’s residence and rescued him. He stated that the Appellant was arrested at the scene. The complainant was thereafter taken to Kondele Police Station and subsequently to Maseno Police Station before being escorted to hospital for medical examination and treatment, where he was admitted as an inpatient.
28. The complainant further testified that during the police intervention, certain items were recovered from the scene, which he later identified in court, including a blue short and a red and white cap. He also identified the Appellant in court as the person he had encountered on the material night.
29. During cross-examination, the complainant maintained that he had met the Appellant on his way home and accompanied him to his residence. He further maintained that he remained in the Appellant’s house and that he was unable to seek assistance during the period in question. He reiterated the truthfulness of his testimony before the trial court.
30. The prosecution called EAO as PW3. In her testimony before the trial court, PW3 stated that she was a housewife residing at Riat and the mother of the complainant. She testified that on 29th October, 2021, the complainant had been sent away from school and was expected to return home, and that she was aware he was within the homestead area at the material time.
31. PW3 further testified that on 30th October, 2021, at about midday, she received a telephone call from an unknown person using the number 0777 400881 who informed her that the complainant was missing and indicated that he was being taken to Kondele Police Station. She stated that the caller did not initially disclose his identity but later contacted her demanding money for the alleged release of the child. PW3 testified that she sent money through mobile money transactions to the number provided – 0777 400837 – in order to facilitate the child’s release. She also stated that she later provided the investigating officers with the relevant mobile money transaction records, which were produced in evidence.
32. PW3 further testified that she was later informed that the complainant had been found and taken to Kondele Police Station before being transferred to hospital. She stated that upon seeing the complainant, he reported that he had been held by a stranger and sodomized during the period he was missing. PW3 also stated that she later saw the Appellant at Maseno Police Station.
33. During cross-examination, PW3 maintained that she did not know the Appellant prior to the incident but only came to know him after he was arrested. She reiterated that she received calls demanding money for the complainant’s release and that she complied by sending the requested amount. She further stated that the complainant was later examined and treated at hospital.
34. The prosecution called Salvine Cheruto Katukoi, a Government Analyst based at the Kisumu Government Chemist Office, as PW4. In her testimony before the trial court, PW4 stated that she held a Bachelor’s Degree in Biochemistry from Kenyatta University and was involved in forensic laboratory analysis, including DNA examination.
35. PW4 testified that on 2nd November 2021, she received an exhibit memo from Paul Masika, a police officer stationed at DCI Kisumu West, together with several exhibits for analysis. These included a blue short marked “X” contained in a brown envelope, a swab marked “Y”, a brown bed sheet, an additional swab marked “A” taken from the accused, and a pink cap marked “N”.
36. PW4 stated that upon analysis, the bed sheet tested positive for seminal fluid, while the cap tested negative for seminal fluid. She further testified that the blue short was stained with human blood. She explained that DNA analysis revealed that the DNA profile generated from the blue short matched that of the complainant, while the DNA profile obtained from the bed sheet showed a mixed profile belonging to both the complainant and the accused. The pink cap did not yield any DNA profile.
37. PW4 produced her forensic report dated 1st December, 2022 as Prosecution Exhibit 8, together with the exhibit memo form dated 2nd November, 2021 as Prosecution Exhibit 9.
38. The Appellant did not cross-examine the witness.
39. The prosecution called Inspector of Police Paul Masika as PW5. In his testimony before the trial court, PW5 stated that he was a Deputy DCIO attached to DCI Imenti North and was the investigating officer in the matter. He testified that he took over investigations on 30th October, 2021 following a report made by the mother of the complainant regarding the disappearance of her child on 29th October, 2021.
40. PW5 further testified that on the evening of 30th October, 2021, the complainant’s mother received a text message from the number 0777 400837, which was unknown to her, demanding money for the release of the child. He stated that she sent a sum of money in response to the demand. PW5 testified that investigations conducted jointly with the Crime Intelligence Unit in Kisumu established that the mobile number used was not registered in the name of any known subscriber but was traced to the Kisumu Manyatta area.
41. PW5 stated that further investigations led to the identification and arrest of the Appellant in Kisumu Manyatta. He testified that upon arrest, the Appellant led police officers to his residence, where the complainant was found. PW5 stated that the complainant was discovered inside a small house, lying on a mattress and covered with a sheet, and appeared weak, hungry, and unwell. He further testified that the complainant was rescued and taken to hospital for medical attention.
42. PW5 testified that several exhibits were recovered during the operation, including a mobile phone used in the communication with the complainant’s mother, a pink cap, a bed sheet and a blue short. He stated that the complainant identified the Appellant as the person who had confined him. PW5 further testified that the complainant was subsequently taken for medical examination together with the Appellant pursuant to a court order.
43. PW5 also stated that the exhibits were documented in an inventory signed by the Appellant and that he prepared the exhibit memo for forensic analysis. He testified that statements were recorded from witnesses and that the Appellant was subsequently charged with the offence.
44. During cross-examination, PW5 maintained that the complainant was found inside the Appellant’s residence and was rescued by the police. He further stated that the complainant reported being confined by the Appellant.
45. The prosecution closed its case at that stage.
E. RULING ON PRIMA FACIE CASE
46. In its considered ruling delivered on 15th August, 2023, the trial court carefully evaluated the evidence that had been placed before it by the prosecution at the close of the prosecution case.
47. Upon such evaluation, the learned trial Magistrate was satisfied that the prosecution had established a prima facie case against the Appellant sufficient to warrant his being called upon to answer the allegations made against him.
48. Consequently, and in accordance with the applicable law and procedure, the trial court found that the Appellant had a case to answer and accordingly placed him on his defence.
F. THE DEFENCE CASE
49. The Appellant, testified as DW1. In his sworn evidence before the trial court, he stated that he resided in Manyatta Corner Mbuta and worked as a broker. He told the court that he understood the charges against him and had followed the evidence adduced by the prosecution witnesses.
50. DW1 testified that in November, 2021, he met a boy who appeared to need assistance and took him to his residence. He stated that on the way, the boy indicated that he came from Kiboswa and provided his mother’s telephone number.
51. According to the Appellant, he contacted the boy’s mother and informed her that he was in possession of the child, and she allegedly requested that he take the child to his home. He further stated that he later attempted to reach her again but her calls were not going through.
52. The Appellant testified that he kept the phone for charging and that police officers later traced him through a call and arrested him. He stated that he thereafter led them to his house where the child was found, and he was subsequently taken to Kondele Police Station.
53. DW1 further testified that he was later taken to Maseno Police Station and subjected to medical examination. He stated that he was shocked by the nature of the charges and denied committing the offence.
54. During cross-examination, DW1 stated that he worked as a mask hawker in Kondele and that he had a family. He maintained that on 29th October, 2021 he was at his house in the evening and that he had neighbours, though he did not know them by name. He denied demanding any money from the complainant’s mother.
55. The Appellant further stated that certain items, including a pink cap, bed sheet, and blue short, were recovered from or near his house, but did not admit any criminal conduct in relation to them. He also stated that he learned of his HIV status in June, 2025 following a medical test.
56. He maintained that he did not know the complainant prior to the incident and that he was arrested by officers who were previously unknown to him.
G. THE TRIAL COURT’S FINDINGS
57. In the trial court’s judgement delivered on 27th September, 2023, the Appellant was acquitted of the charges of deliberate transmission of HIV and kidnapping a child under fourteen years with intent to steal from the person. However, he was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act.
58. In arriving at the conviction on the count of defilement, the trial court identified the essential ingredients of the offence as the age of the complainant, penetration, and the proper identification of the perpetrator.
59. On the issue of age, the court found that the complainant was a minor aged about 13 years at the time of the incident, relying on the evidence of both the complainant and his mother, as well as the overall record, which placed his date of birth around 2007. The court held that this evidence sufficiently established that the complainant was a child within the meaning of the Sexual Offences Act.
60. On the issue of penetration, the trial court relied on both the testimony of the complainant and the medical evidence adduced by PW1, the clinical officer, who examined the complainant and observed anal lacerations at the 12 and 6 o’clock positions, as well as laxity of the external and internal anal sphincter muscles. The court found that these findings were consistent with penetration and corroborated the complainant’s account of the incident.
61. On the issue of identification of the perpetrator, the trial court found that the complainant positively identified the Appellant, noting that the complainant had interacted with him for a substantial period of time during which they travelled together and stayed in the same residence. The court further relied on the Appellant’s own admission that he had met and taken the complainant to his house.
62. In addition, the court placed reliance on forensic evidence produced by the Government Analyst (PW4), which indicated that DNA material on exhibits recovered from the Appellant’s residence linked both the complainant and the Appellant, thereby reinforcing the evidence placing the Appellant at the scene.
63. The trial court also considered the testimony of the investigating officer (PW5), who stated that the Appellant led police officers to his house where the complainant was found and rescued. The court found that this evidence, taken together with the medical and forensic findings, formed a consistent and coherent chain of evidence pointing to the Appellant’s guilt.
64. Accordingly, the trial court concluded that the prosecution had proved the offence of defilement beyond reasonable doubt, convicted the Appellant on that count. The trial court went on to consider the Appellant’s mitigation and ultimately sentenced him to 20 years imprisonment.
H. THE APPELLANT’S SUBMISSIONS.
65. In his submissions in support of the appeal, the Appellant states that he was charged and convicted of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to twenty years imprisonment.
66. The Appellant submits that the evidence on record does not establish the offence beyond reasonable doubt and contends that the circumstances surrounding the case indicate that he had taken the complainant in good faith after finding him in need of assistance.
67. He argues that he contacted the complainant’s mother and that the interaction between them demonstrated a lack of criminal intent. He further questions the plausibility of the prosecution’s narrative, particularly the conduct of the complainant and the alleged events during the period in question, and urges the Court to find that the allegations were not credible.
68. The Appellant further challenges the prosecution evidence on the basis of inconsistencies in the testimony of the witnesses and the absence of corroborative proof linking him to the offence. He specifically refers to the medical and DNA evidence, submitting that while certain exhibits indicated the presence of biological material, this did not conclusively establish penetration or the commission of the offence charged. He contends that the forensic findings were capable of innocent explanation and therefore did not meet the threshold of proof beyond reasonable doubt.
69. The Appellant further submits that the prosecution failed to discharge its burden of proof and that any doubts arising from the evidence ought to be resolved in his favour in line with the presumption of innocence and the constitutional guarantee of equal protection before the law under Article 27 of the Constitution. He therefore urges that the conviction was unsafe and that the sentence imposed was harsh and unwarranted.
70. The Appellant accordingly prays that the appeal be allowed, the conviction quashed, the sentence set aside, and that he be set at liberty.
I. THE RESPONDENT’S SUBMISSIONS.
71. In response to the appeal, the Respondent submits that the prosecution discharged its burden of proving the offence of defilement beyond reasonable doubt, as the essential ingredients of the offence – namely the age of the victim, penetration and the identification of the accused – were all established.
72. The Respondent submits that the evidence of PW1, the clinical officer, confirmed penetration through medical findings which included anal lacerations and the presence of injuries consistent with anal sexual violation.
73. It is further submitted that forensic evidence from the Government Analyst (PW4) linked exhibits recovered from the Appellant’s residence to both the complainant and the Appellant, including DNA findings indicating a mixed profile on certain items.
74. The Respondent relies on the complainant’s testimony that the Appellant had access to and control over him during the material period, and the investigating officer’s evidence (PW5), which placed the Appellant at the centre of the recovery of the complainant from his residence.
75. On the issue of identification, the Respondent submits that the circumstances of the case, including the prolonged interaction between the Appellant and the complainant and the recovery of the complainant from the Appellant’s residence, eliminated the possibility of mistaken identity.
76. It is further argued that the Appellant’s own account placed him in contact with the complainant during the relevant period, thereby supporting the prosecution case.
77. On the alleged inconsistencies in the prosecution evidence, the Respondent submits that any minor discrepancies between the testimonies of prosecution witnesses do not go to the root of the case and are insufficient to vitiate an otherwise cogent and credible prosecution case. Reliance is placed on the principle that only material contradictions that create doubt as to the guilt of an accused can be fatal to the prosecution case.
78. The Respondent therefore urges the Court to find that the prosecution proved its case to the required standard, and prays that the appeal be dismissed and the conviction and sentence of the trial court be upheld.
J. ISSUES FOR DETERMINATION.
79. Having considered the record of the proceedings before the trial court, the grounds of appeal and the respective submissions of the parties, it is my view that the grounds raised by the Appellant may, for purposes of determination, be condensed into the following issues:
a. Whether the prosecution proved beyond reasonable doubt the ingredients of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, namely the age of the complainant, penetration, and the identity of the perpetrator.
b. Whether the identification of the Appellant as the perpetrator was free from error and sufficiently established in law, considering the circumstances under which the complainant came into contact with him.
c. Whether the medical and forensic (DNA) evidence adduced by the prosecution was properly evaluated and whether it sufficiently corroborated the complainant’s testimony on penetration and the Appellant’s involvement.
d. Whether the trial court properly evaluated the totality of the evidence, including the alleged inconsistencies raised by the Appellant, in arriving at a finding of guilt.
e. Whether the conviction of the Appellant was safe and the sentence imposed lawful and appropriate in the circumstances of the case.
K. ANALYSIS AND FINDINGS.
80. The first issue for determination is whether the prosecution proved beyond reasonable doubt the ingredients of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, namely the age of the complainant, penetration, and the identity of the perpetrator.
81. With regard to the age of the complainant, the court considers the consistent evidence on record from the complainant and PW3 (his mother), both of whom placed his age at about 13 years at the time of the incident.
82. PW3 specifically testified that the complainant was born on 2nd December, 2009, while PW2 confirmed that he was a Class 8 pupil in primary school at the material time. This oral evidence was not meaningfully challenged by the Appellant during cross-examination.
83. The trial court therefore correctly observed that the complainant was clearly within the definition of a child under the Children Act and the Sexual Offences Act.
84. Age may be proved by oral evidence of a parent or guardian where documentary proof is unavailable, as stated in Edwin Nyambogo Onsongo v Republic [2016] eKLR. Applying that principle, the evidence of PW2 and PW3 was cogent, consistent, and sufficient.
85. This Court therefore finds that the trial court correctly concluded that the age of the complainant was proved beyond reasonable doubt.
86. I will now turn to the second ingredient of the offence of defilement – penetration. Penetration in sexual offences is a question of both medical and testimonial evidence, and may be proved by either, or a combination of both, depending on the circumstances.
87. In this case, PW2 gave a detailed account of how he came into contact with the Appellant and remained in his company over the relevant period, during which the the Appellant, as per the complainant’s testimony, threatened him with a knife and then went ahead to defile him by causing his penis to penetrate the complainant’s anus. His testimony was direct, consistent and unshaken during cross-examination.
88. Importantly, PW1, the clinical officer who examined the complainant shortly after the incident, found objective medical findings including anal lacerations at the 12 and 6 o’clock positions and laxity of both the external and internal anal sphincter muscles.
89. PW1 opined that these findings were consistent with recent penetration of the complainant’s anus. Medical evidence of such injuries, when coupled with a victim’s testimony, is sufficient to establish penetration beyond reasonable doubt.
90. The medical evidence in this case strongly corroborates the complainant’s account and was not displaced by the Appellant’s defence. The Appellant did not challenge the medical findings in any substantive manner. The trial court therefore properly found that penetration was proved.
91. On the ingredient of identification of the Appellant as the perpetrator of the offence, the evidence of identification must be considered in light of the circumstances, including duration of contact, proximity and opportunity for recognition.
92. In the present case, PW2 testified that he met the Appellant in the evening and proceeded to spend the night and subsequent period in his company within the Appellant’s residence. This was not a fleeting encounter but a prolonged period, thereby eliminating the risk of mistaken identity.
93. PW5, the investigating officer, further testified that upon tracing the Appellant, the police were led to his residence where the complainant was found and rescued. This evidence was corroborated by the Appellant himself, who admitted that he had taken the child to his hom
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1. The Appellant Richard Ouko Odenya 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 diverse dates between 29th October, 2021 and 31st October, 2021 in Kisumu Manyatta within Kisumu County, the Appellant and unlawfully inserted his penis into the anus of BJO (name withheld, hereinafter referred to as “the complainant”), a child aged 13 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 on diverse dates between 29th October, 2021 and 31st October, 2021 in Kisumu Manyatta within Kisumu County, the Appellant intentionally and unlawfully committed an indecent act with a child, by touching private parts namely the anus of BJO, a child aged 13 years, with his penis.
5. The Appellant was in the 2nd count charged with the offence of deliberate transmission of HIV contrary to Section 26(1) as read with Section 26(3) of the Sexual Offences Act, No. 3 of 2006.
6. The particulars of the 2nd count were that on diverse dates between 29th October, 2021 and 31st October, 2021 in Kisumu Manyatta within Kisumu County, having actual knowledge that he was infected with HIV, the Appellant intentionally, knowingly and willfully had unprotected sexual intercourse with BJO, a child aged 13 years, which infected the said child with HIV.
7. In the 3rd count, the Appellant charged with the offence of kidnapping a child under 14 years of age with intent to steal contrary to Section 262 of the Penal Code.
8. The prosecution alleged in the particulars of the 3rd count that on 29th October, 2021 at Kondele Township in Kisumu Town within Kisumu County, the Appellant kidnapped BJO, a child aged 13 years, with the intention of dishonestly taking money from EAO (name withheld), the mother of the said child.
9. The Appellant denied all the counts, which then called for a full trial.
B. THE GROUNDS OF APPEAL.
10. The prosecution case was founded on the evidence of five witnesses. while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted on count 1 and subsequently sentenced to serve 20 years imprisonment. He was acquitted on all the other counts.
11. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 22nd August, 2024 in which he raised the following grounds of appeal:
a. THAT, the learned trial Magistrate erred in law by failing to establish that the prosecution side did not prove their case beyond reasonable doubt.
b. THAT, the learned trial Magistrate erred in law by relying on evidence that was contradictory.
12. On the strength of these grounds, the Appellant urges this court to allow the appeal, quash his conviction on count 1 and acquit him and set aside the sentence of imprisonment for 20 years.
C. THE DUTY OF THIS COURT.
13. 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.)
14. 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.
D. THE PROSECUTION CASE.
15. The prosecution called Paul Muturi Ndung’u, a registered clinical officer as PW1. In his testimony before the trial court, the witness testified that he was a registered clinical officer, Registration No. 6428, and had been working at Coptic Hospital since 2009 and in the Gender Clinic since 2017, where he attended to survivors of violence.
16. He testified that on 1st November, 2021, he examined the complainant, BJO, who had been brought to the hospital by a police officer. The complainant reported that he had been abducted by an unknown man, taken to an unknown place, given food, and forcefully penetrated through the anus without protection.
17. PW1 stated that he conducted a head-to-toe examination and completed a Post Rape Care (PRC) form. His findings revealed a normal general examination, no discharge from the anus, loose external and internal anal sphincter muscles, and a visible anal laceration at the 12 o’clock to 6 o’clock position.
18. He testified that the complainant was compliant during the examination. He further stated that the complainant was treated with Post Exposure Prophylaxis (PEP) and medication for sexually transmitted infections. Laboratory tests, including urine analysis, blood tests, HIV screening, STI screening and Hepatitis B testing, all yielded negative results.
19. PW1 produced the PRC form dated 1st November, 2021 as Prosecution Exhibit 1. He further testified that he later completed a P3 form in respect of the complainant, noting that there was no notable difference between the information contained in the P3 form and the PRC form apart from the dates. The P3 form was produced as Prosecution Exhibit 2. He also produced the prescription for PEP medication dated 1st November, 2021 as Prosecution Exhibit 3 and the prescription for STI antibiotics as Prosecution Exhibit 4.
20. The witness further testified that he examined the Appellant, Richard Ouko, and conducted blood and urine screening tests. The results showed that Hepatitis B, STI screening, urine analysis, and blood tests were all negative. The test results relating to the appellant were produced as Prosecution Exhibit 5.
21. PW1 concluded that the injuries noted in the PRC form were consistent with the offence alleged.
22. During cross-examination by the Appellant, he confirmed that he had personally examined him at Coptic Hospital. In re-examination, PW1 clarified that although an HIV test had been conducted in a Voluntary Counselling and Testing (VCT) set-up, the results were not in his possession as they were recorded in a different form.
23. The prosecution called the complainant as PW2. In his testimony before the trial court, the complainant testified that he was a 13-year-old pupil in Class 8 at B. O. Primary School (particulars withheld) and resided in Kajulu with his mother. He stated that on 29th October, 2021, he was sent home from school to obtain a mathematical set. Upon learning that his mother was unable to provide one, he proceeded to Agape Children’s Home in an attempt to seek assistance from his sponsor. However, he was unable to find the sponsor and later commenced his journey home in the evening. While on his way home, he encountered the Appellant, who was previously unknown to him, and who offered him accommodation for the night on account of the late hour. The complainant testified that he accompanied the Appellant to his residence, where they spent the night.
24. The complainant further testified that after arriving at the Appellant’s residence, he remained there overnight. He stated that the Appellant threatened him with a knife, causing him fear and preventing him from seeking help. According to the complainant, he was not allowed to leave the house and remained under the Appellant’s control.
25. The complainant told the trial court that at about 11.00pm, he felt the Appellant touching him. He realized that he and the Appellant were naked. The Appellant then took some oil and applied it in the complainant’s anus. The Appellant then held the knife and told the complainant not to make any noise. He proceeded to defile the complainant by penetrating his penis into his anus.
26. He further testified that the Appellant then contacted the complainant’s mother and demanded money before he could be released. The complainant stated that he remained confined in the house until police officers eventually arrived and rescued him.
27. The complainant further testified that police officers and other persons later arrived at the Appellant’s residence and rescued him. He stated that the Appellant was arrested at the scene. The complainant was thereafter taken to Kondele Police Station and subsequently to Maseno Police Station before being escorted to hospital for medical examination and treatment, where he was admitted as an inpatient.
28. The complainant further testified that during the police intervention, certain items were recovered from the scene, which he later identified in court, including a blue short and a red and white cap. He also identified the Appellant in court as the person he had encountered on the material night.
29. During cross-examination, the complainant maintained that he had met the Appellant on his way home and accompanied him to his residence. He further maintained that he remained in the Appellant’s house and that he was unable to seek assistance during the period in question. He reiterated the truthfulness of his testimony before the trial court.
30. The prosecution called EAO as PW3. In her testimony before the trial court, PW3 stated that she was a housewife residing at Riat and the mother of the complainant. She testified that on 29th October, 2021, the complainant had been sent away from school and was expected to return home, and that she was aware he was within the homestead area at the material time.
31. PW3 further testified that on 30th October, 2021, at about midday, she received a telephone call from an unknown person using the number 0777 400881 who informed her that the complainant was missing and indicated that he was being taken to Kondele Police Station. She stated that the caller did not initially disclose his identity but later contacted her demanding money for the alleged release of the child. PW3 testified that she sent money through mobile money transactions to the number provided – 0777 400837 – in order to facilitate the child’s release. She also stated that she later provided the investigating officers with the relevant mobile money transaction records, which were produced in evidence.
32. PW3 further testified that she was later informed that the complainant had been found and taken to Kondele Police Station before being transferred to hospital. She stated that upon seeing the complainant, he reported that he had been held by a stranger and sodomized during the period he was missing. PW3 also stated that she later saw the Appellant at Maseno Police Station.
33. During cross-examination, PW3 maintained that she did not know the Appellant prior to the incident but only came to know him after he was arrested. She reiterated that she received calls demanding money for the complainant’s release and that she complied by sending the requested amount. She further stated that the complainant was later examined and treated at hospital.
34. The prosecution called Salvine Cheruto Katukoi, a Government Analyst based at the Kisumu Government Chemist Office, as PW4. In her testimony before the trial court, PW4 stated that she held a Bachelor’s Degree in Biochemistry from Kenyatta University and was involved in forensic laboratory analysis, including DNA examination.
35. PW4 testified that on 2nd November 2021, she received an exhibit memo from Paul Masika, a police officer stationed at DCI Kisumu West, together with several exhibits for analysis. These included a blue short marked “X” contained in a brown envelope, a swab marked “Y”, a brown bed sheet, an additional swab marked “A” taken from the accused, and a pink cap marked “N”.
36. PW4 stated that upon analysis, the bed sheet tested positive for seminal fluid, while the cap tested negative for seminal fluid. She further testified that the blue short was stained with human blood. She explained that DNA analysis revealed that the DNA profile generated from the blue short matched that of the complainant, while the DNA profile obtained from the bed sheet showed a mixed profile belonging to both the complainant and the accused. The pink cap did not yield any DNA profile.
37. PW4 produced her forensic report dated 1st December, 2022 as Prosecution Exhibit 8, together with the exhibit memo form dated 2nd November, 2021 as Prosecution Exhibit 9.
38. The Appellant did not cross-examine the witness.
39. The prosecution called Inspector of Police Paul Masika as PW5. In his testimony before the trial court, PW5 stated that he was a Deputy DCIO attached to DCI Imenti North and was the investigating officer in the matter. He testified that he took over investigations on 30th October, 2021 following a report made by the mother of the complainant regarding the disappearance of her child on 29th October, 2021.
40. PW5 further testified that on the evening of 30th October, 2021, the complainant’s mother received a text message from the number 0777 400837, which was unknown to her, demanding money for the release of the child. He stated that she sent a sum of money in response to the demand. PW5 testified that investigations conducted jointly with the Crime Intelligence Unit in Kisumu established that the mobile number used was not registered in the name of any known subscriber but was traced to the Kisumu Manyatta area.
41. PW5 stated that further investigations led to the identification and arrest of the Appellant in Kisumu Manyatta. He testified that upon arrest, the Appellant led police officers to his residence, where the complainant was found. PW5 stated that the complainant was discovered inside a small house, lying on a mattress and covered with a sheet, and appeared weak, hungry, and unwell. He further testified that the complainant was rescued and taken to hospital for medical attention.
42. PW5 testified that several exhibits were recovered during the operation, including a mobile phone used in the communication with the complainant’s mother, a pink cap, a bed sheet and a blue short. He stated that the complainant identified the Appellant as the person who had confined him. PW5 further testified that the complainant was subsequently taken for medical examination together with the Appellant pursuant to a court order.
43. PW5 also stated that the exhibits were documented in an inventory signed by the Appellant and that he prepared the exhibit memo for forensic analysis. He testified that statements were recorded from witnesses and that the Appellant was subsequently charged with the offence.
44. During cross-examination, PW5 maintained that the complainant was found inside the Appellant’s residence and was rescued by the police. He further stated that the complainant reported being confined by the Appellant.
45. The prosecution closed its case at that stage.
E. RULING ON PRIMA FACIE CASE
46. In its considered ruling delivered on 15th August, 2023, the trial court carefully evaluated the evidence that had been placed before it by the prosecution at the close of the prosecution case.
47. Upon such evaluation, the learned trial Magistrate was satisfied that the prosecution had established a prima facie case against the Appellant sufficient to warrant his being called upon to answer the allegations made against him.
48. Consequently, and in accordance with the applicable law and procedure, the trial court found that the Appellant had a case to answer and accordingly placed him on his defence.
F. THE DEFENCE CASE
49. The Appellant, testified as DW1. In his sworn evidence before the trial court, he stated that he resided in Manyatta Corner Mbuta and worked as a broker. He told the court that he understood the charges against him and had followed the evidence adduced by the prosecution witnesses.
50. DW1 testified that in November, 2021, he met a boy who appeared to need assistance and took him to his residence. He stated that on the way, the boy indicated that he came from Kiboswa and provided his mother’s telephone number.
51. According to the Appellant, he contacted the boy’s mother and informed her that he was in possession of the child, and she allegedly requested that he take the child to his home. He further stated that he later attempted to reach her again but her calls were not going through.
52. The Appellant testified that he kept the phone for charging and that police officers later traced him through a call and arrested him. He stated that he thereafter led them to his house where the child was found, and he was subsequently taken to Kondele Police Station.
53. DW1 further testified that he was later taken to Maseno Police Station and subjected to medical examination. He stated that he was shocked by the nature of the charges and denied committing the offence.
54. During cross-examination, DW1 stated that he worked as a mask hawker in Kondele and that he had a family. He maintained that on 29th October, 2021 he was at his house in the evening and that he had neighbours, though he did not know them by name. He denied demanding any money from the complainant’s mother.
55. The Appellant further stated that certain items, including a pink cap, bed sheet, and blue short, were recovered from or near his house, but did not admit any criminal conduct in relation to them. He also stated that he learned of his HIV status in June, 2025 following a medical test.
56. He maintained that he did not know the complainant prior to the incident and that he was arrested by officers who were previously unknown to him.
G. THE TRIAL COURT’S FINDINGS
57. In the trial court’s judgement delivered on 27th September, 2023, the Appellant was acquitted of the charges of deliberate transmission of HIV and kidnapping a child under fourteen years with intent to steal from the person. However, he was convicted of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act.
58. In arriving at the conviction on the count of defilement, the trial court identified the essential ingredients of the offence as the age of the complainant, penetration, and the proper identification of the perpetrator.
59. On the issue of age, the court found that the complainant was a minor aged about 13 years at the time of the incident, relying on the evidence of both the complainant and his mother, as well as the overall record, which placed his date of birth around 2007. The court held that this evidence sufficiently established that the complainant was a child within the meaning of the Sexual Offences Act.
60. On the issue of penetration, the trial court relied on both the testimony of the complainant and the medical evidence adduced by PW1, the clinical officer, who examined the complainant and observed anal lacerations at the 12 and 6 o’clock positions, as well as laxity of the external and internal anal sphincter muscles. The court found that these findings were consistent with penetration and corroborated the complainant’s account of the incident.
61. On the issue of identification of the perpetrator, the trial court found that the complainant positively identified the Appellant, noting that the complainant had interacted with him for a substantial period of time during which they travelled together and stayed in the same residence. The court further relied on the Appellant’s own admission that he had met and taken the complainant to his house.
62. In addition, the court placed reliance on forensic evidence produced by the Government Analyst (PW4), which indicated that DNA material on exhibits recovered from the Appellant’s residence linked both the complainant and the Appellant, thereby reinforcing the evidence placing the Appellant at the scene.
63. The trial court also considered the testimony of the investigating officer (PW5), who stated that the Appellant led police officers to his house where the complainant was found and rescued. The court found that this evidence, taken together with the medical and forensic findings, formed a consistent and coherent chain of evidence pointing to the Appellant’s guilt.
64. Accordingly, the trial court concluded that the prosecution had proved the offence of defilement beyond reasonable doubt, convicted the Appellant on that count. The trial court went on to consider the Appellant’s mitigation and ultimately sentenced him to 20 years imprisonment.
H. THE APPELLANT’S SUBMISSIONS.
65. In his submissions in support of the appeal, the Appellant states that he was charged and convicted of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act and sentenced to twenty years imprisonment.
66. The Appellant submits that the evidence on record does not establish the offence beyond reasonable doubt and contends that the circumstances surrounding the case indicate that he had taken the complainant in good faith after finding him in need of assistance.
67. He argues that he contacted the complainant’s mother and that the interaction between them demonstrated a lack of criminal intent. He further questions the plausibility of the prosecution’s narrative, particularly the conduct of the complainant and the alleged events during the period in question, and urges the Court to find that the allegations were not credible.
68. The Appellant further challenges the prosecution evidence on the basis of inconsistencies in the testimony of the witnesses and the absence of corroborative proof linking him to the offence. He specifically refers to the medical and DNA evidence, submitting that while certain exhibits indicated the presence of biological material, this did not conclusively establish penetration or the commission of the offence charged. He contends that the forensic findings were capable of innocent explanation and therefore did not meet the threshold of proof beyond reasonable doubt.
69. The Appellant further submits that the prosecution failed to discharge its burden of proof and that any doubts arising from the evidence ought to be resolved in his favour in line with the presumption of innocence and the constitutional guarantee of equal protection before the law under Article 27 of the Constitution. He therefore urges that the conviction was unsafe and that the sentence imposed was harsh and unwarranted.
70. The Appellant accordingly prays that the appeal be allowed, the conviction quashed, the sentence set aside, and that he be set at liberty.
I. THE RESPONDENT’S SUBMISSIONS.
71. In response to the appeal, the Respondent submits that the prosecution discharged its burden of proving the offence of defilement beyond reasonable doubt, as the essential ingredients of the offence – namely the age of the victim, penetration and the identification of the accused – were all established.
72. The Respondent submits that the evidence of PW1, the clinical officer, confirmed penetration through medical findings which included anal lacerations and the presence of injuries consistent with anal sexual violation.
73. It is further submitted that forensic evidence from the Government Analyst (PW4) linked exhibits recovered from the Appellant’s residence to both the complainant and the Appellant, including DNA findings indicating a mixed profile on certain items.
74. The Respondent relies on the complainant’s testimony that the Appellant had access to and control over him during the material period, and the investigating officer’s evidence (PW5), which placed the Appellant at the centre of the recovery of the complainant from his residence.
75. On the issue of identification, the Respondent submits that the circumstances of the case, including the prolonged interaction between the Appellant and the complainant and the recovery of the complainant from the Appellant’s residence, eliminated the possibility of mistaken identity.
76. It is further argued that the Appellant’s own account placed him in contact with the complainant during the relevant period, thereby supporting the prosecution case.
77. On the alleged inconsistencies in the prosecution evidence, the Respondent submits that any minor discrepancies between the testimonies of prosecution witnesses do not go to the root of the case and are insufficient to vitiate an otherwise cogent and credible prosecution case. Reliance is placed on the principle that only material contradictions that create doubt as to the guilt of an accused can be fatal to the prosecution case.
78. The Respondent therefore urges the Court to find that the prosecution proved its case to the required standard, and prays that the appeal be dismissed and the conviction and sentence of the trial court be upheld.
J. ISSUES FOR DETERMINATION.
79. Having considered the record of the proceedings before the trial court, the grounds of appeal and the respective submissions of the parties, it is my view that the grounds raised by the Appellant may, for purposes of determination, be condensed into the following issues:
a. Whether the prosecution proved beyond reasonable doubt the ingredients of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, namely the age of the complainant, penetration, and the identity of the perpetrator.
b. Whether the identification of the Appellant as the perpetrator was free from error and sufficiently established in law, considering the circumstances under which the complainant came into contact with him.
c. Whether the medical and forensic (DNA) evidence adduced by the prosecution was properly evaluated and whether it sufficiently corroborated the complainant’s testimony on penetration and the Appellant’s involvement.
d. Whether the trial court properly evaluated the totality of the evidence, including the alleged inconsistencies raised by the Appellant, in arriving at a finding of guilt.
e. Whether the conviction of the Appellant was safe and the sentence imposed lawful and appropriate in the circumstances of the case.
K. ANALYSIS AND FINDINGS.
80. The first issue for determination is whether the prosecution proved beyond reasonable doubt the ingredients of the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act, namely the age of the complainant, penetration, and the identity of the perpetrator.
81. With regard to the age of the complainant, the court considers the consistent evidence on record from the complainant and PW3 (his mother), both of whom placed his age at about 13 years at the time of the incident.
82. PW3 specifically testified that the complainant was born on 2nd December, 2009, while PW2 confirmed that he was a Class 8 pupil in primary school at the material time. This oral evidence was not meaningfully challenged by the Appellant during cross-examination.
83. The trial court therefore correctly observed that the complainant was clearly within the definition of a child under the Children Act and the Sexual Offences Act.
84. Age may be proved by oral evidence of a parent or guardian where documentary proof is unavailable, as stated in Edwin Nyambogo Onsongo v Republic [2016] eKLR. Applying that principle, the evidence of PW2 and PW3 was cogent, consistent, and sufficient.
85. This Court therefore finds that the trial court correctly concluded that the age of the complainant was proved beyond reasonable doubt.
86. I will now turn to the second ingredient of the offence of defilement – penetration. Penetration in sexual offences is a question of both medical and testimonial evidence, and may be proved by either, or a combination of both, depending on the circumstances.
87. In this case, PW2 gave a detailed account of how he came into contact with the Appellant and remained in his company over the relevant period, during which the the Appellant, as per the complainant’s testimony, threatened him with a knife and then went ahead to defile him by causing his penis to penetrate the complainant’s anus. His testimony was direct, consistent and unshaken during cross-examination.
88. Importantly, PW1, the clinical officer who examined the complainant shortly after the incident, found objective medical findings including anal lacerations at the 12 and 6 o’clock positions and laxity of both the external and internal anal sphincter muscles.
89. PW1 opined that these findings were consistent with recent penetration of the complainant’s anus. Medical evidence of such injuries, when coupled with a victim’s testimony, is sufficient to establish penetration beyond reasonable doubt.
90. The medical evidence in this case strongly corroborates the complainant’s account and was not displaced by the Appellant’s defence. The Appellant did not challenge the medical findings in any substantive manner. The trial court therefore properly found that penetration was proved.
91. On the ingredient of identification of the Appellant as the perpetrator of the offence, the evidence of identification must be considered in light of the circumstances, including duration of contact, proximity and opportunity for recognition.
92. In the present case, PW2 testified that he met the Appellant in the evening and proceeded to spend the night and subsequent period in his company within the Appellant’s residence. This was not a fleeting encounter but a prolonged period, thereby eliminating the risk of mistaken identity.
93. PW5, the investigating officer, further testified that upon tracing the Appellant, the police were led to his residence where the complainant was found and rescued. This evidence was corroborated by the Appellant himself, who admitted that he had taken the child to his hom
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