REPUBLIC OF KENYA
HIGH COURT OF KENYA AT MIGORI
CRIMINAL APPEAL NO. E128 OF 2025
STEPHEN OWITI OMONDI …………………………………… APPELLANT
-VERSUS-
REPUBLIC ……………………………………………………… RESPONDENT
( Being an appeal from the conviction and sentence in Rongo MCSO Case No. E026 of 2025 by Hon. S.N. Mutava, Senior Resident Magistrate, against the Judgement dated 27 th November, 2025 )
JUDGMENT
Introduction
1. The Appellant in this case had been charged in the lower court with the offence of Attempted Defilement contrary to Section 9 (1)(2) of the Sexual Offences Act, No. 3 of 2006 . The Particulars of the charge were that on the 26 th day July, 2025 at Mary Land Area, in Rongo Sub County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully attempted to cause your Penis to Penetrate the Vagina of P.W a child aged 15 years.
1. In the alternative count he 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 . The Particulars of the charge were that on the 26 th day of July, 2025, at Mary Land are in Rongo Sub County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully touched the breast and buttocks of P.W with your Hands a child aged 15 years.
1. He was convicted on the alternative count of committing an indecent act with a child. He was subsequently sentenced to serve 10 (Ten) years imprisonment for the alternative count.
1. He has appealed against both the conviction and sentence. He has raised the following grounds of appeal:
1. That I pleaded not guilty to the charge herein.
2. That the ingredients of the indecent act were not proved to the required standard of law.
3. That my right to mitigation and presentencing report was overlooked by the trial court thus against the tenets of fair trial.
4. That no prima facie case was established against me.
5. That the witness testimonies were full of inconsistencies and discrepancies thus could not sustain a conviction.
6. That the sentence pronounced by the trial court is harsh, excessive and unreasonable as it goes against the tenets of fair trial under Article 50 (2) of the Constitution.
2. This being a first appeal, the court is duty bound to evaluate the evidence on record and to draw its own conclusions and inferences, taking into account the fact that the appeal court has not had the opportunity of seeing the witnesses testify (see Okeno vs Republic (1972) EA 32 )
3. The prosecution called 4 witnesses in its endeavor to prove its case. According to PW1 who was the Complainant, it was the prosecution’s case that on the material date she boarded a Boda Boda that left her 30 meters to her home and at that point she decided to go visit her friend Sheila. That at the time she heard someone calling out her name and she saw it was the Appellant. The Appellant began conversing with her and he even asked her for her number which the complained testified to giving him the number and the moment she turned to go it is her evidence that the Appellant forcefully kissed her and grabbed her breast. PW1 informed the Honourable Court that she asked him to let her go which he did while asking her to meet up on Tuesday. PW1 eventually informed his cousin as her mother was not picking up calls and eventually they reported the matter at Kamagambo Police Station.
4. PW2 who is the mother to PW1 informed Court that PW1 came back to the shop the same day and informed her that she had been sexually harassed and the Appellant was still calling her saying they should finish what they had started. PW3 the doctor testified that PW1 was of fair general condition at the time of she conducted general examination on the minor. PW4 CPL JOSEPH TOROITICH testified that on 26/7/2025 a report of attempted defilement was made to which he was to investigate. He then interrogated the complainant and recorded statements from the witness and issued the complainant with a P3 form
5. During cross examination of PW1, PW2 & PW3, it came out that PW1 has a condition of depression which according to her only worsened after the incident at hand however she is on medication.
6. Upon being placed on his defence, the Appellant denied to ever touching PW1 indecently and even kissing her. He informed Court that he only requested for her number and talked about his boda boda business.
7. Both parties filed their written submissions and in the submission of the appellant, he contends that the Prosecution only relied on the evidence of a single witness and in so far as Section 124 of the Evidence Act is concerned, his right to fair hearing was infringed as he it is his submissions that the complainant has mental issues. The trial Court should not have believed her. He submits that the Court should not have relied on a single witness only and that the Prosecution is fixing him for an offence he never committed. It was his submissions that the conviction be quashed and sentence pit aside.
8. It was the Respondent’s submissions that the Appellant failed to rebut any of the prosecution evidence tendered in trial. That the prosecution case was water tight and proved to the required standard and urged the Honourable Court to dismiss the Appeal.
Analysis and Determination
9. I have considered the submissions made by the parties herein. This is a first appellate court, as expected, this court is obliged to analyses and evaluate afresh all the evidence adduced before the lower court and draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. The decision in Okeno v Republic [1972] EA . 32 is relevant.
10. Section 11(1) of the Sexual Offences Act provides that:
“Any person who commits an indecent act with a child is guilty an offence and is liable upon conviction to imprisonment for a term of not less than ten years” .
11. Section 2 of the Sexual Offences Act, No. 3 of 2006 provides that:
“ indecent act” means an unlawful intentional act which cause any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration ”.
12. It therefore follows that for an offence of indecent act to be proved the ingredients necessary to be established by the prosecution are that the victim must be a child within the meaning of the provisions of the Children Act; there must an unlawful intentional act which cause any contact between any part of the body of a person with the genital organs, breasts or buttocks of another; and that the said act must have been committed by the accused.
13. The importance of proving the age of the complainant in sexual offences was emphasized in Alfayo Gombe Okello vs. Republic (2010) eKLR where the Court stated that:
“ In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently, the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1)…proof of age of a victim is a crucial factor in cases of defilement under Sexual Offences Act. It must be proved failing which the offence will not have been proved beyond reasonable doubt in material particulars .”
14. In Dominic Kibet vs. Republic Criminal Appeal No. 155 of 2011 it was held that:
“ while the Court may in certain circumstances rely on evidence other than an age assessment report, the onus of proving the age of the victim resides with the prosecution and a simple statement by the complainant as to their age does not in my view constitute such proof .”
15. I n the present case, the charge sheet indicated that the complainant was aged Fifteen (15) years at the time of the offence. A certificate of birth produced in evidence showed that the complainant was born on 8 th January, 2010 and was therefore approximately around Fifteen years old on the date of the alleged offence.
16. The age stated in the charge sheet was therefore an approximation but was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant within the age bracket of 15 years. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the alternate charge as laid was lawful and appropriate.
17. Further, PW1 testified to being sexually assaulted. Being a minor, it is trite law that in sexual offences, however, where the minor is the victim of the offence, the evidence of that minor, if believed by the trial court, can, without corroboration, found a conviction.
18. Section 124 of the Evidence Act makes this quite clear:
“ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth .” [Emphasis added]
19. Dealing with a similar issue in the case of Mohamed vs. R , (2008) 1 KLR G&F 1175 , the Court held that:
“ It is now well settled that the courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful .”
20. Therefore, what is required of the trial court is to be satisfied that the victim is telling the truth. In this case it is important to note the Appellant is relying on the fact that PW1 testified before the trial court and informed the trial court that she has been sickly which condition has worsened over time even though at the time she was on medication. That according to the Appellant, her mental condition should bar her from giving evidence in so far as Section 124 of the Evidence Act is concerned.
21. The court has carefully considered the contention that the complainant's evidence ought to have been disregarded because, following the sexual assault, the complainant informed the Court she is suffering from a mental illness and was undergoing psychiatric treatment.
22. The law does not disqualify a witness from testifying merely because the witness suffers from a mental disorder or is receiving treatment. The determinative question is whether, at the time of giving evidence, the witness was capable of understanding the questions put to him or her and of giving rational and coherent answers.
23. In the present case, the trial court had the singular advantage of observing the complainant testify and expressly found that the complainant answered questions coherently, remained consistent throughout examination and cross-examination, and exhibited a truthful demeanor. An appellate court should be slow to interfere with such findings unless they are plainly unsupported by the record and the Court finds nothing in the record that states otherwise.
24. Further, in sexual offence cases, the absence of perfect mental health on the part of the complainant does not diminish the evidential value of the testimony where the court is satisfied as to its truthfulness. Under Section 124 of the Evidence Act, the court may lawfully convict on the sole evidence of the complainant if it believes the complainant and records the reasons for that belief.
25. The court contends that the mere fact that the complainant was undergoing treatment for a mental illness allegedly occasioned or worsened by a traumatic assault cannot, without more, render the evidence unreliable or incapable of sustaining a conviction. The said argument is without merit.
26. It is therefore my finding that the offence of indecent act was proved to the required standard.
27. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was harsh and excessive.
28. Sentencing is an important task and is guided both by statute and the sentencing policy that has been adopted over time. One of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the offence and the circumstances of the offence. There is no straightjacket formula for sentencing an accused on proof of offence. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the of the offence and all other attendant circumstances.
29. The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with. Also, while exercising its discretion in sentencing, the court should bear in mind the principles of proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factors should also be considered.
30. In view of my analysis and the proper construction of the proviso to section 11(1) of the Sexual Offences Act, and considering the age of the complainant at the time of committing the offence, and the relationship between the complainant and the appellant, and, bearing in mind the gravity of the offence, and the principles of sentencing stated above. This court finds no basis for interfering with the sentence.
DISPOSITION
31. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction and sentence of the lower court is upheld.
b) The appeal against both conviction and sentence is dismissed in its entirety .
It is so ordered.
Dated, signed and delivered virtually via Microsoft teams this 9 th Day of July 2026.
HCCRA NO. E128 OF 2025 STEPHEN OWITI OMONDI VS REPUBLIC JUDGMENT Pg. 9
HIGH COURT OF KENYA AT MIGORI
CRIMINAL APPEAL NO. E128 OF 2025
STEPHEN OWITI OMONDI …………………………………… APPELLANT
-VERSUS-
REPUBLIC ……………………………………………………… RESPONDENT
( Being an appeal from the conviction and sentence in Rongo MCSO Case No. E026 of 2025 by Hon. S.N. Mutava, Senior Resident Magistrate, against the Judgement dated 27 th November, 2025 )
JUDGMENT
Introduction
1. The Appellant in this case had been charged in the lower court with the offence of Attempted Defilement contrary to Section 9 (1)(2) of the Sexual Offences Act, No. 3 of 2006 . The Particulars of the charge were that on the 26 th day July, 2025 at Mary Land Area, in Rongo Sub County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully attempted to cause your Penis to Penetrate the Vagina of P.W a child aged 15 years.
1. In the alternative count he 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 . The Particulars of the charge were that on the 26 th day of July, 2025, at Mary Land are in Rongo Sub County within Migori County in the Republic of Kenya, the Appellant intentionally and unlawfully touched the breast and buttocks of P.W with your Hands a child aged 15 years.
1. He was convicted on the alternative count of committing an indecent act with a child. He was subsequently sentenced to serve 10 (Ten) years imprisonment for the alternative count.
1. He has appealed against both the conviction and sentence. He has raised the following grounds of appeal:
1. That I pleaded not guilty to the charge herein.
2. That the ingredients of the indecent act were not proved to the required standard of law.
3. That my right to mitigation and presentencing report was overlooked by the trial court thus against the tenets of fair trial.
4. That no prima facie case was established against me.
5. That the witness testimonies were full of inconsistencies and discrepancies thus could not sustain a conviction.
6. That the sentence pronounced by the trial court is harsh, excessive and unreasonable as it goes against the tenets of fair trial under Article 50 (2) of the Constitution.
2. This being a first appeal, the court is duty bound to evaluate the evidence on record and to draw its own conclusions and inferences, taking into account the fact that the appeal court has not had the opportunity of seeing the witnesses testify (see Okeno vs Republic (1972) EA 32 )
3. The prosecution called 4 witnesses in its endeavor to prove its case. According to PW1 who was the Complainant, it was the prosecution’s case that on the material date she boarded a Boda Boda that left her 30 meters to her home and at that point she decided to go visit her friend Sheila. That at the time she heard someone calling out her name and she saw it was the Appellant. The Appellant began conversing with her and he even asked her for her number which the complained testified to giving him the number and the moment she turned to go it is her evidence that the Appellant forcefully kissed her and grabbed her breast. PW1 informed the Honourable Court that she asked him to let her go which he did while asking her to meet up on Tuesday. PW1 eventually informed his cousin as her mother was not picking up calls and eventually they reported the matter at Kamagambo Police Station.
4. PW2 who is the mother to PW1 informed Court that PW1 came back to the shop the same day and informed her that she had been sexually harassed and the Appellant was still calling her saying they should finish what they had started. PW3 the doctor testified that PW1 was of fair general condition at the time of she conducted general examination on the minor. PW4 CPL JOSEPH TOROITICH testified that on 26/7/2025 a report of attempted defilement was made to which he was to investigate. He then interrogated the complainant and recorded statements from the witness and issued the complainant with a P3 form
5. During cross examination of PW1, PW2 & PW3, it came out that PW1 has a condition of depression which according to her only worsened after the incident at hand however she is on medication.
6. Upon being placed on his defence, the Appellant denied to ever touching PW1 indecently and even kissing her. He informed Court that he only requested for her number and talked about his boda boda business.
7. Both parties filed their written submissions and in the submission of the appellant, he contends that the Prosecution only relied on the evidence of a single witness and in so far as Section 124 of the Evidence Act is concerned, his right to fair hearing was infringed as he it is his submissions that the complainant has mental issues. The trial Court should not have believed her. He submits that the Court should not have relied on a single witness only and that the Prosecution is fixing him for an offence he never committed. It was his submissions that the conviction be quashed and sentence pit aside.
8. It was the Respondent’s submissions that the Appellant failed to rebut any of the prosecution evidence tendered in trial. That the prosecution case was water tight and proved to the required standard and urged the Honourable Court to dismiss the Appeal.
Analysis and Determination
9. I have considered the submissions made by the parties herein. This is a first appellate court, as expected, this court is obliged to analyses and evaluate afresh all the evidence adduced before the lower court and draw its own conclusions while bearing in mind that it neither saw nor heard any of the witnesses. The decision in Okeno v Republic [1972] EA . 32 is relevant.
10. Section 11(1) of the Sexual Offences Act provides that:
“Any person who commits an indecent act with a child is guilty an offence and is liable upon conviction to imprisonment for a term of not less than ten years” .
11. Section 2 of the Sexual Offences Act, No. 3 of 2006 provides that:
“ indecent act” means an unlawful intentional act which cause any contact between any part of the body of a person with the genital organs, breasts or buttocks of another, but does not include an act that causes penetration ”.
12. It therefore follows that for an offence of indecent act to be proved the ingredients necessary to be established by the prosecution are that the victim must be a child within the meaning of the provisions of the Children Act; there must an unlawful intentional act which cause any contact between any part of the body of a person with the genital organs, breasts or buttocks of another; and that the said act must have been committed by the accused.
13. The importance of proving the age of the complainant in sexual offences was emphasized in Alfayo Gombe Okello vs. Republic (2010) eKLR where the Court stated that:
“ In its wisdom, Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently, the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8(1)…proof of age of a victim is a crucial factor in cases of defilement under Sexual Offences Act. It must be proved failing which the offence will not have been proved beyond reasonable doubt in material particulars .”
14. In Dominic Kibet vs. Republic Criminal Appeal No. 155 of 2011 it was held that:
“ while the Court may in certain circumstances rely on evidence other than an age assessment report, the onus of proving the age of the victim resides with the prosecution and a simple statement by the complainant as to their age does not in my view constitute such proof .”
15. I n the present case, the charge sheet indicated that the complainant was aged Fifteen (15) years at the time of the offence. A certificate of birth produced in evidence showed that the complainant was born on 8 th January, 2010 and was therefore approximately around Fifteen years old on the date of the alleged offence.
16. The age stated in the charge sheet was therefore an approximation but was entirely consistent with the documentary evidence produced at the trial. Both descriptions placed the complainant within the age bracket of 15 years. I therefore find that the age of the complainant was proved beyond reasonable doubt and that the alternate charge as laid was lawful and appropriate.
17. Further, PW1 testified to being sexually assaulted. Being a minor, it is trite law that in sexual offences, however, where the minor is the victim of the offence, the evidence of that minor, if believed by the trial court, can, without corroboration, found a conviction.
18. Section 124 of the Evidence Act makes this quite clear:
“ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act, where the evidence of alleged victim admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him.
Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth .” [Emphasis added]
19. Dealing with a similar issue in the case of Mohamed vs. R , (2008) 1 KLR G&F 1175 , the Court held that:
“ It is now well settled that the courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful .”
20. Therefore, what is required of the trial court is to be satisfied that the victim is telling the truth. In this case it is important to note the Appellant is relying on the fact that PW1 testified before the trial court and informed the trial court that she has been sickly which condition has worsened over time even though at the time she was on medication. That according to the Appellant, her mental condition should bar her from giving evidence in so far as Section 124 of the Evidence Act is concerned.
21. The court has carefully considered the contention that the complainant's evidence ought to have been disregarded because, following the sexual assault, the complainant informed the Court she is suffering from a mental illness and was undergoing psychiatric treatment.
22. The law does not disqualify a witness from testifying merely because the witness suffers from a mental disorder or is receiving treatment. The determinative question is whether, at the time of giving evidence, the witness was capable of understanding the questions put to him or her and of giving rational and coherent answers.
23. In the present case, the trial court had the singular advantage of observing the complainant testify and expressly found that the complainant answered questions coherently, remained consistent throughout examination and cross-examination, and exhibited a truthful demeanor. An appellate court should be slow to interfere with such findings unless they are plainly unsupported by the record and the Court finds nothing in the record that states otherwise.
24. Further, in sexual offence cases, the absence of perfect mental health on the part of the complainant does not diminish the evidential value of the testimony where the court is satisfied as to its truthfulness. Under Section 124 of the Evidence Act, the court may lawfully convict on the sole evidence of the complainant if it believes the complainant and records the reasons for that belief.
25. The court contends that the mere fact that the complainant was undergoing treatment for a mental illness allegedly occasioned or worsened by a traumatic assault cannot, without more, render the evidence unreliable or incapable of sustaining a conviction. The said argument is without merit.
26. It is therefore my finding that the offence of indecent act was proved to the required standard.
27. On whether the Sentence was harsh or excessive and whether the same should be set aside, the Appellant contended that the sentence imposed was harsh and excessive.
28. Sentencing is an important task and is guided both by statute and the sentencing policy that has been adopted over time. One of the prime objectives of the criminal law is imposition of an appropriate, adequate, just and proportionate sentence commensurate with the nature and gravity of the offence and the circumstances of the offence. There is no straightjacket formula for sentencing an accused on proof of offence. What sentence would meet the ends of justice depends on the facts and circumstances of each case and the court must keep the gravity of the crime, motive for the crime, nature of the of the offence and all other attendant circumstances.
29. The principle governing imposition of punishment would depend upon the facts and circumstances of each case. An offence which affects the morale of the society should be severely dealt with. Also, while exercising its discretion in sentencing, the court should bear in mind the principles of proportionality, deterrence and rehabilitation and as part of the proportionality analysis, mitigating and aggravating factors should also be considered.
30. In view of my analysis and the proper construction of the proviso to section 11(1) of the Sexual Offences Act, and considering the age of the complainant at the time of committing the offence, and the relationship between the complainant and the appellant, and, bearing in mind the gravity of the offence, and the principles of sentencing stated above. This court finds no basis for interfering with the sentence.
DISPOSITION
31. Having resolved all the issues for determination, I make the following findings and orders:
a) The conviction and sentence of the lower court is upheld.
b) The appeal against both conviction and sentence is dismissed in its entirety .
It is so ordered.
Dated, signed and delivered virtually via Microsoft teams this 9 th Day of July 2026.
HCCRA NO. E128 OF 2025 STEPHEN OWITI OMONDI VS REPUBLIC JUDGMENT Pg. 9