REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. E007 OF 2023
VICTOR OCHIENG..…..………………………………….. …APPELLANT
-VERSUS-
REPUBLIC………………………….. ……………………… RESPONDENT
JUDGMENT
1. The appellant, VICTOR OCHIENG OWUOR, had been charged with defilement contrary with Section 8 (1) (2) of the sexual offence act No. 3 of 2006. The particulars are that on 16/01/2021 at Nyamasaria Trading centre in Kisumu East Sub –county the accused intentionally caused his penis to penetrate the vagina of L.A a child aged 11 years.
2. The appellant pleaded not guilty. After a full trial he was convicted on the main charge and sentenced to twenty years’ imprisonment. Being aggrieved with both conviction and sentence he filed this appeal. He listed the following grounds: -
(a) That the trial magistrate erred in both law and facts by failing to observe that the prosecution had not proved this case beyond reasonable doubt.
(b) That the trial magistrate erred in fact and law by relying on the evidence that were contradictory.
(c) That the learned trial magistrate erred in law by awarding the appellant a manifestly harsh and discriminatory sentence.
(d) That the learned trial magistrate failed to consider appellants alibi defence.
(e) That the Learned Trial Magistrate failed to accord the appellant a fair trial.
3. The appellant asked this court to allow the appeal and quash the conviction.
4. The appeal was canvassed by way of written submissions. The respondent filed a notice to apply for enhancement of sentence. Both sides have filed their submissions.
5. The appellant in his submissions pointed to what he referred to as contradictions in the evidence given by prosecution witnesses. He was of the view that from the evidence on record one cannot tell whether the alleged penetration was on the vagina or anus. That the complainant referred to the anus while her mother talked of vagina. That the report by the doctor referred to penetration to the vagina.
6. The appellant further submitted that the ingredient of penetration and age of the victim were not proved to the required standard.
7. The respondent cited the case of Robert Kipsang Koech versus republic where these ingredients of the offence of defilement were affirmed. They are age of the complainant, proof of penetration and identification of the perpetrator. It was their submissions that age was proved through baptism card and testimony by the parent. That this was sufficient. The cases of Fappyton Mutuku Ngui versus Republic and Hadson Ali Mwachogo versus Republic were cited in support of this proposition.
8. On penetration the respondent submitted that the testimony by the complainant and medical reports proved that she was penetrated. That finally on identification the appellant was a neighbour and well known. That there was no possibility of mistaken identity. According to the respondent the contradiction was minor and not material to the proof of this case.
9. I have noted that a notice to seek enhancement of sentence is filed in the CTS. Looking at the record going back to 30/06/2025 when the case was placed before Hon. Justice J.M. Omido I do not see evidence of this notice being communicated to the appellant. On 11/2/2026 when the case was mentioned to confirm compliance the state was represented. Ms. Kagali asked for seven days to file submissions. No indication was given that they will be asking for enhancement of sentence. Again on 21/5/2026 when they appeared before me Ms. Onyango, prosecution counsel, informed the court that they had filed submissions on the CTS. No mention of the notice in question.
10. The notice is dated 16/4/2026 was. It was uploaded on the same date on the CTS. As a matter of fair trial service of the notice on the appellant is mandatory. Its presence in the filing system is not enough. The fact that the appellant does not mention it in his pleadings leads me to conclude that he was not aware of it. In any event, it is for the respondent to demonstrate that the appellant was fully aware of the risk of enhancement even as he pursued the appeal. In the circumstances I will disregard the notice on the CTS.
11. This is a first appeal. It is my duty to re-evaluate and re- consider the evidence on record. After analysis I am expected to reach an independent conclusion. The duty was set out in Okeno versus Republic (1972) EA by the Court of Appeal where it was stated as follows: -
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya versus Republic (1957) EA ()336 and the appellate court own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion Shantilal M. Ruwala versus Republic (1957) E.A 570. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. Only then can it decide whether the Magistrate’s finding should be supported. In doing so, it should make allowance from the fact that the trial court has had the advantage of hearing and seeing the witnesses see Peters versus Sunday Post (1958) EA 424. ”
12. Much later, in Kiilu and another versus Republic (2005) eKLR, 174 the same court stated,
“An appeal on the first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court own decision on the evidence. This first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact, that the trial court has had the advantage of hearing and seeking the witnesses.”
13. To satisfy this mandate I would then set out a summary of the evidence in record.
14. PW1 Millicent Anyango Akumu is the complainant’s mother. She told the court that her daughter was aged 11 years. She referred to a baptism card. She stated that on 16/1/2021 she was at home with the complainant when the accused requested to go with the complainant so that she can give her part of a phone purchase price. That she allowed this. That the girl got back with Kshs. 100/= instead of Kshs. 600/=
15. PW1 said that when the child got back she noticed that she was walking with her legs apart. That on inquiry she said that his young brother could explain. That the complainant then said that the accused had pulled her into her house removed her panty and put his penis into her vagina. PW1 said that she got hold of the accused who said that he did it by mistake.
16. PW1 stated that she reported to police the following day. She referred to P3 and PRC forms. She said that she had known the accused person since October 2020.
17. PW2 is the complainant. After voire dire examination she was found fit to give a sworn statement. I have noted that the learned Magistrate after a question and answer session noted :-
“I am satisfied that the minor understands the nature of questions put to her and the meaning of stating the truth.”
18. At this point I want to put out that while the question and answer session is properly done the finding by the trial court misses out critical elements of voire dire.
19. This process was explained in the Court of Appeal case of Macharia versus Republic (1976) eKLR as follows: -
“it (voire dire) must be a preliminary examination of a witness by the Magistrate in which the witness is required to speak the truth with respect to questions put to him or her so that the Magistrate can discover if he or she is competent (eg she is not too young and she is not insane to give evidence and should be sworn and affirmed….)”
20. It further explained by the same court in the case of Johnson Mvinya versus Republic (1983) KLR 445 as follows: -
“we once again wish to draw the attention of our courts as to the proper procedure to be followed when children are reached as witness. In Peter Kirigo Kiure Criminal Appeal No. 77 of 1982 (unreported) we said: -
“when in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion on voire dire examination whether the child understands the nature of an oath in which that sworn evidence may be received. If the court is not so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event the accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support of implicating him. Section 19 oath and statutory declaration Act Cap 15.”
21. From the two authorities it is clear that a trial court should establish two things. The first is whether the child is possessed of sufficient intelligence and understands the duty of speaking the truth. Secondly is whether the child understands the nature of an oath.
22. In this case although PW2 was sworn the court did not make a finding after voire dire whether the child understood the nature of the oath. This lapse significant as it is does not by itself vitiate a conviction.
23. PW2 equally repeated what her mother had told the court. She said that the accused pulled down her biker and panty. Then he pushed her to the wall making her to bend over. That he removed his trouser and penetrated her anus. She said that she cried out in pain and on being released ran out. That she went home and reported to her mother. That she was taken to Nyamasaria Police station.
24. PW3 Peter James stated that he is a village elder. That on 17/1/2021 he was called on phone by his assistant chief. He was informed about a girl who had been defiled. He went to the scene. He found PW1 and PW2. PW1 led him to the accused person’s house. He was not there. A neighbour called the accused and when he appeared PW3 arrested him. PW3 said that he was given his name by PW1.
25. PW4 PC (W) Yvonne Apamo is the one who received the report from the complainant’s mother. She is the investigating officer. She recorded statements. She produced as exhibits, the baptismal card. She said that the accused was arrested on his way to the patrol base.
26. Dr. Lucy Ombok was the last witness. She is the one who examined the complainant. She filed a P3 form. She said that the victim had a history of defilement. She observed a broken hymen. She produced the P3 and PRC forms as exhibits.
27. The accused person gave an unsworn statement. He said that it is true that PW2 was sent to his house by PW1. He gave her money. That while at work he was asked to accompany his boss to Nyamasaria police station. He said that he knew the complainant but did not defile her.
28. As noted above the key ingredients of the offence of defilement are the age of the victim, proof of penetration and proof that the perpetrator was properly and positively identified.
29. On the age of the victim the trial court received a baptism card and the testimony by the mother. The court observed that she was a child of tender age. The evidence on record established beyond reasonable doubt that she was 11 years old. This puts her with Section 8 (1) and (2) of the Sexual Offences Act.
30. On penetration, Section 2 of the sexual offence act defines it as follows: -
“The partial and complete insertion of the genital organs of a person into the genital organ of another person.”
31. In the case of Mark Oiruri Mose versus Republic (2013) eKLR the Court of Appeal addressing this issue of penetration said: -
“… many times the attacked does not fully complete the sexual act during commission of the offence. That is the main reason why law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ…”
32. The appellant submitted that there was contradiction on this issue of penetration. That the contradiction was material because while the mother to the victim and medical evidence referred to penetration into the vagina the victim said that the accused person penetrated her anus.
33. I have looked at the P3 form. It indicates history of penetration into the vagina with penis. On examination the doctor indicated that hymen was broken. He concluded that there was defilement. The same is history is captured in the PRC form. Same observation on the genitalia is noted. In both medical reports no injury is noted on the anus.
34. PW1 testified that the victim said that she was penetrated into her vagina from behind while bending. The trial court was of the view that the victim evidence complied with the medical report was sufficient to prove penetration.
35. My independent analysis is that the testimony given by the mother the victim and the medical report all point to penetration into the vagina. There was nothing about the anus even when they went to hospital and police station soon after the incident. I am convinced that the prosecution proved this ingredient beyond reasonable doubt.
36. On identification it is common ground that the accused was a next door neighbour to the victim and her family. They all knew him. He went with the girl to his house. As a matter of fact, he admitted the part where the girl went to him to his house for her mother’s money.
37. The accused talked about alibi. The prosecution’s evidence placed him in his house with the victim. I find the testimony by the victim and her mother worthy of belief. The accused person while bearing no burden of proof, admitted that the victim was in his house at the material time. I agree with the trial court that the accused person was properly and positively identified.
38. In the result the conviction was safe. There is no merit on the appeal. On conviction the same is dismissed.
39. The appellant raised the issue of sentence referring to it as harsh and discriminatory. The appellant has been convicted under Section 8 (1) and (2) of the sexual offence act. The mandatory sentence is imprisonment for life. In this case he was sentenced to twenty (20) years imprisonment. This is illegal.
40. The only reason I am not substituting it for the proper and legal sentence is because of my finding earlier in the judgment that the appellant was not given notice to enhance the sentence. I will let the sentence of 20 years stand.
41. In conclusion the entire appeal is without merits. It is hereby dismissed. It is so ordered.
DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…10 TH DAY OF JULY… .. 2026.
HON. ALEX. K. ITHUKU
JUDGE
Ms. Onyango for the state.
The appellant appearing virtually from Kisumu Maximum prison
HON. ALEX. K. ITHUKU
JUDGE
10/7/2026
2 | Page KISUMU HCCA E007 OF 2023
IN THE HIGH COURT OF KENYA AT KISUMU
CRIMINAL APPEAL NO. E007 OF 2023
VICTOR OCHIENG..…..………………………………….. …APPELLANT
-VERSUS-
REPUBLIC………………………….. ……………………… RESPONDENT
JUDGMENT
1. The appellant, VICTOR OCHIENG OWUOR, had been charged with defilement contrary with Section 8 (1) (2) of the sexual offence act No. 3 of 2006. The particulars are that on 16/01/2021 at Nyamasaria Trading centre in Kisumu East Sub –county the accused intentionally caused his penis to penetrate the vagina of L.A a child aged 11 years.
2. The appellant pleaded not guilty. After a full trial he was convicted on the main charge and sentenced to twenty years’ imprisonment. Being aggrieved with both conviction and sentence he filed this appeal. He listed the following grounds: -
(a) That the trial magistrate erred in both law and facts by failing to observe that the prosecution had not proved this case beyond reasonable doubt.
(b) That the trial magistrate erred in fact and law by relying on the evidence that were contradictory.
(c) That the learned trial magistrate erred in law by awarding the appellant a manifestly harsh and discriminatory sentence.
(d) That the learned trial magistrate failed to consider appellants alibi defence.
(e) That the Learned Trial Magistrate failed to accord the appellant a fair trial.
3. The appellant asked this court to allow the appeal and quash the conviction.
4. The appeal was canvassed by way of written submissions. The respondent filed a notice to apply for enhancement of sentence. Both sides have filed their submissions.
5. The appellant in his submissions pointed to what he referred to as contradictions in the evidence given by prosecution witnesses. He was of the view that from the evidence on record one cannot tell whether the alleged penetration was on the vagina or anus. That the complainant referred to the anus while her mother talked of vagina. That the report by the doctor referred to penetration to the vagina.
6. The appellant further submitted that the ingredient of penetration and age of the victim were not proved to the required standard.
7. The respondent cited the case of Robert Kipsang Koech versus republic where these ingredients of the offence of defilement were affirmed. They are age of the complainant, proof of penetration and identification of the perpetrator. It was their submissions that age was proved through baptism card and testimony by the parent. That this was sufficient. The cases of Fappyton Mutuku Ngui versus Republic and Hadson Ali Mwachogo versus Republic were cited in support of this proposition.
8. On penetration the respondent submitted that the testimony by the complainant and medical reports proved that she was penetrated. That finally on identification the appellant was a neighbour and well known. That there was no possibility of mistaken identity. According to the respondent the contradiction was minor and not material to the proof of this case.
9. I have noted that a notice to seek enhancement of sentence is filed in the CTS. Looking at the record going back to 30/06/2025 when the case was placed before Hon. Justice J.M. Omido I do not see evidence of this notice being communicated to the appellant. On 11/2/2026 when the case was mentioned to confirm compliance the state was represented. Ms. Kagali asked for seven days to file submissions. No indication was given that they will be asking for enhancement of sentence. Again on 21/5/2026 when they appeared before me Ms. Onyango, prosecution counsel, informed the court that they had filed submissions on the CTS. No mention of the notice in question.
10. The notice is dated 16/4/2026 was. It was uploaded on the same date on the CTS. As a matter of fair trial service of the notice on the appellant is mandatory. Its presence in the filing system is not enough. The fact that the appellant does not mention it in his pleadings leads me to conclude that he was not aware of it. In any event, it is for the respondent to demonstrate that the appellant was fully aware of the risk of enhancement even as he pursued the appeal. In the circumstances I will disregard the notice on the CTS.
11. This is a first appeal. It is my duty to re-evaluate and re- consider the evidence on record. After analysis I am expected to reach an independent conclusion. The duty was set out in Okeno versus Republic (1972) EA by the Court of Appeal where it was stated as follows: -
“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya versus Republic (1957) EA ()336 and the appellate court own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusion Shantilal M. Ruwala versus Republic (1957) E.A 570. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s finding and conclusion. Only then can it decide whether the Magistrate’s finding should be supported. In doing so, it should make allowance from the fact that the trial court has had the advantage of hearing and seeing the witnesses see Peters versus Sunday Post (1958) EA 424. ”
12. Much later, in Kiilu and another versus Republic (2005) eKLR, 174 the same court stated,
“An appeal on the first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the appellate court own decision on the evidence. This first appellate court must itself weigh conflicting evidence and draw its own conclusion. It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact, that the trial court has had the advantage of hearing and seeking the witnesses.”
13. To satisfy this mandate I would then set out a summary of the evidence in record.
14. PW1 Millicent Anyango Akumu is the complainant’s mother. She told the court that her daughter was aged 11 years. She referred to a baptism card. She stated that on 16/1/2021 she was at home with the complainant when the accused requested to go with the complainant so that she can give her part of a phone purchase price. That she allowed this. That the girl got back with Kshs. 100/= instead of Kshs. 600/=
15. PW1 said that when the child got back she noticed that she was walking with her legs apart. That on inquiry she said that his young brother could explain. That the complainant then said that the accused had pulled her into her house removed her panty and put his penis into her vagina. PW1 said that she got hold of the accused who said that he did it by mistake.
16. PW1 stated that she reported to police the following day. She referred to P3 and PRC forms. She said that she had known the accused person since October 2020.
17. PW2 is the complainant. After voire dire examination she was found fit to give a sworn statement. I have noted that the learned Magistrate after a question and answer session noted :-
“I am satisfied that the minor understands the nature of questions put to her and the meaning of stating the truth.”
18. At this point I want to put out that while the question and answer session is properly done the finding by the trial court misses out critical elements of voire dire.
19. This process was explained in the Court of Appeal case of Macharia versus Republic (1976) eKLR as follows: -
“it (voire dire) must be a preliminary examination of a witness by the Magistrate in which the witness is required to speak the truth with respect to questions put to him or her so that the Magistrate can discover if he or she is competent (eg she is not too young and she is not insane to give evidence and should be sworn and affirmed….)”
20. It further explained by the same court in the case of Johnson Mvinya versus Republic (1983) KLR 445 as follows: -
“we once again wish to draw the attention of our courts as to the proper procedure to be followed when children are reached as witness. In Peter Kirigo Kiure Criminal Appeal No. 77 of 1982 (unreported) we said: -
“when in any proceedings before any court, a child of tender years is called as a witness, the court is required to form an opinion on voire dire examination whether the child understands the nature of an oath in which that sworn evidence may be received. If the court is not so satisfied, his unsworn evidence may be received if in the opinion of the court he is possessed of sufficient intelligence and understands the duty of speaking the truth. In the latter event the accused person shall not be liable to be convicted on such evidence unless it is corroborated by material evidence in support of implicating him. Section 19 oath and statutory declaration Act Cap 15.”
21. From the two authorities it is clear that a trial court should establish two things. The first is whether the child is possessed of sufficient intelligence and understands the duty of speaking the truth. Secondly is whether the child understands the nature of an oath.
22. In this case although PW2 was sworn the court did not make a finding after voire dire whether the child understood the nature of the oath. This lapse significant as it is does not by itself vitiate a conviction.
23. PW2 equally repeated what her mother had told the court. She said that the accused pulled down her biker and panty. Then he pushed her to the wall making her to bend over. That he removed his trouser and penetrated her anus. She said that she cried out in pain and on being released ran out. That she went home and reported to her mother. That she was taken to Nyamasaria Police station.
24. PW3 Peter James stated that he is a village elder. That on 17/1/2021 he was called on phone by his assistant chief. He was informed about a girl who had been defiled. He went to the scene. He found PW1 and PW2. PW1 led him to the accused person’s house. He was not there. A neighbour called the accused and when he appeared PW3 arrested him. PW3 said that he was given his name by PW1.
25. PW4 PC (W) Yvonne Apamo is the one who received the report from the complainant’s mother. She is the investigating officer. She recorded statements. She produced as exhibits, the baptismal card. She said that the accused was arrested on his way to the patrol base.
26. Dr. Lucy Ombok was the last witness. She is the one who examined the complainant. She filed a P3 form. She said that the victim had a history of defilement. She observed a broken hymen. She produced the P3 and PRC forms as exhibits.
27. The accused person gave an unsworn statement. He said that it is true that PW2 was sent to his house by PW1. He gave her money. That while at work he was asked to accompany his boss to Nyamasaria police station. He said that he knew the complainant but did not defile her.
28. As noted above the key ingredients of the offence of defilement are the age of the victim, proof of penetration and proof that the perpetrator was properly and positively identified.
29. On the age of the victim the trial court received a baptism card and the testimony by the mother. The court observed that she was a child of tender age. The evidence on record established beyond reasonable doubt that she was 11 years old. This puts her with Section 8 (1) and (2) of the Sexual Offences Act.
30. On penetration, Section 2 of the sexual offence act defines it as follows: -
“The partial and complete insertion of the genital organs of a person into the genital organ of another person.”
31. In the case of Mark Oiruri Mose versus Republic (2013) eKLR the Court of Appeal addressing this issue of penetration said: -
“… many times the attacked does not fully complete the sexual act during commission of the offence. That is the main reason why law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ…”
32. The appellant submitted that there was contradiction on this issue of penetration. That the contradiction was material because while the mother to the victim and medical evidence referred to penetration into the vagina the victim said that the accused person penetrated her anus.
33. I have looked at the P3 form. It indicates history of penetration into the vagina with penis. On examination the doctor indicated that hymen was broken. He concluded that there was defilement. The same is history is captured in the PRC form. Same observation on the genitalia is noted. In both medical reports no injury is noted on the anus.
34. PW1 testified that the victim said that she was penetrated into her vagina from behind while bending. The trial court was of the view that the victim evidence complied with the medical report was sufficient to prove penetration.
35. My independent analysis is that the testimony given by the mother the victim and the medical report all point to penetration into the vagina. There was nothing about the anus even when they went to hospital and police station soon after the incident. I am convinced that the prosecution proved this ingredient beyond reasonable doubt.
36. On identification it is common ground that the accused was a next door neighbour to the victim and her family. They all knew him. He went with the girl to his house. As a matter of fact, he admitted the part where the girl went to him to his house for her mother’s money.
37. The accused talked about alibi. The prosecution’s evidence placed him in his house with the victim. I find the testimony by the victim and her mother worthy of belief. The accused person while bearing no burden of proof, admitted that the victim was in his house at the material time. I agree with the trial court that the accused person was properly and positively identified.
38. In the result the conviction was safe. There is no merit on the appeal. On conviction the same is dismissed.
39. The appellant raised the issue of sentence referring to it as harsh and discriminatory. The appellant has been convicted under Section 8 (1) and (2) of the sexual offence act. The mandatory sentence is imprisonment for life. In this case he was sentenced to twenty (20) years imprisonment. This is illegal.
40. The only reason I am not substituting it for the proper and legal sentence is because of my finding earlier in the judgment that the appellant was not given notice to enhance the sentence. I will let the sentence of 20 years stand.
41. In conclusion the entire appeal is without merits. It is hereby dismissed. It is so ordered.
DATED, SIGNED AND DELIVERED IN VIRTUAL COURT IN MAKADARA THIS…10 TH DAY OF JULY… .. 2026.
HON. ALEX. K. ITHUKU
JUDGE
Ms. Onyango for the state.
The appellant appearing virtually from Kisumu Maximum prison
HON. ALEX. K. ITHUKU
JUDGE
10/7/2026
2 | Page KISUMU HCCA E007 OF 2023