1. Wycliffe Okoth Ogada, the appellant herein, was convicted of 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. The particulars of the offence are that on the 8th day of December 2019, at Osir-Matanda village, Nyatike sub-county within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of L.A.O, a child aged twelve years.
3. The appellant was sentenced to serve twenty years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) The trial court erred in both law and fact by failing to consider that the ingredients of the offence herein were not proved as required in law.
b) The trial court erred in both law and fact by failing to consider the appellant’s mitigation and defence.
4. The state opposed the appeal through M/s Melvin Ndombi, learned counsel. She contended that the appeal lacked merit.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator and
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR. Ngugi J. (as he was then) said:
Going by this definition of defilement… the issues which the court needs to determine…first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
7. I will determine if the prosecution proved these ingredients to the required standards.
8. L.A.O (PW1), the complainant, testified that she was thirteen years old at the time of the trial. She gave her birthday as 10th January 2007. Dr Otieno assessed her age as thirteen.
The complainant's age was therefore proved as required.
9. On December 8, 2019, the complainant was at a house hosting a nighttime fundraiser with loud music. She went to the toilet, carrying a torch. The bulbs' light lit the way to the toilets, where she proceeded.
10. When she arrived at the toilets, she recognised someone there. He greeted her, then ordered her to bend down. As she threatened to scream, he warned that he would kill her. He dragged her to some bushes and defiled her. Though she screamed, her cries were muffled by the loud music. After the ordeal, she reported it to some of the women present.
11. Kefa Omondi Okwiri (PW3) examined the complainant on 8th December 2019. He found that she had a broken hymen with bloody discharge from her vagina.
12. Wycliffe Okoth Ogada, the appellant, was falsely implicated by Daniel Onyango (PW2) after the compressor he (PW2) was working with broke down. This contention was denied by PW2. His evidence was that the fundraiser was in his home, and when the complainant reported what the appellant did to her, he went and arrested him.
13. The learned trial magistrate was right in dismissing this defence. It was displaced by the evidence on record.
14. The complainant described the appellant as her attacker, but he denied the accusation. Since many sexual offences lack eyewitnesses, the proviso to section 124 of the Evidence Act was introduced, stating:
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.
After reviewing the evidence on record, I have determined that the learned trial magistrate had no grounds to doubt the minor.
15. Section 8(3) of the Sexual Offences Act provides:
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
16. Although the appellant argued that his defence and mitigation were overlooked, the evidence on record contradicts this claim.
17. The conclusion from the above analysis of the available evidence is that the appeal has no merit and the same is dismissed.
Delivered and signed at Migori on this 23rd day of February 2026
2. The particulars of the offence are that on the 8th day of December 2019, at Osir-Matanda village, Nyatike sub-county within Migori County, he intentionally and unlawfully caused his penis to penetrate the vagina of L.A.O, a child aged twelve years.
3. The appellant was sentenced to serve twenty years’ imprisonment. He was aggrieved and filed this appeal against the conviction and sentence. He raised grounds of appeal as follows:
a) The trial court erred in both law and fact by failing to consider that the ingredients of the offence herein were not proved as required in law.
b) The trial court erred in both law and fact by failing to consider the appellant’s mitigation and defence.
4. The state opposed the appeal through M/s Melvin Ndombi, learned counsel. She contended that the appeal lacked merit.
5. This is the first appellate court. As expected, I have analyzed and evaluated all the evidence adduced before the lower court. I have concluded, considering I neither saw nor heard any witnesses. I will be guided by the celebrated case of Okeno vs Republic [1972] EA 32.
6. An offence of defilement is established against an accused person when the prosecution has proved the following ingredients:
a) That there was penetration of the complainant’s genitalia;
b) That the accused was the perpetrator and
c) The victim must be below eighteen years old.
This position was echoed in the case of Fappyton Mutuku Ngui vs Republic [2012] eKLR. Ngugi J. (as he was then) said:
Going by this definition of defilement… the issues which the court needs to determine…first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant.
7. I will determine if the prosecution proved these ingredients to the required standards.
8. L.A.O (PW1), the complainant, testified that she was thirteen years old at the time of the trial. She gave her birthday as 10th January 2007. Dr Otieno assessed her age as thirteen.
The complainant's age was therefore proved as required.
9. On December 8, 2019, the complainant was at a house hosting a nighttime fundraiser with loud music. She went to the toilet, carrying a torch. The bulbs' light lit the way to the toilets, where she proceeded.
10. When she arrived at the toilets, she recognised someone there. He greeted her, then ordered her to bend down. As she threatened to scream, he warned that he would kill her. He dragged her to some bushes and defiled her. Though she screamed, her cries were muffled by the loud music. After the ordeal, she reported it to some of the women present.
11. Kefa Omondi Okwiri (PW3) examined the complainant on 8th December 2019. He found that she had a broken hymen with bloody discharge from her vagina.
12. Wycliffe Okoth Ogada, the appellant, was falsely implicated by Daniel Onyango (PW2) after the compressor he (PW2) was working with broke down. This contention was denied by PW2. His evidence was that the fundraiser was in his home, and when the complainant reported what the appellant did to her, he went and arrested him.
13. The learned trial magistrate was right in dismissing this defence. It was displaced by the evidence on record.
14. The complainant described the appellant as her attacker, but he denied the accusation. Since many sexual offences lack eyewitnesses, the proviso to section 124 of the Evidence Act was introduced, stating:
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.
After reviewing the evidence on record, I have determined that the learned trial magistrate had no grounds to doubt the minor.
15. Section 8(3) of the Sexual Offences Act provides:
A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.
16. Although the appellant argued that his defence and mitigation were overlooked, the evidence on record contradicts this claim.
17. The conclusion from the above analysis of the available evidence is that the appeal has no merit and the same is dismissed.
Delivered and signed at Migori on this 23rd day of February 2026