https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8334

Achieng v Republic (Criminal Appeal E109 of 2022) [2026] KEHC 8334 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 8334 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E109 of 2022 ACA Ong’injo, J May 21, 2026 Between Jacob Otieno Achieng Appellant and Republic Respondent (Being an appeal against sentence in judgment of Hon. P. K. Langat PM delivered on 23rd March 2022 in Rongo CMC SOC No. 6 of 2030) Judgment 1.The Appellant was charged 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.The particulars are that the Appellant Jacob Otieno Achieng on the 15th Day of May 2019, at Rongo Sub-County in Migori County within the Republic of Kenya intentionally and unlawfully caused his penis to penetrate the vagina of I. A. O. a child aged 12 years. 3.In the alternative the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. 4.The particulars to the alternative charge are that the Appellant Jacob Otieno Achieng on the 15th Day of May 2019, at Rongo Sub-County in Migori County within the Republic of Kenya intentionally and unlawfully touched the vagina of I. A. O. a child aged 12 years, 5.The Trial Magistrate considered the evidence of four(4) prosecution witnesses and the Appellant’s unsworn statement in defense and found that the prosecution had proved the offence of defilement beyond reasonable doubt. The Appellant was consequently found guilty and was convicted accordingly and sentenced to serve 20 years imprisonment. 6.Being aggrieved by the sentence the Appellant lodged the appeal herein vide fresh grounds of appeal in his undated written submissions filed in court on 29th August 2025 as follows:1.That the sentence imposed is excessively harsh and unjust considering that the Appellant was a first offender and comes before court seeking a more lenient sentence2.That the imposed sentence is excessive and does not go well with the provisions of the policy Sentencing directives 2015 under paragraph 4:13.That the Appellant is remorseful and regrets his actions. He is repentant4.That, the Appellant was a father of three school going children and a husband to one wife5.That, the Appellant worked tirelessly to support his family and self and his elderly parents and has potential if given another chance.6.That, the court should consider his mitigation grounds and award a lesser sentence or substitute the remaining sentence with non- custodial sentence or the court be pleased to order the Appellant serve community service order7.That, the court considers the provisions of Section 333(2) of the Criminal Procedure CodeReasons wherefore the Appellant prays for the following orders:a.That the sentence of 20 years be set aside and the Appellant be set at libertyb.That, the court be pleased and find that the circumstances of the case did not call for a long sentence thus reduce the 20 years imprisonment to any lesser sentence the court finds favourable in the circumstances.c.That, the court awards a more lenient sentence in line with the new jurisprudential developments in Kenya and judiciary sentencing guidelines policy. 7.PW1 I.A.O, the Complainant herein testified that she was 15 years having been born in the year 2006. She said they resided at Oruba in Migori town with her father and mother. She said she was a pupil at Oruba primary school in class six. She said she knew Jacob Otieno who she met him in the car. 8.PW1 recalled that on 15/5/2019, she was heading to her grandmother’s home in Nyandenda in Homabay. She said it was 4pm and she was travelling alone. That she boarded a bus at Migori and arrived at Rongo at 7pm. That the driver, conductor and accused person told her that they will not reach my destination because it was late. She identified the Accused person as the conductor. She said she was the only passenger who was going to Homabay and she had paid but she was told the money she had paid was not enough to take her to Homabay. That the accused person told her to wait as they went to park the motor vehicle. He told her he would talk with the driver and conductor. He told her that he will take her to police station so that she sleeps there and the following morning, they would pick her. That the conductor and driver told him to take her to the police station. That the Appellant took her to a chemist at the stage and he bought some drugs. That the Appellant asked the Complainant if she was afraid and told her that if he took her to the police station, the police will mistreat her. That the Appellant told the Complainant that he would take her to his place of residence and they proceeded to his house from Rongo stage. She said they went towards weighbridge and took about 5 minutes to the house. That when the Appellant was called, she heard him saying he had taken her to the police station. That the Appellant also told the Complainant that he had his wife at his house but they did not find anybody in his house. She said it was one room and the Appellant lit a candle. He had utensils and seat and table. That the Appellant left her and said he was going to buy bread. He returned with bread and they took bread and water. That the Appellant took her outside to the latrine for a call of nature and she relieved herself. PW1 said the room had a mattress but there was no bed. That she sat on the seat and the Appellant told her to sleep on the mattress. That she slept with clothes on. She said she had pant, biker, blouse and dress. That when she had slept on the mattress the Appellant followed her and she got frightened and slept next to the wall. That the Appellant slept next to her and opened his phone and started showing her some photos on the phone. That it was midnight when she went back to sleep. That the Appellant the started touching her all over the body. That she was still wearing clothes. He told her to stop fearing him and asked if she had ever slept with any boy and she told him no. That later she heard him place a knife on her neck and told her not to scream. He told her that he had killed many people. The Appellant removed the blanket and raised her blouse and told her to remove her pant and biker and she complied. PW1 said that the Appellant then slept over her and grabbed her neck and placed the knife. That the Appellant who had a short removed it and remained with his pant. That he then slept over her and inserted his penis on her vagina. That he told her that no one will help her. That the Appellant asked how she felt and did it again. PW1 said she the Appellant told her to sleep but she was crying and did not sleep. That the Appellant defiled her again the for the 3rd time and then left her at 4am. That he went out and told her that he was taking her to her sister. That they we went out at 5.00am and the Appellant then changed his mind and said he was taking her to the stage. That the Appellant left her and told her he was going for short call and did not turn up. 9.PW1 said that a watchman who was guarding a shop told her that the person she was with had left and she informed the watchman what had happened. He called another lady and PW1 explained to her. The chief was called and PW1 was taken to Rongo Police station and she reported. She was taken to Rongo Sub- County Hospital where she was examined. 10.PW1 said they were in the same vehicle form Migori and she saw the Appellant from Migori to Rongo. She said she was called to the police station to identify the Appellant at a parade among other men after he was arrested. 11.In cross examination PW1 said that she boarded motor vehicle at 5pm and arrived at Rongo at around 7pm. She said the Appellant was with another conductor in the matatu. That the driver asked the Appellant to take PW1 to the Police Station and he volunteered to take her to the police. She said the Appellant’s home was made of mud wall. She said the Appellant told her he was purchasing medicine at the chemist and that he strangled her with his hand. She said they were only 2 passengers left when they arrived at Rongo stage. That while leaving the Appellant’s house they met with police officer and there were motor vehicles on the road but he had warned her not to tell anyone. 12.In re-examination PW1 said that they met 2 uniformed policemen on the road but the Appellant told her not to tell them. He had warned her and she was afraid. 13.PW2 Everlyne Mbaka, the Clinical Officer attached to Awendo Sub-County Hospital testified that previously she was attached to Rongo Sub-County Hospital. She identified and produced Clinical Cared from Rongo Sub-County Hospital for I. A. 12 years old who went to the facility on 15/5/2019 with history of defilement by a person well known to her. She examined the minor and observed laceration on labia minora and tear and penetration. She said the hymen was torn and bleeding. There was blood on his examining finger and he concluded that there was penetration. She also sent the minor to the lab. She said the minor was treated and drugs prescribed. 14.PW2 produced treatment card – P exhibit 1, P3 form Ex P2 and Post Rape Care form Ex P 3. PW2 said that the minor was wearing black biker which was wet and torn. She opined that there was penetration because of the injures. 15.PW2 also produced age assessment Report Ex P 4- for the minor which was prepared by her colleague Ms. Otabila. She said she had worked with her for 8 years and she was conversant with her signature which she said was on the age Assessment Report. She said the minor’s age was assessed at 12 years.Age assessment – Pexhbit 4 16.Further PW2 produced treatment card for Jacob Otieno who was seen by her colleague, Lilian Nyaboke. She said there was nothing significant noted in the Appellant’s examination. Treatment card for accused person – Ex P 5. P3 for the Appellant was also produced as Ex P6. 17.In cross examination by accused person PW2 said that the minor was 12 years. She said that the minor went to the hospital while walking. 18.PW3 Michael Otieno Yogo testified that he resided at Rongo and he was a matatu driver. He said that on 15/5/2019 he was in Migori with his driver. He said his vehicle was a minibus and he was co-driver that time. He said they were going to Rongo for the last lap. That they carried a young girl about 10 years. He said he sat on the conductors’ seat and he was with conductor while Jacob was assisting their conductor. He said they arrived at Rongo around 8pm and all the passengers disembarked and it is only the girl was left. That she said she was going to sindo. PW3 said the girl remained with Jacob and another conductor. That the girl said she knew Jacob and Jacob also said he knew the girl. Jacob told them that the girl had her sister who was a police officer at Rongo police station. That they trusted him and left him with the girl and they went to our respective homes. That they left the bus at petrol station. That in the morning police officers went to stage at 6am and they were arrested with Mathew and they found the girl and police standing. That the girl identified the driver. They were then informed she was defiled by Jacob. That they called the stage members of Migori and Jacob was arrested by our stage members and police went for him. The girl identified him at the police station. PW3 identified the Appellant as the one who defiled the Complainant. 19.In cross examination PW3 said that he did not know the Appellant before and he had never given the Appellant his vehicle. He also said he had never borrowed money from the Appellant. PW3 said he had not fought with the Appellant. He said he did not record what they were saying and he did not know he was going to defile the Complainant. He said the Appellant took the Complainant pretending that she knew him. He denied sleeping with the girl and he said he saw the Appellant taking the girl. 20.PW4 Philip Ochieng Dander Assistant Chief Rongo Township Sub-Location testified that his duties include maintaining peace and order. He said that on 15/5/2019 during morning patrols at Rongo town at 8am he got report that there was a young lady stranded next to Bear Hotel. That he went there and interrogated her. That she told him she was defiled and he took her to the police station. 21.PW5 NO. 233637 IP AYUP IGATI formerly from Kamagambo Police Station said he had since retired. He said he retired in year 2020 as Inspector of police. He said that PC Rusalia Jepchirchir appointed him to do identification parade in respect of a suspect, Jacob Otieno Ochieng who had been arrested for defilement. He said the complainant was I. A. A. He said that he called the suspect and informed him of reasons of identification parade and asked him if he was agreeable. That the suspect accepted the conducting of parade and signed. That he asked him if he wanted to have a legal representative or a relative during the parade and he said he did not want. 22.PW5 said he paraded 8 people and the suspect became the ninth. That he asked him where he wished to stand and he chose to stand between 3-5. That the complainant was called from the children cell where she was kept as child in need of care and protection. He told her that there were 9 people on parade and he wished that she identified the person who defiled her and she touched the assailant. That he was satisfied with the identification parade and he signed it. PW5 said the parade was conducted at Kamagambo Police Station. He identified the Appellant in the dock as the suspect for whom he conducted parade. He produced Identification Parade form as Ex P 7 23.In cross examination by the Appellant PW5 said that he was inspected of police. He said he took members of public. He said the complainant was inside the children cell. 24.PW6 NO10242 Rosalia Jepchumba from Kamagambo Police Station investigated the offence herein. She testified that on 15/5/2019 at 8.30am she was on duty when the complainant reported that she had been defiled the previous night by a person she knew the face. She took her to Rongo Sub- County Hospital where she was examined, treated and P3 form was filled. That PCR form and Ages Assessment was also done. Later she took her to the police station and kept her in cells. On 16/5/2019 the accused person was arrested and identification parade was conducted and the minor identified the accused person by touching him. PW6 said the accused person was then charged with the offence of defilement. The Investigating Officer said the minor was travelling from Migori to Sori. She said the driver led them to the arrest of the accused person. 25.In cross examination PW 6 said that the child was found stranded in the morning and was taken to the station by the Chief who found her stranded. She said the Appellant took the minor to the place where he was staying. She said the Appellant led them to his house. 26.Upon being place on defence the Appellant selected to give unsworn statement and he said he was a matatu driver. He said that on 16th May 2o19, he was at the stage at Migori when he was arrested with his driver. That he was told that the person he was with had ordered him to be arrested. That he was taken to Rongo Police Station and he was surprised to be charged for offence he was not aware of. The Appellant said he did not defile the girl. He said he had been with Otieno Yogo who made me arrested.The appeal herein was heard by way of written submissions. 27.The Appellant’s submissions were filed on 29th August 2025 and they were to the effect that the Appellant sought the court to consider his mitigation and review sentence as per his grounds of appeal restated herein. 28.The Respondent filed submissions dated 11th December, 2024. They submitted that under Section 107 of the Evidence Act, the prosecution bears the burden of proof on every element in a criminal charge. The prosecution must discharge this burden beyond reasonable doubt. 29.The Respondent submitted that to prove the offence of defilement under Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006, the following ingredients ought to have been proved in order to sustain a conviction against the appellant.a.Proof of penetrationb.Age of the victimc.Positive identification of the assailant 30.On proof of penetration, it was submitted that the Act defines penetration under section 2 (1) of the Sexual Offences Act no.3 of 2006 as follows: -penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person;" Under the same section, Genital Organs are defined as follows: "includes the whole or part of male or female genital organs and for purposes of this Act includes the anus. 31.It was submitted that the testimony of the victim is corroborated by PW2 a Clinical Officer who produced the PRC form, P3 form and treatment notes and indicated that there was laceration on the labia minora and tear and penetration.That the hymen was torn and bleeding, page 13 line 28-29. 32.The Respondent further submitted that with regard to penetration, the testimony of the victim was cogent. Her testimony is corroborated by the testimony of the Clinical Officer who examined and treated her and that the prosecution proved the element of penetration of the victim beyond reasonable doubt. 33.On whether the age of the Complainant was proved, it was submitted that PW2 produced the age assessment report that indicated the minor was 12 years old. That Section 2 of the Children Act 2001 defines a child as any human being under the age of eighteen years and therefore the prosecution sufficiently proved the age of the victim. 34.The Respondent further submitted that the victim- PW 1 narrated to the court how she travelled from Migori to Rongo abord a vehicle where the Appellant was the conductor. She also narrated how the Appellant who was the conductor, told her that the money she had paid was not enough to take her to Homabay, and told her to wait as they park the car and that he would take her to the police station to sleep and would pick her up the following morning. He took her to a chemist at the stage, he told her if he took her to the police station the police would mistreat her and took her to his place of residence, he lit a candle and told her that he was going to buy bread. That they took bread and water and he told her to sleep on the mattress. That she slept with her clothes on, he slept next to her, he touched her all over her body, he told her to stop fearing him and asked her if she had ever slept with a boy, she told him no, later she felt him place a knife on her neck and told her not to scream. He also told her that he had killed many people. He raised her blouse and told her to remove her pant and slept over her and grabbed her neck, he removed his short remained with a pant and slept over her and defiled her more than once. 35.It was submitted that the Complainant interacted with the Appellant for a long period of time and can certainly identify him. Further she identified him at an identification parade. That in the circumstances the testimony of the victim was cogent and the court was urged to find that identification was proper. 36.The submissions by the Respondent in regard to the Appellant’s grounds of appeal are that they relied on the case of Kelvin Muthoni Makembo v Republic (2020) eKLR where the court held as follows regarding the issue of inconsistencies;“The discrepancies pointed out by the appellant are minor. They do not show a design by witnesses to mislead the court. They do not in my view raise doubts in the prosecution case. To my mind the discrepancies are minor and must be ignored.” 37.The court was urged to adopt the same position and find that there was no material contradiction which prejudice the Appellant. 38.On the ground that the court erred by imposing an irregular, punitive and harsh sentence it was submitted that the Appellant herein was accorded a chance to tender his defence and the trial court noted everything as he testified. He did not object towards tendering his defence. He was also convicted for the offence of defilement contrary to Section 8(1) as read with Section 8 (3) of the Sexual Offences Act No 3 of 2006 and the sentence provided for is imprisonment for a term of not less than twenty years and no other. This cannot be termed as harsh or excessive as it is as prescribed by law. 39.That the Appellant herein was charged with the offence of defilement contrary to section 8(1) of the Sexual Offences Act which provides, "A person who commits an act which causes penetration with a child is guilty of the offence termed defilement". Section 8(3) of the sexual offences act provides that "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.". 40.The Respondent invited the court to dismiss the Appeal because the prosecution sufficiently proved the offence of defilement. Analysis and Determination 41.This being a first appeal, the duty of this Court is to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was well stated in Okeno v Republic.Similarly, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.” 42.Having considered the record of appeal, the grounds of appeal and the submissions filed by the respective parties the only issue for determination is whether the sentence was excessive and harsh in the circumstances and whether the fact that Appellant is a first offender can make the court review the same. 43.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) of the Sexual Offences Act which provides,“A person who commits an act which causes penetration with a child is guilty of the offence termed defilement".Section 8(3) of the Sexual Offences Act further provides that:“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.". 44.The sentence passed by the Trial Court cannot be termed as harsh or excessive as it is as prescribed by the law. 45.Before passing the sentence herein the Trial Magistrate had this to say: 46.I have considered the nature and circumstance of the offence. I have also considered mitigation by the accused person and fact that he is 1st offender. I note that the complainant was only 12 years old. The accused person prayed on her and stole her innocence considering all the above and noting the time accused parson has spent in remand, I sentence him to serve 20 years imprisonment. Right of appeal 14 days. 47.The Appellant’s mitigation was considered before the sentence was passed. The Appellant took advantage of the minor and the trust bestowed upon him by PW3 to take the Complainant to the Police Station and went to defile her in his house while threatening to kill her if she raised alarm. His beastly behaviour cannot be condoned in a civilized society. 48.This court therefore finds that the appeal against sentence is without merit and the same is dismissed. The Appellant is duly informed about his right to appeal within 14 days. DATED, SIGNED AND DELIVERED AT MIGORI THIS 21st DAY OF MAY, 2026.HON. ANNE ADWERA- ONG’INJO JUDGEIn the Presence of:Victor – Court Assistant