https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1203

Olang v Republic (Criminal Appeal E136 of 2022) [2026] KECA 1203 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1203 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E136 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA June 26, 2026 Between Alfred Owuor Olang Appellant and Republic Respondent (Being an appeal from the judgment of the High Court of Kenya at Eldoret (A.C. Mirima, J.) dated 1st November 2018 in HCCRA No. 105 of 2015 Criminal Appeal 105 of 2015 ) Judgment 1.This is a second appeal by the appellant, Alfred Owuor Olang, against the decision of the High Court at Eldoret (Mrima, J.) delivered on 1st November 2018, which dismissed his first appeal against conviction and sentence. The appellant was originally convicted of the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. Upon his conviction, he was sentenced to life imprisonment by the Chief Magistrate's Court at Eldoret (T.W. Cherere, Chief Magistrate (as she then was)) in Criminal Case No. 1286 of 2014. The appellant, acting in person, has filed this appeal challenging the entirety of the High Court judgment. 2.As a second appellate court, our jurisdiction is circumscribed by section 361 of the Criminal Procedure Code. We are only entitled to consider matters of law and should not interfere with findings of fact unless the trial court and the first appellate court either failed to consider crucial evidence, or acted on the wrong principles, or their findings were so perverse that no reasonable tribunal could have arrived at them. Thus, in Mwangi vs. Republic [2026] KECA 640 (KLR), the Court held that:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at its findings…” 3.To put the appeal in context, we will rehash the evidence adduced at trial. ECM (PW1) was the employer of both the appellant and the victim’s mother. She testified that on 4th March 2014, the victim was walking with difficulty. Upon examination, she noticed the child's private parts were swollen and had a whitish substance. She testified that the child had whispered to her mother that "Derrick" had touched her private parts and that the appellant was the only male adult in her homestead at the time. MKS (PW2), a village elder, identified the appellant as "Derrick," a person he knew as a worker at PW1's homestead. He was present when the appellant was arrested. Corporal David Mwangangi (PW3), the investigating officer, confirmed that the appellant and the complainant's mother were employees of PW1 and lived in adjacent houses. He testified that the appellant was the only male adult in that homestead. 4.Harun Kiprop Chemjor (PW4), the Acting Chief, and Administration Police Corporal Richard Kiptala (PW5), the arresting officer, testified about the circumstances of the arrest and the appellant's identification at the scene. Dr. Jane Yatich (PW6), a medical officer from Moi Teaching and Referral Hospital, produced the P3 form on behalf of Dr. Imbenzi, who had since retired. The P3 form indicated that upon examination of the complainant's genitalia, there was redness on the labia and frictional injuries consistent with defilement. 5.PCT (PW7), the complainant's mother, gave a detailed account. She stated that on 4th March 2014, she and the appellant had gone to the shopping centre. On returning home, she found her children in the appellant's house. She testified that the complainant, a girl aged 2½ years, cried throughout the night and the following day was walking with difficulty. Upon examining her, she found the child's private parts swollen and reddish. She suspected the appellant had defiled her, as he was the only male adult in the compound. 6.In his defence, the appellant denied committing the offence. He claimed he was not an employee of PW1 and had only been called on the material day to assist with milking cows. He denied being known as "Derrick" or living in a house adjacent to that of PW7. He alleged he was framed by Esther due to a dispute over a murder case. 7.In his judgment, Mrima, J. affirmed the trial court’s holding that the offence of defilement had been proved against the appellant. 8.When this appeal came up for hearing on 27th April 2026, the appellant, who was in person, appeared virtually from Naivasha Maximum Security Prison. Learned Principal Prosecution Counsel, Mr. Okaka appeared for the respondent. The parties opted to rely on their written submissions, which they had already filed. 9.In his submissions before the Court, the appellant challenged the conviction on three main fronts. First, it was his submission that the failure by the prosecution to call the complainant as a witness was fatal to their case and that in the circumstances, the conviction could not be upheld. His second attack was that since no voir dire examination was conducted for the minor, the evidence of such a witness was hearsay and inadmissible. Third, he argued that the prosecution failed to prove the identity of the perpetrator beyond reasonable doubt, as the evidence placed a person named "Derrick" at the scene, and the evidence being circumstantial, did not meet the test set out in Abanga alias Onyango vs. Republic (Cr. App. No. 32 of 1990). Further, that DNA test was not conducted to link him to the offence. In support of the arguments, the appellant relied on several authorities, including Bukenya & Others vs. Uganda [1972] EA 549, for the proposition that the failure to call an essential witness invites an adverse inference, and Woolmington vs. DPP [1935] AC 462 for the principle that the burden of proof rests entirely on the prosecution. 10.For the respondent, Mr. Okaka, relying on the submissions dated 7th April 2026 filed by learned Principal Prosecution Counsel, Ms. Claire Muriithi, opposed the appeal, arguing that both the conviction and sentence were safe and anchored in law. Regarding the complainant's age, counsel submitted that it was established by the evidence of PW7. Regarding penetration, counsel argued that the evidence of PW1 and PW7 was corroborated by medical evidence by way of the P3 form produced by PW6. On the issue of the appellant’s identity as the perpetrator, counsel submitted that the evidence of the witnesses, particularly PW1, PW2, PW3, and PW7, placed the appellant at the scene as the only male adult, and the child's identification of the perpetrator as "Derrick" was confirmed to be the appellant. Counsel relied on Aminga vs. Republic [2024] KECA 480 (KLR) to urge that section 36 of the Sexual Offences Act, which allows for DNA testing, is not mandatory. On sentence, counsel referred to Republic vs. Ayako [2025] KESC 20 (KLR) and submitted that the life imprisonment is lawful and constitutional. 11.We have appreciated the record, the submissions and the authorities referenced by both sides. In our view, three issues arise for determination: whether failure to call the complainant was fatal to the prosecution’s case, whether the offence of defilement was proved, and whether the appellant has established a basis for this Court’s interference with the sentence. 12.The appellant’s first ground of appeal is that the High Court erred in upholding the conviction when the victim, a child of tender years, was not called as a witness. Indeed, the trial record shows that the victim did not testify, and the prosecution did not provide a clear explanation for her absence. In fact, from the outset, it appears that the victim was never on the prosecution’s list of intended witnesses. In this case, even though the victim’s mother testified as PW7, she did not do so as an intermediary but on her own account as an independent witness. Although it can easily be discerned from the record that the complainant, being aged 2½ years, may not have been in a position to testify, the prosecution should not have left the record to speak for itself. The question therefore is whether the prosecution can secure a conviction without calling the complainant as a witness. 13.In our view, a conviction can be sustained on other credible evidence, particularly in sexual offences where the victim is a child of tender years. In this case, there was sufficient evidence to establish that the complainant was 2½ years old at the time of the incident. It would have been most helpful had the mother taken the child to court to enable the trial magistrate to appreciate her age.Even so, we take judicial notice that a child of such age is a toddler whose interaction with the world, speech levels, and intelligence are still developing. Therefore, even as we stress that victims of crimes (who survive to tell the tale) ought to testify, we hold that in the absence of the child's direct testimony, the court must rely on the totality of the other evidence tendered by the prosecution. 14.In so holding, we appreciate that we are not on a maiden voyage on the issue since our view finds support in Yongo vs. Republic [2024] KECA 633 (KLR), wherein the Court held that:“ 30.Even though the complainant did not testify in person, that of itself did not constitute PW1 an intermediary within the meaning of sections 31 and 32 of the Act, which prescribes the procedure to be followed in cases where the complainant is a vulnerable person or a child of tender age as was the complainant. The very fact that the trial court declared the complainant a vulnerable child of tender age did not of itself constitute PW1 an intermediary in relation to the direct evidence of what she personally witnessed. Neither did lack of voir dire evidence of the complainant render PW1’s evidence worthless or of no probative value. 31.While a trial court should, in ordinary cases, undertake a voir dire examination of a child of tender age to ascertain her ability to tell the truth or to testify in a trial whether as a complainant or as a witness, failure to undertake such an examination does not erode the probative value of the direct evidence of other witnesses, including that of PW1, PW3 and PW4, who testified to the complainant’s condition after the incident. 32.We form this view cognisant of the provision of section 31(1) and (2) of the Act, which empowers the trial court in criminal proceedings to declare a witness, other than the accused, who is to give evidence in those proceedings a vulnerable witness where such witness is the alleged victim in the proceedings pending before the court, or a child on account of his/her age. Upon such declaration, the vulnerable witness may testify through an intermediary, such as a parent or guardian, or a person in loco parentis. To our mind, that procedure was not strictly necessary to lend credibility to PW1’s testimony, or to that of the other prosecution witnesses who testified to the complainant’s medical condition. 31.That said, we also take to mind this Court’s decision in M.M vs. Republic [2014] eKLR where the Court stated thus:“Turning to the appeal before us, we reiterate that the victim did not herself testify due to her tender years. In cases like this where the victim is too young to give evidence, section 33 of the Sexual Offences Act allows the trial Court to rely on either the evidence of the surrounding circumstances, or under section 31 (4), to give evidence through an intermediary or both. In the absence of the complainant’s testimony, there was independent evidence of the complainant’s mother, that of the father and the clinical officer that linked the appellant to the defilement of the complainant….Any requirement that insists on a child victim of defilement, irrespective of his or her age, to testify in order to found a conviction would occasion serious miscarriage of justice. What fair hearing would a child victim aged six (6) months, like that in the case of Robinson Tole Mwakuyanda vs. R. HC. Cr. Appeal No. 227 of 2007, get if the courts were to insist on the evidence of such a child, who on account of his/her tender age cannot speak.” 31.The same question may be asked of the complainant, who was one- and-a-half years of age. How fair would it have been to subject a child of such tender age to the solemnity of the court proceedings and cross-examination by the appellant under whose hand she endured an ordeal of such magnitude as to make her coil away in fright when she later came face-to-face with him at the police station? To hold otherwise would be tantamount to closing our minds to the special needs of vulnerable victims for whom this Court should have due regard.” 15.Still unrelenting on the issue of the absence of the testimony of the victim, the appellant also argues that it was erroneous of the trial court not to conduct voir dire of the victim. Indeed, where the victim is a child of tender years and capable of communicating, voir dire examination would assist the trial court in determining whether to receive the evidence of the child (either sworn or unsworn) or not. However, since the complainant was not called to testify, there was no place for a voir dire interview. Therefore, the failure to call the complainant or to subject her to voir dire was inconsequential, as long as the evidence adduced enabled the prosecution to discharge its burden of proof. 16.We now turn to the issue of whether there was sufficient evidence to sustain the conviction. In order to sustain a conviction for defilement under section 8(1) of the Sexual Offences Act, it must be proved that penetration occurred, the identity of the offender, and that the victim is a child. We only need to point out that sentencing is age-sensitive as per the provisions of section 8(2), (3) & (4) of the said Act. Before we assess the evidence, we reiterate the holding in Munyoki vs. Republic [2017] KECA 376 (KLR), thus:“… in all criminal cases, the prosecution has the task of proving its case against an accused person beyond reasonable doubt and it is a burden the prosecution must discharge in relation to each and every ingredient of the particular offence charged.” 17.Starting with the evidence on penetration, the prosecution’s case rested primarily on circumstantial and medical evidence, as no eyewitness testified to witnessing the commission of the offence. PW1 testified that on 5th March 2014, she observed the victim, a child of 2½ years, walking with noticeable difficulty. Upon examination in the presence of PW7, she noticed swelling on the child’s genitalia and saw a whitish substance. PW7 who is the victim’s mother, corroborated this evidence, stating that on the night of 4th March 2014, the child had cried throughout the night and refused to eat. The following morning, she noticed her daughter walking with difficulty and, upon examination, found her private parts swollen and reddish. This evidence of physical signs of defilement was further corroborated by the medical evidence tendered by PW6, who produced the P3 form filled by Dr. Imbenzi. The P3 form confirmed that upon examination of the child’s genitalia, there was redness on the labia and frictional injuries consistent with defilement. The doctor concluded that the child had been defiled. 18.Considering the foregoing set of evidence, the courts below correctly concluded that penetration was proved. The law does not require that evidence of spermatozoa be available for penetration to be established. The slightest penetration is sufficient to constitute the offence. In fact, the law at section 2 of the Sexual Offences Act defines penetration to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” The combined effect of the testimonies of PW1 and PW7, who observed the complainant's physical condition immediately after the incident, and the medical evidence of PW6 confirming injuries consistent with penetration, was sufficient to establish this ingredient. We cannot therefore fault the trial court and the first appellate court for unanimously finding that penetration was proved. 19.Turning to the element of age, the prosecution adduced multiple strands of evidence to establish that the complainant was a child of tender years. PW7, the complainant's mother, testified under oath that she gave birth to the child in question on 17th April 2011, thereby establishing that the child was 2½ years old at the time of the alleged offence on 4th March 2014. The prosecution also produced a Child Health Card as documentary evidence of the child’s age. Although the trial court rejected this exhibit due to certain alterations and amendments, it nonetheless relied on the oral testimony of PW7, which was corroborated by PW6, the medical officer, who testified that the child’s apparent age was 2½ years based on the medical examination. The trial court, after evaluating this evidence, concluded that “undeniably, the complainant was 2½ years at the time she was allegedly defiled...” 20.In Richard Wahome Chege vs. Republic [2014] KECA 453 (KLR), the Court relied on the evidence of the mother to find that the age of the child was proved, holding that:“ 12.On the contention that the age of the complainant was not established, it is our considered view that age is not proved primarily by production of a birth certificate. PW2 the mother of the complainant testified that the complainant was 10 years old. What better evidence can one get than that of the mother who gave birth? It is our considered view that the age of the complainant was not only proved by PW2 but supportive evidence was given by PW3 who examined the complainant, and the complainant herself.” 21.Consequently, we find that the two courts properly appreciated the principles on proof of age of the victim and we ultimately find that the prosecution discharged its burden and the first appellate court correctly affirmed the finding by the trial court on the age of the victim. 22.The thorny issue is whether the appellant was correctly identified as the defiler. We start by appreciating that the prosecution’s case on the appellant's identity was entirely circumstantial, as no witness testified to having seen the appellant defile the child. The evidence linking the appellant to the offence was built on several pillars. First, the evidence of PW1, who testified that the appellant was her employee and the only male adult living in her homestead at the material time. The second facet was the evidence of PW7, the complainant's mother, who testified that on 4th March 2014, she and the appellant went to the shops together, and on their way home they parted ways after she detoured as the appellant directly proceeded home. Upon arriving home at about 7:00 pm, she found her children, a three-year-old boy and the victim, in the appellant's house. Third, the child was reported to have whispered to her mother that “Derrick” had touched her private parts and PW2 confirmed that the appellant was popularly known as “Derrick” in the village. The fourth strand of evidence on identity was the testimony of PW3, the investigating officer, who stated that upon visiting the scene he confirmed that the appellant's house was adjacent to that of the victim’s mother and that the appellant was the only male adult in the homestead. 23.In R. vs. Kipkering Arap Koske & Another [1949 16 EACA 135 it was held that for circumstantial evidence to result in a conviction, the inculpatory facts must be entirely incompatible with the innocence of the accused; the evidence must be incapable of explanation upon any other reasonable hypothesis than that of guilt; and there must be no co-existing circumstances that weaken or destroy the inference of guilt. See also Abanga alias Onyango vs. Republic, Criminal Appeal No. 32 of 1990. 24.Applying the foregoing principles to this appeal, we find that the evidence adduced by the prosecution placed the appellant at the scene of crime. The appellant’s denial that he did not live in PW1’s farm could not rebut the strong and consistent testimony of PW1, PW7 and the investigating officer that he lived in a house that was adjacent to that of PW7. The trial court and the first appellate court held as a fact that PW7 and the appellant were together that evening heading home from the shopping centre before PW7 detoured leaving the appellant to proceed home alone. When she later went home, she found her children, including the victim, in the appellant’s house. The child whispered to her that ‘Derrick’ had touched her private parts. His claim that he was framed by PW1 because of a murder case does not explain why PW7 and the investigating officer would bear false testimony against him. Indeed, the appellant never denied that he went to the shops with PW7, who later found him with her children in his house. We therefore agree with the two courts below that the evidence on identification formed a complete and unbroken chain pointing irresistibly to the appellant as the perpetrator. We therefore find no reason for interfering with their conclusion that the appellant was correctly identified as the defiler. 25.As regards the appeal against sentence, we agree with the respondent’s counsel that the sentence of life imprisonment meted upon the appellant is the only sentence available under section 8(2) of the Sexual Offences Act, and as held by the Supreme Court in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR), that is the only lawful sentence to be imposed where an accused person has been found guilty of defiling a child aged eleven years or less. That is what the appellant did. We thus find no merit in the appeal against sentence. 26.In conclusion, we find the appeal to be without merit, and we dismiss it in its entirety. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE 2026.M. GACHOKA C.Arb, FCIArb................................. JUDGE OF APPEALW. KORIR................................. JUDGE OF APPEALL. M. NDOLO................................. JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR