https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1435

Odhiambo v Republic (Criminal Appeal E085 of 2023) [2026] KECA 1435 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1435 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E085 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Benard Akoth Odhiambo Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Homa- bay, (Kiarie Waweru Kiarie, J.) dated 5th July, 2022) in HCCRA No. E12 of 2021 Criminal Appeal E012 of 2021 ) Judgment 1.The appellant, Benard Akoth Odhiambo, was arraigned before the Principal Magistrate’s Court at Mbita in a Sexual Offences Case No. 3 of 2020, charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act. The particulars of the offence alleged that on 31st January 2020, within [Paticulars withheld] Sub-County in Homa Bay County, the appellant intentionally and unlawfully caused his male genital organ namely, the penis to penetrate the female genital organ, namely the vagina of VPA, (real name redacted for legal reasons) a minor aged eight years, (the complainant). 2.The appellant entered a plea of not guilty and soon thereafter his trial ensued. Briefly, the prosecution case was that the complainant, was left alone with the appellant who was a step-father when her biological mother went for a funeral. The appellant took advantage of the situation dragged the complainant into a store within the house and thereat defiled her. When done, he threatened the complainant with dire consequences if she dared to reveal to anyone what had transpired between them. When however, her mother returned, she noted that the complainant was unnecessarily moody and when she confronted her, she spilt the beans confirming that she was accosted by the appellant who forced her to the ground and engaged her in unlawful sexual activity. In her own words, the appellant “did a bad thing” by putting “his thing” into “her thing” on the floor. That this was not the first encounter though as he done it to her severally in the past. 3.Her mother CAO (again real name redacted) (PW2), upon noticing the unusual behavior of the complainant, interrogated her whereupon she owned up and disclosed that she had been defiled and named the appellant as the offender. She then called a clan elder, Pius Eachi PW3, who came and confronted the appellant whom he found in the house. When he did not own up to his mischief, together with PW2, they took him to Mbita police station whereas the complainant was taken to hospital. Medical evidence adduced by Herbert Cohen’ Puma (PW4), who examined the complainant on the same day, noted that her dress was stained at the back, there were bleeding bruises on the labia majora, cut wounds on the labia minora, and blood-stained vaginal discharge. Laboratory analysis revealed numerous epithelial cells in the vaginal swab, all consistent with recent penetration. His opinion was that the complainant had been subjected to sexual assault. 4.In his deface, the appellant denied the charge and alleged that he had been falsely implicated due to a grudge arising from his removal of iron sheets from the house he had put up for CAO as they were parting ways. 5.Upon conclusion, the trial court, found the prosecution evidence sufficient to establish the offence and that the medical evidence corroborated the complainant’s account. Further, the trial court found that although the appellant, in his defence, denied the charge and alleged that he had been falsely implicated due to a grudge arising from his removal of iron sheets he had used in constructing a house for CAO, he did not, however, confront her or any other witness with this claim. The trial court accordingly dismissed his defence as unsubstantiated. Consequently, the trial court convicted the appellant and imposed the mandatory sentence of life imprisonment. 6.Aggrieved by both conviction and sentence, the appellant lodged an appeal in the High Court of Kenya at Homa-bay, contending, inter alia, that the trial court erred in: relying on contradictory prosecution evidence; not concluding that the complainant had been prevailed upon to give false and incriminating evidence against him; not appreciating that he was denied adequate time to prepare for his defence; failing to consider that the case was a frame-up; not considering that the complainant’s age was not proved beyond reasonable doubt; failing to hold that medical evidence was insufficient to establish penetration; disregarding his defence; and that the sentence imposed was harsh, excessive, and unconstitutional. 7.Upon re-evaluating the record, the High Court, mindful of its duty as a first appellate court, found that the prosecution had proved all the essential ingredients of the offence of defilement. Accordingly, it dismissed the first appeal in its entirety. 8.Being aggrieved by the concurrent findings of the two courts below, the appellant has lodged this second and perhaps last appeal raising grounds that the first appellate court erred in law in upholding his conviction despite having been denied legal representation in terms of article 50(2)(g)(h) of the Constitution of Kenya; the actual age and penetration of the complainant was not established; evidence tendered in the trial court was marred with contradictions and inconsistencies; vital and crucial witnesses were not summoned to testify; failing to believe the defence which was truthful and cogent; failing to consider that the legal provision for mandatory life sentence under section 8(2) of the Sexual Offences Act denies the Judicial Officer legitimate jurisdiction to exercise discretion in sentencing. 9.The appeal was heard by way of written submissions only. When called out, the appellant appeared in person, from Kibos Maximum Prison on our virtual platform while Mr. Omwenga, learned prosecution counsel appeared for the respondent. 10.The appellant submitted that he was denied his constitutional right to legal representation at State expense contrary to article 50(2)(g) and (h) of the Constitution, and invoked section 43(1)(a) and (b) of the Legal Aid Act together with the decisions in Republic v Karisa Chengo & two Others [2017] eKLR and Albanus Mwasia Mutua v Republic [2006] KECA 346 (KLR), to argue that violation of this right vitiated the trial. He further relied on William Orunda alias Patrick Odour Ochieng v Republic [2020] KECA 23 (KLR) to emphasize that substantial injustice arises where an accused is not informed of his right to counsel in complex and serious charges. 11.The appellant also submitted that the prosecution failed to prove the complainant’s age conclusively, having relied on a duplicate birth certificate which amounted to secondary evidence contrary to sections 64, 65, 66 and 67 of the Evidence Act. He cited Eliud Waweru v Republic [2019] eKLR to posit that only the original birth certificate or a certified copy thereof could suffice. 12.Invoking section 2 of the Sexual Offences Act on the definition of penetration, the appellant submitted that the medical evidence was contradictory and unreliable, noting inconsistencies between the testimonies of PW1, PW2, PW3, PW4 and PW5. He cited Dinkerai Khan Krishna Pandya v Republic [1957] EA 336 and Shantilal M. Ruwala v Republic [1957] EA 570 to emphasize that reliance on contradictory evidence was impermissible. 13.On witnesses, the appellant relied on Daniel Mwasi v Republic - HCCR Appeal No. 458 of 1985, Bernard Kebiba v Republic - Criminal Appeal No. 104 of 2000, and Bukenya & Others v Uganda [1972] EA 549 to argue that failure to call crucial witnesses and lack of corroboration rendered the conviction unsafe. 14.On the defence, the appellant submitted that his alibi defence and explanation of family conflict were cogent and truthful, and that the burden lay on the prosecution to disprove the defence which it did not.He relied on Victor Mwendwa Mulinge v Republic [2014] eKLR to argue that failure to investigate the alibi raised reasonable doubt which should have been resolved in his favour. 15.Finally, the appellant challenged the constitutionality of the mandatory life sentence under section 8(2) of the Sexual Offences Act, contending that it denies judicial discretion to the sentencing court and amounts to inhuman and degrading treatment contrary to article 28 of the Constitution of Kenya. He drew support from comparative jurisprudence, from Vinter and Others v United Kingdom (Applications Nos. 66069/09, 130/10 and 3896/10, ECHR 2013), where the European Court of Human Rights held that indeterminate life sentences without prospect of release or review is degrading and inhuman treatment. He urged this court to adopt a rehabilitative approach, noting that he had reformed and acquired theological certificates. 16.Mr. Omwenga while opposing the appeal, submitted that the appeal is devoid of merit and ought to be dismissed. He argued that this court lacks jurisdiction to entertain new issues not canvassed before the trial court or the first appellate court, particularly those touching on legal representation, failure to call crucial witnesses and constitutionality of mandatory sentences. He relied on the Supreme Court decision in Republic v Julius Kitsao Manyeso [2025] KESC 16 (KLR), where the court held that the Court of Appeal acted ultra vires in determining constitutionality of life sentences without the issue having been raised and determined in the trial and first appellate courts. 17.Counsel submitted that the prosecution case was not marred with contradictions or inconsistencies as claimed, but even if there were, they were minor and immaterial and incapable of weakening the prosecution case, citing C K M v Republic [2019] eKLR in support thereof. The age of the complainant was proved both by her testimony and that of her mother, as well as by the production of a copy of the birth certificate which was not objected to by the appellant. Penetration was similarly established by the complainant’s testimony and corroborated by medical evidence. Counsel further invoked section 124 of the Evidence Act, which permits a conviction in sexual offences on the sole testimony of the victim if the court is satisfied that the victim is truthful, a principle reiterated and affirmed in B K M v Republic [2020] eKLR. 18.Counsel submitted that the mandatory life imprisonment imposed on the appellant was lawful and properly upheld by the first appellate court. It was argued that where Parliament has enacted a legislation, courts are duty-bound to apply it unless declared unconstitutional by the court. Reliance for the submission was placed on C M v Republic [2020] eKLR. 19.This being a second appeal, the jurisdiction this court is circumscribed by section 361 of the Criminal Procedure Code, which limits such jurisdiction to consideration of issues of law only. Again, as held in Karani v Republic [2010] eKLR, this court cannot interfere with concurrent findings of fact by the trial and the first appellate courts unless it is demonstrated that they considered matters they ought not to have considered, failed to consider matters they should have considered, or that their conclusions were plainly wrong. See also Republic v Republic v Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 2 Others (Amicus Curiae) [2024] KESC 34 KLR. 20.From the onset, we wish to point out that this court cannot entertain issues that were neither raised nor determined before the trial and the first appellate courts. We therefore agree with the submissions by the respondent’s counsel that the grounds, touching on legal representation, failure to call crucial witnesses, and constitutionality of mandatory sentences were not canvassed in either of the courts below and therefore fall outside the jurisdiction of this court to entertain at this juncture. See David Njoroge Macharia v Republic [2011] eKLR. 21.Accordingly, we are satisfied that the grounds introducing new issues offend the appellate structure envisaged under article 164(3) of the Constitution and section 361 of the Criminal Procedure Code. 22.Having said as such, we are satisfied that the issues we discern for determination in this appeal are twofold whether the offence was proved as required; and, whether the sentence imposed was lawful and appropriate. 23.It is common ground and both the trial and first appellate courts found that the complainant was eight years old at the time of the incident, relying on her testimony, that of her mother, and a copy of the birth certificate tendered in evidence. The appellant did not object to the production of the birth certificate at trial on the basis that it was a photocopy. He cannot do so now. In Francis Omuroni v Uganda - Criminal Appeal No. 2 of 2000 (Court of Appeal of Uganda), a landmark decision by the Court of Appeal of Uganda established legal precedent for how courts can determine the age of the victim or an accused in criminal trials. It held that age can be legally proved through several credible alternatives including, oral testimony of the victim, victim’s parents or legal guardians, documentary evidence such as birth or baptismal cards or direct visual observation by the court or through application of commonsense. Similarly, in Moses Mwangi v Republic [2016] eKLR, this court held that age is a question of fact and once proved by credible evidence, it need not be disputed unless challenged.We are satisfied just like the two courts below that age of the complainant was properly proved. 24.On penetration, the complainant gave direct testimony which was corroborated by medical evidence showing bruises, cuts, and epithelial cells consistent with recent penetration of her female genital organ. Further, section 124 of the Evidence Act permits conviction on the sole testimony of the victim in sexual offences if the court is satisfied that the victim is truthful. See B K M v Republic [2020] eKLR. Both courts below were satisfied with the complainant’s credibility, and the medical evidence reinforced her account. We find no error in their conclusion that penetration was proved beyond reasonable doubt. On the identity of the perpetrator, it is common ground that the appellant was a step-father to the complainant, so that he was a person well known to the appellant as they resided in the same house. The appellant did not dispute this fact. The totality of the foregoing is that the identity of the perpetrator was never in doubt. 25.Lastly, section 8(2) of the Sexual Offences Act prescribes life imprisonment for defilement of a child aged eleven years or below. The trial court imposed this sentence, and the first appellate court upheld it. The appellant challenges its constitutionality. In Muruatetu & Another v Republic [2017] eKLR, the apex court held that the mandatory nature of death sentences in murder cases was unconstitutional for denying the sentencing court judicial discretion. Taking queue and by parity of reasoning the trial courts began holding that equally the minimum and mandatory sentences prescribed in other statutes and in particular, Sexual Offences Act were equally unconstitutional for removing the same judicial discretion. However, the same court has since clarified and definitely ruled that the statutory and mandatory sentences in the Sexual Offences Act remain valid and that the trial courts no longer have the discretion to go below those statutory minimums and maximums. The court determined that sterner, minimums and maximums were necessary to reflect the gravity of sexual offences and to protect vulnerable victims. See Republic v Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 2 Others (Amicus Curiae) (supra). 26.It is therefore crystal clear that the minimum and mandatory sentences under the Sexual Offences Act are not unconstitutional. Trial courts have no discretion to impose any other sentences other than the statutory sentences in the Sexual Offences Act, unless Parliament amends the law or the Supreme Court of Kenya pronounces itself otherwise. With the foregoing in mind, it is pretty obvious that the appellant’s complaint on this score is devoid of merit. 27.In the ultimate, we find no merit in this appeal which we accordingly dismiss, in its entirety. DATED AND DELIVERED AT KISUMU THIS 10TH DAY OF JULY, 2026.ASIKE-MAKHANDIA…………………………………JUDGE OF APPEALE. C. MWITA…………………………………JUDGE OF APPEALB. ONGAYA…………………………………JUDGE OF APPEALI certify that this is a true copy of the original.Signed.DEPUTY REGISTRAR