Ayieng v Republic (Criminal Appeal E062 of 2024) [2026] KEHC 4864 (KLR) (17 April 2026) (Judgment)

Ayieng v Republic (Criminal Appeal E062 of 2024) [2026] KEHC 4864 (KLR) (17 April 2026) (Judgment) Neutral citation: [2026] KEHC 4864 (KLR) Republic of Kenya In the High Court at Siaya Criminal Appeal E062 of 2024 DK Kemei, J April 17, 2026 Between Paul Omondi Ayieng Appellant and Republic Respondent (Being an appeal against the judgement of Hon. Christabel Maiyo (RM) in Siaya CMCR S.O E050 of 2024 dated 14th November 2024) Judgment 1.The Appellant herein Paul Omondi Ayieng was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars are that on the 22nd day of August, 2024, in Siaya Sub-County within Siaya County intentionally and unlawfully caused his penis to penetrate the vagina of FM a child aged 8 years. 2.In the alternative the Appellant faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. The particulars are that on the 22nd day of August, 2024, in Siaya Sub-County within Siaya County intentionally caused his penis to rub the vagina of FM a child aged 8 years. 3.The Appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called four (4) witnesses. At the close of the prosecution’s case, the court found that the Appellant had a case to answer and put him on his defense under section 211 of the Criminal Procedure Code. He tendered a sworn testimony wherein he denied the charges and maintained that he had been frame up by the family of the complainant. 4.By judgment delivered on 14th November 2024, the Appellant was convicted and sentenced to serve life imprisonment on the main charge of defilement contrary to section 8(1) and 8(20 of the Sexual Offences Act No. 3 of 2006. 5.Being dissatisfied with the decision of the trial court, the Appellant instituted this appeal against the conviction and sentence on five (5) grounds of appeal on the face of his petition of appeal dated 10th December, 2024 as follows:i)That the trial court erred in law and fact in failing to find that the prosecution relied on inconclusive medical findings.ii)That the trial court erred in law and fact in not properly evaluating the evidence of identification by recognition.iv)That the trial court erred in law and fact in not considering the provisions of Section 216 and 329 of the Criminal Procedure Code (C.P.C.).v)That the trial court erred in law and fact in failing to find that the mandatory nature of the sentence under Section 8(2) of the Sexual Offences Act No. 3 of 2006 is unconstitutional and not warranted.vi)That the trial court erred in law and fact in finding that the sentence meted out was excessive and manifestly harsh in view of the circumstances. 6.Being a first-time appeal, the Court’s duty is to consider the evidence presented to the trial Court and subject it to an independent analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court will also take into account the fact that it neither heard nor saw the witnesses. In Okeno – VS – Republic (1972) EA 32, it was held that;“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. 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 findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.’’ 7.The record of the trial court is as follows; 8.FM (PW1) a Grade One pupil at [Particulars Withheld] Primary School, testified that she recalled that the previous month, an individual she identified as "Omondi"—the Appellant herein lured her to a bathroom. That despite her resistance, the Appellant allegedly removed her clothes and proceeded to have sexual intercourse with her, an act she described as painful and during which he covered her mouth to prevent her from screaming. She stated that her mother-(Pw2) was inside the house during the incident, and that she did not initially report the ordeal because she had been silenced. Following the encounter, she informed her sibling, V, about what had transpired. Consequently, her mother-(Pw2) took her to hospital for treatment and later to the police station to record a statement.During cross-examination, she maintained that they were alone with the Appellant in the bathroom and that she witnessed the Appellant removing his clothes. 9.LAO (PW2), a tailor and business lady residing in [Particulars Withheld] village testified afresh that on 22nd August, 2024, her daughter FM.(Pw1) reported that the Appellant, known as Omondi, had touched her private parts. That this information was corroborated by A's other daughter, V, who revealed that the Appellant had taken FM to a bathroom, defiled her, and given her ten shillings while threatening to kill her if she spoke. That upon confronting FM, the child confessed that Omondi had inserted his penis into her vagina and repeated the threats against her life. She further stated that the Appellant was working nearby, tilling the plot where she resides. That she immediately took FM to Ratuoro Dispensary, where a medical examination revealed sperms in the child's private area and subsequently she reported the matter to the police. She later took the minor to Siaya Referral Hospital for further examination and treatment, noting that the child had not bathed before the medical checkup. She produced FM’s birth certificate which indicated that the child was born in 2016, as prosecution exhibit number one (P-exhibit 1).On cross-examination, she stated inter alia; that the complainant informed her that the Appellant had covered her mouth; that the urinalysis test revealed bloodstains; that it was V who informed her that the complainant claimed to have been threatened with death by the Appellant if she revealed the incident. 10.No. 25xxx PC Victor Lagat (PW3) attached to Ratuoro Police Post testified that on 23rd, August 2024, he received a report from LA-(Pw2) regarding the defilement of her daughter, FM (Pw1). That upon interrogation, the minor recounted that the Appellant, who was working nearby, had lured her to a bathroom with ten shillings, removed her clothes, and defiled her. That he recorded the report in the Occurrence Book and directed the mother to seek medical attention at Ratuoro Dispensary, from where they were referred to Siaya County Referral Hospital. The officer visited the scene but found no forensic evidence; however, he later received information that the Appellant had returned to the location. He proceeded to the scene, where he arrested the Appellant to protect him from a gathering mob and subsequently escorted him to the police station. During the investigation, he recorded statements from the witnesses and noted that the minor was emotional but vivid in her narration of the ordeal. He clarified that he arrested the Appellant based on the report provided by the child and her mother. 11.Eunita Nyakundi (PW4,) a clinical officer at Siaya County Referral Hospital produced several medical documents as exhibits, including the P3 form, the Post-Rape Care (PRC) form, a lab result form, and an outpatient booklet from Ratuoro Health Center. That the medical history indicated that the minor had been defiled at approximately 9:00 AM by a person who took her to a bathroom and threatened her into silence. That the physical examination of the genitalia and laboratory tests revealed partial vaginal penetration. That upon physical examination, she observed that the minor had a whitish, foul-smelling vaginal discharge and bruises on the labia minora. Laboratory tests on High Vaginal Swabs revealed the presence of red blood cells and epithelial cells, though no sperm cells were seen. She concluded that the findings, specifically the bruises and discharge, were consistent with partial vaginal penetration.During cross-examination, she maintained her certainty regarding the partial penetration but clarified that she relied on the history provided by the minor and could not verify if she had been coached. 12.The trial court later ruled that the prosecution had established a prima facie case and thus placed the Appellant on his defence and who opted to tender a sworn testimony. Paul Omondi Ayieng (DW1), testified that he is a construction worker residing at Nyandorera. He denied committing the alleged offence. He claimed that he was falsely accused, stating that at the time of the incident, he was occupied with arranging tiles with his uncle at a rental plot in Kadenge. He asserted that he had no prior knowledge of the complainant or her mother before the incident, despite them residing on the same plot where he was working. 13.When considering the evidence on record, the learned trial Magistrate observed that the defense brought by the Appellant did not in any way cast doubt on the prosecution’s case and convicted him under section 215 of the Criminal Procedure Code and which precipitated to this appeal. 14.The appeal was canvassed by way of written submissions. Both parties duly complied. 15.I have considered the evidence tendered before the trial court and the submissions filed herein. I find the issue for determination is whether the Respondent proved its case against the Appellant beyond any reasonable doubt. 16.The burden of proof in all criminal trials is always on the prosecution to discharge and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 452. 17.The Respondent herein was under a duty to prove the three essential ingredients under the offence of defilement namely; the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proved in order for a conviction to be sustained. (See George Opondo Olunga vs. Republic [2016] eKLR.)“Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: -(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(3)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.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if -(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees. 18.As regards the age of the victim, the same is quite crucial since the sentence to be imposed will depend on the same. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” (emphasis added).As noted above, the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. 19.Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. There are various ways which can be used to prove a victim’s age as held in Mwalengo Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR) where the court stated as follows:“……..the question of proof of age has finally been settled by a recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof” It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...” 20.In the present case, the prosecution fully discharged its burden of proving the complainant’s age, which is a critical ingredient under Section 8 of the Sexual Offences Act. Regarding the ingredient of age, the prosecution sufficiently proved that the complainant was a child aged eight years through the evidence of PW2, who produced a birth certificate (PEXB-1) indicating the minor was born on 28/2/2016. In Francis Omuroni v Uganda, Criminal Appeal No. 2 of 2000, the Court of Appeal of Uganda (often applied in Kenyan courts) held that while medical evidence is useful, it is not the only way to prove age; the production of a birth certificate remains the primary and most conclusive method. Since the age of the victim determines the sentencing bracket under Section 8(2) of the Sexual Offences Act No. 3 of 2006, the production of the certificate established this ingredient beyond reasonable doubt. 21.Additionally, the mother’s oral testimony on the child’s age provides strong corroboration. In Francis Omuroni v Uganda (Criminal Appeal No. 2 of 2000) (a decision repeatedly cited with approval in Kenyan jurisprudence) the court held that a parent’s testimony alone is sufficient to establish age, as parents are presumed to know their children’s ages. This position has been reinforced locally in cases such as Kaingu Elias Kasomo v Republic [2014] eKLR and Hadson Ali Mwachongo v Republic [2016] eKLR, which recognize parental testimony as both credible and reliable, even in the absence of documentary evidence. 22.The evidence tendered on age is uniform and unchallenged. The PRC Form, P3 Form, Birth certificate and all testimonies consistently place the child around eight years of age at the material time which is within the age bracket of 11 years for purposes of section 8(1) and 8(2) of the Sexual Offences Act. No contrary evidence was offered by the defence. In line with the authorities above, including Republic v Dennis Mutuku Nzomo [2019] eKLR, the prosecution satisfied the requirement of proving age beyond reasonable doubt. The trial court therefore correctly found that the complainant was eight years old, bringing the charge within Section 8(2) of the Sexual Offences Act. I find the ingredient of the age of the complainant was sufficiently proved beyond any reasonable doubt. 23.As regards the aspect of penetration, Section 2 of the Sexual offences Act No. 3 of 200 defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person. In most cases, the ingredient of penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. 24.Section 124 of the Evidence Act, Cap 80 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, 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.” 25.Also, in the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”In the present case, I find that the prosecution proved penetration to the required legal standard through clear, consistent and medically corroborated evidence. The complainant gave a detailed account of how the Appellant removed her dress and panties and penetrated her with his penis, which satisfies the statutory definition of penetration under Section 2 of the Sexual Offences Act, requiring only the slightest intrusion. Her account was immediately reported to PW2 and was consistent throughout. The same was confirmed by the clinical officer (PW4).Again, the Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. 26.In this case, the prosecution relied on the unsworn testimony of the minor describing the insertion of a penis into her vagina, which was corroborated by the medical evidence of PW4. The Clinical Officer noted bruises on the labia minora and concluded that there was partial vaginal penetration. This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006, where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupturing the hymen. 27.Furthermore, Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case, it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. The defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. 28.As regards the aspect of identification or participation of the Appellant, I find that the identification of the Appellant was firm, consistent, and free from any possibility of mistake. The complainant knew the Appellant whom she referred to as Omondi prior to the incident and positively recognized him as the perpetrator. This was therefore a case of recognition rather than identification of a stranger, which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Others v Republic [1980] eKLR, the Court of Appeal held that recognition is “more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the assailant.” The complainant’s evidence was direct, unwavering, and supported by the circumstances of close physical proximity during the commission of the offence, which left no room for doubt. 29.The environmental circumstances also favoured accurate identification. The incident occurred in a setting where the complainant had sufficient opportunity to see and recognize the Appellant. The Court of Appeal in Wamunga v Republic [1989] eKLR emphasized that courts must evaluate lighting, distance, and duration of encounter when assessing identification. Here, the interaction was prolonged, intimate, and involved direct contact, making misidentification practically impossible. The complainant’s emotional distress immediately after the incident further supports the reliability of her identification as she described the perpetrator by name to her sister Viola and her mother (PW2) and PW3 without hesitation. 30.Finally, on identification, the complainant recognized the Appellant as "Omondi," a person familiar to her as a fundi working at the plot where her family resided and that the offence occurred during the day. In the landmark case of R v Turnbull & Others [1977] QB 224, the court established guidelines for identification evidence, stating that recognition of a known person carries more weight than the identification of a stranger. Although the Appellant raised an alibi defence, the trial court was justified in rejecting it because he admitted residing within the same plot as the complainant’s parents. In Uganda v Wabwire Benson, HCT-09-CSC-0259-2016, it was held that a defence of alibi cannot stand where the accused is positively placed at the scene by the prosecution evidence. 31.Furthermore, the Appellant’s own conduct reinforced the prosecution case on identification. His presence with the complainant shortly before the incident, his inconsistent explanations, and the absence of any credible contrary account undermine the defense and strengthen the recognition evidence. Courts have held that where recognition is supported by the conduct of the accused and surrounding circumstances, the evidence is exceptionally strong. In Simiyu & Another v Republic [2005] eKLR, the Court of Appeal held that prompt and consistent reporting of the assailant’s identity enhances evidential reliability. In this case, the complainant reported the Appellant’s name immediately to her sister Viola and then to her mother (PW2) and later the investigating officer (PW3) who confirmed the consistency of her report. There was also no evidence of animosity between the Appellant and the complainant as well as her parents and further there was no issue of mistaken identity. The identification was therefore accurate, reliable, and proved beyond reasonable doubt. 32.Finally, the Appellant's grievance regarding the trial court's alleged failure to consider Section 216 and 329 of the Criminal Procedure Code (C.P.C.) is unsubstantiated. Section 329 mandates that a judgment must specify the offence, the evidence, and the reasons for the conviction. The record of the trial court reveals a detailed analysis of the three ingredients of defilement as well as the trial court’s reasons for arriving at the guilt of the Appellant. This thus demonstrates full compliance. Furthermore, under Section 216, the court retains discretion to summon witnesses, but it was not necessary here as the prosecution provided sufficient evidence in support of the charge. 33.Going by the above evidence, it is clear that the cumulative and conjunctive elements in the charge of defilement preferred against the Appellant were all proved and that the evidence was consistent and corroborative, hence the same was sufficient to convict the Appellant for the offence charged. It is highly unlikely that the parents of the complainant could offer their young and vulnerable daughter to act as a victim of sexual assault so as to settle scores with the Appellant over an alleged dispute. The finding on conviction by the trial court was therefore sound and must be upheld. 34.On whether the sentence imposed on the Appellant was appropriate, it is trite that sentencing is at the discretion of the trial court. In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence: -“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”Again, the Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” 35.Again, in the case of Republic v Elijah Munee Ndundu and another [1978] eKLR the court while considering the purpose of penalties in criminal cases observed: - “Reformation is a fair enough consideration but not the main object of penalties in criminal cases. One of the aims of punishment is to deter the individual offender and also to deter others who may be tempted to commit similar offences (see Samuel v The Republic [1968] EA 1). It is an important function of any State to protect its citizens. This involves protection of society from crime and criminals.” The court went further to observe “In considering whether to impose custodial sentences, and particularly long terms of imprisonment, one consideration that plays an important role is the need to remove the offender from society. However, as stated by Lord Denning before the Royal Commission on Capital Punishment, the punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.” 36.As regards the propriety of the life sentence, the trial court's imposition of life imprisonment was proper and in accordance with Section 8(2) of the Sexual Offences Act No. 3 of 2006, which mandates a minimum sentence of life imprisonment for defilement of a child aged eleven years or below. While the Appellant contends that the mandatory nature of the sentence is unconstitutional, the recent Supreme Court advisory in Republic v Joshua Gichuki Mwangi, Petition No. E018 of 2023 affirmed that mandatory minimum sentences prescribed by statute are binding unless specifically declared unconstitutional by a court of competent jurisdiction. Consequently, the trial court correctly applied the law as it stands, and the sentence was neither excessive nor manifestly harsh given the gravity of defiling an eight-year-old child. 37.As regards the procedure followed during sentencing, the court considered all the mitigating circumstances. The court also considered the aggravating factors in which the victim was a child of tender years and has suffered trauma. It was therefore upon the Appellant to demonstrate that there existed one of the above listed reasons for this court to interfere with the sentence. Section 8(2) of the Sexual Offences Act No. 3 of 2006 provides that the sentence for the offence of defilement to imprisonment for life. I find the sentence of life imprisonment was not only lawful but warranted in the circumstances and hence I see no reason to interfere with it. 38.In the result, it is my finding that the Appellant’s appeal lacks merit. The same is dismissed. The conviction and sentence of the trial court is upheld. DATED AND DELIVERED AT SIAYA THIS 17TH DAY OF APRIl 2026.D.KEMEIJUDGEIn the presence:Paul Omondi Oyieng.............Appellant.Soita……....................for Respondent.Maurine.........................Court Assistant.