https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11899

Odhiambo v Republic (Criminal Appeal E056 of 2025) [2026] KEHC 11899 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KEHC 11899 (KLR) Republic of Kenya In the High Court at Kiambu Criminal Appeal E056 of 2025 KL Kandet, J July 24, 2026 Between Conrade Jacob Odhiambo Appellant and Republic Respondent (Being an appeal from the conviction and sentence of twenty (20) years’ imprisonment imposed by Hon. M.W. Wanjala (PM) on 20th March 2025 in Githunguri Principal Magistrate’s Court Sexual Offences Case No. E005 of 2021) Judgment 1.The Appellant, Conrade Jacob Odhiambo, was charged in Githunguri Principal Magistrate’s Court Criminal Case (Sexual Offences) Case No. E005 of 2021 with offence of defilement contrary to Section 8(1) as read with section 8(4) of the Sexual Offences Act, No 3 of 2006. 2.The particulars are that on the 14th day of April, 2019 at 1300hrs within [Particulars Withheld] in Githunguri sub-county, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of HWN, a child aged 17 years. 3.The Appellant was also charged with the alternative charge of committing an indecent tact with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were on the same date, time and place, he intentionally touched the private parts of the same child aged 17 years with his hands and penis. 4.In count II, the appellant was charged with abuse of position of authority contrary to section 24(1) of the Sexual Offences Act, the particulars being that on 14th April 2019 at about 1300 hours, being a law enforcement officer stationed at [Particulars Withheld], he took advantage of his position and had sexual intercourse with HWN, a minor, within the limits of the said camp 5.The Appellant pleaded not guilty to the charges and the case then proceeded to full trial in which the prosecution called 8 witnesses. At the close of the prosecution’s case, the Court found that the Appellant had a case to answer and placed him on his defence. He then gave an unsworn testimony and called no other witness. By the Judgment delivered on 20/3/2025, the Appellant was convicted on the main charge and sentenced to 20 years imprisonment. 6.Dissatisfied with the decision, the Appellant filed an appeal on 27/05/2025 against both conviction and sentence. The Appellant filed amended grounds of appeal on 9/01/2026 raising the following grounds:i.That the learned trial magistrate erred in law and in fact by convicting and sentencing the appellant to twenty (20) years’ imprisonment without observing that the prosecution failed to prove all the three ingredients of the charge of defilement beyond any reasonable doubt.ii.That the learned trial magistrate erred in law and in fact by failing to consider the appellant’s defence, which was corroborated by DW2 including his contention that he was not at the alleged scene (locus in quo) on 14th April 2019iii.That the learned trial magistrate erred in law and in fact by evaluating the evidence in a perfunctory and generalized manner arriving at an erroneous verdict.iv.That the learned trial magistrate erred in law and in fact by imposing a sentence of twenty (20) years’ imprisonment without giving reasons, and in disregard of section 8(4) of the Sexual Offences Act, which provides for a different minimum sentence. Prosecution Evidence 7.PW1 was the complainant, HWN. She testified that she was 21 years old when she testified and that her birth certificate showed that she was born on 3rd July 2002. She recalled that on 14th April 2019 she was at her mother’s charcoal stall at [Particulars Withheld] when the 2nd accused came and bought charcoal. She knew him as “mwalimu” because he used to offer her holiday tuition. Later, the 1st accused, whom she knew as a police officer stationed at the nearby AP post, came to the stall and remained there talking with her mother. 8.At about 2.00 p.m., PW1 left for her grandmother’s home using a path that passed near the AP post. She stated that before she reached the gate to the AP post, the 1st accused followed her, ordered her into the compound, grabbed her and carried her into his house. 9.According to PW1, the house had two rooms. The 1st accused threatened to handcuff her if she made noise, undressed her, touched her private parts, sucked her breasts and inserted both his fingers and his penis into her vagina. She testified that he later moved her to the living room, placed her on a table, bent her over and again had sexual intercourse with her from behind. She stated that the ordeal lasted about two hours, caused her pain, and that she kept quiet because she feared the accused, who was armed. 10.PW1 further testified that during the incident the 2nd accused entered the house, found her standing behind the door, attempted to touch her, but she pushed him away and he left. 11.After the incident, the 1st accused warned her not to report the matter and directed her to use a different route home. She went home, washed herself and later returned to her mother’s stall. The following day she confided in Njuguna, a family friend, and disclosed that it was “Connie,” the police officer, who had assaulted her. 12.PW1 testified that after her mother learnt of the incident, they reported the matter at [Particulars Withheld] Police Post and she was taken to Githunguri Hospital, where she was examined and treated. She later accompanied police officers to the 1st accused’s house pursuant to a court order, where photographs were taken and the scene documented. She identified her P3 form, birth certificate and photographs taken during the investigations. 13.PW2 testified that she was the complainant’s mother and that the complainant was her second-born child, born on 3rd July 2002. She confirmed that on 14th April 2019 she was at her stall with the complainant until about 2.00 p.m., when the complainant left without informing her where she was going. 14.PW2 stated that the 2nd accused had visited the stall that morning and bought charcoal, and that the 1st accused later came and remained at the stall talking with her. She became concerned when the complainant returned later appearing distressed and crying. She subsequently learnt from Njuguna that the complainant had disclosed having been defiled by the 1st accused. 15.PW2 testified that she later confronted the complainant, who confirmed the report. The following day they went to [Particulars Withheld] Police Post to report the matter and thereafter proceeded to Githunguri Hospital, where the complainant was examined and treated. She also accompanied police officers to the accused’s house during the investigations, where another padlock was placed on the door and photographs were taken after the house was opened. 16.PW3 testified that he was residing at Gilgil, Nakuru County, but in April 2019 he was undertaking farming activities at [Particulars Withheld]. He stated that on 15th April 2019 at about 3.00 p.m., the complainant went to his home crying and appearing distressed. PW3 told the court that the complainant’s family were his neighbours and that they had been family friends for about five years. 17.He testified that when he asked the complainant what had happened, she initially declined to disclose the matter but later informed him that she had been defiled by the 1st accused, a police officer known as “Johnny,” on the previous day. PW3 stated that the complainant also told him that the 1st accused had threatened to kill her if she reported the incident. According to PW3, the complainant requested him not to inform her mother, but later that evening, at about 5.00 p.m., he went to PW2’s stall, informed her of the complaint, and advised her to report the matter to the police and take the complainant for medical examination. He further testified that he knew both accused persons, although he did not know how the 2nd accused was connected to the offence. 18.PW4, Paul Njiha, an Assistant Director – Forensics with IPOA and a gazetted Crime Scene Officer, testified that on 6th June 2019 he visited the house occupied by the 1st accused at [Particulars Withheld] AP Post to document the alleged scene of the offence. The house was locked with two padlocks, one belonging to the suspect and the other to the complainant’s mother. 19.PW4 observed that the house had two rooms, one containing utensils and tables and the other a mattress on the floor. He also saw police uniform items inside the house. He stated that an earlier IPOA report had described additional items that were missing during his visit, leading him to conclude that the scene had been interfered with. He took photographs of the house and produced the photographs, certificate of photography and his report as exhibits. 20.PW5, PC Johnstone Maiyo, testified that he was attached to Githunguri Police Station. He stated that on 16th April 2019, the complainant and her mother reported that the complainant had been defiled at [Particulars Withheld] AP Post on 14th April 2019 by a person known to her. He escorted the complainant for medical examination, issued her with a P3 form, recorded statements from the complainant and other witnesses, and visited [Particulars Withheld] during the investigations. PW5 further testified that the 1st accused later surrendered himself and was arrested, and that he confirmed the complainant’s age to be 16 years. He produced the P3 form as an exhibit. 21.PW6, CPL Josephat Kusa, testified that he was the officer in charge of [Particulars Withheld] AP Post and that the 1st accused was stationed there at the material time. He stated that on 16th April 2019, PW2 reported at the AP post that a police officer had defiled the complainant on 14th April 2019. PW6 testified that PC Koech was on leave, and that the 1st accused was the only officer who had been at the camp on the date of the alleged incident. He advised PW2 to report the matter at Githunguri Police Station. 22.PW6 further stated that after receiving instructions from his superior, he informed the 1st accused that he was required to report and explain the allegations, but the 1st accused later left the camp and did not return that day. He also testified that the complainant informed him that it was the 1st accused who had defiled her, and that he was present when investigators later visited and documented the accused’s house. 23.PW7, Hilda Wangare, a Clinical Officer then attached to Githunguri Health Centre, testified that she examined the complainant on 15th April 2019, the day after the alleged incident. The complainant reported that she had been defiled on 14th April 2019 by a police officer at [Particulars Withheld] AP Post and complained of pain in the genital area. 24.PW7 testified that the complainant had already bathed and changed clothes before the examination. On examination, she noted lacerations on the labia minora and a broken hymen with bloody discharge. Laboratory tests showed no spermatozoa, pregnancy, HIV or syphilis, although pus cells were present. PW7 explained that the absence of spermatozoa could have been due to the complainant having bathed after the incident. 25.She treated the complainant with emergency contraception, HIV post-exposure prophylaxis and antibiotics, completed the treatment notes and P3 form, and concluded that the findings were consistent with defilement/penetration. 26.PW8, Emma Mureithi, a Senior Investigating Officer at IPOA, testified that IPOA commenced investigations suo moto after learning of the allegations through the media and that she was appointed the lead investigator in May 2019. She reviewed the complainant’s statement, witness statements, the birth certificate, medical documents, and police records relating to the 1st accused’s absence from [Particulars Withheld] AP Post. 27.PW8 stated that she visited [Particulars Withheld] with her team, the complainant, her mother, PW5, and PW6, where the complainant pointed out the 1st accused’s house and narrated how she had allegedly been taken into the house and defiled. As they did not have a search warrant, they did not enter the house during the first visit. 28.She testified that IPOA subsequently obtained a court order (Application No. 2379 of 2019) to access the house and returned on 10th June 2019 with police officers and IPOA forensic personnel. The complainant again identified the house, which was opened and documented. 29.PW8 further stated that IPOA attempted to summon the 1st accused through the DIG-AP on several occasions, but he did not honour the summons. The 2nd accused was contacted but did not avail himself for interview. After completing investigations, IPOA prepared a report recommending that both accused persons be charged with defilement and conspiracy to defile, and that alternative charges be considered against the 1st accused for indecent act with a child, sexual assault, and abuse of position of authority. The amended IPOA report was produced as PEX18. Defence Case 30.The appellant gave an unsworn statement and did not call any witnesses. He denied the charge and challenged the prosecution evidence, particularly the medical evidence. He contended that the lacerations on the complainant’s labia minora, the bloody discharge, and the tearing of the hymen could have been caused by factors other than defilement and that the absence of spermatozoa weakened the prosecution case. 31.He further argued that the complainant’s assertion that she had bathed twice after the alleged incident was inconsistent with the medical finding of a bloody discharge on the high vaginal swab. He maintained that the doctor’s conclusion was based largely on the history given by the complainant rather than definitive medical findings and that the P3 form did not conclusively prove defilement. 32.On identification, the appellant stated that he was a police officer well known in the area, and that PW1 and PW2 were able to identify him because PW2 was acquainted with his wife. He also questioned the complainant’s age, pointing out that PW1 and PW2 had referred to her as 15 years old, while the birth certificate produced in court indicated that she was born on 3rd July 2002. 33.After the trial, by the Judgment delivered on 20/03/2025, the Appellant was convicted on the main charge of defilement and sentenced sentenced to twenty (20) years’ imprisonment. Hearing of the Appeal 34.The Appeal was canvassed by way of written Submissions. The Appellant filed Submissions dated 8th January 2026. The Respondent did not supply any. Appellant’s Submissions 35.The appellant submitted that the prosecution failed to prove the offence of defilement beyond reasonable doubt. He argued that the essential ingredients of the offence, namely the age of the complainant, proof of penetration, and positive identification of the perpetrator, were not satisfactorily established by the evidence on record. 36.The appellant further submitted that he was not at the alleged locus in quo on 14th April 2019 and faulted the trial court for failing to properly consider his defence. He also contended that the prosecution evidence was not subjected to a thorough and exhaustive evaluation before the court arrived at the conviction. 37.On sentence, the appellant argued that the sentence of 20 years’ imprisonment was unlawful and excessive, maintaining that under section 8(4) of the Sexual Offences Act the prescribed minimum sentence is 15 years’ imprisonment. 38.He relied on Protus Buliba Shikuku v Attorney General [2012] eKLR, Abuto v Republic, Criminal Appeal No. E010 of 2022 [2023] KEHC 19271 (KLR), and Ndundi Mwambire Koi v Republic [2018] eKLR in support of his arguments on proof of the offence, evaluation of evidence, and sentencing. Analysis and Determination 39.As a first appellate court, this Court is under a duty to re-evaluate the evidence adduced before the trial court and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. This duty was stated in Okeno v Republic [1972] EA 32. 40.The issues that therefore remain for determination in this matter are the following:i.Whether the defilement charge against the Appellant was proved beyond reasonable doubt.ii.Whether the sentence of twenty (20) years’ imprisonment imposed against the appellant was justified. 41.I now proceed to analyze and determine the said issues Whether the charge was proved case beyond reasonable doubt 42.Section 8(1) and 8(4) of the Sexual Offences Act under which the Appellant was charged provide as follows, respectively:“8.8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.”8.4)A person who commits an offence of defilement with a child aged between sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 43.To establish the offence of defilement, the prosecution must prove beyond reasonable doubt the age of the complainant, penetration, and the identity of the perpetrator. See Fappyton Mutuku Ngui v Republic [2014] eKLR and Martin Charo v Republic [2016] eKLR. Proof of Age 44.PW1 produced a birth certificate showing that she was born on 3rd July 2002, and PW2 confirmed the same date of birth. The offence occurred on 14th April 2019, making the complainant 16 years old at the material time. 45.The appellant argued that PW1 and PW2 referred to the complainant as being 15 years old, thereby creating doubt as to her age. The Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR held that a birth certificate is the best proof of age, and where such documentary evidence is available, minor discrepancies in oral testimony do not necessarily negate proof of age. 46.I am therefore satisfied that the complainant’s age was proved beyond reasonable doubt. Proof of Penetration 47.The appellant challenged the medical evidence and submitted that the absence of spermatozoa weakened the prosecution case and that the injuries noted by PW7 could have arisen from other causes. 48.The Court of Appeal has indeed cautioned that medical evidence must be carefully evaluated. In Kassim Ali v Republic [2006] eKLR, the Court held that a conviction cannot be based on speculation and that the evidence must establish penetration beyond reasonable doubt. 49.However, the same Court has also held that penetration may be proved by the testimony of the complainant even in the absence of spermatozoa. In Mark Oiruri Mose v Republic [2013] eKLR, the Court stated that the absence of spermatozoa is not fatal to a charge of defilement and that medical evidence is primarily corroborative. 50.In the present case, PW1 gave a detailed account of the assault. Her evidence was corroborated by PW7, who examined her, found lacerations on the labia minora, a broken hymen, and bloody vaginal discharge. PW7 also explained that the complainant had bathed and changed clothes before the examination, which could account for the absence of spermatozoa. 51.I find that the medical findings were consistent with the complainant’s account and that penetration was proved beyond reasonable doubt. Identity of the Perpetrator 52.The appellant contended that he was a police officer well known in the area and that the complainant’s identification of him could have been influenced by that familiarity. The Court of Appeal in Wamunga v Republic [1989] KLR 424 warned that evidence of visual identification must be examined with the greatest care, especially where the conditions favoring a correct identification are difficult. Equally, in Anjononi & Others v Republic [1980] KLR 59, the Court held that recognition is generally more reliable than identification of a stranger, though the court must still examine the circumstances carefully. 53.In this case, PW1 knew the appellant beforehand as a police officer stationed at [Particulars Withheld] AP Post and had interacted with him at her mother’s stall shortly before the incident. The assault allegedly occurred in broad daylight and lasted for a considerable period. 54.The complainant made an early report to PW3, identifying the assailant as “Johnny,” the police officer. That first report was made before any investigations had commenced and lends credibility to her testimony. 55.Further, PW6 testified that PC Koech was on leave and that the appellant was the only officer present at the camp on the material date. The complainant also identified the appellant’s house during the IPOA investigations and the subsequent court-authorized scene visit. 56.Having considered the caution in Wamunga v Republic and the principle in Anjononi, I am satisfied that this was a case of reliable recognition and that the possibility of mistaken identity was excluded. Whether the defence raised a reasonable doubt 57.The appellant gave an unsworn statement and did not call any witnesses. He maintained that he was not at the scene and that the prosecution evidence contained contradictions. 58.The Court of Appeal in Kiarie v Republic [1984] KLR 739 held that an accused person does not bear the burden of proving his innocence and that a defence need only raise a reasonable doubt. 59.I have considered the appellant’s defence against the prosecution evidence. The claim that he was not at the scene was not supported by any evidence and was contradicted by PW6, who confirmed that the appellant was stationed at the camp and was the only officer present on the material date. 60.The alleged contradictions regarding the complainant’s age and the medical findings were not material and did not go to the root of the prosecution case. In Twehangane Alfred v Uganda, Criminal Appeal No. 139 of 2001, the Court held that minor inconsistencies are to be expected in truthful testimony and do not necessarily render the evidence unreliable. 61.I therefore find that the defence did not raise a reasonable doubt and that the prosecution proved the charge of defilement beyond reasonable doubt. Whether the sentence of twenty (20) years’ imprisonment imposed against the Appellant was justified 62.The appellant was convicted of the offence of defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act. The applicable penalty provision is section 8(4), which provides that a person who commits an offence of defilement with a child aged between sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 63.The appellant submitted that the sentence of twenty (20) years’ imprisonment was unlawful and excessive, contending that the trial court ought to have imposed the statutory minimum sentence of fifteen years. 64.It is now settled that sentencing is a matter that lies within the discretion of the trial court, and an appellate court will only interfere with sentence where it is shown that the trial court acted on a wrong principle, overlooked a material factor, considered an irrelevant factor, or imposed a sentence that is manifestly excessive in the circumstances of the case. The principles were stated in Wanjema v Republic [1971] EA 493 and have been consistently applied by the superior courts. 65.The Court of Appeal in Dismas Wafula Kilwake v Republic [2018] eKLR held that although the mandatory nature of minimum sentences under the Sexual Offences Act has been questioned, the court must still impose a sentence that is proportionate to the gravity of the offence and the circumstances of the offender. 66.I have considered the circumstances under which the offence was committed. The appellant was a law enforcement officer stationed at [Particulars Withheld] AP Post, and the offence was committed within the police camp where he exercised authority and control. The evidence of PW1 was that the appellant threatened to handcuff her if she made noise and later warned her not to report the matter. The abuse of a position of public trust and authority is a significant aggravating factor. 67.I have also considered that the complainant was a 16-year-old child, that the assault was prolonged, and that the appellant used the seclusion of the police camp to facilitate the offence. Those circumstances justified a sentence above the statutory minimum. 68.The record further shows that the trial court considered the appellant’s mitigation before imposing sentence. There is no indication that the learned trial magistrate took into account any irrelevant factor or failed to consider any material factor. 69.In the circumstances of this case, a sentence of twenty (20) years’ imprisonment cannot be said to be harsh, excessive, or unlawful. It was within the statutory range prescribed under section 8(4) of the Sexual Offences Act and was proportionate to the seriousness of the offence and the aggravating circumstances disclosed by the evidence. 70.I therefore find no basis for interfering with the sentence imposed by the trial court. Disposition 71.The appeal against conviction and sentence is hereby dismissed. 72.The conviction for defilement contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act is hereby upheld. 73.The sentence of twenty (20) years’ imprisonment imposed by the trial court is hereby affirmed. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 24TH DAY OF JULY, 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM.KENNEDY KANDETJUDGEIn The Presence Of:Appellant Present From Kamiti Max PrisonMs Muriu For The StateCourt Assistant: Jael Nosim