Oyoo v Republic (Appeal E087 of 2023) [2026] KECA 1625 (KLR) (31 July 2026) (Judgment)

Oyoo v Republic (Appeal E087 of 2023) [2026] KECA 1625 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1625 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Appeal E087 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Erick Omondi Oyoo Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Homabay (Kiarie, J.) dated 30th March 2022 in HCCRA No. E029 of 2021) Judgment 1.Eric Omondi Oyoo, (the appellant), has brought this appeal against the judgment of the High Court of Kenya at Homa Bay (Kiarie, J.) (the first appellate court), dated 30th March 2022 which dismissed his appeal in High Court Criminal Appel No. E029 of 2021.The appellant had been charged before the Principal Magistrate’s Court at Mbita, (the trial court), with defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offences Act, in Sexual Offence Case No. E006 of 2021. 2.The particulars of the offence before the trial court alleged that on 14th October, 2020 at [particulars withheld] the appellant defiled [particulars withheld], the complainant, a child aged 9 years. The appellant was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the same Act. Particulars being that on the same date and place, he intentionally and unlawfully committed an indecent act by touching the breasts of the complainant, a child aged 9 years. The appellant denied the charges. 3.The complainant testified that on the material day, the appellant, a neighbour and a person well known to her, called her to his house and defiled her in the presence of his wife, Florence Akoth, who assisted the appellant in committing the act by holding the complainant’s legs apart. During the incident, FJW, (PW3) went to the house where he found the complainant and took her to the Beach Management office. 4.EOO, (PW2), the area Assistant Chief, received a report from the Beach manager concerning a case of defilement. Together with police officers from Mbita Police Station, PW2 went to the Beach management office where he found the appellant and Florence Akoth, who had been apprehended by the members of the public in connection with the defilement and attempted suicide by Florecne Akoth. police officers rearrested the appellant 5.On his part, Frederick Juma Wanyende, (PW3), the Beach manager, received information from a young girl about attempted suicide. The girl led PW3 and other members of the public to the appellant’s house where they found the appellant, Florence Akoth and the complainant. The complainant informed PW3 that the appellant had defiled her. PW3 called some women to escort the complainant to hospital while the appellant was apprehended. 6.Herbert Ochieng Ouma, (PW4) the clinical officer examined the complainant and noted bleeding bruises on labia minora; freshly torn hymen and whitish discharge on the vulva which he opined was consistent with recent penetration. PW4 also examined the appellant and found bruises on the lower part of his penis. 7.On her part, Police Constable Zilpha Vusha, (PW5) and the investigating officer, received a report of the complainant’s defilement by the appellant after she was tricked by Florence Akoth into the appellant’s house only for the appellant to defile the complainant. The complainant screamed prompting other children who were outside the house to alert the Beach officials who went and found the complainant in the appellant’s house. Although PW5 was not able to get the complainant's Birth certificate, the complainant was said to be nine years old, while CAO, (PW6) and the complainant's mother, stated that the complainant was born on 8th November 2012. 8.In his sworn defence, the appellant denied defiling the complainant stating that after returning from fishing, Beach officials summoned him to their office and escorted him to the Mbita Police station where he was arrested. He called Florence Akoth, his wife (DW2) who testified that Beach officials came to their home and escorted both of them to the Beach office, where they were subsequently arrested by police officers. 9.Upon considering the evidence, the trial court found that the prosecution had proved the case against the appellant beyond reasonable doubt, convicted the appellant on the main count and sentenced him to life imprisonment. 10.The appellant was aggrieved and sentence and filed an appeal before the first appellate court raising several grounds contending that: the sentence of life imprisonment imposed against him was harsh, excessive and unconstitutional; the trial court failed to consider the existing grudge between him and PW2 and PW3; PW5 did not conduct proper investigations; the case against him was actuated by malice arising from personal, political and tribal differences; the complainant's age and penetration were not proved; the prosecution's case was riddled with contradictions and inconsistencies; crucial witnesses were not called and his defence was improperly rejected. Upon the first appellate court re-evaluating the evidence, it dismissed the appeal, upheld the conviction and affirmed the sentence imposed by the trial court. 11.The appellant was once again dissatisfied and has lodged this second appeal and raised eight (8) grounds faulting the first appellate court in: failing to find that his constitutional right to legal representation guaranteed under Article 50(2)(g)(h) of the Constitution was violated; denied the appellant an opportunity to address the trial court by way of final submissions; failing to find that the complainant's age and penetration were not proved; convicting the appellant on the basis of contradictory, inconsistent and uncorroborated evidence; imposing a sentence that is harsh and excessive; and that not taking into account the period spent in pre-trial custody pursuant to section 333(2) of the Criminal Procedure Code. 12.This appeal was heard by way of written submissions. At plenary, the appellant who represented himself, appeared from Prison through video link, while Ms. Onyikwa, learned prosecution counsel, was present for the respondent. Both parties relied entirely on their written submissions. 13.The appellant submitted, appreciating that this court’s jurisdiction in a second appeal is confined to matters of law only pursuant to section 361(1) of the Criminal Procedure Code and cited the case of Chemagong v Republic ]1984] KECA 64 (KLR) for that submission. 14.The appellant submitted that his constitutional right to be represented by an advocate and to be informed of this right as well as the right to legal representation by counsel at State expense respectively, guaranteed under Article 50(2)(g) and (h) of the Constitution were violated and relied on the case of Albanus Mwasia Mutua v Republic [2006] KECA 346(KLR), for the proposition that violation of a constitutional right results in an acquittal irrespective of the nature and strength of the evidence adduced. The appellant argued, therefore, that this omission rendered the trial unfair and warranted the quashing of his conviction, and Republic v Karisa Chengo & 2 Others [2017] eKLR; William Okungu Arunda (formerly Patrick Oduor Ochieng) v Republic [2022] KECA 23 (KLR) and Njuguna v Republic [2007] 2 EA 370 for similar submissions. 15.The appellant again submitted that the prosecution did not prove the age of the complainant; that the complainant gave inconsistent evidence regarding her age, no birth certificate or age assessment report was produced and that the investigating officer simply stated that he could obtain the complainant’s Birth certificate and that PW6, the complainant’s mother, only mentioned the complainant’s date of birth. The appellant cited the case of Allfayo Gombe Okello v Republic, [2010] KECA 319 (KLR) for the proposition that the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. 16.The appellant went on to submit that the prosecution case was riddled with material contradictions and inconsistencies in the testimonies of the complainant, PW2 and PW3 which were not addressed by the trial court but which created reasonable doubt and which ought to have been resolved in his favour; that the complainant's evidence was not corroborated thus, his conviction was unsafe, and relied on the case of Benard Kibiba v Republic [2000] eKLR, for that proposition. 17.The appellant again submitted that the medical evidence did not prove penetration beyond reasonable doubt and questioned the qualifications of PW4; that a torn hymen and whitish discharge did not conclusively prove penetration; that several persons, including children, who were allegedly present during the incident, were not called to testify. 18.On sentence, the appellant argued that the sentence of life imprisonment is harsh and excessive since he is a first offender. He urged the Court to either remit the matter for re-sentencing or impose an appropriate sentence, while taking into account the period he spent in pre-trial custody as required by section 333(2) of the Criminal Procedure Code and reiterated in the case of Ahmed Abolfathi Mohammed & Another v Republic [2018] eKLR. 19.In opposition, Ms. Onyinkwa submitted that the appellant’s right to legal representation guaranteed under Article 50(2)(g) and (h) of the Constitution was not violated; that the appellant actively participated in the trial proceedings, cross-examining witnesses and presented his defence; that the appellant never requested for legal representation; that he did not raise the issue before the first appellate court and he did not demonstrate the prejudice suffered due to the absence of counsel. Counsel relied on the case of JA v Republic, [2025] KECA 609 (KLR) for the proposition that legal representation at State expense is not automatic but depends on whether an accused demonstrates that substantial injustice would result in the absence of counsel. 20.On sentence, Ms. Onyinkwa submitted that the life sentence imposed is lawful and mandatory under section 8(2) of the Sexual Offences Act and cited the case of Republic v Joshua Gichuki Mwangi [2024] KESC 34 (KLR), for the proposition that the mandatory minimum sentences prescribed under the Sexual Offences Act are constitutional and binding upon trial courts and trial courts have no discretion to impose sentences below the minimum sentences in sexual offences. 21.Regarding proof of age, counsel submitted that the complainant's age was sufficiently proved through the evidence of the complainant, who testified that she was 9 years old which was corroborated by the evidence of PW6, that the complainant was born on 8th November 2012. Counsel cited the case of KM v Republic [2023] KECA 289 (KLR) for the submission that age may be proved in various ways and need not necessarily be through the production of a birth certificate, where the trial court is satisfied as to the victim's apparent age as defined under section 2 of the Children Act; that the appellant never challenged the complainant's age during the trial and maintained that the prosecution proved the ingredients of the offence beyond reasonable doubt on the basis of oral and documentary evidence, including the P3 Form, PRC Form and treatment notes confirming penetration. 22.In response to the appellant's complaint that the whitish discharge was not taken for test to confirm whose blood it was, counsel relied on the cases of Asiago v Republic [2026] KECA 773 (KLR) and Evans Wamalwa Simiyu v Republic [2016] KECA 555 (KLR) for the submission that DNA evidence is not a mandatory in proving sexual offences where there is other cogent and credible evidence. 23.With regard to alleged contradictions and inconsistencies, Counsel contended that contradictions are inevitable, especially where children testify and such contradictions do not necessarily render the prosecution case untenable, and cited the case of Asiago v Republic (supra), for the argument that the evidence ought to be considered as a whole and only material contradictions affecting the substance of the case would justify interference which was not the case in this appeal, since the first appellate court was satisfied that the alleged inconsistencies were inconsequential and did not prejudice the appellant’s case. Counsel urged the Court to dismiss the appeal. 24.This being a second appeal, our jurisdiction is limited to considering questions of law only in view of section 361 of the Criminal Procedure Code. This Court will not interfere with concurrent findings of fact by the two courts below unless such findings were based on no evidence at all, or if no tribunal properly directing itself on the evidence would make such findings. (See M’ Riungu v Republic [1983] KLR 455.) 25.We have considered the grounds of appeal in conjunction with the record, the submissions respectively tendered and the law, and we discern three broad issues for determination, namely; whether the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt; whether the appellant’s rights were violated and whether the sentence imposed is lawful. 26.Section 8(1) of the sexual offences Act, provides that a person who commits an act which causes penetration with a child is guilty of defilement. The offence of defilement, therefore, comprises committing an act which causes penetration with a child. On the definition of “child”, Section 2 of the Act adopts the definition in the Children Act, namely; any human being under the age of 18 years. The Children Act defines "age" to mean “the actual chronological age of the child from conception or the child’s apparent age as determined by a Medical Officer in any case where the actual age of the child is unascertainable. The prosecution must therefore prove age, penetration and the identity of the perpetrator of the offence beyond reasonable doubt. 27.In this appeal, the appellant has argued that the age of the complainant was not proved, an issue he also raised before the first appellate court. From the record, the trial court did not specifically address the issue of the complainant’s age. However, the first appellate court, addressed this issue and stated as follows:“The complainant was examined by Herbart Ochieng Ouma (PW4) a clinical officer. He estimated her age to be 9 years. In the trial court this evidence on her age was not disputed. This is a trained officer and who routinely deals with patients some of whom he has to estimate their age. Though no documented evidence of the minor’s age was produced, I find that her age was proved.” 28.The fact that a birth certificate was not produced did not mean the complainant’s age was not proved. This Court has held in several cases that age can be proved by other means not necessarily through birth certificates. For instance, in Edwin Nyambaso v Republic [2016] eKLR, this Court stated as follows:“The question of proof of age has finally been settled to the effect that it can be proved by documents, evidence such as a birth certificate, a 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, it must be credible.” 29.In KM v Republic (supra), this Court reiterated the same position as follows:“It is true that the age of a victim of a sexual offence has to be established as sentencing is determined by the age of the victim. There are many ways of establishing age which may take the form of production of a birth certificate, baptismal card or other religious document or other documents. But it must always be remembered that a trial court is possessed of the necessary intelligence to make an appropriate decision in regard to age.”(See also Francis Omuroni v Uganda (Criminal Appeal No. 2 of 2000.)) 30.According to the record, the complainant stated during voire dire examination that she was in class three. PW4, the Clinical officer, stated that the complainant was 9 years old while PW6, the complaint’s mother, stated that the complaint was born on 8th November 2012. This evidence put the complainant’s age at about 9 years on14th October 2020 when the offence was committed. Even though there was no documentary evidence regarding the complainant’s age, the evidence of PW6 that the complainant was born on 8th November 2012 was corroborated by PW4 the clinical officer that the complainant’s apparent age was 9 years. We, therefore, agree with the first appellate court, that the complainant’s age was sufficiently proved. 31.Regarding penetration, the trial court took into account the evidence of complainant that she had been defiled; the evidence of PW 3 who found the complainant in the appellant’s house and stated that he saw the complainant bleeding and the evidence of PW4 who examined the complainant and found bruises on the labia manora; freshly broken hymen and whitish discharge as proof that of penetration. The appellant too had bruises on the lower part of his penis and offered no explanation. This evidence having been accepted by the trial court and the first appellate court that there was penetration, we have no reason to differ from the concurrent conclusions of fact by the two courts. 32.On whether the appellant defiled the complaint, the complaint identified the appellant as the person who defiled her; the appellant was a neighbour and well known to the complainant and the evidence of PW2, PW3, and PW6 was that the appellant was the perpetrator of the offence. Once again, the two courts below having arrived at concurrent conclusions that the prosecution proved that the appellant was the perpetrator of the offence, we see no reason to differ from those concurrent conclusions on matters of facts. 33.The other issue is with regard to the appellant’s complaint that his constitutional rights to legal representation guaranteed under Article 50(2)(g) and (h) of the Constitution were violated. According to the appellant, the trial court did not inform him of his right to legal representation and entitlement to counsel at State expense, respectively. Article 50(2) (h) of the Constitution provides that an accused person has the right to choose and be represented by an advocate and to be informed of this right promptly, while clause (2) (h) provides that an accused person has a right to have an advocate assigned by the State and at State expenses if substantial injustice would otherwise result and to be informed of this right promptly. 34.We have perused the record before the trial court and the first appellate court. The appellant did not raise this issue before the first appellate court, and cannot raise it for the first time on a second appeal. That notwithstanding, it is important to make it clear that legal representation at State expense under Article 50(2)(h) of the Constitution is not automatic and applies only “if substantial injustice would otherwise result. in the absence of counsel.” This right is therefore dependent upon the nature of the case and particularly if there is potential that substantial or significant injustice that would result unless the accused person gets legal representation. 35.This position was expounded by this Court in David Njoroge Macharia v Republic [2011] KECA 406 (KLR), that the right to legal representation at state expense is not automatic, mandatory or absolute in every criminal case. It is a qualified right contingent upon whether substantial injustice would result in the absence of counsel. 36.This Court again reiterated the same position in JA v Republic (supra) and stated as follows:“The position presently obtaining in Kenya is that an accused person is only entitled to legal representation provided by the State where he can demonstrate, in the unique circumstances of his case, that he cannot afford an advocate, and that he would suffer substantial injustice if he is not represented by counsel in his case. The potential penalty upon conviction is one of the factors that the court considers in determining if substantial injustice would be occasioned if a State- appointed counsel is not provided at trial. The other factors include the accused person’s own circumstances such as his ability to understand the nature of the case he is facing. In the present case, there is nothing on the record that demonstrates that the appellant had any difficulties in understanding the charges he was facing.”We therefore find no merit in this complaint. 37.On sentence, the appellant was sentenced to life and on appeal, the argument before the first appellate court that the sentence is excessive and unconstitutional was rejected with the first appellate court pointing out, and correctly so, that a person who commits a sexual offence with a child below the age of 11 years faces only one sentence, life imprisonment. This is the correct position in law. 38.The Supreme Court has now settled this issue with finality in Republic v Joshua Gichuki Mwangi [2024] KESC 34 (KLR), that the mandatory minimum sentences in the Sexual Offences Act are constitutional; and that trial courts have no discretion to go below the statutory minimum sentences in sexual offences. The Supreme Court stated as follows:“Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law. Minimum sentences however set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term ‘mandatory minimum’ can be found used in different jurisdictions, including the United States, and in a number of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a mandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as they refer to two very different set of meanings and circumstances.” 39.The Supreme court emphasized that in Francis Karioko Muruatetu [2017] eKLR, it solely considered the mandatory sentence of death under Section 204 of the Penal Code as it is applied to murder cases and, therefore, all other sentences, including those provided for in the Sexual Offences Act are constitutional and apply to cases brought under respective statutes. 40.We agree with the first appellate court, that the life sentence imposed by the trial court being the only sentence provided for the offence the appellant was charged with, tried and convicted, it is a lawful sentence leaving no room for a justifiable complaint. 41.In the end, we find no merit in this appeal. It is hereby dismissed in its entirety. DATED AND DELIVERED AT KISUMU THIS 31ST 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. DEPUTY REGISTRAR