https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1619

Obondo v Republic (Criminal Appeal E082 of 2023) [2026] KECA 1619 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1619 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E082 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Felix Otieno Obondo Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court at Homabay (Omondi, J.) dated 11th April, 2018 in HCCRA No. 27 of 2017) Judgment 1.This is a second appeal arising from the conviction and sentence of the appellant, Felix Otieno Obondo, by the Principal Magistrate’s Court at Mbita in Sexual Offences Case No. 17 of 2016. The appellant was found guilty of the offence of defilement and sentenced to imprisonment for 20 years. On appeal, the High Court of Kenya at Homabay upheld his conviction and sentence, giving rise to the instant appeal. 2.The appellant was charged with the offence of defilement contrary to Section 8(1) (3) of the Sexual Offences Act. The particulars of the offence were that on 5th June, 2016 at [Particulars withheld] Township in [Particulars withheld] Sub-County within Homabay County in the Republic of Kenya, he intentionally and unlawfully caused his penis to penetrate the vagina of C.A.O, a girl aged 13 years. The appellant denied the offence. 3.The prosecution called five (5) witnesses. The testimony of C.A.O (PW1) was that on Sunday 5th June, 2016, she had gone to wash clothes at the lake when the appellant seduced her and asked for marriage. The appellant later escorted her to her grandmother’s house and then convinced her to go to his house, where he asked her to remove her underpants. The appellant removed his trousers and had sex with her for the first time. The two continued to have sex every day and night until Tuesday 7th June, 2016, when they left the house. They were waiting for a vehicle at the bus stop when someone saw PW1 and alerted her brother (PW2). PW2 showed up, arrested the two and escorted them to [Particulars withheld] AP Camp then to Magunga Police Station. The investigating officer (PW5) then escorted PW1 and the appellant to the hospital for examination, but only PW1 was examined. The examination concluded that PW1 had been defiled. It was PW1’s testimony that she was 13 years old at the time, corroborated in the age assessment report produced by PW4. A teacher (PW3) confirmed that PW1 was his standard 4 pupil at the school he taught at. It was the testimony of the investigating officer (PW5) that the appellant and PW1 were together as husband and wife, but that the appellant was not allowed to marry an underage girl.The testimony by PW5 was that the complainant PW1 had been seduced by the appellant who took her and they stayed together for two days from 5th to 7th June, 2016 and the appellant promised to marry PW1. 4.When put to his defence, the appellant gave unsworn testimony. He denied the charges and asserted that there was no evidence of defilement. The trial court delivered its judgment on 28th March, 2017 in which it found that the complainant’s age was proved to the required standards and that there was penetration because the complainant’s hymen was ruptured. 5.The trial court found the appellant guilty of defilement on the main count and was discharged on the alternative charge of committing an indecent act. In sentencing the appellant to 20 years' imprisonment, the trial court noted that the appellant was 13 years old and quite young. 6.The appellant was aggrieved with that decision and appealed against the whole judgment and sentence of the trial court. In its judgment dated 11th April, 2018, the High Court observed that, despite the lack of medical evidence linking the appellant to the offence in view of the fact that he was not examined in hospital, the evidence of PW1 was detailed showing how they met and had successive sexual intercourse. The Court stated that this was confirmed by medical evidence upon the examination of PW1, that she had a torn hymen. Subsequently, the High Court dismissed the appellant's appeal and upheld his conviction and sentence. 7.The appellant is still dissatisfied and has preferred an appeal to this Court against the conviction and sentence. He prays that this Court finds in his favour and allows the appeal, quash the conviction, set aside the sentence and ultimately set him free forthwith. The appellant sets out four grounds of appeal as follows:i)That the High Court Judge erred both in law and fact by relying on the state counsel’s case, which had a lot of fabrications and tainted findings for the offence of defilement.ii)That the State did not prove the prosecution case beyond reasonable doubt by failing to bring to court documents to prove the complainant’s age.iii)That the High Court Judge erred both in law and fact by dismissing the appellant’s case, which had a lot of loopholes.iv)That the sentence did not take into account that he was a minor at the time of the alleged offence and during the trial. 8.The appellant’s submissions are undated, nonetheless submitted that the case against him was not proved beyond reasonable doubt, and that the person who presented the complainant’s age assessment report was not the author of the said document. That the complainant agreed for him to be her boyfriend, had sex with him several times without complaining, and was willing to get married to him. The appellant further submitted that his right to a fair trial was infringed despite his pleading that he was a student and a minor at the time of the alleged offence and during the trial. He also questioned the procedure taken when two minors are found to have allegedly engaged in a sexual offence. 9.The respondent’s submissions dated 19th May, 2026 are by Ms. Annah Kerubo Thomas, learned prosecution counsel. Counsel submitted that the appellant had not demonstrated any legal error in the concurrent findings to warrant the same to be quashed. That the sentence imposed was lawful and within the prescribed statutory limits, and that the trial court exercised its discretion judiciously. She urged that this Court will not ordinarily interfere with concurrent findings of fact by the trial and first appellate courts unless it is shown that: the findings were based on no evidence; the courts misapprehended the evidence; or the courts acted on wrong principles of law. That since the trial court considered the gravity of the offence, the age and vulnerability of the complainant, the mitigation offered, and the need for deterrence, there is no legal basis to interfere with the sentence. Regarding sentencing, counsel referred to the case of Arthur Muya Muriuki v Republic [2015] eKLR. 10.It was further submitted for the respondent that the appellant had appealed both on conviction and sentence and he had requested the court to consider his age and review, vary or reduce the sentence and upon reduction he be subjected to probation or community service order. 11.When this appeal came up for plenary hearing on 25th May, 2026, the appellant appeared virtually in person from prison, while Mr. Mechi, learned prosecution counsel, held brief for Ms. Kerubo, for the respondent. We engaged the counsel for the respondent on the fact that both the victim and the appellant were minors of the same age at the time of the incident and needed care under the law. This Court’s dilemma and consideration was that whereas both minors seemed to have purportedly consented to whatever transpired, one was suffering the sentence for imprisonment for 20 years while the other was free. Consequently, Mr. Mechi conceded the appeal by submitting that in view of that crucial circumstance, the state did not oppose the appeal. 12.This is a second appeal. Under Section 361(1)(a) of the Criminal Procedure Code, our jurisdiction as a second appellate court is strictly limited to consideration of matters of law only.This position was aptly set out in Karingo & 2 Others v Republic [1982] KECA 23 (KLR) that:“…A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did (Reuben Karari s/o Karanja v Republic (1950) 17 EACA 146).” 13.Taking into account the applicable principle, we distil the issues for determination in this appeal as follows:i)Whether the ingredients of defilement were established.ii)Whether the trial and first appellate courts considered that both the victim and appellant were minors of 13 years old as at the time of the offence and its impact especially on the sentence to be imposed.iii)Whether the sentence was therefore unlawful or lawful, in the unique circumstances of the case. 14.To secure a conviction for the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act, the prosecution must prove three essential elements beyond a reasonable doubt: the victim or complainant must be under the age of 18 years, usually proved using official documents like a birth certificate, or through medical or dental age assessment; that there was partial or complete sexual penetration of the victim's genitals; and, positive identification that the accused person is the exact individual who committed the act. In this appeal and as submitted for the respondent, there is no established reason for us to interfere with the concurrent findings of the trial court and the High Court that the complainant PW1 was 13 years old as at the time of the defilement, that the appellant and PW1 repeatedly engaged in sexual intercourse thereby satisfying the ingredient of penetration, and, the appellant was positively identified as the perpetrator per the evidence on record as well as their respective ages. The prosecution therefore proved beyond reasonable doubt all the ingredients for the offence of defilement. 15.The pertinent issue for our determination is whether the two courts below carefully considered the material on record showing that both the victim PW1 and appellant were minors of 13 years old as at the time of the offence and its impact on the imposition of the sentence. There is no dispute and the record shows that the appellant was 13 years old and therefore as at the time of the offence he was a minor. 16.Section 2 of the Children Act states that "child" means an individual who has not attained the age of eighteen years. On the other hand, section 2 of the Sexual Offences Act states that "child" has the meaning assigned thereto in the Children Act. We consider that the provisions of both Acts have to be applied together in determining the issue at hand, namely, how did the age of the appellant (his status of being a child) impact upon the sentence to be imposed once he was convicted of the offence of defilement as was levelled against him. 17.What are the applicable principles under the Children Act? Section 3 of the Children Act states that the objectives of the Act are to give effect to the provisions of Articles 27, 47, 48, 49, 50, 51 and 53 of the Constitution on matters relating to children; and, to give effect to the State’s obligations concerning the wellbeing of children in accordance with the general rules of international law, treaties and conventions ratified by Kenya. Section 4 of the Act elevates the provisions of the Act as of priority over other statutory provisions by stating as follows:“ 4.Conflict of laws1)This Act shall prevail in the case of any inconsistency between this Act and any other legislation on children matters.2)Despite subsection (1), a provision in another legislation on children matters may prevail if it offers a greater benefit in law to a child.3)A judicial or administrative institution or any person making an interpretation as to conflict of any provision or laws shall have regard to the best interests of a child.” 18.Section 8 of the Act on the best interest of the child provides as follows:“ 8.Best interests of the child1)In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies—a.the best interests of the child shall be the primary consideration;b.the best interests of the child shall include, but shall not be limited to the considerations set out in the First Schedule. 2)All judicial and administrative institutions, and all persons acting in the name of such institutions, when exercising any powers conferred under this Act or any other written law, shall treat the interests of the child as the first and paramount consideration to the extent that this is consistent with adopting a course of action calculated to—a.safeguard and promote the rights and welfare of the child;b.conserve and promote the welfare of the child; and,c.secure for the child such guidance and correction as is necessary for the welfare of the child, and in the public interest. 3)In any matters affecting a child, the child shall be accorded an opportunity to express their opinion, and that opinion shall be taken into account in appropriate cases, having regard to the child’s age and degree of maturity.” 19.The First Schedule to the Children Act outlines strict factors to protect children. It ensures that the welfare of the child always comes first in legal decisions. Courts and guardians must use these rules to make the safest choices for a child's future. Some of the enumerated factors include the age, maturity, stage of development, gender, background and any other relevant characteristic of the child; the child's adjustment to the child's present home, school and community; the relationship of the child with the child's parent(s) or guardian(s) and any other persons who may significantly affect the child's welfare; the existence of domestic abuse between the parents or guardian(s), in the past or currently, and how that abuse affects the emotional stability and physical safety of the child; and the several other listed factors. 20.With respect to sentencing, section 6 of the Act on survival and development of the child states as follows:“ 6.Survival and development of the child1)Every child shall have the right to life, survival, wellbeing, protection and development.2)For the purposes of subsection (1), no court shall pass a death sentence for any offence committed by a child.” 21.Section 238 of the Act restricts the punishments that may be imposed upon children as follows:“ 238.Restriction on punishment 1)No court shall order the imprisonment of a child. 2)Notwithstanding the nature of any offence punishable by death, no court shall impose the death penalty on a child on a finding of guilty for such an offence. 3)A Children’s Court shall not make any order to send a child under the age of twelve years to a rehabilitation school. 4)The performance of community service under an order of the Court shall be in accordance with the Community Service Orders Act (Cap. 93).” 22.Section 239 of the Act specifically prescribes methods of dealing with children in conflict with the law as follows:“ 239.Methods of dealing with children in conflict with the law1)Where a child is tried for an offence, and the Court is satisfied as to their guilt, the Court may deal with the case in one or more of the following ways—a)discharge the child under section 35(1) of the Penal Code (Cap. 63);b)discharge the child on his or her entering into a recognisance, with or without sureties;c)make a probation order against the offender under the provisions of the Probation of Offenders Act;d)commit the offender to the care of a fit person, whether a relative or not, or a charitable children’s institution willing to undertake the care of the offender;e)if the child is between twelve years and fifteen years of age, order that the child be sent to a rehabilitation institution suitable to the child’s needs and circumstances;f)order the child to pay a fine, compensation or costs, or any or all of them, having regard to the means of the child’s parents or guardian;g)in the case of a child who has attained the age of sixteen years, deal with the child in accordance with the Borstal Institutions Act;h)place the child under the care of a qualified counsellor or psychologist;i)order that the child be placed in an educational institution or vocational training programme;j)order that the child be placed in a probation hostel under the provisions of the Probation of Offenders Act;k)make a community service order;l)make a restorative justice order;m)make a supervision order;n)make any other orders of diversion provided for in this Part; or,o)deal with the child in any other lawful manner as may be provided under any written law. 2)A child against whom a community service order has been made may, having regard to the child’s age and development, be required to perform the service without remuneration, or for the benefit of the community, under the supervision or control of an organisation or institution identified by the probation officer. 3)In addition, or as an alternative, to the orders prescribed in subsection (2), the Court may impose on a child such other sanctions as the Court may consider just. 4)Any community service performed by a child shall be for a maximum period of fifty hours, and shall be completed within a period not exceeding six months. 5)If a child fails to comply with any condition imposed on diversion, the Court shall make such orders as it considers fit, including an order directing that the child to be subjected to an alternative level of diversion. 6)The orders imposed on a child upon a finding of guilt shall be proportionate to the circumstances of the child, the nature of the offence and the public interest, and a child shall not be treated more severely than an adult would have been treated in the same circumstances.” 23.We have elaborated the relevant provisions of the Children Act and which also apply to children convicted of sexual offences.The law prioritises rehabilitation, reform and the “best interest of the child” over the strict adult punishments. We consider that once it was established by the two courts below that the appellant was a child as at the time of the offence, the provisions of the Children Act were thereby triggered and by failing to apply the provisions which are mandatory, the sentence of imprisonment for 20 years as imposed was unlawful. 24.Section 8 of the Sexual Offences Act pursuant to which the appellant was charged and sentenced provides as follows:“ 8.Defilement1)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 (Cap. 92) ) and Children's Act (Cap. 141). 8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.” 25.We observe that section 8(7) expressly guides that the sentencing of the appellant was to be considered in accordance with the provisions of the Borstal Institutions Act and Children's Act but which were not invoked upon conviction of the appellant. While the section uses “may” suggesting permissible rather than imperative, we have already observed that the Children Act elevates its provisions as of priority over other legislative provisions with the consequence that in sentencing a minor, the safeguards and principles in the Children Act are mandatorily applicable. 26.The sentence was also imposed against the appellant without due consideration of the Borstal Institutions Act which establishes specialised correctional centres for youthful offenders. The Act is designed to prioritise reformation over punishment with emphasis on vocational training. education, and psychological support for youths as an alternative to adult prisons. The purpose is to focus on the mental, moral and physical development of juvenile offenders to facilitate their successful reintegration into society. Under Part III of the Act, courts may make specific orders committing juvenile or youthful offenders to undergo training for reformation in a borstal institution, usually for a period of three years, instead of dealing with the offender in any other way. Section 5 of the Act makes a mandatory provision as follows:“ 5.Before sentencing a youthful offender, a court shall consider the evidence available as to his character and previous conduct and the circumstances of the offence, and whether it is expedient for his reformation that he should undergo a period of training in a borstal institution” 27.We have re-examined the provisions of the Children Act on the best interest of the child and more specifically section 6 of the Act on the right to life, survival, wellbeing, protection and development of the child which also states that no court shall pass a death sentence for any offence committed by a child. We have weighed the provision, together with the focus on reformation of juvenile or youthful offenders under the Borstal Institutions Act, as against, the penalties prescribed in sections 8(2), (3), and (4) of the Sexual Offences Act. It is our view that when the punishments are imposed against offenders who are minors (under 18 years of age as at the time the offence is committed) and especially without regard to the safeguards and principles provided for in the two Acts, such imposition may very well amount to constructive death sentence against the affected minor especially where imprisonment for life is imposed. That is more the case than not if imprisonment for life means for the remainder of the life of the sentenced minor and without a parole review. 28.The mandatory imprisonment for life and the minimum 20 or 15 years imprisonment as prescribed, when imposed against an offender who is a minor as at the time the offence is committed, constitute punishments that are inconsistent with the reformation, survival, wellbeing, protection and development of the child. The prison terms when imposed against a minor are essentially so long that the child will likely die in prison or be released only in old age effectively eroding the minor’s chance to live a normal adult life. The impact is to deny the minor the opportunities to education, learning and developing skills for full potential and responsible adulthood. In that sense, the prescribed minimum or mandatory sentences amount to de facto life sentence or constructive death sentence because they ruin the minor’s life chances for a fair progression to an adulthood with realization of the desired individual full human potential. We therefore consider that minors even as youthful offenders are capable of change and reformation so that locking a minor away permanently without hope for reform is not only cruel or inhuman but also unusual as against the principle of the best interest of the child. 29.Courts should therefore be alert to the overriding provisions of the Children Act and the safeguards prescribed therein during sentencing of persons who are minors as at the time the offence is committed. 30.In Miller v. Alabama, 567 U.S. 460 (2012) a 14-year-old was convicted of murder and sentenced to a mandatory term of life imprisonment without possibility of parole. The highest courts of Alabama and Arkansas upheld the sentences. The U.S Supreme Court reversed the sentence and held that no juvenile defendant may face a mandatory sentence of life imprisonment without the possibility of parole, no matter how serious the crime. The Supreme Court’s decision made specific considerations as follows: children are constitutionally different from adults for sentencing purposes; their lack of maturity and underdeveloped sense of responsibility lead to recklessness, impulsiveness, and heedless risk-taking; they are more vulnerable to negative influences and lack ability to extricate themselves from horrific, crime-producing settings; a child’s actions are less likely to be evidence of irretrievable depravity; the mandatory penalty schemes at issue prevent the sentencing court from considering youth and from assessing whether the harshest term of imprisonment proportionately punishes a juvenile offender; life- without-parole sentences share characteristics with death sentences, demanding individualized sentencing; the Court rejected the states’ argument that courts and prosecutors sufficiently consider a juvenile defendant’s age, background and the circumstances of his crime, when deciding whether to try him as an adult; and, such argument ignores that many states use mandatory transfer systems or lodge the decision in the hands of the prosecutors, rather than courts. 31.In that case, the Supreme Court stated as follows:“So Graham and Roper and our individualized sentencing cases alike teach that in imposing a State’s harshest penalties, a sentencer misses too much if he treats every child as an adult. To recap: Mandatory life without parole for a juvenile precludes consideration of his chronological age and its hallmark features—among them, immaturity, impetuosity, and failure to appreciate risks and consequences. It prevents taking into account the family and home environment that surrounds him—and from which he cannot usually extricate himself—no matter how brutal or dysfunctional. It neglects the circumstances of the homicide offense, including the extent of his participation in the conduct and the way familial and peer pressures may have affected him. Indeed, it ignores that he might have been charged and convicted of a lesser offense if not for incompetencies associated with youth — for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys. See, e.g., Graham, 560 U. S., at (slip op., at 27) (“[T]he features that distinguish juveniles from adults also put them at a significant disadvantage in criminal proceedings”); J. D. B. v. North Carolina, 564 U. S. , (2011) (slip op., at 5–6) (discussing children’s responses to interrogation). And finally, this mandatory punishment disregards the possibility of rehabilitation even when the circumstances most suggest it.” 32.While the foregoing case related to a charge of murder, we consider that the analysis would apply to sentencing of minors in an offence which carries mandatory or minimum sentence like in the present appellant’s case. Further, the considerations as were analysed are consistent with the principles and safeguards in the Children Act and the Borstal Institutions Act. 33.We also observe that throughout the trial and appeal proceedings before the High Court and this Court, the appellant acted in person and he was thereby a prejudiced minor as to secure for his benefit the applicable statutory safeguards. In POO (A Minor) v Director of Public Prosecutions & another [2017] KEHC 8341 H. A. Omondi J (as she then was) stated as follows:“ 34)The 2nd respondents commenced the trial without taking in to account the fact that the petitioner was not represented, even after noting that he alleged to be a minor and making an order that an age assessment report to be furnished by the 1st respondent. Moreover, there is no evidence indicating that the 2nd respondent assigned the Children’s Officer to locate the petitioner’s adult relatives in order to assist him. The petitioner’s counsel has referred to the English case of the Queen on the Application of HC (a child by his litigation friend CC) and The Secretary of State for the Home Department & The Commissioner of Police of the Metropolis [2013 EWHC 982 (Admin) where the court pointed out that:“….The underlying principle is that the criminal justice system should take account of a defendant’s age, level of maturity, and emotional capacity. It is only by doing so that the system can redress the imbalance which is the inevitable result where a child or young person is confronted by the power of the criminal justice.” 35)In this instance the petitioner was left on his own to conduct a hearing in an offence which was complex and which attracts a minimum sentence of 15 years imprisonment - he certainly suffered substantial disadvantage.” 34.In sentencing the appellant and which sentence was affirmed by the High Court, the trial court stated thus “The age of the accused is 13 years and quite young. He is sentenced to 20 years imprisonment….” It is our steadfast view that the sentence was unlawful because it was imposed without taking into account that the appellant was a minor at the age of 13 years old and was therefore deserving of the otherwise denied safeguards provided for in the Children Act and the Borstal Institutions Act. 35.We have considered the period of time the appellant has already served in remand since his arrest and subsequently in prison after the conviction. He must have learned his mistakes and it will be appropriate and just to discharge him unconditionally pursuant to provisions of section 35 of the Penal Code. 36.The upshot is that we confirm the conviction for the offence of defilement but set aside the sentence of imprisonment for 20 years and the appellant is set at liberty forthwith as he is discharged absolutely under section 35 of the Penal Code. 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