https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11678

Onyango alias Jagorogoro v Republic (Criminal Appeal E092 of 2025) [2026] KEHC 11678 (KLR) (28 July 2026) (Judgment) Neutral citation: [2026] KEHC 11678 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E092 of 2025 AM Hassan, J July 28, 2026 Between Jared Onyango alias Jagorogoro Appellant and The Republic Respondent (Arising from the conviction of SO. E043/ 2025 at Kombewa Law courts) Judgment A. Introduction 1.This Appeal arises from the judgment delivered by the Principal Magistrate’s Court at Kisumu (Kombewa), presided over by Hon. Jocelyn Kimetto, on 11th September 2025. 2.The Appellant was charged with the offence of defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offences Act, No. 3 of 2006. In the alternative charge, he faced a charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, No. 3 of 2006. 3.Upon evaluating the evidence on record, the trial court found that the prosecution had proved its case against the Appellant beyond reasonable doubt and consequently convicted him of the offence of defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offences Act. The alternative charge was dismissed upon conviction on the principal charge. The Appellant was thereafter sentenced to life imprisonment. 4.Being dissatisfied with both the conviction and sentence, the Appellant lodged the present appeal vide a Petition of Appeal dated 6th October 2025, raising the following grounds:1.That the trial court erred in law and in fact in not providing the ingredients of the offence beyond a reasonable doubt standard.2.That the trial court erred in law and fact in not weighing the conflicting evidences in the prosecution case that were inconsequential to conviction.3.That the trial court erred in law and fact in not considering procedural errors in the case that rendered the proceedings defective.4.That the trial court erred in law and fact in wrongly admitting the evidence that were admissible.5.That the trial court erred in law and fact in making a finding that the constitutional rights of the appellant were breeched by the respondent, hence not a fair trial.6.That the trial court erred in law and fact in not making a finding that the sentence of life imprisonment was manifestly excessive as per the circumstances of the case.7.That the trial court erred in law and fact in not appreciating the appellant’s defense that overwhelmed the prosecution case.8.That I wish to be present during the hearing of the appeal file within the stipulated time required by law that is 14 days and so be pleased to supply me with the certified proceedings to enable me erect more grounds as merited. 5.Due to the grounds raised by the Appellant on the contradictions and inconsistencies that were not considered by the trial court, it is imperative that this court goes through the file and captures the testimonies of the parties, for it to be able to independently evaluate the same. B. Testimonies And Evidence Presented At The Trial Court 6.PW1 recalled that on 8th March 2025 at 4:00 pm, she had been sent to buy vegetables, together with her sister MO, Pw2 in a shop and the accused Jagorogoro told her that he would buy them nga. Jagorogoro held her hand and took her to his brothers house where he did tabia mbaya to her. He removed her from the brothers house and took her to the bush. He inserted his private part into hers. When the minor was asked to show her private parts she pointed to her vagina. She said she uses it to urinate and that jagorogoro uses his to urinate. She was in a lying position facing upward. Jagorogoro removed her skirt and she was left with her blouse and she felt painful. The accused warned that if she told anyone he would be cut with a panga, however she told PW3 ns PW4, the biological mother and the co-wife respectively. Her mother massaged her private part with a hot dumb cloth and she was also taken to hospital where she received treatment. 6.PW2 testified that she is a twin sister to Pw1 and that on 8th March 2025, she left home with PW1 and the accused to buy vegetables and after buying the accused instructed her to take the same home as he took away PW1. They returned home later when they were going to bed and PW1 told her mother that Onyango (Accused) did “tabia mbaya” to her. She saw PW 1 walking with her legs apart as if in pain and she was shedding tears. She was massaged with a hot dumb cloth as the accused left to her mother’s house to sleep. 6.PW3 HA told this court that the accused had left with both PW1 PW2 at 4:00 pm on the date of incident to buy food at the shops. PW2 returned home alone at 6.30 pm but the accused and PW1 went back home at 8.00 pm. She realized the PW1 was walking with difficulty as her legs were apart and she was not happy. Upon inquiry PW1 told her that the accused did bad manners to her. She checked her private part and noted some white discharge. She also massaged her because she in pain. She took her to the hospital in the morning. She told this court that the accused inherited her as her husband since her husband died. 6.PW4 MAO gave similar evidence as PW3 and clarified further that being the elder wife she used to sleep with both PW1 and PW2 in her house as the accused spent at their biological mother’s house (PW3) whom he had inherited as a wife. 6.PW5, Kevin Odhiambo Owino, a clinical officer at Kombewa-Hospital attended to produce a medical report (P3), treatment notes, lab results and PRC form with respect to PW1 who was examined at their facility on 17/03/2025. On examination, she gave history of a known perpetrator namely Jagorogoro, who asked her escort him to his home and as they were coming back, he forced her into a nearby bush and forcefully engaged her in unprotected sexual intercourse. That the said person inserted his sexual organ into her genitals and self-pain immediately. On vaginal examination, a whitish discharge was noted, there were no visible bruises, the hymen was not intact. 6.The defense told the court that he was working as a fundi at the minor complainant’s home. He had plastered the walls and PW4 owed him money and whenever he demanded for the same, they declined paying him and so they ended up quarrelling and she later implicated him in the case and later implicated him in this case, he was later arrested and charged. He denied committing the offence. C. Submission By Parties 6.The Appellant submitted that the prosecution's evidence was marred by material contradictions, particularly in the testimonies of PW2, PW3, and PW4, which, in his view, exposed deliberate falsehoods that could not be overlooked by the court. 6.The Appellant further contended that the prosecution failed to prove its case to the required standard of beyond reasonable doubt. He argued that the material contradictions in the evidence created doubt as to the credibility and truthfulness of the witnesses and weakened the chain of circumstances relied upon by the prosecution. 6.In response, the Respondent submitted that all the essential ingredients of the offence of defilement were proved beyond reasonable doubt. The Respondent identified the three key elements requiring proof, namely: the age of the complainant, proof of penetration, and the positive identification of the perpetrator. 6.Regarding the Appellant's contention that the trial magistrate failed to consider procedural errors that allegedly undermined the charge, the Respondent submitted that no such errors occurred during the trial. It was argued that procedural irregularities, such as failure to properly record a plea, improper witness identification procedures, or violations of mandatory timelines, may warrant appellate intervention. However, the Respondent maintained that the proceedings were conducted in accordance with the Constitution and the Criminal Procedure Code, and that all applicable rules and procedures were duly observed. 6.On the allegation that the Appellant's right to a fair trial was infringed, the Respondent submitted that a review of the record of appeal disclosed no evidence of any violation of the Appellant's constitutional rights during the trial proceedings. 6.Concerning the sentence imposed, the Respondent submitted that upon conviction under Sections 8(1) and 8(2) of the Sexual Offences Act, the offence of defilement attracts a mandatory sentence of life imprisonment. It was therefore contended that the sentence imposed by the trial court was lawful and appropriate. 6.On the Appellant's complaint that the trial magistrate failed to consider his defence, the Respondent submitted that the Appellant was accorded a full opportunity to participate in the proceedings and present his defence, which the trial court duly considered before arriving at its determination. D. Analysis 15.As this is a first appeal, the court is obligated to revisit the evidence on record, evaluate it afresh and draw its own independent conclusions. In doing so, the court must remain alive to the fact that it did not have the advantage enjoyed by the trial court of seeing and hearing the witnesses testify. This duty was articulated in Okeno v Republic [1972] EA 32, where the court emphasized that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions while making due allowance for the fact that it did not observe the demeanor of the witnesses. I. Whether the alleged contradictions and inconsistencies rendered the prosecution case unreliable 15.Before considering the ingredients of the offence, this court must address the Appellant's contention that the prosecution witnesses gave contradictory evidence and that the trial court failed to properly evaluate those contradictions. 15.Upon re-evaluating the evidence on record, this court notes that PW1 testified that on 8th March 2025, the Appellant left with her and PW2 to buy vegetables and thereafter separated her from PW2 before taking her to his brother's house and later to a bush where he sexually assaulted her. PW2 corroborated this account by confirming that after purchasing vegetables, the Appellant instructed her to return home alone while he remained with PW1. PW2 further testified that PW1 returned home later while crying and walking with difficulty. 15.PW3 and PW4 equally testified that PW1 returned home later than expected, appeared distressed, walked with her legs apart and immediately disclosed that the Appellant had done "bad manners" to her. Their evidence was consistent regarding the complainant's physical condition, her immediate complaint and the identity of the person she implicated. 15.The court has not identified any contradiction touching on the core ingredients of the offence. The evidence consistently places the Appellant with the complainant immediately before the offence, establishes the complainant's condition immediately thereafter and confirms that she named the Appellant at the earliest opportunity. Any minor variations in the witnesses' narration are attributable to normal differences in recollection and do not affect the substance of the prosecution case. 16.Consequently, this court finds that the alleged inconsistencies were not material and did not create any doubt as to the credibility of the prosecution witnesses. The trial court therefore properly relied on their evidence. II. Whether the offence of defilement was proved beyond reasonable doubt 15.In WKC v Republic (Criminal Appeal E060 of 2024) [2026] KEHC 6409 (KLR) (8 May 2026) (Judgment), the court held that:“On whether the charge was proved beyond reasonable doubt, it is trite law that for the offence of defilement to be established, 3 ingredients must be proved, namely, age of the victim, penetration and positive identification of the offender.” 15.This court shall therefore consider each ingredient separately. Age of the complainant 15.The evidence on record establishes that the complainant's birth certificate was produced as PMFI-1. The document shows that she was born on 25th December 2017. The offence having occurred on 8th March 2025, the complainant was approximately eight years old at the time. 15.The birth certificate was not challenged by the defence and remains conclusive proof of age. The court therefore finds that the prosecution proved the complainant's age beyond reasonable doubt and the trial court correctly so found. Penetration 15.PW1 testified that the Appellant removed her skirt and inserted his private part into her private part. She further stated that she experienced pain during the incident. The court finds her evidence is clear, direct and consistent. 16.The testimony of PW1 was corroborated by PW2 who observed that the complainant returned home crying and walking with difficulty. PW3 further testified that upon examining the complainant, she noticed a whitish discharge and that the complainant complained of pain. 15.PW5, the Clinical Officer, produced the treatment notes, PRC Form and P3 Form. The medical examination revealed that the complainant's hymen was not intact and there was a whitish vaginal discharge. The medical findings were therefore consistent with the complainant's narration. 15.In Mark Oiruri Mose v R (2013) eKLR, the court was guided as follows:“….. In any event the offence is against penetration of a complainant and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.” 15.Similarly, in AML v Republic [2012] KEHC 2554 (KLR), the court held:“…………The fact of rape or defilement is not proved by a D.N.A test but by way of evidence.” 15.Guided by the foregoing authorities and the evidence on record, this court is satisfied that the complainant's testimony, coupled with the medical findings and surrounding circumstances, proved penetration beyond reasonable doubt. The trial court therefore correctly found that this ingredient had been established. Identification of the perpetrator 15.The evidence before the court was one of recognition and not identification of a stranger. PW3 testified that the Appellant had inherited her as a wife after the death of her husband, while PW4 confirmed the same arrangement. The complainant therefore knew the Appellant very well prior to the incident. She stated that he is the husband to her mother and she calls him father. 15.PW1 consistently identified the Appellant as the person who took her away and sexually assaulted her. PW2 equally confirmed that the Appellant left with PW1 and remained with her until they returned home later in the evening. 15.The complainant named the Appellant immediately after the incident and there was no evidence suggesting any possibility of mistaken identity. 15.In Francis Muchiri Joseph – V- Republic [2014] eKLR, the court, while relying on LESARAU – v-R [1988] KLR 783, stated as follows:“In Lesarau – v-R, 1988 KLR 783, this court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name.” 15.The court therefore finds that the Appellant was positively identified through recognition and that the prosecution proved the identity of the offender beyond reasonable doubt. II. Whether the Appellant's defence displaced the prosecution case 15.The Appellant's defence was that he had worked as a fundi at the complainant's home and that PW4 falsely implicated him because of a disagreement concerning payment for work done. 16.The trial court considered this defence and correctly rejected it. The defence was not supported by any evidence and did not explain why the complainant, an eight-year-old child, would falsely accuse him of such a serious offence. Neither did it challenge the medical evidence nor the corroborative testimonies of PW2, PW3 and PW4. 15.In the court's view, the defence amounted to a mere denial and did not raise any reasonable doubt capable of displacing the strong prosecution case. II. Whether the sentence was lawful 15.Having found that the conviction was proper, this court notes that the complainant was eight years old. Section 8(2) of the Sexual Offences Act prescribes life imprisonment where the child is eleven years or below. 15.The sentence imposed by the trial court was therefore lawful, regular and in accordance with the provisions of the law. There is consequently no basis upon which this court can interfere with the sentence. E. Disposition 15.Having independently re-evaluated the evidence on record and the applicable law, this court is satisfied that the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt. The alleged contradictions were not material, the complainant's age was conclusively proved, penetration was established through both direct and medical evidence, and the Appellant was positively identified through recognition. 15.The court further finds that the Appellant's defence did not raise any reasonable doubt and that the sentence imposed was lawful. 15.Accordingly,a.The Appeal against both conviction and sentence lacks merit and is hereby dismissed in its entirety.b.The conviction and sentence imposed by the trial court are hereby upheld.It is so ordered. SIGNED BY/FOR: HON. JUSTICE ABDI M. HASSANKISUMU HIGH COURTHIGH COURT CRIMINAL DATE: 2026-07-28 22:05:28