https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1432

Omollo v Republic (Criminal Appeal E037 of 2022) [2026] KECA 1432 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KECA 1432 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E037 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 10, 2026 Between Joseph Dida Omollo Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Homabay (Omondi, J.) dated 11th May, 2018inHCCRA No. 3 of 2016) Judgment 1.This is a second appeal arising from the conviction and sentence of the appellant, Joseph Dida Omollo, by the Senior Principal Magistrate’s Court at Kendu Bay in SOA Case No. 80 of 2015. He was sentenced to life imprisonment. On appeal, the Homabay High Court upheld the conviction and sentence, giving rise to the instant appeal. 2.The appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act. The particulars of the offence were that on 7th March, 2015, he caused his penis to penetrate the vagina of I.O, a child aged seven years. In the alternative, he is alleged to have committed an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, particulars being that on the same date and place, the appellant committed an indecent act by unlawfully and intentionally rubbing his penis against the said minor’s vagina. He denied the offence. 3.The prosecution called four witnesses: MOO, the minor’s grandmother (PW1), I.O, the minor (PW2), RJA, the clinical officer who examined the minor (PW3), and CPL Margaret Langat, the investigating officer (PW4). The prosecution's evidence was that on 07th March, 2015, PW1 sent the minor to buy mandazi, but the minor took a while to return. PW2’s account was that the appellant had asked her to fetch water for him and she went into his house to get it. He followed her and told her to sleep on the bed, removed his clothes and her inner pants before having sexual intercourse with her. The appellant then told her to take a bath and threatened to kill her if she told her grandmother. When the minor returned home, she took a bath and later complained to PW1 of a stomachache. PW1 took her to the dispensary on 11th March, 2015 and PW3 established that PW2 had been defiled. There was penetration as the hymen was broken. PW1 reported the incident to the police on 20th March, 2015 and the minor identified the appellant as the perpetrator. PW3 further testified that when the minor returned to the dispensary on 24th April, 2015 after experiencing abdominal pain, candidiasis was noted. The minor’s age, as indicated in the P3 Form, was assessed as seven years old. 4.The appellant was found to have a case to answer. In his unsworn defence, he stated that he was arrested and assaulted by three people before being taken to the police station on 20th March, 2015. 5.In a judgment dated 12th January, 2015, the trial court found that the prosecution had proved its case beyond reasonable doubt. The trial court further found the appellant guilty of defilement, convicted him under Section 215 of the Criminal Procedure Code, and sentenced him to life imprisonment. 6.The appellant was dissatisfied with the decision of the trial court and thus appealed the conviction and life sentence in the High Court of Kenya at Homa-Bay. In a judgment delivered on 11th May, 2018, the High Court considered the parties’ arguments and upheld the appellant’s conviction and life sentence thereby dismissing the appeal in its entirety. 7.The appellant is still aggrieved with the decision of the High Court and thus preferred an appeal to this Court on the following grounds:1.That the learned High Court Judge erred in law for failing to observe that the offence was allegedly committed on 07th March, 2015 and yet the P3 was obtained on 19th March, 2015, thereby creating a doubt. And wrongly admitting the evidence of the minor under Section 124 of the Evidence Act.2.That the trial court erred in law for convicting and sentencing the appellant to life imprisonment without observing the case was not proved against the appellant beyond reasonable doubt to warrant a conviction. 8.In his written submissions dated 16th February, 2026, in support of the appeal, the appellant urged that, given that the matter was reported almost 13 days after the alleged date of the offence, the evidence of the minor was unreliable to warrant his conviction. In addition, the appellant submitted that the High court failed to observe that the incident being reported to the police on 20th March, 2015 contradicted the evidence of PW3, who confirmed seeing the minor on 11th March, 2015 but treating her on 24th April, 2015. That by the time the doctor was purportedly attending to the minor, her grandmother had not reported the incident to the police. The appellant was also concerned that the minor’s allegation of having been threatened was not revealed to her grandmother and the police. 9.The appellant asserted that though the High court upheld the Republic (1982) KLR 203 and R v Manilal Ishwerlal Purohit (1942) 9 EACA 58, 61, the appellant submitted that corroboration is an important aspect in cases of defilement because it connects the accused with the offence. That corroboration should not be marred with contradictions. He further submitted that the High Court erred in law for failing to observe that oral evidence must be direct to be admissible in court in terms of Section 163 of the Evidence Act. That the minor’s failure to disclose her ordeal to her grandmother broke the chain of direct evidence. That in cases of sexual offences, it is dangerous to convict only on the evidence of the victim. 10.The appellant further stated that the High Court did not observe that the case was framed against the appellant, considering PW3’s testimony that there were no bruises. That the breaking of a hymen is not proof of defilement. That the High Court failed to acknowledge that some girls are not born with a hymen, as observed by this Court in PKW v R (2012) eKLR. The appellant urged this Court to observe that he did not defile PW2 and to set him at liberty, for the reason that the prosecution’s case raised doubts that did not warrant his conviction. 11.The respondent’s submissions by Mr. Douglas Moseti, the learned Principal Prosecution Counsel, are dated 11th March 2026. It is submitted that from the record of proceedings before the trial and High courts, there were no material contradictions that could vitiate the trial. Counsel urged that being a charge of defilement, the prosecution had the legal burden to prove the age of the complainant, penetration of the penis into the vagina of the complainant and the identity of the appellant, as held in the case of George Opondo Olunga v Republic [2016] eKLR. He contended that the appellant herein has neither challenged that the minor’s age was below 11 years nor that the minor identified him. 12.Counsel for the respondent submitted that the High court correctly found that the time lapse between the date of the incident and the date the matter was reported to the police was reasonable because the PW2 was engulfed by fear arising from the threats issued to her by the appellant. He noted the High court concurred with the trial court that PW2’s evidence was 'clear, truthful, and consistent'. That the learned Judge observed that the trial court had the advantage of seeing and listening to her before arriving at the said compelling conclusion. Counsel asserted that in Fappyton Mutuku Ngui vs Republic [2014] KECA 570 (KLR), this Court observed that the effect of the proviso to Section 124 of the Evidence Act was captured in the case of Mohamed v Republic [2006] 2 KLR 138 as follows:“It is now settled that the courts shall no longer be hamstrung by requirements of corroboration where the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful.” 13.Further, counsel stated that the voir dire examination conducted during the trial proceedings satisfied the trial court that the minor could distinguish between the truth and falsehoods. That she went on to give a coherent and firm sworn testimony sufficient to find a conviction. Counsel cited Section 143 of the Evidence Act, which provides that, “no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact”. It was urged that the appellant had an opportunity to impeach the witnesses’ credibility as per Section 163 of the Evidence Act, but elected to give an unsworn statement and not call any witnesses. That the appellant’s defence could not therefore controvert the prosecution’s compelling evidence. 14.On the sentence, counsel submitted that the same is a matter of fact duly raised in the High Court and determined. That the Supreme Court stated in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) and 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) that Section 361(1) of the Criminal Procedure Code bars the Court of Appeal from hearing issues relating to matters of fact in cases of appeals from subordinate courts. Counsel urged that the appeal on this ground lacks merit because it is a matter of fact that cannot be entertained at this stage. That the appellant has neither demonstrated any illegality with the sentence nor any enhancement by the High Court. 15.This appeal came up for hearing on 27th April, 2026. The appellant appeared in person and virtually from Kamiti Maximum Prison and relied on his submissions. The learned prosecuting counsel, Ms. Onyango, appeared for the respondent and relied entirely on the respondent’s written submissions. 16.This is a second appeal and as submitted for the respondent, under Section 361(1) of the Criminal Procedure Code the appellant is entitled to appeal to this Court against the decision of the High Court as the first appellate court, only on a matter of law and we have no jurisdiction to hear an appeal on a matter of fact reckoning that severity of a sentence is matter of fact, except where a sentence has been enhanced by the High Court, or unless, the subordinate court had no power under section 7 of the Code to pass the sentence. 17.The point of law raised by the appellant in ground 1 of appeal is that the High Court erred in that the evidence of a minor PW1 was admitted in contravention of section 124 of the Evidence Act. The section, on corroboration required in criminal cases, states as follows;“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him:Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 18.Thus under this section a trial Court in alleged sexual offence may safely convict an accused if it is satisfied that the victim being the only witness, is telling the truth. In this case the evidence of the victim, PW2 was not the only evidence and the High Court affirmed the trial Court’s finding that PW2’s claims of what happened were confirmed by the medical finding that penetration had taken place. The related issues about some time lapse between the date of the offence and the date of the medical examination or reporting of the offence are all matters of fact which we lack jurisdiction to delve into. We find the first ground of appeal to lack merit therefore. 19.The second ground of appeal is about the sentence that was imposed and being an issue of fact, we lack jurisdiction to entertain the issue. In any event, subsection 8(2) of the Sexual Offences Act provides that 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. The sentence was mandatory and was lawfully imposed. We find that the second ground of appeal equally lacked merit. 20.In the premises, we dismiss the appeal and affirm the conviction and sentence against the appellant as passed by the trial court and sustained by the High Court. DATED AND DELIVERED AT KISUMU THIS 10TH 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