https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7684

Ouma v Republic (Criminal Appeal E043 of 2025) [2026] KEHC 7684 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 7684 (KLR) Republic of Kenya In the High Court at Siaya Criminal Appeal E043 of 2025 DK Kemei, J June 5, 2026 Between Joseph Obiero Ouma Appellant and Republic Respondent (Being an appeal from judgment of Hon. Tsimonjero (SRM) delivered on 15/7/2025 in Ukwala Sexual Offences Case No.45 OF 2018 Republic vs. Joseph Obiero Ouma) Judgment 1.This appeal emanates from the Judgment of Hon. Tsimonjero (SRM) dated 15/7/2025 in Ukwala SRMCR S.O. No. 45 of 2018 wherein he convicted the Appellant herein and sentenced him to serve life imprisonment for the main offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. 2.The Appellant was aggrieved by the aforesaid conviction and sentence and duly filed his Petition of Appeal dated 25th July 2025 wherein he raised the following grounds of appeal namely:i)The learned Magistrate erred in law and in fac in convicting the Appellant for the offence of defilement when the prosecution’s case had not been proved to the required standards.ii)The learned Magistrate erred in law and fact in failing to consider the fact that the blood samples taken from the appellant was never matched with those of the minor.iii)The learned Magistrate erred in relying on the evidence of two minors who seemed to have been coached to testify in a certain way. Reasons wherefore, the appellant prays that the appeal be allowed and conviction sentence be set aside. 3.This being the first appellate court, its duty is to analyze and evaluate the entire evidence by subjecting it to a fresh exhaustive scrutiny and to arrive at its own independent conclusion as to whether or not to uphold the decision of the trial court. This court must bear in mind that it did not have the opportunity to hear or see the witnesses and must give due allowance for that. In Okeno – VS – Republic (1972) EA 32, it was held that;“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 4.JAO (PW1) was the complainant aged nine (9 ) years old and that she was born on 25/6/2009. She stated that on 23rd October 2018 in the afternoon hours (she broke down and given time to recover) she went home from school and cleaned the utensils. Her mother then told her that she was going for a group's meeting and that she would come back with vegetables then send her to the grinding mill for flour. Her mother went and came back and asked her to take two gorogoros (tins) of maize and go to the grinding mill. She took the maize and went to the grinding mill. On arrival (broke down and given time to recover) she found Joseph who is a person well known to her and who told her to wait for other people to come before he could grind the maize for them as she was then alone. She waited and that two other people came and then the said Joseph ground their maize but did not grind hers and that the two people left. That Joseph then held her hand, pulled off her skirt and pantie and pushed her to the ground. He then removed his trousers (broke down again) and then removed his penis and inserted it into her vagina. That he did not use any protection. That in the process another girl called A came to the grinding mill whereupon the said Joseph informed A that she was not as beautiful as herself (complainant). That her younger sister N then came. That A then claimed that she would tell her (complainant's) mother. She told A that she would personally inform her mother. They left and went home and on arrival, she told her mother what had happened. They went back to the grinding mill and found Joseph had already closed up the grinding mill. This was not usual as it was still too early. Her mother then directed that they should go to the police station. They went to Sigomere police station where they were referred to the hospital where she was examined and treated. She identified the medical documents in her name (P3 Form) which was marked as-PMFI-I, Treatment Card-(PMFI-2), Treatment Notes-(PMFI-3), and Lab Request and Report-(PMFI-4). That Joseph was a person well known to her as she used to go to his grinding mill and had seen him so many times. That Joseph was the man in the dock.On cross examination, she stated that she was alone when she arrived at the grinding mill. She was the first one on the cue. Joseph told her to wait for at least two or three other people to come before he could switch on the grinding mill. A did not come to grind as she was looking for firewood. She found the door to the grinding mill partially open and came to see what was happening. She did not find any cereals in the grinding mill. There was no one she was playing with. The accused ground her maize the last before she went home. No elderly woman was around as she did not see any. She later went home with her sister Nelly. 5.NAO (PW2), the complainant's younger sister aged 12 years old. She stated that on 23rd October 2018 at around 1600 hours she came home from school. Her mother asked her to go look for her sister at the grinding mill. On reaching the grinding mill, she saw the accused person tightening his belt. When the accused person saw her, he hurriedly tightened the belt, sat down and held his cheeks. Her sister was at the door bending and holding her toe which the accused person had stepped on. The accused then told them to leave as the day was over and that he wanted to close the grinding mill. They left and went home. On arrival, their mother asked the complainant what had happened but she was reluctant to tell her the first time. When asked for the second time, the complainant informed their mother that Joseph had done bad manners to her. Their mother then directed that they should go to the police station. They went and reported at Sigomere police station where they were referred to hospital. She had seen Joseph before and he was the man in the dock.On cross examination, she stated that when she went to the grinding mill, she found the complainant and another girl called A who was standing there. She saw the accused inside the grinding mill tightening his belt as the complainant was standing at the door. She did not think of anything that they would be doing. The accused had already ground the maize for the complainant. A was standing on the road also looking inside the grinding mill. The complainant walked on her on as they went home. She asked the complainant why she was crying as the accused was tightening his belt and that she told her that the accused had done bad manners to her. The complainant told them that the accused had pulled her inside the posho mill and told A to go away as she was not beautiful and then did bad manners to her. That they took the complainant to hospital where she was examined. 6.GMO (PW3) was the complainant's mother. She stated that on 23rd October 2023 in the afternoon, she asked the complainant to go to the grinding mill as she went for a group's meeting and look for vegetables. She came back later and found the complainant had not come back home. She heard the posho mill grinding and going off. She then went looking for her two girls (PW-I & PW-2). She met them on the road. The complainant was behind PW-2 with some distance between them. The complainant told her that the posho mill man had done bad manners to her. She went to the posho mill and found the attendant (Joseph) had already closed. She went to the home of the owner of the posho mill one Immaculate and asked her where the attendant was. She then informed her what had happened. That she informed her to check the girl. They checked the girl and found that there was some dirt. That Immaculate then called for a motorbike and they rushed to Sigomere police station. They were referred to hospital for treatment and went back to the police station and recorded statements. That the accused was arrested the following day. That the accused is called Joseph Obiero and that she knew him before. That the complainant is her daughter born on 26th June 2009. She identified her Birth Certificate (PMFI-5).On cross examination, she stated that the complainant was walking while bending. She took the child to hospital in the company of a police officer. She was with Immaculate at the hospital. Because she was aware that the accused is said to be HIV positive, they took the child to hospital for the necessary treatment to prevent the infection. That Nelly told her that she found the accused tightening his belt and when he saw her, he sat down in shock. That the accused was chasing way the other girl. It was Immaculate who called for the motorcycle. She acted immediately and took the child to hospital. She did not look at the watch/time. 7.No. xxxx PC (W) Lena Ngimu was the investigation officer. That on 23rd October 2018 at around 2100 hours, a case of defilement was reported at Sigomere police station by one GMO accompanied by her daughter JAO who had been defiled. She interrogated the victim who informed her on how the incident had happened. She took the complainant to hospital for examination and treatment and thereafter she was discharged. The P3 Form was then filled at the same facility. She recorded the witness statements. The accused was later arrested and charged. That the victim was 9 years old at the time of the incident. She produced the complainant's Birth Certificate as evidence (Pex-5).On cross examination, she stated that she was not present during the incident. She took the child to hospital. She did not take samples from the accused for DNA sampling. There was no court order for sampling and testing. She believed that there was evidence on record linking the accused to the offence. 8.Victor Godia (PW5) was a Clinical Officer from Bondo Sub-County Hospital. He stated that on 24th October 2018 the complainant was taken to him by the mother at around 9.00pm following an alleged defilement on the previous day (23rd October 2018). He examined the complainant and carried out some tests. The estimated age of the minor was 12 years. The external genitalia were normal, both labia were tender, the clitoris was swollen and tender, vaginal wall was bruised and tender, hymen was freshly broken and bleeding. There was pain on urination. There were deposits of sperms (whitish fluid) on the labia. HIV test was negative, pregnancy test was negative. There was nothing significant on high Vaginal Swab. There were no venereal diseases. The examination revealed vaginal penetration. He produced the P3 Form (P.Exh-l), Treatment Card (Pex-2), Treatment Notes (Pex-3) and Laboratory Report (Pex-4).On cross examination, he stated that he met the accused in the hospital when he was taken there by the police for examination and the report is available. The accused accepted to be examined. He explained to him (accused) the reason for the examination. He gave free consent. 9.The trial court later ruled that the prosecution had established a prima facie case against the Appellant to warrant him to be placed on his defence. He opted to tender a sworn testimony. 10.Joseph Obiero Ouma (DW1) was the accused person and the Appellant herein. He stated that on 23 rd October 2018 the complainant, N and A went to the posho mill. That the complainant was the first then A followed her. That the complainant sieved her maize and found a woman who had come before her. That the complainant told him to help her and he told her to wait for other people. That A came after a short while. He did grind the maize for them. The complainant and A placed their flour at the door and they started playing. As he was inside the posho mill, another lady came and found the children playing and asked them how dangerous the game was. The woman took her flour and left the children playing. In the process, the complainant injured her toe and it started bleeding. The complainant told A that she would report her. Shortly, the complainant's sister Nelly appeared and found her standing at the door. She told the complainant that her mother was calling her. They left and he remained with A who was waiting for her change. That it is not true that she defiled the complainant. That he was arrested the following day at around 1800 hours and taken to Sigomere police station. That the following day he was taken to hospital for examination but he did not see the results.On cross examination, he stated that on 23rd October 2018 he was working as a posho mill attendant. He could not remember the name of his employer. He never went back to work even after release on bond. He could not go back there as it was close to the home of the complainant and it could bring issues. He did not know the complainant before. He only knew the mother. The complainant went to the posho mill before the woman. The woman did not go to the posho mill. The complainant found the woman had already gone to the posho mill and left her maize. A went to the posho mill at around 1600 hours. The woman left the complainant playing with A. Nelly went and took the complainant leaving A behind. She did not know Nelly before. He knew she was the complainant's sister when they came to court. He heard of the name A in court. He was not given a chance to call her employer as his witness as well as the woman he had ground her maize. He was standing at the door when Nelly went to the posho mill to call the complainant. There were no other people. 11.The appeal was canvassed by way of written submissions. It is only the Appellant who complied. 12.Learned counsel for the Appellant raised two issues for determination namely, whether the sentence of life imprisonment imposed by the trial court was harsh, excessive, disproportionate and unconstitutional and whether this Honorable Court ought to interfere with and substitute the same with a lesser determinate sentence. 13.It was submitted that It is trite law that an appellate court may interfere with a sentence where the trial court failed to consider relevant factors or considered irrelevant factors, or imposed a sentence that is manifestly excessive. This principle was succinctly stated in Wanjema V Republic [1971] EA 493, 494.“An appellate Court should not interfere with the discretion which a trial Court has exercised as to sentence unless it is evident that it overlooked some material factor, took into account some immaterial factor, acted on a wrong principle or the sentence is manifestly excessive in the circumstances of the case. The instant sentence merits this Court's interference with it on each of these grounds. No account was taken, as it should have been, of the fact that the appellant pleaded guilty: Skone (1967), 51 Cr. App. R. 165 and Godfrey (1967), 51 Cr. App. R. 449. (This admits no doubt because the magistrate awarded the maximum sentence to this offender; which of itself is unusual.)"It was submitted that the record demonstrates that the trial court treated the sentence of life imprisonment as mandatory, thereby fettering its judicial discretion. Reliance was placed in the case of Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR which held that mandatory sentences violate the right to a fair trial, dignity and mitigation as guaranteed under Articles 25(c), 28 and 50(2)(q) of the Constitution of Kenya 2010. It was also submitted that although the decision in Muruatetu concerned the death penalty, the High Court and the Court of Appeal have consistently extended its reasoning to mandatory minimum and maximum sentences under the Sexual Offences Act.In Christopher Ochieng v Republic Criminal Appeal no 49 of 2008, the Court had this to say“Finally, the appellant urged this court to interfere with the life sentence meted out against the appellant. It is possible to note that the sentence was indeed the maximum provided under Section 8(2) of the Sexual Offences Act, Act No.3 of 2006. However, that is the only sentence provided. It is clear that the legislator did not wish to provide the sentence on sliding scale in respect of which the convicting court would have discretion to fix a suitable sentence commensurate with possible sliding aggravating circumstances. It seems to me therefore, that the court's hands were tied as there was only one sentence to give, which it promptly did."Similarly, in Jared Koita Injiri v Republic Criminal Appeal no 93 of 2014“This then leaves the question of the sentence. Arising from the decision in Francis Karioko Muruatetu & Another vs Republic, SC Pet. No. 16 of 2015 where the Supreme Court held that the mandatory death sentence prescribed or the offence of murder by section 204 of the Penal Code was unconstitutional. The Court took the view that Section 204 of the Penal Code deprives the Court of the use of judicial discretion in a matter of life and death. Such law can only be regarded as harsh, unjust and unfair. The mandatory nature deprives that the court of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an a appropriate case. Where a Court listens to mitigating circumstances but has, nevertheless, to impose a set sentence, the sentence imposed fails to conform to the tenets of fair trial that accrue to the accused persons under the Article 25 of the Constitution; an absolute right. In this case the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by section 8 (1) of the Sexual Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. The appellant was provided an opportunity to mitigate in the trial court where it was stated that he was a first time offender. He pleaded for leniency. However, it cannot be overlooked that the appellant committed a heinous crime, and occasioned severe trauma and suffering to a young girl. His actions have demonstrated that around him, young and vulnerable children, like the complainant could be in jeopardy. Needless to say, pursuant to the Supreme Court decision in Francis Karioko Muruatetu & Another vs Republic (supra), we would set aside the sentence for life imposed and substitute it therefore with a sentence of 30 years from the date of sentence by the trial court. Orders accordingly." 14.It was also submitted that life imprisonment is the maximum sentence under the law and ought to be reserved for the most aggravated and exceptional cases. That the circumstances of this case do not disclose such extreme aggravating circumstances so as to warrant the imposition of life imprisonment. In Dismas Wafula Kilwake v Republic, the court held that sentencing must be proportionate to both the offence and the offender.Kenyan Courts have consistently interfered with life sentences imposed for defilement and substituted them with determinate terms where circumstances so permit.In Evans Wanjala Wanyonyi v Republic, the Court had this to say“On the enhanced 20-year term of imprisonment meted upon the appellant by the learned judge, we are of the view that, the constitutionality of the mandatory minimum sentence meted out to the appellant raises a question of law. This Court in Christopher Ochieng - v- R [2018] eKLR Kisumu Criminal Appeal No. 202 of 2011 and in Jared Koita Injiri - v- R, Kisumu Criminal Appeal No. 93 of 2014 considered legality of minimum mandatory sentences under the Sexual Offences Act. This Court noted that the Supreme Court in Francis Karioko Muruatetu & another - v- Republic SC Petition No. 16 of 2015 held the mandatory death sentence prescribed for the offence of murder by Section 204 of the Penal Code was unconstitutional; that the mandatory nature deprives courts of their legitimate jurisdiction to exercise discretion not to impose the death sentence in an appropriate case; that a mandatory sentence fails to conform to the tenets of fair trial that accrue to the accused person under Article 25 of the Constitution. Guided by the aforestated Supreme Court decision, this Court in Christopher Ochieng - v- R (supra) stated: In this case, the appellant was sentenced to life imprisonment on the basis of the mandatory sentence stipulated by Section 8 (1) of the Sexual Christopher Ochieng - v- R (supra) and Jared Koita Injiri - v- R, Kisumu Criminal Appeal NO. 93 of 2014 in relation to sentencing, we are convinced and satisfied that the enhanced mandatory 20 year term of imprisonment meted upon the appellant by the learned judge cannot stand. We are inclined to intervene. We hereby set aside the 20 year term of imprisonment meted upon the appellant. We substitute the 20 year term of imprisonment with one of imprisonment for a term of ten (10) years with effect from the date of sentence by the trial court on 18th September 2015. 16.The appellant respectfully submitted that he was remorseful and that the trial magistrate failed to genuinely consider that he had served six years before re-trial of the matter. When the appellant also did not subject the complainant to physical violence beyond the offence itself, there was no evidence of grievous harm on the complainant. The clinical officer further gave a laboratory testing report that the HIV test on the complainant was negative, the complainant did contract any HVS urinal diseases and that the complainant did not procure a pregnancy. At the time of the examination, the complainant was well clouted, composed and in fair general condition. Hence, the appellant did not under any circumstance obstruct to justice during the trial and complied with court proceedings and thus the appellants lack of a 'spirited defence' should not be construed as aggravation; rather it reflects limited legal knowledge and capacity, a factor that calls for leniency rather than punishment. 16.The circumstances described by the complainant's mother- including alleged intimidation and hurting from relatives were not directly attributed to the appellant, yet appear to have influenced the severity of the sentence.Offences Act, and if the reasoning in the Supreme Court case was applied to this provision, it too should be considered unconstitutional on the same basis. ..... Needless to say, pursuant to the Supreme Court's decision in Francis Karioko Muruatetu & another - v- Republic (supra), this court should set aside the sentence of life imprisonment imposed and substitute it therefor with a sentence of 30 years' imprisonment from the date of sentence by the trial court.In this appeal, guided by the merits of the Supreme Court decision in Francis Karioko Muruatetu & another - v- Republic (supra) and persuaded by the decisions of this Court in Christopher Ochieng - v- R (supra) and Jared Koita Injiri - v- R, Kisumu Criminal Appeal NO. 93 of 2014 in relation to sentencing, we are convinced and satisfied that the enhanced mandatory 20 year term of imprisonment meted upon the appellant by the learned judge cannot stand. We are inclined to intervene. We hereby set aside the 20 year term of imprisonment meted upon the appellant. We substitute the 20 year term of imprisonment with one of imprisonment for a term of ten (10) years with effect from the date of sentence by the trial court on 18th September 2015.The appellant respectfully submitted that he was remorseful and that the trial magistrate failed to genuinely consider that he had served six years before re-trial of the matter.The appellant also did not subject the complainant to physical violence beyond the offence itself girth no evidence of grievous harm on the complainant. The clinical officer further gave a laboratory testing report that the HIV test on the complainant was negative, the complainant did dot contract any HVS urinal diseases and that the complainant did not procure a pregnancy. At The time of the examination the complainant was well clouted, composed and in fair general condition. the appellant did not under any circumstance obstruct to justice during the trial and complied With court proceedings. Thus the appellants lack of a 'spirited defence' should not be construed as aggravation; rather it reflects limited legal knowledge and capacity, a factor that calls for leniency rather than punishment. 17.It was submitted that the objectives of sentencing include punishment, deterrence, rehabilitation and reintegration into Society. That the Appellant submits that while defilement is undoubtedly a serious offence deserving of firm punishment, not every case warrants the ultimate penalty of life imprisonment. That courts have increasingly imposed long but determinate sentences in defilement cases where circumstances do not justify life imprisonment. A fixed custodial sentence would serve the interests of justice while preserving the possibility of rehabilitation and reform. 18.It was finally submitted that in light of the foregoing, the Appellant humbly urges this Honourable court to find that the sentence of life imprisonment is harsh and excessive in the circumstances and that the same should be set aside and substituted with a lesser, determinate custodial sentence that this court deems just and appropriate. 19.I have considered the record of appeal and the submissions tendered. I find the issue for determination is whether the Respondent’s case was proved beyond any reasonable doubt against the Appellant. 20.The burden of proof in all criminal trials is upon the prosecution to prove and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462. 21.The offence of defilement has three essential ingredients which must be proved by the prosecution before a conviction can be achieved. The said elements include; age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to ensue.“Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: -(1)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; andb.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 and the Children’s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees. 22.As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, 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. 23.Regarding proof of age, and as noted above it is noteworthy to state at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. 24.Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. There are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR) where the court stated as follows:“……..the question of proof of age has finally been settled by a recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, 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” It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...” 24.In the present case, the prosecution discharged this burden through the birth certificate (Exhibit 5) produced by PW4, which established that the minor was born on 25/6/2009, making her age as nine years four months at the time of the incident. This was further corroborated by the Clinical Officer (PW5), satisfying the legal threshold. Even though the clinical officer estimated the age of the minor as 12 years, the age captured on the birth certificate is the valid document which had been issued about four years prior to the incident. Indeed, the documentary proof of age is an objective fact that cannot be fabricated. Consequently, the sentence of life imprisonment was legally anchored on the proven age of the victim. I find that the age of the minor was proved beyond reasonable doubt. 25.As regards the aspect of penetration, Section 2 of the Sexual offences Act No. 3 of 2006 defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. 26.Section 124 of the Evidence Act, Cap 80 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other 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 offense, 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.” 27.In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” 28.In the present case, PW1 gave a graphic account of the Appellant inserting his genitalia into hers, which was corroborated by PW5’s medical findings such as swollen clitoris, tender and bruised vaginal wall, freshly broken hymen which was actively bleeding, pain on urination as well as deposit of sperms (whitish fluid) on the labia. The said clinical officer confirmed that there had been vaginal penetration. 29.The Appellant’s defense of having been framed up is diminished by the medical evidence; as held in Seme v Republic [2008] eKLR, that a mere denial cannot overturn positive medical findings corroborating the commission of the offense. 30.Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. 31.In this case, the ingredient of penetration, the prosecution relied on the sworn testimony of the minor describing the insertion of a penis into her vagina, which was corroborated by the medical evidence of PW5. The Clinical Officer noted swollen clitoris, tender and bruised vaginal wall, freshly broken hymen which was actively bleeding, pain on urination as well as deposit of sperms (whitish fluid) on the labia and that he concluded that there was vaginal penetration penetration. This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006, where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupturing the hymen. 32.Furthermore, Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. The defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Hence, I find the second ingredient namely penetration was adequately proved based on the victim’s evidence and the medical evidence. 33.As regards the issue of identification/participation of the Appellant, the same was firm, consistent, and free from any possibility of mistake. The complainant knew the Appellant prior to the incident and positively recognized him as the perpetrator. She knew him as Joseph and who ran a maize grinding mill within the neighbourhood. This was therefore a case of recognition rather than identification of a stranger, which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Others v Republic [1980] eKLR, the Court of Appeal held that recognition is “more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the assailant.” The complainant’s evidence was direct, unwavering, and supported by the circumstances of close physical proximity during the commission of the offence, which left no room for doubt. Further, it is noted that the incident took place in broad daylight and thus the complainant had no difficulty in recognizing the Appellant. Again, the complainant’s sister N.A.O (PW2) arrived at the scene and found the Appellant tightening his belt and hurriedly held his cheeks. Indeed, PW2 found the Appellant in flagrant delicto as he was trying to zip up after defiling the complainant. The complainant was later escorted to hospital and examined and that sperms were found in her vagina. 34.The environmental circumstances also favoured accurate identification. The incident occurred in a setting where the complainant had sufficient opportunity to see and recognize the Appellant. The Court of Appeal in Wamunga v Republic [1989] eKLR emphasized that courts must evaluate lighting, distance, and duration of encounter when assessing identification. Here, the interaction was prolonged, intimate, and involved direct contact, making misidentification practically impossible. The complainant’s emotional distress immediately after the incident further supports the reliability of her identification as she described the perpetrator by name to her sister (PW2) and her mother (PW3) without hesitation. 35.Finally, on identification, the complainant recognized the Appellant as Joseph who mills maize in the neighbourhood. Jurisprudence establishes that recognition is more reliable than identification of a stranger (Anjononi v Republic [1980] eKLR). The trial court correctly analyzed the defense evidence and found it did not dislodge the evidence of the prosecution which was overwhelming. Indeed, I find that it was highly unlikely that the mother of the victim would use her young and vulnerable daughter as a victim of defilement to fix the Appellant yet nothing arose as to any grudges between them prior to the incident. I find that the identification was thus safe, and the defense was rightly rejected as a diversionary tactic. 36.In the landmark case of R v Turnbull & Others [1977] QB 224, the court established guidelines for identification evidence, stating that recognition of a known person carries more weight than the identification of a stranger. Although the Appellant raised an alibi defence, the trial court was justified in rejecting it because he admitted being within the same neighbourhood, and in Uganda v Wabwire Benson, HCT-09-CSC-0259-2016, it was held that a defence of alibi cannot stand where the accused is positively placed at the scene by the prosecution evidence. 37.Furthermore, the Appellant’s own conduct reinforced the prosecution’s case on identification. His presence with the complainant shortly before the incident, his inconsistent explanations, and the absence of any credible contrary account undermine the defense and strengthen the recognition evidence. Courts have held that where recognition is supported by the conduct of the accused and surrounding circumstances, the evidence is exceptionally strong. In Simiyu & Another v Republic [2005] eKLR, the Court of Appeal held that prompt and consistent reporting of the assailant’s identity enhances evidential reliability. In this case, the complainant reported the Appellant’s name immediately to her sister (PW2) and that her mother (PW3) confirmed the consistency of her report, and that no evidence exists of animosity or mistaken identity. The identification was therefore accurate, reliable, and proved beyond reasonable doubt. The ingredient of identification was therefore sufficiently proved, going by the above evidence, it is clear that the cumulative and conjunctive elements in a charge of defilement all proved and the evidence was consistent and corroborative hence sufficient to convict the Appellant for the offence. It is highly unlikely for the parents of the victim to use their young and vulnerable daughter as a victim of a sexual act so as to settle scores with the Appellant. Hence, the finding on conviction by the learned trial magistrate was quite sound and must be upheld. 38.On whether the sentence imposed upon the Appellant was appropriate, the statutory prescription and judicial discretion, the trial court imposed a sentence of life imprisonment pursuant to Section 8(2) of the Sexual Offences Act, which prescribes this penalty for the defilement of a child aged eleven years or below. While the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared mandatory minimum sentences unconstitutional, it affirmed that courts must consider the gravity of the offense and the specific circumstances before sentencing. 39.In Jared Koita Injiri v Republic [2019] eKLR, the Court of Appeal upheld a life sentence for defilement of a minor, noting that despite the discretion granted by Muruatetu, the severity of the crime against a child of tender years justifies the harshest penalty. The trial magistrate exercised this discretion judicially, noting the mandatory nature of the provision and the need to deter such conduct. 40.In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence: -“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:“It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material, or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless, anyone of the matters already states is shown to exist.” (Emphasis added) 41.As regards aggravating factors and breach of trust, the sentence was just given due to the presence of significant aggravating factors. The victim was merely 9 years old, a child of extremely tender years who required protection rather than predation. Furthermore, the Appellant was a close neighbour who ran a maize mill in the neighbourhood and thus he occupied a position of trust and authority over the child. 42.In Mumbai v Republic [2014] eKLR, the court emphasized that breach of trust is a serious aggravating factor. The Appellant abused this trust by not only defiling the minor but also using her and other children in the area as his sex objects which speaks to his moral blameworthiness and total disregard to the protection of children. 43.As regards proportionality and protection of the public, the sentence of life imprisonment is proportionate to the offense and serves the interests of justice. The victim suffered trauma and that the medical evidence confirmed physical injury to the private parts of the complainant. Courts have consistently held that sentences in sexual offenses must reflect the societal outrage and the need to protect vulnerable children from sexual predators. Given the Appellant's lack of remorse and his attempt to dismiss the proceedings as a "grudge," the life sentence ensures the protection of the public and serves as a deterrence, aligning with the principles of sentencing set out in the Criminal Procedure Code. Further, the conduct of the Appellant who was at the time running a maize mill within the area had developed a habit of preying on young and vulnerable girls and thus the same must be deprecated. Again, the Supreme Court in Republic Vs Joshua Gichuki Mwangi & Others Petition No. 18 of 2023, held that the minimum sentences provided for in the Sexual Offences Act remain lawful until the statute is declared unconstitutional. Hence, as matters stand, the sentence of life imprisonment is the appropriate sentence which was imposed by the trial court. Iam therefore not inclined to interfere with the sentence imposed by the trial court as the same is the minimum possible in law and was warranted in the circumstances. 44.In the result, it is my finding that the Appellant’s appeal is devoid of any merit. The same is dismissed. The conviction and sentence by the trial court is hereby upheld DATED AND DELIVERED AT SIAYA THIS. 5TH DAY OF JUNE 2026.D. KEMEIJUDGEIn the presence of:Joseph Obiero Ouma.............................. AppellantRono For Ojuro................................for AppellantSoita .......................................for RespondentMs. Maurine.................................Court Assistant