https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1472

Okitopus v Republic (Criminal Appeal E176 of 2022) [2026] KECA 1472 (KLR) (24 July 2026) (Judgment) Neutral citation: [2026] KECA 1472 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E176 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA July 24, 2026 Between Joshua Otuk Okitopus Appellant and Republic Respondent (Being an appeal against the judgment of the High Court of Kenya at Eldoret (Majanja, J.) dated 25th April 2019 in HCCRA No. No. 121 of 2015) Judgment 1.This is a second appeal by the appellant, Joshua Otuk Okitopus, against the judgment delivered on 25th April 2019 by the High Court at Eldoret (Majanja, J.), which dismissed his first appeal against both conviction and sentence. The appellant had been charged with the offence of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 21st January 2013, at [Particulars withheld] village in Eldoret East District within Rift Valley Province, the appellant intentionally and unlawfully caused his genital organ (penis) to penetrate the genital organ (vagina) of SCW, a girl aged 11 years. 2.The appellant was initially charged, tried, convicted and sentenced to life imprisonment by the then Chief Magistrate, M. Wambani, at the Chief Magistrate’s Court in Eldoret. As already stated, his first appeal was dismissed by Majanja, J. on 25th April 2019, prompting this second appeal. In the appeal before us, the appellant raises two grounds: that the elements of the offence were not proved, and that the sentence is manifestly harsh. 3.At the trial, the prosecution called six witnesses in support of its case. SCW (PW1), who was 14 years old at the time of testifying and 11 years old in 2013, identified the appellant, Joshua Otuk, as a neighbour and the herdsman of CK (PW3). She testified that on 21st January 2013, her mother sent her to “Gogo” K.’s house to borrow tomatoes. Upon arrival, she found Gogo in the kitchen, who gave her food and then left to buy cooking oil. While the complainant was eating, the appellant arrived, pulled her by the hand to his bedroom, warning her not to scream or he would kill her. The appellant then ordered her to remove her clothes and inserted his penis into her vagina while she was standing. She heard her mother calling her, at which point the appellant ran away through a window. She went outside crying and told her mother what had happened. Her mother was in the company of a teacher (LC (PW4)). She was taken to Talget Hospital and later to Moi Teaching and Referral Hospital for treatment. Before being treated at Talget, the doctor had insisted that the appellant be taken to the hospital, and he was indeed taken there, from where he was arrested by the police. During her testimony, she revealed that it was not the first time the appellant had defiled her, as a previous incident had occurred in a forest, but she did not tell her parents. 4.LW (PW2), the mother of the complainant, testified that on 21st January 2013, she sent her daughter to the home of CK (PW3) to borrow tomatoes. When the complainant did not return, she went to PW3's home with a neighbour, LC (PW4). Upon arriving, she called out her daughter’s name. It was then that she saw the appellant jump out of the window of his house, and immediately after, her daughter came out of the same house crying. When asked what the matter was, her daughter told them that the appellant had defiled her. She confirmed that they went to the village elder and then to the hospital. She also produced the child’s immunisation card, which showed her date of birth as 5th March 2001. 5.CK (PW3) testified that she was a farmer, and the appellant was her herdsman. On the material day, between 5:00pm and 5:30pm, she was at home when the complainant came to borrow tomatoes. She gave the complainant food and left her in the kitchen while she went to buy cooking oil. Upon her return, she met the complainant’s mother (PW2), who informed her that the appellant had raped the complainant. She stated that when the appellant returned with the cattle, she questioned him, but he remained silent. She also confirmed that the next day, the appellant gave Ksh. 105 to the village elder for the child’s hospital expenses. 6.LC (PW4), a teacher and neighbour, testified that she was a daughter-in-law of CK (PW3). On the evening of 21st January 2013, she heard the complainant’s mother (PW2) calling out for her daughter. She went to investigate. When she saw the complainant come out of the appellant's house, she asked her what was wrong. The complainant initially remained quiet but later told her that the appellant had told her to go to his room, removed her clothes, and did “bad manners” to her. The complainant also confided in her that it was not the first time and that the appellant had threatened to hurt her if she reported the issue to her mother. 7.Wycliffe Simatwa (PW5), a police constable attached to Kapsoya Police Post, testified that he received the report of the defilement on 22nd January 2013. He recorded statements from the complainant and other witnesses. He restated the sequence of events to the effect that the mother had sent the complainant for tomatoes, the appellant dragged the child into his house, threatened to kill her, and defiled her. He then charged the appellant with the offence. 8.Dr. Jane Yatich (PW6), a medical officer at Moi Teaching and Referral Hospital, produced the P3 form on behalf of her colleague, Dr. C. Kibet, who had examined the complainant. The medical history recorded was that the minor had been defiled by two people known to her, who had threatened to kill her. The doctor’s findings revealed healed hymeneal tears at the 5 and 7 o’clock positions and a mucopurulent vaginal discharge, which confirmed penetration. In addition to antibiotics, the complainant was put on Post-Exposure Prophylaxis (PEP) to prevent HIV infection. The doctor confirmed the complainant was aged 11 years at the time of the examination. 9.In his sworn defence, the appellant denied any involvement in the alleged offence. He claimed that on the material day, his employer, CK (PW3), had sent him to the shop to purchase sugar, salt, and other goods. The appellant stated that he was not present at the scene of the incident and that the allegations against him were false. Under cross-examination by the prosecution, he maintained that PW3 had sent him to the shop. He also stated that he did not know the complainant, despite having worked for PW3 for five years and the complainant being a neighbour. The appellant offered no further explanation regarding why the complainant was seen emerging from his house crying on the day of the incident, nor did he address the medical evidence or the testimony of other witnesses who placed him at the scene. 10.When the appeal came up for hearing, the appellant appeared virtually in person from Naivasha Maximum Security Prison while Mr. Tanui, learned Senior Assistant Director of Public Prosecutions, represented the respondent. The parties relied on their written submissions, which were already on record. 11.For the appellant, it was his submission that the first appellate court erred in law by holding that all the ingredients of defilement were proved. Specifically, he argued that the prosecution failed to prove the element of penetration to the required standard. Referring to the testimony of the doctor (PW6) to the effect that the injuries on the complainant's genitalia were healing and were due to a previous defilement, and that the second defilement could not show the tear of the hymen, the appellant argued that this evidence did not link him to the offence on 21st January 2013. The appellant additionally submitted that the complainant's history to the doctor that she was defiled by two persons contradicted the prosecution's case that he was the sole perpetrator. 12.As regards the sentence, the appellant, while conceding that life imprisonment was lawful, argued that recent legal developments have granted courts discretionary powers to award more lenient sentences. He submitted that the circumstances of the case were not so grievous to warrant a life sentence, as he did not use violence, whereas the complainant was above 11 years and he was a first offender. The appellant beseeched us to consider the period he has already spent in custody and substitute the life sentence with a more lenient definite term. In support of his argument that courts have discretion to impose lesser sentences than those mandatorily provided in the Sexual Offences Act, the appellant relied on, among other cases: Kilwake vs. Republic [2019] KECA 5 (KLR); Okello vs. Republic [2022] KECA 1034 (KLR); and Paul Ngei vs. Republic [2019] KECA 419 (KLR). 13.In response, Mr. Tanui submitted that the appeal was without merit and should be dismissed. On whether penetration was established, counsel submitted that the prosecution proved the element beyond reasonable doubt. Referring to the cases of Mark Oiruri Mose vs. Republic [2013] KECA 67 (KLR) and Erick Onyango Ondeng' vs. Republic [2014] KECA 523 (KLR), counsel argued that even the slightest penetration is sufficient to constitute the offence of defilement. Counsel asserted that the complainant's testimony was clear and consistent and was corroborated by the medical evidence and the evidence of the other witnesses. 14.Regarding the sentence, Mr. Tanui submitted that on a second appeal, this Court's jurisdiction is, under section 361 of the Criminal Procedure Code, limited to matters of law and severity of sentence is a matter of fact. According to counsel, this Court has no jurisdiction to interfere with the life sentence since the trial court had jurisdiction to pass it and the learned Judge had not enhanced it. Counsel relied on the Supreme Court decision in Republic vs. Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR) for the submission that the mandatory life sentence prescribed by section 8(2) of the Sexual Offences Act is constitutional and must be upheld. The respondent therefore urged that we dismiss the appeal and uphold the concurrent findings of the two courts below. 15.We have carefully considered the record of appeal, the submissions by the parties, and the law. This being a second appeal, our jurisdiction is confined to matters of law only, by dint of section 361(1) of the Criminal Procedure Code. We are guided by the principle that we must not interfere with concurrent findings of fact by the two courts below unless the findings are shown to be based on no evidence or are perverse. We cite Mwangi vs. Republic [2026] KECA 640 (KLR), where our mandate was reiterated by this Court as follows:“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at by the two courts below unless such findings are based on no evidence or are based on a misapprehension of the evidence or the courts below are demonstrably shown to have acted on wrong principles in arriving at its findings…” 16.Living up to this mandate, we will answer the questions as to whether the element of penetration was proved and whether we should interfere with the sentence of life imprisonment. In Munyoki vs. Republic [2017] KECA 376 (KLR), the Court stated the elements of the offence of defilement as:i.The victim must be a minor, andii.There must be penetration of the genital organ and such penetration need not be complete or absolute. Partial penetration will suffice.”We only need to add that where the identity of the perpetrator is in doubt, evidence must be adduced to link the accused person with the crime. 17.The appellant submitted that penetration was not proved to the required standard. In so arguing, he relied on the evidence of PW6, the doctor, to argue that since the injuries on the complainant’s genitalia were healing and were due to a previous defilement, the evidence failed to prove that he had penetrated the complainant on 21st January 2013. We are unable to accept this submission. 18.Under section 2 of the Sexual Offences Act, penetration is defined as the partial or complete insertion of the genital organs of a person into the genital organs of another person. This Court has consistently held that even the slightest penetration is sufficient. For instance, in Mark Oiruri Mose vs. Republic (supra), the Court held that:“In any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim. Many times the attacker does not fully complete sexual act during commission of the offence. That is the main reason why the law does not require that evidence of 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.” 19.Similarly, in Erick Onyango Ondeng’ vs. Republic (supra), the Court held that:“We agree with the first appellate court that to establish defilement, it is not necessary that the hymen must be broken; even partial penetration of the female genital by male genital will suffice to constitute the offence.” 20.In this case, the complainant’s testimony was clear, consistent, and detailed. She described how the appellant removed her clothes and inserted his penis into her vagina. Her evidence was corroborated by the medical evidence, which confirmed that she had healing hymenal tears. Although the fact that the tears were healing may indicate previous penetration, it did not rule out recent penetration by the appellant; it merely indicated the passage of time between the incident that caused the injury and the examination. Moreover, the appellant’s defence that he was not at the scene of crime was shattered by the testimony of PW2 and PW4, who saw him jump out of a window from his house, from where the complainant emerged crying. Consequently, we find that the prosecution proved the element of penetration beyond reasonable doubt. 21.Should we interfere with the sentence? According to the appellant, the sentence of life imprisonment is harsh, excessive, and contrary to recent jurisprudence. He urged us to consider the sentencing policy guidelines and exercise our discretion to impose a more lenient sentence. The respondent, on the other hand, argued that section 8(2) of the Sexual Offences Act prescribes a mandatory sentence of life imprisonment and that the trial court had no discretion to impose a lesser sentence. 22.Section 8(2) of the Sexual Offences Act provides:“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.” 23.The Supreme Court in Republic vs. Joshua Gichuki Mwangi [2024] KESC 34 (KLR) considered the aforesaid provision and settled the law on mandatory minimum sentences by holding that mandatory sentences are not unconstitutional and trial courts have no discretion to go below the statutory sentences in sexual offences. In Ndungu vs. Republic [2025] KECA 1094 (KLR), this Court affirmed the Supreme Court's decision in Republic vs. Joshua Gichuki Mwangi (supra) on the lawfulness of penalties prescribed in the Sexual Offences Act and concluded that courts have no jurisdiction to interfere with the sentences prescribed by the Act. We only need to observe that all the decisions cited by the appellant in support of his argument that emerging jurisprudence indicates that courts have sentencing discretion under the Sexual Offences Act are decisions made prior to the judgment of the Supreme Court in Republic vs. Joshua Gichuki Mwangi (supra). In view of the decision of the Supreme Court, we think the decisions cited by the appellants can no longer be said to be good law. 24.However sympathetic we may want to be, we remain bound by the decisions of the Supreme Court. Additionally, we also note that the trial court considered the appellant’s mitigation and the circumstances of the offence before imposing the sentence. Accordingly, we find that the sentence of life imprisonment imposed upon the appellant is lawful as it complies with section 8(2) of the Sexual Offences Act, which provision is mandatory in nature. As a result, we hold that we have no jurisdiction to accede to the appellant’s plea on sentence. 25.In light of our foregoing discussions, we find appellant has failed to demonstrate any error of law in the judgment of the learned Judge. The conviction was sound, and the sentence legal. We, therefore, find no merit in the appeal and dismiss it in its entirety. DATED AND DELIVERED AT ELDORET THIS 24TH DAY OF JULY 2026.M. GACHOKA C.Arb, FCIArb…………………………JUDGE OF APPEALW. KORIR…………………………JUDGE OF APPEALL. M. NDOLO…………………………JUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR