https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7612

Kodhek v Republic (Criminal Appeal E065 of 2025) [2026] KEHC 7612 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7612 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E065 of 2025 LM Wachira, J June 3, 2026 Between Bernard Otieno Kodhek Appellant and Republic Respondent (Being an appeal from the original conviction and sentence in Kisumu criminal case no. E065 of 2025 by the Hon. R.M. OANDA, SPM) Judgment 1.Benard Otieno Kodhek the Appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8(3) of the Sexual Offences Act No.3 of 2006. The particulars were that on 24th July 2024 at Manyatta Area of Kisumu Central Sub county, within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of XYZ a child aged 11 years. 2.In the alternative charge the Appellant was charged with the offence of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 24th July 2024 at Manyatta Area of Kisumu Central Sub county, within Kisumu County, the Appellant intentionally and unlawfully touched vagina of XYZ a child aged 11 years. 3.The accused pleaded not guilty to the main and alternative charges. At the hearing, the prosecution called 5 witnesses to prove its case. The Appellant was put on his defence and he denied committing the offence. He called two witnesses. 4.In his judgment, the trial Magistrate convicted the Appellant for the offence of defilement and after mitigation, sentenced him to serve 20 years imprisonment. 5.Dissatisfied with the trial court’s judgment the Appellant filed the current appeal citing the following grounds:i.That the trial court erred in law and in fact in failing to establish that the prosecution did not prove the ingredients of the offence of defilement beyond reasonable doubt.ii.That the trial court erred in law and in fact in conducting and arriving at a decision while relying on evidence that was full of contradictions and without analysing the evidence on record.iii.That the trial court erred in law and in fact in not appreciating that the prosecution’s evidence lacked corroborative evidence to support the complainant’s allegations of sexual offence.iv.The Appellant sought leave to erect more grounds after receiving and perusing the certified copy of proceedings. 6.The Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. The appeal was heard by way of written submissions. Both parties filed their submissions. Appellant’s Submissions 7.The submission of the Appellant was that the trial court erred in not properly conducting a voir dire examination and allowed the complainant to give sworn evidence instead of unsworn evidence which required corroboration yet there was no such corroboration. 8.The Appellant submitted that the there was no proof of penetration. He indicated that the only medical evidence available is an old tear of the hymen which would not be proof of penetration. He submitted that the trial Magistrate erred in complying with Section 124 of the Evidence Act. 9.The Appellant further submitted that he is a person with a disability and under the Article 14 of the UN Convention on persons with disability, he ought to have been discharged under Section 35 (1) of the Penal Code. Respondent’s Submissions 10.In opposing the appeal, the Respondent submitted that crucial elements to sustain a conviction for the offence of defilement were proved by the prosecution. According to Respondent, the complainant was 11 years old which was proved by the birth certificate which indicated she was born on 26th January 2013. 11.On penetration, the prosecution submitted that under Section 2 of the Sexual Offences Act, penetration is defined thus; "The partial or complete insertion of the genital organ of a person into the genital organs of another person. " It submitted that penetration was proved by medical evidence and corroborated by the evidence of the minor. 12.On the question of identity, the Respondent submitted that the victim knew the complainant well and told court that he lived within the local shopping centre. This was therefore not a question of recognition but a person well known to the victim. 13.On the alleged inconsistencies to the prosecution evidence, the Respondent submitted that the testimony of PWI and all the prosecution witnesses was forthright, concise, and consistent and stated that there were no inconsistencies in the prosecution case and urged the court not to interfere with the trial Magistrate’s finding. Analysis of the Trial Court Evidence. 14.The role of this Court as the first appellate Court is well settled. It was held in the case of Okemo vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that. 15.The complainant testified as PW1 after a voir dire was conducted and the court was satisfied that she was a truthful witness. PW1 told the court of how she was coming from collecting meat from her father, when she met the Appellant who welcomed her to the posho mill and asked her to lift her dress and he pulled down her pant and had sexual intercourse with her. She told court that this was not the first time he had done this. After he finished, he gave her Kshs.1000/- and she went and bought several goodies which she carried to school. She also remained with a balance of Kshs.550/- which she gave to the teacher. Upon being questioned by the teacher (PW3) she disclosed what had befallen her and how she got the money. 16.This evidence was corroborated by the testimony of PW2 and PW3. PW4 was the investigating officer. She confirmed that the report had been made and investigations done and that is when the accused person was arrested. She collaborated the testimony of the minor on what had been reported. 17.PW5 was the clinical officer from Russia Hospital and had examined the minor. He produced in court the P3 form and PRC form. The P3 form indicated that the complainant had a broken hymen and a whitish discharge. She was put on post exposure prophylaxes and recommended for counselling. 18.Having been placed on his defence the accused gave sworn evidence and called two other witness. Basically, his defence is that he did not commit the alleged offence. That he had no money to give and he was being framed by the father to the minor. Issues for Determination 19.Having reviewed the record, the grounds of the appeal and the submissions filed by the respective parties, I frame the following issues for determination:-i.Whether the offence of defilement was proven to the required standard.ii.Whether the learned trial Magistrate erred in law and facts in failing to consider the contradictions and gaps in the evidence of the prosecution witnesses. And failed to comply with Section 124 of the Evidence Act.iii.Whether the sentence is excessively high. 20.In a charge of defilement, the prosecution must prove 3 elements being, the age of the victim, penetration and proper identification of the perpetrator. In Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 the court stated that: “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and identification of the assailant.” 21.On the first ingredient of age, PW1, the minor told court that she was born on 26th January, 2013. She shown to the court a Birth Certificate, which was produced in court. The Birth Certificate confirms PW1 was a minor aged 11 years at the commission of the offence, having been born on 26th January 2013 and the offence having been committed on 24th July, 2024. I find that the Prosecution had proved that indeed the victim of this offence was a child aged 14 years. 22.On the second ingredient of penetration, Section 2(1) of the Sexual Offences Act defines penetration as: “The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 23.In the instant case PW1 testified that she knew the Appellant who was her neighbour and operated a posho mill at the Centre. She told court that this is not the first time she had met the Appellant. That he had even had sex with her before this incident. 24.The PW1 was taken to hospital on 25/07/2024 and the examining doctor confirmed that indeed there had been penetration. The hymen was absent. I find that the Prosecution has availed the minor’s evidence and medical evidence which proves that indeed there was penetration. 25.On the issue of identification of the perpetrator, PW1 testified that the Appellant was known to her. That he operated a posho mill at the local shopping centre and he is popularly known as Omwami. This testimony was corroborated by the testimony of the witnesses that indeed the Appellant operates a posho mill at the local Centre and is commonly referred to as Omwami. 26.Further, the PW1 told court that this is the second time she had sexual intercourse with the Appellant. She therefore knew him. The court finds that this is sufficient evidence for identification. The minor having known the Appellant as a neighbour and resident at the local centre, had no chance of mistaking him for any other person. 27.And for those reasons, this court thus finds that the prosecution proved beyond reasonable doubt the elements of defilement. Whether there were inconsistencies in the Prosecution evidence 28.I have considered this submission by the Appellant, where he submits that there were inconsistencies in the prosecution evidence. I have not been able to see the alleged contradictions and inconsistencies. In fact, the prosecution evidence at the trial court was very consistent. I find that the Appellant has not been able to demonstrate that there are inconsistencies in the Prosecution case and this ground must fail. 29.The Appellant submitted that the trial court did not conduct a proper voir dire and ended up allowing the Complainant to give sworn evidence when she ought to have given unsworn evidence and have the same corroborated. I have considered this submission, and my view is that the duty to conduct voir dire and make a decision on whether a witness should be sworn or unsworn is the duty of the trial Magistrate. The trial Magistrate herein conducted voir dire and, in his opinion, the witness was intelligent enough to give sworn evidence and be cross examined. I would have no reason of interfering with that decision, and more so bearing in mind that this court did not have the opportunity to see and assess the demeanour of the witness. I find this submission by the Appellant to be without any merit whatsoever. 30.The Appellant also submitted on the failure to Comply with Section 124 of the CPC. Section 124 of the Evidence Act provides that the testimony of the victim alone in sexual offences cases can suffice if the court has reasons to believe the victim. The Court of Appeal in Robert Mutungi Muumbi vrs Republic (2015) Eklr quoted George Kioji vrs Republic CR APP. NO.270 of 2012 where it had stated on the proof of commission of a sexual offence thus:-The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person………ln deed under Section 124 of the Evidence Act, Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief' 31.My finding is that the trial court had the opportunity to see the complainant as she testified and chose to go by the evidence of the minor to convict the Appellant herein. I would have no reason to interfere with that finding of the trial Court. Whether the Appellant should have been discharged under Section 35 (1) of the Penal Code 32.The Appellant submits that he is a person with disability and under Article 14 of the UN Convention on Persons with disability, the court was obligated to consider the disability and discharge him under Section 35 (1) Penal Code. Article 14 of the CRDP guarantees the right to liberty and security of person. It strictly provides that a person’s disability cannot justify their deprivation of liberty and mandates that any legal detention must be carried out on an equal basis with others. 33.Basically, what the Article provides for is equal guarantees and safeguards for persons with disability. That if detained the persons are afforded all guarantees in terms of their rights and fair treatment. The Article does not mean that a person with disability cannot be put into detention. 34.I have evaluated the trial court record and I have not seen any record indicating that the Appellant herein was a person living with disability. But even assuming that indeed he is a person with disability, it does not mean that he cannot be sentenced to custodial sentence. It only means that he cannot be discriminated because of the disability. I therefore find that the trial court did not err in sentencing the Appellant to custodial sentence. Whether the Sentence Imposed was Excessive 35.The penalty for the offence of defilement of a child of fourteen years is provided under Section 8(2) of the Sexual Offences Act which states that:(3)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced of imprisonment for life. 36.In the instant case, the trial court noted the mitigation of the Appellant and despite noting on the record that the Appellant was liable to life imprisonment, proceeded to sentence him to 20 years imprisonment. 37.In the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR it was stated as follows:“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, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor 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 any one of the matters already stated is shown to exist.”In the circumstances, this court will not interfere with the sentencing discretion of the trial court, and more so considering the ongoing debate on whether under the Sexual offences Act, the sentences are mandatory minimums or there is still room for discretion. 38.In the upshot, I find that the appeal herein lacks merit and is dismissed. The conviction and sentence by the trial court are upheld. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KISUMU THIS 3RD DAY OF JUNE 2026.…………………………..………………L. M. WACHIRAJUDGEIn the presence of:Kevine – Court assistantAppellant – present in person (virtually from Kisumu Max.)Ms Jebichi - for the State/Respondent