Odhiambo v Republic (Criminal Appeal E150 of 2022) [2026] KECA 1204 (KLR) (26 June 2026) (Judgment)

Odhiambo v Republic (Criminal Appeal E150 of 2022) [2026] KECA 1204 (KLR) (26 June 2026) (Judgment) Neutral citation: [2026] KECA 1204 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Criminal Appeal E150 of 2022 PM Gachoka, WK Korir & L Ndolo, JJA June 26, 2026 Between Nickline Odhiambo Appellant and Republic Respondent (An appeal from the judgment by the High Court of Kenya at Eldoret (S.M. Githinji, J.) on 24th October 2018 in HCCRA No. 55 of 2017 Criminal Appeal 55 of 2017 ) Judgment 1.The appellant, Nickline Odhiambo, was charged before the Chief Magistrate's Court, Eldoret, in Criminal Case No. 5755 of 2015 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 diverse dates between 1st October 2015 and 6th October 2015, at [Particulars Withheld] Estate, Eldoret East District, within Uasin Gishu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of SM, a child aged 8 years old. 2.In the alternative, the appellant was charged with committing an indecent act with a child contrary to section 11 (1) of the Sexual Offences Act. The particulars of the offence were that on diverse dates between 1st October 2015 and 6th October 2015, at [Particulars Withheld] Estate, Eldoret East District, within Uasin Gishu County, the appellant intentionally and unlawfully caused his penis to come into contact with the vagina of SM, a child aged 8 years old. 3.Following a trial in which the prosecution called 5 witnesses, the trial court convicted the appellant for the offence of defilement and sentenced him to life imprisonment. Aggrieved by his conviction and sentence, the appellant filed Criminal Appeal No. HCCRA No. 55 of 2017 before the High Court in Eldoret. The learned Judge, Githinji J, affirmed the conviction and upheld the sentence meted out by the trial court. The learned Judge, in his findings, was satisfied that all the ingredients of the offence the appellant was convicted for, that is, the age of the complainant, penetration and the identity of the appellant as the perpetrator, were proved to the required standard. Consequently, the appellant’s appeal was dismissed. 4.The appellant is aggrieved by those findings. He filed his notice of appeal dated 5th November 2018. He subsequently filed supplementary grounds of appeal, dated 11th March 2026, raising four grounds challenging the findings of the learned Judge. We have taken the liberty to summarize those grounds as follows: the first appellate court did not reanalyze the evidence and consequently failed to find that the charges were borne out of ill will and malice; that the ingredients of the offence were not proved to the required standard; that his defence was not considered by the both the trial and appellate court; and that the sentence meted out was harsh, unlawful and unconstitutional. For those reasons, the appellant urged this court to allow his appeal, quash his conviction and set aside his sentence, so that he is set at liberty. 5.The appeal was heard on 27th April 2026 on the basis of the parties’ written submissions. The appellant was present while the respondent was represented by Principal Prosecution Counsel Mr. Okaka. 6.The appellant argued that the High Court failed to properly reanalyze the evidence that was adduced by the prosecution. He pointed out that the minor should have been counseled after being rescued, in order to establish her credibility. He argued that the evidence of the complainant was not truthful and therefore could not sustain a conviction. In summary, he stated that the prosecution witnesses gave false testimonies. Citing the cases of Hudson Ali Mwachongo vs. Republic [2016] eKLR and Alfayo Gombe Okeyo vs. Republic Cr App No. 203 of 2009 Kisumu, the appellant further submitted that the complainant’s age was not proved to the required standard as neither the minor’s birth certificate nor her age assessment report was furnished in evidence. 7.On the sentence of life imprisonment, the appellant elaborately, and in detail, complained that the sentence was harsh, excessive and did not conform to recent jurisprudence. Citing the cases of Eliud Waweru Wambui vs. Republic [2019] eKLR and Yawa Nyale vs. Republic [2018] eKLR, he submitted that the mandatory sentence of life imprisonment is harsh, as it denies the court discretion in sentencing and, as a result, the court has no liberty to impose the appropriate sentence upon considering all the circumstances. 8.Finally, the appellant maintained that his defence was cogent and ought to have been considered. Citing the case of Victor Mwendwa Mulinge vs. Republic [2014] eKLR, the appellant submitted that his defence, which was truthful, was not considered by the trial court and the first appellant court. He maintained that he was innocent and that he was framed. Additionally, the two courts below ignored the fact that he took care of the complainant and used to take and pick her from school after she was neglected by everyone, including her own parents. Therefore, it was not plausible that he could defile the complainant whom he took care of as his child. For those reasons, the appellant prayed that his appeal be allowed. 9.The respondent opposed the appeal. Mr. Okaka filed written submissions dated 7th April 2026 to submit that all the ingredients of the offence of defilement, namely, the age of the complainant, penetration and the identity of the perpetrator, were proved beyond reasonable doubt. He added that the first appellate court indeed reanalyzed and reevaluated the evidence afresh while considering the appellant’s defence that was properly rejected. The first appellate court, he submitted, could not therefore be faulted. Lastly, on the appellant’s sentence meted out, Mr. Okaka argued that the same was lawful. For those reasons, he prayed that the appeal be dismissed. 10.The court in Dzombo Mataza vs. R [2014] eKLR set out succinctly our role as a second appellate court in the following words:“This is but a second appeal. Under the law, we are only concerned with matters of law and not fact. Put differently, in a second appeal such as this one, matters of fact are for the trial court and the first appellate court – see Okeno vs. Republic (1972) EA.32.By dint of the provisions of section 361(1)(a) of the Criminal Procedure Code our jurisdiction does not allow us to consider matters of fact unless it is shown that the two courts below- considered matters of fact that should not have been considered or failed to consider matters that they should have considered or that looking at the evidence they were plainly wrong.” 11.We have carefully considered the grounds of appeal, the record and the submissions by the parties. To sustain a conviction for a charge of defilement, the prosecution must prove, beyond reasonable doubt, the age of the complainant, penetration and the identification of the perpetrator. We shall now analyze the decisions of the two courts below and the grounds of appeal raised by the appellant to determine whether the conviction is safe and, if so, whether the sentence was appropriate, since the appeal primarily arose from issues of fact. 12.On the complainant’s age, the trial court observed that from the complainant’s testimony, she was 8 years old. The information as to her age was also captured in her P3 form. The first appellate court, which stated in no uncertain terms that it had looked at the entire evidence on record, contrary to the appellant’s allegations, reiterated the importance of ascertaining age, as it determines the sentence of a convicted person. It found that age was proved from the revelations set out in the P3 form. We find that the two courts below indeed arrived at the correct finding. 13.Turning to the aspect of penetration and the identity of the perpetrator, the two courts below were satisfied that the complainant was truthful. It was found that during the time of the commission of the offence, the complainant was living with the appellant. So, the question of identity is not in dispute, as the appellant himself admitted that he was living with the complainant. The question for determination is whether it was proved beyond reasonable doubt that the appellant defiled the complainant. The courts noted that the appellant was living with the complainant. The evidence of the complainant was that she used to stay on the same plot with the appellant and that her elder sister was cruel to her. As a result, the appellant’s wife, Hellen, took her to their house. However, after some time, Hellen left and the complainant was left alone with the appellant. She used to go to school and return to his house. She narrated how one day after returning from school, the appellant pushed her to bed and defiled her. The following day she informed her teacher, Nelly, what the appellant had done to her. 14.The complainant was cross-examined by the appellant and her evidence remained consistent. In answer to a question by the appellant, she emphatically stated: “You used to take me to school.. you did bad manners to me..” PW4, Dr, Yatich, the doctor who examined her, confirmed that there was evidence of penetration. Just like the two courts below, we are satisfied that the appellant took advantage of a child who had been abandoned by her family. Clearly, this was a case of one jumping from the frying pan into the fire: she ran away from her cruel sister into the hands of the appellant, who took advantage, in a most savage manner. Like the two courts below, we see no reason to doubt that the complainant’s testimony was truthful and sustainable under the proviso to section 124 of the Evidence Act. 15.Turning to the appellant’s defence, we have examined the judgments of the two courts below. We find that they extensively analyzed it, stating that it was mere denials and did not dislodge the prosecution’s evidence. We thus find that the appellant’s defence was properly considered. In the end, we find no reason to fault the concurrent findings of the two courts below on conviction. We uphold the same. 16.The appellant was sentenced to life imprisonment in line with section 8 (2) of the Sexual Offences Act. This sentence was upheld by the High Court. The appellant has raised persuasive grounds urging this court ought to interfere with it. However, decisions of the Supreme Court, that bind this court, have held that the mandatory sentences under the Sexual Offences Act are lawful and we have no discretion to interfere with the sentence imposed. [See Republic vs. Joshua Gichuki Mwangi, Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) and Republic vs. Manyeso [2025] KESC 16 (KLR)]. In the circumstances, we find that the appeal on sentence similarly lacks merit and is dismissed. 17.In the end, we find no merit in the appellant’s appeal and we dismiss it in its entirety. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF JUNE, 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 original.Signed.DEPUTY REGISTRAR