https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9044

Nyongesa v Republic (Criminal Appeal E046 of 2025) [2026] KEHC 9044 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 9044 (KLR) Republic of Kenya In the High Court at Homa Bay Criminal Appeal E046 of 2025 JR Karanja, J June 24, 2026 Between William Omondi Nyongesa Appellant and Republic Respondent (From original conviction and sentencing in Homa Bay CM’s court S.O.A.NO.3 of 2006 by Hon. B.K. Toroitich, SRM, on 22nd August 2025) Judgment 1.This is an appeal from the decision of the Senior Resident Magistrate at Homabay in Criminal Case No.E022 of 2024 in which the appellant, William Omondi Nyongesa was charged with defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offenses Act. It was alleged that on the 20th December 2023 at Sofia Homabay county, the appellant sexually assaulted a child referred to as D.K. aged sixteen (16) years. 2.After a full trial, the appellant was convicted on the main count of defilement and sentenced to serve fifteen (15) years imprisonment. There was an alternative count of committing an indecent act with the same child at the same place, contrary to Section 11(1) of the sexual offences Act. Being aggrieved with the conviction and sentence the appellant preferred the present appeal on the basis of the grounds set out in the petition of appeal filed herein on 30th September, 2025. 3.In general, the appellant complains that the trial court erred in both law and fact by convicting him on prosecution evidence which was contradictory, inconsistent and insufficient. That the DNA test was contradictory and insufficient to prove the case against him. The hearing of the appeal was by written submissions which were duly filed by the appellant and contained amended grounds of appeal. The respondent through the learned prosecution counsel M/s Oduor also filed its submission in opposition to the appeal. 4.After due consideration of the appeal, the supporting grounds and the rival submissions, it was the duty of this court to revisit the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witness. 5.In that regard, the prosecution evidence through its seven witnesses (PW1 – PW7) was considered against that of the appellant and what emerged as having been the major issue for trial was whether indeed the child complainant (PW1) was defiled as alleged and if so, whether the appellant was the person responsible for the unlawful act. 6.The defence case was a denial and an indication that the appellant was implicated by the complainant without good cause and that he was never at the scene of the offence when it occurred. Nonetheless, the obligation to establish his guilt beyond any reasonable doubt lay with the prosecution. There was no obligation cast upon him to prove his innocence (see, Kioko Vs Republic[1983]KLR281). The question was whether the prosecution discharged its burden of proof by providing sufficient and credible evidence in establishing the material ingredients of the charge against the appellant. 7.Basically, defilement as defined in Section 8(1) of the Sexual Offenses Act is an act which cause penetration with a child and if the child is between the ages of sixteen and eighteen years, the offender upon conviction is liable to imprisonment for a term of not less than fifteen years (Section 8(4) Sexual Offenses Act). The prosecution’s first obligation was to prove that the offence was committed against the child complainant (PW1) and the second obligation was to prove that it was the appellant who committed the offence. 8.As regards the offence, the prosecution had to prove that the act of penetration was committed against the child complainant and that at the material time she was aged between sixteen (16) and eighteen(18) years. These two ingredients are crucial in determining whether or not the offence was committed. In this case, there was sufficient and cogent evidence from the child complainant (PW1) as corroborated by that of the clinical officer (PW5) establishing that the offence was indeed committed on the material date. 9.There was also sufficient and credible evidence from P.C Kerubo (PW6) by way of a birth certificate (PEX1) and the Clinical Officer (PW5) by way of the medical examination report (P3 form)(PEX4) establishing that the complainant was about sixteen(16) years old at the material time of the offence. The birth certificate indicated that she was born on 26th September, 2007. 10.On the basis of the evidence by the aforementioned witnesses, the prosecution clearly proved that the complainant was sexually assaulted by being defiled as alleged. In any event, there was no dispute that the offence was committed. The bone of contention was on the identity of the offender. 11.The appellant denied any criminal responsibility for the offence and implied that he was framed up by the complainant (PW1) whom he had never previously met until the time he saw her at the Homa bay police station. He suggested that the complainant may have framed him because she differed with her aunt, the mother of Audrey Sylvia (PW4) who testified that the accused/appellant came to their house and found her with the complainant. He was at the time looking for her mother who had taken a child to Homabay County Referral Hospital. 12.In cross-examination, the appellant, indicated that Sylvia’s mother Edwina Owuor was his customer as he was a motor cycle/taxi (bodaboda) operator at the time. He also indicated that he was previously known to the complainant due to his relationship with her aforementioned aunt, but maintained that he did not sexually assault her as alleged. 13.In her evidence, the complainant (PW1) was steadfast and categorical that the person who sexually offended her was the appellant whom she knew as the lover of her widowed aunt. That, the offence occurred on the night of the material date when the appellant forced her to lie on a seat in the sitting room and defiled her. Thereafter, he threatened to kill her if she dared mention to anyone what had happened. She feared and kept quiet about the incident even after her aunt returned home from hospital. 14.The complainant indicated that after the closure of school, she stayed at an orphanage and on 11th April, 2024 she was taken for a pregnancy test which turned out positive. On being interrogated, by the orphanage director, Daniel Otieno Ochieng, (PW3), she finally “let the cat out of the bag” by revealing that she had been raped by her aunt’s boyfriend. 15.The director (PW3) confirmed as much and indicted that the complainant was suspected of being pregnant after she abnormally added weight and after the pregnancy test the suspicion was confirmed. The matter was reported to the children’s office in Homabay and a social worker, Lydia Mwai (PW2) took it over before handing it over to the police who took the complainant for a medical examination. The Medical Officer (PW5) confirmed the complainant’s pregnancy of twenty(20) weeks. 16.The investigating officer P.C Emma Kerubo (PW6) testified that the appellant was arrested on 18th April 2024 and after the complainant gave birth to a child who passed away, samples for a DNA test were obtained from the appellant pursuant to a court order made on 10th September, 2024. The Government Chemist, Godwin Amala Waliama (PW7), confirmed obtaining from the police samples for DNA test from the complainant, the accused/appellant and the complainant’s deceased child and after carrying out the necessary test indicated that there were 99.99% chances that the accused was the biological father to the deceased child and that the complainant was the biological mother of the child. 17.It therefore followed that the complainant’s evidence of identification against the appellant was credible enough as corroborated by the results of the DNA test. There was no doubt that the appellant was the father of the complainant’s child meaning that he was the person who actually defiled the complainant on the material date. His defence of denial was thus rendered an afterthought devoid of any truth. At the very least, the defence amounted to a “cock and bull” story or if you like “story ya jaba” 18.In his submissions herein, the appellant raised issues pertaining to the conduct and fairness of the trial but these were not evidenced by the trial court’s record. If anything, the appellant was accorded a fair trial which was compliant to the provisions of Article 50 of the Constitution. As regards a “voire dire” examination under Section 19(1) of the Oaths & Statutory Declarations Act (Cap 15 LOK) it only relates to children of tender years defined as those under the age of fourteen (14) years as per the decision of the Court of Appeal in the case of Kibageny Arap Kolil Vs Republic.(1959)EA82. 19.Herein, the complainant (PW1) was aged sixteen (16) years or thereabout, hence above the age for which she could be described as a child of tender years. Therefore, the provisions of the Oaths & Statutory Declarations Act could not be applied to her by the trial court. In sum, the present appeal is hereby dismissed for want of merit. The appellant shall continue to serve his lawful sentence of fifteen (15) Years imprisonment. DELIVERED & DATED THIS 24TH DAY OF JUNE 2026HON. J.R. KARANJAHJUDGE