https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9277

Obuya v Republic (Criminal Appeal E001 of 2026) [2026] KEHC 9277 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9277 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E001 of 2026 WN Molonko, J June 25, 2026 Between Kinny Obuya Appellant and Republic Respondent (An appeal from the judgment of Hon. C.N.C ORUO, Principal Magistrate, delivered on 27th November, 2024 in Rongo Principal Magistrate’s Court Sexual Offence Case No. E018 of 2024) Judgment Background 1.The Appellant herein, Mr. Kinny Obuya was convicted of an offence of sexual assault contrary to section5(1)(i) as read with section 5(2) of the sexual offences Act No. 3 of 2006 and sentenced to serve 10 years’ imprisonment. 2.The particulars of the offence are that on the 11th day of June, 2024 at [Particulars Withheld] Awendo Sub-County in Migori within the Republic of Kenya, the Appellant intentionally and unlawfully caused his fingers to penetrate the vagina of Q.G.O alias M.Q.O a child aged 5 years. 3.Being dissatisfied with the conviction and sentence, he filed this appeal and raised the following grounds of appeal-i.That he did not plead guilty of the charge therein;ii.That the trial court erred in both law and fact by failing to comply with the provision of article 50(2)(h) of the Kenyan Constitution 2010;iii.That the trial court erred in both law and fact by not considering that the ingredients of the offence were not proved to the required standard in law and facts; andiv.That the trial court erred in law and fact by refusing to consider his defence in mitigation. 4.This appeal was canvassed by way of written submissions which were duly filed and placed on record. Appellant’s Submissions 5.The Appellant who represented himself in this appeal, stated that he was arrested on 11th June 2024, and arraigned before court on 13th June, 2024 and charged with the offence of sexual assault to which he denied. 6.The prosecution called a total of five witnesses namely PW 1, the complainant, PW2, Evaline Mbaka, a Clinical Officer from Awendo Sub County Hospital; PW3, the complainant’s mother; PW4, Peninah Otaigo, a Medical Officer and PW 5, Erastus Musa, the Investigating Officer. 7.The Appellant challenges the reliability and credibility of the minor’s evidence. He contends that the minor alleged that the acts occurred in the presence of other children, namely Junior and Vincent, and electricity was on which they would have noticed. He further contends that Junior and Vincent did not record statements at the police station and were they not called to testify in court. He also stated that the complainant gave contradictory accounts referring both to penetration by fingers and penetration by penis when the medical reports present a different version of events. He further refers to the complainant’s statement, where she alleged that the accused had done so before and had defiled her by inserting his penis into her vagina. 8.The Appellant further submits that the evidence tendered by PW1 was coached by PW3, and that at the voir dire examination, the complainant was found unfit to give sworn testimony. He also raises concerns that if the alleged vice had been ongoing for an extended period, as the complainant suggested, there is no satisfactory explanation as to why she did not raise complaints earlier. On this basis, the Appellant submits that the evidence of PW1 was coached and therefore inadmissible. 9.The Appellant further challenges the evidence of PW3, Francesca Otieno. He notes that PW3 stated that she observed a vaginal discharge on the minor which was abnormal for her age. The Appellant submits that this discharge was never subjected to further scientific analysis that would connect him to the offence. He contends that PW3 was acting with a personal motive against him and submitted that PW3 was on a mission to implicate him. Respondent’s Submissions 10.The Respondent submitted extensively on the grounds of appeal. On compliance with Article 50(2)(h) of the Constitution, the Respondent submitted that the Appellant was duly informed of his right to legal representation at the time of plea taking. The Respondent contends that throughout the trial, the Appellant demonstrated a clear understanding of the proceedings and was able to effectively cross-examine witnesses. The absence of legal representation was therefore not fatal to the proceedings, as the right to free legal representation is not an absolute right. The Appellant, having demonstrated comprehension of the charges laid against him, did not suffer any infringement of his constitutional rights. 11.On whether the prosecution proved its case beyond reasonable doubt, the Respondent submits that all the elements of the offence of sexual assault were established to the requisite standard. The victim gave unsworn testimony that the Appellant sat with her on the sofa set, lifted her skirt, and inserted his fingers into her vagina. PW3, the minor's mother, further testified that upon examining her daughter she observed an unusual vaginal discharge, following which she took the minor to hospital. When she spoke further with the minor, the child narrated that the Appellant had inserted his hand into her private parts. The clinical officer who examined the minor testified to the presence of bruises on the vaginal wall, consistent with penetration, and produced the P3 Form as well as treatment notes as exhibits. 12.The Respondent further submits that from the totality of the evidence, it is clear that the minor was sexually assaulted by the Appellant. The minor identified the Appellant as the perpetrator and was able to coherently narrate the events. The medical evidence on record further corroborates that penetration occurred. 13.On whether the sentence was excessive, the Respondent relied on the pronouncement of the Court of Appeal in the case of Bernard Kimani Gacheru vs. Republic [2002] eKLR, wherein the court stated:-“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." 14.The Respondent submitted that the sentence of ten years’ imprisonment issued by the trial court was sufficient and appropriate given the circumstances of the case, and that no grounds exist warranting appellate interference with that sentence. Issues for Determination, Analysis and Disposition 15.Being the 1st Appellate Court, the duty of this court as held in Okeno vs Republic [1972] EA 32 and Kiilu & Another vs Republic [2005] 1 KLR 17Q is to re-examine, re-evaluate and analyze the evidence in the lower court record. 16.Having evaluated the evidence of the trial court, the Appellant’s Grounds of Appeal, his written submissions and those of the Respondent, this Court frames the issues for determination as follows-i.Whether the absence of legal representation guaranteed under Article 50(2)(h) of the Constitution prejudiced the Appellant;ii.Whether the Prosecution proved its case beyond reasonable doubt considering the ingredients of the offence of sexual assault; andiii.Whether the sentence of 10 years was harsh or excessive. 17.This Court proceeds to address the framed issues as follows-I. Whether the absence of legal representation guaranteed under Article 50(2)(h) of the Constitution prejudiced the Appellant’s trial. 18.The Appellant submitted that the trial court did not meet the requirements of Article 50(2)(h) of the Constitution. The Article provides that-“Every accused person has the right to a fair trial, which includes the right to choose, and be represented by, an advocate, and to be informed of this right promptly”. 19.As stated, the Appellant was charged with the offence of sexual assault of a 5-year-old child. A perusal of the proceedings show that the Appellant was informed by the trial court of his right to legal representation of his choice. He was also informed that he was entitled to apply to the Legal Aid Board for assistance. 20.The Appellant chose to represent himself. He did not demonstrate that he requested the trial court to be provided with legal representation and that his request was declined and/or demonstrate that he was likely to suffer substantial injustice if the trial proceeded without legal representation. As this issue was not raised during trial when the trial court was expected to have pronounced itself on the same, it cannot be raised and considered on appeal. This Court also notes from the record that the Appellant understood the trial process and he was able to effectively cross- examine the witnesses. 21.For the reasons stated above, this court comes to the conclusion that the Appellant’s constitutional and fundamental right to legal representation under Article 50(2)(h) of the Constitution was not been breached.II. Whether the Prosecution proved its case beyond reasonable doubt considering the ingredients of the offence of sexual assault. 18.The offence of sexual assault which the Appellant was charged with is created by section 5 of the Sexual Offences Act which provides that:-“5(1)Any person who unlawfully penetrates the genital organs of another person with-i.any part of the body of another or that person; orii.an object manipulated by another or that person except where such penetration is carried out for proper and professional medical hygiene or medical purposes;b.manipulates any part of his or her body or the body of another person so as to cause penetration of the genital organ into or by any part of the other person's body, is guilty of an offence termed sexual assault.(2)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years but which may be enhanced to imprisonment for life." 18.The essential ingredients of the offence of sexual assault were set out by the Court of Appeal in the case of John Irungu V Republic [2016]eKLR as follows-“Thus, for the purposes of sexual assault, the penetration is not limited to penetration of genitals by genitals. It extends to penetration of the victim’s genital organs by any part of the body of the perpetrator of the offence, or of any other person or even by objects manipulated for that purpose.' 18.The essential elements of the offence of sexual assault therefore are; proof of penetration and identification of the assailant. 19.In this case, the minor, PW1, from the records, identified the Appellant in court stating that he had been residing at their home at the time of the incident. This was also stated by PW3 the mother, who stated that the accused stayed at her home until the date of the incident. PW 5, the Investigating Officer testified that he received the minor and the mother who reported the incident. He identified the accused and stated that he arrested him at the home of the complainant. In this case, there no mistake as to the identity of the accused person. 20.From her unsworn testimony, the minor stated that while seated on the sofa set at night, the Appellant who was on the same seat with her, inserted his fingers into her vagina. She further stated that Junior and Vincent were in the room but they did not witness the incident as she did not scream. She also disclosed that the Appellant had committed similar acts against her on prior occasions, including inserting his penis into her vagina and placing his mouth on her private parts while removing her clothing. 21.In her evidence PW3, confirmed that she was the mother of the complainant, born on 19th October, 2018. The Birth Certificate was tendered and admitted as Prosecution Exhibit 3. She stated that she found the minor sleeping with her legs apart as she covered her genitals. She stated that upon examination of the minor’s private parts, she noticed that her vagina was swollen with some discharge which was abnormal for her age. 22.The Clinical Officer, PW 4, testified that she examined the minor and confirmed there were bruises on her vaginal wall which she concluded that it was consistent with sexual assault. She produced P3 Form, PRC form and Filter Card as exhibits. This corroborates PW 1 and PW3’s allegations and corroborates the element of penetration. 23.The Appellant in his submissions took issue with the fact that crucial witnesses who were in the house were not called to testify. I’m of the considered opinion that the element of penetration is central to the charge of sexual assault and that the medical evidence tendered by PW4 who examined the minor confirmed that there were bruises in the vaginal walls consistent with sexual assault is sufficient and there would be no need to call the other witnesses. 24.In his defence, the appellant gave sworn evidence. He acknowledged that he lived with the minor’s mother. He stated that it was the Minor’s mother who had instigated the case against him because she owed him money which she had refused to pay. He explained how he was arrested and maintained that he did not sexually molest the minor. 25.The trial court considered this defence and found it to be mere denial. I make a similar finding that the prosecution proved their case against the appellant beyond reasonable doubt. The conviction on the charge of sexual assault is therefore affirmed. III. Whether the sentence of 10 years was harsh or excessive 26.Section 5(2) of the Sexual Offences Act, 2006 provides that-“a person guilty of an offence under this section is liable upon conviction to imprisonment for a term of not less than ten years’ imprisonment but which may be enhanced to imprisonment for life.” 27.The Appellant was sentenced to serve 10 years’ imprisonment for the offence. In his mitigation, he prayed for leniency. He stated that he is an orphan, he had been in remand for a while and had been ailing. He prayed for a non-custodial sentence. 28.Having convicted the Appellant herein, the Trial Court did not err when he sentenced him to ten (10) years imprisonment as that is what was provided by the law as the minimum sentence. As rightly observed by the trial court, the Sexual Offences Act, 2006 is silent on non-custodial sentence. 29.Based on the circumstances of this case, including the age of the minor, and the provisions of section 5(2) of the Sexual Offences Act, this court will not interfere with the sentence imposed by the trial court. 30.From the foregoing reasons, the grounds of appeal dated 5th November, 2025 are not merited and hereby dismissed. In this regard, the Appellant’s conviction and sentence are upheld. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 25TH DAY OF JUNE, 2026………………………………….W.N. MOLONKOJUDGEJudgment delivered virtually in the presence of:No appearance for the Respondent.Mr. Kinny Obuya- AppellantSusan Nzioka – Court Assistant