https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10020

Ochieng v Republic (Criminal Appeal E086 of 2025) [2026] KEHC 10020 (KLR) (7 July 2026) (Judgment) Neutral citation: [2026] KEHC 10020 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E086 of 2025 WN Molonko, J July 7, 2026 Between Fredrick Omondi Ochieng Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. A. Munyuny in Migori Law Courts MCSO No. E009 of 2023) Judgment Introduction 1.The Appellant 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. He equally faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 2.The particulars of the offence were that on 9th February 2023, at [Particulars Withheld], Uriri Sub-County within Migori County, in the Republic of Kenya, the Appellant intentionally and unlawfully caused his penis to penetrate into the vagina of S.M.O. a female child aged 13 years. 3.The Appellant was found guilty as charged, convicted and sentenced to 20 years imprisonment. He was discharged on the alternative charge. Being dissatisfied with the whole judgment, he instituted the present appeal based on the following grounds:-i.That the trial court erred in law and fact by failing to comply with the provisions of Article 50(2)(h) of the Kenyan Constitution, 2010.ii.That the trial court erred in law and fact by not considering that the ingredients of the offence herein were not proved to the required standard in law and fact.iii.That the trial court erred in both law and fact by refusing to consider his defence and mitigation. 4.He filed his written submissions dated 15th December, 2025 while those of the Respondent dated 1st December 2025 were filed on 16th December, 2025. The Judgment herein is based on the said written submissions which both parties relied upon in their entirety. Legal Analysis 5.This being the first appellate court, this Court will re-evaluate and analyse the evidence adduced in the trial court for this court to come up with an independent conclusion. In doing so, this court bears in mind that, unlike the trial court, it did not have the opportunity of observing the demeanour of the witnesses as they testified. See Okeno vs. Republic [1972] E.A 32. 6.The Appellant was unrepresented on appeal. This court has carefully considered the Petition of appeal, and grounds of appeal, Appellant’s written submissions as well as those of the Respondent, the proceedings before the trial court and the judgment as well as the evidence on record and come up with the following issues for determination: -i.Whether or not the trial court complied with Article 50(2) (g) (h) of the Constitution;ii.Whether the Prosecution proved its case beyond reasonable doubt considering the ingredients of defilement; andiii.Whether or not the sentence meted upon the Appellant by the trial Court was lawful. 7.The Court proceeds to address the issues as follows- I. Whether or not the Trial Court complied with Article 50(2)(g) and (h) of the Constitution. 8.In his grounds of Appeal, the Appellant averred that the trial court did not meet the requirements of Article 50(2)(g) and (h) of the Constitution. 9.As stated, the Appellant was charged with the offence of defilement of a 13-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 should he desire. 10.From the court record, the Appellant chose to represent himself when he took plea on 16th February, 2023. He was thereafter represented by an Advocate from 28th March, 2023. This Court notes that the Advocate appeared during the hearing until the close of prosecution’s case. She stopped appearing when the Appellant was placed on his defence. At this point, the Appellant proceeded with the trial and he did not demonstrate that he requested to be provided with legal representation and that his request was declined and/or demonstrate that he was likely to suffer substantial injustice if he proceeded without legal representation. 11.For the reasons stated above, this Court is satisfied that failure to have legal representation throughout the trial did not prejudice the Appellant in this case. The Appellant’s constitutional and fundamental right to legal representation under Article 50(2)(g) and (h) of the Constitution was not violated. II. Proof of Prosecution’s Case 12.In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement as settled in in the case of George Opondo Olunga vs Republic [2016] eKLR under the following distinct heads. A. Age of the victim 13.The Appellant did not submit on the issue of age. On its part, the Respondent submitted that PC Luciana Akoth Moses (PW4) testified that the complainant was 14 years at the time of the incident. She produced her Birth Certificate as an exhibit. 14.A perusal of the birth certificate shows that PW1 was born on 10/03/2008. She was therefore 14 years of age at the time of the incident. 15.The Appellant did not challenge the production of the birth certificate and did not rebut the said evidence by adducing any evidence to the contrary, and therefore, this court is satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at the time of the incident. B. Identification 16.The Appellant extensively submitted on this issue. He stated that the trial court relied on inconclusive evidence of identification that was flawed, mistaken and not tested with great care. He averred that from the evidence placed in court, the incident happened at 3.00am and in darkness. He stated that the complainant (PW1) and the father of the complainant (PW2) stated that the bulb was switched off but there was light in the room which emanated from the solar battery. He contends that the brightness and the intensity of the battery light was not tested to find out if it could illuminate a dark house to enable positive identification. 17.He further submitted that PW2 stated that there was moonlight which reflected the face of the Appellant and that he used a torch on his phone. He contends that the distance between him and PW2 was not demonstrated for one to conclude that PW2 could have identified him. 18.He also submitted that PW2 claimed to have identified him due to the clothes that the Appellant had during the incident as they were similar to the clothes he had that day when they met while working at the farm. He strongly asserted that similar clothes are bought and worn by different people and that alone could not be relied on as to his identity. 19.The Appellant further submitted that the PW2 claimed to have gone to his home with the village elder and the Chief to inform the father of the Appellant about the incident. He strongly contended that the three were not called to corroborate PW2’s assertion rendering it a hearsay. He cited the cases of Maina Wa Kinyatta v R (1984) eKLR to support his assertion. 20.The Respondent on its part submitted that the Appellant was a person well known to the complainant. She knew him as “Odielo” and the complainant said that he talked to her while issuing threats before defiling her. She stated she was able to identify the Appellant since there was a solar light near the bed. 21.A perusal of the proceedings showed that PW1 testified that on the material day, she was asleep inside her grandmother's house, a house situated close to, but separate from her parents' house within the same family compound in the company of her younger brother Stephano, aged eight years. She stated that the brother was sleeping in the same bed and remained asleep throughout the incident. 22.She testified that she was awoken by the presence of someone standing in the bedroom. Upon asking who the person was, she was able to identify the intruder by sight, aided by the green light emitted by the battery of a solar lamp (commonly known as a "Sun King" solar light) that was positioned near the bed. She stated that she could see the person clearly, and she identified him as Odielo the accused person, (Fredrick Omondi Ochieng) whom she knew well, as they had previously attended the same school and he lived near her home. 23.She recounted that the accused entered the bed and threatened her, warning her that he would cut her with a panga if she screamed. She nevertheless attempted to scream, whereupon he assaulted her physically by striking her in the eye. He then commanded her to remove her skirt and underwear. She complied under duress given the threat of the panga he was carrying. The accused lowered his trousers but did not remove his shirt. He then proceeded to have sexual intercourse with her by penetrating her vagina with his penis and immediately after left the house. 24.She stated that after a short interval, the accused returned and again had sexual intercourse with her. Following this second act, the complainant went outside, screaming and ran to her parents' house. 25.She further testified that her father found the accused near her grandmother's house, close to a tree, and gave chase, but the accused fled in the direction of a sugar cane plantation and disappeared. Her father then proceeded to the accused's home and informed his parents of what had occurred. 26.The following morning, she was taken by her mother to Luala Dispensary, from which she was referred to Uriri Sub County Hospital. Police officers from Uriri Police Station located them at the hospital and subsequently escorted them to the station where a formal report was recorded. 27.She identified the accused person in the dock on multiple occasions during her testimony and confirmed that he is known both as Fredrick Omondi at home and as "Odielo" in the community. 28.Under cross-examination, PW1 maintained that she did not open the door for him and did not know how he had gained entry. She acknowledged she did not know whether he had received medical treatment but confirmed that he had physically assaulted her in the face and eye, resulting in injury for which she was treated. She denied any familial relationship with the accused and confirmed that his home was approximately 300 metres from her own. She reaffirmed that the solar battery produced a green light sufficient for her to identify him, and she maintained that the incident occurred at 3:00 a.m. 29.PW2 Erick Otieno, also known as Jared Otieno Obiero, testified that he is the biological father of the complainant. He stated that on the night of 9th February 2023, at approximately 4:00 a.m., he was inside the family's main house with his wife and some of their children. His daughter, the complainant and son aged nine years, were sleeping in their grandmother's house, which is located a short distance from the main house within the same compound. 30.He testified that he was alerted by screams coming from the direction of the grandmother's house. On making his way outside, he encountered the complainant running towards him in distress. She immediately told him that "Odielo" had entered their house. He stated that he already knew the person referred to as Odielo. He stated that moments later, he saw the accused emerging from behind a tree near the grandmother's house, within a maize plantation. The accused then fled when noticed. He pursued him and recounted that the accused ran towards his uncle's house but disappeared before reaching it. 31.In his testimony, he explained that he was able to identify the accused as there was moonlight at the time supplemented by the torch on his mobile phone. He also asserted that he recognized the accused's clothing; a black shirt and a white trouser as the same clothes the accused was wearing earlier that day when they had worked on the farm together. He said he stood close enough to the accused before he fled and could positively identify him. 32.He further testified that he proceeded to the home of the accused and called out his father, who did not open the door. He sought the assistance of the local village elder, who accompanied him back to the accused's home. They informed the accused's father of the incident, and the father's responded that he was weary of the conduct of the accused and he should be arrested when found. 33.He stated that the matter was escalated to the Assistant Chief, who summoned the accused's father and warned him that if he did not locate and surrender the accused, the father himself would be arrested. The accused was arrested through community efforts and surrendered to the police station. 34.From the evidence on record, PW1 and the Appellant knew each other as they were neighbors and had gone to the same school. She could not have mistaken his identity. The Appellant did not dispute this fact. Although it was at 3.00 am, the complainant insisted that she was able to identify the Appellant as there was solar battery light next the bed. She further stated that the Appellant threatened her and she could identify his voice. From the record, the complainant was able to positively identify the Appellant in the dock during the trial. 35.The Appellant is also known to PW2, the father of the complainant. They were neighbors and worked together on the farm earlier that day. He also maintained that he could identify him by the clothes he had at the time of the incident, a black shirt and a white trouser, the same clothes that he had worn that day on the farm. 36.From the foregoing, this court came to the firm conclusion that the prosecution proved the ingredient of identification of the perpetrator which was by recognition. C. Penetration 37.The Appellant did not submit on the issue of penetration. He denied having committed the offence. On its part, the Respondent submitted that PW1 stated that the Appellant had sex with her. PW3 Maureen Adhiambo Omondi, a clinical officer confirmed that she examined the minor and confirmed that she was indeed defiled as there was penetration. The labia minora had minor lacerations with redness/inflammation and tenderness noted, her hymen had been freshly broken and she had whitish discharge on the labia minora. She further stated that she observed redness on the right eye, which was consistent with the minor’s statement that the perpetrator had injured her on the eye. 38.PW3 further stated that there were epithelial cells noted from the vaginal swab. She produced Treatment Notes, P3 form, Post Care Rape (PRC) as exhibits in support of the Prosecution’s case. 39.The Appellant called DW2 Jennifer Anyango Opere, his grandmother to corroborate his alibi defence that he was asleep in the house and never left the house at the time of the incident. This shifted the burden of to the Appellant. DW2 stated that she had locked the door and with a padlock and opened it in the morning. She further stated that the complainant could have visited the accused at night. DW2’s evidence on record has glaring inconsistencies, on one part, she stated that she locked the house and opened it in the morning and on the other part, she stated that the complainant could have visited the accused at night of the incident. Being the custodian of the house keys as alleged, she could have been aware of the movements at night. I find that this could not sway or raise doubt on the prosecution evidence. 40.The Appellant further submitted that several witnesses whose evidence would have led to his acquittal were not called to testify; the village elder and the Chief who escorted PW2 to his home and his father whom PW2 had claimed the chief and the village elder had accompanied him to inform him about the incident. He contended that failure to call them to testify rendered the assertion a mere hearsay. 41.This Court however notes that the prosecution has the prerogative to call only those witness who added value to its case and not necessarily a particular number of witnesses. Section 143 of the Evidence Act stipulates as follows:-“No particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.” 42.Having analysed both the Prosecution and the Appellant’s cases, this court comes into conclusion that the Prosecution proved its case to the required standard, which in criminal cases, is proof beyond reasonable doubt as envisaged in Section 108 and Section 109 of the Evidence Act Cap 80 (Laws of Kenya). 43.In this case, all the ingredients of the offence of defilement being identification or recognition of the offender, penetration and the age of the victim that were set out in the case of George Opondo Olunga vs Republic [2016] eKLR were proven. 44.It is therefore, the considered view of this court that PW1’s evidence was well corroborated by factual and scientific evidence of other Prosecution witnesses. The Prosecution, no proved its case beyond reasonable doubt. Ground of Appeal No (3) is therefore not merited and the same is hereby dismissed. III. Whether or not the sentencee meted upon the Appellant by the trial court was lawful. 45.The Respondent did not submit on the issue of sentencing. Although it was not a ground of appeal, the Appellant submitted extensively that that the sentence imposed on him did not take into account the period he had been detained during trial. He prayed that the same be set aside and that the appropriate sentence be meted out. 46.He placed reliance on the case of 88 Prisoners Petition (eKLR citation not given) where the court stated as follows:-“It should be borne in mind that even though the accused person has been sentenced to a certain number of years, the accused’s person liberty was lost once arrested. It should therefore follow that the sentence is deemed to start when liberty was lost.” 47.The Appellant pleaded with the court to consider the time when he was arrested on 12.02.2023 to be considered as part of his sentence served. 48.The Appellant was sentenced under Section 8(3) of the Sexual Offences Act which provides that:-“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 49.Having convicted the Appellant herein, the trial court did not err in fact or law when it sentenced the Appellant to 20 years’ imprisonment being the mandatory minimum sentence prescribed under Section 8(3) of the Act. 50.Based on the circumstances of this case, including the age of the complainant, the provisions of Section 8(3) of the Sexual Offences Act, and the aggravating circumstances of this case, this court will not interfere with the sentence imposed by the trial court. 51.Taking into account the period when the Appellant was in custody while the trial was ongoing, this court finds it merited for consideration. The Court relies on Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) which provides as follows:-“Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody”. 52.A perusal of the proceedings of the trial court shows that the Appellant was arrested on 15/02/2023. He took plea on 16/02/2023 and was granted bond of Kshs.100,000/= with one surety of similar amount. His bond was approved on 3/3/2023. From court records, the accused was still in custody on 23/05/2023 and not clear when he was freed from custody as the records indicate that the accused attended court on 1/10/2024 while out on bond. The period he spent in custody between 16/02/2023 and 23/05/2023 which the trial court record indicate that he was still in custody, ought to be taken into account while computing his sentence. 53.For the foregoing reasons, this court finds the Appellant’s Petition of Appeal partly merited and the same be and is hereby allowed but only on the aspect of sentence. This court found his conviction safe and lawful. 54.For the avoidance of doubt, the period the Appellant spent in custody between 15/02/2023 and 23/05/2023 while his trial was ongoing be and is hereby taken into account while computing his sentence as provided by Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 7TH DAY OF JULY, 2026………………………W.N. MOLONKOJUDGEJudgment delivered virtually in the presence of:Respondent- AbsentFredrick Omondi Ochieng- Appellant presentSusan Nzioka – Court Assistant