Odhiambo v Republic (Criminal Appeal E275 of 2022) [2026] KECA 1171 (KLR) (12 June 2026) (Judgment)

Odhiambo v Republic (Criminal Appeal E275 of 2022) [2026] KECA 1171 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KECA 1171 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E275 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA June 12, 2026 Between Vincent Ochieng Odhiambo Appellant and Republic Respondent (Being an appeal against the Judgment of the High Court of Kenya at Migori (Mrima, J.) dated 14th May, 2019 in HCCRA No. 47 of 2018 Criminal Appeal 47 of 2018 ) Judgment 1.This is a second appeal arising from the conviction and sentence of the appellant, Vincent Ochieng Odhiambo, by the Senior Resident Magistrate’s Court at Rongo in Criminal Case No. 4 of 2018. The appellant was therein charged with the offence of defilement contrary to Section 8(1) and (3) of the Sexual Offences Act. The particulars of the offence were that on 9th January, 2018, he willfully and intentionally caused his penis to penetrate the vagina of IAO, a child aged 12 years. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, particulars being that on the 9th day of January, 2018 at [Particulars Withheld] in Central Sakwa Location of Awendo Sub-County in Migori County within the Repu he intentionally by use of his penis cause contact with the vagina of IAO, a child aged twelve (12) years old. 2.During the trial, the appellant denied the offence and the prosecution called eight witnesses. In summary, IAO (PW1) disappeared from home where she lives with only her grandmother (PW6), who reported her disappearance at Ranen AP Post on 07th January, 2018. PW1 and her friend SAO (PW2) spent the night at their friend S’s home on 07th January, 2018. The two then went to another friend, V’s home on 08th January, 2018 and spent the night there. On 09th January, 2018, they met the appellant and one Eric, who took them to Eric’s house where they spent the night. According to PW1, the appellant removed her skirt and panty, removed his underwear and sweater, she lay on her back, and the appellant then had intercourse with her. The appellant and Eric then took them to PW1’s aunt’s house the next morning. The two girls were later taken to Ranen Police Station and then the police advised PW6, the grandmother of the complainant to take her to Awendo Sub- County Hospital for the purpose of treatment and examination. The medical officer (PW5) concluded that PW1 had been defiled and that penetration had been achieved. PW5 also assessed the age of PW1 at approximately 12 years and the appellant’s age at approximately 18 years. 3.The appellant gave an unsworn statement in his defence and did not call any witnesses. He asked the trial court to forgive him.The trial court found the appellant guilty of the offence of defilement as charged in the main count and convicted him under Section 215 of the Criminal Procedure Code and sentenced him to 20 years imprisonment. 4.Dissatisfied with the decision of the trial court, the appellant appealed his conviction and sentence in the High Court of Kenya at Migori which evaluated the evidence before the trial court and considered the oral submissions of the parties’ counsel. In the judgment delivered on 14th May, 2019, the High court found all the ingredients of the offence of defilement in favour of the prosecution, that the appellant was not a minor in law and that he was properly convicted and rightly sentenced. Accordingly, the appeal was dismissed in its entirety. 5.The appellant is still aggrieved with the decision of the High Court and thus preferred an appeal to this Court. He prays that the appeal be allowed, conviction quashed, the sentence set aside and that he either be set at liberty or a retrial be ordered. The memorandum of appeal lists a myriad of grounds, including: that the trial magistrate and the first appellate courts erred in law by failing to realize that two different warrants of committal did not shed light on who it was about; that the prosecution case was not proved beyond reasonable doubt; that details in the P3 Form, PRC Form and Treatment Note Form neither show any defilement nor point at the appellant as the sole perpetrator of the offence; that the actual age of the complainant was not established; that the trial magistrate and first appellate courts erred in law by basing the appellant’s conviction on prosecution witnesses’ evidence marred with contradictions, glaring gaps and uncorroborated evidence of the complainant; that the sentence was unlawful; that the courts erred in law by failing to believe the appellant’s alibi; that the appellant’s arrest was improper and he was below 18 years; that vital witnesses were not brought to court to testify and the prosecution failed to produce the exhibits mentioned by the complainant; and that the two lower courts demonstrated bias and prejudice against the appellant and he was not accorded a fair trial as enshrined in Article 50 (2) of the Constitution. 6.In his written submissions, the appellant submitted that no prima facie case was established that could put him on his defence. That the evidence presented by the prosecution witnesses raised doubts that were not resolved. That in Dinkerrai Ramkrishan Pandya v R [1957] 1 EA 336, it was held that the court should not rely on evidence that is contradictory or inconsistent. Arguing that the medical evidence did not prove any penetration, the appellant relied on the case of P.K.W v Republic [2012] eKLR. He further submitted that whereas PW5’s testimony was that the appellant was aged 18 years, PW5 indicated in the P3 Form that the appellant was 16 years old. He referred to the case of Benard Omondi Oduakado v R (2015) eKLR in submitting that he was 16 years old at the time of the alleged incident and ought to have been convicted and sentenced under the Borstal Institutions Act. He argued that the custodial sentence in a maximum prison was therefore unlawful. 7.The appellant cited the case of Bukenya v Uganda [1972] 1 EA 549 in submitting that the complainant’s testimony that she slept in three different houses with her friends warranted his acquittal. He maintained that the complainant was not defiled and that the prosecution did not prove all the ingredients of defilement against him. That his identity as the sole perpetrator of the offence is doubtful and the burden of proof was on the prosecution. He contended that the prosecution’s failure to supply him with all the documentary evidence they sought to rely on in their case violated Article 50 (2) of the Constitution on fair trial. 8.The respondent’s submissions are dated 22nd April 2026. It is submitted that this being a second appeal, the Court is restricted under Section 361 of the Criminal Procedure Code to considering matters of law only. That this Court set out the jurisdictional confines in Karingo vs. R [1982] KLR 213. 9.On the grounds of appeal, the respondent submitted that the appellant cannot state that he was not mentioned in the committal bundle, having fully participated in the trial, was properly identified by the victim and convicted and sentenced. That in arriving at its conclusion, the court appreciated the victim’s age, the fact of penetration in accordance with Section 2(1) of the Sexual Offences Act and the appellant as the perpetrator. Regarding the victim minor’s age, the respondent asserted that the appellant did not contest the issue of age before the two lower courts. That the discrepancy between 13 and 12 years was immaterial and was in any event, a minor inconsistency that did not affect the conviction. The respondent relied on N N C v Republic [2018] KECA 515 (KLR) in which this Court found that proof of age need not be exact. It was the respondent’s position that the ingredients of the offence of defilement were proved beyond reasonable doubt. Further, the respondent submitted that the alleged inconsistencies are minor, do not go to the substance of the case, are not fatal and did not cause any prejudice to the appellant. Counsel relied on Jackson Mwanzia Musembi v Republic [2017] KECA 748 (KLR) in which the court indicated that not all contradictions in witness evidence are fatal to the prosecution's case and that minor or trivial inconsistencies are inevitable. 10.On the ground that the sentence was unlawful, the respondent stated that the victim’s age was proved beyond reasonable doubt to be 12 years, and that PW5 equally established the appellant’s age to be 18 years. They submitted that the sentence imposed by the trial court was proper as Section 8(3) of the Sexual Offences Act prescribes a minimum sentence for the offence of defilement as follows: “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”. The respondent argued that the question of sentence is one of fact, and over which this Court lacks jurisdiction, as affirmed by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR). Further, the Supreme Court stated that its decision in Muruatetu did not invalidate mandatory or minimum sentences in the Penal Code, the Sexual Offences Act or any other statute. 11.It was the respondent’s further submission that the appellant did not raise an alibi and only expressed remorse in his defence. It was contended that the appellant failed to demonstrate how his rights were infringed and maintained that the requirements of a fair trial were met. The respondent asserted that the High Court, as a first appellate court, re-evaluated the evidence adduced before it and was persuaded to the extent it concurred with the trial court. 12.This appeal came up for hearing before us on 28th April 2026. The appellant appeared in person from Kibos Maximum Security Prison and relied on the grounds of appeal and his submissions as filed. Learned prosecuting counsel Ms. Mumu held brief for Ms. Ikol for the State and relied entirely on the respondent’s written submissions. 13.On our role as a second appellate Court, was stated by this Court in Karani vs. R [2010] 1 KLR 73 as follows;“This is a second appeal. By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law. We cannot interfere with the decision of the superior court on facts unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole they were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law.” 14.Further, in in Karingo -vs- R (1982) KLR 213 at p. 219, this Court held as follows;“A second appeal must be confined to points of law and this Court will not interfere with concurrent findings of fact arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could find as it did (Reuben Karari C/O Karanja -vs- R (1956) 17 EACA 146).” 15.We have examined the appellant’s grounds of appeal together with the parties’ respective submissions and we summarize the issues for our determination as follows:a.whether the ingredients of the offence were established;b.whether the appellant’s sentencing was justified as imposed by the trial Court and upheld by the High Court; and,c.whether the Borstal Institutions Act applied as submitted for the appellant. 16.For the first issue, the appellant’s case is that no prima facie case had not been established to put him on his defence. He was charged with the offence of defilement pursuant to section 8 of the sexual offences Act. The section states as follows:“ (1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 2.A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 3.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. 4.A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 17.On age of the complaint the High Court found it was not in contest and as per age assessment report by PW5 the complainant was 12 years old. On penetration the High Court found that the complainant vividly narrated the events of 07th January, 2018 to 10th January, 2018 including that on the night of 09th January, 2018, the appellant took the complainant to one of the beds in the house of one Eric who too PW2 to the other bed and further, “That, the Appellant undressed her skirt and removed her panty. That, the Appellant also removed his trousers, his underwear and a sweater and put his penis into her vagina and thereafter they slept until 6.00am when the Appellant took the complainant and PW2 to Rakwaro.” The High Court further found that the complainant’s evidence was corroborated by the evidence of PW2 and PW5 and, the complainant’s evidence was that the only time she was involved in sex was on 09th January, 2018. The High Court like the trial subordinate Court therefore found that the penetration into the complainant’s vagina by the appellant’s penis had been established, further, even if the complainant may have been involved in sex by any other person, but which was not established, the charge against the appellant was sustainable as an autonomous charge, in any event. Further, the appellant had been identified as the assailant. We cannot interfere with the concurrent findings of fact by the trial Court and the High Court as the second appellate court. We find that the ingredients of the offence of defilement were established against the appellant consistent with the particulars of the charge. The appellant’s grounds of appeal challenging the conviction must therefore collapse. 18.On whether the appellant’s sentencing as imposed by the trial Court and upheld by the High Court was justified, we find that the sentence that was imposed was lawful because under section 8(3) of the Sexual Offences Act, twenty years imprisonment was the minimum prescribed sentence. 19.Turning to the last issue, we find that the Borstal Institutions Act did not apply as was submitted by the appellant. We cannot interfere with the concurrent finding of fact by the trial and first appellate Courts that PW5 carried out an assessment on the appellant and methodologically reported that the appellant was above 18 years old. We therefore find as unmerited the appellant’s submission that he was a minor at the time he committed the offence and ought not to have been committed to a term of imprisonment. 20.The Borstal Institutions Act is the statute providing for the establishment of borstal institutions for youthful offenders and for the detention of youthful offenders therein. Section 2 of the Act states that “youthful offender” means a person who has been convicted of an offence punishable with imprisonment and has been found by the court, at the time of such conviction, to have attained the age of fifteen years but to be under the age of eighteen years. We find that the provisions of the Act did not apply to the appellant because as at conviction he had attained the age of over 18 years. 21.On the whole we are satisfied, that the appeal lacks merit. We dismiss the appeal and affirm the conviction and sentence against the appellant as passed by the trial court and sustained by the High Court. DATED AND DELIVERED AT KISUMU THIS 12TH DAY OF JUNE, 2026.ASIKE-MAKHANDIA.................................... JUDGE OF APPEALE. C. MWITA....................................JUDGE OF APPEALB. ONGAYA.................................... JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR