https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6180

Odhiambo v Republic (Criminal Appeal E008 of 2025) [2026] KEHC 6180 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6180 (KLR) Republic of Kenya In the High Court at Siaya Criminal Appeal E008 of 2025 DK Kemei, J May 8, 2026 Between Tobias Oyembo Odhiambo Appellant and Republic Respondent (Being an appeal against the conviction dated 29th July 2024 and sentence dated 13th August 2024 by Hon J.P Nandi (SPM) in Bondo SPMC Sexual Offence case No. E014 of 2024) Judgment 1.The Appellant herein Tobias Oyembo Odhiambo was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars were that between 15th and 17th April 2024 at [Particulars Withheld] village in Nyamonye, Bondo Sub County within Siaya County intentionally and unlawfully caused his penis to penetrate the vagina of CAO a child aged sixteen (16) years. 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 No. 3 of 2006. The particulars were that between 15th and 17th April 2024 in Nyamonye, Bondo Sub County within Siaya County intentionally touched the vagina of CAO a child aged sixteen (16) years with his penis. 3.The Appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called five (5) witnesses. At the close of the prosecution’s case, the court found that the Appellant had a case to answer and thus placed him on his defense under section 211 of the Criminal Procedure Code. The Appellant tendered a sworn testimony and not call any witness. By judgment delivered on 29th July 2024, the Appellant was convicted and sentenced on 13th August 2024 to serve fifteen (15) years’ imprisonment. 4.Being dissatisfied with the decision of the trial court, the Appellant instituted this appeal against the conviction vide his Petition of Appeal dated 15th September 2025 wherein he raised the following grounds of appeal namely:i).That the offence was not proved.ii)That the learned trial magistrate disregarded all te open discrepancies in the evidence of the complainant thereby occasioning an injustice on the part of the Appellant.iii).That the learned trial magistrate misdirected himself when he failed to critically analyze the entire evidence and realize that the inconsistencies could not sustain a conviction.The Appellant therefore prayed that the appeal be allowed and the conviction be quashed and sentence set aside. 5.This being the first appellate court, its duty is to re-evaluate the evidence presented to the trial Court and subject to an independent analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account of the fact that it neither heard nor saw the witnesses and therefore to give due allowance for that. In Okeno – VS – Republic (1972) EA 32, it was held that;“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 6.The evidence tendered before the trial court was as follows: 7.DAO (PW1) testified that she was the step mother of the complainant. That on 15/4.2024 at 9.00 AM she left for her work place and returned home at 5.30.PM and was informed by her eldest daughter T that the complainant had left home at 5.00 PM but had not indicated the place she was going to. That she called her husband AO and briefed him about it and who instructed her to report the matter to the police the following day. That the girl did not report back home and that her husband started looking for her until 20/4/2024 at 11.00 AM when she was found at the church and that she was taken to Usenge police station. That the girl was brought home on 21/4/2024. That the complainant was aged 16 years and that she identified the birth certificate which indicated that she was born on 18/1/2008. The birth certificate was marked as Mfi-1. That the complainant informed her that Tobias (Appellant) fund her at Koriemo estate and took her to his house where he locked her inside an later had sexual intercourse with her using a condom for two days. That the complainant later went to the church after Tobias informed her that he wss going somewhere. 8.CAO (PW2), testified that she was a student at [Particulars Withheld] Secondary school in form three. That on 15/4/2024 she left home at 5.00 PM and while walking on the road when she met with Tobias (Appellant) who talked to and that she agreed to go with him to his house where he locked it from outside and who came back at 8.00 PM and later slept together and had sexual intercourse which was protected. That the Appellant instructed her to remove her trouser and that he took a condom and put on his penis and that he had sexual intercourse with her two times. That she did not want to have sex with him. That they woke up and that he left her in the house. That she did not want to leave the house and that they spent the night together again and had sex. That the following morning, she told him that she wanted to go home and that he escorted her to their church as there was a youth conference where he stayed up to the following day and that her father found her at the church. That her father took her to Nyamonye police post where she found the Appellant who had already been arrested and that they were taken to Usenge police station. That the following day she was taken to Got Agulu sub county hospital where she was examined. She identified the treatment notes (Mfi-2), lab request form (Mfi-3) and P3 form (Mfi-4). That the Appellant was well known to her as they had known each other before as from January 2024.On cross=examination, she stated inter alia; that she did not know where she was going at the time when he found her at the bus stage; that there was a problem at home over loss of a mobile phone; that she did not scream while inside the Appellant’s house; that the Appellant had earlier pestered her to allow him to be her boyfriend; that the Appellant asked her to board his motorcycle; that she spent four days at the church; that she took a bath before going to the police station. 8.AO (PW3) testified that he was the father of the complainant. That his wife called him to say that the complainant was not at home and that he advised her to report the matter at Nyamonye police post. That he came home on 17/4/2024 and searched for her in vain. That he was later alerted on 20/4/2024 by his brother that the girl had been found at the church. That he went to the church and found her there and who informed him that she had been with the Appellant and that she took him to the Appellant’s house where she had been staying. That she led him to where the Appellant was and that he apprehended him and escorted him to Usenge police station and that the following day he escorted his daughter to Got Agulu sub county hospital for treatment. That the complainant was aged 16 years. On cross-examination, he stated inter alia; that he apprehended the Appellant at the stage; that the Appellant’s house was not far from his; that he did not force his daughter to implicate him; that the doctor claimed that she did not find any problem with his daughter and that he did not know if she had bathed; that his daughter pointed the Appellant out before he arrested him. 9.Raphael Oduor (PW4) was the clinical officer based at Got Agulu sub county hospital. That he examined the complainant and noted a whitish discharge from the vaginal wall which was reddish meaning that there was friction. That the hymen was broken. That he concluded that there was penetration. That the hymen was freshly broken. He produced the P3 form as exhibit 3 while the treatment notes as exhibit 2 and the lab request form as exhibit 3.On cross-examination, he stated inter alia; that the whitish discharge could be caused by infection and foreign fluid; that he established that there was penetration based on the history and examination; that if a patient does thorough cleaning, then there will be no evidence; that body friction cannot cause whitish discharge where protection has been used but there will be friction on the walls; that he could not tell if the Appellant was the assailant. 8.No. xxxx Sgt Francis Bundi (PW5) was the investigating officer in the matter. That on 20/4/2024, he was at Usenge police station when the complainant and the accused were brought to the police station over allegation of defilement. That he was given a birth certificate and that he escorted the victim to Got Agulu sub county hospital where the P3 form was filled. On cross-examination, he stated inter alia; that he established the age of the complainant; that the complainant showed him where she was staying with the Appellant. 9.Upon the close of the Respondent’s case, the trial court later ruled that the Appellant had a case to answer and was placed on his defence. He opted to tender a sworn testimony and did not call a witness. 10.Tobias Oyembo Odhiambo (DW1), testified that he comes from Nyamonye village and a boda boda rider. That he was aged 19 years old. That he does not know the complainant and that he just saw her at the police station. That he does not know the complainant’s name. 11.When considering the evidence on record, the learned trial Magistrate observed that the defense brought by the Appellant did not in any way cast doubt on the prosecution’s case and convicted him under section 215 of the Criminal Procedure Code. 8.The appeal was canvassed by way of written submissions. Both parties duly complied. 8.I have considered the record of the trial court and the submissions tendered. I find the issue for determination is whether the Respondent proved its case against the Appellant beyond reasonable doubt. 8.The burden of proof in all criminal trials is upon the prosecution to prove and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462. 8.The offence of defilement has three essential ingredients which must be proved by the prosecution before a conviction can be achieved. The said elements include; age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to ensue.“Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides 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.(5)It is a defence to a charge under this section if -a.it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; andb.the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees. 8.As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim.. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.”Regarding proof of age, and as noted above, it is noteworthy to state at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. 8.Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years, there are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR) where the court stated as follows:“……..the question of proof of age has finally been settled by a recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof” It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...” 8.In the present case, the prosecution discharged this burden through the birth certificate (Exhibit 1) produced by PW1, which established that the minor was born on 18/1/2008, making her age as sixteen years at the time of the incident. This was further corroborated by the Clinical Officer (PW4), satisfying the legal threshold. Further, it came out clearly that the complainant, her father, step-mother as well as the clinical officer plus the investigating officer talked of the age of sixteen years. Iam therefore satisfied that the aspect of age was proved by the Respondent beyond any reasonable doubt. 9.As regards the aspect of penetration, Section 2 of the Sexual offences Act No. 3 of 2006 defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. 8.Section 124 of the Evidence Act, Cap 80 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 8.In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” 8.In the present case, PW2 gave a graphic account of the Appellant inserting his genitalia into hers, which was corroborated by PW4’s medical findings such as vaginal penetration, inflammation (friction), freshly broken hymen. Indeed, the said clinical officer confirmed that there was penetration of the complainant’s vagina. 8.The Appellant’s defense of not knowing the complainant is diminished by the medical evidence; as held in Seme v Republic [2008] eKLR, that a mere denial cannot overturn positive medical findings corroborating the commission of the offense. 8.Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. 8.In this case, the ingredient of penetration, the prosecution relied on the sworn testimony of the minor describing the insertion of a penis into her vagina, which was corroborated by the medical evidence of PW4. The Clinical Officer noted whitish discharge on the vaginal wall which was reddish implying that there was friction and that the hymen was freshly broken and concluded that there was penetration. This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006, where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupturing the hymen. 8.Furthermore, Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. The defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Hence, I find the second ingredient namely penetration was adequately proved based on the victim’s evidence and the medical evidence. 8.As regards the issue of identification/participation of the Appellant, the same was firm, consistent, and free from any possibility of mistake. The complainant knew the Appellant prior to the incident and positively recognized him as the perpetrator. She knew him as Tobias and their neighbour who used to operate a boda boda. The complainant stated that the Appellant had earlier on been pestering her to allow him be her boyfriend and that on the dates in question the Appellant met her at the bus stage and that he took her to his house where she stayed with him for two days and had sexual intercourse. Further, it was the complainant who escorted her later to the church where he left her. This was therefore a case of recognition rather than identification of a stranger, which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Others v Republic [1980] eKLR, the Court of Appeal held that recognition is “more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the assailant.” The complainant’s evidence was direct, unwavering, and supported by the circumstances of close physical proximity during the commission of the offence, which left no room for doubt. The incident took place at the house of the Appellant where the Appellant defiled her severally and that the complainant had no difficulty in recognizing the Appellant. The complainant later informed her father that it was the Appellant who had defiled her and that she led her father to the house of the Appellant and later pointed him out at the bus stage whereupon the Appellant was apprehended and escorted to Usenge police station. 9.The environmental circumstances also favoured accurate identification. The incident occurred in a setting where the complainant had sufficient opportunity to see and recognize the Appellant. The Court of Appeal in Wamunga v Republic [1989] eKLR emphasized that courts must evaluate lighting, distance, and duration of encounter when assessing identification. Here, the interaction was prolonged, intimate, and involved direct contact, making misidentification practically impossible. The complainant’s emotional distress immediately after the incident further supports the reliability of her identification as she described the perpetrator by name to PW2 and her aunt and grandmother without hesitation. 8.Finally, on identification, the complainant recognized the Appellant as Tobias, a close neighbour living nearby. Jurisprudence establishes that recognition is more reliable than identification of a stranger (Anjononi v Republic [1980] eKLR). The trial court correctly analyzed the Appellant’s defense and found it to be mere denials. The evidence clearly showed that the complainant and Appellant had consensual sex but then the complainant was then a minor who had no capacity to consent to the sexual intercourse. The trial court duly believed the testimony of the complainant and warned itself pursuant to the provisions of section 124 of the Evidence Act. The identification was thus safe, and the defense was rightly rejected as a diversionary tactic. 8.In the landmark case of R v Turnbull & Others [1977] QB 224, the court established guidelines for identification evidence, stating that recognition of a known person carries more weight than the identification of a stranger. 9.Furthermore, the Appellant’s own conduct reinforced the prosecution’s case on identification. His conduct in attempting to flee upon seeing the father of the complainant even after the complainant pointed him out left no doubt about his involvement in the crime and reinforces the prosecution’s evidence that he was placed at the scene of crime. Courts have held that where recognition is supported by the conduct of the accused and surrounding circumstances, the evidence is exceptionally strong. In Simiyu & Another v Republic [2005] eKLR, the Court of Appeal held that prompt and consistent reporting of the assailant’s identity enhances evidential reliability. In this case, the complainant reported the Appellant’s name to her father (PW3) confirmed the consistency of her report, and that no evidence exists of animosity or mistaken identity. Nothing came out of the evidence that the Appellant and the parents of the complainant had any grudges prior to the incident. Indeed, the Appellant had seduced the complainant and managed to convince her to go to his place where they spent together for about two days. The Appellant ought to have known that he was dealing with a minor who did not have capacity to consent to the sexual intercourse. The identification was therefore accurate, reliable, and proved beyond reasonable doubt. The ingredient of identification was therefore sufficiently proved, going by the above evidence. It is clear that the cumulative and conjunctive elements in a charge of defilement all proved and the evidence was consistent and corroborative hence sufficient to convict the Appellant for the offence. Hence, the finding on conviction by the learned trial magistrate was quite sound and must be upheld. 8.On whether the sentence imposed upon the Appellant was appropriate, the statutory prescription and judicial discretion, the trial court imposed a sentence of fifteen years’ imprisonment pursuant to Section 8(4) of the Sexual Offences Act, which prescribes this penalty for the defilement of a child aged between the age of sixteen to eighteen years. While the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared mandatory minimum sentences unconstitutional, it affirmed that courts must consider the gravity of the offense and the specific circumstances before sentencing. 8.In Jared Koita Injiri v Republic [2019] eKLR, the Court of Appeal upheld a life sentence for defilement of a minor, noting that despite the discretion granted by Muruatetu, the severity of the crime against a child of tender years justifies the harshest penalty. The trial magistrate exercised this discretion noting the mandatory nature of the provision and the need to deter such conduct. However, as noted above, the exact age of the complainant was 16 years and hence proper under section 8(4) of the Sexual Offences Act which attracts a minimum sentence of 15 years’ imprisonment. 9.In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence: -“sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)”The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that:“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.” (Emphasis added) 8.As regards aggravating factors and breach of trust, the sentence was just given due to the presence of significant aggravating factors. The victim was around 16 years old, a child who required protection rather than predation. Furthermore, the Appellant was a close neighbour with the family of the complainant and thus he occupied a position of trust and authority over the child. 8.In Mumbai v Republic [2014] eKLR, the court emphasized that breach of trust is a serious aggravating factor. The Appellant abused this trust by not only defiling the minor but also attempting to silence her with threats, which speaks to his moral blameworthiness. 8.As regards proportionality and protection of the public, it is noted that the victim impact statement noted the trauma suffered by the child, and the medical evidence confirmed physical injury (freshly broken hymen and lacerations on the vaginal wall) to a 16-year-old. Courts have consistently held that sentences in sexual offenses must reflect the societal outrage and the need to protect vulnerable children from sexual predators. Given the Appellant's lack of remorse and his attempt to dismiss the proceedings as a trumped up charge, there is need for the protection of the public which calls for deterrence, aligning with the principles of sentencing set out in the Criminal Procedure Code. Again, the Supreme Court in Republic Vs Joshua Gichuki Mwangi & Others Petition No. 18 of 2023, it was held that the minimum sentences provided for in the Sexual Offences Act remain lawful until the statute is declared unconstitutional. I find the sentence imposed was appropriate and in tandem with the age of the minor. I find the sentence imposed was commensurate with the moral blameworthiness of the Appellant. It is noted that the trial court took into account the provisions of section 333(2) of the Criminal Procedure Code and ordered the same to run from the date he was placed in custody namely 29/7/2024. 9.The Respondent filed a notice of enhancement of sentence dated 13/1/2025 wherein it sought for the sentence 15 years imprisonment to be enhanced to 25 years’ imprisonment. It is noted that the parties did not submit on the same and hence I see no reason to interfere with the sentence of 15 years which is the possible minimum in law. In any case, it transpired that the Appellant was a first offender. 10.In the result, it is my finding that the Appellant’s appeal both on conviction and sentence is devoid of any merit. The same is dismissed. DATED AND DELIVERED AT SIAYA, THIS 8TH DAY OF MAY 2026D.KEMEIJUDGEIn the presence of :Tobias Oyembo Odhiambo.......AppellantSoita.....................................for RespondentM/s Mourine.....................Court Assistant