https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9654

Ogake v Republic (Criminal Appeal E030 of 2025) [2026] KEHC 9654 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9654 (KLR) Republic of Kenya In the High Court at Kisii Criminal Appeal E030 of 2025 RK Koech, J July 2, 2026 Between Julius Osoro Ogake Appellant and Republic Respondent (Being an appeal from the judgment, conviction and sentence of the Honourable Mugendi Nyaga, Principal Magistrate, delivered on 122h January, 2025 in Etago MCSO E 001 of 2025) Judgment 1The appellant was charged with the offence of defilement contrary to S. 8(1) as read with S. 8(4) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence stated that on the 6th day of December, 2024 at around 1830 hours in Gucha South Sub-County within Kisii County the appellant intentionally and unlawfully caused his penis to penetrate the vagina of ZNO, a child aged 14 years. The appellant also faced an alternative charge of committing an indecent act with a child c/s 11(1) of the previously mentioned Act. The facts being that, at the above-mentioned place and time the appellant intentionally and unlawfully committed an indecent act by touching the vagina of ZNO, a child aged 14 years using his penis. 2The appellant denied the charges, after a full trial, the appellant was convicted on the main charge and sentenced to serve imprisonment for a period of twenty (20) years. 3Being dissatisfied with both the conviction and sentence imposed by the learned trial magistrate, the appellant has appealed to this court. The appeal is contained in the appellant’s petition of appeal lodged with the court on 26th September, 2025. The appellant is seeking orders to have his conviction quashed, the sentence of imprisonment set aside and the appellant set at liberty. 4The grounds in support of the appeal are as summarized hereunder;1.That the trial magistrate erred in law and fact by convicting and sentencing the appellant for the offence of defilement which had not been proved to the requisite standard,2.That the learned trial magistrate erred in law and fact by failing to comply with the requirements of Article 50(2) (g) and (j) of the Constitution of Kenya, 2010 by failing to ensure that the appellant was supplied with the evidence that the prosecution sought to rely on and by failing to ensure that the appellant was accorded legal representation due to the seriousness of the charges that he was facing, and3.That the learned trial magistrate erred in law and fact by convicting the appellant based on contradictory and unreliable evidence thus rendering the conviction unsafe in the circumstances. 5When the appeal was admitted for hearing, directions were given that the parties file their respective submissions. In his written submissions dated 25th February, 2026, the appellant is urging this court to find that the testimony of the complainant was false. He is also asking this court to appreciate that one Judy who had set off to accompany the complainant when she left home to go and buy mandazis was not called as a witness to shed light on why she left the complainant to proceed on the journey alone. The appellant faulted the investigating officer for failing to conduct proper investigations. The appellant submits that the witness statement of Judy should have been recorded; he further avers that Judy should have explained why she returned home before accomplishing the mission of buying mandazis with the complainant. 6The appellant points out that a woman who was selling vegetables by the roadside who saw one Ogeto accosting the complainant was not called to testify as a witness. The appellant submits that Ogeto is not the appellant; he wonders loudly why ogeto was not arrested. The appellant says he apparently rescued the complainant from one Ogeto and the complainant later implicated him in the commission of the offence. The appellant submits that he was assaulted by the complainant’s mother and others and later falsely accused of defiling the complainant. The appellant submits that it was improbable that he had earlier threatened to sexually assault the complainant, saying the threats would have been reported to the authorities. 7The appellant faulted the prosecution for its failure to call persons who accompanied the complainant’s mother to the scene. The appellant submits that there were contradictions in the prosecution’s evidence especially as regards the testimony of the complainant and her mother. He points out that the contradictions should be resolved in favour of the appellant. The appellant submits that the clinical officer who examined the complainant did not present evidence of penetration. 8Even though the respondent indicated that it filed submission, the case tracking system shows that no such submissions were uploaded into the portal. As a first appellate court, it is the duty of this court to re-evaluate the entire evidence afresh and draw its own conclusion, see the decision in Okeno v Republic (1972) EA32. To sustain a conviction, the prosecution is duty bound to proof its case beyond any reasonable doubt and that burden never shifts to the defence. This is a timeless principle in criminal trials; see Woolmington v DPP (1935) AC 462. An accused person, like the appellant in the present case, is presumed innocent, until the prosecution discharges its evidentiary burden of proof aforesaid; see Article 50(2) (a) of the Constitution of Kenya, 2010 9A look at the evidence on record shows that one Ogeto grabbed and held the complainant by her collar while she was walking towards a place where she was to buy buns. The complainant pleaded with the said Ogeto to be released; she told the court that the appellant emerged and grabbed her by the waist. According to the complainant, the appellant was someone well known to her. The complainant told the trial court that she wriggled herself free from the two but they chased her to a nearby shop. Unfortunately, the shopkeeper prevented the complainant from taking refuge in his shop. The complainant told the court that the appellant and Ogeto forcibly walked her away from the shop, on seeing one Nyakeya who was a resident of her neighbourhood, she reportedly told him to report to her mother that she had been kidnapped. Ogeto reportedly chased away the boy who had been sent with the complainant’s distress message. The appellant reportedly took the complainant to a house under construction and indicated to her that he wanted to have sex with her quickly. When she declined, he is said to have rained kicks on her loins and threatened to stab her with a knife that he had. 10Evidence adduced shows that the appellant forcibly removed the complainant’s trouser, before removing his own trouser and defiling the complainant. It is the evidence of the complainant that the appellant penetrated her vagina using his penis, albeit without any form of protection. She reportedly excused herself to go for a short call while the appellant was in the act. When she was released, she fled to safety after assuring herself that the appellant had lost concentration. She could hear her mother screaming as she fled and she ran towards her. She told the court that she left her trousers at the scene. The appellant is said to have chased after the complainant to where her mother was while claiming to have rescued her. 11The complainant told the court that she was taken to hospital and the incident reported to the police. It is the evidence of the complainant that she had met the appellant prior to the incident and he made sexual advances to her, which she declined. The appellant is said to have hinted at forcing himself on the complainant, as was his habit with other girls. 12On meeting the complainant on the day of the incident, the appellant reportedly threw away an avocado and vegetables, which he had, to enable him to tackle the complainant. It is the evidence of the complainant that the appellant threatened her with a knife; she told the court that the police recovered her underwear from the scene. 13WRM, who is the complainant’s mother told the court that she was alerted by one Brayo that the complainant had been kidnapped. Brayo led her towards the scene, while she was screaming and calling out the complainant. She told the court that the complainant ran towards where she was while dressed in a blouse but without her trouser and panty. Hot on her heels was a young man who was seeking help to have the complainant restrained. When he tried to snatch the complainant from her mother, she restrained him. It is the evidence of Winfridah that another young man who was armed with a panga arrived; he rubbished her report that her daughter had been defiled. Other young men joined the two and jointly assaulted the complainant’s mother. Winfridah identified the appellant as the person identified to her by the complainant as the person who had defiled her. She told the court that she grabbed the appellant when he ran to where she was while chasing the complainant. 14Mr. Lawrence Oriki Manyura who is a clinical officer told the trial court that he examined the complainant on 6th December, 2024 and found her with lacerations on outer labia. It is his evidence that her privates parts were tender and that she had lacerations on her neck and blunt injuries on the back. He produced a P3 showing that the complainant was physically assaulted and defiled (see exhibit 4). 15No. 2xxxx0, PC Mercy Chepchumba who is the investigating officer produced the complainant’s black trouser, a pink panty, grey jumper and white slippers (see exhibits 5, 6, 7 and 8 respectively) which she says she recovered from the scene on 7th December, 2024. She also produced the complainant’s birth certificate, which shows that she was born on 11th October, 2010 and was 14 years old at the time of her defilement (see exhibit 1). 16When placed on his defence, the appellant told the court that his family home was set ablaze by prosecution witnesses on 7th December, 2024 on allegations that he and one Ogeto had defiled the complainant. It is his evidence that he was arrested on 4th January, 2025. He urged the trial court to acquit him of the charges he was facing. 17The record shows that the appellant took his plea to the charges that he was facing on 6th January, 2025 and he was immediately supplied with all the documents that the prosecution was to rely on during the trial. The lower court record shows that the appellant sat pretty throughout the trial and never, at any point, indicated that he needed legal representation due to the seriousness of the charges that he was facing. He cannot raise the issue of lack of representation on appeal. His submissions that he was denied due process safeguards, during his trial, falls flat as unfounded. 18I have read the judgment of the trial court; it shows that the learned trial magistrate properly analyzed every bit of evidence and the applicable law. Due regard was given to the ingredients of the offence and the evidence in support thereof. The appellant who was brazen in his assault of the complainant was properly identified; it was more of evidence of recognition by a victim who knew him. He pursued the complainant into the hands of her distressed mother; in fact, he wanted to snatch the complainant from his mother because he was not done with the act of defiling her. 19I note that the trial court appreciated the decision in the case of Duncan Odhiambo Onyango v Republic (2019) eKLR, where it was held, “ the key ingredients for the offence of defilement include proof of the age of the complainant, proof of penetration and proof that the appellant was the perpetrator.” The trial Court also appreciated the court of Appeal decision in the case of Eliud Waweru Wambui v Republic (2019) eKLR in which the court considered the issue of age in sexual offences and held,In this appeal, one of the appellant’s major complaints is that the age of the complainant was not proved to the required standard and that the document produced as her birth certificate could not be relied on to prove her age. There is no doubt that in an offence such as faced the appellant, indeed in most of the offences under the Act where the age of the victim determines the nature of the offence and the consequences that flow from it, it is a matter of the greatest importance that such age be proved to the required standard, which is beyond reasonable doubt.” 20It is apparent that the appellant was acting in concert with others who wanted to gang defile the hapless complainant including one Ogeto. They even had the audacity to assault the mother of the complainant when she went to rescue her daughter to the chagrin of the assailants. The appellant and Ogeto are said to have abused Ogeto’s mother when she responded to the commotion that they had caused. I do find that the appellant was properly convicted and I find no merit on any of the grounds challenging his conviction. 21I now turn to the issue of sentence; the appellant was sentenced to serve a term of imprisonment for twenty (20) years. The complainant was 14 years old at the time of her defilement. For purposes of sentence, the provisions of S. 8(3) of the Sexual Offences Act No. 3 of 2006 was applicable. It provides for a mandatory sentence of imprisonment for twenty (20) years for any person who commits an act of defilement with a child who is between the ages of 12 and 15 years. Having found that the complainant was 14 years at the time of her defilement, the learned trial magistrate sentenced the appellant to the minimum sentence prescribed by the applicable law. 22There were aggravating circumstances that would have called for a stiffer sentence above the minimum sentence. In fact, the court exercised leniency with the appellant who ought to have been given a longer sentence as opposed to the minimum which he got away with. 23However, in the absence of a cross appeal by the state on the sentence, I do not wish to enhance the sentence imposed on the appellant. For this, he should consider himself a lucky person. 24For the above reasons none of the grounds of appeal succeeds, the appeal is hereby dismissed in its entirety. Both The conviction and sentence are upheld.It is hereby ordered. JUDGMENT READ, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 2ND DAY OF JULY, 2026HON. RICHARD K. KOECHJUDGEIn the presence of:- Appellant virtually from Kisii GK Prison- Mr. Koima appearing virtually for the Respondent- Mr. Enock Court AssistantRight of appeal within 14 days