https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9939

Ogango v Republic (Criminal Appeal E101 of 2025) [2026] KEHC 9939 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9939 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E101 of 2025 LM Wachira, J July 3, 2026 Between Victor Onyango Ogango Appellant and Republic Respondent (Being an appeal from the original conviction and sentence in Nyando criminal case no. E067 of 2023 by the Hon. J. M. Wekesa, SPM) Judgment Introduction 1.Victor Onyango Ogango the Appellant herein 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 on 25th October 2023 at [Particulars Withheld] Village in Nyakach Subcounty within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of R. R. A, a child aged 17 years. 2.In the alternative charge the Appellant was charged with the offence of 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 on 25th October 2023 at [Particulars Withheld] Village in Nyakach Subcounty within Kisumu County the Appellant intentionally and unlawfully caused his penis to come into contact with the vagina of R.R.A, a child aged 17 years. 3.The accused pleaded not guilty to the main and alternative charges. At the hearing, the prosecution called 4 witnesses. The Appellant was put on his defence and he denied that he committed the alleged offence. He did not call any witness. 4.In her judgment, the trial Magistrate convicted the Appellant for the offence of defilement and after mitigation the trial court sentenced the Appellant to serve 15 years imprisonment. 5.Dissatisfied with the trial court’s judgment the Appellant filed the current appeal citing the following grounds:-i.That the trial court erred in law and in fact in failing to establish that the prosecution did not prove the ingredients of the offence of defilement beyond reasonable doubt.ii.That the trial court erred in law and in fact in relying on fanciful and remote possibilities to convict the Appellant.iii.That the trial court erred in law and in fact in not weighing the conflicting evidence in the prosecution case that was consequential in the conviction.iv.The trial magistrate erred in law and in fact in not appreciating the Appellant’s cogent defence that overwhelmed the prosecution case. 6.The Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. The appeal was heard by way of written submissions. Both parties filed their submissions. Trial Court Evidence 7.The complainant testified as PW2. She told court that on the particular day she had gone to the latrine of the Appellant who is her neighbour. That as she left the latrine with the intention of going home, the accuse person called her and led her to his house. She told court that he closed the door with a stone and removed her clothes and inserted his penis into her vagina. The witness told court that she felt pain. When she was going home, she met her mother along the road and when she was questioned she informed the mother that she had gone to Obiko’s latrine and he called her and inserted his penis into her vagina. 8.Once the mother was informed, PW1 told court that she removed her pant, which was wet at the middle with a stain. PW1 testified in court and corroborated the testimony of the minor, as to the report that she received from the minor. 9.She told court that the minor was born on 8th October, 2006 and produced in court the birth certificate. Her testimony is basically that she went home on 25th October, 2025 and she did not find the victim. She thus asked the neighbours and also her other children whether they had seen the victim. None of them had. They therefore set out to look for the victim and found her along the road. When questioned, the minor only responded after being asked three times and indicated that she had gone to the latrine at Obiko’s. PW1 states that she got suspicious and when they got home, she checked the victim and found her innerwear wet at the middle and stained. 10.That is when she reported to the authorities and was advised to take the minor to hospital and she did. She also reported the incident to the police. She told court that the Appellant went missing when this happened and was only arrested later. 11.PW3 was the clinical officer who examined the minor. He produced in court the P3 form and the treatment notes. He told court that upon examination, the victim had tenderness on the labia majora and labia minora and a whitish discharge. The minor was treated and an impression of defilement was noted. The witness produced in court the P3 form and treatment notes of the victim. 12.PW4 was the investigating officer. He is the one who preferred the present charges against the Appellant. He confirmed that the report had been made and investigations done and that is when the accused person was arrested. He told court that the minor was defiled on a sofa set and that the Appellant warned her not to disclose. 13.Having been placed on his defence the accused gave sworn evidence and did not call any witness. He denied the offence and stated that he was being framed because of a land tussle between his family and that of the minor. Specifically, he stated that his family had a land issue with the village elder who is the grandfather to the minor. Appellant’s Submissions 14.The Appellant submitted that the there was no proof of penetration. He indicated that the Clinical Officer who had examined the complainant had stated that the patient had tenderness on the labia majora and labia minora which could be indicative of infection or sickness. The appellant submits that a vaginal swab was done and the result was that the victim had a bacterial infection and she was put on treatment. 15.He submitted that there was no proof of penetration and that the prosecution evidence was contradictory and the trial Magistrate erred in using such evidence as the basis of a conviction. The Appellant submits that the victim stated she was called by him and then later on, she states that he did not speak to her. He states that this was contradictory. 16.He further submitted that the court erred in finding that the age of the minor had been proved. He states that the P3 form indicated that she was 16 years while the rest of the prosecution evidence is that she was 17 years. He submitted that this was a contradiction that was material to the conviction. 17.The Appellant further submitted that his defence that there was a grudge between his family and that of the victim over land was not considered. He submitted that the charges herein were fabricated just because of the land tussle between him and the village elder who is a grandfather to the victim. Respondent’s Submissions 18.In opposing the appeal, the Respondent submitted that crucial elements to sustain a conviction for the offence of defilement were proved by the prosecution. According to Respondent, the complainant was 17 years of age which was proved by the Birth Certificate which indicated she was born on 8th October, 2006. 19.On penetration, the prosecution submitted that under Section 2 of the Sexual Offences Act, penetration is defined thus; "The partial or complete insertion of the genital organ of a person into the genital organs of another person. " It submitted that Penetration was proved by medical evidence from PW3 and corroborated by the evidence of the minor. 20.On the question of identity, the Respondent submitted that the victim and PW1 knew the complainant well and told court that they were neighbours. She told court that the incident took place in the house of the Appellant who is a neighbour. This was therefore not a question of recognition but a person well known to the victim. 21.On the alleged inconsistencies to the prosecution evidence, the Respondent submitted that there were no inconsistencies. They submitted that the testimony of PW1, PW2 and the medical evidence confirmed the commission of the act. Counsel further submitted that even if there were any inconsistencies, but which he was of the view were none, these were minor that did not affect the probative value of the prosecution evidence. 22.Counsel submitted that in totality, the evidence by all the prosecution witnesses was not contradictory and urged the court not to interfere with the trial Magistrate’s finding. 23.On the Sentence, the Respondent submitted that sentencingis by the discretion of the trial court and the Appellate court can only interfere when there is evidence that the discretion was exercised injudiciously, was manifestly harsh or court omitted to consider material factors and stated that the Appellant did not allude to any of those factors and therefore, the sentence meted out was justifiable and this court should not interfere with the same. Counsel urged the court to dismiss the Appeal and confirm the sentence. Analysis and Determination 24.The role of this Court as the first Appellate Court is well settled. It was held in the case of Okemo vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that. 25.Having reviewed the record, the grounds of the appeal and the submissions filed by the respective parties, I frame the following issues for determination:i.Whether the offence of defilement was proven to the required standard.ii.Whether the learned trial magistrate erred in law and facts in failing to consider the defence of the Appellant and the contradictions and gaps in the evidence of the prosecution witnesses.iii.Whether the sentence is excessively high. 26.In a charge of defilement, the prosecution must prove 3 elements being, the age of the victim, penetration and proper identification of the perpetrator. In Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 the court stated that: “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and identification of the assailant.” 27.On the first ingredient of age, PW1, told court that the minor was born on 8th October, 2006. She shown to the court a birth certificate, which was produced in court as exhibit. The Birth Certificate confirms PW2 was a minor aged 17 years at the commission of the offence, having been born on 8th October, 2006 and the offence having been committed on 25th August, 2023. I find that the Prosecution had proved that indeed the victim of this offence was a child aged 17 years. 28.On the second ingredient of penetration, Section 2(1) of the Sexual Offences Act defines penetration as: “The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 29.In the instant case PW1 and PW2 testified that they knew the Appellant who was a neighbour. PW2 told court that the Appellant took her to his house and removed her clothes and inserted his penis into her vagina. When PW1 removed her innerwear when they went home, she found it wet at the middle and stained. Further, the clinical officer PW3, who had attended to the minor found that the labia majora and minora were tender and an impression of defilement was made. To me the tenderness of the labia minora and labia majora is an indication of friction and thus penetration. 30.The Appellant’s submission is that the cause of tenderness was an infection or sickness because of the whitish discharge. I have considered this submission alongside the medical evidence of PW3. PW3 made an impression of defilement going by the presentation of the victim. He did not state that the tenderness was caused by the bacterial infection. I will go by the finding of the clinical officer and find that because of the tenderness of the labia majora and minora and because of the impression of defilement by the examining clinical officer, the prosecution had proved that there was penetration. I find that the Prosecution had provided evidence to prove that there was penetration. 31.On the issue of identification of the perpetrator, PW1 and PW2 testified that the Appellant was a neighbour. The Appellant had also not denied that he is well known to the Complainant. He actually confirmed this and stated that they even have a land dispute between them. The court finds that this is sufficient evidence for identification. The minor and PW1 having known the Appellant as a neighbour had no chance of mistaking him for any other person. 32.And for those reasons, this court thus finds that the prosecution proved beyond reasonable doubt the elements of defilement. Whether there were inconsistencies in the Prosecution evidence 33.I have considered this submission by the Appellant, where he submits that there were inconsistencies in the prosecution evidence. I have noted a little contradiction in the testimony of PW4 who was the investigating officer, however the inconsistencies are minor and do not affect the core evidence on whether defilement had taken place. Indeed, the issue was whether the incident took place on a sofa set and whether the Appellant had warned the minor not to disclose. 34.Clearly these do not affect whether the penetration had taken place or not and do not affect the probative value of the evidence adduced by the prosecution. The court of Appeal while discussing the issue of contradictory evidence had this to say in Peter Ngure Mwangi vs Republic (2104) eKRL: -“We, therefore find that on the totality of the evidence before us, any difference there may have been in the evidence adduced by the prosecution consisted of minor discrepancies and inconsistencies. We find that these were not material and did not weaken the probative value of the evidence tendered by the prosecution in support of their case.” 35.I find that the Appellant has not been able to demonstrate that the minor inconsistencies in the Prosecution case discredited their case. 36.The Appellant had further submitted that the trial court failed to consider his defence that these are trumped up charges because of the land dispute between the two families. I have considered this allegation and at the hearing the Appellant never cross examined on the issue. He only raised it at his own defence and did not call any witness. I have considered the submission by the Appellant and I find that his defence of a land tussle was an afterthought and does not affect the evidence by the Respondent. For that reason, I would have no reason whatsoever to interfere with the findings of the trial Magistrate. Whether the sentence imposed was excessive 37.The penalty for the offence of defilement of a child of fourteen years is provided under Section 8(4) of the Sexual Offences Act which states that: “A person who commits an offence of defilement with a child aged between sixteen and eighteen is liable upon conviction be sentenced of not less than 15 years”. 38.In the instant case, the trial court noted the mitigation of the appellant and considered the same and proceeded to sentence him to 15 years imprisonment. The trial court exercised its discretion in imposing the sentence. The sentence was appropriate in the circumstances. 39.In the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR it was stated as follows: -“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, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor 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 any one of the matters already stated is shown to exist.” 40.I take cognisance of the discretion of the trial court and also the circumstances of the victim herein. The victim is a child living with mental disability. Considering this, the provisions of the law and the role of the trial court, this court will not interfere with the sentence imposed by the trial court. 41.In the upshot, I find that the appeal herein lacks merit and is dismissed. The conviction and sentence by the trial court are upheld.It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBITHIS 3RD DAY OF JULY 2026.…………………………..………………L. M. WACHIRAJUDGEPage 4 of 4