https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11779

Ojiambo v Republic (Criminal Appeal E029 of 2026) [2026] KEHC 11779 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 11779 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E029 of 2026 DR Kavedza, J July 29, 2026 Between Peter Gerenge Ojiambo Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 12th March 2026 by Hon. D.C Mutai (PM) at Kibera Chief Magistrate’s Court Sexual Offences Case No. E034 of 2025 Republic vs Peter Gerenge Ojiambo) Judgment 1.The appellant was charged and after full trial convicted for the offence of defilement contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on an unknown date in the month of July 2025 at [Particulars Withheld] area in Kibra Sub-County within Nairobi County, the appellant intentionally and unlawfully caused his penis to penetrate the anus of W.J.O a child aged 3 years. He was sentenced to serve thirty (30) years’ imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant raised eleven ground which are coalized as follows; He challenged the totality of the prosecution’s evidence against which he was convicted. He contended that learned magistrate erred in law and fact by failing to compel the prosecution to avail two key witnesses. He also maintained that the sentence imposed was harsh and not commensurate with the lesser sentence prescribed in law. He prays that the conviction and sentence are set aside or alternatively, that the sentence be lowered to ten years. 3.This is the first appellate court and in Okeno v. R [1972] EA 32, the Court of Appeal for East Africa laid down what the duty of the first appellate court is. It is to analyse and re-evaluate the evidence which was before the trial court and come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. 4.The prosecution called four (4) witnesses in support of their case. PW2, M.W who gave unsworn evidence after voir dire examination. He told the court that the appellant inserted his penis into his buttocks and he thereafter narrated the ordeal to his mother, PW2. 5.PW2, Catherine Judith Otieno the complainant’s mother testified that the complainant explained what the appellant had done to him after having a nightmare one night during which he muttered the words “Peter leave me alone, it’s painful” in his sleep. She the rushed him to Nairobi Women’s Hospital where he refused medical care owing to the pain he felt. 6.PW3, Ritho Gathoni, a clinical officer recounted that she observed black scalps around the complainant’s anus, an indication of healing lacerations. Notably, she was unable to get anal swabs since complainant was traumatised hence adamantly refused to bend over. She thereafter compiled the PRC and GVRC forms which she adduced in court. 7.PW4, PC Esther Kagera, the investigating officer recalled that the complainant’s mother arrived at Kibera Police Station together with her son to report the incident. PW4 then visited the scene where the appellant was identified and arrested. He was identified by the complainant the following day. Additionally, she stated that the complainant was born on 16th August 2021, for which she produced his health card. 8.At the close of the prosecution case, the trial court was satisfied that the prosecution had established a prima facie case and put the appellant on his defence. 9.The appellant, DW1, testified that on the material day he went to work in the morning and only returned home at 7pm, when he was arrested and informed of the charges against him. This was corroborated by DW2, SOA, D3, ODO and DW4, AS. 10.After a full trial, the appellant was convicted and sentenced accordingly. 11.To succeed in a prosecution for defilement, it must be proven that the accused committed an act that caused penetration with a child. "Penetration" under Section 2 of the Act means, "the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 12.Further, section 8(1) and (3) of the Sexual Offences Act, No. 3 of 2006 provides thus: -8. Defilement(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. 13.In the present case the age of the complainant was established by the testimony of his mother and of the investigating officer, supported by the health card adduced in evidence which recorded that he was born on 16th August 2021. He was therefore three years of age at the material time and was a child within the meaning of the law. 14.As to penetration, the complainant himself gave a clear and consistent account that the appellant inserted his penis into his buttocks. That evidence was corroborated by PW2, the complainant’s mother, who observed that the child experienced marked difficulty sitting down because of the severe pain he suffered, and who further described the mental injury occasioned by the ordeal, manifested in a nightmare in which the complainant uttered the words “Peter leave me alone, it’s painful.” 15.Medical evidence from PW3, the clinical officer, cemented the fact of penetration: he observed black scabs on the complainant’s anus arising from lacerations in that area. The officer also noted the child’s demeanour, in particular his fear of bending over, which indicated a dread of reliving the experience to which he had been subjected. 16.On identification, both the complainant and his mother identified the appellant in court. They were familiar with him as their neighbour, and the circumstances afforded them ample opportunity to recognise him. 17.The appellant contended that crucial witnesses were not called by the prosecution. The principle in Bukenya & Others v Uganda [1972] EA 549 is well settled. Whilst the prosecution is under a duty to call all material witnesses necessary to establish the truth, it is not required to call a superfluity of witnesses. Where the evidence actually adduced is sufficient to prove the charge beyond reasonable doubt, no adverse inference falls to be drawn from the absence of additional witnesses. 18.In this case the testimony of the complainant, corroborated by his mother and the clinical officer, together with the documentary proof of age and the clear identification evidence, fully satisfied the required standard. The prosecution therefore proved its case beyond reasonable doubt, and the conviction of the appellant is accordingly upheld. 19.Turning to sentence, the trial court imposed a term of thirty years’ imprisonment. In so doing it considered the pre-sentence report and the aggravating circumstances of the offence, including the tender age of the victim and the breach of trust inherent in the appellant’s position as a neighbour. The court properly exercised its discretion. There is no material irregularity or misdirection that would warrant interference by this Court. 20.In the premises, the appeal is devoid of merit and is dismissed in its entirety.Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 29TH DAY OF JULY 2026..............................D. KAVEDZAJUDGEIn the presence of:Mr. Otiende Omollo for the AppellantMr. Mutuma for the RespondentKarimi Court Assistant.