https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9971

Olal v Republic (Criminal Appeal E091 of 2025) [2026] KEHC 9971 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9971 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E091 of 2025 WN Molonko, J July 2, 2026 Between Nicholas Otieno Olal Appellant and Republic Respondent (Being an Appeal from the Judgment of Hon. M. Okuche SPM in Migori Law Courts MCSO No. E024 of 2024) Judgment 1.The Appellant was charged with the offence of defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act No. 3 of 2006. He equally faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. 2.The particulars of the offence were that on 7th August, 2023, at [Particulars Withheld], Nyatike Sub-County within Migori County, in the Republic of Kenya, the Appellant intentionally and unlawfully caused his penis to penetrate into the vagina of N.M.P a female child aged 13 years. 3.The Appellant was found guilty as charged, convicted and sentenced to 20 years imprisonment. He was discharged on the alternative charge. Being dissatisfied with the whole judgment, he instituted the present appeal based on the following grounds:-i.That he did not plead guilty to the charge.ii.That the trial court erred in law and fact by failing to comply with the provisions of Article 50(2)(h) of the Kenyan Constitution, 2010.iii.That the trial court erred in law and fact by not considering that the ingredients of the offence herein were not proved to the required standard in law and fact.iv.That the trial court erred in both law and fact by refusing to consider his defence and mitigation. 4.The Appellant filed his undated written submissions while those of the Respondent were dated 2nd December,2025. The Judgment herein is based on the said written submissions which both parties relied upon in their entirety. Legal Analysis 5.This being the first appellate court, this Court will re-evaluate and analyse the evidence adduced in the trial court for this court to come up with an independent conclusion. In doing so, this court bears in mind that, unlike the trial court, it did not have the opportunity of observing the demeanour of the witnesses as they testified. See Okeno vs. Republic [1972] E.A 32. 6.The Appellant was unrepresented on appeal. This court has carefully considered the Petition of appeal, and grounds of appeal, Appellant’s written submissions as well as those of the Respondent, the proceedings before the trial court and the judgment as well as the evidence on record and come up with the following issues for determination-i.Whether or not the trial court complied with Article 50(2) (g) (h) of the Constitution;ii.Whether the Prosecution proved its case beyond reasonable doubt considering the ingredients of defilement; andiii.Whether or not the sentence meted upon the Appellant by the trial Court was lawful. 7.The Court proceeds to address the issues as follows- I. Whether or not the Trial Court complied with Article 50(2)(g) and (h) of the Constitution. 8.In his grounds of Appeal, the Appellant averred that the trial court did not meet the requirements of Article 50(2)(g) and (h) of the Constitution. He strongly contended the manner in which the trial court conducted his case. He stated that he was a first offender and did not understand the court process. He further submitted that he is not eloquent nor fluent in either English or Swahili language which the court used. He disputes the indication in the proceedings that an interpretation was done. He avers that the language barrier he faced led to miscarriage of justice. He also states that the court would have provided an advocate to represent him to avoid miscarriage of justice. 9.The Respondent on its part submitted that the Appellant was informed of his right to legal representation under Article 50(2)(g)(h) of the Constitution at the time of plea. They further submitted that the Appellant was not charged with a capital offence to warrant the mandatory legal representation. They further contended that the Appellant understood the trial process, participated in the proceedings and effectively cross- examined prosecution witnesses. They cited the case of Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) where the court stated that “ ..….even if the trial court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant’s case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution witnesses…..the Appellant was not charged with a capital offence whose penalty is death so as to necessitate the mandatory requirement for legal representation…..”. 10.The trial court’s record shows that the Appellant was first arraigned in court on 21/06/2024. The charge was read to him in a language he understood (Dholuo) and a plea of not guilty was entered. The undisputed fact is that the Appellant was not represented by Counsel during the trial. The court record does not indicate that the Appellant was informed of his right to be represented by an advocate. 11.The Appellant did not ask to be provided with one. He proceeded with the trial and cross- examined the witnesses. He mounted a defense to this charge. This Court is satisfied that failure to inform the Appellant of his right to Counsel under Article 50 (2) (g) of the Constitution did not prejudice the Appellant in this case. Further, he has not demonstrated that any injustice was occasioned to him at all as a result of not being informed of his right or for not being provided for with an advocate at the State’s expense in the circumstances of this case. II. Proof of Prosecution’s Case 12.In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement as settled in in the case of George Opondo Olunga vs Republic [2016] eKLR under the following distinct heads. A. Age of the complainant 13.The Appellant did not submit on the issue of age and conceded that the same was well settled by the prosecution. On its part, the Respondent submitted that the complainant PW1, testified that she was born on 9th August, 2010 and was 13 years at the time of the incident. She further submitted that PW5, the Investigating Officer produced the birth certificate as exhibit number 1 which is sufficient proof that the complainant was 13 years at the time of the incident. 14.The Appellant did not challenge the production of the birth certificate and did not dispute it in his submissions, this court was satisfied that PW1’s age was proven beyond reasonable doubt and that she was a child at the time of the incident. B. Penetration 15.The Appellant did not submit on the issue of penetration. He conceded that this was settled by the prosecution. On its part, the Respondent submitted that PW1 stated that the Appellant pushed her into the thicket, forcefully removed her uniform and defiled her. The medical evidence produced by the Moseti Justus Maroa, a clinical officer (PW4) corroborated the minor’s evidence. He testified that that he examined the minor, her clothes were soiled, neck was tender to touch and she had fluid in her vulva and a tear on the labia minora. He confirmed that it was his professional opinion that there was forceful penetration to her vagina and she was bleeding from her vagina. 16.The Appellant did not challenge the factual and medical evidence produced and did not dispute the same in his submissions, this court is satisfied that the element of penetration was proven beyond reasonable doubt. C. Identification 17.The Appellant extensively submitted on this issue. He argued that the evidence of PW1 demonstrated that she did not know the person who attacked her. He referred to portions of the record where PW1 allegedly stated that she did not know the assailant. He further submitted that PW1 testified that she lost consciousness during the incident and only regained consciousness later while bleeding. The Appellant contended that these circumstances required deeper investigation and careful evaluation before a conviction could properly be reached. 18.The Appellant further submitted that PW1 reiterated during her testimony that she had never seen the assailant before. He argued that although PW1 later stated that she identified him, no formal evidence on the identification parade was produced before the court. He contended that the alleged identification was based on fixation and improper motives. 19.The Appellant further challenged the evidence of PW5, the Investigating Officer. He submitted that PW5 stated that there was no identification parade conducted and yet also testified that the complainant identified the Appellant among seven other persons at the police station. The Appellant questioned whether that process met the legal requirements governing identification. 20.The Appellant further submitted that he was arrested approximately eleven months after the commission of the offence and no person identified him to the police at the time investigations commenced. He also stated that the complainant merely informed the police that she could identify the perpetrator if she saw him again and no distinctive physical features were initially reported to police. The Appellant argued that the alleged facial scar used during the identification process only emerged during testimony in court and was not part of the initial report made to police. 21.The Appellant questioned the basis upon which the police singled him out as a suspect. He further questioned whether the complainant had been called to identify various suspects during the eleven-month period preceding his arrest and what criteria had been used by police to arrive at him as the suspect. 22.The Appellant also stated that he was not supplied with the investigation diary or the first OB report, thereby impairing his ability to prepare his defence. 23.He further submitted that the trial court improperly relied on the alleged scar and the purported identification at the police station without considering the circumstances surrounding his arrest, the long period between the offence and identification, and the concerns raised regarding the identification process. He argued that there was no watertight evidence capable of sustaining a conviction. 24.The Appellant further submitted that none of the prosecution witnesses claimed to have prior knowledge of him. He also questioned the handling of exhibits, particularly the blood-stained or soiled clothing, which according to the prosecution had been discarded at the hospital. He argued that such evidence could have assisted the court in understanding the circumstances surrounding the offence. 25.Finally, the Appellant submitted that the trial court failed to properly consider his defence. He argued that had the court fairly evaluated his defence and the evidence as a whole, particularly given the seriousness of sexual offences and the severe sentences attached thereto, it may have arrived at a different conclusion. 26.He submitted that the issues raised in the appeal create doubt regarding the correctness of the conviction. He urged the appellate court to independently evaluate the evidence and arrive at a just determination. 27.The Respondent on its part submitted that PW-1 testified that although she did not know the Appellant by name prior to the incident, she was able to identify him by his physical appearance, and specifically noted a distinctive scar on his forehead, which she observed at the time of the incident. This identifying feature was subsequently verified during the cross-examination of PW1, the trial court itself observed and placed on record the presence of the scar on the Appellant's forehead, lending judicial corroboration to the complainant's description of her attacker. 28.The Respondent further submitted that PW5, PC Kipkome Sitienei, further testified that following the Appellant's arrest on the 5th of June 2024 which arose initially from a separate offence and was effected by members of the public together with the Area Chief, the complainant was summoned to Macalder Police Station, where she positively identified the Appellant as the person who had defiled her. The officer confirmed that he was personally present during this identification, which took place within the police station premises among a group of seven individuals. The Appellant's identification was therefore both credible and capable of sustaining the conviction. 29.The Respondent further submitted that the trial court properly identified, considered, and applied the three essential ingredients of the offence of defilement namely, the age of the victim, the act of penetration, and the positive identification of the perpetrator and that each of these elements was proven to the requisite standard of proof beyond reasonable doubt through credible, corroborated, and reliable evidence adduced before the court. 30.The Respondent prayed that the appeal be dismissed in its entirety, with the conviction and sentence of 20 years imprisonment as imposed by the trial court being upheld and confirmed. 31.I have evaluated the evidence of the trial court, the Appellant’s Grounds of Appeal, his written submissions and those of the Respondent, this Court proceeds to analyse the evidence on record to establish if the Appellant was positively identified as the perpetrator of the offence. 32.From the record, PW1 testified that on the 7th of August 2023, at approximately 1:00 in the afternoon, she was walking back to school from home in the company of two other children. As they proceeded along the route, left the other children and walked ahead as they were in the middle of examinations and could not afford the delay. 33.She narrated that the road she was travelling along passed through a thicket and as she walked, she observed a male person approaching from the opposite direction, someone she did not recognize. She moved aside to give him way to pass, but instead of proceeding, the individual grabbed her by the neck and forcefully pushed her into the thicket. By this point, she had already moved a considerable distance ahead of her companions, leaving her isolated and without immediate access to help. She attempted to scream for assistance, but was unable to do so as the assailant maintained a stranglehold on her neck. PW4 the clinical officer later corroborated this fact as he observed that the minor’s neck had an injury and was tender on touch. 34.She further stated that while continuing to hold her by the neck with one hand, the perpetrator forcefully removed her school uniform with his other hand. The strangulation caused her to lose consciousness. Upon regaining her senses, she found herself bleeding from the vagina and discovered that the accused was still standing beside her. He made the statement to her that he had "finished with her." She was unable to recall the duration of her period of unconsciousness. The assailant subsequently departed, and she was unable to account for the direction he took. She collected her clothing, dressed herself, and made her way back to the road. 35.In her testimony, she further stated that, upon getting to the road, she met a fellow student who accompanied her to school. The headteacher, Joshua Ogallo (PW2) was alerted by other students about the incident. He arranged for the minor’s transportation to Macalder Level 4 Hospital, where she received medical attention. 36.She stated that she had not known the accused prior to the incident. However, she was able to identify him as the perpetrator at a parade conducted at the police station, recognizing him by his physical appearance, specifically noting a distinctive scar on his forehead, which she had observed during the assault. 37.During cross-examination, she confirmed this detail, and the court itself noted and recorded the presence of the scar on the accused's forehead. She further clarified that her father had played no part in identifying the accused as the identification was made by her alone. She also stated that her bloodstained clothing had been discarded at the hospital. 38.PW2 Joshua Ogallo, the headteacher testified that on the 7th of August 2023, at approximately 2:00pm in the afternoon, a boy came to the school and informed the Deputy Headteacher that a female student had been defiled in the bush nearby. 39.He stated that immediately after the report, teachers Mr. Owango and Lawrence and the teacher on duty, promptly proceeded to the scene. He followed shortly thereafter and found the complainant in a distressed state and was heard crying out the words, "he has raped me, he has raped me." 40.PW2 stated that he directed that the minor be taken to the hospital, and he personally accompanied her to Macalder Sub-County Hospital. He contacted her parent, who joined him at the hospital. The father thereafter reported the matter to Macalder Police Station. He stated that he did not know the identity of the perpetrator, and during cross-examination, he confirmed that the girl had not identified the perpetrator to him, as he had not questioned her on that matter. 41.PW3 POO, testified that he is the father of the complainant. He stated that on 7th of August 2023, he received a telephone call from PW2, instructing him to proceed urgently to Macalder Hospital. At the hospital, he found the minor in the company of a doctor. He was informed by PW2 that his daughter had been raped, although PW2 stated did not know the identity of the perpetrator. 42.He stated that he left the minor in the care of the medical staff and proceeded directly to Macalder Police Station to report the incident. He stated that he went back to the Police station with the daughter the following day to record their witness statements. He was later contacted by the Area Chief who requested him to take the minor to Macalder Police Station in connection with the investigations which were ongoing. He stated that it was at this point that minor informed her father that she had seen the person who had defiled her. 43.During cross-examination, PW3 denied having any prior knowledge of the accused, denied pointing out the accused to his daughter, and affirmed that the minor was not present at the time of the Appellant was arrested. He denied having any business dealings with the accused or any outstanding financial obligations between them. 44.PW4 Moseti Justus Maroa, a Clinical Officer based at Macalder testified that he attended to the minor on the 7th of August 2023, having been brought to the facility by her teachers. 45.On clinical examination, he stated that he found that the patient was in pain, her clothing was soiled and stained with soil on the back, and that her neck was tender. He further noted the presence of a clear fluid in the vulva, a tear on the labia minora which he stated was consistent with forceful penetration and blood oozing from the vaginal area, originating from the tear. A blood-stained swab was also noted. He placed the patient on treatment and issued, Treatment Notes marked as P-Exhibit 2, a P3 Form marked P-Exhibit 3, and PRC Form marked P-Exhibit 4. He confirmed that the suspect was not presented to him for examination. 46.Under cross-examination, he reiterated the clinical findings: that there was a tear on the minor's vagina, no spermatozoa were observed upon examination, and the neck remained tender all consistent with the account given by the complainant. 47.PW5 PC Kipkome Sitienei, attached to Macalder Police Station, testified that the case was first reported at the station on the 7th of August 2023 by the complainant’s father. At the time of reporting, the complainant was thirteen (13) years of age, and the minor was unable to provide the name of the suspect, though she indicated that she could identify him by physical appearance. 48.He stated that he issued the minor with a P3 form., which was subsequently completed at the hospital. He confirmed the age of the minor through her birth certificate, which indicated she was born on the 9th of August 2010, and this was formally tendered into evidence as P-Exhibit 1. 49.He testified that the Appellant was eventually arrested on the 5th of June 2024, not initially in connection with the case, but on account of a separate offence. The arrest was carried out by members of the public together with the Area Chief, and he thereafter re-arrested him. He stated that he had not encountered the accused prior to that year. Following the arrest, the minor was summoned to the police station, where she positively identified the accused as her assailant. 50.The Appellant gave sworn evidence and did not call any witnesses. He denied the allegations and stated that he owed money to the complainant’s father and therefore framed. In his mitigation, he informed the court that he is the breadwinner to his family and he asked for forgiveness. Was the Appellant the perpetrator? 51.The prosecution witnesses indicated that they did not know the assailant. The complainant however indicated that the Appellant was not known to her by name but she could identify him by appearance on account of a scar on his forehead. 52.The courts have set out what constitutes favorable circumstances for correct identification by a sole witness. The same was established in Maitanyi vs Republic, (1986) eKLR 196 where it was stated that:-“Subject to well-known exceptions it is trite law that a fact maybe proved by the testimony of a single witness but his rule does not lessen the need for testing with the greatest care the evidence of the single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error.” 53.The offence was committed during the day. The victim could see the assailant. From the evidence of PW5, he stated that the minor at the time of reporting of the incident, the minor indicated that she could identify the perpetrator by appearance. The minor pinpointed the Appellant at the police station amongst seven people on the account of a scar on his forehead. From the record, the trial court observed the scar on the Appellant’s forehead. That evidence was not shaken by the defence. The Appellant was positively identified as the perpetrator and there was no element of mistaken identity. 54.On corroboration of evidence herein, and the contention by the Appellant that he was not known nor identified by any prosecution witness and therefore could not be linked to offence, Section 124 of the Evidence Act Cap 80 laws of Kenya, provides that the testimony of the victim alone in sexual offences cases can suffice if the court has reasons to believe the victim. 55.Further, the Appellant contended that he was not medically examined and therefore could not be linked to the offence. In Robert Mutungi Muumbi v Republic [2015] eKLR, the Court of Appeal differently constituted quoted its decision in Geroge Kioji v Republic CR. APP. NO. 270 of 2012 (Unreported) where the Court pronounced itself on the proof of commission of a sexual offence thus-“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by accused person. Indeed, under the proviso of section 124 of the Evidence Act Cap 80 Laws of Kenya, a court can convict an accused person in a prosecution involving a sexual offence, on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.” 56.In the upshot, this court finds that the Appellant was positively identified as the assailant herein; there was no mistaken identity or error. Accordingly, I find that the prosecution proved their case beyond reasonable doubt and that the trial court did not err in convicting the appellant for defilement. The appeal on conviction, therefore, lacks merit and is hereby dismissed. 57.I find that all the elements of defilement namely, penetration, minority age of the victim and positive identification of the perpetrator were proved beyond reasonable doubt. The conviction was therefore proper. 58.From the foregoing reasons, the grounds of appeal are not merited and hereby dismissed. The Appellant’s conviction and sentence are upheld. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 2ND DAY OF JULY, 2026………………………W.N. MOLONKOJUDGEJudgment delivered virtually in the presence of:Respondent-Nicholas Otieno Olal - Appellant presentSusan Nzioka – Court Assistant