https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7583

Olilo v Republic (Criminal Appeal E043 of 2025) [2026] KEHC 7583 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7583 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E043 of 2025 LM Wachira, J June 3, 2026 Between Bernard Ouma Olilo Appellant and Republic Respondent (Being an appeal from the original conviction and sentence in Kisumu criminal case no. E036 of 2022 by the Hon. J. Kimetto, PM) Judgment 1.Benard Ouma Olilo the Appellant herein 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. The particulars were that on 15th August 2022 at [particulars withheld] village in Nyahera Sublocation, in Kisumu West, within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of B.P.A a child aged 14 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 15th August 2022 at [particulars withheld] village in Nyahera Sublocation, in Kisumu West, within Kisumu County, the Appellant intentionally and unlawfully touched vagina of B.P.A a child aged 14 years. 3.The accused pleaded not guilty to the main and alternative charges.At the hearing, the prosecution called 5 witnesses. The Appellant was put on his defence and he denied that he committed the alleged offence. He called two witnesses. 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 20 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 conducting and arriving at a decision while relying on evidence that was full of contradictions and without analysing the evidence on record.iii.That the trial court erred in law and in fact in not appreciating that the prosecution’s evidence was not corroborated appellant’s cogent defence that overwhelmed the prosecution case.iv.The Appellant sought leave to erect more grounds after receiving and perusing the certified copy of proceedings. 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. Appellant’s Submissions 7.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 been presented to the hospital when the injuries were 41 hrs old but the P3 form indicates that they were 4 weeks old. He urged the court to find that there was doubt in the prosecution case on whether the complainant was indeed defiled. 8.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 argued that blood in clothing is crucial in proving defilement and the clothing of the victim, being the pant ought to have been produced in court. 9.The Appellant further submitted that his defence of alibi was not considered. He submitted that he had availed evidence that he was in the company of his wife and DW3 all the day waiting for the Presidential Election results. He submitted that the court did not utilise this evidence which was not dislodged. 10.He finally submitted that the trial Magistrate erred in law and facts by failing to comply with the provisions of Section 124 of the Evidence Act. Respondent’s Submissions 11.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 14 years of age which was proved by the Birth Certificate which indicated she was born on 15th August 2008. 12.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 and corroborated by the evidence of the minor. 13.On the question of identity, the Respondent submitted that the victim 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. 14.On the alleged inconsistencies to the prosecution evidence, the Respondent submitted that the testimony of PWI was forthright, concise, and consistent during trial and stated that there were no inconsistencies in the prosecution case. Counsel submitted that the entire evidence by all the prosecution witnesses was not contradictory and urged the court not to interfere with the trial Magistrate’s finding. 15.On the Sentence, the Respondent submitted that sentencing is 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 therefore, the sentence meted out was justifiable Analysis of the Trial Court Evidence. 16.The role of this Court as the first Appellate Court is well settled. It was held in the case of Okemo v R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose v 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. 17.The complainant testified as PW1 after a voir dire was conducted and the court was satisfied that she was a truthful witness. Pw1 told the court of how she had earlier on the day met the Appellant who is a neighbour as she was going to deliver tea. That he informed her that he would want to meet her in the evening and she agreed to that request. That she went to the Appellant’s house that evening as she was heading to the shops and the Appellant offered her a drink. That when she drunk the liquid, she fell unconscious and only came to after a while and found herself on the sofa set without her trousers and pant and the accused person was also in the house with his trouser lowered down. 18.She told the trial court that the Appellant threatened to harm and kill her if shed disclose and promised to treat her well if she did not disclose. However, when she got home she used her brother’s phone to inform PW3 who helped and took her to hospital on the following day and also informed PW2 who is her father. The testimony of PW2 and PW3 confirm this evidence. 19.PW4 was the clinical officer from Nyahera Subcounty Hospital who had examined the minor. She produced in court the P3 form, PRC form, treatment card. The P3 form indicated that the complainant had lacerations on the vaginal walls indicative of penetration. The hymen was not intact. There was a whitish discharge that was foul smelling. The patient was put on treatment and both P3 form and PRC form filled. 20.PPW5 was the investigating officer. She confirmed that the report had been made and investigations done and that is when the accused person was arrested. She collaborated the testimony of the minor on what had happened and reported. 21.Having been placed on his defence the accused gave sworn evidence and called two other witness. Basically his defence is that he was with DW2 and DW3 the whole day as they waited for Presidential Results and therefore he did not have an opportunity to commit the offence. His wife (DW20 only left him only for a short while to go to the market and DW3 stated that he was with the Appellant the whole day. Issues for Determination 22.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 contradictions and gaps in the evidence of the prosecution witnesses.iii.Whether the trial magistrate erred in law and facts by failing to comply with the provisions of Section 124 of the Evidence Act.iv.Whether the sentence is excessively high. 23.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 v 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.” 24.On the first ingredient of age, PW1, the minor told court that she was born on 15th August, 2008. She shown to the court a birth certificate, which was produced in court by the investigating officer. The Birth Certificate confirms PW1 was a minor aged 14 years at the commission of the offence, having been born on 15th August 2008 and the offence having been committed on 15th August, 2022. I find that the Prosecution had proved that indeed the victim of this offence was a child aged 14 years. 25.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.” 26.In the instant case PW1 testified that she knew the Appellant who was her neighbour and that they had met even earlier in the day and that is when the Appellant told her that he would want to see her later. She told court that she went to the house of the Appellant that evening. Her testimony was that the Appellant was alone at home and he gave her a drink and that is when she passed out. She only came to and found herself without her pant and trouser and the Appellant threated to kill her if she disclosed. 27.The PW1 was taken to hospital on 17082022 and the examining doctor confirmed that indeed there had been penetration. There were lacerations on the vaginal walls. The Appellant’s submission is that for penetration to be proved, there must be blood in clothing. Of course, this is very incorrect reasoning. It is not mandatory to bleed when there is penetration. I find that the Prosecution had provided evidence to prove that there was penetration. 28.On the issue of identification of the perpetrator, PW1 testified that the Appellant was a neighbour. The Appellant had also not denied that he is well known to the Complainant. PW2, PW3 and PW5 collaborated the testimony of the minor that this was her neighbour. The court finds that this is sufficient evidence for identification. The minor having known the Appellant as a neighbour had no chance of mistaking him for any other person. 29.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 30.I have considered this submission by the Appellant, where he submits that there were inconsistencies in the prosecution evidence. I have not been able to see the alleged contradictions and inconsistencies. In fact, the prosecution evidence at the trial court was very consistent. I find that the Appellant has not been able to demonstrate that there are inconsistencies in the Prosecution case and this ground must fail. 31.The Appellant had further submitted that the trial court failed to consider his Alibi. The trial court did consider this and stated that DW2 and DW3 are wife and son of the Appellant respectively and she did not expect them to testify against him. She went ahead to state that she did not see any reason why the complainant would implicate the Appellant if nothing had happened. I have considered this evidence, and I find no reason whatsoever to interfere with the findings of the trial Magistrate.On whether the trial court failed to comply with the Provisions of Section 124 of the Evidence Act on collaboration 32.Section 124 of the Evidence Act provides that the testimony of the victim alone in sexual offences cases can suffice if the court has reasons to believe the victim. The Court of Appeal in Robert Mutungi Muumbi vrs Republic (2015) Eklr quoted George Kioji vrs Republic CR APP. NO.270 of 2012 where it had stated on the proof of commission of a sexual offence thus:- The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person………ln deed under 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”. 33.My finding is that the trial court had the opportunity to see the complainant as she testified and chose to go by the evidence of the minor to convict the Appellant herein. I would have no reason to interfere with that finding of the trial Court. Whether the sentence imposed was excessive 34.The penalty for the offence of defilement of a child of fourteen years is provided under Section 8(3) of the Sexual Offences Act which states that:(3)A person who commits an offence of defilement with a child aged between twelve and fifteen is liable upon conviction be sentenced of not less than 20 years. 35.In the instant case, the trial court noted the mitigation of the appellant, called for a social inquiry report and considered the same and proceeded to sentence him to 20 years imprisonment. The trial court exercised its discretion in imposing the sentence. The sentence was appropriate in the circumstances. 36.In the Court of Appeal case of Bernard Kimani Gacheru v 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.”In the circumstances, this court will not interfere with the sentencing discretion of the trial court. 37.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 JUNE 2026.…………………………..………………L. M. WACHIRAJUDGEIn the presence of:Kevin – Court assistantAppellant – present in person (virtually from Kisumu Max.)Ms Jebichi - for the StateRespondent.