https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7587

Oluoch v Republic (Criminal Appeal E103 of 2025) [2026] KEHC 7587 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7587 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E103 of 2025 LM Wachira, J June 3, 2026 Between Byron Otieno Oluoch Appellant and Republic Respondent (Being an appeal from the original conviction and sentence in Kisumu criminal case no. E020 of 2024 by the Hon. L. N. Kiniale, SPM) Judgment 1.Byron Otieno Oluoch 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 diverse dates in the year 2023 at West Nyakach Sub-County within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of BAA a child aged 15 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 diverse dates in year 2023 at West Nyakach Sub-County within Kisumu County, the Appellant intentionally and unlawfully touched the buttocks, breasts and Vagina of BAA a child aged 15 years, against her will. 3.The accused pleaded not guilty to the main and alternative charges. At the hearing, the prosecution called 3 witnesses to prove its case. The Appellant was put on his defence and he denied the charge. He did not call any witness. 4.In her judgment, the trial Magistrate convicted the Appellant for the offence of defilement and after mitigation 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 in not proving the ingredients of the offence 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 is inconsequential to conviction.iv.That the trial court 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. Appellant’s Submissions 7.The Appellant submitted that the there was no proof of penetration. He tied this to the fact that no DNA was conducted and submitted that it was the duty of the Prosecution to prove the case beyond reasonable doubt. The Appellant submitted that since the allegation is that out of the incident, the complainant fell pregnant, it was for the prosecution to conduct DNA to confirm that indeed that there had been penetration. 8.The Appellant cited several decisions stating that the testimony of the complainant ought to have been backed up by an examination to prove that indeed there was penetration, and he submitted that such other evidence was not availed by the prosecution. 9.The Appellant further submitted that the prosecution evidence was inconsistent. He states that Page 15 Line 14 of the Record of Appeal states that the last date of the incidence was 18/2/2023 and the date of last Monthly period was 10/11/2023. He claims that this was inconsistent together with the date when the complainant went back home. Respondent’s Submissions 10.In opposing the appeal, the Respondent submitted that crucial elements to sustain a conviction for the offence of defilement were proved by the prosecution at the trial court. According to counsel, the complainant was 15 years of age which was proved by the birth certificate which indicated she was born on 11th September 2009. 11.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 Complainant. 12.On the question of DNA having not been done, the Respondent submitted that the trial court had considered the submissions by the Appellant and stated that the Complainant testified in the month of May 2024, and she was still pregnant at the time and the issue of DNA did not come up. 13.On the question of identity, the Respondent submitted that the victim knew the complainant well and told court that he was her boyfriend. 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 prosecution evidence was never shaken at trial. 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 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, analyze 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 met the Appellant herein who was a cyclist and they became friends. She told court that she would visit him and they would stay together as boyfriend and girlfriend and that they had sexual intercourse several times. 18.During cross examination, she told court that the Appellant was lying when he pretended not to know her yet they were friends. 19.PW2 – was the medical officer who had examined the minor and confirmed that she was expecting a child. He produced in court the P3 form, PRC form, treatment card from Nyakach County Hospital. The P3 form indicated that the complainant had some normal external genitalia with a whitish discharge, the hymen was absent and everything else was normal. The minor was expecting a child. In his conclusion, the minor had been defiled. 20.Pw3 was the investigating officer having taken over the investigations from the previous I.O. 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 complainant is a minor and the Appellant had been cohabiting with her. 21.In his defence Dw1 testified that he had gone to a Chang’aa den after taking his motor cycle to the garage. He stated that some people went to the den and ran after the drinkers. Unfortunately, one of the people fell down and the Appellant managed to manoeuvre and got home. The following day, he states that he went to the garage and that is where the chief and other people went and arrested him. According to him, his case was about Chang’aa and not defilement. 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 failure to conduct DNA was fatal to the prosecution case.iii.Whether there are inconsistencies in the prosecution case.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 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.” 24.On the first ingredient of age, Pw1, the minor told court that she was born in year 2009. 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 15 years at the commission of the offence, having been born on 11th September, 2009 and the alleged offence having been committed in the year 2023. 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 was a girlfriend of the Appellant and she went to see him and they stayed together in the Appellant’s brother’s house in Nyakandire and had sexual intercourse severally, out of which she conceived, and was pregnant even as at the time of examination and testimony in court. 27.The fact that they had sexual intercourse is also confirmed by the P3 form stating that the hymen of the complainant was absent. Evidence adduced also indicates that the complainant was pregnant and was already attending her antenatal clinics. 28.I have considered the evidence of the minor as well as the medical evidence on the P3 form and the antenatal card, and my finding is that there was indeed penetration. Pregnancy would only occur in cases where there is sexual intercourse. 29.On the issue of identification of the perpetrator, Pw1 testified that the Appellant was her boyfriend. They had been meeting and would meet in Awiro’s rented house. They stayed together in the house as boyfriend and girlfriend. The court finds that this is sufficient evidence for identification. The minor having known the Appellant and having stayed with him as a boyfriend, had no chance of mistaking him for any other person. 30.And for those reasons, this court thus finds that the prosecution proved beyond reasonable doubt the elements of defilement. Whether the failure to conduct DNA was fatal to the prosecution case 31.On this, the Respondent submitted that the trial Magistrate rightfully observed that DNA or paternity test while helpful does not prove defilement but rather pregnancy itself is evidence of penetration. I have also considered the submission by the Appellant. In A M L Versus Republic (2012) eKLR the court stated that: "The fact of rape or defilement is not proved by a D.N.A test but by way of evidence" 32.Further, the Court of Appeal in the case of Kassim Ali Versus Republic (Criminal Appeal No. 84 of 2005) stated that: "The absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by oral evidence of a victim of rape or by circumstantial evidence". 33.In the instant case, the victim gave an account of the incident. She told court that she was expecting the Appellant’s child. The medical evidence produced in court confirmed that she was indeed expecting a child. By the time of her testimony, she had not delivered the child. The question of DNA never came up. 34.In fact, DNA only relates to paternity of the child and not whether there was any defilement or rape. My finding is that failure to conduct DNA test is not fatal to the prosecution case as long as there is other evidence to prove the commission. In the instant case, this court has evaluated the evidence of PW1 and is satisfied as to its credibility. Whether there were inconsistencies in the Prosecution evidence 35.I have considered this submission by the Appellant, where he submits that there were inconsistencies in the last menstrual period stated by PW2 to be on the 10/11/2023. I did not find any contradiction because the victim was never questioned on such a date. 36.Further, the victim told court that her last encounter with the Appellant was in December 2023. When Pw2 testified, he confirmed that the date was 18/12/2023, which still falls within December of 2023. I find no contradiction in the testimony of the Prosecution. Whether the sentence imposed was excessive 37.The penalty for the offence of defilement of a child of fifteen 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. 38.In the instant case, the trial court noted the mitigation of the Appellant 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. 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.”In the circumstances, this court will not interfere with the sentencing discretion of the trial court. 40.In the upshot, 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 NAIROBI THIS 3RD DAY OF JUNE 2026...............................L. M. WACHIRAJUDGEIn the presence of:Kevine – Court assistantAppellant – present in person (virtually from Kisumu Max.)Ms Jebichi - for the State/Respondent