https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7181

Ombiro v Republic (Criminal Appeal E137 of 2025) [2026] KEHC 7181 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 7181 (KLR) Republic of Kenya In the High Court at Kibera Criminal Appeal E137 of 2025 DR Kavedza, J May 26, 2026 Between Francis Ratemo Ombiro Appellant and Republic Respondent (Being an appeal against the original conviction and sentence delivered on 25th September 2025 by Hon. C. M.Njagi (PM) at Kibera Chief Magistrate’s Court, Sexual Offences Case No. S.O E004 of 2025 Republic vs Francis Ratemo Ombiro) Judgment 1.The appellant was charged and, after full trial convicted by the Subordinate Court of the offence of defilement contrary to section 8(1) as read with 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the diverse dates between the month of May 2024 and 2025, within Nairobi County the appellant intentionally caused his penis to penetrate the vagina of AK a child aged 12 years. He was sentenced to serve twenty (20) years imprisonment. 2.Being aggrieved, he filed an appeal challenging his conviction and sentence. In his petition of appeal, the appellant challenged the totality of the prosecution’s evidence against which he was convicted. He urged the court to quash his conviction and set aside the sentence imposed. 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 complainant, PW1, a female minor born on 15th April 2012 and aged 12 years at the material time (as confirmed by her birth certificate), testified after a voire dire examination. She knew the appellant as the owner of a nearby hotel from whom she occasionally bought food. On the material day, while returning home from her mother’s shop, the appellant ambushed her, pushed her into his hotel, threatened to kill her, and ordered her to remove her trousers. He then defiled her by inserting his penis into her vagina. PW1 stated that the appellant repeatedly followed, threatened and defiled her on several occasions from that day until January 2025. 5.PW2, ZM , the complainant’s mother, testified that on 17th December 2024 she was informed that the minor had not returned home. Upon receiving information that the minor had been seen at the appellant’s hotel, she confronted both the minor and the appellant, who admitted that the minor had spent the night there. The matter was reported at Kibra Police Station and the minor was medically examined at Coptic Hospital. 6.In cross-examination, PW2 confirmed the minor’s habit of leaving home at night and her silence due to the appellant’s death threats. 7.PW3, Eileen Kimuyu, produced the medical notes of PW1, which revealed irregular hymenal margins with old tears and discharge. She opined that such findings were consistent with repeated penetration in a child of that age, whose hymen would otherwise be intact. 8.PW4, PC Josephine Mayan, corroborated the evidence of PW1 and PW2. The minor disclosed a relationship with the appellant, leading to his arrest at the hotel and subsequent charging with defilement. 9.In his defence, the appellant (DW1) denied the allegations, claiming they arose from a grudge. He admitted operating a hotel frequented by children but denied inviting or employing the minor. He maintained the charges were fabricated. 10.After a full trial, the appellant is accordingly found guilty as charged. 11.The appeal was canvassed by way of written submissions, which have been duly considered, and there is no need to rehash them. 12.To succeed in a prosecution for defilement, it must be proven that the appellant 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.” 13.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.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 14.On the element of age, the complainant, PW1, testified on oath that she was born on 15th April 2012 as confirmed by her birth certificate which was produced in evidence. At the time of the alleged incident, she was 12 years old. The prosecution therefore established beyond reasonable doubt that the complainant was a child under the age of eighteen years, as required by section 8(1) of the Sexual Offences Act. 15.On the element of penetration, PW1 gave clear, direct and cogent evidence in her sworn testimony. She stated that the appellant would time her on several occasions where he would then proceed to push her to his hotel and defile her. PW1, the minor, also testified that she slept at the appellant’s house on 17/12/2024. She described how the appellant would defile her and threatened to kill her if she told anyone what had transpired. PW3, a clinical officer, Eileen Kimuyu, produced the treatment notes, which recorded irregular margins with old tag, consistent with prior penetrative trauma. No alternative explanation for the injury was advanced or supported by the evidence. The complainant also told the court that the appellant had defiled her on several occasions. The trial court was satisfied that penetration was proved beyond reasonable doubt. 16.On the identity of the perpetrator, PW1 was firm, consistent and unshaken in her identification of the appellant as the person who defiled her. She knew him well as Francis, a hotel owner, where she used to buy food from him. She pointed him out in court as the appellant. She gave a detailed account of the events leading to and including the act of defilement, which occurred at his hotel where he would time the minor and forcefully drag her into his hotel. There was no suggestion of mistaken identity, and her evidence on identification withstood thorough cross-examination. The appellant was positively identified by the complainant as the perpetrator. 17.Upon review, this court concurs. The appellant in his defence suggested fabrication due to a grudge. This version is wholly implausible and unsupported by any evidence. It raises no reasonable doubt against the cogent, consistent, and mutually corroborative prosecution case, which was proved beyond a reasonable doubt. 18.The prosecution therefore proved all the essential elements of defilement contrary to section 8(3) of the Sexual Offences Act beyond reasonable doubt. The appellant’s defence raises no reasonable doubt. The conviction is affirmed. 19.On sentence, the appellant was sentenced to serve (20) years’ imprisonment. The record shows that the trial court considered the pre-sentence report, the appellant’s mitigation and the fact that he was a first offender before arriving at that sentence. The sentence imposed was legal and I see no reason to interfere. 20.In the premises, the application is found to be lacking in merit and is dismissed in its entirety. Orders accordingly. JUDGEMENT DATED AND DELIVERED VIRTUALLY THIS 26TH DAY OF MAY 2026 _______________ D. KAVEDZAJUDGEIn the presence of:Appellant PresentMr. Mutuma for the RespondentKarimi Court Assistant.