https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6177

Omollo v Republic (Criminal Appeal E010 of 2025) [2026] KEHC 6177 (KLR) (8 May 2026) (Judgment) Neutral citation: [2026] KEHC 6177 (KLR) Republic of Kenya In the High Court at Siaya Criminal Appeal E010 of 2025 DK Kemei, J May 8, 2026 Between Samuel Odhiambo Omollo Appellant and Republic Respondent (Being an appeal against the conviction and sentence of Hon J.P Nandi (SPM) in Bondo SPMC Sexual Offence Case No. E025 of 2023 delivered on 16th April 2024) Judgment 1.The Appellant herein Samuel Odhiambo Omollo 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 19th day of April 2023 at [Particulars Withheld] area in Bondo Sub County within Siaya County willfully and intentionally caused his penis to penetrate the vagina of E.A. O a child aged fifteen (15) years. 2.In the alternative, the Appellant was charged with 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 19th day of April 2023 at [Particulars Withheld] area in Bondo Sub County within Siaya County unlawfully and intentionally touched the vagina of E.A.O a child aged fifteen (15) years with his penis. 3.The Appellant pleaded not guilty to all the charges and the case went to full trial in which the prosecution called four (4) witnesses At the close of the prosecution’s case, the court found that the Appellant had a case to answer and thus placed him on his defense under section 211 of the Criminal Procedure Code. The Appellant, however failed to turn up for his defence hearing whereupon the learned trial magistrate ordered his defence case as closed and proceeded to reserve the matter for judgement. By judgment delivered on 16th April 2023, the Appellant was convicted and sentenced to serve fifteen (15) years’ imprisonment. 4.The Appeal herein therefore arises from the aforesaid conviction and sentence of Hon J.P Nandi (SPM) in Bondo Sexual Offence Case number E025 of 2023 wherein he convicted him and thereafter sentence him to serve fifteen (15) years’ imprisonment. 5.The Appellant was aggrieved by the said conviction and sentence and duly filed his Petition of Appeal dated 23/2/2025 where he raised the following grounds of appeal:i)That the learned trial magistrate erred in law and fact in convicting the Appellant based on conflicting evidence of PW1, PW2, PW3 and PW4.ii)That the learned trial magistrate erred in law and fact in convicting the Appellant for 15 years imprisonment basing the same on the sole evidence of PW1 who gave an eye witness account of the alleged offence.(iii)That the learned trial magistrate erred in law and fact in convicting and sentencing the Appellant to 15 years imprisonment without putting him to defence when he had informed the court that he was ready for the defence and would call two witnesses.(iv)That the learned trial magistrate erred in law and fact in convicting the Appellant without listening to the Appellant’s reasons as to why he did not appear for his defence hearing as the date was fixed at the registry without his knowledge.(v)That the learned trial magistrate erred in law and fact when he failed to take into account the evidence of PW1 who had been threatened to be caned by her brother J and that the complainant mentioned the name of one Otieno as the one who had given her Kshs 10.(vi)That the learned trial magistrate erred in law and fact in failing to take into consideration the evidence of PW4 who had stated that the complainant had indicated that she had a boyfriend whom she had been intimate with.(vii)That the learned trial magistrate erred in law and fact in failing to take into consideration that the Appellant was not taken for medical examination to confirm if he had committed the alleged offence.(viii)That the learned trial magistrate erred in law and fact when he imposed a severe and harsh sentence on the Appellant who was only 22 years old at the time.The Appellant therefore prayed that the conviction be set quashed and sentence set aside. 6.This being the first appellate court, its duty is to re-evaluate the evidence presented to the trial Court and subject to an independent analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account of the fact that it neither heard nor saw the witnesses and therefore to give due allowance for that. In Okeno – VS – Republic (1972) EA 32, it was held that;“An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 7.The evidence tendered before the trial court was as follows; 8.MAO (PW1) testified that she is the grandmother to the complainant herein. That she had been staying with the minor since she was two years old and that she identified the birth certificate which sowed that the minor was born on 3/3/2008 (Mfi-1). That on the material date, she had gone to her farm and left the minor at home and that on coming back, she found her chewing brown sugar. That her son J enquired from her as to where she had obtained money with which to buy the same. That at first the minor mentioned one Otieno but on being informed that the said Otieno had no money and on further being threatened with a beating, she eventually revealed that it was the Appellant herein who had given her Kshs 10/ after defiling her in the kitchen and who directed her not to reveal the ordeal to anyone. That she proceeded to Bondo police station and lodged a report and later escorted the minor to hospital for treatment. She identified the P3 form (Mfi-2) and treatment notes (Mfi-3). 9.E.A.O (PW2) was the complainant who, upon a voire dire examination was found suitable to tender sworn testimony. She stated that she was washing dishes when the Appellant arrived and got hold of her hand and led her to the kitchen where he removed her clothes and did bad things to her. That the Appellant had a condom which he put on his penis. That the Appellant informed her that he wanted to have sexual intercourse with her and that he directed her to open her legs and then inserted his penis into her vagina and that she started bleeding. That after he finished, he gave her an old cloth with which to wipe herself and then gave her Kshs 10/ and then went away after instructing her not to tell anyone about the incident. That her brother later interrogated her about the source of the money she had used to buy the brown sugar and that she confirmed that it was the Appellant who had given her the money.On cross-examination, she stated that the Appellant had earlier on another occasion defiled her and that her grandmother had in the past chased away her boyfriend. That she was not hurt during the sexual intercourse because the Appellant had assured her that he would do it slowly. 9.No. 10xxx5 Pc Juliana Otieno (PW3) was the investigating officer who issued the P3 form and had the complainant examined in hospital. She produced the birth certificate as exhibit one. That she found the complainant walking with difficulty and that the doctor confirmed penetration. 10.Stephen Okwiri (PW4) was the clinical officer attached at Bondo Sub County Hospital. He stated that he examined the complainant and learnt that she was epileptic and was then under medication. That the labia majora and minora were inflamed and bleeding. That there was a whitish discharge from the genitalia. That there was a sexually transmitted infection. That he concluded that there was enough evidence of vaginal penetration with a broken hymen. That the object of penetration was a penile organ. That he produced the P3 form as exhibit 2 while the treatment notes as exhibit 3 and the lab request and report as exhibit 4 while the PRC for was produced as exhibit 5.On cross-examination, he stated inter alia; that the patient was aged 15 years old; that there was mild bleeding from the vagina; that the treatment notes indicate that the complainant had a boyfriend with whom they had been intimate with. 11.The trial court later ruled that the Appellant had a case to answer and was subsequently placed on his defence. He opted to tender a sworn testimony and call two witnesses. However, the Appellant later jumped bail and failed to tender his defence leading to the trial court ordering his case as closed and then proceeded to deliver the impugned judgement. 12.The appeal was canvassed by way of written submissions. However, it is only learned counsel for the Appellant who complied. 13.I have considered the record of appeal and the submissions filed. I find the issues for determination are firstly, whether the Respondent proved its case against the Appellant beyond any reasonable doubt and secondly, whether the failure by the Appellant to tender his defence caused a miscarriage of justice. 14.The burden of proof in all criminal trials is upon the prosecution to prove and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462. 15.The offence of defilement has three essential ingredients which must be proved by the prosecution before a conviction can be achieved. The said elements include; age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under section 8(1) of the sexual Offences Act No. 3 of 2006 and must each be proved for a conviction to ensue.“Section 8 of the Sexual Offences Act No. 3 of 2006 provides as follows:-(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.(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.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if -(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees. 16.As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim.. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 17.Regarding proof of age, and as noted above, it is note worthy to state at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. 18.Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. There are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR) where the court stated as follows:“……..the question of proof of age has finally been settled by a recent decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof” It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni -Vs- Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...” 19.In the present case, the prosecution discharged this burden through the birth certificate (Exhibit 1) produced by PW3, which established that the minor was born on 3/3/2008, making her age as fifteen years at the time of the incident. This was further corroborated by the Clinical Officer (PW4), satisfying the legal threshold as the documentary proof of age is an objective fact that cannot be fabricated by any oral evidence to the contrary. I find this ingredient was proved beyond any reasonable doubt. 20.As regards the aspect of penetration, Section 2 of the Sexual offences Act No. 3 of 2006 defines "penetration" as the partial or complete insertion of the genital organs of a person into the genital organs of another person. Penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. Section 124 of the Evidence Act, Cap 80 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, the court shall receive the evidence of the alleged victim and proceed to convict the accused person, if for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 21.In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995, the Supreme Court of Uganda had the following to say in respect of proving penetration: -“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual intercourse is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.” 22.In the present case, PW2 gave a graphic account of the Appellant inserting his genitalia into hers, which was corroborated by PW4’s medical findings such as vaginal penetration, inflammation, broken hymen, lacerations on the labia minora, and discharge. Whereas the Appellant vociferously cross-examined the complainant, the complainant appeared unshaken and maintained that it was the Appellant who had held her hand and took her to the kitchen where he defiled her. In Seme v Republic [2008] eKLR, it was held that a mere denial cannot overturn positive medical findings corroborating the commission of the offense. 23.Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. 24.In this case, the ingredient of penetration, the prosecution relied on the sworn testimony of the minor describing the insertion of a penis into her vagina, which was corroborated by the medical evidence of PW4. The Clinical Officer noted lacerations on the labia majora and labia minora and concluded that there was vaginal penetration. This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006, where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupturing the hymen. 25.Furthermore, Kenyan jurisprudence makes it clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. The defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Hence, I find the second ingredient namely penetration was adequately proved based on the victim’s evidence and the medical evidence. 26.As regards the issue of identification/participation of the Appellant, the same was firm, consistent, and free from any possibility of mistake. The complainant knew the Appellant prior to the incident and positively recognized him as the perpetrator. She knew him as Odhiambo and their neighbour. The complainant’s grandmother (PW1) confirmed that the Appellant is her neighbour and whose wife is well known to her. This was therefore a case of recognition rather than identification of a stranger, which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Others v Republic [1980] eKLR, the Court of Appeal held that recognition is “more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the assailant.” The complainant’s evidence was direct, unwavering, and supported by the circumstances of close physical proximity during the commission of the offence, which left no room for doubt. The incident took place at around 5.00 PM and that the complainant had no difficulty in recognizing the Appellant. The complainant later informed her grandmother (PW1) who later lodged a report to the police and then escorted the minor to Bondo Sub County Hospital for treatment. The environmental circumstances also favoured accurate identification. The incident occurred in a setting where the complainant had sufficient opportunity to see and recognize the Appellant. The Court of Appeal in Wamunga v Republic [1989] eKLR emphasized that courts must evaluate lighting, distance, and duration of encounter when assessing identification. Here, the interaction was prolonged, intimate, and involved direct contact, making misidentification practically impossible. The complainant’s emotional distress immediately after the incident further supports the reliability of her identification as she described the perpetrator by name to PW1 who took up the matter. 27.Finally, on identification, the complainant recognized the Appellant as a close neighbour living nearby. Jurisprudence establishes that recognition is more reliable than identification of a stranger (Anjononi v Republic [1980] eKLR). The trial court correctly analyzed the evidence and arrived at the conclusion that indeed the incident had taken place. I find that it was highly unlikely that the grandmother of the victim would use her young and vulnerable granddaughter as a victim of defilement just to fix the Appellant because of some undisclosed differences. The identification was thus safe. In the landmark case of R v Turnbull & Others [1977] QB 224, the court established guidelines for identification evidence, stating that recognition of a known person carries more weight than the identification of a stranger. In Uganda v Wabwire Benson, HCT-09-CSC-0259-2016, it was held that a defence of alibi cannot stand where the accused is positively placed at the scene by the prosecution's evidence. In Simiyu & Another v Republic [2005] eKLR, the Court of Appeal held that prompt and consistent reporting of the assailant’s identity enhances evidential reliability. In this case, the complainant reported the Appellant’s name immediately and that her grandmother (PW1) confirmed the consistency of her report, and that no evidence exists of animosity or mistaken identity of the Appellant and that as neighbours they had never had any disputes. The identification of the Appellant could have been said to be accurate, reliable, and proved beyond reasonable doubt had the Appellant been given a chance to present his defence and failed to do so thereby leaving the Respondent’s evidence to be considered. 28.From the look of things, the Respondent’s evidence seemed destined for a conviction against the Appellant or so it seems from the point of view of the learned trial magistrate. I find that in the absence of evidence to the effect that the Appellant was accorded an opportunity to tender his defence evidence, the conviction arrived at was not proper and must be interfered with. 29.As regards the second issue, it is noted from the record of the lower court that upon the Appellant being placed on his defence, he indicated that he would tender a sworn testimony and would call two witnesses. The matter was fixed for defence hearing on 20/12/2023 but which was later rescheduled to 19/2/2024 but then the Appellant failed to attend court forcing the trial court to issue a warrant of arrest and that the matter was rescheduled to 5/3/2024 for mention to confirm presence of Appellant or execution of the warrant of arrest. On the 5/3/2024, the learned prosecutor indicated that the Appellant was still at large and sought for extension of the warrant of arrest against the Appellant and surety. It was at that juncture that the learned trial magistrate remarked as follows:Court: Warrant of exclusion (sic) of arrest against accused and warrant of arrest to issue against the surety. Since the accused absconded court and has failed to come for his ruling, I place him on his defence in absentia and close the defence case. Judgement on 8/4/2024.’’The record does not indicate any proceedings were conducted on 8/4/2024. However, there is a judgement delivered on 16/4/2024 in the absence of the Appellant and that at the bottom thereof, the following is indicated:Court: Accused is sentenced to serve 15 years imprisonment. Sentence to start running from the date of his arrest.’’ 29.Despite the fact that the learned trial magistrate arrived at the impugned judgement, one germane issue that has been raised by the Appellant is that he was not given an opportunity to be present his defence. The absence of evidence which show that the Appellant was given an opportunity to challenge the prosecution’s case upon being placed on his defence, raises a serious constitutional issue, namely that the rights of the Appellant under articles 48 and 50 of the constitution were violated. Indeed, under Kenyan law, a judgement entered without the accused’s defence in a criminal trial is generally viewed as a violation of the constitutional right to fair trial unless specific, exceptional circumstances apply. Under article 50(2) of the constitution, every accused person has the right to a fair trial which includes the right to defend himself/herself and be present during the trial and to have adequate time to prepare a defence.As noted from the record of the trial court, there is no evidence that the Appellant waived his right such as remaining silent, or that his conduct was disruptive, thus making it impossible to proceed. Again, the trial court was expected to pursue the Appellant’s surety to avail the Appellant in court even as the warrant of arrest remained in force. There is no evidence that the surety was ever pursued. It seems the trial court of its own volition closed the Appellant’s case in absentia and still went ahead to convict and sentence him in absentia. The other intriguing issue relates to the question of how the Appellant was apprehended and committed to prison without being presented to court to enable him to present mitigation if need be. Despite the presentation of the evidence by the prosecution, which appears to place the Appellant at the scene of the crime, iam of the view that the eventual conviction and sentence of the Appellant was irregular. 30.In view of the foregoing observations, the next issue for consideration is whether a retrial should be ordered. Indeed, retrials have the effect of causing delay and prejudice to parties. The envisaged retrial herein is due to the procedural defects as gleaned from the trial court proceedings. However, the same is not meant to enable the prosecution to seal gaps in their case since the same is not to provide a second chance for the prosecution to improve its case. It is noted that the Appellant was sentenced on 16/4/2024 and has been in prison for about two years now, which is not that lengthy. The prosecution must still be having their witnesses who could be availed without undue inconvenience. The Court of Appeal in the case of Fatehali Manji Vs Republic [1966] EA held as follows :In general, a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered where the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for retrial should only be made where the interest of justice require it.’’Also in the case of Mwangi Vs Republic [1983]KLR the Court of Appeal held that a retrial should not be ordered unless the appellate court is of the opinion that, on a proper consideration of the admissible or potentially admissible evidence, a conviction might result. I find that this is a fit case for a retrial. 31.In the result, it is my finding that the Appellant’s appeal has merit. The same is allowed. The conviction is hereby quashed and the sentence set aside. An order for a retrial is hereby made to the effect that the Appellant is to be presented before the Chief Magistrate Bondo Law Courts on 11/5/2026 for purposes of retrial.Orders accordingly. DATED AND DELIVERED AT SIAYA, THIS 8TH DAY OF MAY 2026.D.KEMEIJUDGEIn the presence of :Samuel Odhiambo Omollo..................AppellantM/s Omolo for Luchivya..............for AppellantSoita..............................for RespondentM/s Mourine.......................Court Assistant