[2023] KEHC 25546 (KLR)

Omondi v Republic (Criminal Appeal 23 of 2020) [2023] KEHC 25546 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25546 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Criminal Appeal 23 of 2020

KW Kiarie, J

November 21, 2023

Between

Collins Omondi

Appellant

and

Republic

Respondent

(From the original conviction and sentence in S.O case NO.18 of 2019 of the Principal Magistrate’s Court at Oyugis by Hon. C.A. Okore–Senior Resident Magistrate)

Judgment

1. Collins Omondi, the appellant herein, was convicted after pleading guilty to the offence of defilement contrary to section 8 (1) as read with section 8 (3) of the Sexual Offences Act No. 3 0f 2006.

2. The particulars of the offence are that on diverse dates between June and August 2019 at Rachuonyo North sub-County within Homa Bay County, intentionally and unlawfully caused his penis to penetrate the vagina of EAH, a child aged 15 years.

3. The appellant was sentenced to twenty (20) years’ imprisonment. He was aggrieved and filed this appeal against both conviction and sentence. He raised grounds of appeal as follows:a.That the magistrate erred in law and fact by convicting him without sufficient evidence.b.That the magistrate erred in law and fact for considering evidence not obtained within 72 hours in a sexual offence. [Sic]c.That the magistrate erred in law and fact as there was no corroboration to the allegation of the victim.d.That the magistrate erred in law and fact as he [sic] did not appreciate the contradictions in the case for prosecution.e.That the magistrate erred in law and fact for considering extraneous facts.f.That he was not afforded a fair chance to be heard.

4. The appeal was opposed by the state through David Ndege, learned counsel. He raised the following grounds of opposition:a.That the prosecution proved the case to the required standards.b.That the sentence meted was legal.

5. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the evidence adduced before the lower court and I have drawn my conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno vs. Republic [1972] EA 32.

6. Though the appellant contended that he was not accorded a fair hearing, my perusal of the record does not reveal any such instance.

7. To sustain a conviction for the offence of defilement, the prosecution has to prove the following ingredients:a.Whether there was penetration;b.Evidence must show that the accused is the perpetrator; andc.The age of the victim must be below eighteen years.In the case of Fappyton Mutuku Ngui vs. Republic [2012] eKLR Joel Ngugi J. said:"Going by this definition of defilement, I agree with Mr. Mwenda on the issues which the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant."These are the ingredients I will endeavour to find if they were proven.

8. After EAH (PW1) had run away from her home for ostensibly disagreeing with her sister-in-law, she got stranded at Rakwaro. She had intended to go to Kadhola, her grandmother’s home. She bumped into FA who offered to give her Kshs. 50/= on the following day to be able to complete her journey. She offered her accommodation and she therefore accompanied her to her home.

9. Her (EAH’s) evidence was that on the third day, FA told her that she was going to be her daughter-in-law. When she (FA) left to escort a child, the appellant who was drunk made advances at her. She managed to repulse his attempt to defile her by raising an alarm which attracted the appellant’s children. When F.A. intervened on the issue, the appellant beat both of them with a plastic chair.

10. While the complainant was sleeping with the appellant’s children, the latter returned from fishing, he picked her up and took her to his bed where he defiled her. Thereafter, he continued to defile her until August when her mother went for her and the case was reported to the police.

11. Contrary to the contention of the complainant that she ran away after disagreeing with her sister-in-law, her mother’s evidence was that when she returned home her husband informed her that the complainant had not gone to school. She went missing until the 8th day of August 2019 when she was informed about her whereabouts. She was found in the home of the appellant. This was confirmed by the evidence of MA the village elder who was present when the complainant's mother went to pick her up. Her evidence was that she was aware that the complainant had been in the home of FA since 3rd June 2019.

12. The evidence on record is therefore clear that the complainant was in the home of the appellant from the time she left her home. Although she created an impression that she unwilling participant, the circumstantial evidence points otherwise. However, she lacked the requisite capacity to give consent for sexual liaison.

13. Fredrick Odhiambo Oya (PW4) produced a medical report that confirmed that the complainant had been defiled. A copy of her birth certificate was produced by PC Kambuni Kawaya (PW5). It indicates that she was born on the 10th day of April 2004. At the time of the offence, she was 15 years old.

14. The prosecution therefore proved the age of the complainant.

15. In his defence the appellant contended that though the complainant was in their home, she was living with his mother and denied defiling her.

16. The evidence against the appellant is that of the complainant. The proviso to section 124 of the Evidence Act states:"Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, 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."

17. From the evidence on record I find that there was sufficient evidence on record for the trial court to believe that the complainant was telling the truth as to who defiled her. The conviction was safe.

18. Section 8 (3) of the Sexual Offences Act provides:"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."The appellant was sentenced to the minimum period provided by the law. I have no basis to interfere with the said sentence.

19. The upshot of the foregoing analysis of the evidence on record, I find that the appeal lacks merits and is accordingly dismissed.

DELIVERED AND SIGNED AT HOMA BAY THIS 21ST DAY OF NOVEMBER, 2023KIARIE WAWERU KIARIEJUDGE