https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8359

Omondi v Republic (Criminal Appeal E023 of 2024) [2026] KEHC 8359 (KLR) (21 May 2026) (Judgment) Neutral citation: [2026] KEHC 8359 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E023 of 2024 ACA Ong’injo, J May 21, 2026 Between Evans Ochieng Omondi Appellant and Republic Respondent Judgment 1.The Appellant Evans Ochieng Omondi was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the sexual Offence Act .The Appellant was in a relationship with the minor herein who was aged 16 years old. 2.The particulars are that on the 30/4/2022 in Rongo Sub-County within Migori County the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of VAO a child aged 16 years old. 3.In the alternative the Appellant was also 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 4.He was put to trial where 5 prosecution witnesses were called upon to testify against him.The Appellant was subsequently found guilty of the charge against him and was sentenced to serve a jail term of 20 years. 5.Being aggrieved by the conviction and sentence the Appellant lodged his undated Petition of Appeal on the following grounds:-1.The appeal is against the sentence only.2.The Honourable trial magistrate erred in both law and fact to impose a mandatory minimum sentence without considering undisputed fact that the appellant was a first offender among other relevant factors of consideration in sentencing were not taken into account. As part of the trial3.The imposition of mandatory minimum sentence is a clear indication that the trial magistrate erred in law and fact by failing to exercise his discretion in sentence determination.4.The trial magistrate erred in law and fact to impose mandatory minimum sentence without considering that the same was not judicial evaluated sentence but legislative.5.That the appellant prays to be supplied with the trial court proceeding before the hearing of the appeal. 6.Reasons Wherefore the Appellant prayed that the sentence be set aside and substituted accordingly. 7.The prosecution’s case was that PW1 VAO was at [Particulars Withheld] secondary school in form 2. She said that she was 16 years old having been born on 25/11/2006. She said her mother was MA and MO was her father. She testified that on 30/4/2022 she met Evans the Appellant herein. She identified him in the dock and said he was her boyfriend. PW1 said the Appellant was taying at a centre called Kanga Machine and she had known him for 2 months. She said he requested her to visit him at his home where she had earlier visited him. It was around 5pm and he told her to sleep there and she slept and they engaged in sex. That the Appellant inserted his penis on her vagina after they removed all their clothes. PW1 said the Appellant was alone in the house. The following day she went home but did not tell her parents what transpired. That her father asked where she slept and she told him she slept at home. PW1said that they had sex 3 times when she slept at the Appellant’s home. PW1 said that the Appellant started being her boyfriend since January 2022 when he found her passing near his home. 8.PW1’s father called the police form Rakwaro and Evans who was her village mate was arrested at the center. The Complainant said that the Appellant did not have a wife but she did not want to be married. He is a boda boda rider. She said they were taken to to Rakwaro Police Station and later to Rongo Sub-County Hospital where she was examined as per Treatment notes – PMFI 1; P3 form – PMFI2 and Post rape care form – PMFI 3 9.PW1 said that when they had had sex 3 times the Appellant was not using condom. She identified her certificate of birth – PMFI 4). She said that the Appellant was her first boyfriend and they sex with him for 1st time. She also said she had another boyfriend but she did not engage in sex with him. 10.In cross examination, PW1 said that the Appellant told her to visit him on a Saturday, 30/4/2022 at around 5pm. She said the Appellant lived in a mud walled house and he told her to enter the house and he showed her the house. 11.In re-examination PW1 said she did not frame the Appellant as he was the one she had sex with. 12.PW2 MOO the father of the Complainant said he resides at Kanga machine and he was a logger. PW2 said that the Complainant was a form 2 student at [Particulars Withheld], Sori and she was 17 years having been born on 21/11/2006. He identified her birth certificate. He said that the girl got lost on 31/4/2022 and she came back on 1/5/2022 and ttold him that she was with Evans at a certain house in a homestead in Kanga Machine. That she told him that Evans was her friend. PW2 reported to the Police Station because she told him they were having sex. PW2 said he knew Evans who is a boda rider residing in their center. That he reported at Ranen Police Post and he had also reported to the Chief that the girl did not turn up at home. PW2 identified the Appellant and he was arrested by the police at his home in Kanga Machine. 13.PW2 took the child to Rongo Sub-County Hospital where she was examined and treated. PW2 identified Evans in the dock. 14.In cross examination PW2 said that his hild got lost on 31/4/2022 and came back on 1/5/2022. He said the Appellant resided at Kanga Machine centre. He also said he reported to the Assistant Chief and started searching for her after also reporting to the chief. She got lost at 3pm. It was on Saturday. 15 .PW3 MAO the mother to the Complainant recalled she disappeared from home and when she went back, she was interrogated and she told her she was staying with Evans and they had sex. She reiterated what PW2 had said in his testimony and identified the Complainant’s birth certificate as exhbit P4. She said the Complainant was a student whereas Evans who had completed school was not married and was boda boda rider. 16.PW4 No. 207xxxxxx PC James Mugai testified that he was a police officer attached to Rakwaro Police Post. That on on 1/5/2022 PW2 reported that his child had disappeared from home. That he later told them that Evans was reported to be staying with the child. That they proceeded to Kanga Machine being led by PW2 and they found the Appellant and arrested him at 5.50pm in his house. The Appellant was then charged with the offence of defilement. He said they did not find the girl. The Appellant was escorted to Rongo hospital for treatment. 17.PW5 No. 25xxxx PC Sharon Anyango of Kamagambo Police Station took over investigations from PC Ainda who went on transfer after the investigations were complete. The Complaint of defilement was reported at Rakwaro Police Post by the parent of the minor who alleged her daughter was defiled by Evans Omondi. The minor was taken to Rongo Sub County Hospital. PW5 identified treatment notes and P3 Form as exhibits. 18.He said the minor was 16 years old and she alleged to be in a relationship with the accused person. She said the Accused was arrested by - PC Mungai (PW4) 19.PW6 Clifford Odera Clinical Officer at Rongo Sub County Hospital examined the Complainant who went to the facility with history of having slept with another man on 30/4/20022 during the night. The man was her boyfriend and it was the fourth time they had sex willingly. PW6 produced P3 form, outpatient card and PRC Form for VAO (minor). He said he examined the patient and filled P3 Form on 3/5/2022. 20.That upon examination of the genital PW6 found normal external genitalia with no bruises, no discharge however the hymen was absent. This was evidence of vaginal penetration. PW6 also said that pregnancy test, VDRL, HIV test were all negative but urinalysis showed Proteinase, High vaginal swab revealed epithelial cells which was evidence of inflammation in the vagina which was caused by by penetration.P3 form, Outpatient Card, and PRC form in respect to VAO were duly produced as Ex P 4,1 and 3respectively. 21.PW6 also examined the Appellant and filled his P3 Form on allegations that he defiled a girl on 30/4/2022 at [Particulars Withheld]. The Appellant had no injuries seen on him on examination. Approximate date of injury was 4 days. His genitalia (penis and anus) – had no bruises or discharge. VRDL was negative but Laboratory tests on his urine revealed pus cells which was an indication of an infection in the urine.The Appellant’s P3 form was produced as Exhibit P2 and Outpatient card as Exhibit P5 22.In Cross examination by Mr. Ouko Advocate PW6 said that from the urinalysis – epithelial cells meant there was inflammation on the vagina confirming penetration but no sperm cells were seen from the urinalysis. 23.At the close of prosecution case the Appellant was placed on his defense and he gave sworn statement and said he came from Kanga and he was a motorcycle rider. He denied the charges and said that on 28/4/2022 he went to a funeral at Kendubay for 3 days. 24.That on 1/5/2022 he came back and since he was tired, he went to sleep. That some two women went to the house and asked if he had seen some child. They demanded to look under the bed. That some lady called and later some police officers went to his house and arrested him. 25.The Appellant said he was taken to Rakwaro Police Station and the following day the girl’s parents went and talked to his parents. That he was then taken to Rongo Police Station where he was charged with the offence which he denied having committed. That on arrest from his house the girl was not with him. 26.In Cross examination by Court the Appellant admitted knowing the Complainant. He said he was from Kanga Machine. He also said he did not know the mother and father to the minor and the minor was not his friend. The Appellant said he was a motorcycle rider in Kanga and a gold miner. He said he was not licensed to ride a motor cycle. He said he came from Karachuonyo and the Chief at Kanga Machine did not know him. 27.The Appellant in his submissions in support of the appeal contended that the age of the complainant was not proved as her evidence that she was born 25/11/2006 is contradicted by the trial Magistrate in the evidence in his judgment by stating that, she was born on 2 November 2006. 28.That Pw2 the father to the complainant also stated that she is in form 2 and was 17 years and was born on 21/11/2006 whereas the charge sheet indicates that the Complainant is 16 years. Pw5 No. 25xxx PC Sharon Onyango who testified on behalf of PC Ainda stated that the minor was 16 years old. 29.Further that the Medical Examination Report MFl-4, age is indicated is minor and the estimated age of the person examined was not indicated meaning that the age was not known. Then, how old was the complainant? That it was not on record whether the police officer who testified PW5 is the one who issued the P3 form and recorded the age of the complainant as minor. That PC Ainda who was the investigation officer was not called in court to testify and therefore, he denied the Appellant the opportunity to cross-examine him. That it is not known on what basis the age of the complainant was recorded. 30.The Appellant submitted that the mentioned birth certificate alleged to have been produced in court as PEXH-4.vide page 13 lines 27 was not supplied to the Appellant with court proceedings as one of the exhibits to confirm the same. This was doubtful when PW6 the Clinical Officer stated that P3 form in respect to VAO (mfi-4)-PEXH -4. Vide page 19 line 20. The report concerning age indicated on the P3 form and the evidence adduced in court by the prosetion court witnesses all contradiction. The trial magistrate did not make a clear finding of the age of the complainant 31.The Appellant further submitted that it is important to establish the age of the victim of defilement in a matter involving a sexual offence under Sexual Offences Act as emphasized by the Court of Appeal in Kainga Elias Kasono Vs Republic (2010) KLR whereby the court sitting at malindi held that:“Age of the victim of the sexual assault under the sexual offence Act is a critical component. It forms part of the charge, which must be proved. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed upon conviction will be depend out on the age of the victim. 32.The Appellant acknowledged that when determining the age of a person the court may take into account evidence of the age of that person that may be contained in a birth card or similar document but the trial court did not ascertain the age of the complainant before convicting the him. The Appellant cited the principle in Francis Omunam Vs Uganda Cr. Appeal No.2 Of 2000 As Cited With Approval In Mosvoki Musakavi Vs Republic (2014) Eklr Cr.. Appeal No. 172 Of 2012 And Nickline O Dhiambo Otieno Vs Rep (2018) Eldr Cr. Appeal No.55 OF 2017 when dealing with these issues. In that case, the court held;“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who professionally determine the age of the victim. In the absence of any other evidence, apart from medical evidence age may also be proved by birth certificate, the victim's parents, or guardian and by observgtion" 33.There was no evidence produced by the prosecution to ascertain the exact age of the complainant during the commission of the offence and as such, the prosecution was not able to prove this essential ingredient. The court was urged to resolve the alleged loophole to the benefit of the Appellant by setting him at liberty, quashing the conviction setting aside the sentence or ordering retrial. 34.On proof of penetration, the Appellant submitted that PW6 Clifford Odera, the Clinical Officer adduced evidence that exonerated the Appellant from the offence of defilement on his medical evidence on page 19 lines 6-10 of the typed proceedings and I quote "on genitalia examination. Normal external genitalia. There were neither bruises nor discharge. Broken or absent hymen is proof for penetration. 35.That PW6 further stated that the VDRL, test was negative, the pregnancy test negative, urine analysis proteinase seen. High virginal sova epithelial cells seen. Epithelial cells can be present in various circumstances. After attending menses or monthly periods the shedding of the virginal walls of the epithelial cells. There were no spermatozoa seen. Vide page 19 from lines 13-20. 36.The Appellant submitted that the conclusion made in the p3 form, it means no defilement happened. The medical evidence in the P3 form did not indicate defilement. That according to his conclusion in the P3 form on page 34 spermatozoa not seen. 37.The Appellant questioned why the Complainant was taken to hospital 4 days after the alleged defilement. He also questioned if it was possible for PW6 to make the observation in the P3 form 4 days after the date of the alleged defilement. 38.The Appellant contended that the evidence of the Clinical Officer was not convincing that PW1 had been defiled. There was no evidence to prove penetration on the complainant. It was to rely on the prosecution evidence that raised doubts that were not resolved. Other than the contention by PWl that the Appellant penetrated her genitalia, the medical evidence did not support this claim. 39.It was further the Appellant’s submissions that since the medical evidence did not support the contention by the complainant and having raised suspicion on her trustworthiness, Trial Magistrate erred in finding that penetration was proved. He referred the court to the case of Geoffrey Otieno Bor Vs Rep Cr Appeal No. 22 OF 2020 at Homabay and urged the court to set him at liberty by quashing the conviction, setting aside the sentence of 20 years imprisonment which is a minimum mandatory sentence or ordering retrial. 40.The Appellant also faulted the Trial Magistrate for convicting him to serve 20 years imprisonment, which is the minimum mandatory sentence that denies him the right to hearing, where the discretion powers of the judge is also denied. He argued that there is emerging jurisprudence that mandatory minimum sentences in defilement cases are unconstitutional and courts have discretion to depart from such minimum mandatory sentences. 41.He argued that the High Court and subornate courts were bound by the Court of Appeal's decision in the case of Dismas Wafula Kilwale Vs Republic (2018) Eklr, G.k Vs Republic (criminal Appeal No.134 Of 2018) (2021) Keca 232 (klr) And Maingi & 5 Others Vs Director Of Public Prosecution & Another (petition No. e0i7 of 2021) (2022) KERL 13118 (KLR) where it held that section 8 of the sexual offences Act must be interpreted so as not to take away the discretion of the court in sentencing offences. 42.The Appellant further cited the holding in Joshua Cuchuki Mwangi VS REP (2022) Ekir, where the court of Appeal allegedly reiterated the reasoning in the case of Dismas Wafula Kilwake Vs Republic (supra) and held that it was impermissible for the legislature to take away the discretion of courts and to compel them to mete out what could otherwise be an inappropriate sentence 43.He argued that the principle of sentencing is fairness, justice proportionately and commitment for public safety. The main objectives of sentencing are retribution incapacitation, deterrence, rehabilitation, and reparation. The sentencing policy Guidelines in Kenya have added community protection and denunciation as sentencing objectives. The objectives are not mutually exclusive and can overlap. 44.The Appellant urged the court to exercise discretion to sentence the him herein to lower than the twenty (20) years imprisonment that has been prescribed in section 8(3) of the sexual offences act and also consider Section 333(2) of the Criminal Procedure Code when reducing the sentence by considering the period spent in custody since his arrest as restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another VS Republic The Respondent’s Counsel in their submissions said that it is trite law that the duty of the Appellate court of first instance is to carefully examine and analyze afresh the evidence presented from the trial court and draw its own conclusion. An Appellant on a first appeal is entitled to expect the evidence to be submitted afresh. The appellate court is expected to exhaustively examine the evidence and make its own decision Pandya vs. Republic (1957) EA 336 On the ground that the trial Magistrate imposed the mandatory minimum sentence thus did not exercise judicial discretion the Respondent cited the holding in the case of Bernard Kinmni Gacheru vs. Republic [20021 eKLR which stated that:“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, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or 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, anyone of the matters already states is shown to exist." 45.The Respondent submitted that the trial court was guided by Section 8 (4) of the Sexual Offenses Act and imposed a sentence of 15 years inline with the statute. 46.On the issue of mandatory nature of the sentence it was submitted that the Supreme court in Petition no E018 of 2023 stated that; -'Mandatory sentences leave the trial court with absolutely no discretion such that upon conviction, the singular sentence is already prescribed by law.Minimum sentences however, set the floor rather than the ceiling when it comes to sentences. What is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. In fact, to use the words mandatory and minimum together convolutes the express different definitions given to each of the two words. Although, the term imandatory minimum' can be found used in different jurisdictions, including the United States, and in a nunlber of academic articles, it is not applicable as a legally recognised term in Kenya. In this country, a Inandatory sentence and minimum sentence can neither be used interchangeably nor in similar circumstances as tlley refer to two very different set of meanings and circumstances. " 47.The Respondent submitted that the trial court exercised its discretion by imposing a sentence of 15 years. The court had the option of imposing a harsher sentence on the Appellant. That the Supreme Court in the case above has rightfully stated that minimum sentences only set the floor of the sentence and not the celling therefore the courts are at liberty to impose other sentences. It was submitted that the appeal lacked merit as the trial court exercised judicial discretion in imposing the sentence of 15 years and that this court should dismiss this appeal. Analysis And Determination 48.The jurisdiction of the 1st Appellate court is to re-evaluate and re-analyse the evidence in the record of the trial court and the judgment of the Trial Magistrate and come up with independent conclusion as to the soundness of the conviction and sentence. This was the holding in the case of Okeno Vs Republic. 49.Having considered the evidence on record, the grounds of appeal and respective submissions by the parties, the Appellant had initially appealed against sentence only but in his submissions, he is also challenging proof of age, proof of penetration and proof of sufficient medical evidence. It therefore this court to briefly consider the records of the trial court vis-à-vis the submissions and satisfy myself that the conviction was safe particularly because the appeal touches on the liberty of the Appellant. 50.In the circumstances the issues that arise for determination are:-a).Whether the ingredients of the offence of defilement were proved beyond reasonable doubtb).Whether the sentence was harsh and excessive in the circumstances. 51.Under Section 8(1) of the Sexual Offences Act, a conviction for the offence of defilement can only be sustained if the prosecution proves the following elements namely:-:1.Age of the complainant2.Penetration3.Identity of the perpetrator 52.The Appellant argued that the prosecution’s evidence was riddled with contradictions: as far as age was concerned. He submitted that PW1 said she was 16 years having been born on 25/11/2006) whereas PW2: said the Complainant was 17 years and the date of birth was given as 21/11/2006. The particulars of the charge sheet: indicated the Complainant was 16 years. He also said that the Complainant’s certificate of birth had not been produced to prove her actual ageand the P3 form was unclear as to the age of the Complainant. 53.However, multiple witnesses consistently placed the complainant’s age between 16–17 years. A birth certificate was produced. If there were any inconsistencies and/ or contradictions then they were minor inconsistencies in dates which cannot negate the charge against the Appellant. 54.Kenyan courts have consistently held that age need not be proved with mathematical precision so long as there is credible evidence showing minority. The Appellant’s ground challenging proof of age cannot therefore be sustained. 55.On proof of penetration, PW1: clearly gave detailed account of sexual intercourse 3 times with the Appellant in his house. Medical evidence also proved the Complainant’s hymen was absent and she had vaginal inflammation as well as presence of epithelial cells. 56.The Appellant argued that absence of spermatozoa was proof of absence of defilement. He also said there was delayed medical examination and absence of hymen was not conclusive the Complainant had been defiled. 57.In consideration of the evidence on record the Appellant’s argument fails under the clearly settled law. Penetration does not require spermatozoa Even partial/slight penetration is sufficient. Medical evidence is corroborative though not mandatory that the Complainant was defiled. 58.In any event Section 124 of the Evidence Act allows conviction on the complainant’s testimony if believed and if the Trial Court gives reasons for believing the evidence of the Complainant. The complainant’s evidence was consistent. She identified the Appellant as her boyfriend and explained circumstances clearly.In conclusion penetration was proved beyond reasonable doubt. 59.On whether the Appellant was properly identified as the perpetrator, the complainant knew the Appellant as her boyfriend. They had prior interaction for over 2 monthsand she went to his house voluntarily.This is a case of recognition which is stronger than identification of a stranger. 60.The Appellant in his defense raised an alibi claiming he was at a funeral. The problems with this defense is that it was raised late in the day and it was not put to prosecution witnesses. The same is also challenged and it is contradicted by complainant’s direct evidenceThis court finds that the defense was properly rejected by the Trial Court. 61.The conviction of the Appellant was therefore safe and this court finds no reason to interfere as all the ingredients of the offence of defilement were proved to the required standard and the same is upheld 62.On whether the. sentence was harsh and excessive, for a child aged 16–18 years, Section 8(4) of the Sexual Offences Act provides for a minimum: sentence of 15 years imprisonment. The Trial Court imposed a sentence of 20 years imprisonment. The Trial Court Sentence of 20 years imprisonment. The Appellant argued that trial court treated sentence as mandatory and failed to consider that he was a first offender and also failed to consider his mitigation.The Appellant relied on the case of Dismas Wafula Kilwake v Republicto support his argument. 63.Sentence according to the Respondent was within the law as 15 years is the minimum and the Trial Magistrate had the discretion to enhance the same. The Respondent contended that the Court properly exercised discretion and the Appellate court should not interfere. 64.Kenyan jurisprudence has now distinguished between mandatory sentences and minimum sentences which are still valid, but courts retain discretion to go higher and arguably consider mitigation of the Accused person. The Supreme Court has since clarified minimum sentence is not the same as a mandatory sentence and that courts retain discretion above the minimum sentences provided by the Act. 65.In this case the Trial Court did not sufficiently demonstrate exercise of discretion. The court simply passed sentence of 20 years without justifying why it was enhancing the same from the minimum mandatory sentence to 20 years without giving any reason. In the circumstances this court finds that there is justification for interference with the sentence. The sentence is therefore set aside and substituted thereof with a sentence of 15 years imprisonment as provided by the Act. Pursuant to Section 333(2) of the Criminal Procedure Code the sentence should run from the date the Appellant was arraigned in court if he was in custody during trial. 66.The conviction: of the Appellant was therefore safe and the same is upheld. The sentence was however, excessive in the circumstances as discretion was not properly exercised and the same is reduced to 15 years imprisonment as said above. The Appellant is also to benefit from remand period during trial to be confirmed in the trial court records.Orders Accordingly.Right of appeal 14 days explained. DATED, SIGNED AND DELIVERED AT MIGORI THIS 21st DAY OF MAY, 2026.HON. ANNE ADWERA- ONG’INJO JUDGE