https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12292

Omondi v Republic (Criminal Appeal E085 of 2025) [2026] KEHC 12292 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12292 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E085 of 2025 WN Molonko, J July 30, 2026 Between Emmanuel Oloo Omondi Appellant and Republic Respondent (Being an appeal from the original conviction and sentence by Hon. C.N.C Oruo in Sexual Offences Case No. 028 of 2023 of the RONGO Magistrates Court) Judgment 1.The Appellant Mr. Emmanuel Oloo Omondi was convicted on the charge of defilement of a girl aged 15 years contrary to section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006 and sentenced to 20 years’ imprisonment on the 13th day of August 2025. 2.He was charged with an alternative charge of committing an indecent Act with a child contrary to section 11(1) of the Sexual offences Act No. 3 of 2006. 3.He also faced a second count of kidnapping contrary to section 255 of the penal code which he was acquitted for lack of sufficient evidence. 4.Being dissatisfied with the conviction and sentence, he filed this appeal and raised the following grounds of appeal:a.That he did not plead guilty to the charge therein.b.The trial court erred in both law and fact by failing to comply with the provisions of Article 50(2)(h) of the Constitution.c.The trial court erred in both law and fact by not considering that the ingredients of the offence herein were not proved to the required standards in law and facts.d.The trial court erred in both law and fact by refusing to consider his defence and mitigation. 5.The Appellant urged this court to quash the conviction and set aside the sentence, order for a retrial or issue an order granting leave to amend/supplement more grounds after receiving the lower court proceedings. 6.This appeal was admitted for hearing and directions issued on the hearing of the same by way of written submissions which were duly filed and placed on record. 7.The Appellant by his written submissions, stated that his right to a fair hearing was infringed by the trial court as he was detained at the police station for more than 24 hours as the police were after bribes which the family could not afford. He also avers that he needs leave to be allowed to supplement more grounds of appeal. 8.On the issue of age of the complainant, the Appellant noted that the determination was not conclusive. There was no birth certificate, birth notification, baptismal certificate nor school documents to ascertain her age. 9.On the issue of penetration, the Appellant submitted that the same was not conclusively determined. He noted that from his medical report, produced by the Clinical Officer- PW4, there was presence of pus cells in his urine indicating a Urinary Tract Infection. That despite the complainant indicating that they had sex/defiled for 5 days/occasions, she was not infected as per her medical report. 10.The Appellant also submitted that based on the demeanour of the complainant, her evidence could not be relied on as she gave contradicting and different versions of herself. She indicated she was a class 7 student at [Particulars Withhheld] Primary School and at some point, a form 2 student at [Particulars Withhheld] primary school, the complainant had the habit of disappearing from her home as confirmed PW3 indicating that she may have had other relationships, that she was not coerced nor threatened to have sex, she packed her belongings and went to the Appellant’s home and that the complainant has been working in a bar at Riosiri due to the frustration of the parents. 11.The Respondent on the other hand extensively submitted on the grounds of appeal as follows- 12.On whether the trial court violated the rights of the Appellant, the Respondent pointed out that the Appellant was informed of his right to representation by an advocate as per Article 50 (2) (g) and ((h) of the Constitution during plea taking but he elected to represent himself. Despite the lack of representation, he was able to cross- examine the witnesses and mounted a defence and did not suffer any injustice for the lack of representation. (See Mokaya V Republic (Criminal Appeal E020 of 20203 (2024) KEHC 4607 (KLR).) 13.On whether the prosecution proved its case to the required standards, the Respondent submitted that the three ingredients forming the offence of defilement viz. (i) age of the complainant; (ii) proof of penetration; and (iii) positive identification of the assailant were proved beyond reasonable doubt. 14.Regarding age, the Respondent noted that an age assessment report was produced as Exhibit 4 indicating the complainant was 15 years at the time of the incident. With this, the complainant was well withing the delimitation of age as set under subsection 3 of the Sexual Offences Act. (See Mwalango Chichoro Mwanjembe V Republic (2026) eKLR). The Respondent noted that the conclusive proof of age does not necessarily mean a certificate. Such other formal documents might be necessary in borderline cases. (Fappton Mutuku Ngui v R (2014) eKLR). 15.The Respondent further submitted that PW 4, the clinical officer testified that the minor was defiled as the hymen was broken. The minor also testified that the Appellant had sex with her on several occasions. On the absence of spermatozoa, the Respondent relied on the decision by the Court of Appeal in Mark Oiruru Mose v Republic (2023) EKLR where it was held that:“…..in any event the offence is against penetration of a minor and penetration does not necessarily end in the release of the sperms into the victim. Many times, the attacker does not complete sexual act during the commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ….” 16.The Respondent submitted that there was positive identification of the Applicant. PW 1, the complainant testified that the accused was well known to her as Emmanuel and they lived together for a few days. 17.On whether the Appellant’s evidence was disregarded, the Respondent submitted that the Appellant opted to give sworn evidence and opted not to call any witnesses. He denied the allegations and admitted that the minor had gone to his house since her mother had chased her from home to “go and get married.” He did not call his mother whom they claimed stayed with the complainant to support his case. 18.Being the first appeal, the duty of this Court is well settled in the case of Okeno Vs. Republic (1972) EA 32 where the court held-“An appellant on a first appeal is entitled to expect the evidence as a whole to be substituted to a fresh and exhaustive examination (Pandya v. R. (1957) E.A 336 and to the appellate court’s own decision on the evidence. The first appellate court must in itself weigh conflicting evidence and draw its own conclusion (Shantilal M. Ruwala v. R.,(1957) E.A. 570). 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 finding and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s findings should be supported, In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, (1958) E.A 424.” 19.This position was also settled in the case of Selle & Another VsAssociated Motor Boat Co. Ltd & Others (1968) EA 123 where the court held that the appellant court was not bound by the findings of fact of the trial court but that in re-considering and evaluating the evidence so as to draw its own conclusions, it had to bear in mind that it neither saw nor heard the witnesses testify, and this make an allowance in that respect. 20.Having evaluated the evidence of the trial Court, the Appellant’s Grounds of Appeal, his written submissions and those of the Respondent, this Court frames the issues placed before it for determination as follows-i.Whether the Prosecution proved its case beyond reasonable doubt considering the three ingredients forming the offence of defilement; andii.Whether the Appellant’s right to a fair trial was violated. 21.In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases is proof beyond reasonable doubt, this court considered the ingredients of the offence of defilement as settled in in the case of George Opondo Olunga vs Republic [2016] eKLR under the following distinct heads. 22.On age, the Appellant strongly submitted that the age of the complainant was not conclusively proved. He argued that there were conflicting accounts from PW1, the complainant, who said she was 15 years old, PW3, the mother of the complainant who said the daughter was 13 years old and the age assessment report. He argued that the age assessment report was not detailed to support the findings but instead it was a matter of filling up the gaps. He also wondered how the complainant would not be having a birth certificate nor any other document if she was indeed a school going child. 23.On the other hand, the Respondent submitted that an age assessment report was produced as Exhibit 4 indicating the complainant was 15 years at the time of the incident. With this, the complainant was well withing the delimitation of age as set under subsection 3 of the Sexual Offences Act. 24.From the evidence on record, age assessment report was carried out which concluded that the minor was approximately 15 years at the time of the incident. 25.The Appellant further contended that the complainant voluntarily went to his home after being chased away by the mother and they lived together as a husband and wife. He further pointed out that he was not aware that the complainant was a school going minor. He stated that she was working in a bar in Riosiri. This was corroborated by the investigating officer No. 107242 PC Rosalina Chepchirchir. The trial court noted that the minor was working in a bar due to frustrations from the parents and directed the minor to be taken under care and protection. 26.On identification, the appellant was well known to the complainant. They lived together as husband and wife for some time and there was no doubt as to his identification. 27.On penetration, the Appellant submitted that there was no conclusive evidence to prove penetration. He stated that he was infected with a Urinary Tract Infection while the complainant was not infected. He pointed out that it could not be possible for her not to have been infected as she claimed to have had sexual intercourse with the appellant on several occasions when they lived together. 28.Although the Appellant was emphatic that the evidence left the prime ingredient of defilement weak, the evidence on record shows that the complainant was defiled having cohabited with appellant for some time as husband and wife. The evidence was corroborated by the scientific evidence of PW 4. As per the Medical Report and treatment notes on record, he examined her on 14th September, 2023 and observed that hymen was broken with no injuries and lacerations. He concluded that there was defilement. 29.This court finds and holds that the Prosecution proved its case to the required standard, which in criminal cases, proof beyond reasonable doubt that the Appellant took unfair advantage of the situation the minor was facing at home and unlawfully cohabited with her and defiled her from 10th August, 2023 up to 12th September, 2023. He would have taken reasonable steps avert the situation. 30.On sentence, having convicted the Appellant herein, the Trial Court did not err when he sentenced him to twenty (20) years imprisonment as that is what is provided by the law as the minimum sentence. 18.Based on the circumstances of this case, including the age of the minor, and the provisions of section 8(3) of the Sexual Offences Act, this court will not interfere with the sentence imposed by the trial court. 31.From the foregoing reasons, the grounds of appeal is not merited and hereby dismissed. In this regard, his conviction and sentence are upheld. DATED SIGNED AND DELIVERED THIS 30TH DAY OF JULY 2026W.N. MOLONKOJUDGEIn the presence of:-No appearance for the State.Appellant present from Kisumu Maximum Prison.Susan Nzioka /Court assistant.Page | 4