https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11378

Omweri v Republic (Criminal Appeal E041 of 2025) [2026] KEHC 11378 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEHC 11378 (KLR) Republic of Kenya In the High Court at Kisii Criminal Appeal E041 of 2025 AM Okutoyi, J July 23, 2026 Between Wycliffe Onyango Omweri Appellant and The Republic Respondent (Being an appeal from the Conviction and Sentence in Criminal Case Number MCSO E008 of 2025 by Hon. V. M Moguche in the Resident Magistrate’s Court at Etago) Judgment Introduction 1.The Appellant, Wycliffe Onyango Omweri was on 27th November 2025 convicted of the offence of defilement contrary to Section 8 (1) as read with Section 8 (2) of the Sexual Offences Act (SOA) in Etago Principal Magistrate Sexual Offence Case No. E008 of 2025. The Particulars of the offence are that on diverse dates at Emesa Sub Location, in Gucha Sub County, within Kisii County intentionally caused his penis to penetrate the vagina of F.N, a child aged 8 years old. 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 (SOA). Following a full hearing the Appellant was convicted and sentenced to serve Life imprisonment. 2.Aggrieved by both the conviction and sentence, the Appellant preferred the Appeal herein vide a Petition of Appeal. In his Eight grounds of appeal, the Appellant states that, the trial court erred in failing to consider that the prosecution did not prove its case beyond reasonable doubt threshold, his rights to fair trial infringed under Article 50 (2) (g) & (h), the prosecution case was riddled with glaring inconsistencies to wit medical evidence and shaky investigations, that the trial court did not consider the principles of sentencing. Lastly, he prayed for trial proceedings to enable him erect more grounds of Appeal under Section 350(2)(v) of the Criminal Procedure Code. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence of life imprisonment. 3.On 21st May 2026 parties took directions on disposal of the Appeal, parties agreed to have the appeal canvassed by way of written submissions, the Appellant filed his written submissions however undated. Respondent equally confirmed filing and service of its written submissions dated 9th March 2026. 4.To start with, this court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court. The Prosecution Case 5.PW1, F.N, the complainant, testified that the Appellant found her by the roadside and took her to a maize plantation, she identified him as Onyango, who undressed her inner wear, and defiled her, causing her pain in her private parts. She stated that she proceeded to school afterward but overstayed in the toilet, prompting her teacher Peris to question her, whereupon she disclosed that Onyango had done bad manners to her. She further testified that she knew the accused previously, recounting an earlier incident at her Grandmother's home where he took her to the bathroom and did the same to her, an act her Grandmother interrupted upon hearing her scream. She placed the accused's house near the maize plantation. She confirmed in cross-examination that she was alone on the road with no houses nearby. 6.PW2, the Complainant's mother, testified that the Complainant, born in 2017, was living with her grandmother at the material time. She stated that she discovered the Complainant's underwear stained with what she believed to be sperm while washing her, and that upon threatening to punish the Complainant, she disclosed that Onyango, a schoolmate and neighbor to PW2, had assaulted her while she was on her way to school. She narrated two incidents on 30th January 2025 at the maize plantation, and a second on 10th February 2025 after which she took the Complainant to hospital upon a teacher noticing her difficulty in walking. In cross-examination, she conceded she had already washed and cleaned the complainant's clothes before the matter was reported, and that she had not personally taken her to hospital after the first incident. She produced the birth certificate as evidence. 7.PW3, Isaac Omwenga, a registered Clinical Officer, testified that he examined the Complainant, then aged 8 years, on 10th February 2025, at which point she complained of pain in her private parts and difficulty walking, and disclosed that a person known to her had attempted to insert his penis into her vagina two days prior. On physical examination he noted lacerations, a swollen vagina, and painful buttocks, though no bleeding, and concluded that the findings were consistent with defilement. He produced the Treatment notes, P3 form, and PRC form as evidence. In cross-examination, he conceded he was unaware of the contents of the charge sheet, having only taken the complainant's clinical history. 8.PW4, P.C. Noleen Adhiambo, the investigating officer attached to Nyamarambe Police Station, testified that the Complainant was brought to the station on 10th February 2025 by her grandmother, together with the area assistant chief, Teresa Gwako. She recorded statements, escorted the Complainant to Nduru Sub-County Hospital, and visited both the scene and the Grandmother's home. She confirmed two incidents on 30th January 2025 and 10th February 2025 — it is her testimony that the second incident was accompanied by a warning to the complainant not to disclose the assault, and testified that the accused was a regular customer at the Complainant's home, where he purchased changaa. She stated that an identification parade was conducted in the presence of the Appellant’s brother, at which the Complainant identified the accused, producing the identification parade report as evidence. In cross-examination, she conceded that the Complainant's grandmother brewed and sold alcohol, that the Appellant was a regular customer, and that the scene had no homesteads in the immediate vicinity, the nearest house being some 300 meters away. 9.PW5, Benedictor Bochere, Deputy Head Teacher, testified that on 10th February 2025, during the school break, she observed the complainant, a grade three pupil, walking with difficulty, a condition first noticed and reported by the Duty Teacher, Madam Gladys. Upon being brought to the office and questioned, the Complainant disclosed difficulty passing stool and urinating and named Onyango as the person who had offended her. PW5 summoned the Complainant's Grandmother and, when she delayed, she escalated the matter through the clan elder to the area sub-chief, to whom she ultimately handed over the case to the Police. In cross-examination, she maintained that she did not personally know the Appellant and had not physically examined the Complainant. 10.At the close of the Prosecution's case, the Court found the Appellant to have a case to answer. He was placed on his defence and elected to give sworn testimony as the sole witness. Defence Case 11.The Appellant in the Defence Case raised an alibi coupled with denial and a dispute with the Complainant’s family member. He stated that between 30th January and 10th February 2025 he was occupied crushing sugarcane, and that he was only summoned to the sub-chief's office on 13th February 2025, from where he was directed to the police station. He explained his connection to the Complainant's family as commercial, he states that the Complainant's uncle, Hesbon Nyabuto, bought sugarcane from him and owed him KShs. 30,000 and maintained that he did not understand why he had been charged. 12.At the end of the Defence case, the Trial Court found the Appellant guilty of the offence of Defilement and convicted him. The trial court before sentencing the Appellant called for a pre-sentencing report and the mitigation. In consideration of Section 8 (2) of the Sexual Offences Act, and in reaffirming its duty to protect children the trial court sentenced the Appellant to serve life imprisonment. Appellant's Submissions 13.The Appellant submits that the trial court erred by relying on a defective voir dire and it failed to indicate the language used to conduct the voir dire examination of PW1, a minor, and similarly the trial court failed to record the language in which witnesses were sworn before testifying in chief. On inconsistencies the Appellant’s submits that PW1's own testimony placed the alleged offence at both the maize plantation and, on a separate occasion, in a bathroom at her Grandmother's home, without the Grandmother ever reporting the bathroom incident, leaving it unclear where the offence charged actually occurred. Further, PW1 & PW2 testimonies are riddled with material contradictions. PW1 stated she was defiled once, PW2 spoke of a second defilement on 10th February 2025. Auxiliary to that, PW2's account that the child was taken to hospital that same day conflicts with PW3's evidence that he examined PW1 two days after the alleged offence, suggesting the offence, if any, occurred on 8th February 2025, a date not attributed to the Appellant. He relies on John Mutua Musyoka v Republic (2017) CA 11, 2016 for the proposition that such unresolved contradictions go to the root of the prosecution case. 14.The Appellant submits that three witnesses identified by the investigating officer as material to the allegations; the Grandmother, the Assistant Chief, and the teacher Madam Teresa Awako were never summoned to testify or shown to have recorded statements, undermining the reliability of the investigation. By the same token, PW3's finding of pain in the buttocks was never explained, and the two days gap between the alleged offence and examination casts doubt on whether any offence occurred on the date charged. 15.Lastly, the Appellant submit that the sentence meted out was excessive and unconstitutional sentence relying on R v Bieber (2009) 1 WLA223, GM v Republic [2017] eKLR where life sentence for defilement of a 9-year-old reduced to 15 years on appeal and Julius Kitsao Manyeso v Republic (Criminal Appeal No. 12 of 2021), the Appellant contends that a mandatory life sentence without provision for review is disproportionate and that life need not mean the natural life of the prisoner. He prays that the appeal be allowed, the conviction and sentence quashed, and that he be set at liberty. Respondent's Submissions 16.The Respondent opposes the Appeal in its entirety, framing the two issues for determination as to whether the conviction was proper in law, whether the sentence was manifestly harsh, excessive, or unlawful. On conviction, the Respondent relies on Nyokabi v Republic [2024] KECA 1199, the Respondent thematically submits that all the ingredients of the offence were met, on age it was confirmed by PW1's own testimony, corroborated by PW2 and by a Birth certificate produced as an exhibit, establishing the complainant's age at 8 years, The Respondent cites Kaingu Kasomo v Republic (Criminal Appeal No. 504 of 2010) in support. It is submitted that penetration was established by PW1's direct account of the assault and her resulting pain, corroborated by Teachers' and the Clinician's observations of her difficulty walking, PW3's clinical opinion, and supporting medical exhibits, in line with the Ugandan Supreme Court's guidance in Bassita v Uganda as approved in Muhendu v Republic [2024] KECA 322. On the last ingredient of positive identification, the Respondent submits that the same was one of recognition rather than identification, since PW1 knew the Appellant beforehand, a fact the Appellant himself admitted in his defence rendering her identification clear, coherent, and consistent. 17.In its brief submissions, the Respondent contends the trial magistrate correctly found no material contradictions, gaps, or weaknesses capable of displacing the prosecution's case, and that the Appellant's defence was a bare denial. On the question of legal representation, the Respondent argues the right to counsel is not absolute and that the Appellant participated actively and ably in his trial without resulting prejudice. On sentence, the Respondent submits that life imprisonment under Section 8(2) of the Sexual Offences Act is mandatory for defilement of a child aged eleven years or below, and is therefore lawful, citing Republic v Joshua Gichuki Mwangi (Petition E018 of 2023) [2024] KESC 34, as applied in Charles & Another v Republic (Criminal Appeal 38 of 2019) [2024] KECA 1902. The Respondent prays that the appeal be dismissed in its entirety and the conviction and sentence upheld. Analysis And Determination 18.This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions. In the case of Okeno v Republic [1972] EA 32, East Africa Court of Appeal put this duty as follows:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R, [1957] EA 336) 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. (Shantilal M Ruwala v R, [1957] EA 570). It is not the function of a 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 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] EA 424.” 19.This Court has comprehensively read the respective parties’ submissions, given due consideration to the trial court’s proceedings, the Petition of Appeal the Appellant’s written submissions and the Respondent’s written. The following issues arise for my determination: -a.Whether the Prosecution proved its case beyond reasonable doubt.b.Whether the sentence was harsh and excessivec.Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed. Whether the Prosecution proved its case beyond reasonable doubt. 20.The Appellant was charged under Section 8(1) as read with Section 8(2) of the Sexual Offences Act, which states; -“(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. 21.The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act, the main elements of the offence of defilement are as that; the Complainant must be a minor, positive identification offender and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice. 22.As to whether the Complainant is a minor. In Mwalongo Chichoro Mwanjembe v Republic [2014] KEHC 5046 (KLR) the Court stated:“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 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. 23.As to the age of the Complainant, there is no doubt and/or contestation of the age of the Complainant. the Complainant’s on voire dire testified that she doesn’t know her age. An age assessment was undertaken and the complainants age was ascertained to be 8 years. The Age assessment report confirmed the Complainant’s age as 8 years. This was equally captured in the P3 form as 8 years and the PRC Form captured that the Complainant was born in the year 2015. This evidence was corroborated by PW4. Therefore; the age of the minor was sufficiently proved. 24.On penetration, the Complainant testified that the Appellant undressed her inner wear and mounted on her at a maize plantation which upon examination at Nduru Sub County Hospital she was found to have laceration and a swollen vagina. This testimony was corroborated by medical evidence adduced. 25.PW3 Clinical officer Isaac Omwenga examined the Complainant and concluded that the complainant had been defiled. The trial court notes that the evidence was not challenged by the Appellant either at cross examination or during defence. 26.Penetration is defined under Section 2 of the Sexual Offences Act as follows:“Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 27.The above section brings out the two main ingredients of defilement; the mens rea which constitutes the intention to insert a genital organ of the other into the genitals of the other and the actus reus which constitutes the act of penetration which ought not to be complete. 28.The Court of Appeal in the case of Mark Ouiruri v Republic (2013) eKLR, expressed itself on what amounts to penetration as follows: -“…... In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during 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 the penetration need not be deep inside the girl’s organ….” 29.The complainant gave unsworn testimony that she was undressed, her innerwear removed, mounted on and the appellant did bad manners on her vaginal area. The Appellant also removed his trousers and the act was painful. The Complainant gave a step by step narration of the ordeal clearly demonstrating how the penetration occurred. The court therefore is satisfied that the element of penetration had been proved beyond reasonable doubt. 30.On positive identification and/or recognition of the perpetrator, the Complainant stated that she previously knew Onyango and that he would visit her Grandmother’s place and that he once took her to the bathroom and did bad manners to her. She testified that the Appellant was present in court, thus identifying him. She confirmed it was the Appellant who defiled her on both the two incidents and she equally identified him during an identification parade. 31.PW4 in her investigation established that the Appellant was a regular customer at the Complainant’s home which doubled up as a drinking den. The trial court equally captured the demeanor of the accused and noted that they had interacted before. 32.The trial court subjected the Complainant to a voir dire test for reason that the sole evidence of the penetration was that of the Complainant. As guided Section 124 of the Evidence Act allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows:“Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant shall not be liable to be convicted on such evidence unless it is corroborated by other material 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 Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth.” (Underlined for emphasis) 33.The Trial court upon ascertaining that the Complainant was 8 years of age, she gave unsworn testimony, a trial court must be satisfied that the Complainant is telling the truth. The trial court noted that the Complainant is young talking clearly and confidently. In its judgment, the trial court was persuaded that the Complainant of 8 years identified the Appellant in broad daylight, gave a step by step narration of what happened. The trial court rightfully found that the Appellant’s defence was an afterthought. 34.The trial court formed the opinion that the complainant was a credible witness. The Court had the chance to see the complainant when she testified. The prosecution further conducted an identification parade for purposes of identifying the Appellant. 35.The Court of Appeal in Samuel Kilonzo Musau -vs- Republic (2014) eKLR expounded on the issue of an identification parade and stated:“…the identification parade is not a scientific test and cannot be treated as one. Instead, it is merely the best practical method of achieving an identification without confrontation.” The purpose of an identification parade as explained in Kinyanjui & 2 Others -vs- Republic (1989) KLR 60 is to give an opportunity to a witness under controlled and fair conditions to pick out the people he is able to identify, and for a proper record to be made of that event to remove possible later confusion. In John Mwangi Kamau -vs-Republic (2014) eKLR. The court considered the essence of identification parade and stated: “Identification parade are meant to test the correctness of a witness identification of a suspect.” 36.In this case the Appellant was well known to the complainant. The families knew each other. She knew the Appellant only by the name Onyango. The purpose of the parade is to test the correctness of the identification of the Appellant. During the parade the Appellant was positively identified. 37.With the above analysis of evidence, this court finds that the Prosecution has proved that the Appellant defiled the Complainant as per the required standards of law of beyond reasonable doubt. Whether the sentence was harsh and excessive. 38.As to whether the sentence to serve life imprisonment was harsh and punitive? The Appellant states that the trial court erred and acted on wrong principles without appreciating that life sentence was pronounced unconstitutional, hence harsh and excessive. The trial court before meting out the sentence called for a pre-sentencing report, considered it and subsequently allowed the Appellant to mitigate. The Trial court noted that the Appellant herein defiled a minor and repeatedly thus sentenced him to serve life imprisonment. 39.It is trite that sentencing is a discretion of the trial court and an appellate court will not interfere with that discretion unless it is demonstrated that the trial court acted on a wrong principle, took into account irrelevant considerations, failed to consider relevant matters or imposed a sentence that is manifestly harsh, excessive or inadequate in the circumstances. 40.The Complainant was defiled when she was 8 years. Section 8 (2) of the Sexual Offences Act wherein it provides that 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. 41.The Sentencing Policy Guidelines 2023 outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender. 42.On constitutionality of Mandatory Minimum sentences, the Supreme court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) upheld that Mandatory sentences are applicable The Apex court held as follows“We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence.” 43.I have carefully considered the record and circumstances of the offence together with the mitigation advanced by the Appellant. The complaint was a child of tender years who is entitled to the full protection of the law. The offence not only violated her bodily integrity and dignity but also exposed her to profound physical, emotional and psychological harm and permanently impairing her innocence. 44.With this context, I am unable to discern any error of principle in the exercise of the discretion of the trial court. The sentence is proportionate to the gravity of the offence and accords with the objectives of sentencing and protection of vulnerable children. Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed. 45.On the right to fair trial, Article 50 (2) (g & h) of the Constitution provides that an accused person has a right to appoint an advocate of choice. Further the Court shall appoint and an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result. 46.An evaluation of the record shows that at plea, the charges were read over to the Appellant and explained in English and Kiswahili, which a plea of not guilty was entered, the record indicates that both English and Kiswahili were used in court. The Appellant comprehensively cross examined all the witnesses. Alike, when called upon to give his defence, the record shows that he lodged a defence without any difficulty. Clearly the Appellant actively participated during and he was not prejudiced by for failure to have counsel on record. An option he did not elect. 47.This court therefore finds no basis for the Appellant’s claim that his rights to a fair trial were violated. 48.The Appellant on his last ground of appeal sought to be served with the trial court proceedings to enable him erect more grounds of appeal. This court takes note that the Appellant was served the record of appeal on 16th February 2026. The Appellant subsequently and together with his submissions filed a supplementary amended grounds of appeal dated 2nd March 2026. However, the Appellant failed to seek leave or issue a notice to the Respondent and the Registrar of this court under section 350 (2) of the CPC thus the same is not properly on record as such the court will not address itself to it. Disposition 49.Consequently, this Court finds that the prosecution proved the charge against the Appellant beyond reasonable doubt. This Court further finds that the sentence of life imprisonment was lawful and commensurate to the offence and aggravating circumstances in this case. 50.Accordingly, the appeal herein lacks merit and is hereby dismissed in its entirety. JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 23RD DAY OF JULY 2026.ANNE M. OKUTOYIJUDGEJudgment delivered in the Presence of:Wycliffe Onyango Omweri-Appellant present from Naivasha Maximum Prison.Ms. Mugo for the State.Ruth Mokeira-Court Assistant.