https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10263

Osunga v Republic (Criminal Appeal E100 of 2025) [2026] KEHC 10263 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 10263 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E100 of 2025 AK Ithuku, J June 5, 2026 Between Otieno Kennedy Osunga Appellant and Republic Respondent Judgment 1.The appellant herein Otieno Kennedy Osungaalias Otiswas charged with defilement contrary to Section 8(1) and (3) of the Sexual Offences Act. The particulars were that on 23.11.2024 at Abindu Village South West Seme Location in Seme Sub-County within Kisumu County he intentionally and unlawfully caused his penis to penetrate the Vagina of V.A a child aged 14 years old. 2.In the alternative, the accused person was charged with committing an indecent act with a child contrary to Section 11 (1) of the said Act. 3.He pleaded not guilty to both counts and after trial he was convicted on the main count. On 6.10.25 he was sentenced to imprisonment for twenty years. 4.The conviction and sentence provoked the current appeal. It is dated 20.11.25. Through his advocate, KOBILL and Company Advocates, he has listed seventeen (17) grounds of appeal. 5.I have gone through the grounds. I find them repetitive but they capture the following main grounds;i.That the learned Magistrate failed to consider the mental status of the appellant who was insane.ii.That the learned Magistrate failed to consider material contradictions which should have been resolved in favor of the appellant.iii.That the learned Magistrate erred in fact and law by failing to consider the defence of alibi.iv.That the learned Magistrate erred in law and fact by conducting proceedings in a language that the appellant did not understand.v.That the learned Magistrate erred in law and fact by not recording the proceedings in court correctly and in confusing the role of prosecution counsel doubling as the defence counsel.vi.That the appellant was not given the chance in the trial court to mitigate before sentence was passed on him.vii.That the sentence is excessive and illegal for an insane appellant who is also suffering from hearing impairment. 6.The appeal was prosecuted by way of written submissions. The applicant through his advocate submitted on the duty of this court as first appellant court to re-examine and re-evaluate the evidence taken by the trial court. They referred to the well-known case of Okeno Versus Republic (1972) EA 32. 7.The advocate stated that during the trial the appellant was insane, hearing impaired and suffering from what they referred to as severe syphilis. He submitted on alibi, insanity status and the fact that the complainant was not infected with syphilis. He also submitted on contradictions involving name of the appellant, dates of the alleged incident, identification of the appellant and whether the evidence on record proves the charges beyond reasonable doubt. 8.The respondent submitted that the ingredients of the offence of defilement were proved beyond reasonable doubt. I have noted that under the subtitle identification of the appellant as the perpetrator the prosecution counsel states that the identification was flawed. That the learned Magistrate sought to have acquitted for lack of the ingredient of identification. In the succeeding paragraphs the state changes its mind and says that the identification was proper and sufficient. 9.As a first appellate in court I must reconsider and re-evaluate the evidence taken by the trial court to arrive at an independent conclusion while bearing in mind that I did not have the advantage of observing the demeanor of the witnesses as they testified.In Kiilu and Another Versus Republic (2005) KLR 174 , the court of Appeal set out the duty of the first appellate court as hereunder:“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 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 magistrates’ findings can 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.” 10.Applying the guidance given by the court of appeal above I have carefully considered the grounds of appeal the evidence presented before the trial court and the judgement of the learned trail Magistrate. I will start with looking at the evidence as recorded by the Learned magistrate. Evidence: 11.PW1, V.A. testified that she was a grade 8 pupil. That on 23.11.2025 the appellant who she called Otis entered their house. That around 10:00pm she was surprised by someone lying on top of her. That she tried to raise alarm but was threatened by the person placing a knife on her throat. She told the court that the person threatened to kill her if she screamed. She said that though it was dark she could identify the assailant by his voice. 12.PW1 father testified that she slept in the sitting room while her grandmother was in the bedroom. That as she struggled the attacker strangled her. He lifted her skirt and cut the left side of her panty with a knife. He then inserted his private part into her private part. That he did not use any protection. 13.It was her further testimony that after the defilement the appellant entered the grandmother’s bedroom. That because of the flashlight used by her grandmother she saw the assailant running away through the main door. The two went to Bodi Police Station where they made a report. The following day they went to Kombewa hospital. PW1 identified a birth certificate showing that she was born on 25.4.2010. She also identified P3 form, PRC form and treatment notes. She pointed to the accused person in court and referred to him as Otis. In cross-examination she said that she knew him by the name Odhis. 14.PW2 , Kevin Odhiambo Owino was the clinical officer. He is the one who examined the complainant. He produced P3 form, PRC form and treatment notes. He said that the victim gave history of sexual assault by somebody well known to her. He noted visible laceration on both majora and minora. The hymen was broken. She tested negative of any infection. He concluded that she had been defiled. 15.PW3 Martina Agola Owang is the grandmother referred to by PW1 . She said that she did not see the appellant enter the house. That they were cooking in the kitchen when he entered the main house and hid. That PW1 slept in the sitting room while she was in the bedroom. It was PW3's testimony that the victim did not raise alarm. That the appellant entered PW3 's room and took a radio. That she did shine a torch on his face and he ran away. She repeated the complainant's testimony on reporting to police and going to hospital. She said that the appellant was a son to her brother in law and a next door neighbour. That she saw his face and his rastas as he was not wearing a cap. 16.PW4 was the investigating officer. He told the trial court that on 23.11.2024 at 11:00 am PW1 and PW2 went to Bodi Police Station accompanied by a village elder. He referred them to Kombewa hospital. After P3 and PRC forms were filled, he recorded statements and visited the scene. He arrested the appellant at his home. He charged him as present. PW4 produced the birth certificate of PW1 showing that she was born on 24.10.2010. 17.On being put on his defence the appellant informed the court that he wished to keep quiet and leave the court to decide. Analysis 18.The appellant is charged under Section 8 (1) and (3) of the Sexual Offense Act. The prosecution was expected to prove beyond reasonable doubt all the elements of defilement. In the case of George Opondo Olunga Versus Republic the suspects were indicated as follows:(i)Proof the age of the victim(ii)Penetration(iii)Positive identification of the perpetrator. 19.The legal burden remains constant throughout a trial. It rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift save for exceptions which are statutory. 20.Proof beyond reasonable doubt of course does not mean one beyond the shadow of doubt. Lord Denning explained this very well in Miller v. Minister of Pensions [1947] 2 All ER 372, when he said:“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence ‘of course, it is possible, but not in the least probable,’ the case is proved beyond reasonable doubt, but nothing short of that will suffice." 21.Flowing the evidence on record, the petition of appeal and submissions filed the issues for determination are:a.Whether the prosecution proved the care to the required standard.b.Whether the sentence was appropriate. 22.Before I delve into the issues above I wish to dispose of an issue raised by the appellant in the submissions. It is foundational and of a preliminary nature. The appellant has stated in the submission that at the time of the trial he was insane and therefore not fit to plead. That this is an issue that was raised before the trial court and disregarded. That it was not considered at the sentencing stage. 23.The issue of insanity, if successfully raised, will go to the capacity of the appellant to stand trial. I have carefully gone through the record of appeal right from the time of plea to judgement and sentencing. At no point was the issue of the mental capacity raised. The appellant is recorded answering “ Si Kweli” to both counts. He participated in the proceedings by way of cross-examination. When he was put on his defence he replied.“I wish to take the 3rd option to keep quiet and leave it to court to decide” 24.The trial court then noted:“Despite explanation by the court on what it entails to take the option and the nature of the offence he is facing accused still opts to remain silent and leave it to court to decide hence the close of defence as well” 25.The allegations of insanity and illness are raised by way of submissions. It has been held many times that submissions are not evidence. That cases are determined on the evidence on record. In the case of Daniel Toroitich Arap Moi –vs– Mwangi Stephen Muriithi & Another [2014] eKLR the Court of Appeal stated:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 26.In the instant case all those complaints by the appellant based on his mental and physical status sought to be raised at the submissions stage are without evidential basis. I proceed to dismiss those grounds of appeal. 27.Now to the ingredients as adduced by the prosecution and determined by the trial court. 28.Regarding age there is not much dispute. The complainant told the trial court that she was born on 25.10.2010. The investigating officer produced a birth certificate confirming the date of birth. This evidence puts her age at 14 years 7 months. This places her within Section 8 (3) of the Sexual Offences Act. 29.Penetration is defined under Section 2 of the Sexual Offences Act as:“Partial or complete insertion of the genital organs of a person into the genital organs of another.” 30.The complainant in her testimony stated:“He cut my clothes with a knife. He lifted my skirt up and cut my panty with the knife. He used his private part that he uses to urinate and inserted it in mine.” 31.I find the victim to be describing a coitus. She says that the appellant did not use protection. The Clinical officer testified. He noted what he referred to as visible lacerations on both labia majora and minora. The hymen was broken. He made a conclusion that there was defilement. 32.I note that the victim was examined at the hospital the morning after the incident. The medical report corroborated the evidence given by the victim. I find the description given by the victim sufficiently detailed without exaggeration. Taken together with the medical report contained in the P3 and PRC forms it is proved to the required standard that the victim was penetrated as defined under Section 2 of the Act. 33.On the identity of the perpetrator, it is the prosecution’s evidence that the incident occurred at night. This was around 10:00 pm. The complainant stated that he recognized the appellant from his voice. She heard him as he was threatening to cut her neck if she raised alarm. PW3, the grandmother said that she saw the appellant’s face as he entered her room to pick the radio. That she shone a torch to his face. She told the court that the appellant was her brother in law’s child and next-door neighbor. On record, we have these two witnesses. The trial court believed the two witnesses and found that the appellant was positively identified. 34.I have evaluated this evidence bearing in mind that I did not observe the witnesses. This was an identification in difficult circumstances. It was at night. Our courts have emphasized that evidence of visual identification should be handled with care to avoid miscarriage of Justice. In Wamuga –VS- Republic (1989) KLR 424 the court of Appeal warned that:“where the only evidence against a defendant is evidence of identification or recognition, a trial court is enjoined to examine such evidence carefully and to be satisfied that the circumstances of identification were favourable and free from possibility of error before it can safely be the basis of a conviction.” 35.Courts have also relied on the often quoted case of Republic –vs- Turnbull (1967) 3 ALL ER 549 where the court is required to inquire as to the presence and nature of light the intensity of such light, the location of the source of light in relation to the accused and time taken by the witness to observe the accused so as to be able to identify him. 36.In the present care we have two witnesses who were referring to a close relative and neighbor. The victim says that the assailant talked to her as he committed the offence. That she saw him running out of her grandmother room with the help of a flashlight. PW3 saw him using the flashlight. They gave his name to the police that very night. 37.I have seen the submissions by the appellants on the use of the name ODHIS. In the examination in chief the complainant stated that she was sexually assaulted by OTIS. It is cross- examination that she referred to him as ODHIS. She pointed at the accused person before court. I do not find any confusion brought about by those two names. I also note that the appellant was arrested after his name was given to PW4 by the victim and PW3. 38.In the end I find no reason to disturb the finding by the trial Court on the identification of the perpetrator. My independent analysis of the record returns the same verdict. The appellant was positively and properly identified as the person who penetrated the Vagina of the complainant using his penis. 39.My findings on the ingredients of the main charge lead me to conclude that the conviction by the trial Court is safe. The appeal on conviction is without merits. The same is hereby dismissed. 40.On sentence the appellant submitted that the same is excessive. Under Section 8(3) of the Act the sentence provided is imprisonment for a term of not less than twenty years. In this case the appellant was sentenced to the minimum, that is, 20 years. This is after the court considered his plea in mitigation and a probation report. I note that in the petition for appeal the appellant says that he was not given a chance to mitigate. Mr. Kobill who signed this appeal is the same advocate who addressed the trial court in mitigation on 18.9.2025. That part of appeal is, with respect, not honest. 41.In the result I find the complaint on sentence to be without legal basis. The sentence is lawful and in this case the minimum allowed by the law. I allow the same to stand dismissing the appeal. 42.The final orders are that the appeal lacks merit and is consequently dismissed both on conviction and sentence. DELIVERED, DATED AND SIGNED AT MAKADARA LAW COURTS THIS …5TH DAY OF JUNE, 2026HON. A.K. ITHUKUJUDGEJudgement delivered through Microsoft Teams:………………………. ………………Prosecutor……………………………………….AccusedAnnastacia…….Court AssistantHON. A.K. ITHUKUJUDGE