https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9847

Otieno v Republic (Criminal Appeal E110 of 2025) [2026] KEHC 9847 (KLR) (3 July 2026) (Judgment) Neutral citation: [2026] KEHC 9847 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E110 of 2025 LM Wachira, J July 3, 2026 Between Josiah Otieno Appellant and Republic Respondent (Being an appeal from the original conviction and sentence in Nyando criminal case no. E022 of 2023 by the Hon. L.N. Kiniale, SPM) Judgment 1.Josiah Otieno the Appellant herein was charged with the offence of defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act No.3 of 2006. The particulars were that on 8th day of June, 2023 at [Particulars Withheld] Siany sub location, South East Nyakach location in Nyakach Subcounty within Kisumu County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of K.W., a child aged 11 years. 2.In the alternative charge the Appellant was 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. The particulars were that on 8th day of June, 2023 at [Particulars Withheld] Siany sub location, South East Nyakach location in Nyakach Subcounty within Kisumu County, the Appellant intentionally and unlawfully touched the breasts, buttocks and vagina of K.W, a child aged 11 years. 3.The accused pleaded not guilty to the main and alternative charges. At the hearing, the prosecution called 6 witnesses. The Appellant was put on his defence and in sworn defence denied that he committed the alleged offence. He did not call any witness. 4.In her judgment, the trial Magistrate convicted the Appellant for the offence of defilement and after mitigation the trial court sentenced the Appellant to serve life imprisonment. 5.Dissatisfied with the trial court’s judgment the Appellant filed the current appeal citing the following grounds:-i.That the trial court erred in law and in fact in failing to establish that the prosecution did not prove the ingredients of the offence of defilement beyond reasonable doubt.ii.That the trial court erred in law and in fact in relying on fanciful and remote possibilities to convict the Appellant.iii.That the trial court erred in law and in fact in not weighing the conflicting evidence in the prosecution case that was consequential in the conviction.iv.The trial magistrate erred in law and in fact in not appreciating the Appellant’s cogent defence that overwhelmed the prosecution case. 6.The Appellant prayed that the appeal be allowed, the conviction quashed and the sentence set aside. The appeal was heard by way of written submissions. Both parties filed their submissions. Trial Court Evidence 7.PW1 was the clinical officer who had examined the minor and filled the P3 form. She told court that the patient was brought in with history of sexual assault. Upon examination, PW1 noted blood stains on her clothes and panty. The clothes were not torn. There were bruises and lacerations on the labia minora and labia majora. The hymen was absent and the patient was still bleeding. PW1 produced in court the P3 Form, PRC Form Laboratory Report and treatments notes to court as exhibits. Her finding is that the patient had been defiled. 8.PW1 also examined the Appellant but no remarkable findings were made save for soft tissue injuries in form of tenderness on the chest and abdomen. She produced his treatment notes and P3 from as exhibits. 9.PW2-the victim herein testified and stated that on the 8th June 2023 the accused who is her stepfather came home at around 10.00 p.m. and found her in bed with her siblings. That he began fighting with her mother and he kicked her out of the house, although she would come back. On the third time, the mother left and did not come back for the night. That the accused woke her up and told her to sleep in the couch on the living room which she did but he later told her to sleep in their bedroom as he was leaving to the police station. The victim went to sleep in their parents' bedroom and the accused but returned shortly thereafter and went straight to the bedroom. 10.The minor told court that he begun touching her all over her body and removed her clothes. She told court that she let out a scream but the Appellant slapped her and threatened her. He then did bad manners to her. She told court that he inserted his penis into her vagina. That when the Appellant was done he kicked her out of the bedroom and she went back to her bed. 11.PW2 told court that Wendy, her younger sister was awake and knew what had happened. PW2 identified her clothes which were blood stained in court. She further stated that she had not begun her menses and the blood was from the injuries sustained. Her mother took her to hospital when she was informed by Aunty Gladys and the minor was treated. 12.On cross examination, the minor denied that she was coached by her mother to lie against him in court. She confirmed that it was true that the Appellant had differences with her mother but they had no differences between them. 13.PW3 was one Gladys Awino who is a close neighbour. She confirmed that heard a child’s scream come from the Appellant’s home. She therefore called wife to the Appellant (PW4) to confirm if all was well and that is when she learnt that PW4 had not spent the night at home. 14.PW4 was the victim's mother and wife to the Appellant. She testified that she had left her children home and asleep after having an altercation with her husband, who chased her away from home. She spent the night at a neighbour’s place. The neighbour was one Mary. She told court that she heard a child’s cry from a distance and was later called by one Gladys who also heard the cry and told her she was not at home. 15.The following morning as she went home, she met with the complainant on her way to school. According to her, the complainant was not walking properly but she was cautious and did not asks whether she was okay. When she got home, that is when Wendy (PW5) told her what had happened. She told court that Wendy informed her that their father had called the complainant to the parents' bedroom and she heard her crying. 16.PW4 told court that the complainant also went to school and reported to her class teacher and head teacher and she was questioned and narrated what the Appellant had done to her. PW4 took the minor to hospital and defilement was confirmed. The matter was reported at Maraboi Police station and later had the Appellant was arrested and charged. 17.PW4 identified the treatment notes and P3 form and also produced the minor’s birth certificate in court indicating that the minor was born on the 6th April 2012. On cross examination PW4 denied that she was using this case to get back at the Appellant for their disagreements. 18.PW5 was one WW, a sister to the minor. She corroborated most of the testimony of the complainant. That their parents had a fight and the Appellant chased her away and later in the night the Appellant called the complainant to his bedroom. That she heard the complainant cry and the Appellant threatened that if she tells anyone what had happened, he would kill her. That the complainant returned to their bed while crying. That the following day their mother came to find out what had happened and she told her that the Appellant did bad manners to the complainant. 19.PW6 was the investigating officer based at Maraboi Police patrol base. He received the report of defilement and referred the victim to hospital. That he later received the accused who was arrested and brought to the station by irate members of the public. He was also escorted to hospital at Sondu where he was examined. He recorded the witness statements and later charged him with this offence. 20.In his defence, the Appellant gave sworn evidence. He did not call any witness. He denied having committed this offence and blamed his wife claiming that she had trumped the charges because of their differences. He claimed that she coached the minor. Appellant’s Submissions 21.The Appellant submitted that the there was no proof of defilement. He indicated that the wife had coached the minor to teach him a lesson for their differences. 22.His submission is that the evidence led by the prosecution was also contradictory and the court erred in founding a conviction on the said submissions. 23.The Appellant further submitted that his defence that this was a frameup was not considered. He submitted that the charges herein were fabricated just because of the differences with the PW4. Respondent’s Submissions 24.In opposing the appeal, the Respondent submitted that all the elements to sustain a conviction for the offence of defilement were proved by the prosecution. According to Respondent, the complainant was 11 years of age which was proved by the Birth Certificate which indicated she was born on 6th April, 2012. 25.On penetration, the prosecution submitted that under Section 2 of the Sexual Offences Act, penetration is defined thus; "The partial or complete insertion of the genital organ of a person into the genital organs of another person. " It submitted that Penetration was proved by medical evidence from PW1 and corroborated by the evidence of the minor and the stained clothing. 26.On the question of identity, the Respondent submitted that the victim and PW3, PW4 and PW5 knew the Appellant well and told court that he is the stepfather of PW2 and spouse of PW4 and father to PW5. They all lived under one roof. They told court that the incident took place in the house where they all live and on the bed of the Appellant. This was therefore not a question of recognition but a person well known to the victim and the witnesses. 27.On the alleged inconsistencies to the prosecution evidence, the Respondent submitted that there were no inconsistencies. They submitted that the testimony of PW2 was corroborated by the medical evidence. Analysis and Determination 28.The role of this Court as the first Appellate Court is well settled. It was held in the case of Okemo vs. R (1977) EALR 32 and further in the Court of Appeal case of Mark Oiruri Mose vs. R (2013) eKLR that this Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyse it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing them give evidence and give allowance for that. 29.Having reviewed the record, the grounds of the appeal and the submissions filed by the respective parties, I frame the following issues for determination:-i.Whether the offence of defilement was proven to the required standard.ii.Whether the learned trial magistrate erred in law and facts in failing to consider the defence of the Appellant and the contradictions and gaps in the evidence of the prosecution witnesses.iii.Whether the sentence is excessively high. 30.In a charge of defilement, the prosecution must prove 3 elements being, the age of the victim, penetration and proper identification of the perpetrator. In Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013 the court stated that: “The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and identification of the assailant.” 31.On the first ingredient of age, PW4 told court that the minor was born on 6th April, 2012. The birth certificate was produced in court and confirms that PW2 was a minor aged 11 years at the date of the commission of the offence, having been born on 6th April, 2012 and the offence having been committed on 8th June, 2023. I find that the Prosecution had proved that indeed the victim of this offence was a child aged 11 years. 32.On the second ingredient of penetration, Section 2(1) of the Sexual Offences Act defines penetration as: “The partial or complete insertion of the genital organs of a person into the genital organ of another person.” 33.In the instant case PW2, PW4 and PW5 testified that the Appellant had directed the minor to his bed and had sexual intercourse with him. Appellant was known to them. PW1 who examined the minor confirmed that indeed there was defilement and the hymen was absent. Indeed, the minor was still bleeding from her vagina as at the time of treatment and examination. PW1 confirmed that the minor was not in her menses and the bleeding was as a result of the injuries inflicted on the minor at the time of commission. 34.The Appellant’s submission is that penetration and defilement had not occurred. However, evidence by the prosecution clearly indicates that indeed there was penetration as testified by the minor and the clinical officer. 35.On the issue of identification of the perpetrator, PW2, PW3, PW4 and PW5 testified that the Appellant was the stepfather of the minor, which the Appellant has not denied. The court finds that this is sufficient evidence for identification/or recognition because the Appellant was known to the witnesses. The minor, PW3, PW4 and PW5 having known the Appellant had no chance of mistaking him for any other person. 36.And for those reasons, this court thus finds that the prosecution proved beyond reasonable doubt the elements of defilement. Whether there were inconsistencies in the Prosecution evidence 37.I have considered this submission by the Appellant, where he submits that there were inconsistencies in the prosecution evidence. I have not noted any contradiction in any of the prosecution evidence. However, even if there were any inconsistencies, my view is that these are too minor and would not affect the core evidence on whether defilement had taken place. In any event, the court of Appeal while discussing the issue of contradictory evidence had this to say in Peter Ngure Mwangi vs Republic (2104) eKRL : -“We, therefore find that on the totality of the evidence before us, any difference there may have been in the evidence adduced by the prosecution consisted of minor discrepancies and inconsistencies. We find that these were not material and did not weaken the probative value of the evidence tendered by the prosecution in support of their case.” 38.I find that the Appellant has not been able to demonstrate that there were inconsistencies on the prosecution case that affected the probative value of the evidence. 39.The Appellant had further submitted that the trial court failed to consider his defence that these are trumped up charges because of the differences with PW4. I have considered the submission by the Appellant and I find that the minor had no differences with the Appellant and the court only relied on her testimony and that of the clinical officer. Similarly, the minor told court that she had not been coached on what tell the court. For those reasons I would have no reason whatsoever to interfere with the findings of the trial Magistrate. Whether the sentence imposed was excessive 40.The penalty for the offence of defilement of a child of fourteen years is provided under Section 8(2) of the Sexual Offences Act which states that: “A person who commits an offence defilement with a child aged eleven years or less is liable upon conviction be sentenced to life imprisonment. 41.In the instant case, the trial court noted the mitigation of the appellant and considered the same and proceeded to sentence him to life imprisonment. The trial court exercised its discretion in imposing the sentence. The sentence was appropriate in the circumstances. 42.In the Court of Appeal case of Bernard Kimani Gacheru vs. Republic [2002] eKLR it was stated as follows:-“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, the sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with the sentence unless that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor 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 any one of the matters already stated is shown to exist.” 43.I take cognisance of the discretion of the trial court and also the circumstances of the victim herein. The victim is a child aged 11 years and a step daughter of the Appellant. The Appellant took advantage of the minor, who he should have been protecting and defiled her. He breached the trust the child had in him as the step father. Considering this, the provisions of the law and the role of the trial court, this court will not interfere with the sentence imposed by the trial court. 44.In the upshot, I find that the appeal herein lacks merit and is dismissed. The conviction and sentence by the trial court are upheld. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 3RD DAY OF JULY 2026.…………………………..………………L. M. WACHIRAJUDGEIn the presence of:Leadsy – Court assistantAppellant – present in person (virtually from Kisumu Max.)Ms Jebichi - for the State/Respondent.