https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7458

Otin v Republic (Criminal Appeal E066 of 2025) [2026] KEHC 7458 (KLR) (29 May 2026) (Judgment) Neutral citation: [2026] KEHC 7458 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E066 of 2025 A Mabeya, J May 29, 2026 Between Philip Mala Otin Appellant and Republic Respondent (Being an appeal from the conviction and sentence of Hon. F. M. Rashid SPM delivered on the 26/6/2025 in Kisumu MCSO Case No. 003 of 2025, R. vs Philip Mala Otin) Judgment 1.On 27/1/2025, Philip Mala Otin, (‘the appellant’) was arraigned before the Kisumu Chief Magistrate’s Court with a charge of defilement contrary to section 8(1) as read with 8(40 of the Sexual Offences Act No. 3 of 2006. 2.It was alleged that during the month of November, 2024 and 23/1/2025, in Kisumu Central Sub-County within Kisumu County, he intentionally caused his penis to penetrate the genital organ of CAO a child of 16 years. 3.He also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act. The allegation was that on the days referred to above, he caused his penis to touch the vagina of the named child. 4.He denied the charge. After trial, he was found guilty, convicted of the main charge and sentenced to 15 years’ imprisonment. 5.Aggrieved by the said decision, he lodged his Petition of Appeal dated 4/7/2025 setting out 4 grounds that can be summarized into three; thus; that the trial court erred in failing to find that the prosecution had not proved its case; that it wrongly relied on contradictory evidence and that the sentence imposed was excessive. 6.This being a first appellate court, it is duty bound to reassess and analyse the evidence afresh and come to its own independent conclusions and findings. (see Okeno vs Republic 1972 EA 32). 7.Before the trial court, the prosecution case was that the complainant (Pw1) was a grade 8 pupil. In November, 2024, she went to take her clothes from the dhobis kibanda operated by the appellant when the appellant defiled her in his kibanda. 8.On 23/1/2025 while coming from school, the appellant told her to go home and remove her uniform and return. That evening, her mother, Pw2 sent her for medication. The complainant went to the appellant’s house where they ate fish and ugali together. The appellant then defiled her. When she tried to scream, he closed her mouth and threatened her. When going home at about 8.00pm, she met Pw2 who questioner her of her whereabouts. 9.Pw1 then led her mother Pw2 to the appellant’s house. Pw1 confided to Pw2 that the appellant had defiled her. They proceeded to the village elder and later to the police. The mother produced the complainant’s Birth Certificate which showed that she was born on 25/6/2008 as PExh4 and a Report Card from Pand Pieri Junior School as PExh5. 10.Julius Otieno Masime Pw3, a community policing elder with the Chief in Nyalenda was in his house on the material night when Pw1, Pw2, two other boys and the appellant came calling at about 9.00pm. They accused the appellant of having defiled Pw1. They took the appellant to the Police Station. The following day, he accompanied the Police and appellant to the appellant’s house which was photographed. 11.Kezia Tanui (Pw4) a Clinical officer at JOOTRH told the Court how she examined the complainant on 24/1/2025 at about 12.00pm. The child told her how the appellant had previously defiled her in November, 2024. On examination, she found that the complainant had normal outer genital and whitish discharge on the vagina and a bruise 6 O’clock with a broken hymen. The lab tests confirmed that the complainant had been defiled. 12.No. xxxxx Sergeant Salome Nafula (Pw5) investigated the case. When she interrogated the complainant, the latter revealed to her that the appellant had sex with her on 1/11/2024 and 31/11/2024, respectively. That this also occurred on 1/12/2024 and 30/12/2024. That on 23/1/2025 at 6.00pm, the appellant asked the complainant to go to his house. When she went there, they ate together before the appellant defiled her. He gave the complainant Kshs.20 to buy snacks in school. Pw5 then escorted the complainant to JOOTRH for medical examination. She later visited the appellant’s house and recovered a bedsheet and white linen cloth which the appellant is alleged to have used to wipe out his penis after having had sex with the child. The bed sheet and photos were produced as PExh1 and 3, respectively. 13.When placed on his defence, the appellant denied both the main charge and the alternative one. He admitted that he was a Dhobi by profession. That he was doing his Dhobi business in a kibanda which was a distance away from where he lives. That the kibanda neighbours others and nothing could happen therein without the neighbours hearing. 14.The Court has considered the record and the submissions on record. The appellant faced a charge of defilement. In order to prove the same, the prosecution had to prove three ingredients; the age of the victim, the act of penetration and that the perpetrator was the accused. 15.The foregoing is discernible from section 8(1) as read with section 8(4) of the Sexual Offences Act which provides: -“8(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.8(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 16.The age of the victim is essential because the offence of defilement is committed against a child of under the age of 18 years. In addition, the age of the victim is an aggravating factor for purposes of sentencing under the Sexual Offences Act. The younger the victim, the more severe the sentence. 17.In the present case, the victim testified that she was 16 years old. Pw2, the mother told the Court that the victim was 16 years old and produced the Birth Certificate as PExh4 which showed that the victim was born on 25/6/2008. This proved the victim’s age to be 16 years. 18.In Mwalengo Chichoro Mwajembe vs Republic, Msa Appln No. 24 of 2015 (UR) quoted with approval in JWM vs Republic (2026) KEHC 674 (KLR), it was held thus: -“…the question of proof of age has finally been settled by decisions of this Court to the effect that it can be proved by documentary evidence such as birth certificate, baptism card or by oral evidence if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof…” 19.In the present case, both the oral and documentary evidence proved the age of victim to be 16 years. The age of the victim was therefore proved satisfactorily. 20.The second element is penetration. Penetration is defined under section 2 of the Act as follows: -“the partial or complete insertion of the genital organ of a person into the genital organ of another person.” 21.The complainant testified that the appellant had sexual intercourse with her on 3 occasions. In November, 2024, December, 2024 and on 23/1/2025. She explained that in all occasions, the appellant removed her clothes, inserted his penis into her vagina and defiled her. She was more vivid on how it occurred on 23/1/2025 when he called her to his house, they had dinner together then he defiled her. 22.Pw4 who examined the victim at JOOTRH the following day testified that, on examination, the outer genital was normal, the vagina had whitish discharge and a bruise 6 O’clock, the hymen was broken. She concluded from the lab tests that the victim had been penetrated. This evidence was consistent with that of the victim. It was not displaced. This Court is satisfied that the second element of the offence was satisfactorily proved. 23.The last element is the perpetrator. The victim testified that it is the appellant who defiled her. She knew him as Dhobi Otin. She had been taking clothes to him and that after the first incident, he offered to be washing her clothes for free. This was a case of the victim knowing the perpetrator very well. She stated that the latter two incidents happened in the appellant’s house whom she knew very well as she was studying with his children. 24.In his defence, the appellant admitted that he was in the business of laundry. He was a dhobi as the victim had told both her mother Pw2 and Pw4, the clinician who examined her at JOOTRH. There was no room for confusion. The Court is satisfied that the appellant was positively identified as the perpetrator and that element was proved beyond reasonable doubt. 25.The other ground of appeal was that the trial court erred in conviction the appellant on contradictory evidence. The appellant did not specify what or where the alleged contradictions were. Having carefully considered the record, this Court has not been able to discern or see any contradictions that could warrant upsetting the trial court’s findings. In any event, even if there were any such contradictions, the same were not material enough to warrant upsetting the conclusions arrived at by the trial court. See the case of MTG vs Republic (2022) KEHC 189 (KLR). 26.After careful consideration of the foregoing, I find that the appellant’s conviction was safe. Accordingly, I uphold the same. 27.The last challenge was that the sentence imposed was excessive. Having found the appellant guilty of the main charge of defilement, the trial court sentenced him to 15 years imprisonment. 28.Section 8(4) of the Sexual Offences Act provides: -“A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” 29.It is clear that the trial court sentenced the appellant to the minimum sentence provided for in the law. There is no ground to interfere with the same. 30.Accordingly, the Court finds that the appellant’s appeal is without merit and is hereby dismissed.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 29TH DAY OF MAY, 2026.A. MABEYA, FCI ArbJUDGE