https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8192

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CRIMINAL APPEAL NO E019 OF 2025** **JOHN OYINDO ALIAS JUNIOR………………………………………..APPELLANT** **VERSUS** **REPUBLIC………………………………………………………………..RESPONDENT** *(Being an Appeal from the Judgment of Hon P. Karimi (RM) delivered at Vihiga in the Principal Magistrate’s Court in Sexual Offence Case No E034 of 2024 on 26th November 2024)* **Coram: Before Justice R. Nyakundi** **Mr. Leina Davies for the ODPP** **JUDGMENT** 1. The Appellant herein was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that John Oyindo Alias Junior on the 2nd day of June 2024 at Luanda Town in Luanda Sub County within Vihiga County, intentionally and unlawfully caused his penis to penetrate the vagina of S.R.A a child aged 13 years. He was also charged with an alternative charge of the offence of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act. 2. The Appellant was tried and convicted of the offence of defilement and was sentenced to twenty (20) years imprisonment. 3. Being dissatisfied with the said Judgement delivered on 26th November 2024, the Appellant lodged the Appeal herein. The Appellant filed the Petition of Appeal dated 20th June 2025 based on 2 grounds as follows: - 1. *That the Learned Trial Magistrate erred in both law and fact by conducting proceedings that Violated the rights of the Appellant as per the provisions of the Constitution of Kenya hence null and void.* 2. *That the Learned Trial Magistrate failed to observe that the circumstances surrounding this case were favourable for such incidence to take place.* 4. The Appellant sought the following orders from the Petition of Appeal: - 1. *Conviction be quashed* 2. *Sentence be set aside* 3. *The Appellant be set at liberty.* 5. The Appellant also filed Amended Grounds of Appeal dated 9th December 2025 which can be summarised as follows: - 1. *That the Learned Trial Magistrate erred in both law and fact to establish that the prosecution did not prove the case beyond reasonable doubt despite glaring contradicting evidence by the prosecution witness.* 2. *That the Learned Trial Magistrate erred in law and in facts by failing to make a finding that the prosecution deliberately avoided to avail some key witnesses and evidence.* 3. *That the appellant’s right to fair and impartial trial as enshrined under Article 25(c) of the Constitution was violated.* 4. *That the Learned Trial magistrate failed to address the following issues: -* 6. *Age of the Complainant* 7. *Proof of penetration* 8. *Positive identification of the offender.* 9. The Appeal was canvassed by way of written submissions. **Appellant’s Written Submissions** 1. The Appellant filed his written submissions dated 9th December 2025. On the issue of age, the Appellant submitted that the trial magistrate erred in law and in fact by failing to observe that the prosecution had failed to prove the age of the victim. In this regard, he placed reliance on the case of **Arthur Mshila Manga Vs Republic Criminal Appeal No 24 of 2014** where it was held that age of a child was not proved beyond reasonable doubt as required by the law and the cases of **Kangu Ellias Kasomo vs Republic Criminal Appeal No 504 of 2010** and **Hudson Alimwa Chungu vs Republic Criminal Appeal No 65 of 2015** where the common thread was that where there was doubt as to the age of the victim, the benefit of doubt should be given to the accused person. 2. He argued that the Complainant, SRA (hereinafter referred to as “PW 1”) was not sure of her age and that copy of the birth certificate produced did not prove the authenticity of her document than its originality. He added that No 237739 PC Hellen Chepkomoi (hereinafter referred to as “PW 3”) produced the said document by dint of Section 77(3) of the Evidence Act but could not be cross-examined as she was not the maker. 3. On the issue of identification, the Appellant submitted that the evidence identifying him was weak and uncorroborated. He argued that there was no DNA test to link him to the offence. He added that the circumstantial evidence surrounding the offence was unfavorable for his identification. He asserted that although it was alleged that the incident took place at about 10.00pm in the night, there was no investigation diary alleging that he was found by people who brought PW1 to the police. 4. It was his contention that the burden of proof rested on the prosecution as was held in the case of **Victor Mwendwa Mulinge Vs Republic** (citation not given) and **Karanja Vs Republic (1983)**. He invoked Articles 27(1) and (2) of the Constitution of Kenya, 2010 and noted that men are discriminated against as many of them are accused of defilement and end up rotting in jail because of circumstantial evidence. 5. He faulted the prosecution for having failed to bring vital witnesses to Court and placed reliance on the cases of **Bukenya & Others Vs Uganda (1972) EA 549** where it was held that the prosecution had a duty to call witnesses necessary to establish the truth and **Kingi Ole Yenko Vs Republic 1121 (1921**) where it was held that failure to avail crucial witnesses give the impression that the evidence would have been prejudicial. 6. On the issue of penetration, the Appellant submitted that the Medical Report failed to establish any torn hymen or injury consistent with recent sexual intercourse and that the testimony of Michael Ochieng Otieno, the Clinical Officer (hereinafter referred to as “PW 2”) was speculative and lacked specificity regarding the degree or cause of the alleged injuries. He added that PW1’s testimony was inconsistent and lacked corroboration. He relied on the cases of **Joseph Machoka Mabwabu vs Republic HCCRA No. 126 of 2013** and **Canadian Case of the Queen vs Manuel Vincent Quintanilla 199 AB2B 769** where the common thread was that a missing hymen was not conclusive proof of penetration. He was emphatic that PW1 was an untruthful witness. In this regard, he relied on several cases among them the cases of **Richard Aspella Vs Republic Appeal No 45 of 1981** where it was held that two (2) contradictory statements could not be admitted in a Court of law. He was emphatic that penetration was thus not proved beyond doubt. **Respondent’s Written Submissions** 1. The Respondent filed its written submissions dated 6th February 2026. On the issue of age, the Respondent submitted that the Charge Sheet indicated that PW1 was thirteen (13) years of age at the time of the commission of the offence. It relied on the case of **Musyoki Mwakavi Vs Republic [2014] eKLR** where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense. 2. It pointed out that PW1 testified that she was aged twelve (12) years and that PW3 produced a Birth Certificate which indicated that PW1 was born on 4th March 2012 and, therefore, a minor at the time of the commission of the offence. It argued that as the Appellant did not rebut this evidence at all, therefore, it had proved the ingredient of age beyond reasonable doubt. 3. On the issue of penetration, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of **Mohammed Omar Mohammed Vs Republic [2020] eKLR** where it was held that the key evidence relied upon by the Courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the Medical Officer. It submitted that the evidence of PW 1 was corroborated by that of PW2 and that penetration was, therefore, proved. 4. It further asserted that the inconsistencies and contradictions did not go into the core of the case and that the variance in itself did not in any manner distort or dislodge the commission of the offense as was held in the case of **S.O.O Vs Republic [2018] eKLR** which cited the Tanzanian case of **Dickson Elia Nsamba Shapwata & Another vs The Republic Criminal App No 92 of 2007.** **Analysis and Determination** 1. It is settled law that the duty of a first appellate Court is to evaluate afresh the evidence adduced before the trial Court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. The duty of a first appellate Court was authoritatively stated by the Supreme Court of India in the case of **K. Anbazhagan Vs State of Karnataka and Others Criminal Appeal No. 637 of 2015** where a Three-Judge Bench addressing the manner of exercise of jurisdiction by the appellate Court while deciding an appeal ruled that: - *“The appellate Court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely, ...........The appellate Court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind – sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”* 1. I have read and considered the Appellant’s Amended Grounds of Appeal, his Written Submissions and those of the Respondent. This Court notes that there are two (2) issues for determination: - 1. *Whether the Prosecution proved its case beyond reasonable doubt* 2. *Whether in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted.* **Whether the Prosecution proved its case beyond reasonable doubt** 1. Amended Grounds of Appeal No (1), (2), (3) and (4) are dealt with under this head. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this Court will consider the ingredients of the offence of defilement. 2. The act of defilement is defined by Section 8 (1) of the [Sexual Offences Act](https://new.kenyalaw.org/akn/ke/act/2006/3) that provide thus: *A person who commits an act which causes penetration with a child is guilty of an offence termed defilement*. The Ingredients of defilement were stated in the case of [**Charles Wamukoya Karani Vs Republic**](http://kenyalaw.org/caselaw/cases/view/111971)**, Criminal Appeal No. 72 of 2013** where Court delivered itself thus: - *“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.”* * 1. **Age** 1. This Court had due regard to the case of **Kaingu Elias Kasomo vs Republic Criminal Case No. 504 of 2010** where the Court of Appeal stated that the age of a minor in a charge of defilement could be proved by medical evidence and documents such as baptism cards, school leaving certificates.It can also be proved by the victim’s parents or guardian and observation or common sense as was held in the case of **Musyoki Mwakavi Vs Republic**(Supra). 2. Further, in the case of **Hadson Ali Mwachongo Vs Republic (2016) eKLR**, the Court of Appeal stated that: - “The importance of proving the age of a victim of defilement under the Sexual Offences Act by cogent evidence cannot be gainsaid. It is not in doubt that the age of the victim is an essential ingredient of the offence of defilement and forms an important part of the charge because the prescribed sentence is dependent on the age of victim. In **Alfayo Gombe Okello Vs Republic Cr. App. No. 203 of 2009 (Kisumu),** this Court stated as follows; “In its wisdom Parliament chose to categorize the gravity of that offence on the basis of the age of the victim, and consequently the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under Section 8(1).” 1. In the instant case, PW3 tendered in evidence the Birth Certificate which indicated that PW1 was born on 4th March 2012. The incident happened on 2nd June 2024, which meant that she was approximately twelve (12) years of age. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut this evidence by adducing evidence to the contrary, this Court is satisfied that PW1’s age was proven and that she was a child at all material times. 2. **Identification** 3. A perusal of the proceedings shows that PW1 told the Trial Court that on the material day of 2nd June 2024 at around 10. 00p.m, she was on the road from her aunt’s home in Epanga heading towards Coptic Hospital to see her aunt when at around Tripple T Hotel, a strange man stopped and asked her where she was going. When she refused to respond the man held her by her hand and said that he would let her go in the morning after spending in his house. 4. It was her further testimony that there were some young men crossing the road and when the man saw them, he released her hand. She said that she kept walking on and when she got near the police station, one of the young men who crossed the road ran after her and told her that he wanted to escort her home. They started walking together towards Coptic and that the young man told her to use the shortcut and he started touching her up. They got to the tarmac road and crossed heading towards homeland and that the young man took her blue shuka (sic) and lay it on the ground and asked her to lay her head on it and lifted her skirt, took of her underwear, pulled off his shorts and had sexual intercourse with her. 5. She added that he had touched her on the breasts and private parts. She further stated that when he was done, he advised her to go back to his work place where he also used to sleep with his brother. They slept that night and in the morning, they gave her breakfast. When the man left, she narrated her story to his brother who reported to his employer who came and took her to Luanda Police Station to record statements and was later sent to Coptic Hospital where she was examined. 6. This Court noted that PW1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 Laws of Kenya, a trial Court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth. 7. Notably, the proviso of Section 124 of the Evidence Act states that: - *“Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that Section on behalf of the prosecution in proceedings against any person for an offence, the accused 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 victim of the offence, the Court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the Court is satisfied that the alleged victim is telling the truth (emphasis).”* 1. Even so, a trial Court is required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence such as proof of penetration could assist the trial or appellate Court to come with a determination as to who between the opposing witnesses was being truthful. The Courts have held that evidence of recognition is far much more reliable than mere identification alone. This was well enunciated in the case of **Anjoroni Vs Republic 1980 KLR 59** to deal with the issue of identification of a stranger. The Court of Appeal observed that; *“Recognition of an assailant is more satisfactory, more assuring and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or the other.”* 1. PW1 positively identified the Appellant as the perpetrator of the offence. Although they had met as strangers on the material time and day, they spent a long period of time together as after the defilement, the Appellant took PW1 to his workplace and abode and even gave her breakfast in the morning. In his defence, the Appellant confirmed that indeed PW1 was his nephew. There could not, therefore, have been any possibility of a mistaken identity of the Appellant. This Court thus comes to a firm conclusion that the Prosecution proved the ingredient of identification which was by recognition. The Appellant’s assertion that the prosecution failed to bring vital witnesses to Court was neither here nor there as the witnesses that were called upon were sufficient to establish the charge. 2. **Penetration** 3. Notably, PW3 testified that on examination of PW1, she had a broken hymen with whitish discharge. He added that she had no bruises but that the age of the injury was sixteen (16) hours and that the lab tests proved that there had been penetration as there were several epithelial cells in her urine and high vaginal swab. He opined that the object used to inflict the injury was a human penis. He classified the injuries as harm. 4. In his defence, the Appellant denied the charges. He said he went back home at around midnight and slept. He added that the next day he woke up to go to work when he was later arrested. In **Julius Kioko Kivuva Vs Republic [2015] eKLR** the Court held as follows: - *“The complainant (PW1) testified as follows in this regard:* *“The accused removed my pant and my skirt. I also had a black biker which he also removed. He did not use a condom. We had sex twice that night. We slept upto 9.00 a.m the following day”PW1’s testimony in this regard was not specific as to the act of penetration; and her evidence of having sex does not necessarily prove that penetration took place, in the absence of further evidence and details as to what actually happened in the act of having that sex. Evidence of sensory details, such as what a victim heard, saw, felt, and even smelled, is highly relevant evidence to prove the element of penetration, as a victim’s testimony is the best way to establish this element in most cases. The specificity of this category of evidence, even though it may be traumatic, strengthens the credibility of any witness’s testimony, and is particularly powerful when the ability to prove a charge rests with the victim’s testimony and credibility as it does in this appeal.”* 1. In the instant case, PW1’s evidence was corroborated by the scientific evidence of PW3. The Appellant’s defence was simply a denial. His evidence was not watertight enough to have displaced the Prosecution’s inference of guilt on his part. His argument that the case was full of contradictions or that he was framed thus fell by the wayside. As had been stated hereinabove, any contradictions or inconsistencies were insignificant and did not affect the inference of guilt on his part. The witnesses who were called by Prosecution adduced sufficient evidence to establish the charge. 2. This Court thus finds that the Prosecution had proven its case to the required standard, which in criminal cases, was proof beyond reasonable doubt that the Appellant defiled PW1 on the material date as there was proof of defilement as PW3 testified. In the premises, ground of Appeal No (1), (2), (3) and (4) are not merited and the same be and are hereby dismissed. **Whether the sentence meted upon the Appellant was harsh and excessive?** 1. The Appellant did not raise the issue of sentence as a ground of appeal herein. For completeness of record, this Court deemed it prudent to consider the legality or otherwise of his sentence. On its part, the Respondent invoked Section 8(3) of the Sexual Offences Act and Section 329 of the Criminal Procedure Code and placed reliance on the case of **Supreme Court Petition No E018 of 2023 Republic Vs Joshua Gichuki Mwangi** where it was held that it was Parliament and not Judiciary that set the parameters of sentencing for each crime. 2. It also relied on the case of **Shadrack Kipchoge Kogo Vs Republic Criminal Appeal No 253 of 2003** where it was held that: - *Sentence was essentially an exercise of the trial Court and for this Court to interfere it must be shown that in passing the sentence, the Court took into account an irrelevant factor or that a wrong principle was applied or short of those the sentence was so harsh and excessive that an error in principle must be inferred.* 1. The Prosecution argued that the Trial Court took into account the evidence, the nature of the offence and the circumstances of the case in arriving at appropriate sentence. It added that the Appellant’s sentence was lawful and that he had not shown why this Court should interfere with the same. The Appellant herein was sentenced under Section 8(3) of the Sexual Offences Act Cap 63 A Laws of Kenya. The same provides as follows: *“A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.”* 1. This Court could not, therefore, fault the Trial Court for having sentenced the Appellant herein to twenty (20) years imprisonment as that was lawful.This Court cannot mete out against the Appellant herein a lower sentence than what was prescribed in the law. In the case of **Joshua Gichuki Mwangi Vs Republic [2022] eKLR**, where the Court of Appeal reiterated the reasoning in the case of **Dismas Wafula Kilwake Vs Republic [2018] eKLR** where it held that: - *Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the Court in sentencing offences and held that it was impermissible for the legislature to take away the discretion of Courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence.* 1. However, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case **Joshua Gichuki Mwangi Vs Republic (Supra)** and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. The Supreme Court directed the relevant organs to abide by its decision noting that the Appellant therein had since been released from prison. In the premises, this Court’s hands are tied from interfering with the Appellant’s sentence meted at the trial Court. 2. In view of the foregoing, the Appellant’s Amended Grounds of Appeal dated 9th December 2025 and filed on 16th December 2025 are not merited and the same are hereby dismissed. The Appellant’s conviction and sentence be and are hereby upheld as they were safe within the parameters of the law. It is so ordered. **DATED AND DELIVERED AT VIHIGA VIA CTS THIS 9TH DAY OF JUNE 2026** **…………………………………..** **R. NYAKUNDI** **JUDGE**