https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1657

Owino v Republic (Criminal Appeal E296 of 2022) [2026] KECA 1657 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1657 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E296 of 2022 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Samwel dalon Owino Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisumu (Chemitei J.) dated 6th May 2013 in HCCRA No. 156 of 2011) Judgment 1.This is an appeal by Samwel Dalon Owino (the appellant) against the judgment of the High Court of Kenya at Kisumu (Chemitei J.) (the first appellate court), dated 6th May 2013 which upheld the appellant’s conviction and sentence in Criminal Appeal No.156 of 2011. 2.The appellant had been charged before the Senior Resident Magistrate’s Court at Bondo (the trial court) with defilement contrary to section 8(1) as read together with section 8(3) of the Sexual Offences Act, in Sexual Offence Case No.965 of 2010. Particulars of the offence before the trial court were that on the 22nd May 2010 at [particulars withheld], the appellant defiled [particulars withheld], a child aged 15 years. 3.The appellant was also charged with an alternative count of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act, particulars being that on the same day and place, he intentionally and unlawfully committed an indecent act by touching the breasts and the genitalia of a child aged 15 years. The appellant denied the charges. 4.The prosecution called six (6) witnesses; Dr. Peter Omondi Oyiro (PW1) examined the complainant and found a bruise on the inner left layer and at the entrance of the complainant’s genitalia; the hymen was torn and there was a thick whitish substance with a foul smell, a sign of bacterial infection. He opined that there was penetration and that the age assessment test indicated that the complainant was below 18 years. 5.PW2, the complainant, stated that she was born in 1994; that on the material day while at home, PW 6 came and informed her that the appellant wanted to see her; PW6 escorted the complainant to the appellant's house where the appellant forced her into the house and defiled her. She went home bleeding; took a bath and later informed her mother what had transpired. A report was made to the Beach management leader who apprehended the appellant. The complainant and the appellant were then escorted to the police station and they were later taken to hospital for medical examination. 6.Samuel Olal Oyuke, (PW3) the complainant's father received a report from his wife on 23rd May 2010 about the defilement by the appellant who lived a few meters from their home. PW3 went with the Beach Management Unit chairman to look for the appellant and reported the matter to the police. He also testified that the complainant was born in 1995 but he did not have her birth certificate, while the testimony of PW4 was similar to that of PW3 with regard to the apprehension of the appellant. 7.The testimony of Police Constable Johana Lengandu, (PW5) and the investigating officer, was that following the report of defilement, he rearrested the appellant; recorded witness statements; escorted the appellant and the complainant to hospital for medical examination and later charged the appellant, while Lillian Onyango (PW6) stated that a boy requested her to call the complainant which she did and thereafter went about her business. Later that evening she saw the appellant and the complainant in a maize plantation; that she was arrested the following day; taken to the beach office and later to the police station. 8.In his sworn defence, the appellant denied defiling the complainant and stated that he was called by the Beach leader on 25th May 2010 who instructed him to go to a particular house where he was asked whether he knew the complainant which he denied. He was detained until the following morning when he was taken to Bondo Police Station. 9.Upon considering the evidence, the trial court was satisfied that the prosecution had proved the ingredients of the offence beyond reasonable, convicted the appellant on the main count and sentenced him to twenty five 25 years imprisonment. 10.The appellant was aggrieved by both the conviction and sentence and filed an appeal before the first appellate court faulting the trial court in: relying on hearsay evidence of the complainant's father (PW3) to convict him; finding him guilty notwithstanding the absence of medical evidence linking him to the offence; failing to appreciate the material contradictions and discrepancies in the prosecution witnesses’ evidence, thereby violating his constitutional rights and improperly rejecting his unshaken alibi defence without assigning sufficient reasons. Upon reevaluating and reconsidering the evidence, the first appellate court was also satisfied that the ingredients of the offence were proved beyond reasonable doubt and dismissed the appeal. 11.The appellant was once again dissatisfied with the decision of the first appellate court, and has now lodged this second appeal raising several grounds contending that the first appellate court erred in: failing to properly discharge the duty of a first appellate court to independently re-evaluating and analyzing the evidence on record; upholding a conviction that was not proved beyond reasonable doubt; relying on contradictory and inconsistent prosecution evidence; failing to adequately consider his defence; upholding the conviction without sufficient corroborative evidence thereby occasioning a miscarriage of justice; failing to address the alleged violation of his constitutional right to a fair trial under Article 50 of the Constitution; affirming the sentence of 25 years' imprisonment which is manifestly excessive in the circumstances and failing to properly consider his mitigation. 12.When this appeal came up for plenary hearing through the Court’s virtual platform, Mr. Rekewa, learned counsel appeared for the appellant while Ms. Mumu, learned prosecution counsel was present for the respondent. The appellant appeared from prison through video link. Both counsel relied on their written submissions entirely. 13.Mr. Rekewa submitted that the first appellate court failed to discharge its first appellate court’s duty to reevaluate and reconsider the evidence; overlooked material evidentiary gaps in the prosecution's case; that the trial court, in particular, failed to appreciate that age assessment is key, where there is a dispute regarding the complainant's age, her conduct and the circumstances surrounding the alleged offence; that although the prosecution alleged that the complainant was 15 years old, there was no conclusive proof of her age; that there was no consistent and reliable medical evidence to prove penetration; that the identification of the appellant as the perpetrator was doubtful and incapable of sustaining a safe conviction and that both the trial court and the first appellate court failed to properly consider the appellant's defence and weigh it against the prosecution's evidence, effectively shifting the burden of proof to the appellant contrary to established principles of criminal law. 14.On sentence, counsel submitted that the sentence imposed was harsh, excessive and disproportionate in the circumstances; failed to take into consideration the appellant's mitigation and the period he had spent in custody. Counsel called into aid the cases of Anthony Njuguna Wanjema v Republic [2014] eKLR and Kilwake v Republic [2019] KECA 5 (KLR), for the proposition that an appellate court may interfere with a sentence where the trial court acted on wrong principles or where the sentence is manifestly excessive. 15.In Opposing the appeal, Ms. Mumu submitted that the jurisdiction of this Court in a second appeal is on matters of law only and cited the case of Njoroge v Republic [1982] KLR 388, in support of that submission; counsel maintained that the prosecution proved its case beyond reasonable doubt; that the issue of the complainant's age was not raised before the first appellate court and, therefore, it cannot properly be raised on a second appeal. In any event, counsel argued, the complainant's age was proved through the evidence of PW1 and PW2 and PW3; that penetration was proved through the evidence of PW1 and PW2; and that the appellant was positively identified by PW2 and PW6 and that the appellant has not demonstrated any error of law the first appellate court committed. 16.On the alleged contradictions and inconsistencies in the prosecution's evidence, counsel argued that not every inconsistency is fatal to the prosecution's case and cited the case of Richard Munene v Republic [2014] eKLR, for the proposition that discrepancies would only warrant interference if they are so material as to occasion prejudice to the accused or affect the substance of the prosecution's case. 17.With regard to sentence, counsel submitted that the sentence of 25-year imprisonment imposed by the trial court is lawful and appropriate in the circumstances and relied on the Supreme Court decision in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR), affirming the legality of mandatory sentences. 18.By dint of the provisions of section 361 of the Criminal Procedure Code, we are enjoined to consider only matters of law in a second appeal. We cannot interfere with the decision of the first appellate court on facts unless it is demonstrated that the trial court and the first appellate court considered matters, that they ought not to have considered or failed to consider matters they should have considered, or looking at the evidence as a whole, they were plainly wrong in their decisions, in which case such omission or commission would be treated as matters of law. (Chris Kasamba Karani v Republic [2010] KECA 478 (KLR);Karingo & 2 Others v Republic [1982] KLR 213.) 19.We have considered the grounds of appeal, the record, the submissions tendered on behalf of the parties and the applicable law. The issues we are called upon to determine are whether the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt; whether there were contradictions in the prosecution case and whether the sentence imposed is lawful and proportionate in the circumstances. 20.The appellant was charged with defilement. Pursuant to section 8(1) of the Sexual Offences Act, the offence of defilement comprises committing an act which causes penetration with a child. Section 2 of the same Act adopts the definition of “child” in the Children Act, which defines “child” to means any human being under the age of 18 years. From those definitions, the prosecution was required to prove three key ingredients for it to secure a conviction for defilement, namely; that the victim was a child; that there was penetration and that the accused was the perpetrator of the offence. 21.The complainant told the trial court that she was 15 having been born in 1994. PW3 the complainant’s father testified that the complainant was born in 1995 while PW1 the Doctor stated that the complainant’s her age was assessed to be below 18 years. The trial court was satisfied that the evidence proved the complainant’s age. The issue of age was not raised before the first appellate court and upon reevaluating the evidence the first appellate court was satisfied that the prosecution proved the case against the appellant and dismissed the appeal. The trial court’s record shows that the appellant cross examined PW1, the doctor and the complainant but did not raise the issue. The two courts below having been satisfied regarding the complainant’s age and appellant having not raised the issue before the first appellate court, we are precluded from considering it in this second appeal. 22.With regard to penetration, the complainant testified that the appellant defiled her a fact that was supported by PW1, the doctor who examined the complainant and found a bruise in her genitalia and a torn hymen thereby concluded that penetration had been achieved. Both the trial court and the first appellate court having been satisfied that penetration had been proved, we find no reason to interfere with the concurrent conclusions by the two courts. 23.On whether it was the appellant who defiled the complainant, the complainant was categorical that it was the appellant who defiled her in his house; that the appellant was well known to the complainant and lived not far from their house and PW6 also confirmed that it was the appellant who sent her to call the complainant and subsequently saw them in a maize plantation. Once again, the trial court was satisfied that the appellant was the perpetrator and the first appellate court reevaluated the evidence and came to the same conclusion that the evidence of the complainant and PW6 proved that it was the appellant who defiled the complainant. The first appellate court therefore concluded, just as the trial court did, that the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt. 24.The appellant again argued that the first appellate failed to consider that his rights under Article 50 of the Constitution. The Article guarantees various rights including the right to fair hearing and trial. We have perused the record of appeal and the grounds of appeal the appellant raised before the first appellate court. There was no specific allegation on violation of any of the appellant’s constitutional rights guarantee under Article 50 of the Constitution. The appellant only complained that the trial court failed to consider contradictions and discrepancies in the prosecution witnesses which were purely unconstitutional to his rights. We appreciate that the appellant was representing himself and may not have known how to raise the issue. That notwithstanding, our perusal of the record of the first appellate court shows that the first appellate court considered the evidence afresh including the appellant’s complaint regarding contradictions in the prosecution’s case and concluded that having perused the said evidence, it could not see such discrepancy. We cannot therefore revisit the issue on a second appeal. 25.We have reviewed the judgment of the first appellate and the record of the trial court to satisfy ourselves that the first appellate court discharged the legal obligations of a first appellate court and we are satisfied that it did so and reached an independent conclusion that the prosecution proved the case against the appellant as required by law. We have no reason to interfere with the concurrent findings of fact and conclusions by the two courts below. 26.Regarding sentence, the appellant’s complaint is two-fold, first; that the sentence imposed by the trial court was harsh, excessive and disproportionate, and second; that the trial court did not take into account the period he had spent in custody. 27.The appellant was charged with defilement of a child under Section 8(3) of the Sexual Offences Act which 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.” 28.In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (supra) reaffirmed the legality of the mandatory minimum sentences provided for in the Sexual Offences Act, stating that as long as section 8 of the Sexual Offences Act remains valid, the mandatory minimum sentences are lawful. The Supreme Court went on to state that minimum sentences set the floor rather than the ceiling when it comes to sentences; that what is prescribed is the least severe sentence a court can issue, leaving it open to the discretion of the courts to impose a harsher sentence. 29.Section 8(3) provides for a minimum sentence of 20 years but the trial court has discretion to impose a higher sentence depending on the circumstance of the case. In the appellant’s case, the trial court imposed the sentence of 25 years imprisonment after considering the circumstances of the case before it, a sentence that is lawful and which was affirmed by the first appellate court. The appellant’s argument that the sentence imposed is severe falls outside the purview of our mandate as a second appellate court by virtue of section 361(a) of the Criminal Procedure Act which restricts jurisdiction of this Court in a second appeal to matters of law only and provides that in a second appeal, severity of sentence is a matter of fact. 30.The second limp of attack on sentence is that the trial court and the first appellate court failed to take into account the period the appellant spent in custody during trial as required by section 333(2) of the Criminal Procedure Code. This issue is now moot. This is because the appellant filed Miscellaneous Application No. E002 of 2021-Samwel Dalon Owino v Republic, before the High Court of Kenya at Kisumu, seeking a review of the sentence. That application was heard by Kamau, J. and was allowed on 30th September 2022, to the extent that the period the appellant spent in custody between 24th May 2010 and 20th June 2010 being the dates he was arrested and released on bond respectively, was to be taken into account in computing his sentence, thus the issue is no longer alive for our consideration. 31.In the end, we find no merit in this appeal and we dismiss it in its entirety. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026.ASIKE-MAKHANDIA……………………………JUDGE OF APPEALE.C. MWITA……………………………JUDGE OF APPEALB. ONGAYA……………………………JUDGE OF APPEALI certify that this is a true copy of the original.DEPUTY REGISTRAR