https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11692

Ombedi v Republic (Criminal Appeal E096 of 2025) [2026] KEHC 11692 (KLR) (28 July 2026) (Judgment) Neutral citation: [2026] KEHC 11692 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E096 of 2025 AM Hassan, J July 28, 2026 Between Timothy Ochieng Ombedi Appellant and The Republic Respondent (This Appeal arises from the Judgement of Hon. Jocelyn Kimetto PM’s Court Kombewa dated 25th September, 2025, from MCSO/ E024/2025) Judgment A. Introduction 1.This Appeal arises from the Judgment of Hon. Jocelyn Kimetto PM’s Court Kombewa dated 25th September, 2025, from MCSO/E024/2025. 2.The accused was charged with the offence of Defilement under Section 8(1) and (2) of the Sexual Offences Act No. 3 of 2006. With an alternative charge of committing an indecent act with a child contrary to section 11(1) of the same Act. 3.After consideration of the evidence by the prosecution and the defence, the learned trial magistrate found that the prosecution had discharged their burden of proof to the required standard that the accused is linked to the offence and is found guilty under section 8(1) and (2) of the Sexual Offences Act, and he is convicted of the main charge and the alternative charge is dismissed for lack of proof, and accordingly, the trial court sentenced the accused to life imprisonment. 4.Dissatisfied with the said judgment of the trial court, the Appellant filed grounds of Appeal dated 8th October 2025 and raised the following grounds; 1.That the learned trial magistrate erred in law and facts by convicting the appellant in a prosecution case where investigation was shoddy and not to standard hence incapable of proof of the offence. 2.That the learned trial magistrate erred in law and fact when by convicting the appellant in the prosecution case where penetration was not proved. 3.That the learned trial magistrate erred in law and fact by applying wrong standards of proof in criminal case which was a standard of probability instead of reasonable doubt. 4.That the learned trial magistrate erred in law and fact by convicting the appellant but did not consider the Appellant’s cogent defence. 5.That I pray to be present during the hearing of this appeal. B. Submission By Parties Appellant’s Submissions 5.On the first issue, the Appellant submitted that the investigations conducted were insufficient and incapable of proving the case to the requisite standard of proof beyond reasonable doubt. 6.The Appellant, while referring to the evidence of PW1, questioned why the complainant, who was only 10 years old, initially declined to speak about the alleged incident and why one Moses was the person who reported the matter. The Appellant further contended that the decision to place the minor in police cells amounted to intimidation intended to compel her to make a false statement implicating him. He argued that such conduct contravened Article 50(4) of the Constitution. 7.The Appellant further questioned the disappearance of Moses from the proceedings despite his central role in reporting the alleged offence. He contended that the fact that Moses allegedly visited on the very day the incident occurred suggested a calculated scheme. The Appellant argued that Moses did not testify or adduce any evidence regarding the report he purportedly made and maintained that the prosecution’s explanation for his absence was merely a ploy intended to defeat the ends of justice. 8.The Appellant also relied on the medical evidence, submitting that the findings indicated that the labia majora was intact and that no blood cells were noted. He further argued that the investigating officer’s testimony that the offence occurred in December 2020 raised questions when compared with the Clinical Officer’s medical report. According to the Appellant, these inconsistencies cast doubt on the prosecution’s case and the reliability of the medical evidence. 9.On the second issue, the Appellant submitted that there were material inconsistencies and contradictions in the testimonies of PW1 and PW2. 10.The Appellant further contended that he was denied a fair trial as the trial court failed to adequately consider his cogent defence. He therefore urged the court to allow the appeal, quash the conviction, set aside the sentence, and order his release. Respondent’s Submissions 11.The Respondent addressed two principal issues, namely whether the trial court erred in law and fact in convicting the Appellant where penetration was allegedly not proved, and whether the prosecution failed to prove its case against the Appellant beyond reasonable doubt. 12.The Respondent submitted that this court, being a first appellate court, is under a duty to re-evaluate and re-analyze the evidence on record and arrive at its own independent conclusions, as set out in Okeno v Republic. 13.The Respondent further analyzed whether the essential ingredients of the offence were proved beyond reasonable doubt and relied on George Opondo Olunga v Republic [2016] eKLR. On the issue of age, the Respondent submitted that PW1, the complainant’s mother, testified that the complainant was born on 21st November 2011. Since the offence was alleged to have occurred on diverse dates between 1st November 2020 and 8th January 2021, the complainant (PW2) was approximately 10 years old at the material time. 14.The Respondent further addressed the remaining ingredients of the offence, namely penetration and the identity of the perpetrator. The Respondent also submitted on whether the Appellant’s defence was properly considered by the trial court and whether the sentence imposed was lawful and appropriate in the circumstances. C. Issues For Determination 15.As this is a first appeal, the court is obligated to revisit the evidence on record, evaluate it afresh and draw its own independent conclusions. In doing so, the court must remain alive to the fact that it did not have the advantage enjoyed by the trial court of seeing and hearing the witnesses testify. This duty was articulated in Okeno v Republic [1972] EA 32, where the court emphasized that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions while making due allowance for the fact that it did not observe the demeanour of the witnesses. a. Whether the alleged inconsistencies and contradictions in the prosecution’s case were material to vitiate conviction 16.The first issue for determination is whether the alleged inconsistencies and contradictions in the prosecution's case were material enough to vitiate the conviction. In this regard, the court is guided by the holding in Dickson Elai Nsamba Shapwata & Another v The Republic, CR APP. NO. 92 OF 2007, where it was stated that:“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 17.Having carefully re-evaluated the evidence on record, this court finds that the inconsistencies alleged by the Appellant do not hold water. The same are minor in nature and do not go to the root of the prosecution's case. They neither occasioned any prejudice to the Appellant nor created any doubt as to the commission of the offence. Having so found, the court shall proceed to examine whether the essential ingredients of the offence of defilement were proved. b. Whether the Essential ingredients of the offence of defilement were proved 18.In WKC v Republic (Criminal Appeal E060 of 2024) [2026] KEHC 6409 (KLR) (8 May 2026) (Judgment), the court held that:“On whether the charge was proved beyond reasonable doubt, it is trite law that for the offence of defilement to be established, 3 ingredients must be proved, namely, age of the victim, penetration and positive identification of the offender.”The court shall therefore consider the evidence on record in light of the foregoing ingredients. Age of the Complainant 19.The first ingredient for determination is whether the age of the complainant was proved. In the present case, the age of the complainant was not disputed. The prosecution produced the complainant's birth certificate as Exhibit 1, which established that she was born on 21st November, 2011. Considering that the offence was alleged to have occurred between 1st November 2020 and 8th January 2021, the complainant was approximately 10 years old at the material time. Accordingly, this court is satisfied that the prosecution proved the age of the complainant, being the first essential ingredient of the offence of defilement. Ingredient on penetration 20.On whether the second ingredient of penetration was proved, the complainant (PW2) testified that she recalled the day of the incident when her grandmother had left home to attend a funeral and she remained behind with her grandfather, the accused herein. She testified that after preparing supper and having their meal, the accused approached her and forcefully had sexual intercourse with her. PW2 stated that she switched off the electric lights in the room and lit a lamp, after which the accused removed both his clothes and hers before penetrating her vagina with his penis. 21.The court has carefully considered the evidence of PW2 alongside the medical evidence adduced by the prosecution. The Appellant challenged the finding of penetration on the basis that the medical report indicated that the labia majora was intact and that no blood cells were noted. However, the law is settled that proof of penetration does not depend on the presence of spermatozoa, injuries, or bleeding. What is required is proof, beyond reasonable doubt, that there was partial or complete insertion of the genital organs. 22.In Mark Oiruri Mose v R (2013) eKLR, the court was guided as follows:“….. In any event the offence is against penetration of a complainant and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence if spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated and penetration need not be deep inside the girl’s organ.” 23.Similarly, in AML v Republic [2012] KEHC 2554 (KLR), the court held:“…………The fact of rape or defilement is not proved by a D.N.A test but by way of evidence.” 24.This court further notes that the law on corroboration in sexual offences is well settled. Section 124 of the Evidence Act provides 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.” 25.Guided by the foregoing authorities and statutory provisions, this court finds that the complainant gave a clear, direct and consistent account of the sexual act perpetrated upon her by the Appellant. Her testimony expressly described the act of penetration and there is nothing on record to suggest that she was mistaken as to what transpired. The absence of spermatozoa, blood cells, or extensive physical injuries does not negate the occurrence of penetration. The evidence of PW2, viewed together with the medical evidence on record, was sufficient to establish the ingredient of penetration beyond reasonable doubt. 26.Further, although the law permits a conviction in a sexual offence case on the sole testimony of a victim where the court is satisfied that the victim is telling the truth and records its reasons, the evidence of PW2 in the present case was not left unsupported. Her account was corroborated by the medical evidence tendered before the trial court. Moreover, the trial court had the opportunity to observe her demeanour and found her to be a truthful witness. Upon independently re-evaluating the evidence on record, this court finds no basis for interfering with that finding. 27.Accordingly, this court is satisfied that the prosecution proved the second ingredient of the offence of defilement, namely penetration, to the requisite standard of beyond reasonable doubt. Ingredient on identification 28.The third ingredient for determination is whether the identity of the perpetrator was proved beyond reasonable doubt. 29.From the evidence on record, it is clear and undisputed that the complainant was well acquainted with the accused person, who was her grandfather. PW2 testified that she was residing with her grandparents and was therefore familiar with the Appellant. The incident occurred within the home environment and involved a person known to her. This was therefore not a case of identification of a stranger, but one of recognition. PARA30.The court has consistently held that recognition is more reliable than the identification of a stranger because it is based on prior knowledge of the offender. In Francis Muchiri Joseph – V- Republic [2014] eKLR, the court, while relying on LESARAU – v-R, [1988] KLR 783, stated as follows:“In LESARAU – v-R, 1988 KLR 783, this court emphasized that where identification is based on recognition by reason of long acquaintance, there is no better mode of identification than by name.” 31.Applying the foregoing principles to the present case, this court is satisfied that the complainant positively recognized the Appellant as the perpetrator of the offence. The complainant did not merely identify the Appellant; she recognized him as her grandfather, a person with whom she had lived and interacted over a considerable period of time. The possibility of mistaken identity is therefore remote and does not arise in the circumstances of this case. 32.The Appellant's contention that the complainant was coached or influenced to falsely implicate him was not supported by any evidence on record. Upon re-evaluating the entire evidence, this court finds that the complainant's account on the identity of the perpetrator remained consistent and unwavering throughout the proceedings. 33.Consequently, this court finds that the prosecution proved the third ingredient of the offence, namely the positive identification and recognition of the Appellant as the perpetrator, beyond reasonable doubt. b. Whether the sentence imposed is commensurate 34.Having found that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt, the court now considers whether the sentence imposed was lawful. 35.The complainant's birth certificate established that she was 10 years old at the time of the offence. Section 8(1) of the Sexual Offences Act creates the offence of defilement, while Section 8(2) provides that:“A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.” 36.In view of the complainant's age, the sentence of life imprisonment imposed by the trial court was lawful and in accordance with Sections 8(1) and 8(2) of the Sexual Offences Act. Consequently, this court finds no basis for interfering with the sentence. D. Disposition 37.In the premises, this court finds that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt. The alleged inconsistencies raised by the Appellant were minor and did not go to the root of the prosecution's case. Further, the sentence imposed by the trial court was lawful and in accordance with Sections 8(1) and 8(2) of the Sexual Offences Act. Consequently,a.The Appeal against both conviction and sentence lacks merit and is hereby dismissed in its entirety.b.The conviction and sentence imposed by the trial court are hereby upheld.It is so ordered. SIGNED BY/FOR:THE JUDICIARY OF KENYA ★HON. JUSTICE ABDI M. HASSANKisumu High CourtHigh Court Criminal Date: 2026-07-28 21:08:27The Judiciary of KenyaDoc IDENTITY: 408120628505755800698324677025Tracking Number:OO3BQT2026