https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1655

Odera v Republic (Criminal Appeal E099 of 2023) [2026] KECA 1655 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1655 (KLR) Republic of Kenya In the Court of Appeal at Kisumu Criminal Appeal E099 of 2023 MS Asike-Makhandia, EC Mwita & B Ongaya, JJA July 31, 2026 Between Tobias Clinton Odera Appellant and Republic Respondent (Being an appeal from the Judgment of the High Court of Kenya at Kisumu (Ochieng, J) dated 28th January 2020 in HCCRA No. 86 of 2018) Judgment 1.This is an appeal by Tobias Clinton Odera (the appellant) against the judgment of the High Court of Kenya at Kisumu (Ochieng, J) (the first appellate court), dated 28th January 2020 which upheld the appellant’s conviction and sentence in Criminal Appeal No.86 of 2018. The appellant had been arraigned before the Principal Magistrate’s Court at Winam (the trial court) charged with defilement contrary to Section 8(1) as read together with Section 8(2) of the Sexual Offences Act, in Sexual Offence Case No.914 of 2012. 2.The particulars of the offence were that on the 23rd June 2012 at [particulars withheld], the appellant defiled ZAO, a child aged 7 years. 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 with a child by touching the private parts of the said child aged 7 years. The appellant denied the charges, setting the trial in motion. 3.The prosecution called five (5) witnesses in an effort to prove its case. The complainant (PW1), testified that on the material day, while she was taking a bath the appellant, a neighbour and a person well known to her as “Daddy” followed her into the bathroom and defiled her threatening to kill her if she screamed. The complainant later told her mother, PW2, that the appellant had defiled her. PW2 testified that she left the complainant taking a bath. The following day she noticed that the complainant was walking with difficulty and when she asked the complainant what had happened, the complainant informed her that the appellant had defiled her. PW2 examined the complainant and noticed some mucus which resembled sperms around her thighs, reported the matter to the village elder and later to the police before taking the complainant to hospital for treatment. According to PW2, the complainant was born on 16th June 2005 and produced her Birth certificate. 4.Police constable Sebastian Mweresa (PW3), investigated the matter following a report of defilement made by PW2; issued P3 form to the complainant; PW4 and members of the public brought the appellant to the Police station where he rearrested the appellant and later escorted the complainant to hospital for medical examination; obtained the complainant's birth certificate and charged the appellant with the offence. 5.Ibrahim Ochola Kibwana, (PW4) received the report of defilement by the appellant; went to the appellant’s house with other members of the public, apprehended him and handed him over to the police, while Dr. Joyce Omondi (PW5) testified on behalf of Dr. Ochola Okal Ibrahim who examined the complainant and filled the P3 form. According to PW5, the complainant had a tear at the vaginal entrance and copious whitish vaginal discharge. He opined that the tear was evidence of forced penetration. 6.When put on his defence, the appellant gave sworn testimony that on the material day he was attending his brother’s funeral at his rural home where he remained until 25th, when he returned to Kibos and was apprehended by members of the public; taken to the police station and later charged with defilement an offence he knew nothing about. Upon considering the evidence, the trial court was satisfied that the prosecution had proved the case beyond reasonable doubt, convicted the appellant and sentenced him to life imprisonment. 7.The appellant being aggrieved, filed an appeal before the first appellate court against both conviction and sentence faulting the trial court in: convicting him based on a case that was not properly investigated and proved; that there was no medical evidence linking him with the offence, that the prosecution evidence was not corroborated thus, could not sustain a conviction and that the trial court did not give due consideration to his defence. The first appellate court reevaluated the evidence and considered respective parties’ submissions and, in the end, dismissed the appeal on both conviction and sentence. 8.The appellant was still aggrieved and has now filed this second appeal contending that the first appellate court erred in: failing to find that the prosecution did not prove its case beyond reasonable doubt; failing to find that the trial court conducted an unfair and defective trial and upholding erroneous sentence which amounted to inhumane and degrading punishment contrary to Articles 25, 27 and 28 of the Constitution. 9.When the appeal was called out for plenary hearing, the appellant who was representing himself, appeared from prison through video link while Ms. Sitienei, learned prosecution counsel appeared for the respondent. Both parties relied on their respective written submissions entirely in prosecuting the appeal. The appellant citing the decision in Pius Arap Maina v Republic [2013] eKLR, submitted that the prosecution bears the burden of proving a criminal case beyond reasonable doubt and that any material evidentiary gaps in the prosecution’s case should be resolved in favour of the accused. 10.The appellant asserted referring to the evidence of PW2, that it was not possible that sperms would still be present after the complainant had allegedly taken a bath; that the complainant's sister who was sent by PW2 to check on her did not see any sperms on the complainant’s thighs; that PW5 also testified that he did not notice spermatozoa during examination on the complainant and therefore PW2’s claim that she observed something could not be true, raising reasonable doubt regarding the credibility of the evidence of PW1 and PW2. The appellant also questioned the alleged vaginal tear, arguing that there was no evidence of bleeding; that the medical evidence did not indicate whether the tear was fresh or old, thereby failing to connect the tear to the alleged offence. The appellant argued that the evidence of PW4 that the complainant had been defiled on several occasions was not corroborated. 11.The appellant asserted that there were material contradictions, inconsistencies and discrepancies in the prosecution case which ought to have been resolved in his favour, as they created reasonable doubt regarding his guilt, and cited among others, the decisions in Ndung'u Kimanyi v Republic [1979] KLR 282 and John Mutua Musyoki v Republic [2017] eKLR, for the proposition that a witness should not create the impression of being untruthful or raise suspicion as to his or her trustworthiness. 12.The appellant next argued that the first appellate court erred in upholding an unfair trial and relied on Article 50 of the Constitution, to submit that he was not informed of his right to choose and be represented by an advocate of his choice and where substantial injustice would otherwise result, to be informed of the right to counsel at the State’s expense and cited the decision in Njuguna v Republic [2007] 2 EA 370 for the submission that failure to inform an accused person of rights conferred by law is not a procedural irregularity curable under section 382 of the Criminal Procedure Code. 13.Lastly, the appellant contended that the indeterminate sentence imposed against him is unconstitutional as it deprives him meaningful opportunity to benefit from mitigation and cited the decisions in Manyeso v Republic [2023] KECA 827 (KLR); Evans Wanjala Wanyonyi v Republic [2019] eKLR; Jared Koita Injiri v Republic, [2018] KECA 78(KLR) and Vinter and Others v The United Kingdom (Applications Nos. 66069/09, 130/10 and 3896/10), (2013) 57 EHRR 34 in support of his submissions. 14.Opposing the appeal, Ms. Busienei submitted that in a second appeal, this Court can only consider matters of law; that the prosecution proved the ingredients of the offence beyond reasonable doubt; that the complainant's age was proved through the birth certificate which showed that she was born on 16th June 2005 and was therefore 7 years old at the time of the offence; that penetration was established through the evidence of the complainant which was corroborated by the medical evidence through the testimony of PW5 and that the appellant was positively identified by PW1 and PW2. Counsel relied on the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013 to support the argument that the prosecution proved the offence beyond reasonable doubt by establishing all the ingredients of the offence of defilement. 15.On the alleged contradictions and inconsistencies in the prosecution's case, counsel submitted that there were no material inconsistencies and, in any event, were satisfactorily explained and did not go to the root of the prosecution case and that the witnesses were truthful credible and consistent. 16.With respect to the complaint on the violation of the right to fair trial, counsel submitted that the appellant’s right to fair trial was not violated and that the first appellate court found that there was no such violation. And on sentence, counsel argued that the sentence of life imprisonment imposed is the lawful sentence prescribed under section 8(2) of the Sexual Offences Act and it has been affirmed by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR). 17.This is a second appeal and by dint of the provisions of section 361 of the Criminal Procedure Code, our jurisdiction is restricted to consider matters of law only. We cannot interfere with the decision of the first appellate court on matters of fact unless it is demonstrated that the two courts below considered matters, that they ought not to have considered or failed to consider matters they should have considered, or looking at the decision as a whole, it is perverse. (Karingo & 2 Others v Republic [1982] KLR 213.) 18.We have considered the grounds of appeal, the record, the submissions tendered on behalf of the parties and the applicable law. We discern three issues for determination, that is: whether the prosecution proved the ingredients of the offence of defilement beyond reasonable doubt; whether the appellant’s right to fair trial was violated and whether the sentence imposed is lawful in the circumstances. 19.The appellant was charged with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act which called on the prosecution to prove three key elements of the offence, namely: that the complainant was a child; that there was penetration and that the appellant was the perpetrator of the offence. 20.On age, PW2 testified that the complainant was born on 16th June 2005 and produced her Birth certificate to that effect, thereby proving that the complainant was 7 years at the time of the offence. The trial court was satisfied that the appellant’s age had been proved beyond reasonable doubt a fact the first appellate court agreed with. With regard to penetration, the complainant testified that the appellant defiled her while she was taking bath. Medical examination confirmed that the complaint had a tear at the enterance of her genitalia which PW5 attributed to forced penetration and it was the basis for the conclusion that there was penetration. The trial court was again satisfied that penetration had been proved, a conclusion the first appellate court agreed with. And on whether it was the appellant who defiled the complainant, the complaint testified that it was the appellant who defiled her and even gave the nick name, “Daddy” which the appellant is known and she knew well being a neighbour. The complainant also informed PW2 that it was the appellant who had defiled. The trial court was once again satisfied that the identity of the appellant as the perpetrator of the offence had been proved beyond reasonable doubt, a finding the first appellate court agreed with. 21.The two courts below having reached concurrent findings that the prosecution proved the ingredients of the offence beyond reasonable doubt, we have no reason to disturb the concurrent findings of fact. 22.That leads us to the next issue, namely; whether the appellant’s right to fair trial was violated. The appellant asserted that the trial court’s failure to inform him of the right to be represented by an advocate of his choice and the right to legal representation at State expense where substantial injustice would otherwise result, violated his right to fair trial. The respondent maintained that the appellant’s right to fair trial was not violated and that the first appellate court also found that there was no violation to this right. 23.We have considered the respective parties’ arguments on this issue and perused the record. The appellant did not raise the issue of violation of the right to fair trial in the petition of appeal before the first appellate court. He however raised the issue of violation of the right to fair trial through his written submissions he filed before that court, contending that the trial court failed to inform him of the right to be represented by an advocate of his choice. The first appellate court considered the allegation of violation of the right to representation by an advocate of his choice and pointed out that under Article 50(2) (5) (sic) of the Constitution every accused person has the right to choose to be represented by an advocate of his choice and to be informed of this right promptly. The first appellate court then stated as follows:“It is important to note that the right of an accused person to choose and be represented by an advocate means that if he wishes to be represented by an advocate, he can choose that particular advocate. When he makes that choice, it is the obligation of the accused to agree with the advocate on issues of payment of legal fees.” 24.The first appellate court pointed out that failure by the trial court to inform an accused person of the right to get an advocate of his choice does not render the trial defective. We agree with the first appellate court’s observation. 25.We have perusal the record before the first appellate court and it is clear that the appellant did not raise the issue of legal representation by counsel at State expense before the first appellate court or in the memorandum of appeal before us except through his written submissions. This Court cannot therefore deal with an issue raised in this second appeal when that issue was not raised before the first appellate court and did not form that court’s determination. 26.The appellant finally asserted that the indeterminate sentence imposed by the trial court which was upheld by the first appellate court is unconstitutional and violates Articles 25, 27 and 28 of the Constitution as it deprives him meaningful opportunity to benefit from mitigation thus, it amounts to inhuman and degrading punishment. The respondent maintained that life sentence is a lawful sentence prescribed under section 8(2) of the Sexual Offences Act, and its constitutionality has been affirmed by the Supreme Court. 27.The appellant was charged with defilement under Section 8(2) of the Sexual Offences Act which 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, which is the sentence that the trial court imposed against the appellant. 28.The issue of mandatory minimum sentences under the Sexual Offences Act has been settled by the Supreme Court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) (supra), where the Supreme Court stated that as long as section 8 of the Sexual Offences Act remains valid, the mandatory minimum sentences are constitutional and lawful, emphasizing those minimum sentences set the floor rather than the ceiling leaving it open to the discretion of the courts to impose a harsher sentence depending on the circumstances of each case. That being the position in law, we find no merit in the appellant’s complaint regarding sentence. 27.Ultimately, we find no merit in this appeal and it is hereby dismissed 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 original.DEPUTY REGISTRAR.