David Otieno Obambo v Republic

d. That during cross examination the appellant became ill and was unable to take the plea accordingly. 5. The appeal was opposed by the state, through Ochengo Justus who submitted that all the ingredients of the ofience were proved and that the appeal lacks merit. 6. This is a first appellate court. As expected, I have analyzed and evaluated afresh all the .evidence adduced before the lower court and I have drawn my own conclusions while bearing in mind that I neither saw nor heard any of the witnesses. I will be guided by the celebrated case of Okeno v Republic [1972] EA 32. 7. Section 8 (1) (1) of the Sexual Offences Act does not exist. The charge to that extent was erroneously drafted. It ought to have read: …contrary to section 8 (1) as read with section 8 (2) of the Sexual Offences Act … 8. Since the appellant fully participated in the trial, I find that he was not in any way prejudiced and the error is curable under section 382 of the Criminal Procedure Code. 9. A charge sheet may contain several counts. What the law prohibits is a charge containing several complaints for this would make the charge duplex. The charges as framed were not duplex. 10. PW1 & PW2 were the complainants in this case. This is contrary to the contention by the appellant that they were not called to testify. I find this ground of appeal as baseless. 11. When the prosecution called their witnesses, the appellant at all the instances told the court that he was ready for hearing. At no time did he indicate that he was unwell. His contention that he was unable to cross examine witnesses due to ill health is not borne out by the record. This ground has no merit. 12. Section 8(1) of the Sexual Offences Act defines defilement in the following terms: A person who commits an act which causes penetration with a child is guilty of an ofience termed defilement. An ofience of defilement therefore, is established against an accused person when the prosecution has proved the following ingredients: a. That there was penetration of the complainant’s genitalia; b. That the accused was the perpetrator; and c. The age of the complainant was below eighteen years. These ingredients were restated in Fappyton Mutuku Ngui v Republic [2012] eKLR as follows: Going by this definition of defilement, I agree with Mr Mwenda on the issues which the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. These are the ingredients that the prosecution must prove against an accused person. 13. Benard Otieno (PW3) is a clinical officer. His evidence was that on October 15, 2020, he examined LAO and made observations as follows: a. Swollen hyperaemic labia; b. Torn hymen; https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/1826/eng@2023-03-15 2

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c. Tender vaginal walls; and d. Presence of pus cells indicating a healing wound. He was therefore of the opinion that the girl had been defiled. 14. On her part, LAO (PW1), testified that it was the appellant who defiled her after accusing her and EAO (PW1) of destroying his fence. Her evidence was that he ordered them to lie down and defiled them in turns. He then ordered them to go and bathe in a nearby river as he watched them do so. There was evidence of defilement and who the perpetrator was. 15. EAO (PW2) gave similar evidence as that of LAO (PW1). She identified the appellant as the culprit. In his evidence Benard Otieno (PW3) testified that when he examined the EAO, he made the following observations: a. Blood stains on the inner walls of the vagina; b. Freshly torn hymen with pain; and c. Presence of epithelial cells. He therefore formed an opinion that she was defiled. 16. I therefore find that the learned trial magistrate cannot be faulted on her finding that the appellant defiled the two minors. 17. The Certificate of Birth in respect of LAO (PW1) indicate that she was born on February 21, 2012. At the time of the ofience, she was 8 years and 8 months. 18. EAO was born on March 4, 2012 according to her copy of Certificate of Birth. She was therefore 8 years and 7 months at the time of the ofience. 19. Section 8 (2) of the Sexual Offences Act provides: A person who commits an ofience of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 20. The sentence that was meted out was proper and legal. I therefore find that the appeal lacks merits. The same is dismissed. DELIVERED AND SIGNED AT HOMA BAY THIS 15TH DAY OF MARCH, 2023 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/1826/eng@2023-03-15 3

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