Charles Omondi Ooko v Republic

d. That the honourable trial meted out excessive sentence that failed to appreciate the prevailing legal authorities and/or the circumstances of the case. 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 sentence was proper. 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) (2) 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. 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. 10. At the trial the appellant pleaded an alibi. He contended that he was away in Mfangano where he went on September 30, 2018 and returned home on October 8, 2018. He was arrested upon his return. In the case of Victor Mwendwa Mulinge v Republic [2014] eKLR the Court of Appeal rendered itself thus: It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja v R, [1983] KLR 501 … this court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigation and thereby prevent any suggestion that the defence was an afterthought. While analyzing the evidence herein, I will have in mind that he had no burden to prove his alibi. https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/2405/eng@2023-03-28 2

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11. MAO (PW1) testified that the appellant who was riding a motor cycle behind her stopped. She was at the time going home for lunch. The appellant gave her a sweet and then pulled her to a thicket. He ordered her to kneel down and then knelt behind her. He proceeded to defile her. After he had left her, she walked home while bleeding. 12. The grandmother of the complainant is called RO (PW2). Her evidence was that when MAO returned home on October 3, 2018, she saw blood flowing down her legs. When she lifted her dress, she saw blood coming from her buttocks. 13. When the child was undergoing treatment, her father (PW3) testified that she said it was Omondi who had defiled her. 14. The complainant was examined by Dr Odingo and the P3 form was produced on his behalf by Benard Otieno (PW4) a clinical officer. His evidence was that when she was examined her head and neck was full of dust. She had bruises on the labia minora and majora, clear injuries on the vulva with obvious bleeding, she had a bloody vaginal discharge. He concluded that she had been defiled. 15. When the same doctor examined the appellant, his penis had bruises and lacerations. 16. I find that it was proved to the required standards that the MAO was defiled. 17. The proviso to section 124 of the Evidence Act states: Provided that where in a criminal case involving a sexual ofience the only evidence is that of the alleged victim of the ofience, 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. The complainant’s evidence was not only believable, but was corroborated by other evidence on record in material aspects. The appellant, according to the evidence on record is a cousin of the complainant. The appellant was therefore identified as the culprit. His alibi defence was displaced by the prosecution evidence. 18. When the complainant was taken for age assessment, her age was assessed at 8 years and 3 months. The issue of age was therefore proved. 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 meted out was not only lawful but was the only prescribed one. 21. The upshot of the foregoing analysis of the evidence on record is that the appeal lacks merit and I accordingly dismiss it in its entirety. DELIVERED AND SIGNED AT HOMA BAY THIS 28TH DAY OF MARCH, 2023 KIARIE WAWERU KIARIE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2023/2405/eng@2023-03-28 3

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