Meshack Manoti Osando v Republic

law and fact by relying on inconsistent and uncorroborated testimony; by disregarding the medical evidence which, in his view, did not directly implicate him; by failing to consider his defence adequately; and by meting out a sentence that he considered harsh and excessive. He further alleged violation of his right to a fair trial under Article 50 of the Constitution. Duty of the First Appellate Court 7. This being the first appeal, this Court is under a duty to re-evaluate the evidence adduced before the trial court, analyse it afresh, and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. (See Okeno v Republic [1972] EA 32 and David Njuguna Wairimu v Republic [2010] eKLR) Evidence before the Trial Court 8. PW1, a clinical officer at Ibacho Sub-County Hospital, examined the complainant on 05th June 2023. He found a laceration on the perianal area and noted that the hymen was old and torn. He classified the degree of injury as harm and concluded that the findings were consistent with penetration. He filled the P3 form (PEXH 1) and produced treatment notes (PEXH 2). 9. PW2, the Complainant aged thirteen (13) years, testified that she knew the Appellant, a neighbour and boda boda operator commonly called “Selector.” She recalled that on the afternoon of 04th June 2023, while walking home from the shops, the Appellant stopped her on his motorcycle, spoke to her briefly, and led her into a bush where he defiled her. Complainant went home and immediately reported the incident to her brother. 10. PW3, Charles Oyaro, the complainant’s brother, confirmed that the Complainant went home distressed and informed him that she had been defiled by the Appellant. He escorted her to the police station, where a report was made and she was referred for medical examination. 11. PW4, a police officer attached to Masimba Patrol Base, received the complaint, recorded statements, obtained the P3 form, and subsequently caused the arrest of the Appellant. 12. In his sworn defence, the Appellant denied the charge, alleging that he was framed by PW3 due to a disagreement in a local boda boda welfare group. Issues for Determination 13. I have considered the appeal in light of the evidence on record, the grounds of appeal and submissions filed by both parties and the issues that arise for determination are: 1. Whether the prosecution proved the offence beyond reasonable doubt 2. Whether the medical evidence linked the appellant to the offence 3. Whether the complainant’s testimony was inconsistent or contradictory 4. Whether the appellant’s defence was properly considered 5. Whether the appellant’s right to a fair trial under Article 50 of the Constitution was violated 6. Whether the sentence imposed was harsh, excessive, or unlawful. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18518/eng@2025-11-20 2

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(1) Proof of the Offence 14. The essential ingredients of defilement are the age of the complainant, proof of penetration, and identification of the perpetrator. (See Charles Wamukoya Karani v Republic [2010] eKLR). (a) Age of the Complainant 15. The complainant’s certificate of birth (PEXH 4) showed she was born on 1 March 2010. She was therefore 13 years old at the time of the incident. Age was conclusively proved. (b) Proof of Penetration 16. Penetration, under section 2 of the Sexual Offences Act, includes partial or complete insertion of a genital organ. 17. The complainant’s medical examination tendered by PW1 revealed a laceration on the perianal area and an old torn hymen, findings that were consistent with penetration. He classified the injuries as harm and expressly concluded that penetration had occurred. The medical evidence was fully corroborated the complainant’s account and collectively established this penetration beyond reasonable doubt. (c) Identification of the Perpetrator 18. The complainant’s identification of the Appellant was by recognition, not mere visual identification. The complainant stated she knew the Appellant by his name, Selector to which he was also referred by PW3. 19. The Court of Appeal in Anjononi & Others v Republic [1980] KLR 59 held that recognition of an assailant is more satisfactory and reliable than identification of a stranger, as it rests on prior personal knowledge of the assailant. 20. The Appellant did not deny that he was known to the complainant and that he was also known as Selector. The incident occurred in broad daylight, leaving little room for error. 21. In Stephen Nguli Mulili v Republic [2014] eKLR, the Court of Appeal explained the evidentiary position under section 124 of the Evidence Act in the following terms: “ As a general rule of evidence embodied in Section 124 of the Evidence Act, an accused person shall not be liable to be convicted on the basis of the evidence of the victim unless such evidence is corroborated. The proviso to that section makes an exception in sexual offences and provides as follows: ‘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.” 22. Applying that principle, I find the complainant’s testimony natural, consistent, and corroborated by the medical findings. The trial court expressly found her truthful, and on my own assessment of the record, I see no reason to differ. The prosecution accordingly proved beyond reasonable doubt that it was the Appellant who defiled her. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18518/eng@2025-11-20 3

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(2) Medical Evidence 23. The Appellant argued that the medical findings did not connect him to the offence because no DNA test was produced. 24. Whereas DNA evidence is desirable, it is not a legal prerequisite. The Court of Appeal in Kassim Ali v Republic [2006] eKLR held that absence of DNA analysis does not vitiate a conviction where the complainant’s evidence and medical findings are otherwise consistent and credible. 25. In this case, the medical evidence was clear, objective, and corroborative. The findings of laceration on the perianal area were consistent with penetration and supported the complainant’s version of events. (3) Alleged Inconsistencies in the Complainant’s Testimony 26. The Appellant contended that the complainant’s account was inconsistent because she did not explain: 1. how he could have held her if he was on a motorcycle 2. where the motorcycle was during the incident; and 3. whether there were people passing along the nearby road. 27. In my view, these criticisms relate to peripheral details that do not affect the central issue of whether the complainant was sexually assaulted and by whom. Her account on the material aspects remained consistent that she was lured to a secluded spot, that she promptly reported the assault to PW3, and that medical examination confirmed penetration. 28. Accordingly, I find that there were no discrepancies in the evidence tendered by the complainant. (4) Consideration of the Defence 29. The Appellant complained that his defence was not given due consideration. From the judgment of the trial court, I find that the Appellant’s defence was properly evaluated and correctly found to be a bare denial. 30. The alleged grudge between the Appellant and PW3 was not raised during cross-examination of that witness. Cross-examination is the proper avenue for testing credibility or possible bias. PW3 did not witness the incident and his role was confined to receiving the complainant’s report and taking her to the police. The Appellant had every opportunity to put to him any allegation of malice but failed to do so. No evidence was led to suggest that PW3 influenced the complainant’s version or fabricated the report. Even assuming that a disagreement existed between the Appellant and PW3, there is nothing on record to indicate that it affected the complainant’s evidence, which was consistent and spontaneous. The suggestion of a grudge was therefore a mere afterthought, introduced belatedly to create doubt where none existed at the trial and it was therefore rightly rejected. (5) Fair-Trial Rights 31. The record demonstrates that the Appellant was present throughout the proceedings, actively crossexamined the prosecution witnesses, and was accorded full opportunity to present his defence. There is no indication of any procedural irregularity or unfairness during the conduct of the trial. The Appellant has not shown, nor does the record disclose, any manner in which he suffered prejudice by reason of being unrepresented by counsel. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18518/eng@2025-11-20 4

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(6) Sentence 32. The Appellant was sentenced to twenty (20) years’ imprisonment under section 8(3) of the Sexual Offences Act, which prescribes that term where the victim is between twelve and fifteen years old. The sentence is lawful and proportionate to the gravity of the offence. 33. The Court of Appeal in Ahmad Abolfathi Mohammed & Another Criminal Appeal No.135 of 2016 (2018) eKLR held thus: “ By dint of section 333(2) of the Criminal Procedure Code, the court was obliged to take into account the period that they had spent in custody before they were sentenced. …………Taking into account the period spent in custody must mean considering that period so that the imposed sentence is reduced proportionately by the period already spent in custody. It is not enough for the court to merely state that it has taken into account the period already spent in custody and still order the sentence to run from the date of the conviction because that amounts to ignoring altogether the period already spent in custody. It must be remembered that the proviso to section 333(2) of the Criminal Procedure Code was introduced in 2007 to give the court power to include the period already spent in custody in the sentence that it metes out to the accused person.” 34. Similarly, in Bethwel Wilson Kibor vs Republic [2009] eKLR, the Court of Appeal held that: “ By proviso to section 333(2) of the Criminal Procedure Code, where a person sentenced has been held in custody prior to such sentence, the sentence shall take into account of the period spent in custody…” 35. In the present case, the trial court record reveals that the Appellant was arrested on 29th June 2023 and remained in custody until he was convicted on 31st October 2024. It is evident that the trial court failed to factor in the period the Appellant had spent in custody prior to conviction when imposing sentence, in disregard of Section 333(2) of the Criminal Procedure Code and the binding jurisprudence of the superior Courts requiring full credit for time spent in pre-sentence custody. 36. Accordingly, and in compliance with Section 333(2) of the Criminal Procedure Code and the applicable sentencing policy guidelines, it is hereby ordered that the sentence of twenty (20) years’ imprisonment imposed upon the Applicant shall be computed from 29th June 2023. being the date of his arrest and commencement of custody. Disposition 37. In the end, I make the following orders: 1. The appeal lacks merit and is hereby dismissed in its entirety. 2. The conviction for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act, 2006 is upheld. 3. The sentence of twenty (20) years’ imprisonment is confirmed and shall be computed from 29th June 2023 DELIVERED AT NYAMIRA THIS 20TH DAY OF NOVEMBER 2025 WAMAE.T. W. CHERERE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18518/eng@2025-11-20 5

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JUDGE Appearances Court Assistant - Hilda Appellant - Present in person For the DPP - Mr. Chirchir (SADPP) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18518/eng@2025-11-20 6

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