Maxwel Ogam Ochieng v Republic

6. The prosecution case was founded on the evidence of five witnesses while the defence comprised of the Appellant’s sworn testimony. Following the conclusion of the trial, the Appellant was convicted on the principal count and subsequently sentenced to serve ten years imprisonment. 7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 25th June, 2024 in which he raised the following grounds of appeal: a. That the learned trial Magistrate erred in both law and fact in holding that the prosecution proved against the Appellant all the ingredients of the ofience of defilement. b. That the learned trial Magistrate erred in both law and fact in failing to properly analyze and/ or evaluate the evidence tendered by the prosecution witnesses. c. That the learned trial Magistrate erred in both law and fact in shifting the burden of proof to the Appellant. d. That the learned trial Magistrate erred in both law and fact in imposing a sentence that was manifestly excessive. e. That the learned trial Magistrate erred in both law and fact in relying on the evidence of the medical practitioner, which was not foolproof. f. That the learned trial Magistrate erred in both law and fact in failing to properly consider the alibi defence that the Appellant ofiered. g. That the learned trial Magistrate erred in both law and fact in failing to reach the finding that the investigations that were conducted were shoddy. 8. On the strength of these grounds, the Appellant urged this court to allow the appeal, quash his conviction and acquit him and set aside the sentence of imprisonment for 10 years. 9. This being a first appeal, this court is enjoined to re-analyze, re-evaluate and re-assess the evidence before the trial court and reach its own conclusions bearing in mind that it did not see or hear the witnesses when they testified first hand (see Okeno v Republic [1972] E.A, 32 at 36; Pandya v Republic [1957] EA 336; Shantilal. M. Ruwala v Republic [1957] EA 570; and Peter v Sunday Post [1958] EA 424.) 10. In executing its duties, this court must consider whether the trial court considered all the evidence, weighed it correctly and whether it correctly applied the law or legal principles to it in arriving at its decisions in respect of both the conviction and sentence. 11. The first prosecution witness was the survivor’s mother B.O. (PW1), who told the court that the survivor was born on 3rd March, 2006 and was a student at B.A. Secondary School. She stated that the Appellant was known to her as he worked in the neighbourhood as a caretaker. 12. PW1 narrated the events of 14th November, 2021 and told the trial court that on that day, the survivor arrived from school unusually late and on querying her to disclose the reason why she was late, she opened up and informed PW1 that she had met the Appellant, who then convinced her to have sex with him. 13. Pw1 told the trial court that she confronted the Appellant the next day but that he denied the allegation, only to apologetically admit that he had had carnal knowledge of the survivor. The witness reported the matter to Kaloleni Police Station and the Appellant was apprehended. Pw1 stated that the survivor was taken to hospital where she was examined and treated. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18901/eng@2025-11-27 2

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14. Upon cross examination by the Appellant’s Counsel, PW1 told the trial court that the survivor told her that the Appellant invited her to his house where he had sexual intercourse with her. 15. The second prosecution witness was the survivor B.R.A. In her testimony before the trial court, she stated that on 13th November, 2021 at about 7.30pm, she went to visit her boyfriend one N and found the Appellant, whom she knew well as her boyfriend’s friend there. The Appellant then invited the survivor to his house and the survivor obliged. She stated that while inside the Appellant’s house, the Appellant covered the survivor’s mouth and she instantly lost consciousness. When she regained consciousness, she saw the Appellant sitting on a plastic chair next to the bed where she was lying. She was half naked and felt pain in her vagina. Her clothes were next to the Appellant and the Appellant told her to dress up and leave. 16. The survivor’s further testimony was that she proceeded to her home where she arrived late, at about 8.53pm. When her mother asked her where she had been, she did not respond but immediately went to her room, changed and took a quick shower and proceeded with her normal chores. 17. The survivor told the trial court that on the following Tuesday, her mother, accompanied with two police officers visited her school and summoned her to the school principal’s office, where she was permitted to leave with her mother. She was then taken to Jaramogi Oginga Odinga Teaching & Referral Hospital (popularly known as Russia Hospital) where she was examined and treated. Her P3 form was completed at the hospital and she identified it before the trial court. She stated that she recorded her statement at the police station the next day. 18. On being cross examined, the survivor told the trial court that she had been in a relationship with N from the time that she was in form one and she had occasionally had sexual intercourse with him. She stated that she was not certain as to who had penetrated her on that day as she was unconscious and asleep, but added that her boyfriend was not present and that she was with the Appellant alone. 19. The third prosecution witness was Police Constable Mary Ndombi of Shauri Moyo Police Station, whose evidence before the trial court was that on 16th November, 2021 at about 1.30am, she was at work when she received a report from PW1 that her 15-year-old daughter – the survivor – had been defiled by the Appellant, who was a roommate of her daughter’s boyfriend. 20. The officer, in the company of PW1, went to the survivor’s school, picked her from there, issued her with a P3 form and took her to Jaramogi Oginga Odinga Teaching & Referral Hospital, after questioning her. 21. The officer told the trial court that the survivor told her that she had gone to visit her boyfriend and met the Appellant, who then covered her mouth with his hands and she was rendered unconscious and that when she came to, she found herself naked and feeling pain in her vagina. The Appellant was seated next to her and that he ordered her to dress up and leave. 22. In her further evidence, PW3 told the trial court that the survivor’s P3 and PRC forms were completed at the hospital. She identified the two documents in court. 23. The officer told the trial court that she received from PW1 the survivor’s passport, which indicated her date of birth as 3rd March, 2006. She produced a copy of the passport as PExh1. 24. Upon being cross examined, PW3 stated that the matter was reported to the police two days after the survivor was violated but added that she did not know why it took two days to report the same. She told the trial court that the survivor told her that she had never had sex with N and that that was her first ever sexual encounter. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18901/eng@2025-11-27 3

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25. Dr. Ombok Lucy testified as PW4 and told the trial court that she completed the survivor’s P3 form on 28th December, 2021 after examining her. She explained that the survivor had changed clothes. The history that the survivor gave her was that her assailant had used some drug or substance to stupefy her, which rendered her unconscious and that when she came to, she found herself naked and with pain in her vagina. 26. The doctor told the trial court that she administered on the survivor post rape care kit, noting that her genitalia was externally normal with a broken hymen and that she was at the time of examination on her menses. The doctor recommended counselling for the survivor. She produced the P3 form as PExh2. 27. On being cross examined by the Appellant’s Counsel, the witness stated that a hymen can be broken by various activities such as penetration, sports or trauma. 28. The last prosecution witness was Effie Awuor Ochieng’, a clinician at Jaramogi Oginga Odinga Teaching & Referral Hospital. The witness told the trial court that she examined the survivor on 16th November, 2021. The survivor, who was born on 3rd March, 2006 presented a history of having been sexually violated on 13th November, 2021 by a person who was well known to her. 29. The witness told the trial court that she conducted genital examination on the survivor, who had changed clothes, and noted that her hymen was broken but she did not have any lacerations. She put the survivor on post exposure prophylaxis and other medicines. She conducted high vagina swab which revealed the presence of epithelial cells. The witness completed the survivor’s Post Rape Care (PRC) form, which she produced as PExh3. 30. On being cross examined, the witness stated that she did not make a specific finding that the survivor’s hymen was broken as a result of penile penetration. She stated that it was not clear whether the hymen was broken before the incident. 31. The prosecution closed its case at that stage and in its considered ruling that was rendered on 13th June, 2023, the trial Court found that a prima facie case had been established against the Appellant and he was placed on his defence. 32. The learned trial Magistrate complied with the provisions of Section 211 of the Criminal Procedure Code and the Appellant elected to tender a sworn testimony. 33. The Appellant testified and told the trial court that he was 30 years old and that both the survivor and her boyfriend N (or Milton) were known to him. He stated that in the year 2021, he was residing with the survivor’s boyfriend, whom he had hosted for about two weeks at Polyview Estate within Kisumu, and that the Appellant would habitually visit his boyfriend there. 34. In his further testimony in defence, the Appellant told the trial court that on 13th November, 2021, he left the survivor and her boyfriend in the house at about 6pm. He stated that the survivor’s mother knew the survivor’s boyfriend as the two had been in a relationship for more than one year. 35. It was the further testimony of the Appellant that when he returned to the house later that evening, he met the survivor and her boyfriend leaving. He stated that on the next day, PW1 threatened her daughter’s boyfriend while he was in the Appellant’s house, telling him that she would stab him, as a result of which the survivor’s boyfriend left Polview and relocated to Nyalenda Estate. The Appellant explained that after the survivor’s boyfriend’s departure from Polyview, PW1 threatened the Appellant, telling him in Swahili “utaona” (you will see). He stated that he was apprehended the next day and taken into police custody. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18901/eng@2025-11-27 4

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36. Upon being cross examined, the Appellant told the trial court that the survivor and her boyfriend had been in a relationship for over two years. He stated that he did not know the survivor’s age. 37. The accused person did not call any witness and closed the defence case at that stage. 38. In his judgement rendered on 8th August, 2023, the learned trial Magistrate reached the finding that the prosecution had proved the principal charge against the Appellant beyond reasonable doubt and proceeded to convict him on the same in line with Section 215 of the Criminal Procedure Code. He subsequently sentenced him to serve 10 years imprisonment. 39. The instant appeal proceeded by way of written submissions. I have perused and carefully considered the grounds raised in the petition of appeal, the submissions by the two sides and the record in its entirety. From the grounds of appeal, the record and the submissions, the following issues arise for determination: 1. Whether the prosecution proved the ingredients of the ofience of defilement under Sections 8(1) and 8(3) of the Sexual Offences Act, i.e. a. proof of the age of the complainant; b. proof of penetration; and, c. proof of the identity of the perpetrator. 2. Whether the learned trial Magistrate properly analysed and evaluated the evidence on record. 3. Whether the learned trial Magistrate erred by shifting the burden of proof to the Appellant. 4. Whether the learned trial Magistrate properly considered the Appellant’s alibi defence. 5. Whether the medical evidence was reliable and whether the trial court erred in relying on it. 6. Whether investigations were so deficient as to render the conviction unsafe. 7. Whether the sentence of 10 years imprisonment was lawful and appropriate under Section 8(3) of the Sexual Offences Act. 40. In approaching the determination of this appeal, this court remains acutely conscious of its statutory and jurisprudential duty as a first appellate court, as I have said above, to subject the evidence adduced before the trial court to a fresh, exhaustive and independent evaluation and draw its own conclusions. While doing so, this court must bear in mind that, unlike the trial court, it did not have the invaluable opportunity of hearing the witnesses testify or observing their demeanour, their candour, their hesitation or their forthrightness and therefore must avoid lightly interfering with findings that turn purely on credibility unless it is demonstrably clear that those findings are not supported by the evidence or are plainly unreasonable or perverse in light of the entire record. 41. Thus, the task before this court is not a mechanical ritual but a substantive re-engagement with the evidence, the applicable law and the reasoning process employed by the learned trial Magistrate so as to ensure that the conclusions reached at the trial were supported by properly analysed evidence and sound legal principles. In doing so, the court must evaluate whether the prosecution discharged its burden of proof to the exacting standard of beyond reasonable doubt on each of the essential elements of the ofience of defilement, being the age of the complainant, the fact of penetration and the identity of the perpetrator, for those three ingredients are the very pillars upon which a conviction under Sections 8(1) as read with Section 8(3) of the Sexual Offences Act must rest. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18901/eng@2025-11-27 5

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Issue 1: Whether the prosecution proved the ingredients of defilement: a. Proof of age. 42. The law, as embodied in Section 8 of the Sexual Offences Act, creates a strict statutory framework in which the age of the survivor is not merely a peripheral matter but is an integral component of the charge, indeed one that determines not only the existence of the ofience but also the range of punishment that is available upon conviction. 43. In the instant case, the prosecution adduced before the trial court the complainant’s passport, which was produced by PW3 as PExh1 and which clearly indicated the survivor’s date of birth as 3rd March, 2006. 44. This documentary evidence, being an official document issued by a government authority, carries considerable evidentiary weight and in the absence of any challenge to its authenticity, the court is entitled to rely upon it to determine age. 45. The oral testimony of PW1, the survivor’s mother, was entirely consistent with this document and her evidence, by its nature, is ordinarily regarded as reliable because a parent is best placed to know the age and date of birth of her child. 46. Both PW4 and PW5, who examined the survivor in their respective medical capacities, independently recorded her age as 15 years. This consistency across witnesses, coupled with the absence of any rebuttal by the defence, places the question of age beyond controversy. 47. I therefore find, as did the trial court, that the prosecution proved beyond reasonable doubt that the complainant was a child aged 15 years at the time of the alleged ofience, thereby properly situating the charge under Section 8(1) as read with Section (3) of the Sexual Offences Act. b. Proof of penetration. 48. With respect to penetration, the court must analyse both the testimonial evidence of the survivor and the medical evidence in light of the statutory definition under Section 2 of the Sexual Offences Act, which makes it clear that even the slightest penetration, whether partial or complete, satisfies the legal definition. 49. In the present case, the survivor testified that she had been rendered unconscious after the Appellant allegedly covered her mouth, and upon regaining consciousness, she found herself undressed, lying on the bed, feeling pain in her vagina and observed that the Appellant was seated close to her and that her clothes were next to him. 50. Despite her admission that she could not state with absolute certainty who had penetrated her because she had been asleep during the act, her account of the pain, her partial nudity and the circumstances she found herself in are consistent with non-consensual sexual activity. 51. The medical professionals – PW4 and PW5 – both noted that her hymen was broken, although they prudently acknowledged that a broken hymen is not conclusive proof of recent sexual intercourse since various activities — including sexual intercourse, sports and injury —can cause such a rupture. 52. However, the absence of lacerations or bruising does not negate penetration, particularly in light of the complainant’s testimony, for medical evidence is not a mandatory ingredient of the ofience, where the same can be proved by other evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18901/eng@2025-11-27 6

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53. The Court of Appeal in the case of Kassim Ali v Republic and JWA v Republic [2006] KECA 156 (KLR) held that medical evidence is not a prerequisite for proving defilement and that the victim’s testimony (oral evidence) or circumstantial evidence, if credible, can suffice. When a victim’s account is coherent, consistent and unshaken despite cross-examination, as I find it to be in this case, the court is entitled to accept it unless there exists strong contradictory evidence. 54. The survivor’s disclosure to her mother, the reporting to the police and the consistency of the narrative given to the medical practitioners all reinforce the credibility of her account. Accordingly, I am satisfied that the trial court correctly found that penetration had been proved beyond reasonable doubt. c. Proof of identity. 55. The crucial question and indeed the most contested one in many defilement cases where the child was unconscious or unable to directly identify the perpetrator during the act, is whether the prosecution proved that it was the Appellant who committed the penetrative act. 56. In the present case, the survivor testified that she was with the Appellant alone and that she lost consciousness when he covered her mouth with his hand and that he was the only one present at the time. Upon awakening, she found the Appellant still with her, in the same room and seated beside her while she was lying half-naked on the bed, with her clothes next to the Appellant. These facts form a chain of circumstantial evidence that the court must examine carefully to determine whether they irresistibly point to the Appellant as the perpetrator. 57. The Appellant’s defence that he had left the survivor with her boyfriend and that he only met the two leaving is weakened by the fact that he did not put the same version to the survivor during crossexamination. The trial court weighed all these circumstances and concluded that the Appellant was the person who had sexual contact with the survivor. Upon my own independent evaluation, I find no reason to depart from that conclusion. Issue 2: Whether the trial court properly analysed and evaluated the evidence. 58. The judgment of the learned trial Magistrate shows that he addressed himself to and considered the testimonies of all the witnesses, considered the responses that were highlighted by learned defence Counsel during cross examination, assessed the weight of the medical evidence and acknowledged the survivor’s admission of prior sexual experience. 59. The learned trial Magistrate did not treat the survivor’s testimony in isolation, but rather in the context of the surrounding circumstances, including the conduct of the Appellant before and after the incident. 60. I therefore find that the trial court properly discharged its duty of evaluating the evidence. Issue 3: Whether the burden of proof was shifted. 61. There is no indication that the trial court placed any burden on the Appellant to prove his innocence. The court merely commented, appropriately, that the Appellant’s alibi remained unsubstantiated. This does not amount to shifting the burden of proof; rather, it refiects the court’s evaluation of the credibility and weight of competing narratives. The burden of proof remained squarely on the prosecution at all times. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18901/eng@2025-11-27 7

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Issue 4: Whether the alibi defence was properly considered. 62. The Appellant’s defence that he was not present and that the survivor was with her boyfriend at the material time was given due consideration by the trial court. The trial court found it improbable in light of the evidence, particularly the complainant’s testimony and PW1’s evidence. An appellate court will not disturb such a finding unless it is plainly unreasonable, which is not the case here. Issue 5: Whether the medical evidence was reliable. 63. The medical evidence was not conclusive of the identity of the perpetrator nor of the exact cause of the hymen rupture but it supported the survivor’s narrative that some form of sexual activity did occur. 64. The trial court used the medical evidence only as corroboration rather than as the primary basis for conviction. This was a correct approach. Issue 6: Whether investigations were so poor as to render the conviction unsafe. 65. While there were gaps in the investigations, such as the failure to collect clothing or to conduct toxicological tests, the law is clear that poor investigations do not necessarily render a conviction unsafe where the evidence is otherwise cogent. In this case, the shortcomings did not materially undermine the strength of the prosecution case. Issue 7: Whether the sentence was lawful. 66. The learned trial Magistrate imposed a sentence of 10 years imprisonment. Section 8(3) of the Sexual Offences Act, however, prescribes a minimum sentence of twenty years for defilement of a child aged between twelve and fifteen years. 67. Therefore, the sentence imposed fell below the statutory minimum. However, the law frowns upon enhancement of sentence where the State has not sought for such enhancement. 68. In the case of MK v Republic (Criminal Appeal 159 of 2015, 2019 KECA 254), the Court of Appeal held that enhancing an Appellant’s sentence where there is no cross appeal filed by the State on sentence and/or where there is no notice of enhancement served or given to the Appellant ofiends Section 354(3) of the Criminal Procedure Code. I will in the premises be hesitant to interfere with the sentence that the trial court imposed. 69. For the foregoing reasons, the appeal against both conviction and sentence lacks merit and is hereby dismissed in its entirety. 70. Right of appeal explained. DELIVERED, SIGNED & DATED THIS 27TH DAY OF NOVEMBER, 2025 JOE M. OMIDO JUDGE Appellant: Present, virtually. For the Appellant: Mr. Odindo. For Respondent: Ms. Muema. Court Assistant: Mr. Ngoge. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18901/eng@2025-11-27 8

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