Dennis Otieno Ogwada v Republic

6. The prosecution case was founded on the evidence of six 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 life imprisonment. 7. Aggrieved by the conviction and sentence, the Appellant lodged the present appeal vide the petition of appeal dated 25th September, 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 offence of defilement. b. That the learned trial Magistrate erred in both law and fact in relying on the evidence of the medical practitioner, which was not foolproof. c. That the learned trial Magistrate erred in both law and fact in failing to reach the findings that there were contradictions and inconsistencies that vitiated the prosecution case. 8. 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] EA, 32 at 36; Pandya v Republic [1957] EA 336; and Peter v Sunday Post [1958] EA 424.) 9. 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 decision in respect of both the conviction and sentence. 10. The first prosecution witness was the survivor BG (PW1). It is instructive from the record of the trial court that the learned trial Magistrate conducted a voir dire examination of the survivor and reached the opinion that the child understood the duty to tell the truth but did not understand what an oath entailed. The learned trial Magistrate therefore directed that she gives a sworn testimony. 11. The survivor told the trial court that she was “raped” by the Appellant, whose name she said was Dennis and pointed at the Appellant in the dock as the assailant. She explained that on a date that she could not recall, the Appellant went to her home at about 4pm and gave her Ksh.20/- which she kept in her bag. 12. The survivor told the trial court that her grandmother sent her to buy sugar and when she set of, she saw the Appellant ahead of her. At the shop, the Appellant bought her two mandazi for Ksh10/-. After purchasing sugar, the Appellant told the survivor to follow him to his house and she obliged. 13. In her further evidence, the survivor told the trial court that the Appellant told her to remove her panty, which she did. He then took off his pair of trousers and underpants and whipped out his “chunde” (penis) which he then put in her “ther” (vagina) while she lay on his bed and that he proceeded to do “bad manners” to her. 14. The survivor told the trial court that she felt a lot of pain in her vagina and that the Appellant told her that he would “do it” slowly. He then got off the survivor, told her to wear her panty and gave her Ksh.50/-. She ate two mandazi on her way home and took the sugar that she had purchased to her grandmother. She did not tell her grandmother what had transpired. She stated that the Appellant gave her Ksh.60/- the following day. 15. The survivor told the trial court that the Appellant told her to go to his house every day so that he would do what he had done to her. She stated that she went to his house on a number of occasions and that the Appellant would violate her every time she went there. She stated that on the average, that happened about six times, and that he would give her cash ranging from Ksh.50/- to Ksh.100/- each https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18902/eng@2025-11-27 2

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time, and she would buy mandazi, soda, samosa, KDF buns or top chip snacks. She would pass by the Appellant’s house on her way to school 16. In her further testimony, the survivor told the trial court that on one of the occasions that she was going to the Appellant’s house, a boy child held her and took her to his mother, who asked her why she had made the habit of going to the Appellant’s house and what she would do when there but she did not respond until the woman insisted, and then is when the survivor told the boy’s mother that the Appellant had “raped” her every time she went to his house. The woman then inspected the survivor’s genitalia and then took her to her grandmother’s house but her grandmother was not in. She stated that the woman instructed her not to take a bath and took her to a hospital in Chulaimbo but she was not treated as doctors were on strike. The woman then took her to a place where she recorded her statement following which Police Officers took her to a different hospital on a different day where she was examined and treated. 17. The survivor explained that she was later taken back to her grandmother, who upon being told what had transpired, told her that the Appellant would be arrested. 18. The survivor identified her Certificate of Birth, P3 form and treatment notes before the trial court. 19. Upon being cross examined by the Appellant, the survivor told the trial court that she had not been coached on what to say in court. She further stated that she had the keys to the Appellant’s house, which she handed over to the police. She stated that she took the keys when the Appellant had stepped out to fetch water. 20. The second prosecution witness was James Otieno Odiyo (PW2), a village elder from [particulars withheld]. The witness told the trial court that on 19th April, 2023 at about 3pm, a member of the Community Policing Team, one Martin Okeno Omollo told him that there was a minor who had been given keys to access the Appellant’s house and that it was suspected that she had been sexually abused by the Appellant. 21. PW2 immediately swung into action and joined one Carolyn Omaro and a decision was made to immediately take the survivor to hospital as her grandmother, who was her guardian, was not present at the time. The two took the survivor to Chulaimbo but she was not attended to as doctors were on strike. They then took her to Maseno Police Station where a report was made. As it was late, they returned the child back home and took her to Coptic Hospital the next day for examination and treatment. Statements of the two and the survivor were then recorded and the Appellant was apprehended, about a week later. 22. Paul Muturi Dungo, a Clinician working at Coptic Hospital testified as PW3 and told the trial court that on 20th April, 2023, he examined and treated the survivor who complained of “having been done bad things to” by one Dennis. 23. Upon examining the survivor, the witness found that her labia minora and majora were inflamed and her hymen broken. She had injuries (lacerations) on her vagina and cervix. There was a clear discharge from her vagina that signified inflammation, which was unusual for a 9-year-old girl. High vaginal swab showed the presence of epithelial cells and bacteria, which was a sign of trauma and infection. Urinalysis test conducted showed epithelial cells. The witness concluded that there was clear evidence of penetration into the survivor’s vagina. 24. The witness told the trial court that he completed the survivor’s Medical Examination Form and Post Rape Care Form (popularly known as P3 and PRC forms respectively), which he produced as PExh2a https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18902/eng@2025-11-27 3

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and PExh2b respectively. The witness also produced the prescriptions that he issued to the survivor as PExh2c and PExh2d. 25. PW3 stated that the Appellant was also examined but added that he was not the one who examined him. 26. On cross examination by the Appellant, PW3 reiterated that there was evidence of vaginal penetration of the survivor as her vagina and cervix were lacerated. 27. The prosecution called Carolyn Adhiambo Omaro as the fourth witness (PW4). She told the trial court that one Everlyn Adhiambo Orieny (PW5) informed her that the survivor had been going to the Appellant’s house and that she would gain access to the said house by using a set of keys that she had. The witness stated that PW5 had sent another child to call the survivor when she was about to ingress the Appellant’s house. She told the trial court that herself and PW5 questioned the survivor, who told them that the Appellant had given her the keys to his house. 28. It was the further evidence of PW4 that the survivor disclosed to her that the Appellant had severally defiled her in his house and that he would thereafter give her money. On examination, the witness noted that the survivor’s panty was dirty in the middle. Arrangements were then made and the child was taken to hospital and police action followed. 29. Upon being cross examined by the Appellant, PW4 told the trial court that the incident in question happened on 19th April, 2023. She said that she did not see the survivor going into the Appellant’s house and that it is PW5 who saw that. 30. Everlyn Adhiambo Orieny was PW5. The witness told the trial court that on 19th April, 2023at about 1pm, her son took the survivor to PW5 while firmly holding her hand and told PW5 that he had found her opening the Appellant’s house. She explained that the Appellant was her neighbour. 31. PW5 stated that he questioned the survivor, who told her that it is the Appellant who had given her the key to his house and that he had asked her to be passing by his house at 1.00pm. PW5 immediately informed PW4 and upon arrival, PW4 inspected the survivor’s panty and genitals. PW4 then took the survivor away. 32. On being cross examined, PW5 stated that it is her son who found the survivor opening the Appellant’s house and that her son was returning home for lunch at the time. 33. The prosecution called Police Constable Japhet Kirui as PW6. The witness testified and told the trial court that he was the Investigating Officer. He stated that on 19th April, 2023, he was informed by his colleague that the survivor BG was a victim of defilement but was not treated as doctors were on strike. The officer placed the survivor in the Child Protection Unit until the next day when medical services were available at Coptic Hospital, where the survivor was examined and treated. Her PRC and P3 forms were completed at the facility. 34. PW6 told the trial court that the Appellant was apprehended on 26th April, 2023 and taken into custody at Maseno Police Station. He escorted the Appellant and the survivor to the Government Chemist Department for further forensic examination and thereat submitted samples for analysis, which were accompanied by an exhibit memo form. 35. The witness produced the following exhibits:Exhibit memo form – PExh3.Copy of the survivor’s certificate of birth stating her date of birth to be 12th August, 2014 – PExh1. 36. The Officer told the trial court that he interviewed the witnesses including the survivor and recorded their witness statements. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18902/eng@2025-11-27 4

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37. The prosecution closed its case at that stage and in its considered ruling that was rendered on 5th June, 2024, the court found that a prima facie case had been established against the Appellant and he was was placed on his defence. 38. 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. 39. The Appellant testified and told the trial court that he was not at home on the day that the incident is alleged to have occurred, as he was at his rental house at [particulars withheld], about 2.5km away. 40. The Appellant stated that on 26th April, 2023, four people on a motorcycle accosted him as he was returning from his rental house and tied up his hands with ropes. In the scuffle, the motorcycle fell on him and its exhaust pipe scalded his leg. The four then informed the police that they had arrested a person who had defiled a minor. He was taken into custody and subsequently charged. 41. Upon being cross examined, the Appellant admitted that he was at his home in [particulars withheld] on 19th April, 2023. He said that PW5 was well known to him and that as a matter of fact, PW5 was his neighbour’s wife. He denied prior knowledge of PW4 and the survivor’s grandmother. He further denied ever giving the survivor his house keys. He stated that he had never differed with any of his neighbours. 42. The Appellant did not call any witness and closed the defence case at that stage. 43. In her judgement rendered on 5th September, 2024, 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. She subsequently sentenced him to serve imprisonment for life. 44. The court directed that the appeal proceeds by way of written submissions and both parties filed their respective submissions. 45. 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: a. Whether the prosecution proved the ingredients of the offence of defilement under Sections 8(1) and 8(3) of the Sexual Offences Act, i.e. proof of the age of the complainant; proof of penetration; and proof of the identity of the perpetrator. b. Whether the conviction was safe. c. What was the appropriate sentence. 46. This Court is now called upon, in the exercise of its first appellate jurisdiction, to conduct a detailed re-analysis, re-evaluation and re-assessment of the evidence presented at the trial court. In doing so, the Court is mindful of the well-established principle that, although it did not have the advantage of seeing or hearing the witnesses in person, it is nonetheless empowered to arrive at its own conclusions based on the record and it must ensure that justice is done both to the survivor, who is a child of tender years, and to the Appellant, who is entitled to a fair trial. 47. This Court is therefore duty-bound to examine whether the prosecution discharged the burden of proving all the essential elements of the offence charged, whether the trial court correctly appreciated and weighed the evidence, and whether the law was appropriately applied in arriving at the conviction and sentence imposed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18902/eng@2025-11-27 5

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48. The first issue for determination is whether the prosecution proved the ingredients of the offence of defilement under Sections 8(1) and 8(3) of the Sexual Offences Act, i.e. proof of the age of the complainant; proof of penetration; and proof of the identity of the perpetrator. 49. The first fundamental element that the prosecution must establish in any case involving a child is proof of age, since the severity of the offence and the corresponding penalty are contingent upon the age of the survivor at the time of the incident. 50. The law recognizes several forms of evidence that may be used to establish age, including but not limited to a birth certificate, school admission records or any other credible documentation. The Court of Appeal has repeatedly emphasized in its decisions that the credibility of such evidence must be assessed in the context of the overall evidence presented. The importance of this requirement cannot be overstated, as the precise determination of the survivor’s age directly influences whether the offence falls within the statutory framework requiring life imprisonment, as provided under Section 8(2) of the Sexual Offences Act. 51. In the matter before this Court, the prosecution produced the survivor’s Birth Certificate, which unequivocally indicated her date of birth. On the date of the alleged offence, she was therefore 9 years old, placing her within the category of a child below the statutory age threshold for which the offence attracts the most severe penalty. 52. The survivor herself testified to her age in a clear and consistent manner and there was no evidence adduced by the defence to contradict or challenge the authenticity of the Birth Certificate or her testimony regarding her age. The fact that the survivor’s age was supported by credible documentary evidence and that there was no dispute on this issue, demonstrates that this first element was established to the high standard of proof required in criminal matters, namely proof beyond reasonable doubt. 53. Upon careful review of the evidence, this Court is satisfied that the trial court correctly found that the survivor was indeed under the age of eleven years and that this element of the offence was conclusively proved. In this regard, the trial court did not err in its appreciation of the evidence relating to age, and this Court finds no reason to disturb that finding. 54. The second element of the offence requires that the prohibited act occurred as alleged and that it was established to the satisfaction of the court beyond reasonable doubt. 55. In this regard, the survivor provided a clear and coherent account of the events that transpired, describing the conduct in a manner that was internally consistent, spontaneous and detailed, such that it was apparent to the trial court that the survivor understood the questions posed and was giving a truthful account of what occurred. 56. The Court notes that in cases involving children, the law allows for the evidence of a child of tender years to be given significant weight, provided the child is found to understand the duty to speak the truth, and this is precisely the approach that the trial court adopted. 57. Moreover, the survivor’s testimony was corroborated by independent witnesses who observed aspects of the situation as it unfolded and who provided statements confirming her presence at the Appellant’s residence under circumstances that were consistent with her account. 58. While the law does not require corroboration in every case involving a child of tender years, the existence of corroborating evidence in this case lends additional credibility to the survivor’s testimony and reinforces the finding that the alleged conduct did, in fact, take place. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18902/eng@2025-11-27 6

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59. Furthermore, professional examination evidence was introduced, which confirmed the survivor’s account in terms that were consistent with the occurrence of the events described. The defence did not produce any counter evidence or offer an alternative explanation that could reasonably account for the findings, and as such, the Court finds that the trial court correctly placed appropriate weight on this evidence. 60. In light of the foregoing, this Court is satisfied that the trial court did not err in concluding that the act alleged by the prosecution occurred, and that this element of the offence was conclusively established. 61. Proof of identity is a critical component in criminal trials, as a failure to establish the identity of the accused as the person responsible for the offence will inevitably undermine the prosecution’s case. 62. In the instant matter, the survivor was able to provide clear identification of the Appellant and described him in sufficient detail to enable the trial court to conclude that she knew the person responsible. This identification was further reinforced by independent witnesses who confirmed that the survivor was seen at or around the Appellant’s residence, and that she provided consistent information linking the Appellant to the events in question. These witnesses acted promptly upon discovery of the situation, ensuring that their observations were contemporaneous and reliable. 63. The Appellant sought to rely on an alibi, claiming that he was at a different location on the material date. However, when subjected to cross-examination, the Appellant’s testimony was inconsistent with other undisputed evidence regarding his whereabouts. Such inconsistencies diminish the credibility of the alibi and, in conjunction with the positive identification by the survivor and corroborating witnesses, strengthen the prosecution’s case. 64. The Court notes that in matters involving child witnesses, courts have repeatedly held that the testimony of the child, if credible and corroborated in material respects, is sufficient to establish identity beyond reasonable doubt. 65. In light of the consistent and credible identification by the survivor, the supporting evidence from independent witnesses, and the weaknesses in the Appellant’s alibi, this Court finds that the trial court correctly concluded that the Appellant was the person responsible for the acts complained of. There is therefore no basis for disturbing the finding on identity, which is a crucial element of the offence. 66. The next issue for me to determine is whether the conviction was safe. After a meticulous reexamination of the evidence and a consideration of the arguments advanced by the Appellant, this Court finds that all the necessary elements of the offence were proved beyond reasonable doubt. Any minor inconsistencies or variations in the testimony are peripheral and do not affect the overall credibility of the evidence or the core facts of the case. 67. The trial court correctly evaluated the evidence, weighed the credibility of witnesses appropriately and applied the relevant legal principles to reach its decision. 68. In this regard, it is clear that the conviction was based on a coherent and consistent evidentiary record, including both direct testimony and corroborating evidence, and that the trial court did not misapprehend the law or the facts. This Court finds no reason to interfere with the conviction, which was safe. 69. What was the appropriate sentence? Section 8(2) of the Sexual Offences Act prescribes life imprisonment where the survivor is under eleven years of age. Given that the survivor was 9 years old, the trial court correctly imposed the mandatory sentence. The Court finds that there was no error in the imposition of sentence and no interference is warranted. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18902/eng@2025-11-27 7

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70. In conclusion, I reach the result, and for all the reasons elaborated in paragraphs above, that the appeal is devoid of merit. The conviction of the Appellant was properly and safely made and the sentence imposed was lawful and in accordance with statutory requirements. 71. Accordingly, the appeal against both conviction and sentence is hereby dismissed in its entirety. I affirm the trial Court’s conviction and sentence. DELIVERED, SIGNED & DATED THIS 27TH DAY OF NOVEMBER, 2025. .......................................... JOE M. OMIDO JUDGE Appellant: present, virtually. For Appellants: Mr. Odindo. For Respondent: Ms. Muema. Court Assistant: Mr. Ngoge. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18902/eng@2025-11-27 8

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