Stephen Ong’ondo v Republic

Legal Analysis 5. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion bearing in mind that it neither saw nor heard the witnesses testify. 6. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses testify, and thus make due allowance in that respect. 7. Having looked at the Appellant’s Grounds of Appeal, Supplementary Grounds of Appeal, his Written Submissions and those of the Respondent, this court noted that the issues that had been placed before it for determination were as follows:- 8. a. Whether or not the Trial Court complied with Section 214 of the Criminal Procedure Code Cap 75 (Laws of Kenya); b. Whether or not the Prosecution proved its case beyond reasonable doubt; and c. Whether or not in the circumstances of this case, the sentence that was meted upon the Appellant herein by the Trial Court was lawful and/or warranted. The court therefore dealt with the said issues under the following distinct and separate heads. I. Charge Sheet 9. Supplementary Ground of Appeal No (3) was dealt with under this head. 10. The Appellant faulted the Trial court for failing to comply with Section 214 of the Criminal Procedure Code in not informing him his right to recall the witnesses to be reheard or cross-examined after the amendment of the Charge Sheet hence unfair trial. 11. He placed reliance on the case of Yongo vs Republic (1983) KLR 319 where it was held that although the magistrate recorded that he had complied with Section 214 and that the amended Charge was read to the appellant he did not record that the requirement under the second proviso, the appellant’s right to recall the witnesses was complied with. 12. He also cited the cases of Harrison Mirungu Njuguna vs Republic Criminal Appeal No 90 of 2004 and Peter Maina Macharia vs Republic (eKLR citation not given) without highlighting the holding he relied thereon. 13. He argued that as his right to hear the three (3) witnesses who had testified afresh and/or cross-examine them had been violated, the proceedings were substantially defective and could not be cured under Section 382 of the Criminal Procedure Code. He added that it was crucial for the said witnesses to have been cross-examined as to why the date of crime in their first report had shifted to gauge their credibility. 14. On its part, the Respondent submitted that the Charge Sheet was amended on the date of the ofience and the same was read out to the Appellant where he pleaded, “not true” to both the main and alternative charge. It added that the amendment was to ensure that the date on the Charge Sheet was the same as the one stated by the witnesses in their testimonies, thus, no prejudice was occasioned on the part of the Appellant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2311/eng@2026-02-24 2

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15. Notably, the said Section 214 (1)(i) and (i) of Criminal Procedure Code Cap 75 (Laws of Kenya) stipulates that:“ Where, at any stage of a trial before the close of the case for the prosecution, it appears to the court that the charge is defective, either in substance or in form, the court may make such order for the alteration of the charge, either by way of amendment of the charge or by the substitution or addition of a new charge, as the court thinks necessary to meet the circumstances of the case: Provided that where a charge is so altered, the court shall thereupon call upon the accused person to plead to the altered charge. Where a charge is altered under this subsection the accused may demand that the witnesses or any of them be recalled and give their evidence afresh or be further cross-examined by the accused or his advocate, and, in the last-mentioned event, the prosecution shall have the right to re-examine the witness on matters arising out of further cross-examination.” 16. A perusal of the record herein showed that on 22nd September 2022, the Prosecution applied to amend the date of the ofience on the Charge Sheet. The Trial Court allowed the said application and the Charge Sheet was amended. The charges were then read afresh to the Appellant who responded, “Not true” to both the main and alternative charge. 17. At no point did the Appellant inform the court that he wished to recall the witnesses who had already testified. Be that as it may, the amendment was to reflect the date of the ofience as testified by the Prosecution witnesses and, therefore, there was no prejudice caused on the part of the Appellant for not recalling the said witnesses. If he sufiered any prejudice, then he did not demonstrate the same. His assertions that witnesses were not re-called for cross-examination fell on the wayside. II. Proof of Prosecution’s Case 18. Ground of Appeal No (1), (2) and (3) of the Petition of Appeal and Supplementary Grounds of Appeal No (1) and (2) were dealt with under this head. 19. In determining whether or not the Prosecution had proved its case to the required standard, which in criminal cases was proof beyond reasonable doubt, this court considered the ingredients of the ofience of defilement. 20. It is now settled that the ingredients of the ofience of defilement are proof of complainant’s age, proof of penetration and identification of the perpetrator as was held in the case of George Opondo Olunga vs Republic [2016] eKLR. This court dealt with the same under the following distinct and separate heads. A. Age 21. The Appellant did not submit on the issue of age. On the other hand, the Respondent submitted that the Charge Sheet indicated that the Complainant, HN (hereinafter referred to as “PW 1”) was twelve (12) years of age at the time of the commission of the ofience. It relied on the case of Musyoki Mwakavi vs Republic[2014]eKLR where it was held that in a charge of defilement, age of the minor could be proved by medical evidence, baptism card, school leaving certificates, by the victim’s parents and/or guardians, observation or common sense. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2311/eng@2026-02-24 3

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22. It pointed out that No 234036 PC George Kemboi (hereinafter referred to as “PW 5”) testified and produced her Birth Certificate which indicated that she was born on 6th August 2009 and, therefore, twelve (12) years old at the time of the commission of the ofience. 23. Notably, PW 5 produced the said Birth Certificate as evidence in this case. A perusal of the same showed PW 1 was born on 6th August 2009. The incident took place on diverse dates between October 2021 and 18th December 2021. This meant that she was about twelve (12) years old at the material time of the incident. 24. As the Appellant did not challenge the production of the aforesaid Birth Certificate and/or rebut the said evidence by adducing evidence to the contrary, this court was satisfied that PW 1’s age was proven beyond reasonable doubt and that she was a child at all material times. B. Identification 25. The Appellant placed reliance on the case of Ndingu Kimanyi vs Republic (1979) KLR 283, where it was held that the witnesses in a criminal case upon whose evidence its proposed to rely should not create an impression in the mind of the court that he is not a straight forward person. He submitted that the evidence of the Prosecution witnesses did not corroborate each other in that it was impossible to tell who was telling the truth and who was telling lies. 26. He argued that several questions arose as to the inconsistencies between PW 1’s evidence and that of the other Prosecution witnesses. He asserted that it was the evidence of Elizabeth Osehuri (hereinafter referred to as “PW 3”) that he did not stay in his house. He, therefore, questioned who was with PW 1 on the material date if he was not in his house. 27. On its part, the Respondent averred that PW 1 testified that it was the Appellant who was her uncle who defiled her. It argued that, therefore, there was no contention that he was well known to her and she could not have been mistaken as to his identity. 28. It submitted that that was the evidence of recognition which was held by courts to be more reliable and weightier than that of identification of a stranger as was held in the case of Anjononi & Others vs Republic (1976-80) 1 KLR 1566, 1568. 29. It asserted that the inconsistencies and contradictions did not go into the core of the case and that the variance in itself did not in any manner distort or dislodge the commission of the ofience as was held in the case of SOO vs Republic[2018]eKLR which cited the Tanzanian case of Dickson Elia Nsamba Shapwata & Another vs The Republic Criminal App No 92 of 2007. 30. A perusal of the proceedings showed that PW 1 testified that in October 2021, she was sick and, therefore, did not go to school. She said that her parents were not present and that she went to borrow a slasher from her uncle, the Appellant herein. She stated that she went to his shamba (sic) where she found him. 31. It was her further testimony that the Appellant refused to give her the slasher, held her hand and took her to his house which was twenty (20) meters from the shamba (sic). He closed the door, laid her on the floor in the sitting room and blocked her mouth with his hand. He removed her skirt and underpant, removed his trouser, removed his urinating part and inserted it in her urinating part. She complained of pain but he persisted. She further stated that he warned her against telling anybody of the incident and gave her the slasher. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2311/eng@2026-02-24 4

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32. She added that on Saturday as she went home in the evening from seeing a friend, he again took her to his house by force and defiled her. She was afraid and slept at the shamba (sic). She stated that she went to her friend’s home in the morning and when she returned in the evening, he took her and defiled her. 33. This court noted that PW 1 was the only identifying witness. Having said so, under Section 124 of the Evidence Act Cap 80 (Laws of Kenya), a trial court could convict a person on the basis of uncorroborated evidence of the victim if it was satisfied that the victim was telling the truth. 34. Notably, the proviso of Section 124 of the Evidence Act states that:“ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged victim is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an ofience, the accused shall not be liable to be convicted on such evidence unless it is corroborated by other material evidence in support thereof implicating him: 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 (emphasis).” 35. Even so, a trial court was required to exercise great caution before relying on the evidence of a single witness to convict an accused person as it would be one person’s word against the other. Other corroborating evidence such as proof of penetration could assist the trial or appellate court to come with a determination as to who between the opposing witnesses was being truthful. 36. PW 1 positively identified the Appellant as the perpetrator of the ofience. She was emphatic that it was him who defiled her. She knew him well as he was her uncle and they were neighbors. 37. There could not, therefore, have been any possibility of a mistaken identity of the Appellant. His assertions that the Prosecution witnesses’ evidence was full of contradictions and inconsistencies was not proved therefore fell on the wayside. This court thus came to the firm conclusion that the Prosecution proved the ingredient of identification which was by recognition. C. Penetration 38. The Appellant placed reliance on the case of PKW vs Republic[2012] eKLR where it was held that there were times when a hymen could be broken by factors other than sexual intercourse. He questioned the evidence of PW 1 and noted that the Trial Court did not point out or indicate the incidences of demeanor that it relied upon as basis of accepting her evidence uncorroborated as was held in the case of John Cardon Wayner vs Republic & 2 Others[2001]eKLR. 39. He was emphatic that PW 1 did not describe the act of penetration. He asserted that he had a grudge with PW 1’s father and he used that to crop up the accusation against him. He added that if PW 1 was defiled the whole night of 18th and 19th (sic), the penetration would not have left her without any penetration sign such as reddening of the labia majora and minora or bruises. He was categorical that the absence of the said signs defeated PW 1’s assertion of defilement. He raised several questions as to whether PW 1 went to school on 20th December 2021, if she was found at Knite’s home or school, what she told the parents following the teachers’ interrogation and who among the Prosecution witnesses was telling the truth. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2311/eng@2026-02-24 5

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40. On its part, the Respondent invoked Section 2 of the Sexual Offences Act and placed reliance on the case of Mohammed Omar Mohammed vs Republic[2020]eKLR where it was held that the key evidence relied upon by the courts in rape and defilement cases in order to prove penetration was the complainant’s own testimony which was usually corroborated by the medical report presented by the medical officer. It submitted that the evidence of PW 1 corroborated that of the Clinal Officer, Boaz Aliona (hereinafter referred to as “PW 4”) and that penetration was, therefore, proved. 41. Notably, PW 4 testified that on examination of PW 1, her hymen was broken and there was whitish discharge in her private parts. He produced the P3 Form, Post Rape Care (PRC) Form and treatment notes as exhibits during trial. 42. In his defence, the Appellant denied the charges and stated that he had a fight with PW 1’s father and was arrested by police officers and charged with strange ofience. He called one witness, his mother, GK (hereinafter referred to as “DW 1”) who corroborated his evidence. 43. Notably, PW 1’s evidence was corroborated by the scientific evidence of PW 4. The Appellant’s defence was simply a denial. His evidence was not watertight enough to have displaced the Prosecution’s inference of guilt on his part. His argument that the case was full of contradictions or that he was framed thus fell by the wayside. 44. As had been stated hereinabove, any contradictions or inconsistencies were insignificant and did not afiect the inference of guilt on his part. The witnesses who were called by Prosecution adduced sufficient evidence to establish the charge. 45. In the premises foregoing, this court found and held that the Prosecution had proven its case to the required standard, which in criminal cases, was proof beyond reasonable doubt that the Appellant defiled PW 1 on the material diverse dates as there was proof of defilement as PW 4 testified. 46. In the premises foregoing, Ground of Appeal No (1), (2) and (3) of the Petition of Appeal and Supplementary Grounds of Appeal No (1) and (2) were therefore not merited and the same be and are hereby dismissed. II. Sentence 47. The Appellant did not challenge his sentence, thus, did not submit on the same, however, for completeness of record, this court found it prudent to determine the same. 48. On its part, the Respondent submitted that the sentence was safe and proper and should be upheld. 49. The Appellant herein was sentenced under Section 8(3) of the Sexual Offences Act Cap 63 A (Laws of Kenya). The same provides as follows: “ A person who commits an ofience of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years” 50. This court could not therefore fault the Trial Court for having sentenced him to twenty (20) years imprisonment as that was lawful. 51. Notably, in the case of Joshua Gichuki Mwangi vs Republic [2022] eKLR, the Court of Appeal reiterated the reasoning in the case of Dismas Wafula Kilwake vs Republic [2018] eKLR where it held that Section 8 of the Sexual Offences Act must be interpreted so as not to take away the discretion of the court in sentencing ofiences and held that it was impermissible for the legislature to take away the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2311/eng@2026-02-24 6

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discretion of courts and to compel them to mete out sentences that were disproportionate to what would otherwise be an appropriate sentence. 52. However, in a decision that was delivered on 12th July 2024, the Supreme Court overturned the decision of the Court of Appeal in the case Joshua Gichuki Mwangi vs Republic (Supra) and stated that the Court of Appeal had no jurisdiction to exercise discretion on sentences that had a mandatory minimum sentence. The Supreme Court directed the relevant organs to abide by its decision noting that the appellant therein had since been released from prison. 53. As this court was bound by the decisions of courts superior to it, its hands were tied as regards the exercising of its discretion to reduce the Appellant’s sentence. It had no option but to leave the said sentence that was meted against the Appellant herein undisturbed. 54. Going further, this court was mandated to consider the period he spent in remand while his trial was on going as provided in Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). 55. Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) provides that:“ Subject to the provisions of section 38 of the Penal Code (cap 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody” (emphasis court). 56. Further, Clause 4.6.20 (ix) of the Judiciary Sentencing Policy Guidelines provides that:“ The Sentencing Court shall be guided by the sentencing principles and objectives set out in Part I of these the Guidelines in all resentencing hearings. The following mitigating factors were set out by the Supreme Court as particularly relevant in a resentencing hearing:… Time already spent in prison by the convict…” 57. The requirement under Section 333(2) of the Criminal Procedure Code was restated by the Court of Appeal in Ahamad Abolfathi Mohammed & Another vs Republic(Supra). 58. A perusal of the Charge Sheet indicated that the Appellant was arrested on 22nd December 2021. Although he was granted bail, he did not appear to have gone out on bond. He was sentenced on 26th May 2023. The period that he spent in custody while his trial was ongoing ought to have been taken into account in line Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya). Disposition 59. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Petition of Appeal dated 19th December 2024 and filed on 20th December 2024 and Supplementary Grounds of Appeal dated 25th March 2028 and filed on 28th March 2025 were not merited and the same be and are hereby dismissed. His conviction and sentence be and are hereby upheld as they were both safe. 60. However, for the avoidance of doubt, the period that the Appellant spent in custody between 22nd December 2021 and 25th May 2023 be and is hereby taken into account in line Section 333(2) of the Criminal Procedure Code Cap 75 (Laws of Kenya) while computing his sentence. 61. It is so ordered. DATED AND DELIVERED AT VIHIGA THIS 24TH DAY OF FEBRUARY 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2311/eng@2026-02-24 7

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J. KAMAU JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2311/eng@2026-02-24 8

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