Calvince Otieno v Republic

sweet potatoes, and ate them. The appellant gave her tea. After she was through eating, the appellant closed the door. 6. The Appellant was alone at home. The Appellant told her to climb into bed and remove her dress. The witness removed her panties and slept on the bed with her face up. The appellant penetrated her with his penis after he told her to wipe herself. After the exercise, he told her not to tell anyone. On another day, he bought her mandazi and took her to a banana plantation. Where the appellant asked her to lift her dress. He removed his thing “kitu yake” and started penetrating her. He asked her to wipe herself. On the third incident, he gave her Ksh.20/= and told her to lie in her parents' bed, pull her clothes, and remove her panties halfway. He started defiling her. The appellant told her to wipe herself, but she did not. One of the neighbours, Mama Angel, asked her why Soo called her. 7. Mama Angel asked her to lie down, and she checked her private part. She wanted to take her to the hospital. They went with Mama Angel and grandmother to the district hospital, where they checked her private parts. They gave her medicine. Mama Angel went to the chief, and the appellant was arrested, but the complainant Mama Angel was not present at the time of the arrest. She identified the appellant in the dock. She stated that the appellant defiled her thrice, and she had never been defiled by anyone else. 8. On cross-examination, she stated that the appellant gave her sweet potatoes. When the first defilement was done, she did not feel pain, but did so on the third day. She was itching in her private parts after a while. 9. PW2, S, testified that she took her grandchild, PGA, to a special school as she always convulsed, but mentally she was not okay. At 3 pm, she received a call from Emily's phone. She found that Emily’s husband was on the line and told her to rush home. Neighbours told her that Soo had slept with the minor. She went to the chief, but the office was closed. She was told that the child was being attended to at Migori Referral Hospital. The minor told her that the appellant used to pick her up and sleep with her. 10. On cross-examination, she stated that the appellant ran away, and neighbours were looking for him. 11. PW3 was Emily Atieno Odero, a fishmonger, who testified that she had a call from the minor who had been told to fetch water. She saw the appellant enter the house, holding the minor's hand. She thought he was going to send the minor out, as people send her on errands. The accused has a three-year-old child. After 10 minutes, she stood up and checked whether the door was closed. The accused opened the door and went back, then the minor came out and arranged the clothes. She went to inform the husband. She saw the minor fetching water. She enquired from the minor, who then told her that the appellant had told her not to tell anyone. The minor told her that the appellant had told her to remove her clothes and defiled her. 12. They called the appellant’s mother. They agreed to report to the village elder. The witnesses took the minor to the chief, who examined the minor and found she was defiled. They reported to the Oruba Police Station. They went to Migori Referral Hospital, but the doctors were on strike. The grandmother joined them. The minor was taken to the hospital the following day. She said that when they closed the door, she became suspicious, which is why she called the minor. 13. On cross-examination, she stated that she was a neighbour of the appellant. She said she saw the appellant pulling the minor by hand, though she did not take any pictures. She stated that the incident occurred between 1300 and 1400 hours. 14. The appellant was released on bond on 2.1.2025 after bond terms were met. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3380/eng@2026-03-10 2

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15. Thereafter, PW4 was Justus Magati Muindi, a clinician at Migori Referral Hospital. He had a Bachelor of Medicine and Surgery from the University of Nairobi. He produced the P3 and PRC. He also produced a mental assessment. On cross-examination, he stated that the incident occurred on 12.03.2024. He found the hymen was broken, but not freshly broken. The victim indicated that the last carnal knowledge was in February 2024. 16. PW5 was PC Charles Oyoo, who testified that he was attached to Oruba Police Station. He received a complaint from Emily Odero, and he was the crime personnel on the day in question. She reported that she saw the complainant leaving the appellant’s house. Emily noticed the difficulty in walking on part of the minor. The minor explained that he had sex with the appellant. They were referred to the police station. She escorted the minor and PC Nancy to Migori Referral Hospital. 17. Her birth certificate was produced. He produced the assessment report and other exhibits. He stated that the appellant had run away from home for some time. He arrested him when he got a tip that he had gone for treatment in the hospital. On cross-examination, he stated that the report was issued the same day, but treatment was delayed due to hospital closures. 18. The appellant was placed on his defence. He stated that he was not on duty on 12.3.2024; he had gone to Kisii for work, and the fundi he went with was his witness. They were doing some construction at Keroka. He went on 09.03.2024 and came back on 15.03.2024. He was arrested when he came back. He slept at a friend’s place. He did not know the friend's name, and they stayed together for 7 days. He did not know the host's name. On cross-examination, he said he knew the minor and Emily Odero. 19. After testimony, the appellant appointed an advocate who then proceeded with witnesses. Dennis Odhiambo Mundu said that he lived in Siany Oruba. He stated that they went to Kisii in the morning of 15.03.2024. He stayed for one day, when he heard the accused had been arrested. On crossexamination, he stated that he knew the minor's neighbour. He knows that the minor convulses. He stated that they paid fare to Kisii. He stated that he was alone with the appellant. 20. DW3 was Jackline Ochieng from Oruba. She stated that on 9.03.2024, the accused was not around. After he left, he heard that he had defiled a child. On cross-examination, she stated that she could not say whether there was a person, another person who looked like the appellant. 21. DW4 Rebecca Adhiambo stated that on 9.03.2024, the accused was not at home. On crossexamination, the witnesses stated that on 9.03.2024, the appellant left for Kisii. 22. The appellant was convicted and sentenced to life imprisonment. Submissions 23. The appellant filed submissions stating that the court should be about nothing but justice. He prayed that he be acquitted. He pointed out that the minor had no scars, and the clinician pointed out a possibility of penetration. It was his submission that a possibility is not certainty, and there was, as such, doubt. He lamented that he was not at the locus in quo, as confirmed by his supervisor and mason, DW2, who confirmed that he was away doing manual labour in Kisii. 24. To buttress his position, he pointed out that DW3 and DW4 confirmed that they were neighbours and tenants of the appellant’s family premises. He could not fathom why the demeanor was not applied to the defence witnesses. 25. He then attacked section 124 of the Evidence Act and stated that the court should depart from the rigid application. He also noted that the court castigated the fact that his mother was not called under sections 144 and 150 of the Criminal Procedure Code. The two sections are provide as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3380/eng@2026-03-10 3

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144.(1) If it is made to appear that material evidence can be given by or is in the possession of a person who will not voluntarily attend to give it or will not voluntarily produce it, a court having cognizance of a criminal cause or matter may issue a summons to that person requiring his attendance before the court or requiring him to bring and produce to the court for the purpose of evidence all documents and writings in his possession or power which may be specified or otherwise sufficiently described in the summons. Nothing in this section shall affect the provisions of sections 131 and 132 of the Evidence Act. 150. A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case: Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any)as it thinks necessary to enable the crossexamination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness. 26. Sections 131 and 132 of the Evidence Act relate to the Privilege of official communications and the Privilege relating to information of commission of offences. 27. They also raised a question as to why the chief witness was initially not called as evidence. Lastly, they invited the court to note that the minor said she did not feel pain the first time, hence the allegations were far-fetched and beyond human character. 28. The respondent submitted that Mokaya v Republic (Criminal Appeal E020 of 2023) [2024] KEHC 4607 (KLR) (11 April 2024) (Judgment), WA Okwany, J held as follows: My understanding of the above provision is that the right of an accused person to be assigned an advocate is not absolute and is only a requirement where substantial injustice may occur in the absence of such representation. In David Macharia Njoroge vs R (2011) eKLR the court held thus: “State funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense. Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory. We are of the considered view that, in addition to situations where substantial injustice would otherwise result, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided.” 29. They submitted that the ingredients of the offence are provided for under section 8(l) of the sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. Reference was made to the case of George Opondo Olungo vs. Republic 20ll eKLR. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3380/eng@2026-03-10 4

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30. It was their case that the first element to be proven was age. In that respect, they relied on the Court of Appeal decision in the Case of Edwin Nyambogo Onsongo Vs Republic [2016] eKLR where the court held as follows: The question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of proof of the victim’s age, it has to be credible and reliable. 31. They submitted that the minor was 10 years old. This proved that the minor was indeed 10 years old at the time, hence proving the element of age. Reliance was placed on the Sexual Offences Rules of Court, 20l4 under Rule 4, which, provides that: When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document. 32. Further reliance was placed on the case of Alex Chemwotei Sakong v Republic [2018] KEHC 2158 (KLR), where L. A. Achode, J, held as follows: 5. Penetration is defined under section 2 of the Sexual Offences Act to mean the partial or complete insertion of the genital organ of a person into the genital organs of another person. This position was explained by the court of appeal (Onyango Otieno, Azangalala & Kantai JJ A) in the case of Mark Oiruri vs. Republic Criminal Appeal 295 of 2012 [2013] eKLR in which they opined thus: “…and the effect that the medical examination was carried out on her on 16th November, 2008 five days after the event, and that during that time she must have taken a bath and no spermatozoa could be found. In any event the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl’s organ…” 33. The third element was said to be provided by way of recognition. They submitted that, PWI testified that the appellant was well known to her as he was their neighbor and even identified the appellant's alias name as 'Soo'. She identified him as the one who detained her on the day of the incident. Analysis 34. This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3380/eng@2026-03-10 5

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firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows: On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 35. On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal: An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 36. The legal burden is the burden of proof is on the prosecution and remains constant throughout. According to established principles, burden of proof rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14: The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 37. Brennan J, addressed the standard of proof required in Criminal cases in the case of Re Winship 397 US 358 {1970}, at page 164 that: The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3380/eng@2026-03-10 6

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of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 38. Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 39. The standard of proof required in such cases was addressed by Brennan, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at pages 361-64 that:“ The accused during a criminal prosecution has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatised by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned.” 40. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:“ That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.” 41. The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. Within these limits, the court is duty-bound to subject the evidence to a fresh and exhaustive examination, reassess the credibility of witnesses, and weigh conflicting testimony to draw its own independent conclusions. Throughout this process, the legal burden of proof remains constant, resting squarely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. It is only by carefully scrutinizing the evidence in its entirety, while remaining faithful to the statutory framework, that the court can ensure the appellant receives a full and fair re-evaluation of the case. The section reads as follows: “ 382: subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3380/eng@2026-03-10 7

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proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice: Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 42. Courts in criminal cases should consider the standard of proof and the effect of a conviction on the accused person. In this case, the Appellant was up to imprisonment of up to life imprisonment as per section 8(1) of the Sexual Offences Act. This must be a serious offense that requires the clearest view of the evidence to justify keeping the Appellant behind bars for a large part of his life. Proof beyond reasonable doubt was the standard, also based on the nature of criminal offences, whose punishment went beyond the effect on the individual to the state. Conviction and sentence as a sexual offender were a badge that a convict could only deserve based on undoubted evidence. 43. The Appellant raised what he thought an alibi was. He stated that he was in Kisii. He did not say where in Kisii. There were major discrepancies between the defence witnesses. The alibi did not cover the period under review. The appellant did not even know who his host was for a week. He was staying alone on one part, and on another piece of defence evidence was that they stayed with a host. One witness notes that they were constructing a road, and on another, they were doing masonry work. The court of appeal in Erick Otieno Meda vs. Republic [2019] eKLR, addressed alibi as follows: In considering an alibi, we observe that: a. An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view. B. An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial. C. The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court. D. The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail. The first aspect was the alibi defence set out. The state did not find it fit to challenge any of the statements made by the Appellant in relation to the alibi. The state, in its cross examination confirmed the consistence of the defence evidence. The appellant was in their home from 5 pm up to 10 pm when the parties took dinner. This piece of evidence was not impeached at all. The Appellant’s evidence remained unrebutted. In the case of Erick Otieno Meda v Republic [2019] eklr, the Court of Appeal [Asike Makhandia, Kiage & Otieno-Odek JJA] posited as follows regarding an alibi: -In an alibi defence based on witness testimony, the credibility of the witness can strengthen or weaken the defence dramatically. A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt. In the case of Kiarie – v- Republic [1984] KLR, this Court stated: An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable…...” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3380/eng@2026-03-10 8

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44. The burden of proving the falsity of an alibi lies with the prosecution and was addressed in case of Victor Mwendwa Mulinge –v- R, [2014] eKLR as follows: “ 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…” 45. If, on all the evidence, there was a reasonable possibility that this alibi evidence is true, it means that there is the same possibility that he has not committed the crime. In another persuasive South African case of R - v - Biya 1952 (4) SA 514 (A) at 521C D Greenberg JA said: ‘If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime. 46. PW1 and PW3 identified the appellant. Their evidence was not shaken. They took steps to inform the appellant's mother. The appellant was not obligated to call the mother. However, none of the witnesses he called supported his alibi. The offence took place on 12.03.2024. Though the appellant stated that he returned within a week, the unchallenged evidence on record was that he ran away and returned in July 2024. He was arrested on 09.07.2024 when he was spotted at a hospital. The evidence that the appellant could not remember the host means that it is a lie. It does not then amount to an alibi. Determination 47. In the upshot I make the following final orders: a. The appeal lacks merit and is dismissed. The conviction and sentence is confirmed. b. Right of appeal 14 days. c. The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 10TH DAY OF MARCH, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE In the presence of: Appellant at Kisumu Maximum PC Ondimu at Kisumu Maximum Court Assistant – Michael https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3380/eng@2026-03-10 9

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