Tommy Oluoch Odhiambo v Republic

The State/ Respondent opposed the appeal. 4. The hearing of the appeal was by written submissions with both sides filing their respective submissions through Chelangat Kirui Advocates for the Appellant and the Office of the Director of Public Prosecution [ODPP] for the Respondent. The duty of this court was to reconsider the evidence availed at the trial and draw its own conclusions bearing in mind that the trial court had the benefit of seeing and hearing the witnesses. 5. In that regard, the evidence availed by the prosecution through its four [4] witnesses i.e. the child Complainant [PW1], her mother EAM [PW2], the Clinical Officer, Hillary Cheruiyot [PW3] and the Investigations Officer, P.C. Joyce Nganga [PW4] was considered against the evidence of the Appellant in defence as supported by that of his witnesses, Joyce Oluoch Anyango [DW2] and in the opinion of this court the fact that the Complainant Child was defiled on the material date at a time when she was aged seven [7] years old was never disputed. In any event, the fact of defilement was established by the Complainants evidence as corroborated by that of her mother [PW2] and the Clinical Officer [PW3]. The Complainant’s age was established by the production of the necessary Birth Certificate [P. Exhibit 2]. The police medical examination report - P3 form [P. Exhibit 4] prepared by the Clinical Officer [PW3] showed that the Complainant was indeed defiled. 6. The Appellant did not in his defence dispute that the Complainant was indeed defiled. He, however, indicated in his defence that he was not responsible for the offence and that he might have been framed by the Complainant and her mother [PW2] due to an existing debt owed to the Appellant’s sister [DW2] by the Complainant’s mother. With the Appellant’s denial of having ben involved in defiling the Complainant, the main issue that fell for determination by the trial court was the identification of the Appellant as the Offender. 7. Identification is a major ingredient of the offence of defilement alongside penetration and age of the victim. The obligation to prove that the Appellant was the Offender or was positively identified as the offender lay with the prosecution upon a standard of proof of beyond reasonable doubt. In criminal cases, the Obligation to prove a charge against an Accused Person beyond reasonable doubt lies with the prosecution. It is not the obligation of an Accused Person to prove his innocence. 8. In this case, the key prosecution witness on identification or rather, direct identification was the Child Complainant. [PW1] who testified that she was at home on the material date washing dishes when the Appellant who lived with his sister called and indicted that he wanted to sent her to the shop. His sister was a neighbour to the Complainant’s mother. The Complainant lived with her mother. The Complainant testified further that after being called by the Accused [Appellant] he took her into his house in one of the bedrooms, removed her skirt and put her on the bed. He then locked the bedroom door and proceeded to defile her. She could not scream as her mouth was closed. Thereafter, the Appellant allowed her to leave after threatening to kill her. 9. The incident happened in broad day light while the Complainant was alone at home. Her mother [PW2] was away at the time at Awasi Market. She did not witness the incident and was told nothing about it until the following Sunday on 22nd December 2024, when she called the Complainant into the house from the outside and noticed her limping and shaking. She [PW2] opened the Complainant’s skirt and spotted blood stains. The Complainant told her that her private parts were in pain. She [PW2] https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4654/eng@2026-04-09 2

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noted that the Complainant’s vagina was swollen, it was then that the Complainant informed her that she has been defiled by Tom i.e. the Accused Person. 10. The mother reported the incident at Sondu Police Station and handed over the blood stained skirt [P. Exhibit 1] to the police. The Complainant was thereafter taken to Sigowet hospital for medical examination and that’s when the Clinical Officer [PW3] confirmed that the Complainant had been sexually assaulted by way of defilement. The medical examination occurred on 23rd December 2024. The necessary report was made to the police on the 22nd December 2024, as per the testimony of the investigation officer [PW4]. This was on the same date that the Complainant’s mother discovered that the Complainant had been sexually molested and the same date that the Complainant implicated the Appellant with the Criminal Act. 11. The import of the evidence by the Complainant’s mother [PW2] and the Investigations Officer [PW4] was that there was uncertainly on the date of the occurrence of the offence as between the 19th December 2024 [material date] and the 22nd December 2024. The uncertainty became more pronounced considering that the Clinical Officer [PW3] indicated that the Complainant was initially examined on 20th December 2024. 12. Be that it may, the proven fact remained that the Complainant was defiled and what remained to be proved was the identification of the alleged offender in which case the Complainants evidence stood alone without independent or any corroboration. As it were, it was the word of the Complainant child [PW1] against that of the Appellant. Section 124 of the Evidence Act provides for admission and reliance on uncorroborated evidence in Criminal Cases involving a sexual offence provided that for reasons to be recorded in the proceedings the court is satisfied that the alleged victim is telling the truth. 13. In this case, the trial court believed the Complainant Child [PW1] and found that the Appellant was positively identified as the Offender. This fact was apparently grounded on the facts that the incident occurred during the day around midday and that the Appellant was well known to the Complainant. The trial court thus overruled the possibility of mistaken identity in such circumstances which suggested that this was more of identification by recognition rather than anything else. 14. Indeed, the Appellant and the Complainant were known to each other as neighbours. This was not denied by the Appellant who indicated that he was at that neighbourhood as a visitor, courtesy of his sister [DW2] who was actually a neighour of the Complainants mother [PW2]. The Appellant also indicated that he interacted with the Complainant on 19th December 2024 when she was sent by her mother [PW2] to the Accused’s house to collect hot water. The mother denied the claim. 15. Clearly, the Complainant and the Appellant were not strangers to each other. It was therefore possible for the Complainant to identify the Appellant by recognition given that favourable conditions for such identification existed at the material time. But, even then, the evidence of identification against the Appellant was that of a single witness which depended more on the credibility of the Complainant against that of the Accused. Such evidence must always be treated with the greatest care and this must be demonstrated by the reasons advanced by a trial court for believing it. The court must therefore give cogent reasons for being satisfied that the victim of the offence told the truth. 16. Unlike the trial court, this court did not have the advantage of seeing and hearing the witnesses as to gauge their credibility. In that regard, the trial court was better positioned to make findings https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4654/eng@2026-04-09 3

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on the credibility of witnesses and that is why it believed the child complainant [PW1] rather than the Appellant. However, regard being given to the uncertainty accruing on the actual date of the occurrence of the offence as demonstrated in the prosecution evidence through the Complainant [PW1], her mother [PW2], the Clinical Officer [PW3] and the investigations officer [PW4] as well as the defence evidence through the Appellant and his sister [DW2] showing an apparent monetary dispute between the Complainant’s mother [PW2] and the Appellant’s sister [DW2], this court does not think that the trial court treated the sole evidence of identification against the Appellant with the greatest care. 17. In the circumstances, the possibility of false rather than mistaken identity could not be overruled perhaps prompted by the monetary dispute existing between the Complainant’s mother and the Appellant’s sister who were neighbours at the material time. The possibility that the child complainant may have been “couched” to implicate the Appellant with the offence could also not have been overruled considering that she was only six or seven years old at the material time of the offence. 18. It is therefore the finding of this court that the trial court did not provide cogent reasons for finding that the Complainant’s sole evidence of identification was satisfactory and credible enough to form a sound basis for conviction of the Appellant on account of identification. In that regard, this court must also find that the prosecution did not discharge its burden of proving the charge against the Appellant beyond reasonable doubt. The Appellant’s conviction by the trial court was neither safe nor sound and is hereby quashed with the result that the life imprisonment sentence imposed upon the Appellant must invariably be set aside. The Appellant shall forthwith be set at liberty unless otherwise lawfully held. DATED AND DELIVERED THIS 9TH DAY OF APRIL 2026 HON. J. R. KARANJAH JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4654/eng@2026-04-09 4

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