Dan Benea Ochwada v Republic

had tripped and fallen short. PW2 reported the matter to the police, and PW1 was taken to hospital. She identified PW1 as a visitor at her home, and that she had come from Uganda. 4. PW3, GM, was also a minor, and a child of PW2. It was to her that PW1 confided, that the appellant had defiled her. She reported to her mother, PW2, who confronted both PW1 and the appellant. PW1 confirmed that the defilement had happened, but the appellant denied it. She further testified that the appellant was asking PW2 to let the matter rest, but he was not sure what they eventually agreed. 5. PW4, Morris Sifuna, was a clinician. He attended to PW1. PW1 had a history of having been defiled. The examination revealed that the hymen was not present, and was not freshly torn, and there was a colourless discharge around the vagina. He explained that the colourless discharge was not necessarily evidence of sexual activity. He further explained that there were no bruises on the vagina, to show forceful entry. He stated that the grandmother of PW1, who had accompanied her, had stated her age to be 14 years. 6. PW5, No. 23xxx Police Constable Mangeni Moses, was the investigating officer. He had received a report, from PW1 and PW2, of the defilement, on 9th April 2024. He detailed the steps that he took in the course of his investigations, inclusive of getting the age of PW1 assessed. PW6, Euphrasia Agala, was a children’s officer for the area. She had interviewed PW1, and prepared a report on her. She had found PW1 as a child in need of care and protection, due to exposure to sexual abuse and neglect. 7. PW7, Chrispinus Ouma Egesa, was a senior community development officer, who did age assessment on PW1, by way of clinical examination of her dental formula. She assessed the age of PW1 to be 14 years. PW8, No. 97xxx Police Corporal Moses Maina, was a scenes-of-crime-investigator. He had gotten a printable CD from PW5, for processing. He processed photographic prints from it, which he produced in court. 8. The case for the prosecution closed on 15th August 2024. The Advocate for the appellant asked for time to file written submissions, and the matter was set down for mention, to receive the submissions. It is unclear whether written submissions were ever filed. It is also unclear whether a ruling was ever delivered on whether the prosecution had established a prima facie case against the appellant. What I see, from the trial record, is that the matter came up on 7th October 2024, and the Advocate for the appellant expressed readiness to proceed, whereupon the trial court explained the rights, under section 211 of the Criminal Procedure Code, Cap 75, Laws of Kenya, to the accused. The Advocate for the appellant stated that the appellant was to give an unsworn statement, which he proceeded to do. 9. The appellant stated that he had, indeed, gone behind the shops, at the material time, to some rooms that were incomplete, to relieve himself, and PW1 followed him there, but he chased her away. She ran away. He was later accused by his neighbour of having had raped that child. He was summoned by the police over the matter, and he was subsequently arrested and charged. 10. He was convicted, in the judgement delivered on 28th May 2025, of defilement, and was sentenced, on 11th June 2025, to serve 25 years imprisonment. 11. The appellant was aggrieved, hence the appeal. The grounds revolve around the court having conducted irregular and unconstitutional proceedings; the prosecution not having proven the case beyond reasonable doubt; the appellant not being informed of his right to give defence evidence and not being warned of the danger of giving an unsworn statement; the legal representation being insufficient; a translator was not availed and plea was read in a language the appellant did not appreciate; the sentence imposed being harsh and excessive; the evidence being inconsistent, uncorroborated and hearsay; the medical evidence being insufficient and not supporting penetration; the burden of proof being shifted; and there being misdirection on age assessment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4676/eng@2026-04-10 2

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12. Directions were given, on 27th January 2026, for canvassing of the appeal by way of written submissions. Neither of the parties had filed written submissions, as at 11th March 2026, when the date for judgment was fixed. 13. I will start with discussing what constitutes the offence of defilement. It is about having sexual connection with an underage person. Case law is notorious on what constitutes the offence of defilement, as defined in section 8 of the Sexual Offences Act. It has 3 principal elements, which the prosecution must establish, for it to obtain a conviction. It must be established that there was penetration of the gentalia of a minor, by the gentalia of the perpetrator, who is positively identified. 14. I will start with the minor victim. The charge identified her as PN, whose age was put at 14 years, at the material time of the commission of the offence. She testified on 2nd May 2024, as PW1, and said that she was 14, at the date of testimony. She said that she did not know the date when she was born. She also stated that she did not have a certificate of birth. Because she did not have a certificate of birth, age assessment was done, by PW6, who produced the relevant documentation, to support his findings. He assessed the age of PW1 at 14. 15. That age assessment is challenged on appeal. Yet, the appellant has not provided any material to establish a justification for the challenge. To the best of my knowledge and understanding, one of the ways of assessing age is by clinical examination of dental formula. The appellant has not established that that is not acceptable, neither has he suggested another way, which would be more scientific and most reliable. 16. Based on that, the trial court cannot be faulted, for concluding that PW1 was a minor of 14, against whom the offence of defilement could be committed. 17. With regard to penetration of her gentalia, by that of the perpetrator, she testified about how she went to relieve herself in an abandoned building, when the appellant followed her, and defiled her, after he removed her skirt and panty. She explained that that happened on 2 occasions, on 10th March 2024 and 8th April 2024. She was a teenager of 14 years. She was fully aware, at that age, of her surroundings, and could take in what was going on around her, inclusive of anything happening to her. It was her vagina that was penetrated, and she gave a fairly straightforward account of what happened to her in the hands of the appellant. I find it strange, though, that the trial court chose to take the evidence of a teenager, who was, certainly, not a child of tender years, unsworn. 18. The appellant has argued that the evidence on penetration was not supported by the medical evidence. That appears to be the case. The testimony of and the evidence presented by PW4 did not come up with tangible results. PW1 came out, from that examination, as a minor who was fairly sexually experienced. She did not lose her hymen in that encounter with the appellant, for PW4 described it as not freshly torn. Her vagina had no bruises, nor any other evidence of forceful sexual entry. The acts of defilement complained of allegedly happened on 10th March 2024 and 8th April 2024. Medical intervention was sought on 10th April 2024, 2 days after the last sexual episode. That was probably too late, for a person who was sexually active. The recorded evidence would suggest that the sexual encounter was, perhaps, consensual, in which event little material would be available, 2 days later to evidence the encounter. 19. However, the inadequacy of the forensic or medical evidence would not be fatal to the defilement charge. It is trite that medical or scientific evidence is not the only way of establishing defilement and rape. The sole testimony of the victim would suffice, so long as the trial court finds it truthful and reliable. The trial court herein had the opportunity to see and hear PW1 testify, and it believed her to be telling the truth. Her narrative was corroborated by PW2 and PW3. The unsworn statement of the appellant, although that is usually very weak evidence, also corroborated the said narrative, in https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4676/eng@2026-04-10 3

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certain respects, in the sense that it placed the 2, the appellant and PW1, in very close proximity, in circumstances very close to those narrated by PW1. 20. The last element of defilement is the identity of the perpetrator. The charge alleged that that perpetrator was the appellant herein. That it was him who penetrated the vagina of the minor PN, the PW1 herein. 21. PW1, in her testimony, described the appellant as a neighbour. His wife ran a shop close to that of PW2. She knew him well. Indeed, she said that she had known him for 3 months before that sexual encounter. PW1 was a teenager aged 14. It was her vagina that was penetrated. The incidents happened during the day, when there was sufficient light for identification purposes. PW1, in the circumstances, could not have been mistaken about the person who penetrated her vagina. 22. Was there justification for the court to believe her? PW1 testified before the trial court. The court saw her and heard her. It also saw and heard the appellant, and the other witnesses who testified. The trial court believed the prosecution witnesses, as against the appellant. In any case, the appellant chose to give an unsworn testimony. Such testimony is largely worthless, to the extent that the same is shielded from scrutiny and testing, by way of cross-examination. It is a path usually chosen by witnesses who do not wish to subject themselves to accountability. 23. I am persuaded, from the material on record, in the trial file, that the respondent had established that the offence of defilement had been established against the appellant, for there was proof that PW1 was a minor, that her vagina had been penetrated, and the person responsible for that penetration was the appellant. 24. The appellant has raised grounds about the trial being irregular, illegal, unprocedural, unlawful and unconstitutional. He did not file written submissions, and I cannot tell in what respect he believes the trial fell short in that respect. I see, though, that there are grounds around failure to avail a translator at plea-taking, and the charge being read in a language the appellant did not understand. There is no indication at all of the language that he was familiar with, and which ought to have been used at trial, or, at least, at arraignment. 25. I note, from the pre-sentence report, dated 11th June 2025, that the appellant is a well-educated person. He studied up to secondary school level, were he left with a respectable C grade. He trained as a teacher, at Kaimosi Teacher Training College, and taught at Grace Talent Academy, Ngong, among other subjects, English and Kiswahili. These 2 are the official languages in Kenya, which makes them the official languages of the court too. The appellant could not possibly be heard to complain about not being afforded a translator at arraignment, for he needed no interpretation, as he was sufficiently proficient in the languages of the court. 26. Moreover, he was represented by an Advocate at the trial. The Advocate was not present at pleataking, but came on record at the next court appearance, and was present at all times when the matter proceeded in earnest. Any challenges that the appellant might have had, with respect to language, which I am not persuaded he had, were cured by that, for his Advocate did not require any interpretation of the proceedings, from either English or Kiswahili to any other language. The presence of the Advocate at trial also provided compliance to the requirement about being entitled to an Advocate of his own choice, and if he could not afford one, an Advocate being provided to him, paid for by the State. The appellant was informed of his right to an Advocate, when he was arraigned, and, therefore, he could not be heard to complain that the constitutional prerequisites around that were not complied with. He appointed an Advocate shortly after that. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4676/eng@2026-04-10 4

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27. I note that he complains that the legal representation was insufficient. The Constitution only requires that an accused person be informed of the right to legal representation of one’s choice, and where the accused is indigent, to an Advocate paid for by the State. It is silent on the sufficiency of the legal representation availed, whether by own choice or from the State. There is no indication on whether Mr. Ashioya was appointed by the appellant directly, or was availed to him by the State. If he was the choice of the appellant, surely there would be no basis for the appellant to complain. If he was provided by the State, he should be thankful, that there was a legal technician at hand to guide him through the criminal trial. Insufficiency of legal representation cannot be a ground for appeal. If the appellant was unhappy with the legal representation that he was getting, he should have taken the step of relieving his Advocate of his role, or changing Advocates, or asking to be allowed to self-represent. 28. I also see, from the record, that at arraignment the respondent complied with the constitutional imperative to furnish the appellant with evidence, in advance of the hearing. Copies of the charge sheet, 4 witness statements, the P3 form, the age assessment form and a certificate of birth were made available to the appellant, and the record reflected that he had acknowledged receipt of that advance evidence. He cannot complain that that constitutional imperative was contravened. 29. I note too that, at arraignment, the trial court addressed itself to the right of the appellant to be admitted to bail/bond. It was directed that he would not be eligible to admission to that, before PW1 testified, to avoid witness interference. Arraignment was on 18th April 2024, and PW1 was heard on 2nd May 2024, which was roughly within 2 weeks of arraignment. After her testimony was taken, the appellant was admitted to bond, of Kshs. 200,000.00, with a surety. The surety was approved on 3rd May 2024. Regarding the constitutional right to bond/bail, it cannot be argued that the appellant was denied his constitutional right to the same. 30. There is the ground that the appellant was not informed of his right to give evidence, and was not cautioned of the nature of the offence, and was not warned about giving an unsworn statement. The right to testify at one’s own trial is a constitutional prerequisite. The Criminal Procedure Code, at section 211, also takes care of it, by requiring the trial court to inform the accused person of that right, shortly after finding the accused to have a case to answer. It also requires that the accused be informed of the options open to them, by way of the defence strategies available to them. 31. Where an accused person is represented by an Advocate at the trial, it would be presumed that the Advocate would advise the accused person of that right, and the 2 would work on a strategy on the defence to offer. It would be part of what an Advocate is expected to do as defence counsel. It would be part of the job description for a defence counsel. Ostensibly, where there is legal representation, compliance, by the trial court, with section 211 of the Criminal Procedure Code, would be a mere formality, which could be described as merely going through the motions. It would be of crucial importance where the accused is unpresented. In this case, the appellant was represented by an Advocate. It cannot be complained, therefore, that the trial court failed to advise him of those rights, for that was one of the critical duties of his Advocate. 32. Be that as it may, the record of the trial court reflects that on 7th October 2024, the trial court did explain section 211 of the Criminal Procedure Code to the appellant. The requirement, under section 211, is for the court to explain the substance of the charge to the accused person, and of his right to give evidence in defence, whether sworn or unsworn, or to choose to keep quiet. The court should also explain the right to call witnesses. It does not require the court to caution the accused about the charge, or to warn him of the danger of giving unsworn evidence. That language is not in section 211. The duty is to merely educate the accused person of what is expected of him, at that stage of the trial, by way of giving him information, about the charge that he faces, and in respect of which he would be https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4676/eng@2026-04-10 5

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required to adduce evidence in defence, and information on how he can go about handling his defence, by either testifying, sworn or unsworn, remaining silent, and calling witnesses. Section 211 does not require giving of legal advice, for that is what the warnings, that the appellant claims were not given, would entail. 33. The record, of 7th October 2024, merely says, “Section 211 of the CPC explained to the accused.” The substance or content of what was explained was not elaborated. However, that would suffice as proof of compliance with section 211 of the Criminal Procedure Code. In any event, as discussed above, the appellant was represented by an Advocate, who was expected to know everything about section 211, and the trial court did not even have to explain section 211 to the appellant, in the circumstances. 34. On the sentence being harsh, I note that PW1 was 14 years old at the time of the commission of the offence. The charge is brought under section 8(3) of the Sexual Offences Act. That provision covers minor victims of defilement aged between 12 and 15 years of age. PW1 fell within that age bracket. The penalty or sentence prescribed, upon conviction, under section 8(3), is a minimum of 20 years. The trial court did not award the minimum of 20 years, but went up to 25 years, on the basis that the appellant was a trained teacher, who should have known better. He was trained to teach and instruct pupils in primary school, of the same age as PW1, yet he was caught sexually exploiting, taking advantage of and abusing a minor of the age of those that he was expected to be taking care of in school. I do not think that there was unreasonable exercise of discretion, in sentencing, in the circumstances. 35. Overall, I have not found merit, in the appeal herein. I, accordingly, dismiss the same. I affirm the conviction, and confirm the sentence. Orders accordingly. DELIVERED, VIA MICROSOFT TEAMS, DATED AND SIGNED AT MILIMANI, NAIROBI, ON THIS 10TH DAY OF APRIL 2026. W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Advocates Mr. Otieno, instructed by Masiga Otieno & Associates, Advocates for the appellant. Mr. Onanda, instructed by the Director of Public Prosecutions, for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4676/eng@2026-04-10 6

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