Eoo v Republic

4. PW3, Benjamin Okuku, was a village elder. He testified that on 28th July 2021, PW2 came to his home, and reported that PW1 had disappeared for a week, and she needed assistance. He and his team found PW1 at the home of the appellant. He and his people arrested the appellant, and took him to the authorities. 5. PW4, Sellar Simiyu, was a clinician. She attended to PW1, on 30th July 2021, who came escorted by PW2. PW1 had a history of having been defiled. The last sexual activity had been on 28th July 2021. The examination revealed that the hymen was not present, and there was presence of bruises, pus cells and pain in the vagina. She concluded, from the bruises, that there had been penetration. She also examined the appellant, on 2nd August 2021, and found that he had a hernia, and a urinary tract infection, and she treated him for it. 6. PW5, No. 10xxx Police Constable Michael Omondi, was the investigating officer. He had received a report, from PW1, of the defilement, on 31st July 2021. PW1 had already been to hospital, and what he did was to return her there for the filling of the P3 form. 7. It was ruled, on 16th February 2023, that a prima facie case had been made out, and the appellant was put on his defence. He gave an unsworn statement, on 18th March 2025. He denied the charge. 8. He was convicted, on 3rd April 2025, of defilement, and was sentenced to serve 5 years imprisonment, on the same date. The sentence imposed was not what the statute provided for, but the court justified it on the grounds of the age of the appellant. 9. The appellant was aggrieved, hence the appeal. The grounds revolve around the court arriving at the wrong decision; the decision being against the weight of the evidence; and extraneous factors having been considered. 10. Directions were given, on 16th December 2025, for canvassing of the appeal by way of written submissions. The appellant filed written submissions, dated 9th March 2026. The main arguments were that the case was never investigated; the appellant and PW1 were never shown to have been together at any stage; there was contradictory evidence; and section 200 of the Criminal Procedure Code, Cap 75, Laws of Kenya, was not explained to the appellant. 11. On the court coming to the wrong decision, I will start with discussing what constitutes the offence of defilement. It is about having sexual connection with an underage person. The 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 get 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. 12. I will start with the minor victim. The charge identified her as CA, whose age was put at 14, at the material time of the commission of the offence. CA testified on 4th April 2022, as PW1, and said that she was 15, at the date of testimony, having been born on 23rd March 2007. She produced a certificate of birth. That certificate of birth was serial number 24xxx, of 25th July 2019. It indicated the date of birth as 23rd March 2007. The offence was allegedly committed on 28th July 2021. On 28th July 2021, PW1 was 14 years, 4 months and 5 days old. She was, therefore, still 14 years old, and a minor, and the offence of defilement could be committed against her. 13. With regard to penetration of her gentalia, by that of the perpetrator, she testified about how she was told to go to the bedroom of the perpetrator, was forced to remove her clothes, the perpetrator removed his, took his penis and inserted it into her vagina. She was a teenager of 14 years, in Class 7 at the time. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4685/eng@2026-04-10 2

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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. 14. In her own words, she said: “ … He told me to go to his bedroom on his bed. I went to his bed. He forced me to remove my clothes and pants. He also removed his long trouser and inner pants. He put his penis and inserted in to my vagina. He lay on me … I stayed there for one week. For one week he defiled me 3 times … You defiled me 3 times.” 15. That narrative, on penetration, was corroborated by PW4, the clinician who attended to her, on 30th July 2021, a day after she was rescued on 29th July 2021. The history she got was that PW1 had her last sexual activity on 28th July 2021. The proof that there had been defilement was absence of the hymen, bruises in the vagina, presence of pus cells in the vagina and pain in the vagina. 16. The narratives, from PW1 and PW4, and the supporting documentary or forensic evidence, clearly established penetration of the vagina of PW1, hence proof of the second element of the offence of defilement. 17. 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 CA, the PW1 herein. 18. PW1, in her testimony, described the appellant as a brother or cousin of her grandfather, which made him her granduncle. She knew him well. They were close relatives. She was a teenager aged 14, and in the final years of her primary school education. She could not be mistaken about who the perpetrator was. She testified that she stayed with him for a whole week, sleeping on the same bed with him, and having sex with him 3 times that week. It was her vagina that was penetrated by that person, on 3 occasions, during the 1 week that she was with him. The appellant was examined by PW4, and there was evidence, mined from him, which pointed to him having had recent sexual activity. Of course, that was not, of itself, proof that he had had that activity with PW1, but it, nevertheless, contributed to the corroboration of the narrative by PW1, that she had been penetrated, and the appellant had perpetrated that penetration. 19. 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. 20. Was the decision of the trial court against the weight of the evidence? What I have discussed above would provide an answer to this ground. The 3 elements of the offence of defilement were positively established. The trial court had the witnesses before it, and upon hearing them, and evaluating their demeanours, believed the case laid out by the prosecution. 21. Were any extraneous factors considered by the trial court? The appellant has not brought out any such extraneous factors, in his written submissions. I have not seen any, from my perusal and scrutiny of the trial record. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4685/eng@2026-04-10 3

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22. Was the case ever investigated? I would start by asking, what does an investigation entail? Does it not involve reaching out to witnesses, being persons who are privy to information about the matter, and recording statements from them; going out of the way to obtain relevant documentation, such as certificates of birth, and medical records? A report was made to the police by the individuals who were pursuing the matter, principally PW2 and PW3. Witness statements were recorded from these witnesses, including the principal complainant, PW1. Documents were collected or gathered, to support the case, being a certificate of birth and the medical documentation. PW5 also caused the appellant to be presented to PW4 for examination. All that was demonstration of investigation. In any event, the issue before the court was not about whether an investigation was ever conducted, but whether there was evidence presented to the court, upon which it could convict. There was such evidence, from what I have discussed above. 23. Did the evidence put the appellant and PW1 together at any point? PW1 testified that she and the appellant had been together for a whole week. She told the court so, and the trial court believed her. PW2 and PW3 testified that they had information that PW1 was at the home of the appellant. They were close relatives; indeed, members of the same family, living within the same community. PW2 and PW3 testified that they went to the home of the appellant, and found PW1 within the compound of the appellant. It was daytime, and the appellant was not present. They found him elsewhere, and apprehended him. The witnesses did not get the 2 physically together, but there was other evidence, which placed the 2 together. 24. Were there contradictions in the evidence? Yes, there were. The appellant pointed out one, made by PW5, to effect that PW1 and the appellant were found in the same house. However, PW5 was not a key or primary witness to the events. The key witnesses were PW1, PW2 and PW3. They were the ones who were at the house of the appellant. PW5 never went to the house of the appellant, for the appellant was apprehended by PW3, and others, who took him to the police station. PW2 and PW3, the witnesses who were on the ground, at the material time, were very clear, that they did not find the appellant at his house, with PW1, and that they found him elsewhere, where they arrested him from. 25. The appellant has also raised the point about inconsistency in the evidence, as to what PW2 and PW3 found PW1 doing at the compound of the appellant. PW2 said that they found her preparing a charcoal kiln and boiling maize. PW3 said she was roasting maize and burning charcoal. PW1 herself said that she had been asked by the appellant to cut down a mango tree to make charcoal. All these witnesses did not testify the same day. PW1 and PW2 testified on 4th April 2022, while PW3 testified on 25th October 2022. Whatever the case, all were clear, that the activity, that PW1 was engaged in, had something to do with charcoal burning, and making a meal out of maize, whether by boiling or roasting. 26. Were the contradictions or inconsistencies fatal? I do not think so. It is trite that contradictions and inconsistences would be material if they go to the core, and the core here was about whether PW1 was a minor, whether her vagina was penetrated and whether the penetration was by the appellant. The inconsistencies, pointed out, had nothing to do with these core issues. Secondly, the same would matter where there was evidence that the witness, to whom the contradiction or consistency is attributed, was being deliberately untruthful. I am not persuaded that it has been demonstrated that either of the witnesses was being deliberately untruthful. 27. The last issue is about compliance with section 200 of the Criminal Procedure Code. That is about what should happen when the magistrate, who initially handled the matter, goes on transfer, and another magistrate has to take it over. Section 200(3) of the Criminal Procedure Code requires that the magistrate, taking over the matter, informs the accused person of the right to recall witnesses, and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4685/eng@2026-04-10 4

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the accused person may, upon being so informed, exercise that right, to demand the recall of witnesses for rehearing. It is often expressed as a right to demand that the matter commences de novo. There is nothing in the provision that mandates that the request must be acceded to. Case law points to the trial courts having discretion over that, in terms of deciding whether or not to allow it. 28. The trial was commenced before Hon. Olengo, SPM. He handled the prosecution case, by way of hearing and recording the testimonies of PW1, PW2, PW3, PW4 and PW5, and delivered the ruling that placed the appellant on his defence. Hon. Olengo, SPM, went on transfer after that. Hon. Odenyo, SPM, took over, and handled the defence, and wrote and delivered the judgement, which convicted the appellant on 3rd April 2025. 29. Did Hon. Odenyo, SPM, comply with section 200 of the Criminal Procedure Code? Yes, he did, on 11th March 2025. The trial record for that date reads: “Matter is part-heard. Section 200 Criminal Procedure Code explained to the accused.” Was that sufficient? Section 200(3) of the Criminal Procedure Code only requires the magistrate, taking over the case, to inform the accused person of the right under that provision. The record herein indicates that Hon. Odenyo, SPM, did so in this case. Indeed, he appears to have gone beyond informing, to include explaining. It was up to the appellant to exercise his rights, under that provision, upon being informed of that right. The appellant would appear to have had chosen not to exercise that right; hence he did not ask for the recall and rehearing of the witnesses. If he had, there would have been a record of it, and a ruling on it. 30. Overall, I have not found merit, in the appeal herein. I, accordingly, dismiss the same. I affirm the conviction. The sentence imposed is below the statutory minimum provided for under section 8(3) of the Sexual Offences Act. The same should be available for correction, by way of enhancement, to the statutory minimum of 20 years. However, since the respondent has not raised issue with it, I shall not interfere, instead I shall confirm it. 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. Ipapu, instructed by Ipapu P. Jackah & Company, Advocates for the appellant. Mr. Onanda, instructed by the Director of Public Prosecutions, for the respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4685/eng@2026-04-10 5

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