Odongo v Republic

vi) The learned magistrate erred in law and fact in failing to reject the contradictory evidence of the complainant. vii) The learned magistrate erred in law and fact when he ruled that the complainant aged 6 years knew the accused by his first name which was not correct. viii) The learned magistrate erred in law and fact when he failed to find that the mother of the complainant (PW1) gave contradictory evidence on the issue of whether she had known the Appellant with whom they lived in the same plot for three months. ix) The learned magistrate erred in law and fact when he failed to find that PW1 was not speaking the truth when she claimed that she asked other children over the whereabouts of the complainant yet the complainant had already told her. x) The learned magistrate erred in law and fact when he dismissed the Appellant’s defence. The Appellant therefore prayed for the appeal to be allowed and that the judgement conviction be quashed and sentence set aside. 3. This being the first appellate court, its duty is to evaluate the evidence tendered before the trial court and subject it to an independent analysis so as to arrive at its own independent conclusion. This court has to take into account the fact that it did not hear or see the witnesses testify and hence it has to make due allowance for that. See Okeno V R [1972] EA 32. 4. The Appellant had been charged before the Principal Magistrate’s court at Madiany with a main charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act No. 3 of 2006. The particulars were that on 17th Day of October 2022 at around 1700 hours at Omia Odiero Sub location in Rarieda Sub County within Siaya County, intentionally caused his penis to penetrate the vagina of V.A a child aged 6 years. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to section 11(1) of the Sexual Offences Act No. 3 of 2006. The particulars were that on the 17th day of October 2022 at around 1700 hours at Omia Odiero Sub location in Rarieda Sub County within Siaya County intentionally caused his penis to touch the vagina of V.A a child aged 6 years. 5. Pauline Akeyo Odawa (PW1) testified that the complainant was her daughter aged 6 years. That on the material date, she arrived home from work when her daughter (V.A) informed her that the Appellant herein who was known as Elisha had called her to his house. That the child took time before returning back and that she started enquiring from her neighbours when her daughter turned up and who appeared to have been crying. That she confronted her and upon interrogating her, she informed her that the Appellant had given her Kshs 10/=. That the girl first claimed that she had slipped and fell and sustained injury on her vagina. That she thoroughly interrogated her thereupon she claimed that the Appellant had taken her to his house where he undressed her and had sexual intercourse with her and later gave her 10/= and instructed her not to tell anyone. That she rushed her to Kamito Police Station where she booked the report and was issued with a P3 form and later escorted her daughter to Angielo health centre. She identified treatment note (MF-2), PRC form (MF-3), P3 form (MF-4). She later was later alerted that the Appellant had been apprehended. That she also identified the victim’s underpants which were heavily stained with blood (MF-5) as well as the dress which was also stained with blood (MF-6). On cross-examination, she stated inter alia; that she did not see the Appellant calling the minor to his house; that nobody had seen the Appellant taking the minor. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 2

page 2 of 14

6. Gilbert Omondi (PW2) was a clinical officer attached at Angielo Health Centre. He stated that he examined the complainant who was dressed in bloodstained clothes, underpants and dress. That on examination of the genitalia, he noted lacerations on labia minora and that the vagina had blood clots and swollen cervix. That he confirmed that penetration had taken place. He produced the P3 form, PRC form and treatment notes as exhibits. On cross examination, he stated that the Appellant was not examined at the facility. 7. V.A (PW3) tendered an unsworn testimony. She stated that the Appellant called her and led her to his house where he locked the door and directed her to remove her clothes while he also removed his. That the Appellant inserted his penis into her vagina. That the Appellant once through, used a piece of cloth and water to wipe her and then gave her 10/= while instructing her not to tell anyone on what had happened. That she went home only to start bleeding from the vagina. That she briefed her mother who took her to the police and hospital. That the Appellant had spread a sheet on the bed. That she identified her underpants, dress, blue bedsheet as well as a shirt used by the Appellant to wipe her and himself. That she always sees the Appellant at Katoto’s rental houses. On cross examination, she stated inter alia; that she knows the Appellant as Elisha; that she normally sees him at Katoto’s rental houses; that her mother was inside the house when he called her. 8. No. 254446 Pc Eric Odongo (PW 4) attached at Asembo Bay police station testified that on the material date he received a certain lady in company of a child who lodged a report of defilement. That he escorted them to Angielo health centre where the victim was examined and treated. That there was evidence of penetration and that he arrested the Appellant on 18/10/22 at the shores of the lake. 9. No. 118992 Pc Beth Kahari (PW 5) was the investigating officer in the matter. She stated that she visited Asembo police station where she met the complainant and her mother. That she escorted the Appellant to his rental house where she recovered a blue mattress cover (exh 7), white T-shirt which had bloodstains as it had been used to wipe blood from the victim (exh 8). That she also recovered the complainant's dress (exh 6) and underpants (exh 5). That she later escorted the Appellant and complainant to the Government chemist in Kisumu where samples for DNA analysis were taken. That she also obtained the birth certificate of the complainant (Exh 12). 10. Polycarp Lutta Kweyu (PW 6) was the government analyst based at Kisumu. He stated that he received several exhibits for DNA analysis which comprised of a white T-shirt (“A”), Blue mattress cover (“B”), white underpants (“C”), and a white cream dress (“D”). That he also collected buccal swabs from both the Appellant and complainant. That upon analysis, he established that the DNA generated from the T-shirt (“A”), white cream dress (“D”) and underpants (“C”) matched the DNA profile of V.A while the DNA profile generated from the blue mattress cover (“B”) comprised of mixed DNA profile of V.A and Appellant. He produced the exhibit memo and report as exhibits 9 and 10 respectively. On cross examination, he stated that the complainant's blood was confirmed on the underpants, dress and T-shirt while the mattress cover had blood combination of the complainant and Appellant. 11. The trial court later ruled that a prima facie case had been made out against the Appellant who was subsequently placed on his defence. The Appellant opted to tender a sworn testimony. 12. Elisha Odongo (DW1) testified that on 18/10/22 he left for his place of work (fishing) at the lake at 5.00 pm when he was arrested by police officers who took him to the police station where he met a certain woman and a child and that the woman indicated that he was the person being looked for. That he was taken to court the following day where he denied the charges levelled against him. On crossexamination, he stated inter alia; that he used to stay in Kamito; that PW1 was his neighbour; that he did not know the victim; that on the material date (17/10/22) he went to his house at 6.00 pm; that he did not have a mattress; that the mattress was found in his house; that PW1 had a spare key to his house https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 3

page 3 of 14

as she was his friend; that the white T-shirt (exh 8) was found in his house but that the same is not his; that he blames PW1 over the matter because of some money which she wanted and thus threatened to fix him; that he did not know who hurt the victim. 13. The appeal was canvassed by way of written submissions. Both parties duly complied. 14. Vide submissions which are undated, Mr Kware, learned counsel for the Appellant, submitted that the trial court relied on uncorroborated evidence to convict the Appellant. Learned counsel pointed out the evidence of the complainant who gave two versions as to what had caused her injuries namely that she had fallen and then changed tune and came up with allegations of having been penetrated and hence it was contended that the complainant was a liar. It was also submitted that none of the neighbours were called to testify in the matter yet they could have given crucial evidence. It was finally submitted that the Appellant was not placed at the scene of crime and that the Respondent did not prove its case beyond reasonable doubt and thus the appeal should be allowed and the conviction quashed and sentence set aside. 15. Vide submissions dated 12/2/26, Mr Muntui, learned counsel for the Respondent submitted that their case was proved beyond reasonable doubt. That the offence of defilement is rooted on three main ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. That these ingredients are provided for under Section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. See George Opondo Olunga Vs Republic [2016] eKLR) Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: 1. A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement. 2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 3. A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment of a term not less than twenty years. 4. A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. 5. It is a defence to a charge under this section if – a. It is proved that such child deceived the accused person into believing that the or she was over the age of eighteen years at the time of the alleged commission of the offence; and b. The accused reasonably believed that the child was over the age of eighteen years. 6. The belief referred to in sub section (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant. 7. Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused persons in accordance with the provisions of the Borstal Institutions Act and the Children’s Act. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 4

page 4 of 14

8. 16. The provisions of sub section (5) shall not apply if the accused person is related to such child within the prohibited degrees. As regards the age of the victim, reliance was placed in the Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR where the court stated as follows in respect of proving the age of the victim in cases of defilement: “ …..the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, 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 evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 17. Further, counsel submitted that regarding proof of age at the outset that the importance of proving the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. Further, reliance was placed in the case of Mwalengo Chichoro Mwajembe V Republic, Criminal Appeal No 24 of 2015 where the court held that: “ …..the question of proof of age has finally been settled by a recent decisions 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 is sufficient intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni Vs Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed in that whatever the nature of the evidence presented in proof of the victim’s age, it has to be credible and reliable…” That in the present case, the prosecution fully discharged its burden of proving the complainant’s age, which is a critical ingredient under Section 8 of the Sexual Offences Act. That PW1, the Complainant’s mother, produced both the birth certificate confirming that the child’s date of birth as 22nd June 2016, placing her at six years on the date of the offence. That Kenyans courts have consistently held that documentary evidence such as birth certificate constitutes the clearest and most authoritative form of age verification. In Fappyton Mutuku Ngui v Republic [2012] eKLR, the Court of Appeal affirmed that age may be proved through a variety of credible means and that no single mode of proof is mandatory. Further, the mother’s oral testimony on the child’s age provides strong corroboration. Reliance was placed in Francis Omuroni V Uganda (Criminal Appeal No. 2 of 2000) (a decision repeatedly cited with approval in Kenyan jurisprudence where the court held that a parent’s testimony alone is sufficient to establish age, as parents are presumed to know their children’s ages). This position has been reinforced locally in the case of Kaingu Elias Kasomo V Republic [2014] eKLR and Hadson Ali Mwachongo V Republic eKLR, which recognize parental testimony as both credible and reliable, even in the absence of documentary evidence. The medical evidence from PW2 which also recorded the child as being six years old, further corroborates this. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 5

page 5 of 14

That the fact that the victim (PW3) during her unsworn testimony stated that she did not know her age, the same did not detract from the prosecution’s case. That Kenyan jurisprudence, notably in Hillary Nyongesa V Republic [2010] KECA 138 (KLR) establishes that the age of a victim may be proved by documentary evidence, medical evidence, or the testimony of the parent or guardian. That since the victim is a minor of tender years, her lack of knowledge regarding her specific age is not fatal; the court relies on the objective evidence provided by the mother and the official certificate. That across the record, the evidence on age is uniform and unchallenged. That the PRC form, P3 form and all testimonies consistently place the child at six years of age at the material time. That no contrary evidence was offered by the defence and that in line with the authorities above, including Republic v Dennis Mutuku Nzomo [2019] eKLR, the prosecution satisfied the requirement of proving age beyond reasonable doubt. The trial court therefore correctly found that the complainant was six years old, binging the charge within Section 8(2) of the Sexual Offences Act, and thus this finding should not be disturbed. 181. As regards the aspect of penetration, Section 2 of the Sexual Offences Act No. 3 of 2006 defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. That penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. That Section 124 of the Evidence Act, Cap 80 provides as follows: “ Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with the Section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, 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.” 18. Reliance was placed in the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 199…the Supreme Court of Uganda had the following to say in respect of proving penetration: “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual inter course is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt. 19. That in the present case, the prosecution proved penetration to the required legal standard through clear, consistent and medically corroborated evidence. That the complainant gave a detailed account of how the Appellant removed her dress and panties and inserted his penis into her vagina, which satisfies the statutory definition of penetration under Section 2 of the Sexual Offences Act, requiring only the slightest intrusion. Her account was immediately reported to PW2 and was consistent throughout. That Kenyan courts have repeatedly held that a child’s testimony on penetration need not https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 6

page 6 of 14

be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. That the medical evidence in this case strongly corroborated the complainant’s testimony. That PW2, a qualified clinical officer noted that the victim hymen was broken and that she had a foul-smelling discharge, finding which are consistent with recent penetration. Additionally, the presence of blood on the victim’s genitalia and clothing offers further corroboration. Under Section 2 of Sexual Offences Act, penetration is defined as the partial or complete insertion of the genital organs into genital organs of another person. That the medical findings of a broken hymen and the victim’s narrative of insertion satisfy this statutory definition. Reliance was placed on the case of Hillary Nyongesa v Republic [2010] eKLR and Kassim Ali v Republic [2006] eKLR, where the Court of Appeal reaffirmed that hymenal tear whether fresh or healed together with vaginal laceration constitute strong proof of penetration. Further, counsel stated that Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case, it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and Geo Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. That the clinical findings are direct, immediate and consistent with recent sexual intrusion. That the defence offered no expert evidence to challenge these findings. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Further, forensic evidence linking the biological material to the incident provided additional corroboration. That PW6 the Government Analyst, confirmed that the blood stains found on the mattress cover contained a mixed DNA profile of both the victim and the Appellant. That this finding places the accused at the scene and links him directly to the act that caused the bleeding and injury, thereby solidifying the proof of penetration. That the convergence of the victim’s testimony, the medical proof of a broken hymen, and the DNA evidence conclusively establishes this ingredient. Counsel concluded that the second ingredient of penetration was adequately proven based on the victim’s evidence and the medical evidence. 20. As regards identification, it was submitted that the identification of the Appellant was firm, consistent, and free from any possibility of mistake. That the complainant knew the accused prior to the incident and positively recognized him as the perpetrator and that it was a case of recognition rather than identification of a stranger which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Ohers v Republic [1980] eKLR, the Court of Appeal held that recognition is “more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the accused.” The Complainant’s evidence was direct, unwavering, and supported by the circumstances of close physical proximity during the commission of the offence, which left no room for doubt. That based on the doctrine of recognition, as the accused was well known to the prosecution witness prior to the incident, PW1 the mother of the victim testified that the Appellant was her neighbour and that they had resided in the same neighborhood for two months. She positively identified him in court as the person who had called her daughter away. In Kenyan jurisprudence, specifically in R V Turnbull & Others [1977] 3 All 549, courts have established that recognition of a known person carries more probative value than the identification of a stranger, as the possibility of error is significantly reduced. That the identification was further corroborated by the by the victim (PW3) who demonstrated an intimate knowledge of the accused. She testified that the accused called her by name and led her to his house, indicating a clear interaction where she recognized him. That during cross examination, she confidently stated that she knows the accused and that he is Elisha and even pointed him out in court. The fact that the incident occurred inside the accused’s house https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 7

page 7 of 14

further solidifies the identification; the victim had the opportunity to observe him at close range during the ordeal. Finally, the counsel stated that forensic evidence provided scientific corroboration of the accused’s identity linking him directly to the scene. PW6, the Government analyst established that the DNA profile from mattress cover (Exhibit 7) was a mixed profile matching both the victim and the accused which confirms that he accused was not merely a neighbour spotted from a distance, but was physically present and involved in the incident. Under Section 124 of the Evidence Act, the victim’s evidence was properly corroborated by these forensic findings, negating any possibility of mistaken identity. That flowing from the above, it is clear that the cumulative and conjunctive elements in a charge of defilement all proved and the evidence was consistent and corroborative hence sufficient to convict the Appellant for the offence. 21. On whether the sentence passed on the Appellant was appropriate, counsel placed reliance in the case of Shadrack Kipkoech Kogo -vs- R. Eldoret Criminal Appeal No. 253 of 2003 the Court of Appeal No. 253 of 2003 the Court of Appeal stated thus as regards interference with sentence: “ Sentence is essentially an exercise of discretion by the trial court and for this curt to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (See also Sayeka – vs- R, (1989 KLR 306)” Also, the Court of Appeal in Benard Kimani Gacheru vs Republic [2002] eKLR restated that: It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the matters already states is shown to exist.” Further, reliance was placed in the case of Republic v Elijah Munee Ndundu and Another [1978] eKLR the Court while considering the purpose of penalties in criminal cases observed: “Reformation is a fair enough consideration but not the main object of penalties in criminal cases. One of the aims of punishment is to deter the individual offender and also to deter others who may be tempted to commit similar offences (See Samuel v The Republic [1968] EA 1). It is an important function of any State to protect its citizens. This involves protection of society from crime and criminals.” The court went further to observe “in considering whether to impose custodial sentences, and particularly long terms of imprisonment, one consideration that plays an important role is the need to remove the offender from society. However, as stated by Lord Denning before the Royal Commission on Capital Punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.” 22. It is noted that the Appellant faced a main charge of defilement contrary to section 8(1) of the Sexual Offences Act No. 3 of 2006. The Respondent was under obligation to prove the charge against the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 8

page 8 of 14

Appellant beyond any reasonable doubt. See the case of Woolmington Vs Dpp [1935] AC 462. The said offence of defilement presented three essential ingredients being the age of the victim (must be a minor), penetration and the proper identification of the perpetrator. These ingredients are provided for under Section 8(1) of the Sexual Offences Act No. 3 of 2006 and must each be proven for a conviction to ensue. See George Opondo Olunga Vs Republic [2016] eKLR) Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: - 23. (1) A person who commits an act which causes penetration with a child is guilty of an offence termed as defilement. (2) A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment of a term not less than twenty years. (4) A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years. (5) It is a defence to a charge under this section if – (a) It is proved that such child deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and (b) The accused reasonably believed that the child was over the age of eighteen years. (6) The belief referred to in sub section (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant. (7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused persons in accordance with the provisions of the Borstal Institutions Act and the Children’s Act. (8) The provisions of sub section (5) shall not apply if the accused person is related to such child within the prohibited degrees. As regards the age of the victim, reliance was placed in the Court of Appeal in Edwin Nyambogo Onsongo Vs. Republic (2016) eKLR where the court stated as follows in respect of proving the age of the victim in cases of defilement: “ …..the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, 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 evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 24. Regarding proof of age at the outset which reinforces the importance of establishing the age of a victim in sexual offences is paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 9

page 9 of 14

Further, reliance was placed in the case of Mwalengo Chichoro Mwajembe V Republic, Criminal Appeal No 24 of 2015 where the court held that: “…..the question of proof of age has finally been settled by a recent decisions 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 is sufficient intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. It has even been held in a long line of decisions from the High Court that age can also be proved by observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni Vs Uganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed in that whatever the nature of the evidence presented in proof of the victim’s age, it has to be credible and reliable…” Looking at the entire evidence presented at the trial, it is noted that the prosecution fully discharged its burden of proving the complainant’s age, which is a critical ingredient under Section 8 of the Sexual Offences Act. Indeed, the Complainant’s mother (PW1), produced the birth certificate confirming that the child’s date of birth as 22nd June 2016 which placed her at six years on the date of the offence. The Kenyan courts have consistently held that documentary evidence such as birth certificate constitutes the clearest and most authoritative form of age verification. In Fappyton Mutuku Ngui v Republic [2012] eKLR, the Court of Appeal affirmed that age may be proved through a variety of credible means and that no single mode of proof is mandatory. Further, the mother’s oral testimony on the child’s age provides strong corroboration. In Francis Omuroni V Uganda (Criminal Appeal No. 2 of 2000), a decision repeatedly cited with approval in Kenyan jurisprudence where the court held that a parent’s testimony alone is sufficient to establish age, as parents are presumed to know their children’s ages. This position has been reinforced locally in the case of Kaingu Elias Kasomo V Republic [2014] eKLR and Hadson Ali Mwachongo V Republic eKLR, which recognize parental testimony as both credible and reliable, even in the absence of documentary evidence. The medical evidence presented by the clinical officer from Angielo Health Centre (PW2) recorded the complainant as being six years old which further corroborates the aspect of the age of the victim. Even though the victim (PW3) during her unsworn testimony stated that she did not know her age, the same did not detract from the prosecution’s case. That Kenyan jurisprudence, notably in Hillary Nyongesa V Republic [2010] KECA 138 (KLR) establishes that the age of a victim may be proved by documentary evidence, medical evidence, or the testimony of the parent or guardian. I find that since the victim is a minor of tender years, her lack of knowledge regarding her specific age is not fatal and that she ought to be excused for that as this court mainly relies on the objective evidence provided by the mother and the official certificate of birth which leaves no doubt that the evidence on age is uniform and unchallenged. Again, the PRC form, P3 form and all testimonies consistently placed the child at six years of age at the material time. There was no contrary evidence offered by the defence and that in line with the authorities cited above, including Republic v Dennis Mutuku Nzomo [2019] eKLR, it is my finding that the prosecution satisfied the requirement of proving age beyond reasonable doubt. The trial court therefore correctly found that the complainant was six years old, binging the charge within Section 8(2) of the Sexual Offences Act, and thus this finding must be upheld. 25. As regards the aspect of penetration, Section 2 of the Sexual Offences Act No. 3 of 2006 defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. In most cases, penetration is proved through the evidence of the victim. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 10

page 10 of 14

The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. Section 124 of the Evidence Act, Cap 80 provides as follows: “ Notwithstanding the provisions of Section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with the Section on behalf of the Prosecution in the proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offence, 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.” 26. In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 199…the Supreme Court of Uganda had the following to say in respect of proving penetration: “ The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually the sexual inter course is proved by the victim’s own evidence and corroborated by the medical evidence or other evidence. Though desirable it is not hard and fast rule that the victim’s evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.’’ 27. In the present case, I find that the prosecution proved penetration to the required legal standard through clear, consistent and medically corroborated evidence. The complainant gave a detailed account of how the Appellant invited her to his house where he removed her dress and panties and inserted his penis into her vagina. This satisfies the statutory definition of penetration under Section 2 of the Sexual Offences Act, requiring only the slightest intrusion. Her account was immediately reported to her mother (PW1) who escorted her to the police and then to Angielo Health Centre where she was examined by the clinical officer (PW2). Her evidence was consistent throughout. The Kenyan courts have repeatedly held that a child’s testimony on penetration need not be scientifically perfect so long as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim’s account of how the male genitalia came into contact with her genitalia is sufficient to prove penetration. I find the medical evidence in this case strongly corroborated the complainant’s testimony. Indeed, the clinical officer (PW2), noted that the victim hymen was broken and that she had a foul-smelling discharge, findings which are consistent with recent penetration. Additionally, the presence of blood on the victim’s genitalia and clothing offers further corroboration. Under Section 2 of Sexual Offences Act, penetration is defined as the partial or complete insertion of the genital organs into genital organs of another person. Hence, the medical findings of a broken hymen and the victim’s narrative of insertion satisfy this statutory definition. In the case of Hillary Nyongesa v Republic [2010] eKLR and Kassim Ali v Republic [2006] eKLR, the Court of Appeal reaffirmed that hymenal tear whether fresh or healed together with vaginal laceration constitute strong proof of penetration. Further, Kenyan jurisprudence makes clear that medical evidence is not indispensable where the complainant’s testimony is credible, but in this case, it is overwhelmingly present and supportive. In Fappyton Mutuku Ngui v Republic [2012] eKLR and George Philip Muthuka v Republic [2015] eKLR, the courts held that penetration may be proved through either direct testimony or circumstantial indicators such as genital injuries. In the present circumstances, the clinical findings are https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 11

page 11 of 14

direct, immediate and consistent with recent sexual intrusion. The defence neither offered any contrary expert evidence to challenge these findings nor offered evidence which cast doubt upon that of the Respondent. As such, the trial court correctly held that the element of penetration was proved beyond reasonable doubt. Further, forensic evidence linking the biological material to the incident provided additional corroboration. The Government Analyst (PW6), confirmed that the blood stains found on the mattress cover contained a mixed DNA profile of both the victim and the Appellant. This finding places the Appellant at the scene and links him directly to the act that caused the bleeding and injury, thereby solidifying the proof of penetration. I find the convergence of the victim’s testimony, the medical proof of a broken hymen, and the DNA evidence conclusively establishes the ingredient of penetration. Iam satisfied that the second ingredient of penetration was adequately proved based on the victim’s evidence and the medical evidence beyond any reasonable doubt. 28. As regards identification of the Appellant as the perpetrator, i find that the identification of the Appellant was firm, consistent, and free from any possibility of mistake. The evidence tendered revealed that the complainant knew the Appellant prior to the incident and positively recognized him as the perpetrator and that it was a case of recognition rather than identification of a stranger which Kenyan courts have consistently held to be the most reliable form of identification. In Anjononi & Ohers v Republic [1980] eKLR, the Court of Appeal held that recognition is “more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the accused.” The Complainant’s evidence was direct, unwavering, and supported by the circumstances of close physical proximity during the commission of the offence, which left no room for doubt. Hence, based on the doctrine of recognition, as the Appellant was well known to the prosecution witness prior to the incident, PW1 the mother of the victim testified that the Appellant was her neighbour and that they had resided in the same neighborhood for two months. She positively identified him in court as the person who had called her daughter away. The complainant also testified that the Appellant whom she had known as Elisha called her and directed her to go to his house which she willingly agreed. In Kenyan jurisprudence, specifically in R V Turnbull & Others [1977] 3 All 549, courts have established that recognition of a known person carries more probative value than the identification of a stranger, as the possibility of error is significantly reduced. I find that the identification was further corroborated by the victim (PW3) who demonstrated an intimate knowledge of the Appellant. She testified that the Appellant called her by name and led her to his house, indicating a clear interaction where she recognized him. During cross examination, she confidently stated that she knows the Appellant and that he was known as Elisha and even pointed him out in court. The fact that the incident occurred inside the Appellant’s house further solidifies the ingredient of identification as it is clear that the victim had the opportunity to observe him at close range during the ordeal. It is also noted that forensic evidence provided scientific corroboration of the Appellant’s identity linking him directly to the scene. PW6, the Government analyst, established that the DNA profile from the mattress cover (Exhibit 7) was a mixed profile matching both the victim and the Appellant which confirms that the Apppellant was not merely a neighbour spotted from a distance, but was physically present and involved in the incident. Under Section 124 of the Evidence Act, the victim’s evidence was properly corroborated by these forensic findings, negating any possibility of mistaken identity. Hence, flowing from the above, it is clear that the cumulative and conjunctive elements in a charge of defilement all proved and the evidence was consistent and corroborative hence sufficient to convict the Appellant for the offence. I find the Appellant’s defence that he has been falsely charged over a disagreement with the mother of the victim over some money not believable. The Appellant was positively identified by the victim and that during cross-examination, he admitted that the victim’s mother was his neighbour and that the mattress cover was found in his house as well as the white T-shirt. Iam satisfied that the Appellant was squarely placed at the scene of crime as the perpetrator of the offence. Hence, the finding on https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 12

page 12 of 14

conviction on the main charge of defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act by the trial court was quite sound and must be upheld. 29. As regards the sentence imposed on the Appellant, it is noted that the trial court meted a life sentence in accordance with section 8(20 of the Sexual Offences Act. It is trite that sentencing is the discretion of a trial court. In the case of Shadrack Kipkoech Kogo -vs- R. Eldoret Criminal Appeal No. 253 of 2003 the Court of Appeal No. 253 of 2003 the Court of Appeal held as follows as regards interference with sentence: “ Sentence is essentially an exercise of discretion by the trial court and for this curt to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (See also Sayeka – vs- R, (1989 KLR 306)” Also, the Court of Appeal in Benard Kimani Gacheru vs Republic [2002] eKLR restated that: ‘’It is now settled law, following several authorities by this Court and by the High Court, that sentence is a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial court overlooked some material factor, or took into account some wrong material or acted on a wrong principle. Even if, the Appellate Court feels that the sentence is heavy and that the Appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with the discretion of the trial court on sentence unless anyone of the matters already states is shown to exist.” Also, in the case of Republic v Elijah Munee Ndundu and Another [1978] eKLR the Court while considering the purpose of penalties in criminal cases observed: “ Reformation is a fair enough consideration but not the main object of penalties in criminal cases. One of the aims of punishment is to deter the individual offender and also to deter others who may be tempted to commit similar offences (See Samuel v The Republic [1968] EA 1). It is an important function of any State to protect its citizens. This involves protection of society from crime and criminals.” The court went further to observe “in considering whether to impose custodial sentences, and particularly long terms of imprisonment, one consideration that plays an important role is the need to remove the offender from society. However, as stated by Lord Denning before the Royal Commission on Capital Punishment for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them.” It is noted that the Appellant took advantage of the vulnerable and hapless victim and sexually assaulted her. His actions has had the effect of scarring her both physically and emotionally. The Appellant was expected to protect the complainant who was a young child but not to prey on her. The Appellant requires to be removed from the society as he is a danger to vulnerable young children. I finds that a deterrent sentence was called for and which is provided under section 8(2) of the Sexual Offences Act. The Supreme Court of Kenya in Petition No. 18 of 2023 R Vs Joshua Gichuki and others [2024] eKLR held that the minimum sentences prescribed under the Sexual Offences Act are lawful and shall remain so until the same are declared unlawful. Hence, the sentence imposed by the trial court was https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 13

page 13 of 14

quite lawful in all respects as it is the sentence provided for by statute. I see no reason to interfere with the said sentence as the same was lawful and merited in the circumstances. 30. In view of the foregoing observations, it is my finding that the Appellant’s appeal is devoid of any merit. The same is dismissed. The conviction and sentence of the trial court is hereby upheld. DATED AND DELIVERED AT SIAYA THIS 16TH DAY OF APRIL 2026. D.KEMEI JUDGE In the presence of: Elisha Odongo Odongo......................Appellant. M/s Kauma………………............for Respondent. Maurine…………......................Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4802/eng@2026-04-16 14

page 14 of 14