Winston Otieno Onyango v Republic

4. Being dissatisfied with the decision of the trial court, the Appellant instituted this appeal against the conviction and sentence on three amended grounds of appeal on the face of his Memorandum of Appeal filed on : i). That the learned trial magistrate grossly erred in law and fact in failing to note that identification was not free from possibility of error. ii). That the learned trial magistrate grossly erred in law and fact in failing to find that age being an ingredient was not proved beyond any reasonable doubt. iii). That the learned trial magistrate erred in law and fact in failing to find that the Appellant’s defence was cogent and truthful. xii) That the learned trial magistrate erred in law and fact in relying on non-factual evidence without any tangible or supporting proof and proceeding to find that the prosecution had proved its case beyond reasonable doubt. The Appellant therefore prayed that the appeal be allowed and the conviction be quashed and sentence set aside. 5. This being the first appellate court, its duty is to re-evaluate the evidence presented to the trial Court and subject to an independent analysis so as to reach an independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account of the fact that it neither heard nor saw the witnesses and therefore to give due allowance for that. In Okeno – VS – Republic (1972) EA 32, it was held that; “ An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court’s own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court’s findings and conclusions; it must make its own findings and conclusions. Only then can it decide whether the magistrate’s findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” 6. The evidence tendered before the trial court was as follows; 7. Irene Akinyi Ouma (PW1) testified that she works at Ukwala Sub County Hospital. That she was able to identify a P3 form and Post Rape Care form which she had earlier filled during the examination of the complainant. She stated that she examined the complainant aged 17 years who had claimed that she had left a disco at Luhano on 8/1/2023 while in a group of three girls when she was lured by a stranger into a bush where she was strangled and defiled. That the complainant had blood stained clothing and that the complainant looked intoxicated. That she had a swollen face with bruises and lacerations on the neck region which was a sign of strangulation. That her cervix had bruises and that there was a vaginal discharge. That tests turned negative for pregnancy and Syphilis. That there were no sperm cells or red blood cells seen. She produced the P3 form as exhibit one while the Post Rape Care form was produced as exhibit two. On cross-examination, she stated inter alia; that the patient denied having taken alcohol despite smelling of it; that the complainant indicated that she was aged 17 years; that the hymen was broken and that the cervix indicated that there was forced vaginal penetration; that the patient had injuries on her eyes. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5189/eng@2026-04-24 2

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On re-examination, she stated that the complainant could recall the assault and the forced sexual intercourse. 8. Linet Akinyi (PW2), testified that she was a student at Nyamira Secondary School and then heading to form three. That she was currently aged 18 years old and that her birth day is on 22nd August. That she recalled on 7/1/2023 at 9.00PM she was leaving a disco at Luhano in company of Marion and while on the way, they met a man who directed Marion to proceed and leave her with him. That the man seized her and took her behind a certain building and who started beating her as she screamed. That the man tried to strangle her and later removed her trouser and underpants as well as her top and bra. That the man also removed his clothes and defiled her. That when the man left to fetch his motorcycle, she managed to run away. That the man took her trouser and underpants. That she went to the roadside and met some people she knew and briefed them on what had happened and that she described how the assailant looked like and they agreed that they knew him. That they escorted her to the scene where they found her trouser and underpants as well as the assailant’s slippers. That she was assisted with some clothing and they went to Ukwala police station and then to Ukwala hospital. That the assailant was later apprehended by her friends and escorted to the hospital and that she was able to positively identify him and who was rearrested by police from Ukwala police station. That the assailant had introduced himself to her at the time as Winston. That she was able to see him using the street lights. On cross-examination, she stated inter alia; that she had not known the Appellant prior to the incident; that the Appellant introduced himself to her as Winstone; that the incident happened at 3.00 AM; that she had left home for the disco at 9.00 AM; that the Appellant pulled her and carried her into a bush within Luhano; that she could see the Appellant using the street lights. 9. No. 258895 Pc Carolyne Ajando (PW3) testified that she was the investigating officer. That on the morning of 8/1/2023 around 0430 hours, she was alerted of an incident of defilement. That she later escorted the complainant to Ukwala Sub county Hospital. That the victim had a swollen face and bruises around her neck. That she later visited the scene which was near a river and some buildings and that the area was bushy/ That the suspect was later presented by members of public as the assailant and who was identified by the complainant. That the assailant ahd already been beaten by the public and taken to Ukwala sub county hospital. That she later took the victim to Siaya County Referral Hospital for age assessment where it was established that she was aged 17 years old. That she produced the same as an exhibit. That she also produced the clothes belonging to the complainant that she had worn on the date of the incident. On cross-examination, she stated inter alia; that the initial report in the OB was that of rape but that defilement was established after the victim was taken for age assessment; that she did not know the owner of the blood on the white T-shirt(Exhibit 8); that the distance between the bush and the building is about 100 metres; that she was not present when the victim made the report. 10. Marion Anyango Ochieng (PW4) testified that she recalled the events of 7/1/2023. That she was with Night and the complainant at a certain disco at Luhano market. That they left the club at around 3.00 AM and that as soon as they came outside, she realized that Night was still inside the disco and thus she decided to go inside the disco to llok for her and that she left the complainant with a man she did not know and that when she came back she did not find the complainant of the man. That she decide to board a motorcycle home and hoped to find the complainant at home. That she did not find the complainant and then decided to go back to Luhano to look for her. That she learnt later that the man she left with the complainant later turned against the complainant and defiled her. That she was able to identify the man as there were street lights and had seen his face clearly and that the man spoke to her as she was standing right in front of him. She pointed to the Appellant in the dock as the said man. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5189/eng@2026-04-24 3

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On cross-examination, she stated that there were street lights at Luhano market as the market is along a highway. That she did not witness the incident. 11. The trial court later ruled that the Appellant had a case to answer. The Appellant opted to tender a sworn statement. 12. Winstone Otieno Onyango (DW1), testified that he recalls the events of 7/1/2023 from 9.00 pm to 3.00 am. That he was at home with his grandmother and was later called by a lady friend and he left for Ratado where he met the lady. That he stayed there until the following day at 8.45 am. That on returning home, he was stopped by people on motocycles who escorted him to Ukwala police station after tying his hands and beating him. That the complainant came there but he did not know her. That he was later charged. That he knows nothing about the allegations. On cross-examination, he stated inter alia; that he did not know the complainant and only met her in court; that he did not know PW4 and only met her in court; that he had not had any altercation with any of the witnesses; that the lady he was with was called Grace but did not know her other names. 13. When considering the evidence on record, the learned trial Magistrate observed that the defense brought by the Appellant did not in any way cast doubt on the prosecution’s case and convicted him under section 215 of the Criminal Procedure Code. 14. The appeal was canvassed by way of written submissions. Both parties duly complied. 15. I have considered the record of the trial court and the submissions tendered. I find the issue for determination is whether the Respondent proved its case beyond reasonable doubt. 16. The burden of proof in all criminal trials is upon the prosecution to prove and that the standard is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462. 17. The offence of defilement has three essential ingredients which must be proved by the prosecution before a conviction can be achieved. The said elements include; 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 proved for a conviction to ensue. “ 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 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 for a term of 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5189/eng@2026-04-24 4

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b. 18. the accused reasonably believed that the child was over the age of eighteen years. (6) The belief referred to in subsection (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 person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act. (8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees. As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim.. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a 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.” (emphasis added). 19. Regarding proof of age, and as noted above it is noteworthy to state 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. 20. Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years, there are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic, Criminal Appeal No. 24 of 2015 (UR) where the court stated as follows: “ ……..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 if the child is sufficiently 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 observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher -Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely 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 is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...” 21. In the present case, the prosecution discharged this burden through the age assessment (Exhibit 4) produced by PW3, which established that the age of the complainant as 17 years at the time of the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5189/eng@2026-04-24 5

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incident. This was further corroborated by the Clinical Officer (PW1), satisfying the legal threshold. Consequently, the sentence of fifteen years’ imprisonment was legally anchored on the proven age of the victim. I find that the age of the minor was proved beyond reasonable doubt. 22. 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. 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. 23. 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 that 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 offense, 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.” 24. In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995, 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 intercourse 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.” 25. In the present case, PW2 gave a graphic account of the Appellant inserting his genitalia into hers, which was corroborated by PW1’s medical findings such as proof of vaginal penetration, inflammation, lacerations on the cervix and discharge. 26. The Appellant’s defense of an alibi is diminished by the direct evidence of the complainant who was with him during the ordeal assisted by street lights to see him and the medical evidence. In Seme v Republic [2008] eKLR, that a mere denial cannot overturn positive medical findings corroborating the commission of the offense. The Appellant’s claim that he was elsewhere during the incident was properly rejected by the trial court as the same was a mere denial, yet the evidence placed him at the scene of the crime. 27. 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. 28. In this case, the ingredient of penetration, the prosecution relied on the sworn testimony of the minor describing the insertion of a penis into her vagina, which was corroborated by the medical evidence of PW1. The Clinical Officer examined the genitalia and concluded that there was vaginal penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5189/eng@2026-04-24 6

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This aligns with the definition of penetration under Section 2 of the Sexual Offences Act, which requires even the slightest partial insertion. This principle was reinforced in Mark Oiruri Mose v Republic, Criminal Appeal No. 295 of 2006, where the Court of Appeal at Kisumu held that the slightest penetration of the female sex organ by the male sex organ is sufficient to constitute the offence, and such penetration need not be complete or rupture the hymen. 29. Furthermore, 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. Here, the clinical findings are direct, immediate, and consistent with recent sexual intrusion. 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. Hence, I find the second ingredient, namely penetration, was adequately proved based on the victim’s evidence and the medical evidence. 30. As regards the issue of identification/participation of the Appellant, the same was firm, consistent, and free from any possibility of mistake. The complainant positively recognized him as the perpetrator. 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. Again, the evidence of the complainant’s companion (PW4) bolstered the evidence of identification. There were street lights in the area at the time and further that the Appellant had introduced himself to the complainant that his name was Winstone. There was thus no issue of mistaken identity. 31. The environmental circumstances also favoured accurate identification. The incident occurred in a setting where the complainant had sufficient opportunity to see and recognize the Appellant. The Court of Appeal in Wamunga v Republic [1989] eKLR emphasized that courts must evaluate lighting, distance, and duration of encounter when assessing identification. Here, the interaction was prolonged, intimate, and involved direct contact, making misidentification practically impossible. The complainant’s emotional distress immediately after the incident further supports the reliability of her identification as she described the perpetrator to the members of public who came to her rescue and managed to apprehend the Appellant. Indeed, I find that it was highly unlikely that the complainant could just to fix the Appellant who was a stranger yet they did not know each other before. I find the identification was thus safe, and the defense was rightly rejected as a diversionary tactic. 32. In the landmark case of R v Turnbull & Others [1977] QB 224, the court established guidelines for identification evidence, stating that recognition of a known person carries more weight than the identification of a stranger. Although the Appellant raised an alibi defence, the trial court was justified in rejecting it because it was preposterous and unbelievable. In Uganda v Wabwire Benson, HCT-09CSC-0259-2016, it was held that a defence of alibi cannot stand where the accused is positively placed at the scene by the prosecution evidence. 33. Furthermore, the Courts have held that where recognition is supported by the conduct of the accused and surrounding circumstances, the evidence is exceptionally strong. In Simiyu & Another v Republic [2005] eKLR, the Court of Appeal held that prompt and consistent reporting of the assailant’s identity enhances evidential reliability. In this case, the complainant reported the Appellant’s description immediately and who swung into action and managed to apprehend him. There was no evidence of animosity or mistaken identity. The identification was therefore accurate, reliable, and proved beyond reasonable doubt. The ingredient of identification was therefore sufficiently proved, going by the above evidence, 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5189/eng@2026-04-24 7

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offence. Hence, the finding on conviction by the learned trial magistrate was quite sound and must be upheld. 34. On whether the sentence imposed upon the Appellant was appropriate, the statutory prescription and judicial discretion, the trial court imposed a sentence of 15 years’ imprisonment pursuant to Section 8(4) of the Sexual Offences Act, which prescribes this penalty for the defilement of a child aged between 16-17 years. While the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared mandatory minimum sentences unconstitutional, it affirmed that courts must consider the gravity of the offense and the specific circumstances before sentencing. 35. In Jared Koita Injiri v Republic [2019] eKLR, the Court of Appeal upheld a life sentence for defilement of a minor, noting that despite the discretion granted by Muruatetu, the severity of the crime against a child of tender years justifies the harshest penalty. The trial magistrate exercised this discretion judicially, noting the mandatory nature of the provision and the need to deter such conduct. 36. In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal 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 court 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)” The Court of Appeal in Bernard 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.” (Emphasis added) 37. As regards proportionality and protection of the public, the sentence of 15 years’ imprisonment is proportionate to the offense and serves the interests of justice. The victim impact statement noted the trauma suffered by the victim, and the medical evidence confirmed physical injury (laceration on cervix and physical injuries on the body generally). Courts have consistently held that sentences in sexual offenses must reflect the societal outrage and the need to protect vulnerable children from sexual predators. Given the Appellant's lack of remorse and his attempt to dismiss the proceedings as far-fetched, the 15 year sentence ensures the protection of the public and serves as a deterrence, aligning with the principles of sentencing set out in the Criminal Procedure Code. Again, the Supreme Court in Republic Vs Joshua Gichuki Mwangi & Others Petition No. 18 of 2023, it was held that the minimum sentences provided for in the Sexual Offences Act remain lawful until the statute is declared unconstitutional. Hence, as matters stand, the sentence of life imprisonment is the appropriate sentence which was imposed by the trial court. Iam therefore not inclined to interfere with the sentence imposed by the trial court as the same is the minimum possible in law and was warranted in the circumstances. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5189/eng@2026-04-24 8

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38. In the result, it is my finding that the Appellant’s appeal is devoid of any merit. The same is dismissed. The conviction and sentence by the trial court is hereby upheld DATED AND DELIVERED AT SIAYA, THIS 24TH DAY OF APRIL 2026. D.KEMEI JUDGE In the presence of : Winstone Otieno Onyango.................Appellant. Mocha...........................................for Respondent. Mourine.........................................Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5189/eng@2026-04-24 9

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