Wycliff Ochieng Omito v Republic

a. That the trial court erred in law and fact by convicting and sentencing the appellant to life imprisonment without considering that the evidence as produced by the prosecution was weak, insufficient and incapable of proof beyond reasonable doubt. b. That the medical evidence as adduced does neither prove the age of the complainant nor the aspect of penetration. c. That the trial court erred in law and in fact when it took the appellant through the trial without informing him of his rights to legal representation occasioning him prejudice. 7. The appeal was disposed off by way of submissions. However, only the appellant’s submissions were on record at the time of writing this judgment. The appellant submitted that the trial court arrived at its decision to convict him based on contradictory testimony of the prosecution witnesses thus prejudicing him. 8. That the prosecution never proved its case to the satisfactory level beyond reasonable doubt and that the sentence of life imprisonment was harsh, punitive, excessive and undignifying in nature as it rendered the mitigating factors of no probative value. 9. This being the first appellate Court, its duty is well spelt out, namely, to re-evaluate the evidence tendered before the trial court and subject it to a fresh analysis so as to reach an independent conclusion and findings but at all times bearing in mind that it did not see the witnesses testify. (See Okeno v Republic [1972] EA 32.) 10. At the trial, the complainant, SM testified as PW1. It was her testimony that on the 23/8/2024 at around 2pm, having found the toilet full, she opted to go relieve herself in a thicket. 11. That the appellant whom she identified as Jaseme found her and slapped her, removed her inner pant, put her down in the thicket, slapped her cheeks, removed his black trouser and red t-shirt, lay on her and touched her vagina using his fingers. That the appellant took his ‘dudu’ and put it in her ‘dudu’. 12. She raised an alarm by calling out her aunt and that Nyachae and Osir came and beat the appellant. That the appellant had enticed her with Kshs. 20/ and told her not to tell anyone but she told her aunt. That she was taken to Usoma Health Centre. She identified the appellant as the person who defiled her and stated that, she did not know him prior to the incident but that she heard her mother call him ‘Jaseme’. 13. In cross-examination, she told the court that Nyachae saw him holding her in the thicket. She reiterated that she did not know the appellant prior to the incident. 14. PW2, Samuel Onyango Agwei testified that he is also known as Nyachae. He testified that on the 23/8/2024 at 1pm he had come back to his house when he saw a man in the thicket. That he knew the man as Jaseme and that the man’s zip was unzipped while the minor had her inner pant removed. 15. That he raised the alarm calling on members of the public to come and see what was going on. That he interrogated the minor and she revealed that Jaseme wanted to sleep with her and had started inserting his penis into her vagina. That the members of the public at the scene beat up the appellant. That he later accompanied the minor to hospital at Usonga Health Centre. It was his testimony that he knew the appellant who was a fisherman. 16. In cross-examination, he reiterated his testimony stating that he found the minor’s inner pant on the ground while the appellant’s trouser was unzipped. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5306/eng@2026-04-24 2

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17. PW3 TAM testified that on the material day, she had gone for a meeting at Kosao Hall in Kisumu when she received a call from her daughter V. to the effect that her granddaughter had been defiled by one Jaseme. That she boarded a motorcycle and found the appellant tied to a tree crying having been beaten by members of the public. That she stopped the people from lynching the appellant. That she checked the minor’s private part and noticed some bruises. That the panty was slightly bloody and had some fiuids while her private parts were swollen. It was her testimony that the minor was born on the 1/9/2013. That she did not know the appellant prior to the incident as he had not stayed in the area for long. 18. PW4 Veronicah Auma Nyamboga testified that on 23/8/2024, she was on her way to go shave her head when she spotted the minor being carried by the appellant who was sitting on a jerrican and was kissing the minor. That she asked the minor what she was doing and the minor responded stating that she was waiting for Jaseme to give her Kshs. 20/- as he had tried to insert his penis in her vagina while they were in the bushes. 19. That she sounded an alarm and told the people to arrest the appellant. That she checked the minor’s private part which showed some reddish injuries. That she took the minor to hospital where the doctor stated that the minor had been defiled. It was her testimony that she knew the appellant though he had not stayed in the area for long. 20. PW5 Winnie Akinyi Ougo, a clinical officer at Airport Health Centre testified that on the 25/8/2024 at about 4.19pm she examined a minor who came with treatment notes from Usoma Health Centre 2 days after the incident. That on examining the vagina of the minor, she saw a swelling on the labia majora. That the hymen was not intact but not freshly broken. 21. That she also examined the appellant and found no bruises or lacerations on his penis with no obvious discharge. That she further examined the appellant after he was beaten by a mob and he suffered a swollen hand, shoulder and chest pain. 22. In cross-examination, she stated that she examined both the minor and appellant a few days after the incident. 23. PW6 No. 24xxxx PC Everlyne Liambu testified that a report was made on the 25/8/2025 at Kogony Police Post that a minor had been defiled on the 23/8/2024 in a thicket where she had gone for a long call. That the appellant was arrested by members of the public who also beat him up. That they escorted the appellant and the minor to Usoma Dispensary but the appellant managed to escape the dispensary but was later re-arrested by members of the public. That the minor was subsequently treated. She testified that the minor was 10 years old at the time of the incident having been born on the 1/9/2013 as evidenced by the birth certificate produced as PExh1. 24. When placed on his defence, the appellant testified that on the material date he returned from fishing in the lake to find that his normal customers had left. That he had caught 9 fish which he was taking to PW4 but sold them to another lady. That he then went to PW4’s home to get change for the woman she had sold fish to. 25. That he placed a jerrican that he was carrying on PW4’s fence. PW2 who was also there took a stick and hit him on his left hand asking him why his zip was unzipped in the presence of the complainant. That the minor had no pant as she had gone for a long call. PW2 then called members of the public who beat him up. That PW4 checked the minor’s private parts and said that something was amiss. That both him and the minor were examined at the hospital and when he left the hospital, he was assaulted by the public again. The appellant blamed his arrest on PW2 whom he said was not pleased that he was talking to his in-law PW4. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5306/eng@2026-04-24 3

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26. It is on this evidence that the trial court found the appellant guilty, convicted and sentenced him accordingly. 27. As a preliminary issue, this court has been called to consider whether the appellant’s right to legal representation was infringed by the trial court in its failure to inform him of the same. 28. Article 50(2)(h) of the Constitution guarantees the right to legal representation at state expense if substantial injustice would otherwise result. The Legal Aid Act, 2016, in section 43, mandates courts to inform accused persons of this right. 29. In David Njoroge Macharia v Republic [2011] eKLR, the Court of Appeal stated that: “ Under the new Constitution, state funded legal representation is a right in certain instances. Article 50 (1) provides that an accused shall have an advocate assigned to him by the State and at state expense, if substantial injustice would otherwise result (emphasis added). Substantial injustice is not defined under the Constitution, however, provisions of international conventions that Kenya is signatory to are applicable by virtue of Article 2 (6). Therefore, provisions of the ICCPR and the commentaries by the Human Rights Committee may provide instances where legal aid is mandatory. We are of the considered view that in addition to situations where “substantial injustice would otherwise result”, persons accused of capital offences where the penalty is loss of life have the right to legal representation at state expense. We would not go so far as to suggest that every accused person convicted of a capital offence since the coming into effect of the new Constitution would automatically be entitled to a re-trial where no such legal representation was provided. The reasons are that, firstly, the provisions of the new Constitution will not apply retroactively, and secondly every case must be decided on its own merit to determine if there was serious prejudice occasioned by reason of such omission.” 30. In Republic v Karisa Chengo and 2 others [2017] eKLR, the Supreme Court expressed that the right to legal representation at state expense, under the said article, is a fundamental ingredient of the right to a fair trial and is to be enjoyed pursuant to the constitutional edict without more but that “in accordance with the language of the Constitution, this particular right is not open ended. It only becomes available “if substantial injustice would otherwise result”. The Supreme Court went on to state that the right to legal representation is not limited to cases where the accused person is charged with a capital offence; that the operative words in Article 50 (2) (h) are “if substantial injustice would otherwise result….” and that “the protection embedded in Article 50 (2) (h) goes beyond capital offence trials”. 31. Accordingly, it should be a standard procedure for an accused to be informed prior about his/her right to legal representation. This is mandated by the Constitution. 32. In the present case, it is unclear from the record whether the trial court made the appellant aware of this right. Nevertheless, from the way the appellant cross-examined the prosecution witnesses and his overall conduct during the trial indicate that no injustice, let alone substantial injustice, stemmed from the trial court's failure to inform him his rights under Articles 50(2)(g) and 50(2)(h) of the Constitution. In this regard, I find that the failure to notify the appellant of the said right does is not a ground for invalidating the trial. 33. As to whether the prosecution proved its case against the appellant beyond reasonable doubt, the specific elements of the offence of defilement arising from section 8(1) of the Sexual Offences Act which the prosecution must prove beyond reasonable doubt are: a. Age of the complainant; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5306/eng@2026-04-24 4

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b. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and c. Positive identification of the perpetrator. 34. The appellant submitted that the complainant’s age was not proved. In her testimony, the complainant who testified as PW1 stated that she was 10 years old and that she was born on the 1/9/2013. This was corroborated by her grandmother who testified as PW3 and PW6 who produced a birth certificate that indicated the complainant’s date of birth as 1/9/2013. 35. In Mwalengo Chichoro Mwajembe v Republic, Msa. App. No. 24 of 2015 (UR) as quoted in the case of JWM v Republic [2026] KEHC 674 (KLR) the court held: “ … the question of proof of age has finally been settled by 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 if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof….” 36. Accordingly, based on the birth certificate that showed that the complainant was born on the 1/9/2013, the complainant was 9 years and a few days shy of being 10 years old. In my view, the complainant’s age was proven beyond reasonable doubt. 37. On penetration, section 2 of the Act defines penetration as follows: “ the partial or complete insertion of the genital organs of a person into the genital organ of another person.” 38. The complainant testified that the appellant lay on her and touched her vagina using his fingers then took his ‘dudu’ and put it in her ‘dudu’. She reiterated in cross-examination that she had been defiled. 39. On this issue, it has been held in several occasions that a fact of rape or defilement can be proved by oral evidence and circumstantial evidence without necessarily calling for medical evidence. This is in line with section 124 of the Evidence Act which states that corroboration is not necessary in sexual offences because they are offences ordinarily committed in secret. 40. In the present case, the findings of the clinical officer who testified as PW5 was that the complainant had been penetrated. That the vagina of the minor was swollen on the labia majora and the hymen was not intact but not freshly broken. This is because she was examining the minor after two days of the complained act. In the circumstances, I find that the prosecution proved the element of penetration beyond reasonable doubt. 41. The appellant’s identity was not in issue. He was found with the minor who recognized him as Jaseme. He was placed at the scene and he admitted as much. 42. The appellant further impugned his conviction on the grounds that it was anchored on contradictory and inconsistent evidence. In MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) (15 March 2022) (Judgment), the court cited with approval the case of Twehangane Alfred v Uganda, Crim. App. No 139 of 2001, [2003] UGCA, 6 as follows: “ With regard to contradictions in the prosecution’s case, the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5306/eng@2026-04-24 5

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contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 43. In the present case, this Court has carefully considered the evidence of the prosecution witnesses but is unable to find any contradictions or inconsistencies in their testimonies. And, if at all there were any, which is not the case, the same were not material enough to warrant interference with the conclusions arrived at by the trial court. 44. The sum total of the forgoing is that the prosecution proved its case beyond reasonable doubt and as such the appellant’s conviction was safe. 45. As regards the sentence meted out on the appellant, section 8(2) of the Sexual Offences Act under which the appellant was charged provides for life imprisonment for an accused upon conviction. 46. The trial court sentenced the appellant to serve life imprisonment. This is the sentence provided for by law and as such I find no reason to interfere with the same. 47. The upshot is that the appeal lacks merit and is hereby dismissed. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 24TH DAY OF APRIL, 2026. A. MABEYA, FCI ARB JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5306/eng@2026-04-24 6

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