Joshua Omondi Yogo v Republic

6. Dissatisfied by the trial court’s conviction and sentence, the appellant filed his petition of appeal dated 6/6/2025 raising twenty-seven (27) grounds of appeal that can be summarised as follows: a. That the trial court erred in law and in fact in finding that the prosecution had proved its case beyond reasonable doubt. b. That the trial court erred in law and in fact by declining to stay the proceedings and proceeding to deliver judgment despite the pendency of Kisumu High Court Criminal Appeal No. E039 of 2025, which if successful, would have enabled the introduction of documentary evidence that was not considered in the impugned judgment. c. That the trial court erred in law and in fact by exhibiting bias against the appellant throughout the trial thereby violating the appellant’s constitutional right to a fair trial. d. That the trial court erred in law and in fact in convicting the appellant based on the insufficiently corroborated evidence of a minor, which was not supported by the medical evidence on record. e. That the trial court erred in failing to consider the defence mounted and alibi given by the appellant on a balance of probabilities. 7. The appeal was disposed off by way of submissions. It was submitted on behalf of the appellant that the medical evidence did not support the evidence of penetration or the age of the minor. That the minor admitted revealing the alleged defilement upon physical punishment. 8. That there was animosity between Pw2 and the appellant which led Pw2 to frame the appellant for the alleged crime. That the age of the minor was proven to be 13 years and that there was no Notice of Enhancement of sentence filed by the Prosecution. 9. On its part, the respondent submitted that all the ingredients of the offence of defilement were proven. That the Birth Certificate showed that the minor’s date of birth was 22/10/2013 and as such the minor was 10 years old at the time of the incident. That penetration was proved through the testimony of Pw5 who produced the relevant medical records that confirmed evidence of penetration. 10. That the appellant was identified by recognition as Pw1 admitted knowing the appellant as Joshua and further the appellant also acknowledged knowing the victim for 10 years. 11. On sentence, the state prayed that the same be enhanced to life imprisonment as the sentence of 8 years meted out was illegal. 12. 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). 13. The case before the court below was that, CA (Pw1) testified that she was 13 years old. That on the material day, she had not gone to school when the appellant gave her Kshs. 20 and sent her for mandazi. That when she returned the appellant pulled her into the house, removed his penis after removing his clothes, covered her mouth with his hand and “did bad manners to her”. It was her testimony that she felt pain but still went to play. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5540/eng@2026-04-30 2

page 2 of 7

14. That her mother later called her in the house and asked her where she was to which she replied that she was playing. That her mother (Pw2) beat her and asked her to tell the truth as to her whereabouts after which she revealed the incident to her. Pw2 then took her to the District Hospital. 15. In cross-examination, she told the court that she revealed the truth of the incident to Pw2 after she beat her. That she stayed in the same neighbourhood with the appellant. She testified that the appellant builds houses and does fishing. That she felt pain when the appellant put his ‘dudu’ in her ‘dudu’ but when she tried to scream, the appellant covered her mouth. The trial court noted that when referring to ‘dudu’ the minor pointed to her vagina. 16. Pw2 JA, the minor’s mother testified that on the 6/6/2024, Pw1 did not attend school as there was music festivals going on at their school. That she was asleep as she was unwell. When she woke up, she did not find Pw1 at home. That as it was almost 6.30pm, she looked for her but could not find her. 17. That she finally managed to locate her and beat her inquiring where she had been. Pw1 then revealed to her the details of the incident. That she looked at the minor’s private parts and saw sperms. That she took the minor to the County Hospital where she was examined after which she reported the incident to the police. It was her testimony that she knew the appellant who was her customer at her m-pesa shop and also sold her fish. 18. In cross-examination, she stated that Pw1 was born on the 25/10/2013. She admitted knowing the appellant as their houses are near. That she did beat the minor before the latter revealed the incident to her. That indeed she owed the appellant some money which she was to pay before the incident. 19. Pw3 No. 24xxx PC Caren Misiko testified that she was attached to Nyalenda Police Station and that on the 7/6/2024, a report of the defilement was made and she was assigned the case. That she contacted the minor and her mother who detailed the incident to her after which she issued them with the P3 and PRC form. That she asked for a birth certificate from Pw2 which revealed that the minor was born on the 22/10/2013. That she later arrested the appellant. 20. In cross-examination, she stated that the minor was in stable condition but appeared stressed. That the minor was reluctant to open up but they managed to calm her down. 21. Pw4 Philip Kilimo, a clinical officer at Kisumu County Hospital testified that he filled the minor’s P3 form on the 7/6/2024. That the minor attended the hospital on the 6/6/2024 with a history of having been defiled by a person known to her. 22. That the estimated age of the minor was 13 years old. On local examination, the genitalia revealed bruises on the vulva. That there was white discharge on external genitalia and a urinalysis test showed some infection. That these findings were replicated in the PRC form. He produced the P3 form as PExh3 and the PRC form as PExh2. That from the history given by the minor and the broken hymen, there was evidence of penetration. 23. In cross-examination, she testified that the minor was 11 years old. That at the time of examining the minor, she had already taken a bath and changed her clothes. That the whitish discharge was normal at a productive age however the minor had not attained the age of production. That there was penetration and that if the injuries were serious, the minor would not have continued playing. 24. When placed on his defence, the appellant testified that he was a fisherman. He denied committing the offence and stated that on the 6/6/2024, he was in the lake fishing. That he usually leaves for work at 8pm, works through the night and returns around 10am.That he was married but that on that material day, his wife was not at home. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5540/eng@2026-04-30 3

page 3 of 7

25. He admitted that he knew the minor as a neighbour for over 10 years. That on the date of the incident, he had returned home at 5pm. That he was arrested on 8/6/2024 at 10am. That Pw2 owed him Kshs. 50/-. 26. In cross-examination, he told the court that could not remember the date he made gave his statement to the police. That he had not informed the police that Pw2 owed him any money. That he was in the company of one Samuel when he went to demand the money from Pw2. 27. Dw2 Robert Ochieng testified that he is an electrician who also undertakes casual jobs such as installation of tiles. That he knew the minor and her mother as they were neighbors. That his house had 3 floors and he had installed CCTV which were focused on his compound. 28. That on the material day from 12pm onwards, he was bringing cement and tiles to the 2nd floor. That the CCTV captured the minor playing and running in his compound. That he did not see the appellant on that day. He produced the CCTV footage as DExh3a, Certificate of Evidence Records as DExh3b and Photographs as DExh 2a – 2b. 29. In cross-examination, he told the court that from the CCTV it was not possible to tell the date and timings on it. That it was not clear how the CCTV only captured 5 minutes of the particular day. He admitted that the CCTV only captured his gate only. 30. Dw3 Joseph Mogutu Otuoma testified that he was a fisherman and worked with the appellant. That his normal schedule is to leave for the lake at 4pm, stay overnight and come back at 4am. That on the date of the incident he was at the lake with the appellant from 1200 to 1600hrs. 31. 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; b. Proof of penetration in accordance with section 2(1) of the Sexual Offences Act; and c. Positive identification of the perpetrator. 32. The appellant submitted that the complainant’s age was not proved. Pw2 testified that the minor was born on the 25/10/2013. However, Pw4 produced a birth certificate showing that the minor had been born on the 22/10/2013. 33. 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….” 34. Accordingly, based on the birth certificate that showed that Pw1 was born on 22/10/2013, she was 10 years and 5 months at the time of the alleged offence. The complainant’s age was therefore proven beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5540/eng@2026-04-30 4

page 4 of 7

35. 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.” 36. The complainant testified that the appellant removed his penis after removing his clothes, covered her mouth with his hand and “did bad manners to her”. The appellant impugned the trial court’s conviction on amongst others, the fact that following the defilement, the minor went to play with her friends. That if penetration had occurred as alleged and the minor injured, then the minor would not have been able to play with her friends. 37. The minor was taken through a voire dire and found fit and intelligent to testify. It has been held in several occasions that a fact of rape or defilement can be proved by oral evidence and circumstantial evidence without necessary 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. 38. In the present case, the findings of the clinical officer who testified as Pw3 was that the complainant had been penetrated. That there was tenderness in the genitalia with an inflamed vulva. That there was whitish discharge on the vulva with bruises and the hymen was not intact. 39. The appellant further impugned his conviction on the grounds that the medical evidence adduced by the prosecution failed to corroborate the evidence adduced more so on penetration and that he was not medically examined. 40. The matter of medical evidence for the purpose of sexual offences is provided for in section 36 of the Sexual Offences Act. The said provision states as follows: “ 36. (1) Notwithstanding the provisions of section 26 of this Act or any other law, where a person is charged with committing an offence under this Act, the court may direct that an appropriate sample or samples be taken from the accused person, at such place and subject to such conditions as the court may direct for the purpose of forensic and other scientific testing, including a DNA test, in order to gather evidence and to ascertain whether or not the accused person committed an offence....." 41. Section 36 of the Sexual Offences Act is only permissive. It gives the court discretion to direct the taking of samples for forensics. There is, therefore, no obligation on the part of the trial court to direct that such samples be taken, since such directions could only be made at the discretion of the court in circumstances where the court deems it fit. See George Muchika Lumbasi v Republic [2016] eKLR. 42. In the circumstances, I find that the prosecution proved the element of penetration beyond reasonable doubt. 43. The appellant’s identity was not in issue. It was both his testimony and that of the minor that they had been neighbours and thus were well known to each other. 44. The appellant further impugned his conviction on the grounds that it was full of inconsistencies in the testimony of Pw2. In MTG v Republic (Criminal Appeal E067 of 2021) [2022] KEHC 189 (KLR) https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5540/eng@2026-04-30 5

page 5 of 7

(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 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.” 45. 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, the same were not material enough to warrant interference with the conclusions arrived at by the trial court. 46. The appellant impugned his conviction on account that the trial court failed to consider his defence and alibi. The appellant testified that he was fishing at the time when the offence was committed. He sought corroboration in the testimony of Dw3. However, their testimonies did not corroborate each other on the timings that they allegedly went fishing. 47. The appellant further sought to rely on the CCTV evidence adduced by Dw2 alleged to be of the date of the offence. However, the said evidence only showed 5 minutes and also failed to show the timings when it was allegedly taken. The said footage fails to shed light on the happenings on the date of the offence. 48. The appellant further attributed the charges brought forth against him to an alleged disagreement between him and Pw2. The governing principle on alibi defence is that a failure to disclose an alibi at a sufficiently early opportunity to permit it to be investigated by the police is a factor which may be considered in determining the weight given to it. See Charles Kasena Chogo v Republic [2019] e KLR. 49. In the present case, the appellant’s alibi seemed to be an afterthought. The appellant could not displace the evidence that at the time the offence was committed, he was not at work but around his home. 50. The upshot of all the above is that I find that the prosecution proved its case beyond reasonable doubt. 51. The appellant impugned the trial court’s conviction on the basis that it declined to stay the proceedings and proceeded to deliver judgement despite the pendency of Kisumu High Court Criminal Appeal No. E039 of 2025. 52. Stay of criminal proceedings is not granted as a matter of course but discretionary. In the present case, the appellant failed to show that there were exceptional circumstances warranting the trial court to stay its proceedings. In any case, he still had the option of moving the High Court where the proceedings were pending and seek the stay of the lower court’s proceedings. That contention is dismissed. 53. The appellant complained that the trial court exhibited bias thus exposing him to an unfair trial that violated his constitutional rights. The test to be applied by the court in determining whether an allegation of bias made against a judicial officer has merit was considered by the Court of Appeal in Kalpana H. Rawal v Judicial Service Commission & 2 Others [2016] eKLR where the court held thus: “ For quite some time there was contestation in several Commonwealth jurisdictions regarding the proper test to be applied in such case: was it real likelihood of bias or reasonable apprehension of bias by a reasonable person…In Magill v Porter (2002) 2 AC 357, the House of Lords subsequently modified the test to whether a fair minded and informed observer, having considered the facts, would conclude that there was real possibility that the Judge https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5540/eng@2026-04-30 6

page 6 of 7

was biased. The East African Court of Justice adopted the same test in Attorney General of Kenya v Prof. Anyang Nyong’o & 10 Others EACJ Application No.5 of 2017 when it stated: “We think that the objective test of “reasonable apprehension of bias” is good law. The test is stated variously, but amounts to this: do the circumstances give rise to a reasonable apprehension, in the mind of the reasonable, fair minded and informed member of the public that the Judge did not (will not) apply his mind to the case impartially. Needless to say, a. litigant who seeks disqualification of a Judge comes to court because his own perception that there appearance of bias on the part of the Judge. The court however, has to envisage what would be the perception of a member of the public who is not only reasonable but also fair minded and informed about all the circumstances of the case.” (underlining mine) 54. In the present case, this court has read the proceedings of the trial court. It is not clear at what stage the bias alleged arose. Prior to the trial court making the ruling for stay of proceedings pending appeal, the appellant seemed not to have had any issue with the court. I find nothing on record to fault the trial court on its conduct of the proceedings before it. 55. This court did not glean from the assertion made by the appellant that the conduct of the trial magistrate was anything other than the normal course of conduct of court proceedings and as such did not infringe on the appellant’s right to a fair trial as alleged. 56. As regards the sentence meted out on the appellant, sentencing is at the discretion of the trial court but such discretion must be exercised judiciously and not capriciously. The Court of Appeal in the case of Ogolla s/o Owuor v Republic, (1954) EACA 270, held as follows: “ The Court does not alter a sentence unless the trial Judge has acted upon wrong principles or overlooked some material factors.” 57. The penal section for this offence is found in section 8(2) of the Sexual Offences Act which states that: “ 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. 58. This court is empowered to disturb an unlawful sentence and enhance it as provided for by law. However, in the present case, there was no notice of enhancement of the sentence. Had there been one, this Court would have set aside the 8 year sentence and imposed the life sentence provided for in the law. Enhancing the sentence without having first warned the appellant on the danger of having appealed might irreversibly prejudice him. He should count himself to be very lucky. 59. In the premises, I find the appeal to be without merit and dismiss the same. It is so decreed. DATED AND DELIVERED AT KISUMU THIS 30TH DAY OF APRIL, 2026. A. MABEYA, FCI Arb JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5540/eng@2026-04-30 7

page 7 of 7