James Owenga Otieno v Republic

3. That the learned Magistrate erred in relying on the prosecution case riddled with contradictions, inconsistencies and fabricated evidence that resulted in selective judgment 4. That the conviction and sentence imposed did not consider the vita ingredients of the offence charged were not proved. 5. That the medical evidence availed were riddled with inconsistencies. Prosecution Case 3. The prosecution called four witnesses; PW1 CA the minor who lived with her mother in Kitengela and a class 4 student in [Particulars Withheld] Primary School told the court that in the month of July 2021 and September the same year, around 4:00 pm, she was in their home when the accused whom she knows as baba Kayle took her to his house. He was alone in the house as his wife and kayle had gone upcountry. She told the court that the appellant took her to his bedroom asked her to remove her trouser as he too removed his, placed her on the bed and inserted his penis in her vagina. Her told her not to cry as it would be oaky. The witness stated that the appellant gave her a towel to wipe herself because she was bleeding. She left the appellant house and kept quiet about it because she had been warned not to tell anybody. In September of the same year the witness stated that the appellant called her into his house and again defiled her. 4. One day on a Sunday while playing with other child in the field, her mother called her and asked whether she ever slept with a man. She initially denied but agreed that indeed she had slept with the appellant. She was taken to Nairobi Women Hospital examined and an ultra sound done. 5. PW2 CAA testified and told the court that 1st November 2021 while coming from her casual work, she found PW1 Playing with the appellant children. She noticed that her stomach was big and sked her if she ever slept with a man which she initially denied but later told informed her that the appellant had slept with her in the month of July and September 2021. She immediately took her to G.K Prison Hospital and later to Kitengela Sub- County Hospital where on examination she was found 18t weeks pregnant. She took to Nairobi Women Hospital where she was examined and given medication. The witness denied in cross examination ever borrowing money form him or calling him a thief. 6. PW3 NO 5xxx7 Sergeant Penina Wambua investigated the matter, interrogated the complainant and established that she had been defiled in July and September 2021 by a neighbour who lived in house number 5 in the same plot the complainant and her mother lived. The investigation led to the arrest of the appellant on 10th November 2021 according to the charge sheet. PW4 DR John Njuguna a clinical officer from Nairobi Women Hospital testified and told the court that the victim of crime in this case was seen and treated in their facility on 9th November 2021. The ultra sound was done which established that She was 18 weeks pregnant. He produced the gender violence recovery centre form and the P3 as exhibits. 7. On the basis of the prosecution witnesses’ evidence, the court found that a prima facie case had been made out sufficient to warrant appellants rebuttal. With the opportunity to give his version of what really happened, the appellant as he is entitled to opted to remain silent and left it to the court to determine the matter based on material placed before it. Submissions 8. The appellant quoting Tough cases, a book by justice Greer submits that before this court is a difficult case not the result of complexity of the law applicable or evidence, but because the trial magistrate allowed a storm to leak into the matter and destroyed the clarity of the evidence. He submits that https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6640/eng@2026-05-19 2

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the ingredients of the offence of defilement which he correctly pointed out were not proved by the prosecutions. He took issue with the P3 and PRC forms which according to him bore inconsistency as regards the month the offence was committed and the person who committed the offence. Further, the failure by the prosecution to tender DNA evidence to establish whether the pregnancy had anything to do with the appellant was a fatal error in the appellant view. The other ground raised by the appellant relate to the right to legal representation and to be informed of the consequences of remaining silent when called upon to offer an explanation under section 211 of the CPC which he contends was violated by the trial court. 9. The prosecution on the other hand filed grounds of objection and submissions dated 11th September 2025. It is submitted on behalf of the state that all the requisite ingredients for the offence of defilement had been satisfied as the age of the complainant was proved by production of the birth certificate. Secondly the fact of penetration under section 2 of the sexual offences Act was proved by evidence of the complainant and the medical reports which shows that the complainant was pregnant. It is submitted too by the prosecution that there was no doubt about the identity of the perpetrator of the offence. PW1 testified and told the court that the appellant a neighbour was known to her as baba kayle. Further the state contends that there are no contradictions with regard to the evidence of the clinical officer PW4 and the P3 form. That the document that conclusively gives the estimated age of pregnancy is the ultra sound report exhibit 5 dated 9th November 2022 and that in any event the evidence of pregnancy of a child was to prove the element of penetration. Analysis and Determination 10. I have considered the submissions by the prosecution and that of the appellants as well as reviewed the entire evidence tendered before the magistrate court as is required of the appellate court. It is the law that the offence of defilement is established when the age of the victim of the crime is established. This is important because the sentences under the sexual offences act is graduated. The younger the victim of crime the more severe the sentence. The other ingredients which the prosecution must prove is the actual act constituting the offence which is penetration as defined in section 2 of the sexual offences Act. The Act defines penetration to mean partial or complete insertion of the genitalia organs of a person into the genitalia organs of another person. And a person who therefore commits an act which causes penetration with a child is guilty of an offence termed defilement. The victim of crime in this case CA was born on 7th September 2010 as per birth certificate No 89xxx5 issued on 15th march 2018 and produced in court as exhibit 4. Therefore, as at the time the offence was committed in 2021 between July and September, she was 11 years or thereabouts and fell within the first category under sub-section 2 of Section 8 of the Act. The age of the complainant is thus proved. 11. As regard penetration, PW1 was category in her testimony. The accused person whom she had known by reference to his child kayle name, took him to his house when the appellant wife and kayle had travelled upcountry. He defiled her on his bed and thereafter gave her a towel to wipe out the blood from her genitalia. The second time, the appellant called her to his house and defiled her. The result of the sexual encounter sometimes as in this case, bound to show. Pregnancy cannot be hidden. At the beginning of November 2021, the complaint noticed a bump on the complainant stomach and got concerned. She asked whether the child had ever slept with a man that is if she ever had sexual intercourse. The child initially was hesitant but eventually admitted to having been defiled by the appellant. The revelation led to series of events leading to the arrest and arraignment of the appellant in court for the offence of defilement. The fact of the complainant pregnancy was confirmed medically first, at Kitengela sub- county hospital and later at Nairobi Women Hospital by way of ultra sound examination and the subsequent results. The P3 and the PRC forms all indicate that the complaint had been sexually violated. The fact that the Complainant got pregnant and whether DNA should have https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6640/eng@2026-05-19 3

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been done to ascertain the person responsible is really of little significance in defilement cases especially where during the trial the child the result of defilement had not been born. The court cannot wait the birth of a child to ascertain paternity. In Hadson Ali Mwachongo vs Republic (2016) klr a case reference by the state, the court stated as follows; “ it is patently clear to us that whilst paternity of PMs child may prove that the father of the child had defiled PM, that is not the only evidence by which defilement of PM can be proved . The fact, as happens in many cases that a pregnancy does not result from conduct that would otherwise constitute a sexual offence does not mean that sexual offence has not been committed. In this case, there does not have to be a pregnancy to prove defilement. A DNA test of the appellant would at most determine whether he was the father of PMs child, which is different question from whether the appellant had defiled PM” 12. It is this court finding therefore that penetration as the second ingredient for the offence of defilement has been proved. 13. The appellant in his submission contend that it was not him who committed the offence and was very brief in his cross-examination of the witnesses during the trial as borne by the court record. However, in his written submissions, the appellant went into great details poking holes into the prosecution case and making reference to treatise and scholarly work in the area of law of evidence. I have in the recent past, unfortunately seen in many appeals cases a trend where the appellant quote passages from material not applicable and relevant to the law and circumstances of their respective case. They throw anything and everything to the courts record in the form of submissions in the hope that somehow it will fit into their theory advanced in their cases. 14. The appellant however, correctly identified elements necessary to prove the offence of defilement, his constitutional rights to legal representation and the right to remain silent in defence. He cannot now be heard as he contends that the court failed to inform him of the consequences of remaining silent in defence. In any event the election to remain silent is a constitutional right and the court or the prosecution should not make any negative inference on the appellant choice guaranteed by the constitution. Similarly, the right to legal representation exists throughout the trial and usually sought to be exercised at the beginning and not at the end of the prosecution case to enable the accused deal with all the issues at the commencement of a trial. It is not the law that when an accused person elects to remain silent upon a finding of prima facie case, he then must be informed of the right to legal representation and assigned one at the state expense. If indeed the appellant had required legal representation in limine he should have raised it early enough. 15. Article 50 of the constitution provides for the right of an accused person as follows; 50(2) Every accused person has the right to a fair trial, which includes the right- 16. (g) to choose, and be represented by, an advocate, and to be informed of his right promptly; (h) to have an advocate assigned to the accused person by the state and at the state expense, if substantial injustice would otherwise result and to be informed of this right promptly The right to legal representation in my view under the above provision of the constitution is not an absolute right. It only arises in situation where substantial injustice would occur in absence of such representation. In David Macharia Njoroge vs Republic (2011) eKLR, the court observed that state funded legal representation is a right in certain instances,” we are of the considered view that in addition https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6640/eng@2026-05-19 4

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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 the state expense…” 17. The court in Karisa Chengo & 2 others vs Republi (2014) stated that “substantial injustice only arises in situations where a person is charged with an offence whose penalty is death and such person is unable to afford legal representation pursuant to which the trial is compromised in one way or another only then would the state be obligated to provide legal representation” 18. In the present matter, the appellant raised the issue of legal representation for the first time in this appeal. Though it is the duty of the trial court to inform the accused of this right, in my view such failure did not occasion any injustice and is not fatal. In any case the punishment for the offence with which he was charged and convicted does not involve loss of life. A sentence of life imprisonment does not amount to loss of life. There is life in life imprisonment although considerably curtailed. 19. Consequently, I find that the present appeal against conviction and sentence is not merited and the same is dismissed. DATED, SIGNED AND DELIVERED AT GARISSA THIS 19TH DAY OF MAY 2026 JOHN T LOLWATAN JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6640/eng@2026-05-19 5

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