Jack Otieno & 1 other v Republic

[3] The appellant denied the allegations levelled against him. The matter was accordingly heard to conclusion, and in her judgment (labelled as a Ruling) dated 24th November 2023, the learned trial magistrate found the appellant guilty and convicted him of the substantive charge of defilement. He was sentenced to 15 years’ imprisonment. [4] Being dissatisfied with the decision of the trial court, the appellant filed the instant appeal on 19th December 2023 citing the following grounds: [a] The learned magistrate erred in fact and in law and misdirecting herself in failing to adhere to Sections 150 of the Criminal Procedure Code, Section 146(4) of the Evidence Act, and Article 50 of the Constitution by entering judgment against him yet the complainant, having been recalled, failed to appear before the court for crossexamination by the defence counsel. [b] The learned magistrate erred in fact and in law when she sentenced the appellant based on the evidence that was wanting in nature and suspect since the complainant had slept in the houses of three different men on different days after having met the appellant. [c] The learned magistrate erred in fact and in law by overlooking the fact that the accused was unrepresented, and therefore violated Article 50(2)(h) of the Constitution. [d] The trial magistrate erred in fact and in law by arriving at a judgment on the basis of evidence that was not 2|Page HCCRA NO. E060 OF 2023 JUDGMENT

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unequivocal, since the complainant was beaten and confined in custody before being compelled to implicate the appellant. [e] That the judgment of the trial court was full of errors/omissions and therefore amounted to a miscarriage of justice. [f] The learned magistrate erred in fact and in law by putting herself in the arena of events and relying on the totality of evidence presented before her and stating that the accused cross-examined the complainant sufficiently without cautioning herself of the dangers of such a decision. [i] The judgment of the learned magistrate goes against the rules of natural justice and the sentence excessive and unjust in the circumstances. [5] On the basis of the foregoing grounds, the appellant prayed that his appeal be allowed, the conviction quashed and the sentence of 15 years’ imprisonment reviewed and set aside. [6] The court issued directions on the 6 th March 2025 that the appeal be canvassed by way of written submissions. Accordingly, counsel for the appellant filed written submissions dated 12 th March 2025. He provided a summary of the evidence presented by both the Prosecution and the Defence and urged the Court to find that: [a] The medical officer exonerated appellant from the charges, thus proving that the case against him was contrived; 3|Page HCCRA NO. E060 OF 2023 JUDGMENT

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[b] The complainant was untruthful and therefore unreliable as a witness; [c] The appellant was denied the right to have the complainant recalled for further cross-examination by his counsel, having initially acted in person. [7] On the right to have a witness recalled for further crossexamination, counsel for the appellant placed reliance on Article 50 of the Constitution and the case of Republic v Salim Mohamed [2016] eKLR and submitted that the appellant ought to have been accorded all the facilitation possible to enable him defend himself. Counsel pointed out that initially, the appellant was unrepresented; and therefore ought to have been given an opportunity for his counsel to cross-examine the complainant as provided for in Sections 146(4) of the Evidence Act and Section 150 of the Criminal Procedure Code. Thus, the appellant urged the Court to allow the appeal reverse the decision of the lower court on both conviction and sentence. [8] The respondent relied on written submissions dated 27 th March 2025. Counsel for the respondent submitted that the Prosecution was able to prove that the appellant was guilty as charged by establishing the essential ingredients of the offence of defilement, namely age of the complainant, penetration and identification of the appellant as the offender. In particular, counsel contended that the Prosecution called a total of four witnesses who linked the appellant to the offence and placed him at the scene of crime. 4|Page HCCRA NO. E060 OF 2023 JUDGMENT

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[9] Regarding the failure by the complainant to attend court for further cross-examination, the respondent explained that the investigating officer made several attempts to trace the witness in vain. She further explained that the complainant’s mother was summoned to attend court and explain the whereabouts of the complainant but she too did not know where the minor had disappeared to. In the submission of counsel, the right to have a witness recalled is dependent on the availability of the witness; and is therefore not absolute. [10] In response to the appellant’s defence of alibi, counsel for the respondent took issue with the fact that the appellant did not disclose his alibi defence until the last minute when he was making his defence; such that the Prosecution had no way of disproving the appellant’s allegations. It was further the submission of the respondent that the appellant’s witnesses, DW2 and DW3, conceded that they parted ways with the appellant at 6.00 p.m. on the 4th February 2023 and therefore could not tell what the appellant did after that. The respondent also urged the Court to note that the two witnesses did not talk about what the appellant did on the 5th and 6th February 2023. [11] Therefore, the respondent urged the Court to dismiss the appeal in its entirely, contending that the sentence imposed by the lower court was not only lawful but also reasonable. [12] I have carefully considered the appellant’s Grounds of Appeal, the evidence adduced before the trial court, and the submissions filed herein. Being a first appeal, it is the duty of this 5|Page HCCRA NO. E060 OF 2023 JUDGMENT

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Court to re-evaluate the evidence on record and arrive at its own independent conclusion, while bearing in mind that the Court did not have the opportunity to see or hear the witnesses testify. (See Okeno v Republic [1972] EA 32) [13] The prosecution called four witnesses before the lower court. The complainant testified on 17th February 2023 as PW1. She stated that she left her parents’ home for Rangwe to visit her aunt; and that she boarded a motorcycle and was dropped at Malela from where she started walking on foot towards Rangwe. PW1 further stated that, on her way, she met the appellant, a person who was well known to her as Jack. She added that the appellant offered to take her to Rangwe on his motorcycle but needed to pick up his jacket from his house. She agreed to the suggestion and together they went to the house of the appellant at about 3.00 p.m. [14] PW1 further stated that while waiting outside for the appellant to pick up his jacket, he overstayed and when he emerged from his house he got hold of her hand and dragged her into his house and locked the door from outside. He left and did not return until 10.00 p.m. She added that the appellant found her sleeping on the chair. He proceeded to forcefully undress her and had sexual intercourse with her in spite of her resistance. She stated that she had to sleep on the chair and when she woke up at about 5.00 a.m. she found the door locked from outside; and the appellant was not in the house. He returned at about 9.00 6|Page HCCRA NO. E060 OF 2023 JUDGMENT

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a.m. She spent that night in the same house and left the following morning. [15] PW1 further stated that as she was walking towards her parent’s home, the appellant followed her on a motorcycle and gave her Kshs. 350/= for fare. She used the money to travel to her aunt’s place in Rangwe. It was her evidence that she picked the clothes she had gone for and left her aunt’s place at about 5.00 p.m. On the way she was rescued by a certain man at about 7.00 p.m. The man told her it was too late and offered her accommodation for the night. The following day, the man gave her Kshs. 50/= for her transport to Rodi where he met yet another man who she referred to as an old man. The man inquired from her where she was going and on explaining her predicament the man took her to Rodi Police Station. Her mother was contacted and she went and collected her from Rodi Police Station. [16] Ultimately, the matter was reported to Ogongo Police Station for investigations. She was issued with a P3 Form and taken to Ogongo Hospital for examination and treatment. She identified the documents she was given at Ogongo Hospital. [17] The complainant’s mother, Eunice Achieng Ochido, testified as PW2. She confirmed that PW1 is her daughter and that she was in Form 2 at Ogongo Secondary School at the time of the incident. She further confirmed that the girl was aged 16 years at the time, having been born on the 13 th October 2006. PW2 told the lower court that PW1 disappeared from home on 4 th February 2023 and on learning from PW1’s siblings that she had gone to 7|Page HCCRA NO. E060 OF 2023 JUDGMENT

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Rangwe to visit her aunt, PW2 contacted the said aunt who denied having been visited by PW1. She informed her husband and thereafter reported the matter to Ogongo Police Station. [18] It was further the testimony of PW2 that the police at Ogongo referred her to the Children Office at Mbita. She went to Mbita as advised and was required to avail the girl’s Certificate of Birth as well as her photograph to aid further search. Before she could avail those documents she received a phone call from Ongongo Police Station that her daughter was at Rodi Police Station. PW2 further stated that she went to Rodi Police Station and collected PW1. She took her to Ogongo Police Station where she was questioned to reveal where she had been. [19] PW2 testified that, although PW1 refused to speak in her presence, she later opened up and revealed that she had been defiled by the appellant. She was taken to Ogongo Sub-County Hospital for examination after which the appellant was arrested and charged. [20] Dr. Lazarus Okumu (PW3) is a clinical officer and was attached to Homa Bay County Referral Hospital at the material time. He confirmed that the minor herein was escorted to their facility by police officers for examination following allegations of defilement. On examining her, he noted that the hymen was torn was bleeding easily on touch. He concluded that the minor had indeed been defiled. He filled and signed the P3 Form in respect of the minor, which he produced before the lower court as the Prosecution’s Exhibit 2 along with other documents. 8|Page HCCRA NO. E060 OF 2023 JUDGMENT

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[21] The last prosecution witness was the investigating officer, PC (W) Esther Apelo (PW4). She confirmed that a report of defilement was made at Homa Bay Police Station on the 8 th February 2023 and that the matter was assigned to her for investigations. She interrogated the minor after which she escorted her to Homa Bay County Referral Hospital where she was examined and her P3 filled. PW4 further stated that, on the 9 th February 2023, the complainant led them to the house of the appellant at Sofia where they found and arrested the appellant. In cross-examination, PW4 conceded that the matter was initially handled by the police at Ogongo Police Station as well as Rodi Police Post. [22] On being placed on his defence, the appellant denied the allegations of defilement. In his sworn statement he denied any prior knowledge of PW1 before his arrest. Regarding the events of 4th February 2023, the appellant stated that he left his house in the morning for work as usual; and that he was away in Awendo with his boss, Oguna and co-workers Bonface Owira and Simion Ogutu. They returned to Homa Bay at 5.00 p.m., took supper together and left for his home at Yao at 7.00 p.m. [23] He denied that he is a boda boda rider, or that he met the complainant that day as alleged. He likewise denied that he stays at Sofia. In particular, the appellant denied that he defiled PW1 on the 4th February 2023 as alleged. [24] In the light of the foregoing the issues for consideration are: 9|Page HCCRA NO. E060 OF 2023 JUDGMENT

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[a] Whether the Prosecution proved the elements of the charge of defilement beyond reasonable doubt: [b] Whether the appellant’s fair trial rights were violated with regard to legal representation and the right to have a witness recalled for purposes of further cross-examination; [c] Whether the sentence imposed by the lower court was excessive. B. Whether the Prosecution proved its case against the appellant beyond reasonable doubt: [25] For purposes of the substantive charge, of which the appellant was convicted and sentenced to 15 years’ imprisonment, Section 8 (1) as read with Section 8(4) of the Sexual Offences Act No. 3 of 2006 provides: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. … (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. [26] The provisions set out the ingredients of defilement, namely, that the victim was a child, the identity of the perpetrator and whether penetration occurred. I have therefore proceeded to reevaluate the evidence presented before the lower court along those lines and my findings are as follows: [a] On whether the complainant was, at the material time, a child for purposes of Section 8(4) of the Sexual Offences Act: 10 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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[27] There is no gainsaying that the age of a minor is a critical component of a defilement charge which must be proved by the Prosecution beyond reasonable doubt. This point was aptly made by the Court of Appeal in Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010, thus: “Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”. [28] In terms of acceptable proof, Rule 4 of the Sexual Offences Rules of Court Rules states: "When determining the age of a person, the court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document." [29] It is also now settled that the age of a victim of a sexual offence can also be determined by observation and common sense. Moreover, as was pointed out in P M M v Republic [2018] eKLR: “…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…” [30] The complainant testified before the lower court and stated that she was born on 13th October 2006 and was therefore 16 years and 8 months as at 4th February 2023 when the offence was said to have been committed. Her mother PW2, corroborated her evidence in this regard and produced the complainant’s Certificate of Birth as the Prosecution’s Exhibit. Hence, for all intents and purposes, the complainant was 16 years old because it is now trite that the months following the last birthday, if any, 11 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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do not count for purposes of determining the age of a child, so long as they are less than one year. [31] This was well explained by the Court of Appeal in Hadson Ali Mwachongo v Republic [2016] eKLR as hereunder: "Section 2 of the Interpretation and General Provisions Act defines "year" to mean a year reckoned according to the British Calendar. Under the British Calendar Act, 1751, a year means a period of 365 or 366 days. Thus a person who is, for example, 10 years and 6 months is deemed to be 10 years old and not 11 years old. That approach entails not taking into account the period above the prescribed age so long as it does not amount to a year." [32] In any event Section 8(4) of the Sexual Offences Act provides for the age bracket between 16 and 18 years. Accordingly, it is my finding that credible evidence was adduced before the lower court to prove beyond reasonable doubt that the Complainant was a child for purposes of Sections 2 of the Sexual Offences Act, as read with Section 2 of the Children Act, No. 8 of 2001. [b] On Penetration of the complainant: [33] The complainant testified that the appellant, a person wellknown to her found her walking on the road and offered to take her to her destination on his motorcycle; but needed to first collect his jacket from his house. PW1 gave evidence that the appellant instead detained her in his house against her will and defiled her in the night. While it is true that PW1 was the only witness to the crime, the proviso to Section 124 is explicit 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. 12 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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[34] It is noteworthy too that in the case of Kassim Ali v Republic [2006] KECA 156 (KLR) the Court of Appeal held that: “…as the superior court correctly held, the commission of a sexual offence can be properly corroborated by circumstantial evidence (see Ongweya v. Republic [1964] EA 129). So the absence of medical evidence to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence. [35] PW3 confirmed that he examined the complainant and observed that her hymen was torn and was bleeding easily on touch. He formed the opinion that the girl had been defiled. He produced the P3 form the he filled and signed along with the treatment documents issued to PW1. On the basis of the evidence presented, penetration was proved beyond reasonable doubt. [c] On whether the penetration of the complainant was perpetrated by the appellant: [37] The courts have emphasized that the identification of a suspect in criminal proceedings requires careful scrutiny of the evidence. The Court of Appeal in the case of Francis Kariuki Njiru & 7 others v Republic [2001] KECA 58 (KLR), held: “The law on identification is well settled, and this Court has from time to time said that the evidence relating to identification must be scrutinized carefully, and should only be accepted and acted upon if the court is satisfied that the identification is positive and free from the possibility of error…” [38] Although the appellant denied any prior knowledge of the complainant, she adduced credible evidence that linked the appellant with her defilement. She told the lower court that she had known the appellant by name prior to the 4 th February 2023 and that explains why she was easily persuaded to go with him to his house on that day. That evidence completely displaced the 13 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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alibi defence raised by the appellant as it placed him at the scene of the incident; an incident which took place at night. [39] Further consideration of the evidence of the complainant shows that she got to know the appellant as one of her mother’s suppliers. She testified that the appellant used to supply soda to her mother’s shop and that she used to communicate with him secretly using her brother’s mobile phone. She explained that on one occasion when the appellant went to the shop to supply soda, he found her alone at the shop and gave her his mobile phone number and invited her to communicate with him. Therefore, the complainant gave credible evidence as to the fact that she was defiled by the appellant. There was no plausible cause for the complainant to give false testimony against the appellant and therefore the assertion by the appellant that she was coerced into giving false testimony rings hollow. [40] That the complainant sought refuge and help from two other men who were strangers to her after the defilement by the appellant does not in any way absolve the appellant from culpability. She was categorical that she did not engage in sexual intercourse with any of those men. [41] In the premises, it is my finding that the offence of defilement under Section 8 (1) as read with Section 8(4) of the Sexual Offences Act was proved by the Prosecution beyond reasonable doubt and therefore he was rightly convicted for defilement. 14 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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B. Whether the Appellant’s rights under Article 50 (2) (g) and (h) of the Constitution were violated: [42] Legal representation is a constitutional right and an integral part of fair hearing. The rationale for this was aptly captured by Lord Denning, MR, in Pett v Greyhound Racing Association [1968] 2 ALL E R 545, at 549 as follows: “It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favor or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says to a man: ‘you can ask any questions you like;’ whereupon the man immediately starts to make a speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task.” [43] Accordingly, Article 50(2)(g)(h) of the Constitution is explicit that: (2) Every accused person has the right to a fair trial, which includes the right—... (g) to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; [44] Nevertheless, as was pointed out by the Supreme Court in Republic v Karisa Chengo & 2 Others (Petition 5 of 2015) [2017] KESC 15 (KLR) (26 May 2017) (Judgment), the right is not open-ended. Moreover, there is a clear distinction between the right to legal representation in general and the right to legal representation at state expense. The Supreme Court made this vital distinction thus: “…it is obvious to us that in criminal proceedings legal representation is important. However, a distinction must always be drawn between the right to representation per se and the right to representation at State expense specifically. Inevitably, there will be instances in which legal representation at the expense of the State will not be accorded in criminal proceedings. Consequently, in view of the principles already expounded above, it is clear 15 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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that with regard to criminal matters, in determining whether substantial injustice will be suffered, a Court ought to consider, in addition to the relevant provisions of the Legal Aid Act, various other factors which include: (i) the seriousness of the offence; (ii) the severity of the sentence; (iii) the ability of the accused person to pay for his own legal representation; (iv) whether the accused is a minor; (v) the literacy of the accused; (vi) the complexity of the charge against the accused; [45] A perusal of the record of the lower court shows that on the date of his arraignment before the lower court, the learned magistrate informed the appellant of his legal right to legal representation and explained to him that he had the right to engage an advocate of his own choice or to apply to the Legal Aid Authority for an advocate at state expense. This was done before the appellant was required to answer the charges. The accused responded as follows: “I will hire an advocate later for now read the charges to me” [46] The Court record further shows that before the commencement of his trial, the appellant engaged the services of an advocate, Mr. Ochieng, but the advocate later asked for leave to withdraw from the conduct of the appellant’s defence. The development was clearly explained to the accused and his response recorded to the effect that he understood that he was to proceed in person. He did not apply for time to engage another advocate. It is also notable that only one witness testified that day before the matter was adjourned. The appellant was able to engage the services of another advocate, Mr. Ongoso, who took over his defence thereafter. The record further shows that Mr. Ongoso was present when the evidence of PW2, PW3 and PW4 16 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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was led. I am therefore far from persuaded that the appellant’s right to legal representation at state expense was infringed. [47] In his first ground of appeal, the appellant impugned the decision of the lower court on the grounds that the learned trial magistrate failed to adhere to Sections 150 of the Criminal Procedure Code, Section 146(4) of the Evidence Act, and Article 50 of the Constitution by entering judgment against him yet the complainant, having been recalled, failed to appear before the court for cross-examination by the defence counsel. Section 150 of the Criminal Procedure Code provides that: A court may, at any stage of a trial or other proceeding under this Code, summon or call any person as a witness, or examine any person in attendance though not summoned as a witness, or recall and re-examine a person already examined, and the court shall summon and examine or recall and re-examine any such person if his evidence appears to it essential to the just decision of the case: Provided that the prosecutor or the advocate for the prosecution or the defendant or his advocate shall have the right to cross-examine any such person, and the court shall adjourn the case for such time (if any) as it thinks necessary to enable the cross-examination to be adequately prepared if, in its opinion, either party may be prejudiced by the calling of that person as a witness. [48] In this instance, the matter had to proceed after counsel for the appellant opted out, on the ground that the complainant, who was a school girl, was then kept at a protection centre pending her testimony. It was feared that she would disappear if released. The record shows that the learned magistrate indeed ordered for her recall for purposes of further cross-examination at the instance of the defence counsel, and that the prosecution was granted time to avail her but she could not be traced. Her mother was summoned to court on 16th March 2023 to avail the minor but she was unable to avail her because the minor had disappeared. 17 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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Needless to say that the right could only be realized if the witness was available. It cannot, in the circumstances, be said that the learned magistrate denied the appellant his right to have the complainant cross-examined further by his counsel when the record clearly shows that the order for recall and the opportunity was provided by the learned magistrate; save that the witness could not be traced. C. On whether the sentence of 15 years is harsh or excessive: [49] In Bernard Kimani Gacheru v Republic [2002] eKLR, the Court of Appeal 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 stated is shown to exist. [50] The penalty for defilement is prescribed in Section 8(4) of the Sexual Offences Act which provides: 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. [51] The offence was committed against a 16-year old child. It is therefore my finding that the 15 years’ imprisonment was the minimum that the learned magistrate could impose. The sentence was therefore not only appropriate in the circumstances, taking into account the mitigating factors presented, including the fact that the appellant was a first offender. Moreover, the record of the 18 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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lower court shows that the learned magistrate prepared a wellreasoned ruling on sentence in which she took into account the relevant factors pertinent to the matter at hand. Indeed, in Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) (11 April 2025) (Judgment) the Supreme Court had occasion to make the point that: Paragraph 11 to 14 of the Muruatetu & another v Republic; Katiba Institute & 4 others (Amicus Curiae) [2021] KESC 31 (KLR) directions (Muruatetu Direction) were very clear that the decision in the Muruatetu & another v Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR) (Muruatetu decision) did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. The Muruatetu decision could not be said to be the authority for stating that all provisions of the law prescribing minimum sentences were inconsistent with the Constitution.” [52] I therefore find no basis for interfering with the sentence imposed by the trial court. For purposes of Section 333(2) of the Criminal Procedure Code, the learned magistrate noted that the appellant had been released on bond upon his arraignment. [53] In the result, it is my finding that the appeal lacks merit. It is dismissed in its entirely. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 29TH DAY OF MAY 2026 ………………..…………………. HON. OLGA SEWE JUDGE 19 | P a g e HCCRA NO. E060 OF 2023 JUDGMENT

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