Samwel Onyango Otieno v The Republic

5. The trial court carefully considered the evidence on record and the submissions from both parties, it pronounced itself as follows, “in the upshot of Count1, I find that the prosecution was able to prove its case beyond reasonable doubt and warrant a conviction, I will return a verdict of guilty and proceed to convict the Accused person pursuant to Section 215 of the Criminal Procedure Code. For the alternative charge, the accused having been convicted in the main count, the same shall be held in abeyance.” 6. In the sentence, the learned magistrate pronounced as follows, “at the time of the offence the minor was 13 years old. Accused sentenced to 20 years imprisonment” 7. The Accused, being dissatisfied with the outcome in the trial court, filed a Petition of Appeal dated 10th February, 2025. The Appellant raised the following grounds; 1. That the learned magistrate erred in both law and facts by failing to consider that the ingredients forming the offence of defilement contrary to section 8(1) as read with 8(3) of the SOA No.3 of 2006 were not proved to the required standard. 2. That the learned magistrate erred in both law and facts by failing to consider the mitigating factors that called for leniency. 3. That the learned magistrate erred in both law and facts in convincing the appellant on the basis of presumptions without observing the evidence of the appellant that overwhelmed the prosecution case. 4. That the learned magistrate erred in both law and facts by failing to note and consider that the evidence tendered by the prosecution was full of contradictions, inconsistencies and doubtful evidence all pointing at fabricated case. 5. 8. That may the appellant be supplied with the true certified copies of the trial proceedings too help him adduce more reasonable grounds. This is the first appellate court and as held in the matter of Okeno v R (1972) EA 32, the Court of Appeal for East Africa laid down that the duty of the first appellate court is to analyze and re-evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court but bearing in mind that it never saw the witnesses testify. B. SUBMISSIONS BY BOTH PARTIES Appellants Submissions 9. The Appellant raised the question of whether the trial was fair. He contended that the accused was not informed of his right to have legal representation despite being faced with very grievous charges. Further, he submitted that the accused was not supplied with the witness statements. 10. The Appellant submitted that the conduct of the trial court was contrary to the rights of the accused person as enshrined in Article 50(2) of the Constitution of Kenya which provides for the right of the accused to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10010/eng@2026-07-08 2

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11. Further, the Appellant relied on the case of Absalom Ambaka Akila vs. Republic (2020) eKLR, and brought out the holding of the court, in that, while the three other ingredients of defilement should be considered, the fourth one is on circumstances. 12. On circumstantial evidence, the Appellant relied on the case of Sawe vs. Republic and stated that circumstantial evidence can only be a basis for conviction only if there is no other existing circumstances weakening the chains of circumstances relied on. The burden of proving facts which justified the drawing of this inference from the facts to the exclusion of any other reasonable hypothesis of innocence of the prosecution. 13. The Appellant submitted that the 5 minutes could not be sufficient for the Appellant to drag the victim to a house far apart from theirs, undress her, the appellant to undress and defile the accused. He submitted that the mental state also required sometime to respond to a stimulation and as such an intercourse can only take effect if a man is erect and therefore submits that these are impossibilities. 14. Secondly, the Appellant submitted on contradictions and inconsistencies. He submits that there were inconsistencies in the testimonies given by the witnesses and the complainant and that these contradictions cannot be ignored. Respondent’s Submissions 15. The Respondent first submitted on the ground of whether there was a fair trial. They submitted that the court ordered that the accused be supplied with the statements but there is no evidence contradicting that the accused was never supplied with evidence from the prosecution and therefore, there was fair trial pursuant to Article 50 of the Constitution of Kenya. 16. The second issue raised by the Respondent is whether there were inconsistencies. The Respondent submitted that in defilement cases, the testimony of the victim is sufficient as the trial court believes the victim, a PCR form was filled which indicated that the victim had been defiled and the victim was in a position to identify the perpetrator, this is sufficient to sustain the charge. The Respondent relied on the matter of Richard Munene vs. Republic. 17. On the third limb, the Respondent submitted on whether the ingredients of defilement were proved beyond reasonable doubt. On the age of the complainant, the Respondent submitted that a birth notification was produced to show that the victim was born on 1st September, 2009. 18. On the issue of penetration, the Respondent submitted that PW3 submitted that a P3 form and PCR forms were produced showing that the complainant sustained a wound in vagina. On identification of the perpetrator, the Respondent reiterated the testimony PW1 and PW 2. C. ISSUES FOR DETERMINATION i. Whether the Appellant’s right to a Fair Trial under Article 50 of the Constitution was violated. ii. Whether the ingredients of defilement were proved iii. Whether there were contradictions and inconsistencties iv. Whether the prosecution proved its case beyond reasonable doubt https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10010/eng@2026-07-08 3

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D. ANALYSIS ON THE ISSUES FOR DETERMINATION Issue 1: Whether the Appellant's Right to a Fair Trial under Article 50 of the Constitution was Violated. 19. The Appellant submitted that his constitutional right to a fair trial, as enshrined under Article 50(2) (j) of the Constitution of Kenya, was violated. The said provision entitles an accused person to be informed in advance of the evidence the prosecution intends to rely on and to have reasonable access to that evidence. The Appellant contended that he was unrepresented during the trial and was not afforded an opportunity to access the prosecution's evidence in advance, thereby prejudicing his ability to adequately prepare his defence. 20. In response, the Respondent submitted that the trial court expressly directed that the accused person be supplied with all the prosecution documents and witness statements intended to be relied upon during the trial. 21. The right to prior disclosure of the prosecution's evidence is a fundamental component of the right to a fair hearing and serves to ensure equality of arms between the parties. The record demonstrates that the trial court was alive to this constitutional requirement and issued directions for the supply of the relevant documents to the accused person. 22. While the Appellant disputes whether the disclosure was ultimately effected, the court must consider this complaint within the context of the entire proceedings and determine whether any alleged failure occasioned prejudice sufficient to render the trial unfair. Accordingly, this issue cannot be considered in isolation but must be evaluated alongside the other grounds raised in the appeal and the overall conduct of the trial. Issue 2: Whether the Ingredients of defilement were proved 23. The Appellant was charged in Count I with the offence of defilement contrary to Section 8(1) as read together with Section 8(3) of the Sexual Offences Act. Section 8(1) provides that any person who commits an act which causes penetration with a child is guilty of the offence of defilement. 24. In determining whether the offence was proved, the court must consider whether the prosecution established all the essential ingredients of the offence. In the case of Charles Wamukaya Karani v Republic Crminal Appeal No. 72 of 2013, the Court held that, “the central ingredients forming the offence of defilement are age of the complainant, proof of penetration and positive identification of the assailant” Age 25. With regard to the first ingredient, namely the age of the complainant, the trial court correctly observed that this issue was not contested. The prosecution produced a Birth Notification indicating that the complainant was born on 1 September 2009. The evidence further showed that the alleged offence occurred on 9 May 2022. 26. Consequently, at the time of the alleged offence, the complainant was approximately 12 years and 8 months old and therefore a child within the meaning of the Sexual Offences Act and the Children Act. The court is therefore satisfied that the prosecution proved the age of the complainant beyond reasonable doubt. 27. Having found that the issue of age is crystal clear, we shall delve into the second ingredient of the offence of defilement, which is penetration. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10010/eng@2026-07-08 4

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Penetration 28. Section 2 of the Sexual Offences Act defines penetration as the partial or complete insertion of the genital organs of a person into the genital organs of another person. 29. The evidence on record shows that the complainant testified that the Appellant had sexual intercourse with her. The complainant gave an account of the events leading to the alleged offence and described the manner in which the act was committed. Her testimony was further corroborated by the medical evidence adduced by the prosecution. 30. The prosecution relied on the testimony of PW3 who examined the complainant and completed the P3 and PRC forms. The medical findings indicated injuries consistent with sexual activity, including a broken hymen and a wound at the vagina at 6 O’clock. The PRC and P3 Forms were produced as exhibits before the trial court. 31. It is settled law that penetration need not be proved by medical evidence alone. The credible testimony of a complainant, if believed by the court, may be sufficient to establish penetration as it was held in the case of Mohamed vs. Republic [2006] 2 KLR 138 where it was stated that “It is now settled that the courts shall no longer be hamstrung by requirements of corroboration when the victim of a sexual offence is a child of tender years if it is satisfied that the child is truthful” 32. Medical evidence serves to strengthen and corroborate such testimony where available. The trial court considered both the oral and medical evidence (P3 and PRC forms) and was satisfied that penetration had been proved beyond reasonable doubt. From the broken hymen and the wound in the vagina, proving that penetration occurred. Upon re-evaluation of the evidence, this court finds no basis to interfere with that finding. The totality of the evidence on record establishes that there was at least penetration as contemplated under Section 2 of the Sexual Offences Act. 33. While this court is satisfied that the prosecution proved the ingredient of penetration, it is imperative to note the limited evidentiary value of the medical documents in relation to the identification of the perpetrator. A perusal of both the P3 Form and the Post Rape Care (PRC) Form reveals findings of a broken hymen and injuries to the vaginal area, which are consistent with penetration. However, the medical evidence does not contain any DNA analysis, forensic examination, or other scientific evidence linking the appellant to the alleged offence. The findings contained in the P3 Form and PRC Form merely establish that penetration may have occurred; they do not identify the person responsible for the act. Consequently, while the medical evidence corroborates the occurrence of penetration, it does not, on its own, provide proof that the appellant was the perpetrator of the offence. 34. Having found that the prosecution proved the age of the complainant and the ingredient of penetration, the court must now determine whether the third and equally essential ingredient of the offence, namely the positive identification of the assailant, was proved beyond reasonable doubt. Identification of the Accused 35. It is imperative to note that proof of age and penetration, though essential ingredients of the offence, does not by itself warrant a conviction. The cornerstone of every criminal trial remains the identification of the perpetrator. Consequently, the prosecution bears the burden of proving beyond reasonable doubt that the accused person was positively and properly identified as the offender. Without such proof, the establishment of the remaining elements of the offence is rendered inconsequential, for there can be no conviction where the identity of the offender remains in doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10010/eng@2026-07-08 5

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36. The Court of Appeal in Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, held that the essential ingredients of the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. Failure to prove any one of these ingredients is fatal to the prosecution's case. 37. In the present case, the complainant testified that the Appellant pulled her from her house after her mother had gone to the market and proceeded to defile her in his house and later on the grass. PW2, the complainant's mother, testified that she had gone to the market and was away for only about five minutes. Upon her return, she heard the complainant screaming. She stated that she encountered a man at the door, grabbed his shirt, and attempted to restrain him while calling for help. According to her evidence, the man broke free and ran away. She further testified that she was able to identify him using security lights outside the house. 38. Upon re-evaluation of the evidence, this court finds material gaps in the prosecution's evidence concerning identification. First, neither the complainant nor PW2 clearly stated whether the Appellant was a person previously known to them. The prosecution did not lead evidence on whether the identification was by recognition or by first encounter. This distinction is crucial because recognition is generally considered more reliable than identification of a stranger. In the absence of evidence that the Appellant was previously known to the witnesses, the court is left to treat the evidence as that of identification by a single witness under difficult circumstances. 39. Secondly, the sequence of events as narrated by the prosecution witnesses raises doubts regarding the alleged identification. The complainant stated that the perpetrator had taken her away, defiled her in his house and thereafter on the grass. PW2, on the other hand, testified that upon returning from the market she found a man at the door and grabbed his shirt before he escaped. The evidence does not adequately explain how the perpetrator, having allegedly left with the complainant and committed the offence elsewhere, was subsequently encountered by PW2 at the doorway. This inconsistency was not reconciled during the trial and leaves uncertainty as to the identity of the person whom PW2 allegedly saw. 40. Further, although PW2 stated that she identified the assailant using security lights, the prosecution failed to provide details regarding the intensity, position, or adequacy of the lighting. The court was not told the distance between PW2 and the person she allegedly identified, the duration of the encounter, or whether there existed any impediments to observation. Such details are essential where a conviction is sought to be founded on visual identification. 41. In the celebrated case of Reuben Taabu Anjononi & 2 Others v Republic [1980] KLR 59, the Court of Appeal held that recognition may be more reliable than identification of a stranger, but even then, courts must examine such evidence carefully to eliminate the possibility of error. Similarly, in Wamunga v Republic [1989] KLR 424, the court warned that evidence of visual identification can bring about a miscarriage of justice and must therefore be tested with the greatest care, particularly where conditions favoring a correct identification are difficult. 42. The Court of Appeal in Maitanyi v Republic [1986] KLR 198 further held that before acting on evidence of visual identification, the court must inquire into the nature of the light available, its intensity, its location, and the period during which the witness observed the suspect. Such an inquiry is necessary to satisfy the court that the possibility of mistaken identity has been excluded. 43. In the instant case, the trial court did not sufficiently interrogate the circumstances under which the complainant and PW2 allegedly identified the Appellant. There was no evidence demonstrating that either witness gave a description of the assailant at the earliest opportunity. Equally, there was no https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10010/eng@2026-07-08 6

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evidence showing that the Appellant was known to them beforehand so as to make the identification one of recognition. The circumstances under which the alleged identification was made therefore remain doubtful. 44. Bearing in mind that the burden rests entirely upon the prosecution to prove the guilt of an accused person beyond reasonable doubt, this court finds that the evidence on identification fell short of the required legal threshold. While the evidence establishes that the complainant, a minor, was penetrated, the prosecution failed to prove beyond reasonable doubt that it was the Appellant who committed the offence. 45. Consequently, the third and critical ingredient of the offence of defilement was not proved. In the absence of positive identification of the perpetrator, the conviction cannot be sustained. Any doubt arising from the evidence must be resolved in favor of the Appellant. Accordingly, the conviction for the offence of defilement is unsafe and cannot stand. Issue 3: Whether there were contradictions and inconsistencies 46. On whether there were contradictions and inconsistencies, the Appellant raised the first being that the complainant stated that the mother went to the market, someone knocked at their door, she ushered the person in. The door was open. She stated that the person pulled her out and took her to another house, he removed his pant and inserted into my vagina and defiled me. She further stated that she was defiled in the grass. 47. The Appellant points out that this means that the acts of penetration was twice. On the evidence of PW2 (complainant’s mother) she stated that on 9th May 2022, she went away for 5 minutes and left the complainant in the house and on her way back, she had the complainant screaming, got to the house, where she met someone at the door whose shirt she got hold of and that she pulled him towards the gate shouting for help. 48. From the evidence on record, the occurrence and sequence of the alleged events remain highly questionable. It is unclear where the alleged defilement is said to have taken place whether in the complainant's house, the accused's house, or on the grass. Equally uncertain is the location where PW2, the complainant's mother, found the complainant. The prosecution's account raises significant doubts as to how the events are alleged to have unfolded. Did the accused pull the complainant from her house, take her to his house, defile her there, thereafter move her to the grass where a further act occurred, and then return her to her house, all within a span of less than five minutes? The evidence does not satisfactorily answer these questions, thereby casting doubt on the plausibility and coherence of the prosecution's version of events. 49. The learned trial magistrate discounted the appellant's alibi defense on the basis that the appellant's mother testified that she had been with the appellant and his wife preparing ugali and omena on the material day, whereas the appellant's wife testified that the meal prepared was ugali and vegetables. In my view, this discrepancy was too minor and inconsequential to constitute a sufficient basis for rejecting the alibi evidence. The contradiction related only to the type of accompaniment served with the ugali and did not go to the substance of the defence, namely, that the appellant was at home with his family at the material time. 50. In Njuki & Others v Republic (2002) 1 KLR 771, the court held that where discrepancies or contradictions arise in the evidence, the court must determine whether they are of such a nature as to create doubt as to the guilt of the accused; where they do not, they are curable under Section 382 of the Criminal Procedure Code. Applying that principle to the present case, the inconsistency regarding https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10010/eng@2026-07-08 7

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whether the meal consisted of ugali and omena or ugali and vegetables was a minor discrepancy that did not affect the credibility of the witnesses on the material issue. 51. If anything, such a variance is consistent with the fallibility of human recollection and does not undermine the core of the alibi defence. Consequently, the learned trial magistrate placed undue weight on an immaterial inconsistency and thereby failed to properly evaluate the defence evidence in its entirety. E. DISPOSITION 52. Upon a careful analysis of the evidence, I find that the circumstances surrounding the alleged offence, the inconsistencies regarding the sequence and location of the events, and the shortcomings in the evidence of identification left room for doubt as to whether the appellant was positively and reliably identified as the perpetrator. The learned trial magistrate failed to adequately address these concerns and consequently erred in concluding that the appellant had been identified beyond reasonable doubt. 53. In the present case, while the age of the complainant and the fact of penetration were established, the prosecution failed to discharge its burden of proving beyond reasonable doubt that the appellant was the person who committed the offence. The evidence on identification fell short of the requisite legal threshold, thereby leaving a critical element of the offence unproven. Consequently, the conviction cannot be sustained and is therefore unsafe. 54. Consequently, I find merit in the appeal. The conviction by the trial court is hereby quashed and the sentence set aside on both the main count and the alternative. 55. The Appellant is set free forthwith, unless otherwise lawfully held. CONCLUSIO SIGNED BY/FOR: □__ TH____ E____ JUDICIAR____ Y____ O____ F____ KENY____ A____ #__ HON. JUSTICE ABDI M. HASSAN Kisumu High Court __ High Court Criminal______ Date: 2026-07-08 08:22:12 The Judiciary of Kenya 1/13 Doc IDENTITY: 357799428151473800698324657135 Tracking Number:OOM67F2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10010/eng@2026-07-08 8

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