Elvis Ochieng Otiato v Republic

2. The Appellant was aggrieved and filed his Petition of Appeal dated 22nd August 2025 wherein he raised the following grounds of appeal: I. THAT, the learned trial magistrate erred in both law and fact when she convicted the appellant in the present matter and yet the prosecution lacked corroboration. II. THAT, the learned trial magistrate erred in both law and fact when she merely formed a basis of conviction relying on section 144 of Evidence Act CAP 80 laws of Kenya. III. THAT, the learned trial magistrate erred in matters of law when she found the appellant guilty as charged and failed to observe his fundamental rights vested in Article 50 (2) (h) of the constitution of Kenya. IV. THAT, the learned trial magistrate erred in law when she convicted the appellant in the present case and SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 2

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yet the medical evidence adduced in court did not support the complainant’s allegations. V. THAT, the learned trial magistrate erred in both law and fact when overlooked alibi as well as his mitigation and went ahead to convict the appellant. 3. The Appellant later filed Supplementary Grounds of Appeal as follows: a) THAT, his constitutional rights to a fair trial hearing under 50(2) (c) (j) (k) of the constitution of Kenya were violated. b) THAT, the trial court failed to comply with the provision of section 198(1) of the Criminal Procedure Code. c) THAT, he requests this Hon court to recall the prosecution witness, PW1, PW2, PW 3 and PW 4 for cross examination as provided under section 302 of the Criminal Procedure Code. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 3

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d) THAT, the learned trial magistrate erred in both law and fact when she found the appellant guilty as charged and failed to note that the prosecution's case lacked corroboration in its nature. e) THAT, the learned trial magistrate erred in matters of law when she fully certified that the appellant was guilty as charged and failed to note that the medical evidence did not support the complainant’s contention. f) THAT, the learned trial magistrate erred in matters of law when she found the appellant guilty in the present case and failed to observe that the appellant’s fundamental rights were violated during the trial. g) THAT the learned trial magistrate erred in matters of law when she found the appellant guilty in the present case and failed to note that PW1's evidence was unlawfully received contrary to section 151 of the Criminal Procedure Code. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 4

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h) The learned trial magistrate erred in both law and fact when she rejected appellant's defence of alibi which was truthful and cogent to secure an acquittal. 4. This being the first Appellate Court, the court’s duty is to consider the evidence presented to the trial court with caution that it neither heard nor saw the witnesses. In Okeno- Vs- Republic (1972) EA 32 it was held that; ‘‘"An appellant is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination and to the Appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. It is not the function of the first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and conclusions. Only then can it decide SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 5

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whether the magistrate's findings can be supported. In doing so, it should make an allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses".(Emphasis added) 5. The case before the lower court is that the Appellant, Elvis Ochieng Otiato was arraigned before the Principal Magistrate’s Court at Madiany Law Courts, facing a main charge of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act (Act No. 3 of 2006). The particulars of the charge were that on the 11th day of May 2025 at Miembe village, Naya sub location, South Uyoma location within Rarieda sub county in Siaya County, the Appellant intentionally caused his penis to penetrate the vagina of L.A., a child aged 16 years. The Appellant also faced an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act with the particulars being that on the night of 11 th May SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 6

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at Miembe Village, Naya Sub Location, South Uyoma Location in Rarieda Sub County within Siaya County, intentionally and unlawfully touched the vagina of L.A a child aged 16 years old. 6. L.A (PW1) was the complainant who stated that on 11/5/2025 while on her way back from washing clothes in the lake, she met the Appellant who had been her boyfriend. That the Appellant asked her to go to his friend’s house as he wanted to talk to her. She had been to the said house before. That they talked and had sexual intercourse. That she removed her skirt and top as accused removed his clothes. That the Appellant then inserted his penis in her vagina. That they stayed up to 4.00 p.m. when one Bon found them and informed Tirus Kola (PW3) who was her cousin and guardian. That PW3 alerted the clan elder and that they stormed the house where the two love birds were and then took them to the chief and to Ndigwa police post. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 7

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She was taken to Madiany sub county hospital for examination. That she was born on 17th February 2009 and that she identified the birth certificate which was marked as Mfi-1. 7. Marvin Asol Ochieng (PW2) a clinician attached at Madiany sub county hospital stated that he attended to the complainant on 11/5/2025 at 9.16 p.m. That the patient was 16 years old. On examination, he found the labias were normal. That there were no lacerations and no tears. That there was vaginal bleeding. That the hymen was broken but not freshly. That the patient had not changed clothes or showered. That he made a diagnosis of defilement based on age, noted per vaginal bleeding and lab result that showed infection. That he also also examined Appellant on the very date of 11/5/2025 and that he had no noted blood stain, no discharge and no injury on the penis. That both complainant SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 8

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and Appellant had similar sexually transmitted infection for which he gave a description for medication, 8. Tirus Kola (PW3) was the guardian and uncle to the complainant. He stated that he was informed that the Appellant had been seen entering a certain room with the complainant. That he went to the said house, knocked but the door was not opened. He opened the door and found complainant seated on the bed while the Appellant was seated on a plastic chair. He had them apprehended and reported the matter to area assistant chief and then went to Ndigwa Police Post to lodge report. On cross-examination, he stated that the Appellant used to do fishing with his aunt and that they would accommodate him whenever he was not going to the sea to fish. 9. No.257109 PC Siddi Lugai (PW4) was the Investigating officer who stated that he recorded statements of witnesses and escorted the complainant and the Appellant to Madiany SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 9

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sub county hospital. He produced the birth certificate of the complainant as exhibit 1. That he established that the complainant had been in a romantic relationship with the Appellant since August 2024. That he also learnt from the Appellant that he was aged 21 years old. 10. The trial court later established that a prima facie case had been made against the Appellant who was placed on his defence and who elected to give a brief, unsworn statement and called no witnesses. 11. Elvis Ochieng (DW1) stated that he met the complainant on the way who followed him to his house. That they spent time together before PW3 went with the secretary to beach management unit. That the door was never locked. That they found him seated on the bed while complainant seated on the chair. That they were escorted to Madiany sub county hospital. He added that he had SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 10

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issues with the complainant’s uncle (PW3) since he used to work for his aunt. 12. The appeal was canvassed by way of written submissions. Both parties duly complied. 13. The Appellant invokes the legal principles of a first appeal noting that the appellate court is duty-bound to re-analyse and re-evaluate all the trial evidence afresh to draw its independent conclusions as guided by the precedent of Okeno v Republic (1972) E.A. 32. 14. The Appellant contends that the trial proceedings were fundamentally flawed and constituted a structural nullity on three main constitutional fronts under Article 50 of the Constitution of Kenya, 2010. The Appellant argues that he was denied adequate time and facilities to prepare a proper legal defense. He highlights that the plea was ordered on 15th May 2025 and the trial commenced on 28th May 2025 leaving a span of only 13 days which he argues is legally SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 11

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insufficient for an unrepresented layman. That the prosecution failed to provide advance disclosure of the evidence intended for reliance thereby breaching the Appellant's right of reasonable access to prosecution materials. 15. The Appellant highlights a severe breach of Section 198(1) of the Criminal Procedure Code (C.P.C.). Being a 21-year-old illiterate layman, his preferred and understood tongue was strictly Dholuo. Although the record indicates that responses were typed in English, prosecution witnesses PW1, PW2, PW3 and PW4 took their oaths and gave evidence in English without any verified court interpretation into Dholuo. This effectively blocked the Appellant from comprehending the testimonies and incapacitated his right to cross-examine them under Section 302 of the C.P.C. 16. The Appellant further contended that the trial court completely failed to treat the Appellant as a vulnerable SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 12

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individual under Section 31 of the Sexual Offences Act completely overlooking his total illiteracy. 17. The Appellant further contends that during the voir dire examination of the minor (PW1), the specific language used was completely omitted from the record and the court proceeded to swear her in under an incorrect legal citation, demonstrating a failure to adhere to mandatory legal standards. The Appellant cites Ann Njogu & 5 Others v Republic (Misc. Application No. 55 of 2007) , Republic v James Njuguna Nyaga and Pascal Otieno v ODPP (HCCR Appeal No. E051 of 2024 at Busia) to assert that structural non-compliance with fair trial rights renders the entire trial void under Article 2(4) of the Constitution. He requests a fresh hearing on these grounds referencing Dharamisi Sumar v Rep (1964) E.A. 489 , In Frestihaji Many v Rep (1966) E.A. 343 and Jackson Mathera v Rep (2015) KLR SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 13

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18. The Appellant submits that the absolute threshold ingredient of penetration under Section 2 of the Sexual Offences Act was never established by the prosecution. He critiques the evidence on two factual bases. PW3 testified that upon receiving a call from an individual named Moses, he rushed to a room where the door was closed. Upon gaining entry, he merely found the Appellant seated on a plastic chair and the minor seated on the bed. The Appellant highlights that PW3 did not witness any sexual act nor did he present any physical signs indicating sexual intercourse had transpired. Furthermore, key materials witnesses specifically Moses (who allegedly spotted the minor entering), Peter (the owner of the room) and the village elder were never called to testify triggering the adverse principles of Bukenya v Uganda (1972 E.A. 549) and Patrick Kathurima v C.O.A No. 131 of 2014. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 14

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19. The Appellant submits that the medical testimony of the Clinical Officer (PW2) actively exonerates him. PW2’s physical examination notes that the victim's labia was normal with absolutely no lacerations and no tears. While per vaginal bleeding was noted, the medical report stated the hymen was broken not freshly. The Appellant challenges that if the victim had not changed clothes or showered, the absence of fresh lacerations, fluid discharges or DNA profiles completely reduces the prosecution's case to unproved hearsay citing inter alia Daniel Mwasi v Rep (HCCR App. No. 458 of 1985). 20. The Appellant strongly states that the trial magistrate committed a grave legal error by shifting the burden of proof onto the defense. The Appellant provided a clear defense of alibi placing himself away from any unlawful conduct. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 15

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21. Citing the Court of Appeal decision in Victor Mwendwa Mulinge v Republic (2014) eKLR , the Appellant emphasizes that the burden of proving the falsity of an alibi rests entirely on the prosecution. Furthermore, citing Adedeji v The State (1971) 1 All N.C.R. 75 he notes that the failure of the police to actively investigate and check the reliability of the raised alibi introduces an insurmountable reasonable doubt, which must result in the quashing of the conviction. 22. Based on the foregoing systemic constitutional breaches and fatal evidentiary gaps, the Appellant requests the High Court to allow the appeal in its entirety and to quash the conviction and completely set aside the 15-year jail term and thereafter set the Appellant at liberty or in the alternative, order a fresh retrial before a court of competent jurisdiction. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 16

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23. The Respondent, represented by the Office of the Director of Public Prosecutions (ODPP) Siaya submits these arguments in opposition to the Appellant’s Petition of Appeal dated 26th June 2025. That the Appellant, Elvis Ochieng Otiato was convicted and sentenced by the trial court at Madiany for the offence of defilement contrary to Section 8(1) as read with Section 8(4) of the Sexual Offences Act, 2006, with an alternative charge of committing an indecent act with a minor contrary to Section 11(1) of the same Act. The Appellant seeks to have his conviction quashed and sentence set aside. 24. The State acknowledges its legal obligation to prove the criminal charges beyond a reasonable doubt noting that the burden remains static and never shifts to the defense. To contextualize this standard, the State relies on the dicta of Justice R. Nyakundi in Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR which adopted the SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 17

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classical common-law formulations of Lord Denning Miller v Minister of Pensions [1947] 2 All ER 372-373 Proof beyond a reasonable doubt does not require absolute certainty but rather a high degree of probability. Fanciful or remote possibilities should not deflect the course of justice if the evidence against the accused is otherwise compelling. Bater v Bater [1950] 2 All E.R. 458 While acknowledging a higher standard in criminal matters compared to civil cases, it is emphasized that the clarity required of the proof must scale proportionally with the enormity of the crime committed. 25. The Respondent submits that the statutory thresholds regarding the victim's minor status and the identification of the perpetrator have not been contested or impugned by the Appellant in this appeal. The State argues that by failing to challenge these facts, the Appellant has implicitly conceded that the prosecution met its evidentiary burden. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 18

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Consequently, the State invites the court to mark the issues of age and identification as conclusively determined and spent. 26. The Respondent strongly argues that the foundational element of penetration as defined under Section 2 of the Sexual Offences Act was fully satisfied at trial through two reinforcing streams of proof. The minor provided a clear, consistent and highly reliable account of the events which the trial court properly accepted as truthful. The defense offered no evidence to shake or controvert her testimony. 27. The State relies heavily on the expert testimony of PW2 (Marvin Asol Ochieng), a registered Clinical Officer at Madiany Sub-County Hospital. PW2 made a conclusive clinical diagnosis confirming penetration. Crucially, laboratory findings established that both the Appellant and the victim were suffering from the exact same sexually transmitted infection (STI). The Respondent submits that SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 19

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this medical intersection stands uncontroverted and forms an unassailable biological link between the parties and fully elevates the evidence beyond reasonable doubt under the threshold of Alex Chemwotei Sakong v Republic [2018] eKLR. 28. The State maintains that the instant appeal is entirely devoid of legal merit, as the trial court's conviction and sentence were securely grounded in sound statutory law and overwhelming evidence. 29. Accordingly, the Respondent prays that the High Court upholds the conviction entered by the trial court and to affirm the 15-year custodial sentence as imposed and enhance the said sentence by exercising the court's inherent judicial discretion. 30. I have considered the Appeal, the record of appeal and the submissions tendered. I find that the issue for determination SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 20

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is whether the Respondent proved its case against the Appellant beyond reasonable doubt. 31. It is trite that in criminal cases, the burden of proof is upon the prosecution to discharge and that the standard of proof is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462. The State has a legal obligation to prove the criminal charges beyond a reasonable doubt and that the burden remains static and never shifts to the defense. To contextualize this standard, the dicta of Justice R. Nyakundi in Republic v Silas Magongo Onzere alias Fredrick Namema [2017] eKLR which adopted the classical common-law formulations of Lord Denning Miller v Minister of Pensions [1947] 2 All ER 372-373 comes to mind that proof beyond a reasonable doubt does not require absolute certainty but rather a high degree of probability. Fanciful or remote possibilities should not deflect the course of justice if the evidence against the SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 21

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accused is otherwise compelling. Bater v Bater [1950] 2 All E.R. 458 While acknowledging a higher standard in criminal matters compared to civil cases, it is emphasized that the clarity required of the proof must scale proportionally with the enormity of the crime committed. 32. It is noted that the Appellant had been charged with an offence of defilement under section 8(1) as read with section 8(4) of the Sexual Offences Act No. 3 of 2006. In order to prove the offence therein, the Respondent was under obligation to prove certain essential ingredients and that to answer this, the Court must evaluate the three canonical ingredients of defilement namely; the age of the complainant (whether she was a child under the law); the fact of penetration and the positive identification or recognition of the Appellant as the perpetrator. These ingredients must each be proven for a conviction to ensue SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 22

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(See George Opondo Olunga vs Republic [2016] eKLR). 33. Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (2) 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. (3) A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. (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. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 23

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(5) It is a defence to a charge under this section if (a) it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and (b) the accused reasonably believed that the child was over the age of eighteen years. (6) The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant. (7) Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children's Act. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 24

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(8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees 36. As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon conviction is dependent upon the age of the victim.. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement: “... the question of proof of age has finally been settled by recent decisions of this court to the effect documents, that it can evidence such be as proved a by birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable.” 37. Regarding proof of age, and as noted above, it is noteworthy to state at the outset that the importance of proving the age of a victim in sexual offences is SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 25

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paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. 38. Section 2 of the Children’s Act defines a child as a person under the age of eighteen (18) years. There are various ways which can be used to prove a victim’s age as held in Mwalango Chichoro Mwajembe V Republic Criminal Appeal No. 24 of 2015 (UR) where the court stated as follows: “……..the question of proof of age has finally been settled by a recent 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 of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof” It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. (See Denis Kinywa -Vs- Republic Criminal Appeal No. 19 of 2014) and (Omar Ucher Vs- Republic Criminal Appeal No. 11 of 2015). We doubt if the courts are possessed of requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 26

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is a direct influence by the decisions of the Court of Appeal of Uganda in Francis Omuroni -VsUganda Criminal Appeal No. 2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable...” 39. The Appellant has challenged the evaluation of the minor's age arguing that the production of an uncertified photocopy of the birth certificate violated the secondary evidence rules under Sections 64 and 65 of the Evidence Act (Cap 80). He relies on Eliude Waweru Wambui v Republic (2019) eKLR to argue that a primary document must be inspected by the court unless foundational grounds for secondary paths are laid. While the technical form of the birth certificate produced by PW4 (PC Siddi Lugai) was a copy, the record demonstrates that the document was formally received as an exhibit without any contemporary objection from the defense. More fundamentally, the document was actively reinforced by the oral testimony of SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 27

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the minor (PW1) who stated her date of birth as 17th February 2009 making her 16 years and 3 months old at the time of the incident. I find that the age of the minor (16 years) was proved beyond reasonable doubt. 40. As regards the aspect of penetration, section 2 of the Sexual Offences Act No.3 of 2006 defines ‘‘Penetration’’ as the partial or complete insertion of the genital organs of a person into genital organs of another person. 41. Penetration is proved through the evidence of the victim. The testimony of the victim in this case coupled with evidence from other witnesses was sufficient to determine whether penetration occurred. Under the provisions of section 124 of the Evidence Act, the same provides as follows: "Notwithstanding the provisions of section 19 of the Oaths and Statutory Declaration Act, where the evidence of the victim admitted in accordance with that section on behalf of the Prosecution in the SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 28

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proceedings against any person for an offence, the accused shall not be liable to be convicted in proceedings against him unless it is corroborated by other evidence in support thereof implicating him. Provided that where in a criminal case involving a sexual offence, the only evidence is that of the alleged victim of the offense, 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." In the case of Bassita vs. Uganda S.C. Criminal Appeal No. 35 of 1995 it was held thus: "An intercourse or penetration may be proved by direct or circumstantial evidence. Ally the sexual intercourse is proved by the victim's own evidence and reinforced by the medical evidence or other SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 29

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evidence. Though desirable, it is not hard and fast rule that the victim's evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce to prove its case such evidence must be such that is sufficient to prove the case beyond reasonable doubt." 42. The trial court concluded that penetration was corroborated because the complainant exhibited per vaginal bleeding and because both parties allegedly suffered from a similar unspecified sexually transmitted infection (STI).The undisputed facts on the record indicate that the incident allegedly took place on the afternoon of 11th May 2025 and the victim was clinically examined a mere few hours later at 9:16 p.m. without having changed her clothes or showered. PW2’s physical examination revealed a normal labia with no SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 30

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lacerations and no tears. Furthermore, PW2 explicitly recorded that the victim's hymen was broken but not freshly and verified the complete absence of spermatozoa. 43. Kenyan courts have repeatedly held that a child’s testimony on penetration need not to be scientifically perfect as it conveys the fact of intrusion. In Mark Oiruri Mose v Republic [2013] eKLR, the Court of Appeal stressed that a victim account of how the male genitalia came in contact with her genital is sufficient to prove penetration 44. The minor testified that the Appellant was her boyfriend since August 2024. That on 11/5/2025 she met the Appellant on her way back to the lake. That the Appellant asked her to accompany him his friend’s house wherein she later went and found the Appellant there, removed her skirt and top as the Appellant inserted his penis into her vagina and thus defiling her. I have no reason to doubt the testimony of the minor. SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 31

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Consequently, I find the element of penetration was proved beyond a shadow of doubt by the Respondent. 45. As regards the identity of the perpetrator, the record reveals that the Appellant was not a stranger to the minor as he was her recognized boyfriend, a relationship that had been consistently ongoing since the year 2024. I find that the identification of the Appellant was firm, consistent and free from any possibility of mistake. The complainant knew the Appellant prior to the incident and positively recognized him as the perpetrator. This was therefore a case of recognition rather than identification of a stranger, which Kenyans courts have consistently held that to be the most reliable form of identification. In Anjononi & Others v Republic [1980] eKLR, the Court of Appeal held that recognition is ‘‘more reliable than identification of a stranger because it is based on the witness’s prior knowledge of the accused’’. The Complainant’s evidence was direct, unwavering and supported SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 32

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by circumstances of close physical proximity during the commission of the offence which left no room for doubt. Further, the Appellant in his unsworn statement confirmed that indeed he was found while in company of the complainant and that they were rounded up by PW3 and escorted to Ndigwa Police Post and then to Madiany Sub County Hospital for medical check-up. The Appellant’s attempt to raise an alibi during submissions herein is not helpful to him since he confirmed himself that he was with the complainant when they were apprehended. 46. It is also noted that the Appellant did not raise any defence under section 8(5) and (6) of the Sexual Offences Act to the effect that he had believed that the complainant was an adult as a form of defence. As the Appellant was silent on the issue then I do not see any other relief coming his way. 47. I find that the Respondent established all ingredients of the offence against the Appellant SIAYA CRIMINAL APPEAL E048 OF 2025 herein beyond JUDGEMENT any 33

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reasonable doubt. Hence, the finding on conviction by the trial court was quite sound and must be upheld. 48. On whether the sentence imposed upon the Appellant was appropriate, the statutory prescription and judicial discretion is that the trial court imposed a sentence of Fifteen years’ imprisonment pursuant to Section 8(4) of the Sexual Offences Act, which prescribes this penalty for the defilement of a child aged between 16 to 18 years. While the Supreme Court in Francis Karioko Muruatetu & Another v Republic [2017] eKLR declared mandatory minimum sentences unconstitutional, it affirmed that courts must consider the gravity of the offense and the specific circumstances before sentencing. In Jared Koita Injiri v Republic [2019] eKLR , the Court of Appeal upheld a life sentence for defilement of a minor, noting that despite the discretion granted by Muruatetu, the severity of the crime against a child of tender years justifies the harshest penalty. The trial magistrate SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 34

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exercised this discretion, noting the mandatory nature of the provision and the need to deter such conduct. 49. In the case of Shadrack Kipkoech Kogo - vs - R. Eldoret Criminal Appeal No.253 of 2003 the Court of Appeal stated thus as regards interference with sentence: “Sentence is essentially an exercise of discretion by the trial court and for this court to interfere it must be shown that in passing the sentence, the sentencing court took into account an irrelevant factor or that a wrong principle was applied or that short of these, the sentence itself is so excessive and therefore an error of principle must be interfered (see also Sayeka –vs- R. (1989 KLR 306)” The Court of Appeal in Bernard Kimani Gacheru vs. Republic [2002] eKLR restated that: “It is now settled law, following several authorities by this Court and by the High Court, that sentence is SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 35

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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 states is shown to exist.” 50. As regards aggravating factors and breach of trust, the sentence was just given due to the presence of significant SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 36

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aggravating factors. The victim was around 16 years old, a child who required protection rather than predation. 51. As regards proportionality and protection of the public, it is noted from the victim impact statement dated 14/08/2025 that the victim notes a profound sense of emotional betrayal. Because the Appellant was known to her and had been her boyfriend since 2024, she trusted him completely. The complainant was a form two student.This abuse of trust has severely damaged her capacity to form healthy interpersonal relationships or trust peers. The victim was subjected to physical distress on the day of the incident leading to per vaginal bleeding as documented during her clinical examination at the Madiany Sub-County Hospital. Courts have consistently held that sentences in sexual offenses must reflect the societal outrage and the need to protect vulnerable children from sexual predators. Given the Appellant's lack of remorse and his attempt to dismiss the proceedings as SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 37

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farfetched, there is need for the protection of the public which calls for deterrence, aligning with the principles of sentencing set out in the Criminal Procedure Code. The local administration was of the view that the offender is not suitable for a non-custodial sentence. Again, the Supreme Court in Republic Vs Joshua Gichuki Mwangi & Others Petition No. 18 of 2023, it was held that the minimum sentences provided for in the Sexual Offences Act remain lawful until the statute is declared unconstitutional. I find the sentence of 15 years is perfectly legal, proportionate and well within the margins of judicial discretion. I find that the sentence was quite lawful and was the minimum possible in law. 52. It is noted that the Appellant remained in custody throughout the trial and thus the period spent in custody must be taken into account pursuant to the provisions of section 333(2) of the Criminal Procedure Code. The sentence imposed SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 38

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should therefore commence from the date of arrest namely 11/5/2025. 53. In the final analysis and save only that the sentence shall commence from the date of arrest namely 11/5/2025, the Appellant’s appeal lacks merit. The same is dismissed. The conviction and sentence is hereby upheld. Dated and delivered at Siaya, this 10 th day of July 2026 D.KEMEI JUDGE In the presence of: Elvis Ochieng Otiato……………… the Appellant Soita……………………………for Respondent SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 39

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Maurine…………………………Court Assistant SIAYA CRIMINAL APPEAL E048 OF 2025 JUDGEMENT 40

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