Philip Ochieng v Republic

2. The Appellant was aggrieved and filed his present Petition of Appeal dated 18th December 2025 wherein he raised the following grounds of appeal i) THAT, the learned trial magistrate erred in both law and fact by convicting and sentencing the Appellant in a case whose investigations were shoddy and in which evidence tendered was marred with lots of fatal contradictions and inconsistencies hence incapable of establishing the truth. ii) THAT, the entire ingredients forming the offence of defilement were not proven by the prosecution to the legal and moral standard of beyond reasonable doubt making the conviction unsafe and the sentence uncalled for. iii) THAT, the trial process was unfair, the due process was not followed and the decisions by the trial court were partial, discrimination and illegitimate. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 2

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iv) THAT, the learned trial magistrate erred in both law and fact by acting on wrong principles, ignoring material factors, adding on own personal opinions neither anchored on law nor moral facts and wholesomely relying on Section 124 of the Evidence Act without strict adherence to the requirement of admissibility of such evidence. 3. 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 SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 3

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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 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) 4. The prosecution called a total of six (6) witnesses while the Appellant elected to give a sworn statement in his defense without calling any witnesses. 5. M.S. (PW1) was the complainant and a minor aged 16 years at the time of testifying having been born on 13th November 2009. She testified that during the April 2024 school holidays, she went to collect her storybooks from a young man named James who informed her that the books were at Philip's house and directed her to go for them. Upon SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 4

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arrival, she asked the Appellant for her books. He did not respond, went to his bedroom, came back and pulled her into his bedroom. That she told him to leave her alone and called out for James. That he removed her trousers and panties, stripped himself and had forced sexual intercourse with her. That she kept quiet until school administration noticed physical signs, took her to hospital and confirmed her pregnancy. That a scan at Marie Stopes Kisumu confirmed that she was 6 months pregnant. That she carried the pregnancy to full term and delivered a child on 30th January 2025. She identified the P3 form, DNA report and Age Assessment Report. She identifies the Appellant who was in the dock as Philip. On cross examination, she stated that she knew the Appellant as a neighbour before he relocated. She explicitly stated that there was no previous romantic relationship between them. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 5

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6. James Odhiambo (PW2) a minor and grade 9 student at Bar Oder Junior School. He testified that he had borrowed a storybook from the complainant during the school holiday and left it on a table in the Appellant's house where they stayed on the same plot. He met the complainant at the gate coming for the book and directed her to go into the Appellant's house to pick it up while he ran an errand. On his way back, he met the complainant weeping bitterly but she did not tell him what had happened. He identified the Appellant in the dock. On cross examination, he stated that he knew the Appellant as a friend since 2022 and left his house around 1400 hours when he was sent to the shop by his mother. He stated that he knew the Appellant as a friend to the complainant. He stated that their house was about 100 meters away. He denied that he had never read books from the Appellant's house. He stated that he did not know SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 6

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of any romantic relationship between the Appellant and the complainant. 7. Beatrice Atieno Otieno (PW3) was the mother of the complainant and a resident of Sega. She testified that in October 2024, she was summoned by the school's Deputy Principal who informed her that her daughter was pregnant. She took her to Marie Stopes Kisumu where a scan confirmed that she was 26 weeks pregnant and due in January 2025. Upon inquiry, the complainant named the Appellant as the person responsible. She reported to Sega Police Station and waited for delivery. The complainant gave birth on 30th January 2025. They later went to Kisumu for a DNA test along with the child and the Appellant. She produced the complainant's Certificate of Birth confirming her date of birth as 13th November 2009. 8. Collins Were Otieno (PW4) was a Clinical Officer from Ukwala Sub-County Hospital. He testified that he examined SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 7

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the complainant on 1st November 2024. She was presented with a history of defilement and was 29 weeks and 2 days pregnant. That the genital examination revealed a whitish discharge, a non-intact hymen and no fresh lacerations or injuries on the labia. He filled out and stamped the P3 form which he produced as an exhibit. On cross examination, he stated that the complainant was already 29 weeks (around 6 months) pregnant when she came to the facility and hence, his clinical focus was on standard prenatal and physical examination. 9. Salvine Jeruto Katukoi (PW5) was a Senior Government Analyst attached to the Kisumu Branch of the Government Chemist. She testified that she received buccal swabs from the Appellant, the complainant and the infant child (Liam Jeremiah Otieno) following a court order. She conducted DNA analysis on 18th March 2025. The scientific findings established a 99.99% or higher SIAYA CRIMINAL APPEAL E081 OF 2025 probability that the JUDGEMENT 8

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Appellant was the biological father of the child born to the complainant. She produced the DNA report as an exhibit. 10. No. 241048 IP Susan Kibenja (pw6) was the Investigating officer and Deputy OCS at Sega Police Station. She testified that the complaint was lodged on 28th October 2024. The complainant was already 6 months pregnant which explained why reporting was delayed until the school discovered it. She issued the P3 form, visited the scene and tracked down the Appellant, who had relocated from the plot. Following the child's birth, she obtained a court order for DNA testing and age assessment. The age assessment confirmed the complainant was 15 years old. She produced the reports and exhibit memo. On cross examination, she explained that it is common for young girls in boarding schools to conceal a pregnancy out of fear until it is physically discovered by teachers which is why the mother did not notice it earlier. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 9

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11. After the close of the prosecution’s case, the trial court established that a prima facie case had been made out against the Appellant who was placed on his defence and who elected to give a brief, sworn statement and called no witnesses. 12. Philip Ochieng (DW1) was the Appellant. He did not deny having sexual intercourse with the complainant nor did he dispute the pregnancy or the paternity. Instead, his defense was that the complainant was his girlfriend. He claimed that their relationship began when he was in Form 4 while she was in Form 1. He testified that on 15th April 2024, she visited his home voluntarily and that they engaged in consensual sexual intercourse. He stated that when the pregnancy was discovered, the complainant's parents demanded money from him which he could not afford, leading to his arrest and prosecution. On cross examination, he admitted that he finished Form 4 in 2023 SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 10

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and was 22 years old. He testified that during their relationship in 2023, he was 20 years old and that the complainant was in Form 1. He explicitly admitted on record: "I did not know the age of the complainant by then. 13. The appeal was canvassed by way of written submissions. However, it is only the Appellant who complied. 14. The Appellant urged the Court to recognize that his future is equally as important as that of the victim and that it would be inappropriate to claim justice was done when an innocent life is put at risk. He questioned the truthfulness of the complainant regarding the identity of the perpetrator, the exact date of the alleged offense and the timing of the report. 15. It was highlighted that the complainant (PW1) claimed the incident occurred during the April holidays when she went to collect storybooks from James (PW2) who directed her to the Appellant's house where the Appellant subsequently SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 11

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pulled her into his bedroom and forced himself on her. She further stated at page 13 of 35 lines 15–17 of the record that she went straight home afterward and did not meet James again that day and chose to remain silent until her pregnancy was discovered at school. 16. Conversely, the Appellant pointed to the testimony of James Odhiambo (PW2) at page 17 of 35 lines 1–4 where PW2 stated that he told the complainant to pick up the books from his own house not the Appellant's. PW2 further testified that upon his return from an errand, he met the complainant crying and asked her what had happened but she did not answer. The Appellant argued that this direct conflict regarding whether they met after the incident leaves serious doubts as to the credibility of both witnesses suggesting that PW1 and PW2 acted as accomplices to fabricate a story against him using his proximity as a neighbor. Reliance was placed on Ndungu Kimanyi v. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 12

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Republic [1979] KLR 283 to argue that the evidence of unreliable witnesses of doubtful integrity must be deemed inadmissible. 17. The Appellant further questioned the extensive delay in reporting asserting that the late reporting was deliberate and lacked any justification or proof of underlying threats. He cited O.K.K. v. Republic [2021] eKLR to emphasize that prior circumstances involving dishonesty or delayed reporting can heavily impeach the reliability of a victim's testimony. 18. Furthermore, the Appellant contended that his right to a fair trial was severely infringed upon. He noted that page 1 of 35 of the record simply states "Accused person: Kiswahili," without clarifying the question asked or the language used during the plea-taking process rendering the plea equivocal. He also argued that the trial court failed to promptly inform him of his right to legal representation SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 13

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under Article 50(2)(g) of the Constitution. Citing Kenga Hisa v. Republic [2020] eKLR, the Appellant argued that a lay person lacks the legal capacity to effectively crossexamine witnesses or highlight weaknesses in the prosecution's case and the lack of counsel severely prejudiced his defense. 19. The Appellant submitted that the prosecution failed to prove the primary ingredient of penetration beyond a reasonable doubt. He argued that while the Sexual Offences Act envisions a prompt report, the complaint in this matter was lodged nearly eight months after the alleged incident. He contended that the medical examination could not verify an offense as evidenced by the complainant's own statement that she came to court solely to testify about her pregnancy. The Appellant maintained that pregnancy itself is not a statutory ingredient of defilement. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 14

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20. Regarding the DNA paternity test which linked him to the child, the Appellant argued that DNA results do not constitute legal proof of defilement. Citing A.M.L. v. Republic [2012] eKLR he stated that the fact of rape or defilement must be proved by holistic evidence not merely expert biological reports. He suggested that relying on DNA to convict while ignoring it when favorable to the defense amounts to institutional discrimination under Article 27 of the Constitution. 21. The Appellant further raised an issue regarding the human gestation period citing a lower court precedent (Republic v. Rashid Akhulanya Wasabo). He argued that placing the offense in April and the birth in January results in an abnormal gestation period of approximately 10 months (306 days). On this basis, he urged the Court to discard the DNA expert opinion as manipulated or scientifically flawed. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 15

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22. Finally, the Appellant submitted that the complainant failed to offer any explicit oral evidence demonstrating actual penetration. At page 13 lines 13–14, she merely stated that the Appellant removed her clothes and "had sex" with her. Citing Badi Hamadi Hamisi v. Republic, CRA No. 19 of 2017 [2018] eKLR, the Appellant argued that "sex" or "sexual relations" are not legally synonymous with physical penetration under Section 2 of the Sexual Offences Act. He concluded that the expert opinions were heavily relied upon to fix him despite clear gaps in the oral evidence and thus requested the case be dismissed. 23. I have considered the Appeal, the record of appeal and the Appellant’s submissions and find that the issue for determination is whether the prosecution proved its case against the Appellant beyond reasonable doubt. 24. It is trite that in criminal cases, the burden of proof is upon the prosecution to discharge and that the standard of proof SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 16

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is one of beyond any reasonable doubt. See Woolmington Vs Dpp [1935] AC 462. 25. It is noted that the Appellant had been charged with an offence of defilement under section 8(1) as read with section 8(3) 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 (See George Opondo Olunga vs Republic [2016] eKLR) 26. Section 8(1) of the Sexual Offences Act No. 3 of 2006 provides as follows: - (1) A person who commits an act SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 17

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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. (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 SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 18

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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. (8) The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees 27. As regards the age of the victim, it is noted that the same is crucial in that the eventual sentence to be imposed upon SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 19

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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.” 28. 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 paramount considering that under the Sexual Offences Act, the prescribed sentence is determined by the age of the victim. 29. 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 SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 20

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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 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...” SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 21

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30. The law demands conclusive proof of age. The prosecution relied on the testimony of the complainant’s mother (PW3) who produced the complainant's original Certificate of Birth (P. Exh 4). The certificate established that the minor, M.S. was born on 13th November 2009. Simple arithmetic demonstrates that as of April 2024, the minor was exactly 14 years and 5 months old. The age was further corroborated by the clinical Age Assessment Report (P. Exh 3) prepared by the investigating officer (PW6) and medical personnel which confirmed her age as 15 years. Therefore, the prosecution proved beyond any reasonable doubt that the complainant was a child falling within the protected category under Section 8(3) of the Sexual Offences Act. 31. 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. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 22

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32. 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 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 SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 23

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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 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." SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 24

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33. The Appellant forcefully submitted that there was no oral evidence from the complainant to prove actual penetration relying on Badi Hamadi Hamisi v. Republic [2018] eKLR to argue that the phrase "had sex" does not necessarily culminate in sexual penetration. 34. While the Appellant's citation of the law is generally correct, its application to the facts of this case is completely misplaced. In this matter, the proof of penetration does not rely solely on the minor's phrasing. The fact of penetration is irrefutably established by PW4 (Clinical Officer) who examined the minor and recorded a ruptured hymen and an active pregnancy of 29 weeks on the P3 form (P. Exh 1). Pregnancy is the ultimate biological proof that sexual intercourse culminating in penetration occurred. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 25

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35. 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 into contact with her genital organ is sufficient to prove penetration 36. During his sworn defense statement at the trial court, the Appellant explicitly admitted to having consensual sexual intercourse with the complainant. He further added that he had been in a romantic relationship with the complainant which began in high school when he was in Form four while the complainant was in Form one. He also confirmed that the complainant visited him in his room as was the practice and that they engaged in sexual intercourse. Under Section 58 of the Evidence Act, facts admitted need not be proved. I find the ingredient of penetration was therefore established beyond any shadow of a doubt. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 26

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37. As regards the identity of the perpetrator, the Appellant is a known neighbor to the complainant establishing recognition. Furthermore, the Government Analyst (PW5) produced a DNA report (P. Exh 2) concluding that there is a 99.99% probability that the Appellant is the biological father of the child born to the complainant. 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 Appellant attempted to poke holes in this scientific evidence by calculating the gestation period from April 2024 to January 30, 2025, arguing that it represents an "abnormal" 10-month period (approx. 306 days). This Court takes judicial notice that a normal human gestation period is 40 weeks (280 days) but can medically vary from 37 to 42 weeks (up to 294 days). Given that the charge sheet specified SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 27

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"diverse dates between 1st and 30th April 2024," a conception in late April perfectly aligns with a late January delivery. 38. Most fundamentally, the Appellant cannot mount a defense of mistaken identity or flawed DNA when he expressly admitted at trial that he engaged in sexual intercourse with the minor with whom he had a romantic relationship. Further, the Appellant confirmed that the complainant visited him during the day and thus she had no difficulty in recognizing him. In any event, the two love birds had started their relationship way back when the Appellant was in form four while the complainant was in form one. I find that the identity of the Appellant as the perpetrator was unassailable. 39. The Appellant highlighted contradictions between PW1 and PW2 regarding where the storybooks were located and whether they interacted after the incident. It is a settled principle of law that minor discrepancies that do not go to the root of the charge will not vitiate a conviction. Whether the books were at SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 28

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James's house or Philip's house is a peripheral detail. The core res gestae that the minor was sexually assaulted inside the Appellant's bedroom remains unshaken and is corroborated by the subsequent pregnancy and the Appellant's own admission. 40. Regarding the eight-month delay in reporting, this Court notes that delayed reporting in sexual offences involving minors is a well-documented phenomenon. Minors frequently conceal such trauma out of fear, shame or confusion until physiological changes (pregnancy) make it impossible to hide. The Investigating Officer (PW6) adequately explained this delay. Given the objective medical and DNA evidence, the delay is not fatal to the prosecution's case. In any event, there is no fixed timeline when it comes to criminal cases. 41. The Appellant submitted that his trial was unfair because he was not informed of his right to legal representation under Article 50(2)(g) of the Constitution. While trial courts must ideally inform accused persons of this right, a failure to SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 29

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explicitly record this warning does not automatically render the trial a nullity unless it occasions a miscarriage of justice. A perusal of the trial record shows that the Appellant actively participated in the proceedings. He cross-examined prosecution witnesses at length (specifically PW1 and PW2) and elected to give a sworn defense. I find that he was not prejudiced. Similarly, the note "Kiswahili" on the plea record indicates that the substance of the charge was relayed to him in a language he understood. Further, I find that any procedural irregularities in the lower court are curable under Section 382 of the Criminal Procedure Code as they did not cause a failure of justice . In any case, the record shows that the Appellant fully participated in the trial and cross-examined witnesses and tendered his defence. Clearly, the Appellant must have used a language of his choice and thus there was no prejudice suffered at all. 42. The Appellant’s primary defense at trial was that he was in a romantic relationship with the minor and that the intercourse SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 30

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was consensual. As a matter of law, a child under 18 years lacks the legal capacity to consent to sexual acts. The Appellant admitted on cross-examination that he did not know the minor's age. It is trite law that strict liability applies to the age of the victim in defilement cases; mistake of age or alleged consent is not a viable defense. It was upon the Appellant to establish the age of the complainant before engaging in sexual intercourse. The Appellant did not advance any such evidence and further did not present anything to the effect that he had believed the complainant to be an adult. Either way, iam satisfied that the Appellant knew that the complainant was a minor and that he ought not to have engaged in any sexual act with her. 43. I find that the Respondent established all ingredients of the offence against the Appellant herein beyond any reasonable doubt. Hence, the finding on conviction by the trial court was quite sound and must be upheld. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 31

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44. On whether the sentence imposed upon the Appellant was appropriate, the statutory prescription and judicial discretion the trial court imposed a sentence of Twenty years’ imprisonment pursuant to Section 8(3) of the Sexual Offences Act, which prescribes this penalty for the defilement of a child aged between 12 to 15 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 exercised this discretion, noting the mandatory nature of the provision and the need to deter such conduct. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 32

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45. 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 a matter that rests in the discretion of the trial court. Similarly, sentence must depend on the facts of each SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 33

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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.” 46. As regards aggravating factors and breach of trust, the sentence was just given due to the presence of significant aggravating factors. The victim was around 15 years old, a child who required protection rather than predation. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 34

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47. As regards proportionality and protection of the public, it is noted the Complainant, M.S. who was a school-going minor aged 14 years and 5 months at the time of the offense suffered profound physical, educational and psychological trauma as a direct consequence of the Appellant's criminal actions. 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 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. It must be noted that the Appellant’s action led to the complainant conceiving a child and had to drop out of school in form two and later delivered a baby boy. The sentence was therefore commensurate with his moral blameworthiness. Again, the Supreme Court in Republic Vs Joshua Gichuki Mwangi & Others Petition No. 18 of SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 35

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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 20 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. 48. It is noted that the Appellant remained in custody throughout the trial and hence the sentence imposed ought to commence from the date of arrest namely 7/3/2025 in line with the mandatory provisions of section 333(2) of the Criminal Procedure Code. 49. In the result and save only that the sentence imposed shall commence from the date of arrest namely 7/3/2025, the Appellant’s appeal lacks merit and is dismissed. SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 36

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Dated and delivered at Siaya, this 14 th day of July 2026 D.KEMEI JUDGE In the presence of: Philip Ochieng ……. Appellant Soita …………..for Respondent Maurine………..Court Assistant SIAYA CRIMINAL APPEAL E081 OF 2025 JUDGEMENT 37

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