Onywa v Republic (Criminal Appeal E058 of 2024) [2026] KEHC 10935 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] KEHC 10935 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT HOMA BAY CRIMINAL APPEAL E058 OF 2024 JR KARANJA, J JULY 8, 2026 BETWEEN BEN OTIENO ONYWA .......................................................................... APPELLANT AND REPUBLIC ............................................................................................ RESPONDENT (Being an appeal against the judgment of Hon. C.A. Okore, Principal Magistrate, delivered at the Senior Principal Magistrates’ Court at Oyugis in Criminal Case No. S.O. 27of 2018 on 19th May 2021) JUDGMENT (1) The appellant, Ben Otieno Onywa appeared before the Principal Magistrate at Oyugis facing a charge of defilement; contrary to Section 8(1) read with Section 8(3) of the Sexual Offences Act. It was alleged that on the 25th October 2018 at Kawuor location Rachuonyo East – Homa Bay county he defiled MA, a child aged Thirteen(13) years or in the alternative, committed an indecent act with the child contrary to Section 11(1) of the Sexual Offences Act. (2) After a full trial, the appellant was convicted on the main count and sentenced to twenty(20) years imprisonment. Being dissatisfied with the outcome he preferred the present appeal on the basis of the ground set out in the petition of appeal filed herein on 13th December, 2024. (3) In essence, the appellant complains that the charge was not proved beyond reasonable doubt and that the sentence imposed upon him by the trial court was harsh and punitive. The appeal was argued by way of written submissions filed herein by both sides. The state/respondent through the learned Prosecution Counsel, M/s Mokua, opposed the appeal. (4) Basically, it was the duty of this court to revisit the evidence and draw its own conclusions bearing in mind that the trial court had the benefit of seeing and hearing the witness (see, Okeno Vs https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10935/eng@2026-07-08 1
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Rep(1972)EA32) & Achia Vs rep (2003) KLR707). In that regard, the prosecution evidence through its six witnesses (PW1 to PW6) was considered against that of the appellant in his statement of defence. (5) From the totality of the evidence, it was clear that there was sufficient and credible evidence adduced by the child complainant (PW1) establishing and proving that indeed she was defiled as alleged on the material date. The evidence adduced by the Clinical Officer James Okello Odak (PW5) corroborated the fact and also that the complaint was of the age of thirteen (13) years at the material time. The police medical examination report (P3 form)(PEx4) confirmed the fact, so did the age assessment report. (PEx-1) produced by the investigating officer, Sgt. Tom Mageto (PW6) which placed the age of the complainant at between 12 to 14 years. (6) With the foregoing evidence, the prosecution was able to prove beyond reasonable doubt the ingredients of penetration and age which are vital in establishing the offence of defilement. In any event, the defence did not dispute the commission of the offence against the complaint. All that the appellant denied was his alleged involvement in the offence. His defence was a contention that he did not commit the offence and that the complainant was a stranger to him. (7) This line of defence brought to the fore the ingredient of identification of the offender. Although there was no obligation placed on the appellant to prove his innocence, his denial of the offence was sufficiently and credibly disapproved by the complaint’s evidence which indicated that he offered to act as a good Samaritan to accommodate the stranded complainant, but later turned out to be her tormentor after failing to control his carnal itch which apparently developed The moment his eyes landed on her. (8) Apart from the complainant’s evidence of identification against the appellant, there was the evidence of Peter Omondi Oluoch (PW2), which indicated that he was alerted by the appellant’s neighbor and informed that the appellant had hidden a school girl in his house and that she had cried the whole night. He reported the matter to the police leading to the arrest of the appellant by APC John Oginga Kahera (PW3) and his colleagues. (9) In actual sense, the witness (PW2) provided indirect evidence of identification which corroborated the complainant’s direct identification against the appellant whose defence that he was not responsible for the offence was adequately and credibly shattered with the result that the prosecution succeeded in discharging its burden of prove by establishing beyond reasonable doubt that the appellant was the actual person who preyed on and sexually assaulted the complainant by defiling her on that material date and time. (10) The present appeal is therefore unsustainable, it is devoid of merit and is hereby dismissed in its entirety as the sentence imposed upon the appellant was proper and lawful in terms of Section 8(3) of the Sexual Offenses Act. Ordered accordingly. DATED, DELIVERED, THIS 8TH DAY OF JULY, 2026 _____________________________ HON. J.R. KARANJAH JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10935/eng@2026-07-08 2
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HC CR. APPEAL NO. E058 OF 2024 JUDGEMENT PAGE 0 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10935/eng@2026-07-08 3
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