Geoffrey Omweri v The Republic

for trial proceedings to enable him erect more grounds of Appeal. The Appellant urged this Court to allow the Appeal, and quash the conviction and set aside the sentence or reduce it. 3. On 21st May 2026 parties took directions on hearing of the Appeal which was to be canvassed by way of written submissions. The Appellant filed his written submissions dated 19th February 2026. The Respondent equally confirmed filing and service of its written submissions dated 24th February 2026. 4. Foremost, this court sitting as a first appellate court has to recap and appreciate the evidence adduced at the trial court. Prosecution Case 5. In support of its case, the prosecution called 4 witnesses at the trial court. PW1 testified that the complainant NK was her daughter aged 14years. She produced the complainant's birth certificate as evidence indicating that the complainant was born on 6th December 2009. She narrated to the court that on 27th November 2024 at around 6 pm the complainant reported to her that the Appellant had defiled her, and that when the she arrived home, her clothes were muddied and her underwear was wet. She took the Complainant first to Materio clinic and then to Nyamache Hospital for examination. She stated that the police subsequently took up the matter and charged the accused. She further alleged that the Appellant followed the Complainant and threatened to cut her with a panga. 6. PW2 N.K. who is the Complainant and upon a voire dire examination took oath and narrated that on 27th November 2024 at around 6:00pm, she had taken shelter from the rain at her Uncle’s house. She testified that the Appellant, who is a cousin, closed her mouth and began undressing her in the sitting room. She testified that she was with one Aska who ran away from the scene. She stated that the Appellant forced her to have sex on the floor then held her in the house for an hour before releasing her. She reported the incident to her mother PW1, who took her to Matieri clinic/chemist for first aid. She confirmed her mother also reported the matter to the Appellant’s own mother. She was subsequently examined at Nyamache Hospital, where a P3 form, PRC form, and Treatment notes were taken, which she marked for identification. She also recounted that the Appellant confronted and attacked her mother after she reported him for forcing her into sex. 7. PW3 Winnie Ondari a Clinical Officer at Nyamache Sub County Hospital, a graduate of KMTC with 9 years’ experience testified that she examined the Complainant within 8 hours of the incident and completed the P3 form and PRC form on 28th November 2024. She confirmed that the Complainant's hymen was freshly torn and bleeding, and that there was blood in her urine, red and white blood cells present. It is her testimony that defilement was confirmed corroborating the Complainant's account and confirming that penetration had occurred. She produced Treatment notes, P3 form and PRC form as Exhibits 2, 3, and 4 respectively. 8. PW4 PC Zablon Atuta of Nyamache Police Station testified as the investigating officer who investigated the matter as from 28th November 2024, that relying on the strength of the evidence given by PW1, PW2, and PW3, proceeded to charge the accused. He confirmed that the accused had been at large until 25th January 2025 before he effected the arrest. He further confirms the Complainant is a minor aged 14 years and he positively identifies the Appellant as the perpetrator. 9. At the close of the Prosecution's case, the Court found the Appellant to had a case to answer. He was placed on his defence and elected to give sworn testimony and no witnesses. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12452/eng@2026-07-30 2

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Defence Case 10. DW1, Geoffrey Omweri Morang’a, a mason and a resident of Part Village testified denying the allegations entirely. He claimed that on 27th November 2024 he was working at Matia and had been framed in the case and maintained that the Complainant PW2 had lied against him. That upon his return at around 4:30pm he heard noises at the neighborhood, along the road he met Aska who informed him that he is being accused of defiling the Complainant. He opted to go to the Complainant’s home to inquire. Wherein he later reported the matter to his own mother and PW1 could not hear any pleas including of taking the Appellant to a hospital for confirmation if he had committed the act. He was thereafter arrested. On cross examination, he testified that he met Aska at around 4:30 pm. 11. At the closure of the Defence case, the trial court found the Appellant guilty of the offence of defilement and convicted him. The trial court found the witnesses' accounts consistent on identification, the complainant knew the accused well as her cousin, ruling out mistaken identity. On the fact of penetration, it was corroborated medically by PW3, and relied on this evidence, together with the birth certificate establishing the complainant's age as a minor. Subsequently the trial court convicted the Appellant under Section 215 of the Criminal Procedure Code. The trial court in consideration of the Appellants mitigation, being a first offender and remorseful sentenced the Appellant to serve 20 years imprisonment to run from 27th January 2025 when he was first remanded. Appellant's Submissions 12. The Appellant in his submissions restated that the trial magistrate erred in law and fact by rendering unsafe conviction, he argues he should have been given the benefit of the doubt, contending the investigation and prosecution were shoddy. He points to contradictions between PW1, who said the complainant was raped on the road, and PW2 who said she was defiled in a sitting room at the Uncle’s house, arguing these accounts cannot both be true, relying on Richard Aspella v Republic App. No. 45 of 1981 (CA) and Ramkrishana Denkerai Pandya v Republic App. No. 06 of 1990 (EACA) on the treatment of contradictory evidence. He also highlights inconsistencies regarding mud on the complainant's clothes despite the alleged indoor location, the presence/absence and conduct of a witness called Aska, and a discrepancy in dates on the PRC form signed by the clinical officer on 28th November 2024 but by the police officer on 27th December 2025, a one-year gap as casting doubt on the case's good faith. The Appellants submits PW4's the investigating officer’s evidence was weak and did not properly link him to the offence. Citing Elizabeth Waitheegeni Atimu v Republic (2005) eKLR he argues the accused is entitled to the benefit of any reasonable doubt, especially given his own young age. 13. On sentence, he submits that the mandatory minimum sentence regime under the Sexual Offences Act is unconstitutional, relying on Philip Mueke Maingi & 2 others v Republic [2022] KEHC 2263 (KLR) which found mandatory minimum sentences offend Article 28 of the Constitution and permit re-sentencing per Francis Karioko Muruatetu & Another v Republic (2017) eKLR. He further relies on Evans Wanjala Wanyonyi v Republic (2019) eKLR, Christopher Ochieng v Republic (2018) eKLR, and Jared Koita Injiru v Republic (Kisumu Cr. Appeal No. 93 of 2014), where enhanced sentences were reduced from 20 to 10 years, urging a similar reduction. He also cites S v Malgas [2001] (SCA), Fredrick Otieno Odero v Republic [2021] eKLR, and Alister Antony Pereira v State of Maharashtra for the principle that excessive punishment serves neither justice nor society, and invokes his mitigation as a first offender facing ruined prospects, citing Kimori v Republic [2019] KEHC 11444 (KLR) and https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12452/eng@2026-07-30 3

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Sekitoleko v Uganda. In summation, the Appellant prays the Appellate court to set aside conviction and sentence and release the Appellant. Respondent's Submissions 14. The Respondent in its submissions frames three issues: whether the Prosecution proved its case beyond reasonable doubt, whether the conviction was safe and justified, and whether the 20-year sentence was excessive. On proof of the offence and relying on Duncan Odhiambo Onyango v Republic (2019) eKLR, the Respondent identifies the elements of defilement as proof of age, penetration, and identification of the perpetrator. On age, citing Mwalango Chichoro Mwajembe v Republic (2016) eKLR and referencing Denis Kinywa v Republic, Cr. Appeal No. 19 of 2014, and Omar Ucher v Republic, Cr. Appeal No. 11 of 2015), it submits age was proved through the birth certificate and corroborating testimony. On penetration, it relies on the complainant's account and corroborating clinical evidence; freshly broken and bleeding hymen, red blood cells in urine from PW1 and PW3. On identification, invoking section 124 of the Evidence Act and John Bundi Kinyua v Republic (2017) eKLR, it submits the sole credible evidence of a sexual offence victim can sustain a conviction, and that the complainant knew the Appellant well as her cousin, so identification was proper. 15. On the safety of the conviction, the Respondent notes the Appellant was advised of his right to legal representation under Article 50(2)(g) (h) but chose to defend himself, and relying on Republic v Chengo & 2 Others (2017) eKLR and Manyeso v Republic (2023) KECA827, submits no substantial injustice arose since he fully participated in and cross-examined at trial, and that the judgment complied with Sections 169(1)(2) of the CPC. 16. On sentence, the Respondent argues the 20-year term was not excessive, submitting the trial court had already exercised leniency and considered mitigation citing Fatuma Hassan Salo v Republic, Cr. Appeal No. 429 of 2006, on the importance of mitigation, and that appellate interference is only warranted where wrong principles were applied or irrelevant factors considered per Bernard Kimani Gacheru v Republic (2002) eKLR and Shadrack Kipchoge Kogo v Republic (Eldoret Cr. Appeal No. 253 of 2003). The Respondent concludes that the conviction rests on overwhelming evidence, the finding of guilt was safe and sound, and the sentence was not excessive given the family relationship between the Appellant and victim, urging dismissal of the appeal Analysis and Determination 17. This being a first appeal the duty of the court is to analyze and re-evaluate afresh the evidence adduced before the trial court and draw its own independent conclusions. In the case of Okeno v Republic [1972] EA 32, East Africa Court of Appeal put this duty as follows: “ An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v R, [1957] EA 336) 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. (Shantilal M Ruwala v R, [1957] EA 570). It is not the function of a 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 draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v Sunday Post, [1958] EA 424.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12452/eng@2026-07-30 4

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18. I have at length read the respective parties’ submissions, given due consideration to the trial court’s proceedings and the Petition of Appeal. The following are the issues that arise for my determination: a. Whether the Prosecution proved its case beyond reasonable doubt. b. Whether the sentence was harsh and excessive. c. Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed. Whether the Prosecution proved its case beyond reasonable doubt 19. Having established the court's duty, the Appellant was charged under Section 8(1), as read with Section 8(3), of the Sexual Offences Act, which states “ (1) A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. (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.” 20. The Court of Appeal in in John Mutua Munyoki v Republic [2017] eKLR held that under the Section (8) 1 Sexual Offences Act, the main elements of the offence of defilement are that; the Complainant must be a minor, positive identification and there must be penetration of the genital organ and such penetration need not be complete or absolute partial penetration will suffice. 21. As to whether the Complainant is a minor. In Mwalango Chichoro Mwanjembe V. Republic, Mombasa Criminal Appeal No. 24 of 2015 the Court stated: “ The question of proof of age has finally been settled by 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. 22. There is no controversy or doubt regarding the Complainant's age. The Complainant testified that she was 14 years of Age. PW1 produced the Complainant’s birth certificate which indicated that she was born on 6th December 2009. This was equally captured in the P3 form as 14 years and the PRC Form captured that the Complainant was born on 16th December 2009. This evidence was corroborated by PW1, PW2 & PW3. Similarly, the trial court noted that she was 14 years a few days’ shy of 15 years. Therefore; the age of the minor was sufficiently proved. 23. On penetration, the Complainant testified that the Appellant had sex with him, the nature of the sexual activity was forceful and done on the floor of the sitting room of the Uncle’s house. PW1 testified that the Complainant arrived with dirty clothes and wet panty, upon inquiry she was informed that she had been defiled by the Appellant. This evidence was corroborated by PW3 wherein she observed a freshly broken hymen which was still bleeding. The urine had traces of red blood cells. In support she produces the P3 form, Post Rape treatment notes. The Appellant didn’t have a defence but a denial. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12452/eng@2026-07-30 5

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24. Penetration is defined under Section 2 of the Sexual Offences Act as follows: “ Penetration means the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 25. The Court of Appeal in the case of Mark Ouiruri v Republic (2013) eKLR, expressed itself on what amounts to penetration as follows: “ …... In any event, the offence is against penetration of a minor and penetration does not necessarily end in the release of sperms into the victim. Many times the attacker does not fully complete the sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and the penetration need not be deep inside the girl’s organ….” 26. The Complainant gave sworn testimony that she knew the Appellant as Cousin Omweri, the identification was corroborated PW1 and PW4. She narrated the sexual activity extensively; this is equally backed up by medical evidence. 27. With this evidence, this Court is satisfied that the elements of penetration had been proved beyond reasonable doubt. 28. On positive identification and/or recognition of the perpetrator, the Complainant and the Appellants are cousins. The act took place at 6:00 pm when there was enough light, the Appellant a person well known to her. The Appellant in his testimony equally confirms that she knows the Complainant and they are related. 29. Section 124 of the Evidence Act allows the court to receive evidence of an alleged Complainant of a sexual offence, notwithstanding that it is the only available evidence and to record the reasons for believing the evidence. Section 124 provides as follows: “ Notwithstanding the provisions of section 19 of the Oaths and Statutory Declarations Act (Cap. 15), where the evidence of the alleged Complainant is admitted in accordance with that section on behalf of the prosecution in proceedings against any person for an offence, the Appellant shall not be liable to be convicted on such evidence unless it is corroborated by other material 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 Complainant of the offence, the court shall receive the evidence of the alleged Complainant and proceed to convict the Appellant person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged Complainant is telling the truth.” (Underlined for emphasis) 30. The trial Court upon ascertaining that the Complainant was intelligent enough gave testimony under oath, a trial court must be satisfied that the Complainant is telling the truth. In its judgment, the trial court was persuaded that the Complainant positively identified the Appellant through recognition and placed him at the scene on 27th November, 2023. The trial Court rightfully found that the Appellant’s defence that he was from work was a mere denial. This court rightly observes that the Complainant positively identified the Appellant. 31. On glaring contradictions, the Appellant pointed out that that the PW1 testified that the Complainant was defiled on the road while the Complainant in her testimony testified that she was defiled at the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12452/eng@2026-07-30 6

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Uncle’s sitting room. Further the Appellant points out that the PRC Form was signed by the clinical officer on 28th November 2024 but by the police officer on 27th December 2025. 32. The central question is whether the noted discrepancies and contradictions were severe enough to render the Appellant's conviction unreliable. Section 382 of the Criminal Procedure Code provides as follows; “ Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice. Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings.” 33. Looking at the record, it is this Court’s views that the discrepancies in testimonies and evidence merely represent the distinct perspectives and memories of various witnesses of the recollection of the events. This position was observed in the case of Phillip Nzaka Watu vs. Republic [2016] eKLR that: “ …However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed, as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise, must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” 34. From the evaluation of the evidence, it is indeed clear that all the three ingredients of the offence of defilement were established to the required standard, and the finding of the trial court was based on credible and cogent evidence. Wherein the Appellant has simply denied his involvement There was no error or inconsistency was material enough to render the evidence adduced to be of no probative value. 35. This court therefore finds that the Prosecution had proved beyond reasonable doubt the offence of defilement. Whether the sentence was harsh and excessive 36. As to whether the sentence of 20 years’ imprisonment was harsh and punitive? The Appellant states that the trial court erred and acted on wrong principles without appreciating that the mandatory minimum and maximum sentences were declared unconstitutional, hence harsh and excessive. The trial court before meting out the sentence called out the vice, considered the Appellants mitigation wherein he remorsefully prayed for leniency. The court further considered that the Appellant is a first offender and sentence him to serve a 20 years imprisonment from the first day he was remanded. 37. Section 8 (3) of the Sexual Offences Act wherein it provides that A person who commits an offence of defilement with a child aged twelve and Fifteen years shall upon conviction be sentenced to 20 years’ imprisonment. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12452/eng@2026-07-30 7

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38. The Sentencing Policy Guidelines 2023 outlines that a sentence meted out must be proportionate to the offending conduct meaning it must not be more or less than is merited in view of the gravity of the offence. This includes the intended impact of the offence as well as the responsibility of the offender. 39. On constitutionality of Mandatory Minimum sentences, the Supreme court in Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR) upheld that Mandatory sentences are applicable. The Apex court held as follows “ We must also reaffirm that, although sentencing is an exercise of judicial discretion, it is Parliament and not the Judiciary that sets the parameters of sentencing for each crime in statute. As such, striking down a sentence provided for in Statute, must be based not only on evidence and sound legal principles but on an in-depth consideration of public interest and the principles of public law that informed the making of that specific law. A judicial decision of that nature cannot be based on private opinions, sentiments, sympathy or benevolence.” 40. Noting the aggravating circumstances in this case that the Appellant was a cousin to the Complainant and noting the mitigating factors as a first offender, this Court finds no basis in interfering with the Trial Court’s sentence. Whether the Appellant’s right to fair trial were threatened, denied, violated and/or infringed 41. On the right to counsel, Article 50(2) (g & h) of the Constitution provides that an accused person has a right to appoint an advocate of choice. Further the Court shall appoint an Advocate for an accused person if in the opinion of the court a substantial injustice would occur in absence of representation. The Supreme Court in R vs Chengo & 2 Others (Petition No.5 of 2015) 2017-KESC (15) KLR held that the right is not an absolute right only in exceptional cases where a substantial injustice would result. 42. The record reveals that the charges were read over and explained to the Appellant in both English and Kiswahili at the plea stage, following which a plea of not guilty was entered contrary to the assertion that this did not occur (sio ukweli), the record confirms that both languages were indeed used in court. The Appellant cross-examined all the witnesses thoroughly and, similarly, when it came time to present his defence, did so without any apparent difficulty. It is evident from this that the Appellant participated actively throughout the proceedings and suffered no prejudice from proceeding without counsel on record, an option he chose not to exercise. 43. This Court therefore finds no basis on the Appellant’s claim that his right to a fair trial was infringed. 44. The Appellant on his last ground of appeal sought to be served with the trial court proceedings to enable him erect more grounds of appeal. This court takes note that the Appellant was served with the record of appeal on 11th February 2026. The Appellant subsequently didn’t seek leave under Section 350 2 (v) CPC or raised any other supplementary grounds of appeal, as such the ground is moot. Disposition 45. Having carefully reconsidered and re-evaluated the entire evidence on record, the judgment of the trial court, the grounds of appeal, and the submissions of the parties, this Court is satisfied that the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt. 46. The conviction was therefore safe and founded on sound evidence. Regarding the sentence, the trial court exercised its discretion judiciously and imposed a sentence of twenty (20) years’ imprisonment, which is lawful and commensurate with the gravity of the offence. No sufficient grounds have been demonstrated to warrant this Court’s interference with either the conviction or the sentence. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12452/eng@2026-07-30 8

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47. Accordingly, the appeal lacks merit and is hereby dismissed in its entirety. The conviction for the offence of defilement is upheld, and the sentence of twenty (20) years’ imprisonment imposed by the trial court is affirmed. The Appellant shall continue to serve the sentence as imposed by the trial court. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, SIGNED AND DATED AT NAIROBI THIS 30TH DAY OF JULY 2026 ANNE M. OKUTOYI JUDGE Judgment delivered in the presence of: Geoffrey Omweri Morangá Appellant in person from Kisii Main Prison. Ms. Muli for the State. Ms. Mokeira-Court Assistant. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12452/eng@2026-07-30 9

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