Wycliff Omondi Odhiambo v The Republic

4. Aggrieved by the judgment of the trial court, the Appellant filed a Petition of Appeal on the grounds as follows; a. That the learned trial magistrate erred in law and fact in not making a finding that the ingredients of this offence were not proved beyond a reasonable doubt. b. That the learned trial magistrate erred in law and fact in not making a finding that the rights of the Appellant to a fair trial were breached. c. That the learned trial magistrate erred in law and in fact in not considering the procedural errors that were inconsequential to conviction. d. That the learned magistrate erred in law and in fact in admitting evidence that was inadmissible. e. That the learned trial magistrate erred both in law and fact in not weighing the conflicting evidences that were inconsequential to conviction. Reasons whereof conviction be quashed, sentence set aside and the appellant set free and the court to entertain the grounds of appeal in its entirety. B. Submission By Parties Appellants Submissions 5. The first issue raised by the Appellant is that the trial court erred in law by receiving the evidence of PW1 on what he terms a defective voire dire examination and thereafter attaching probative value to her testimony. The Appellant submitted that PW1 was 13 years old at the time she testified and was therefore a child of tender years. He argued that the trial court did not ascertain whether PW1 understood the nature and meaning of an oath, and consequently, her evidence ought to have been received as an unsworn statement, which, in his view, lacked probative value in the absence of corroboration. 6 The second issue raised by the Appellant is that the trial court erred in law and fact in relying on the evidence of PW1 and PW4, which, according to him, did not establish the charges against him. The Appellant submitted that PW1 testified regarding an incident alleged to have occurred on 30th July 2022, while PW4 referred to an incident said to have occurred on 13th July 2021. He contended that these dates did not correspond with the date stated in the charge sheet, namely 3rd July 2022, and that the discrepancy occasioned prejudice and injustice as he was uncertain which incident he was required to answer to. 7 The Appellant further submitted that he was not represented by counsel during the trial and was consequently unable to identify and challenge the alleged weaknesses in the prosecution’s case. He contended that he was also denied an adequate opportunity to effectively cross-examine the prosecution witnesses. 8 The Appellant also contended that the trial court erred in law by suo motto amending the date given by PW1 in her testimony from 30th July 2022 to 3rd July 2022 at the close of the prosecution’s case. He argued that the alteration was unprocedural and prejudicial, as he was not afforded an opportunity to plead afresh or respond to the amended particulars. 9 The Appellant further submitted that the trial court erred in law and fact by failing to ensure that he was supplied with the prosecution witness statements and by not according him legal representation https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12819/eng@2026-07-29 2

page 2 of 6

at State expense. He pointed out that on 24th August 2022, the court directed that he be furnished with witness statements, but on 8th September 2022, the trial proceeded notwithstanding. According to the Appellant, the court neither confirmed whether he had received the statements nor inquired whether he was ready to proceed with the hearing. 10 Lastly, the Appellant submitted that the trial court erred in law and fact by relying on the identification evidence of a single witness, which he characterized as mere dock identification unsupported by a properly conducted identification parade. He further faulted the trial court for failing to direct that his sentence should run from the date of his arrest, being the date on which he was first deprived of his liberty. Respondent’s Submissions 11 The Respondent submitted on the first ground, while relying on the case of Okeno v Republic [1972] EA 32 where it was held that an appellate court should be slow to interfere with findings of fact made by a trial court which had the advantage of seeing and hearing witness testify unless such findings are based on or are based on a misapprehension of the evidence or the trial court is shown demonstrably to have acted wrong principles in reaching its findings. 12 On the other issue submitted by the Respondent is on whether the ingredients of the offence of defilement had been proven beyond reasonable doubt while relying on the case of Charles Wamukoya Karani Vs. Republic, Criminal Appeal No. 72 of 2013. 13 On the first issue of the age of the complainant, the prosecution produced a birth certificate that showed that she was born on 10th April 2009 and therefore during the incident, the complainant was 13 years of age. The trial magistrate saw the child and made a judicial note that “the complainant was not a child of tender years. 14 On the second issue of penetration, the Respondent relied on the testimony PW3 George Mwita, a clinical officer who testified that the complainant was examined in their facility and observed that she had a scratch on her face, she was bleeding from her vagina, she had bruises on her labia and the hymen was not intact. These findings were captured in the lab request form (P. Exh 2), P3 form (P. Exh 3), Post Rape Care form (P. Exh 4) treatment notes (P. Exh 5) 15 On the ingredient of penetration, the Respondent submitted that PW1 gave direct eye witness testimony of the highest quality. She testified that on 30th July 2022 she left home with her younger sister to her grandmother’s place when she met the appellant at Wanganga area. Appellant asked her why her sister was crying hence took them to his home and asked her for sex which she refused. Appellant pulled her to his house and placed her on the bed having left her sister in the kitchen. C. Issues For Determination 16. Having considered the Petition of Appeal, the Record of Appeal and the Submissions by the parties, the issues that arise for determination are:a. Whether the prosecution proved the offence of defilement beyond reasonable doubt. b. Whether the alleged contradictions, discrepancies and procedural complaints raised by the Appellant were material and capable of vitiating the conviction. c. Whether the conviction and sentence imposed by the trial court should be interfered with. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12819/eng@2026-07-29 3

page 3 of 6

D. Analysis Of The Issues For Determination a. Whether the prosecution proved the offence of defilement beyond reasonable doubt 17 This being a first appeal, this court is guided by the principles set out in Okeno v Republic [1972] EA 32, that a first appellate court is obligated to reconsider and re-evaluate the evidence adduced before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. 18 Upon re-evaluating the evidence on record, the court notes that the Respondent submitted that all the ingredients of the offence of defilement were proved beyond reasonable doubt. In Charlies Wamukaya Karani Vs Republic, Criminal Appeal No. 72 of 2013 where the court stated that “the central ingredients forming the offence of defilement are age of the complainant, proof of penetration and positive identification of the assailant. 19. With regard to the age of the complainant, the prosecution produced a birth certificate showing that the complainant was born on 10th April 2009. The charge sheet indicated that the offence was committed on 3rd July 2022. Consequently, the complainant was 13 years old at the time of the offence. Further, the trial court observed the complainant before receiving her evidence and found that she was not a child of tender years. The evidence relating to age was neither challenged nor rebutted by the defence. This court is therefore satisfied that the prosecution proved the age of the complainant beyond reasonable doubt. 20 Section 2 of the Sexual Offences Act defines penetration to mean partial or complete insertion of the genital organs into the genital organs of another person. It is therefore essential to determine whether penetration indeed occurred and this can only be proved by relying on the evidence that was produced by the prosecution at the trial court. 21 On penetration, PW1 testified that the Appellant lured her and her younger sister into his house, left the younger sister in the kitchen and led PW1 into the bedroom where he sexually assaulted her. The court notes that this evidence was corroborated by PW3, George Mwita, the Clinical Officer, who examined the complainant and observed a scratch on her face, vaginal bleeding, bruises on the labia and a broken hymen. These findings were documented in the treatment notes, laboratory request forms, Post Rape Care Form and P3 Form produced before the trial court. The medical evidence was consistent with the complainant's narration and corroborated her testimony in all material respects. The court therefore finds that the ingredient of penetration was established beyond reasonable doubt. 22. As regards identification, PW1 gave direct evidence identifying the Appellant as the person who committed the offence. She explained how she encountered the Appellant, how he led her into the house and how he sexually assaulted her. The Appellant challenged the conviction on the ground that no identification parade was conducted. However, the court finds that this was not a case requiring an identification parade. PW1 was not identifying a stranger seen under difficult circumstances. Rather, she had direct interaction with the Appellant before and during the commission of the offence and was therefore able to positively identify him. 23. Further, Section 124 of the Evidence Act provides that a court may convict on the sole evidence of a complainant in a sexual offence if it believes the complainant and records reasons for that belief. In the present case, the complainant's evidence was clear, consistent and truthful. In any event, her testimony was corroborated by the medical evidence of PW3. This court is therefore satisfied that the identity of the Appellant as the perpetrator was proved beyond reasonable doubt. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12819/eng@2026-07-29 4

page 4 of 6

24. Having considered the evidence relating to age, penetration and identification being the ingredients for defilement, this court finds that the prosecution proved all the offence of defilement beyond reasonable doubt. b. Whether the alleged contradictions, discrepancies and procedural complaints raised by the Appellant were material and capable of vitiating the conviction 25. The Appellant submitted that PW1 referred to the incident as having occurred on 30th July 2022 while PW4 referred to an incident occurring on 13th July 2021 whereas the charge sheet indicated that the offence occurred on 3rd July 2022. The Appellant further complained that the trial court amended the date suo moto, that PW1's voire dire examination was defective, that he was not supplied with witness statements, and that he was denied legal representation. 26. The court is guided by Dickson Elai Nsamba Shapwata & Another v Republic, Criminal Appeal No. 92 of 2007, where it was held: “ In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 2.7 Applying the foregoing principle, this court finds that the discrepancies complained of did not go to the root of the prosecution case. The charge sheet consistently stated that the offence occurred on 3rd July 2022 and the evidence adduced before the trial court related to that transaction. The references to different dates by PW1 and PW4 were evidently inadvertent errors which neither altered the substance of the charge nor occasioned prejudice to the Appellant. 28. The court further notes that the Appellant clearly understood the nature of the case facing him and actively participated in the proceedings. He had the chance to cross examine the witnesses and tender defence. Consequently, the discrepancies complained of were minor and incapable of affecting the otherwise cogent prosecution case. 29. With regard to the complaint on voire dire, the record reveals that the complainant was 13 years old and the learned trial magistrate specifically observed that she was not a child of tender years. Accordingly, the complaint contention regarding a defective voire dire examination lacks merit. 30. The Appellant further complained that he was not supplied with witness statements. Although the record shows that an order was made for supply of statements, there is no indication that the Appellant objected to the hearing proceeding or sought an adjournment on account of non-compliance. Equally, no prejudice was demonstrated to have arisen from the alleged omission. 31. On legal representation, the record does not disclose that the Appellant sought legal representation and was denied. Further, there is no indication that substantial injustice was occasioned by the absence of counsel. The proceedings reveal that the Appellant participated fully in the trial and was never denied a chance to cross-examine the prosecution witnesses. 32. This court is therefore unable to find that the contradictions, discrepancies and procedural complaints raised by the Appellant occasioned any miscarriage of justice or rendered the trial unfair. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12819/eng@2026-07-29 5

page 5 of 6

c. Whether the conviction and sentence imposed by the trial court should be interfered with 33. Having discharged its duty under Okeno v Republic [1972] EA 32 and independently re-evaluated the evidence on record, this court is satisfied that the learned trial magistrate properly directed himself on both the law and the evidence. 34. The prosecution proved the age of the complainant, penetration and the identity of the offender as required in Charles Wamukaya Karani v Republic. The inconsistencies complained of were minor and did not go to the root of the prosecution case within the meaning of Dickson Elai Nsamba Shapwata & Another v Republic. Further, the evidence of PW1 was properly received and was sufficient under Act Section 124 of the Evidence, more so because it was corroborated by the medical evidence of PW3. 35. The court therefore finds that the conviction was safe and founded upon credible and consistent evidence. The sentence imposed by the trial court was lawful and commensurate with the offence committed. There is consequently no basis upon which this court can interfere with either the conviction or the sentence. E. Disposition 36. Upon a fresh evaluation of the entire record and evidence as required under Okeno v Republic [1972] EA 32, this court finds that the prosecution proved all the ingredients of the offence of defilement beyond reasonable doubt. The age of the complainant, penetration and the identity of the Appellant as the perpetrator were established to the required standard. The contradictions and discrepancies complained of were minor and did not go to the root of the prosecution case as envisaged in Dickson Elai Nsamba Shapwata & Another v Republic. Further, no violation of the Appellant's right to a fair trial has been demonstrated. 37. Accordingly, c. The Appeal is devoid of merit and is hereby dismissed in its entirety. d. The conviction for the offence of defilement and the sentence imposed by the trial court is hereby upheld. It is so ordered. DATED AND DELIVERED THIS 29TH JULY 2026 SIGNED BY/FOR: HON. JUSTICE ABDI M. HASSAN KISUMU HIGH COURT https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12819/eng@2026-07-29 6

page 6 of 6