Michael Osura Ochieng v Republic

The court emphasised that penetration is a legal, not purely medical, concept. Section 2 of the Sexual Offences Act defines penetration as partial or complete insertion of genital organs. Relying on Evans Wamalwa Simiyu, Alex Chemwotei Sakong and Mark Oiruri, the court held the offence is complete upon partial insertion. The doctor's findings of bruising and reddening along the labia minora and introitus confirmed partial penetration, and the depth of insertion is immaterial.

The sole divergence between PW1 and PW2 was whether PW1 had previously spent the night out. The court held the material issue was not that prior conduct but whether PW1 was defiled on the material night. Since the contradiction did not touch the elements of the offence, it could not affect the conviction. The respondent also correctly noted that on a second appeal, factual matters fall outside section 361 of the Criminal Procedure Code.

The court derived its jurisdiction from section 361(1) of the Criminal Procedure Code, confining second appeals to matters of law. Citing Robert Mutungi Muumbi, MGK v Republic and the Supreme Court's decision in Republic v Mwangi (ISLA as Amicus Curiae), it reaffirmed that interference with sentence on second appeal is limited to illegal sentences or wrong principle. Section 8(2) of the Sexual Offences Act prescribes life imprisonment for defilement of a child aged eleven years or less, so the sentence was lawful.

The court applied Richard Wahome Chege, holding that age need not be proved primarily by a birth certificate, and Mwalango Chichoro Mwanjembe, which settles that age may be proved by documentary evidence such as a baptism card, oral evidence of the child or parents, or medical evidence, so long as it is credible and reliable. The baptismal card showed PW1 was born on 17th September 2006, making her ten years old at the material time.