Odhiambo v Republic

3. PW2, Grace Awino Odongo, saw the complainant entering the appellant's house and when the complainant's sister went looking for the complainant and knocked on the appellant's door without any response, PW2 and Ephy Onyango, (PW5) went to the house demanding to see the complainant, but the appellant denied that the complainant was inside the house. However, upon searching the house, they found the complainant covered by mattresses. 4. According to BAO, (PW3), the complainant's mother, when she noticed that the complainant and her sister were not at home, she went out to look for them and as she approached the gate, she met two women who informed her that the complainant had been found in the appellant's house. They went to the appellant’s house and found members of the public baying for the appellant’s blood. She urged them to take the appellant to the police Station. She testied that the complainant, who was born on 15th August 2005, informed her that the appellant had been deling her by luring with money. 5. On his part, Brenda Luvembe, (PW4) a clinical ocer, stated that examination on the complainant found whitish uid in the complainant’s genitalia; the hymen was absent and concluded that there was evidence of delement, while Dr. Paul Ogola, (PW6) also examined the complainant and noted whitish discharge at the labia minora and from the vagina. The discharge did not, however, have any blood and concluded that there was evidence of delement. 6. PW7, Police Constable Samuel Osero, the investigating ocer, received a report from the area chief that the appellant had been arrested by members of the public on allegations of delement. The appellant was rearrested and investigations revealed that the appellant had also previously deled the complainant. 7. In his unsworn defence, the appellant denied deling the complainant; stated that on the material day, he had returned from shing and he was preparing to take a bath when a crowd of people arrived and apprehended him. 8. Upon considering the evidence, the trial court was satised that the prosecution had proved the case beyond reasonable doubt, convicted the appellant and sentenced him to 20 years imprisonment. 9. Aggrieved by both the conviction and sentence, the appellant lodged an appeal before the rst appellate court and raised several grounds, faulting the trial court in: failing to nd that the complainant's age had not been proved; relying on prosecution evidence that was riddled with contradictions and inconsistencies and failing to properly consider his defence which had not been challenged by the prosecution. In its judgment dated 6th February 2020 the rst appellate court dismissed the appeal, upheld the conviction and armed the sentence. 10. The appellant was once again aggrieved and has lodged the present appeal faulting the rst appellate court in: failing to nd that the charge sheet was defective; that the complainant's age had not been proved beyond reasonable doubt; that the prosecution's case was full of contradictions and inconsistencies rendering the evidence unreliable; that the sentence of 20 years' imprisonment was manifestly excessive and disproportionate in the circumstances and failing to take into account the period he was in custody during trial as required by section 333(2) of the Criminal Procedure Code. 11. When the appeal was called out for plenary hearing, the appellant appeared in person from Kibos Medium Prison through video link while Ms. Busienei, learned prosecution counsel, was present for the respondent. Both parties relied on their written submissions entirely. 12. The appellant submitted that the charge sheet was defective in that whereas the chargesheet was for delement, the evidence only supported the oence of attempted delement; that the complainant testied that someone knocked the door before he had deled her thus, there was no penetration; that https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1666/eng@2026-07-31 2

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the medical evidence on the complainant’s examination found external genitalia, vagina and cervix normal; that neither the clinical ocer nor the medical ocer found bruises, lacerations or other injuries indicative of penetration and that the prosecution erroneously relied on the presence of whitish vaginal discharge as proof of delement. The appellant relied on the case of Michael Mugo Musyoka v Republic, [2015] KECA 955(KLR), for the submission that the presence of wetness or discharge in a complainant's genital does not, by itself, establish an indecent act or penetration, since adolescent girls may naturally experience vaginal discharge. It was the appellant’s position, that the applicable provision in the circumstances was section 9(1) and (2) of the Sexual Offences Act, maintaining that this discrepancy rendered the conviction for delement unsafe because the prosecution failed to prove the oence of delement and the evidence only disclosed attempted delement. 13. Additionally, the appellant submitted that the sentence of 20 years imprisonment was manifestly excessive in the circumstances and relied on Eliud Wambui v Republic [2019] eKLR, Martin Charo v Republic [2016] eKLR and Maingi & 5 Others v Director of Public Prosecutions [2022] KEHC 13118 (KLR), urging that should the Court uphold the conviction, it should impose the least prescribed sentence in accordance with Article 50(2)(p) of the Constitution, while taking into account the provisions of section 333(2) of the Criminal Procedure Code, so that the sentence should run from the date of his arrest on 7th July 2018. 14. Opposing the appeal, Ms. Busienei submitted that a second appeal is conned to matters of law only and that this Court should not interfere with concurrent ndings of fact by the two courts below unless such ndings are unsupported by evidence, are based on a misapprehension of the evidence, or were arrived at on wrong principles. 15. Responding to the appellant’s complaint that the charge sheet was defective, counsel argued that the issue was not raised before the rst appellate court. That notwithstanding, counsel submitted that the charge sheet was proper since the complainant's testimony established penetration within the meaning of section 2 of the Sexual Offences Act and, in particular, that the appellant inserted his male genitalia into the complainant’s genitalia which proved penetration and the rst appellate court was satised that penetration was proved. Counsel relied on the case of Charles Wamukoya Karani v Republic, Criminal Appeal No. 72 of 2013, for the submission that the essential ingredients of the oence of delement are the complainant's age, penetration and positive identication of the perpetrator. 16. Counsel contended that the prosecution proved its case beyond reasonable doubt; the age was proved through the evidence of PW3, who testied that the complainant was born on 15th August 2005 and produced her birth certicate; that penetration was proved through the complainant’s evidence which was corroborated by the medical evidence of PW4 and PW6, who produced the PRC and P3 forms, respectively and on identication of the perpetrator, that the complainant positively identied the appellant, a neighbour and a person she knew and she had interacted with. Counsel maintained that there were no material contradictions or inconsistencies in the prosecution's evidence capable of vitiating the conviction. 17. On sentence, counsel submitted that the sentence of 20 years imprisonment is the mandatory minimum sentence prescribed under section 8(3) of the Sexual Offences Act and that its constitutionality has been armed by the Supreme Court in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 Others (Amicus Curiae) [2024] KESC 34 (KLR) and, therefore, the sentence is lawful and appropriate. 18. Finally, regarding the appellant's complaint that the trial court did not comply with section 333(2) of the Criminal Procedure Code, counsel submitted that the issue was also not raised before the rst https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1666/eng@2026-07-31 3

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appellate court and that complaint falls outside the scope of a second appeal. Counsel urged the Court to dismiss the appeal. 19. By dint of Section 361 of the Criminal Procedure Code, the role of the second appellate court is restricted to considering matters of law only. In Chemagong v Republic, (1984) eKLR, this Court held as follows: “ A second appeal must be conned to points of law and this Court will not interfere with concurrent ndings of facts arrived at in the two courts below unless based on no evidence. The test to be applied on second appeal is whether there was any evidence on which the trial court could nd as it did. (Reuben Karari s/o Karanja- vs-Republic 17 EACA146)”. 20. We have considered the record, submissions by counsel for the respondent, the appellant and the law. The issues that arise for our determination are; whether the prosecution proved its case against the appellant beyond reasonable doubt; whether the charge was defective and whether the sentence of twenty (20) years imprisonment is appropriate in the circumstances. 21. On the rst issue, both the trial court and the rst appellate court reached concurrent ndings that the prosecution proved the ingredients of the oence of delement beyond reasonable doubt. Section 8(1) of the sexual offences Act, provides that a person who commits an act which causes penetration with a child is guilty of delement. In that regard, the oence of delement comprises committing an act which causes penetration with a child. 22. Further, Section 2 of the Act adopts the denition of “child” in the Children Act, that is: any human being under the age of 18 years. The Children Act denes "age" to mean “the actual chronological age of the child from conception or the child’s apparent age as determined by a Medical Ocer in any case where the actual age of the child is unascertainable”, while “penetration” is dened as “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” 23. The prosecution must therefore prove beyond reasonable doubt that the victim was a child by establishing the age of the victim; that there was penetration which need not be complete and that the accused was the perpetrator of the oence, in order to secure a conviction for the oence of delement. 24. Regarding age, the complainant testied during voire dire examination, that she was 13 years old and PW5 testied that the complainant was born on 15th August 2005 and produced the complainant’s Birth Certicate conrming that date of birth. The trial court was satised that the evidence proved the age of the complainant and the rst appellate court was also satised that the age of the complainant had been proved as required by law. We are therefore satised that the age of the complaint was proved and the appellant’s complaint on this issue has no merit. 25. Regarding penetration, the complainant testied that the appellant removed her underwear and inserted his male genitalia into her female genitalia; PW4 testied that there was whitish discharge from the genitalia and the hymen was absent, leading to the conclusion that there was penetration and the trial court again was satised that the evidence proved that there was penetration. The rst appellate court reevaluated the evidence and reached a concurrent nding that there was indeed penetration. 26. The appellant argued before us, just as he did before the rst appellate court, that the complainant testied that he had not deled her by the time someone nocked the door thereby interrupting the process. The rst appellate court addressed this complaint and stated as follows: “I nd that contrary to the appellant’s contention about the appellant having said that she was not deled, the girl actually said that the appellant had put his penis in her vagina. When https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1666/eng@2026-07-31 4

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it is borne in mind that the oence of delement is committed when there has been either complete or partial penetration. I nd that the very act of the appellant putting his penis into the complainant’s vagina, constituted penetration.” 27. Indeed, the record of the trial court shows that the complainant was clear that the appellant inserted his genitalia into hers and going by the denition of delement in section 2 of the Act, partial insertion is deemed to amount to delement and therefore, the penetration was proved to the satisfaction of the two courts below and we have no reason to dier with those concurrent ndings. And regarding the identity of the appellant as the perpetrator of the oence, the evidence of the complainant and PW2 was clear that the appellant was the person who deled the complaint. That issue was never in contention before the trial court and the rst appellate court had no diculty in determining that issue. In any event, the complaint was found in the appellant’s house, leaving no doubt about the identity of the person who deled her. The two courts below having reached concurrent ndings of fact, there is no lawful reason for interfering with those conclusions. 28. On the argument that the charge sheet was defective, the appellant’s complaint was that even though he was charged with delement, the complainant’s evidence supported attempted delement and, therefore, the charge sheet having not been amended to charge him with attempted delement, the evidence could not sustain a conviction for delement. We note that this issue was neither raised before the trial nor the rst appellate court and it cannot, therefore, be raised for the rst time in a second appeal. Even then, the two courts below were satised that the evidence proved delement and for that reason, the appellant’s complaint has no basis and we reject it. 29. On sentence, the appellant challenges the sentence of twenty (20) years life imprisonment as manifestly excessive, urging this Court to impose the least prescribed sentence in accordance with Article 50(2) (p) of the Constitution while taking into account the provisions of section 333(2) of the Criminal Procedure Code, so that the sentence runs from 7th July 2018, the date he was arrested. 30. Section 8(3) of the Sexual Offences Act provides as follows: “ A person who commits an oence of delement with a child between the age of twelve and fteen years is liable upon conviction to imprisonment for a term of not less than twenty years.” 31. A conviction for delement of a child between the ages of twelve and fteen years, attracts a sentence of twenty (20) years imprisonment and because the complainant was 13 years at the time of the commission of the oence, the trial meted out the sentence provided for in law. In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae), (supra), the Supreme Court rearmed the legality of the mandatory minimum sentences under the Sexual Offences Act. The Supreme Court pointed out that so long as section 8 of the Sexual Offences Act remains valid, the mandatory sentences provided therein are constitutional and lawful. In that regard, the sentence the trial court imposed against the appellant, was the only sentence provided for by law and is therefore lawful and proportionate in the circumstances of this appeal. The appellant’s quest for a lesser sentence, if allowed by this Court, or indeed, any other court for that matter, would be in violation of not only the principle of stare decisis, but also Article (163(7) of the Constitution. This complaint also fails. 32. In the end, we nd no merit in this appeal on both conviction and sentence and hereby dismissed it. However, the sentence of twenty (20) years shall run from 9th July 2018 when the appellant rst appeared in court. DATED AND DELIVERED AT KISUMU THIS 31ST DAY OF JULY, 2026. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1666/eng@2026-07-31 5

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ASIKE-MAKHANDIA ............................ JUDGE OF APPEAL E.C. MWITA ............................ JUDGE OF APPEAL B. ONGAYA ............................ JUDGE OF APPEAL I certify that this is a true copy of original. DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1666/eng@2026-07-31 6

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