https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12543

Abiyeka v Republic (Criminal Appeal E010 of 2025) [2026] KEHC 12543 (KLR) (29 July 2026) (Judgment) Neutral citation: [2026] KEHC 12543 (KLR) Republic of Kenya In the High Court at Makadara Criminal Appeal E010 of 2025 AK Ithuku, J July 29, 2026 Between Abubakari Okumu Abiyeka Appellant and republic Respondent (Being an appeal from the judgment of Hon. Gerald Mutiso, Senior Principal Magistrate, delivered on 24 April 2024 and the sentence imposed on 12 June 2024 in Makadara Chief Magistrate’s Court Sexual Offence Case No. 243 of 2018) Judgment Background 1.The Appellant, Abubakari Okumu Abiyeka, was charged before the Chief Magistrate’s Court at Makadara with defilement contrary to section 8(1) as read with section 8(2) of the Sexual Offences Act, No. 3 of 2006. The particulars alleged that on 21 October 2018 at Makongeni, within Nairobi County, he intentionally and unlawfully caused his penis to penetrate the vagina of EO, a child stated to be aged fourteen years. In the alternative, he was charged with committing an indecent act with a child contrary to section 11(1) of the Act, the allegation being that he intentionally and unlawfully touched the child’s vagina with his fingers. 2.The Appellant pleaded not guilty. The prosecution called six witnesses: RA (PW1), the complainant EO (PW2), Joan Machora, a nurse (PW3), Harriet Irisa, a clinical officer (PW4), Leonard Oseme Karanu (PW5), and PC Elizabeth Mwikali Mubea, the investigating officer (PW6). 3.PW1 was the complainant’s sister-in-law, with whom the complainant lived. She testified that she and her husband, PW5, returned from upcountry in the early hours of 22 October 2018 and found the complainant absent. After making inquiries, they were led to the Appellant’s one-room house. PW1 said that she found the complainant, the Appellant and a man called Rooney asleep on a mat, with the complainant next to the Appellant. PW5’s account was that the complainant and the Appellant were on a small mattress while Rooney was separately positioned at the far end, close to the iron-sheet wall. Both witnesses agreed that the door was not locked, all three occupants were clothed, and they took hold of the complainant and the Appellant. The Appellant escaped as they were taking him away. 4.The complainant gave sworn evidence. She was born on 10 February 2005 and knew the Appellant as a neighbour whom she had known for about one month. She testified that, on the night of 21 October 2018, the Appellant came to her home and asked her to escort him first to a church and then to his residence. When she wanted to return home, the Appellant pulled her into the compound and eventually pushed her into the house. Rooney, whom she described as the Appellant’s cousin, was in the one-room house. The complainant said that the Appellant removed her skirt, jacket and underwear, used a condom and inserted his penis into her vagina. She maintained that account under cross-examination. She also testified that she told the police that Rooney did not sleep with her, but that she had sex with the Appellant. 5.Cross-examination brought out matters relied upon heavily in the appeal. The complainant said that she had voluntarily left her home to escort the Appellant, that the house was dark, that she did not scream or bleed and that she “did not feel anything” while the Appellant had sex with her. All three occupants were clothed when her guardians arrived. Those answers did not cause her to retract the central allegation that the Appellant inserted his penis into her vagina. She stated that the Appellant was the first person with whom she had had sexual intercourse. 6.PW3 examined the complainant at Makadara Health Centre on 22 October 2018. The complainant had not bathed or changed her clothes. PW3 found no physical or genital injury. The external genitalia were normal, the vagina was pink and no blood or spermatozoa were detected. The hymen had irregular margins. PW3 accepted in cross-examination that hymens vary, that some are smooth while others are irregular, and that their appearance may change with age. The medical summary made that day recorded the complainant’s history that “Abu (boyfriend)” had come to her home, taken her to his house and had sexual intercourse with her. 7.PW4 produced the P3 form completed by her colleague, Silas. She testified that the police request dated 23 October 2018 alleged that the complainant had been defiled by two men. The complainant’s clothes were not stained and had no tears. The external genitalia were normal; there was no genital injury, discharge or blood; and the hymenal margins were irregular. PW4 explained that irregular margins may result from trauma, congenital abnormality or hormonal change. In lay terms, she said, the hymen was intact. She could not state that penetration had not occurred because penetration may occur without injury. 8.PW1 was later recalled for further cross-examination. She testified that the complainant told her that she had intercourse with Abu and that Abu “used protection.” PW5 corroborated the circumstances in which the complainant was found at the Appellant’s house and the Appellant’s subsequent escape. He also said that the three occupants were clothed and that mobile-phone torches were used to illuminate the room. 9.PW6 investigated the complaint and arrested the Appellant on 2 November 2018. She produced the complainant’s birth certificate. In examination-in-chief, she said that the complainant reported that the Appellant had defiled her, while the Appellant admitted being with the complainant but denied defilement. 10.In cross-examination, however, PW6 made two concessions of considerable significance. She said that the medical records confirmed no penetration and that the investigation diary relating to OB No. 11 of 22 October 2018 recorded that the complainant said “the men did not defile her.” The prosecution did not seek clarification in re-examination. The Appellant subsequently produced the OB entry as Defence Exhibit 1. 11.The Appellant gave sworn evidence. He said that he was born on 3 May 2000 and was eighteen years old at the material time. He admitted going to the complainant’s home at about 10.00 p.m., leaving with her, taking her to the one-room house in which he lived, and spending the night there in Roney’s company. He denied sexual intercourse. His account was that the complainant wanted to know where he lived, complained of suffering at her brother’s home and refused to leave when he offered to escort her back. He said that he slept on the floor while she sat near the door. He added that he and the complainant were found clothed. 12.The Appellant admitted fleeing when the complainant’s brother and sister-in-law arrived, but attributed his flight to being beaten with a wire and a stick. He hid for some time and was arrested after returning to the area. He produced the OB entry and statements made by PW1 and PW5. He did not call Roney. In cross-examination, he said that Roney was his cousin, did not want to become involved, and had not been seen by him since his arrest. He maintained that it was impossible to defile a girl whose hymen remained intact. 13.In a judgment delivered on 24 April 2024, the learned trial Magistrate found that the age stated in the particulars placed the complainant within section 8(3), notwithstanding the citation of section 8(2) in the charge. The court treated section 8(3) as a lesser offence for purposes of section 179 of the Criminal Procedure Code. On penetration, it regarded the irregular hymenal margins as proof that the hymen had been disturbed by partial penetration. It rejected the OB entry principally because its maker had not been called, rejected the defence as incredible, convicted the Appellant under section 8(1) as read with section 8(3), and made no finding on the alternative charge. 14.The Appellant’s bond was cancelled upon conviction and he was remanded. In mitigation, counsel produced the Appellant’s birth certificate and a KCSE result slip, and urged that he had only recently attained eighteen years when the offence was committed, was a first offender from a humble background, was remorseful and supported his parents. On 12 June 2024, the trial court stated that it had “no choice” but to impose the least sentence under section 8(3), and sentenced the Appellant to twenty years’ imprisonment. The Appeal 15.The petition states that the appeal is against the whole judgment and sentence. It sets out the following six grounds:a)The Honourable Magistrate erred in law and fact by convicting the Accused against the weight of the evidence adduced by the prosecution.b)The Honourable Magistrate erred in law and fact by convicting the Accused relying on contradictory evidence by the prosecution witnesses.c)The Honourable Magistrate erred in law and fact by wholly disregarding the doctor’s evidence that the complainant’s hymen was intact and the genitalia normal.d)The Honourable Magistrate erred in law and fact by failing to consider that, at the time of the alleged offence, the complainant was with another person and not the Accused.e)The Honourable Magistrate erred in law and fact by failing to address himself to the Accused’s evidence given in person.f)The Honourable Magistrate erred in law and fact by delivering a judgment that was against the weight of the evidence, submissions and the law. Submissions 16.The Appellant submitted that the prosecution did not prove penetration or his identity as the perpetrator beyond reasonable doubt. He relied on the normal genital findings, the absence of injury, blood and spermatozoa, the intact hymen, and PW6’s concessions concerning the medical record and the first OB entry. He argued that the trial court substituted conjecture for medical opinion when it inferred partial penetration from irregular hymenal margins. 17.The Appellant further contended that Roney was present in the room and had originally been listed as a prosecution witness, yet he was not called. He argued that the decision to take him and the complainant away while leaving Roney behind, although all three were found clothed, raised an unresolved doubt. He invoked the value of a first report as a safeguard against later embellishment and contended that the complainant’s first account to the police exonerated both men. 18.On the defence, the Appellant argued that the trial court failed to evaluate his sworn denial and improperly shifted the burden of proof. He relied on Article 50(2)(a) of the Constitution, section 169(1) of the Criminal Procedure Code, and Okethi Okale & Others v Republic [1965] EA 555. He also argued that the trial court unfairly relied on its perception of his age and appearance although his birth certificate established that he was eighteen years old when the incident occurred. 19.As to sentence, the Appellant submitted that section 8(3) is unconstitutional because a minimum sentence fetters judicial discretion and prevents an individualized and proportionate sentence. He invoked Articles 25(c), 27, 28, 29, 50 and 160(1) of the Constitution and sections 216 and 329 of the Criminal Procedure Code. He asked, in the alternative, for a seven-year sentence and for credit under section 333(2) of the Criminal Procedure Code from the date of arrest. 20.The Respondent opposed the appeal. It submitted that the three elements of defilement—age, penetration and identity of the perpetrator - were proved. Age was proved by the birth certificate. Although the medical examination disclosed no injury, the Respondent argued that penetration could be proved by the complainant’s detailed oral evidence, particularly her description of her clothing, the condom and the act of insertion. It relied on Kassim Ali v Republic [2006] KECA 156 (KLR) and Julius Kioko Kivuva v Republic [2015] KEHC 712 (KLR). 21.On identity, the Respondent submitted that the Appellant was known to the complainant as a neighbour, admitted taking her to his house, and was found in close proximity to her. It argued that no prejudice arose from the failure to call Roney because section 143 of the Evidence Act does not require a plurality of witnesses. It also submitted that the Appellant had not shown that Roney, rather than himself, committed the offence. 22.On sentence, the Respondent relied on section 8(3) of the Sexual Offences Act and Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR). It submitted that the twenty-year term was the statutory floor and urged the Court to dismiss the appeal. Analysis and Determination 23.This is a first appeal. In Okeno v Republic [1972] EA 32, the former Court of Appeal for East Africa explained that the evidence must undergo “a fresh and exhaustive examination” and that “[t]he first appellate court must itself weigh conflicting evidence and draw its own conclusions,” while allowing for the fact that it did not see or hear the witnesses. This Court must accordingly weigh the whole record, confront the conflicts in the evidence and make its own findings. It is not sufficient merely to repeat the trial court’s summary or to identify evidence capable of supporting its conclusion. 24.Taken faithfully from the petition, the issues are whether the conviction was against the weight of the evidence; whether the alleged contradictions were material; whether the medical evidence displaced proof of penetration; whether the prosecution proved that the Appellant was present and was the perpetrator, given the pleaded assertion that the complainant was with another person and not the Appellant; whether the defence was properly considered; and whether the judgment was consistent with the evidence, submissions and the law. These issues overlap. I shall address the validity of the charge, the ingredients of defilement, the contemporaneous reports and contradictions, Roney’s presence and the defence, before considering sentence. 25.In his written submissions, the Appellant sought to reformulate the appeal into three grounds concerning proof of the ingredients of defilement, evaluation of the defence, and the constitutionality of the twenty-year statutory minimum. Section 350(2) of the Criminal Procedure Code ordinarily confines an appellant to the grounds set out in the petition, subject to the amendment mechanisms prescribed in paragraphs (i) and (ii) of that subsection. The record contains neither a written notice of amendment, an amended petition nor an order admitting an additional ground. I therefore determine the six pleaded grounds. Because the petition challenges the whole judgment and sentence, the legality and computation of the sentence fall within the Court’s appellate powers under section 354(3)(a)(ii) of the Criminal Procedure Code. The constitutional attack, however, raises a distinct question which was introduced only through submissions and was not properly pleaded. I shall address only the controlling law necessary to explain why it cannot yield the relief sought in this appeal. 26.The burden remained throughout upon the prosecution. Article 50(2)(a) of the Constitution guarantees every accused person the right “to be presumed innocent until the contrary is proved.” In Cini v Republic (Criminal Appeal 63 of 2017) [2024] KECA 254 (KLR), the Court of Appeal identified the essential ingredients of defilement as proof of the complainant’s age, penetration and the identity of the perpetrator. A weakness in the defence cannot repair a failure to prove any one of those elements beyond reasonable doubt. 27.Before turning to the evidence, it is necessary to address the citation of section 8(2) in the charge. Section 8(1), (2) and (3) of the Sexual Offences Act provide:“8.Defilement(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(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.” 28.The statement of offence cited subsection (2), but the particulars stated that the complainant was fourteen. The birth certificate proved that she was born on 10 February 2005. She was therefore thirteen years, eight months and eleven days old on 21 October 2018—not fourteen, as stated in the particulars and repeatedly assumed in the trial judgment. The exact calculation does not alter the applicable bracket: she was between twelve and fifteen years and subsection (3) applied. 29.Section 134 of the Criminal Procedure Code requires a charge to state the specific offence and provide particulars reasonably sufficient to inform the accused of its nature. Here, the substantive offence was correctly identified as defilement under section 8(1); and the date, place, complainant, alleged act of penile-vaginal penetration and stated age were particularised. The defect lay in citing the penalty subsection applicable to a child aged eleven years or less. 30.The trial court reached the correct result on the defect, but its reliance on section 179 and its description of section 8(3) as a “minor offence” were conceptually inaccurate. Section 8(1) creates the offence; subsections (2) to (4) prescribe the applicable sentence according to age. That distinction is affirmed in Omondi v Republic (Criminal Appeal 140 of 2018) [2026] KECA 969 (KLR). Section 8(3) was therefore not a lesser cognate offence to which section 179 had to be applied. 31.The proper question is whether the miscitation caused a failure of justice. Section 382 of the Criminal Procedure Code protects a finding from reversal for an error in a charge unless the error occasioned such a failure. In Oduor v Republic (Criminal Appeal 25 of 2019) [2025] KECA 409 (KLR), at paragraphs 17–21, the Court of Appeal applied that substantive-prejudice inquiry to a defect in a defilement charge. 32.The Appellant knew throughout that the allegation concerned a child said to be fourteen and defended himself on penetration and identity. The birth certificate was produced, made available to the defence and not disputed. Nothing in the conduct of the defence would have been different had subsection (3) appeared in the statement of offence. The error was curable under section 382. Conviction under section 8(1) as read with section 8(3) was legally open to the trial court. 33.Age was proved by the birth certificate and the evidence of PW1 and PW2. The certificate is the best evidence on the record and places the complainant within section 8(3). The first ingredient was established beyond reasonable doubt. 34.Penetration is defined in section 2 of the Sexual Offences Act to mean “the partial or complete insertion of the genital organs of a person into the genital organs of another person.” Ejaculation, spermatozoa, bleeding, a torn hymen or genital injury is not an element of the offence. The presence of any of those features may support penetration; their absence is not, without more, proof that penetration did not occur. 35.The medical evidence must nevertheless be treated with precision. PW3 found normal external genitalia, a pink vagina, no injury, blood or spermatozoa, and irregular hymenal margins. She accepted that hymenal appearances vary. PW4 stated that the hymen was intact in lay terms and that irregular margins may be traumatic, congenital or hormonal. She could not exclude penetration because penetration may occur without injury. 36.That evidence was equivocal. It neither proved nor disproved penetration. The learned trial Magistrate therefore went beyond the expert evidence in finding that the irregular margins demonstrated that the hymen had been “disturbed” by partial penetration and that there had been an attempt to break it with a penis. No medical witness expressed that opinion. Where an expert gives several possible explanations for a physical feature, a court may not select the incriminating explanation merely because it fits the charge. That converts a possibility into proof and impermissibly fills an evidential gap by conjecture. 37.Ground 3 is therefore well founded to the limited extent that it demonstrates a material misdirection in the trial court’s treatment of the medical evidence. It does not follow automatically that the conviction must be quashed. The question is whether penetration was otherwise proved by admissible and credible evidence. 38.The proviso to section 124 of the Evidence Act provides:“Provided that where in a criminal case involving a sexual offence the only evidence is that of the alleged victim of the offence, the court shall receive the evidence of the alleged victim and proceed to convict the accused person if, for reasons to be recorded in the proceedings, the court is satisfied that the alleged victim is telling the truth.” 39.Medical corroboration is therefore not an inflexible requirement. In Kassim Ali v Republic [2006] KECA 156 (KLR), the Court of Appeal held that absence of medical evidence is not decisive because penetration may be proved by the victim’s oral evidence or by circumstantial evidence. The principle does not dilute the standard of proof. Where, as here, the medical evidence is inconclusive and the contemporaneous accounts are not uniform, the complainant’s evidence must be examined with particular care and cogent reasons given for accepting it. 40.In Julius Kioko Kivuva v Republic [2015] KEHC 712 (KLR), the High Court emphasised the significance of sensory detail in the complainant’s evidence because such detail may assist the court to determine whether penetration has been proved. That case is also instructive for the converse proposition: merely stating that one “had sex,” without explaining what occurred, may be insufficient. The present complainant did not rest at that level of generality. 41.She described the removal of her skirt, jacket and underwear; the darkness in the room; hearing and feeling a condom; the Appellant’s penis; and its insertion into her vagina. She repeated the core allegation under sustained cross-examination and specifically excluded Roney as a participant. The account contained sensory and anatomical detail capable, if believed, of proving partial or complete insertion. 42.The surrounding circumstances were substantially undisputed. The Appellant admitted going to the complainant’s home late at night, leaving with her, taking her to his one-room residence and spending the night there. PW1 and PW5 found them in close proximity the following morning. The Appellant escaped and remained away until his arrest on 2 November 2018. Flight is not conclusive proof of guilt, particularly because he said that the complainant’s relatives were assaulting him. It is, however, a circumstance to be weighed with the rest of the evidence. 43.There were also prior statements consistent with the complainant’s sworn account. The medical summary completed on 22 October 2018 recorded that Abu had taken her to his house and that they had sexual intercourse. PW1 testified that the complainant told her that she had intercourse with Abu and that he used protection. The applicable provision is section 165 of the Evidence Act, headed “Proof of consistency by former statements.” It provides:“In order to show that the testimony of a witness is consistent any former statement made by such witness, whether written or oral, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”The medical history and the disclosure to PW1 were therefore capable of being proved to test the consistency of the complainant’s testimony. Their proper probative use is limited: repetition may support consistency and credibility, but it does not convert the prior allegations into independent medical or eyewitness proof of penetration. 44.Against those matters stand two contemporaneous police records. First, the investigation diary relating to OB No. 11 of 22 October 2018 recorded, according to PW6, that the complainant said “the men did not defile her.” Secondly, the police request accompanying the P3 form dated 23 October 2018 alleged that the complainant had been defiled by two men. The first account denied defilement by either man; the second implicated two men; while the medical history and PW1’s account attributed intercourse to Abu alone. Those are material differences concerning occurrence and the number and identity of the alleged perpetrators. 45.The value of a first report was explained in Terekali s/o Korongozi & Another v R (1952) 19 EACA 259 and restated in Bernard Gathiaka Mbugua & 4 Others v Republic [2016] KECA 284 (KLR). A prompt report may test the accuracy of later statements and guard against later embellishment because it is made while recollection is fresh. The principle does not make the first recorded account automatically conclusive. The court must examine who made the statement, who recorded it, the circumstances of recording, and its relationship to the witness’s tested evidence. 46.The OB entry could not be rejected merely because its maker was not called. It had been admitted as Defence Exhibit 1 and, more importantly, the investigating officer conceded its content under cross-examination. The trial court was required to evaluate its weight and its inconsistency with the later accusation. Its failure to do so was a material omission. 47.Equally, the statement in the P3 request that the complainant had allegedly been defiled by two men is not a medical finding and does not, by itself, prove that the complainant accused both men. PW4 produced the form on behalf of Silas and did not explain who supplied that introductory allegation or the words used by the complainant. The investigating officer was not asked to reconcile it with the OB entry. The allegation nevertheless formed part of the admitted record and could not properly be omitted from the Court’s assessment. 48.The evidential provenance of the four accounts differs. The complainant’s evidence was given under oath and tested in cross-examination. The medical history was separately recorded on the same day by PW3, who testified and was cross-examined. PW1 also testified and was cross-examined concerning the complainant’s disclosure that Abu had intercourse with her and used protection. By contrast, the maker of the OB entry was not identified and examined, while the person who supplied the introductory allegation in the P3 request was not established. The latter two records carry real weight because they are contemporaneous, but their ambiguities cannot be resolved by treating either as an exact transcript of what the complainant said. 49.The decisive question is whether the conflict leaves a reasonable doubt, not merely which version appears more probable. I have considered that the OB entry denied defilement and that the P3 request referred to two men. Those records weaken the prosecution case and demand caution. I have also considered that the complainant, when questioned on the point, expressly said that she told the police that Roney did not sleep with her but Abu did. That distinction was consistent with the separate medical history and PW1’s recalled evidence. Her account in court was direct and specific, remained materially consistent under cross-examination, and concerned an Appellant whose presence throughout the relevant night was admitted. 50.On balance, I am satisfied that the unexplained police-record discrepancies do not displace the complainant’s tested account. The two inconsistent entries appear to be abbreviated and unexplained police formulations, whereas the making of two same-day prior statements attributing intercourse to Abu alone was proved through separate witnesses. I do not treat those prior statements as independent proof of penetration; their relevance under section 165 is that they support the consistency of the complainant’s tested account. Nor do I assume that police records are necessarily inaccurate. The conclusion rests on the uncertain authorship and provenance of the two conflicting police formulations, viewed against direct sworn evidence which was available for cross-examination. I record, as required by section 124 of the Evidence Act, that I believe the complainant’s evidence that the Appellant inserted his penis into her vagina. I do so because of the specificity and internal consistency of her sworn testimony, her express exclusion of Roney, the consistency shown by the contemporaneous medical history and PW1’s evidence of the disclosure concerning Abu and protection, and the undisputed surrounding circumstances - not because irregular hymenal margins proved penetration. 51.The remaining inconsistencies do not go to the root of the case. PW1 described all three occupants as being on a mat; PW5 placed the complainant and the Appellant on a small mattress and Roney at the far end on the floor. The complainant was unsure under cross-examination whether Roney had been on a mattress or the floor. Those variations concern the exact sleeping arrangement observed in a dark room illuminated by mobile-phone torches. They do not alter the agreed facts that all three were in the one-room house, that the complainant and the Appellant were close to each other, and that the Appellant was taken away and escaped. 52.In Philip Nzaka Watu v Republic (Criminal Appeal 29 of 2015) [2016] KECA 696 (KLR), the Court of Appeal explained that human recollection does not produce identical accounts in every minute detail and that only discrepancies of sufficient gravity and materiality render a conviction unsafe. The difference between a mat and a mattress was peripheral. The OB entry and the P3 introductory allegation were material, but, for the reasons given, they do not create a reasonable doubt when evaluated against the entire record. 53.I turn to ground 4. As clarified by the Appellant, it asserts that he was not present at the material time and that the complainant was with another person. That assertion is irreconcilable with his sworn defence. He admitted going to the complainant’s home, leaving with her, taking her to his house, spending the night in the same room with her and Roney, and being present when her brother and sister-in-law arrived. PW1, PW2 and PW5 also placed him there. This was not a case of identification of a stranger or disputed presence. Authorities concerning difficult visual identification, including Maitanyi v Republic [1986] KLR 198, do not determine the controversy. 54.Ground 4 therefore fails as a claim of non-presence. It nonetheless raises the separate question whether Roney’s presence left a reasonable possibility that somebody other than the Appellant committed the act. That question must be answered without shifting any burden to the Appellant. The Respondent’s submission that the Appellant did not prove that Roney committed the offence is legally incorrect. The Appellant had no obligation to identify an alternative perpetrator; it remained for the prosecution to prove that he was the perpetrator. 55.Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact, absent a contrary provision of law. That provision does not make every uncalled witness immaterial. In Kirui v Republic (Criminal Appeal 92 of 2017) [2024] KECA 959 (KLR), at paragraphs 14–18, the Court of Appeal reaffirmed that the prosecution determines the witnesses necessary to prove its case, but an adverse inference may arise where a material witness is not called and the evidence actually adduced is weak and inadequate. 56.The charge-sheet witness list names Rodney Kweyu. The proceedings later refer to the police having obtained a “Mr Roland” who was present in court, but the record does not clarify whether that was the same person and no such witness ultimately testified. Roney was a material percipient witness because he was present in the one-room house. Calling him would have been desirable, and the prosecution offered no satisfactory explanation for not doing so. 57.Nevertheless, the complainant did not identify the perpetrator by inference from sleeping positions. She gave direct evidence that the Appellant undressed her and inserted his penis into her vagina and expressly excluded Roney. The Appellant admitted taking her to the house and being present throughout the night. After cautiously evaluating the direct evidence and the inconsistent records, I do not find the prosecution evidence weak and inadequate within the principle in Kirui. The omission to call Roney does not therefore generate an adverse inference sufficient to displace the otherwise proved case. 58.Ground 5 concerns the defence. Section 169(1) of the Criminal Procedure Code requires a judgment to contain the points for determination, the decision on them and the reasons for the decision. In Okethi Okale & Others v Republic [1965] EA 555, the former regional Court of Appeal cautioned that a conviction must rest on the strength of the prosecution case, not the weakness of the defence. 59.The trial court summarised and rejected the defence, but aspects of its reasoning were unsatisfactory. It relied on the Appellant’s appearance to suggest that he was older, although his date of birth was subsequently supported by a birth certificate. It also considered it inherently implausible that a girl might ask to see where a man lived. Neither proposition provided a safe basis for rejecting sworn evidence. The trial court further treated the alleged failure to report the beating as proof that it did not occur, whereas the absence of a report was only one factor bearing upon credibility. 60.Those misdirections require this Court to evaluate the defence independently. The question is not whether the Appellant explained or disproved the complainant’s allegation. It is whether his sworn denial, considered together with the inconsistent contemporaneous records and all the other evidence, left the prosecution case free from reasonable doubt. 61.The Appellant’s evidence confirmed the prosecution case on acquaintance, his late-night visit, departure with the complainant, the location, Roney’s presence, the overnight stay, his presence when the complainant’s relatives arrived, his escape and subsequent hiding. His denial of penetration remained to be weighed against the complainant’s direct evidence and the evidential conflicts already examined. For the reasons given in paragraphs 43–50, I am satisfied that the denial did not raise a reasonable doubt. That conclusion follows only after the prosecution evidence has independently met the burden of proof; it does not use a perceived weakness in the defence to fill an evidential gap. 62.The Appellant also relied on section 309 of the Criminal Procedure Code and argued that the prosecution should have called rebuttal evidence after he produced the OB entry. Section 309 empowers the court to allow the prosecution to adduce evidence in reply where the defence introduces new matter which the prosecution could not, by the exercise of reasonable diligence, have foreseen. The OB entry arose from the prosecution’s investigation and was put to PW6 in cross-examination. It was not an unforeseeable new matter. Failure to call evidence in reply did not render the trial automatically unfair. Its consequence was evidential: the unexplained inconsistency had to be weighed in the Appellant’s favour, as this Court has done. 63.Upon a fresh evaluation of the whole record, the prosecution proved the complainant’s age, penetration and the Appellant’s identity as the perpetrator beyond reasonable doubt. The trial court erred in treating the medical findings as affirmative proof, in failing adequately to evaluate the contemporaneous police records, and in parts of its treatment of the defence. Those errors have been corrected through this Court’s independent evaluation and do not render the conviction unsafe. Ground 3 succeeds only as a demonstration of misdirection, but it does not affect the result. Grounds 1, 2, 4, 5 and 6 fail. 64.I turn to sentence. Section 8(3) prescribes imprisonment for a term of not less than twenty years. The constitutional challenge was introduced through written submissions and was neither contained in the petition nor brought into the appeal through any of the amendment mechanisms in section 350(2) of the Criminal Procedure Code. It is therefore not a properly pleaded ground. In any event, the relief sought is foreclosed by the controlling law. 65.In Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR), the Supreme Court drew the relevant distinction at paragraphs 55–57. At paragraph 57 it held: “Minimum sentences however set the floor rather than the ceiling when it comes to sentences.” It explained that a minimum sentence preserves discretion to impose a sentence above the statutory floor, but not below it. The Court further held that the constitutional validity of such sentencing provisions required “a proper case filed, presented and fully argued before the High Court”; the Court of Appeal had improperly determined an imprecise and unpleaded constitutional question in the exercise of appellate jurisdiction. 66.It is important not to overstate Mwangi. The Supreme Court did not finally adjudicate, on the merits of a fully pleaded constitutional challenge, the substantive validity of every statutory minimum sentence. It held that the Court of Appeal’s declaration could not stand because the constitutional issue had not been properly pleaded, litigated and determined at first instance. It also reaffirmed that Parliament sets statutory sentencing parameters and that the sentence imposed under section 8 remained lawful for so long as that provision remained valid. The result for this appeal is that section 8(3) binds the Court unless and until it is declared unconstitutional in a properly constituted proceeding. Article 160(1) secures judicial independence but subjects judicial authority to the Constitution and the law. 67.Sections 216 and 329 of the Criminal Procedure Code permit a sentencing court to receive evidence relevant to the proper sentence. They do not confer jurisdiction to impose a sentence below a binding statutory minimum. The Appellant was eighteen years and about five months old at the time of the offence, a first offender, and supported his mitigation with a birth certificate and KCSE result slip. Those circumstances justified the statutory minimum rather than a higher term; they could not lawfully reduce the sentence to the seven years proposed. The twenty-year term was lawful and was the least severe sentence available under section 8(3). 68.A life sentence under section 8(2) was neither imposed nor legally available on the proved age, and the constitutionality of indeterminate life imprisonment is therefore not a live issue upon which dispositive relief can be granted in this appeal. Its current status should nevertheless be stated accurately. In Republic v Manyeso (Petition E013 of 2024) [2025] KESC 16 (KLR) and Republic v Ayako (Petition E002 of 2024) [2025] KESC 20 (KLR), the Supreme Court set aside Court of Appeal decisions which had respectively converted life imprisonment into terms of forty and thirty years, and reinstated the life sentences. Ayako is especially important for precision. At paragraph 41, the Supreme Court expressly stated that it could not determine the constitutionality of life imprisonment because that issue had not been litigated through the proper judicial hierarchy. At paragraphs 46–47, it observed that life imprisonment need not necessarily mean incarceration for the prisoner’s natural life, but held that prescribing its content and any release parameters is a legislative function and that a court cannot create a fixed-term equivalent. Thus, the Supreme Court has not substantively declared indeterminate life imprisonment constitutional after a merits determination. The present legal position is narrower: the statutory life sentence remains legally operative because it has not been declared unconstitutional, and courts cannot convert it to an arbitrary fixed term in the absence of legislation or a competent constitutional determination. None of that alters this case, which falls under section 8(3) and concerns a determinate twenty-year sentence. 69.There is, however, an error in the computation of the sentence. Section 333(2) of the Criminal Procedure Code provides:“Subject to the provisions of section 38 of the Penal Code (Cap. 63), every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code:Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.” 70.In Ahamad Abolfathi Mohammed & Another v Republic [2018] KECA 743 (KLR), the Court of Appeal held that the words “take account” require actual credit for the period spent in custody, not merely a recital that custody was considered. The record shows that the Appellant was arrested on 2 November 2018 and remained in custody until a surety was accepted on 22 May 2019, although the date of his physical release is not recorded. It also shows that his bond was cancelled upon conviction on 24 April 2024 and that he remained in custody until sentence was pronounced on 12 June 2024. 71.The sentencing ruling did not credit either period. The Appellant is not entitled to credit for the period during which he was out on bond, but he is entitled to credit for every day actually spent in presentence custody. The twenty-year term shall therefore run from 12 June 2024, less the aggregate number of days actually spent in custody: first, from 2 November 2018 until his actual release on bond following acceptance of the surety on 22 May 2019; and, secondly, from 24 April 2024 to 11 June 2024. The exact number of days shall be verified from the remand warrants, surety-release documents and prison records so that no day is omitted or counted twice. Disposition 72.The appeal against conviction is dismissed. The conviction for defilement contrary to section 8(1) as read with section 8(3) of the Sexual Offences Act is affirmed. 73.The sentence of twenty years’ imprisonment is affirmed, subject to compliance with section 333(2) of the Criminal Procedure Code. It shall be computed from 12 June 2024 after deduction of the aggregate number of days the Appellant actually spent in presentence custody during the two periods identified in paragraph 71. 74.In accordance with section 355(1) of the Criminal Procedure Code, the Deputy Registrar shall certify the orders made on appeal to the trial court. A certified copy of this judgment and the sentence-computation order shall also be transmitted to the Officer in Charge of the prison where the Appellant is held, for verification of the custody dates and recalculation of the release date. 75.The appeal succeeds only to the limited extent of the sentence computation ordered above. Right of Appeal 14 days. DELIVERED, DATED AND SIGNED THIS 29TH DAY OF JULY 2026HON. ALEX K. ITHUKUJUDGEIn presence of:-Court assistant – Annastacia……………………………for the Appellant………………………………for the respondentHON. ALEX K. ITHUKUJUDGE