https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11568

Arogo v Republic (Criminal Appeal E048 of 2023) [2026] KEHC 11568 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 11568 (KLR) Republic of Kenya In the High Court at Migori Criminal Appeal E048 of 2023 ACA Ong’injo, J July 16, 2026 Between Nathaniel Odera Arogo Appellant and Republic Respondent (Being an appeal against sentence in judgment of Hon. C. N. C. ORUO PM delivered on 9th August 2023 in Rongo PMC SOC No. E020 of 2022) Judgment 1.The Appellant was charged with the offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act No. 3 of 2006 2.The particulars are that the Appellant Nathaniel Odera Arogo on diverse dates between 16th September 2022 at [Particulars withheld] area [Particulars withheld] Sub-Location, [Particulars withheld] Location in Rongo Sub-County within Migori County unlawfully and intentionally caused your penis to penetrate the vagina of EAO a child aged 9 years. 3.In the alternative count the Appellant was charged with the offence of indecent act with a child contrary to Section 11(1) of the Sexual Offences Act No. 3 of 2006. 4The particulars are that the Appellant Nathaniel Odera Arogo on diverse dates between 16th September 2022 at [Particulars withheld] area [Particulars withheld] Sub-Location, [Particulars withheld] Location in Rongo Sub-County within Migori County unlawfully and intentionally touched the vagina of EAO a child aged 9 years with your penis. 5.The Trial Magistrate considered the evidence of six (6) prosecution witnesses and the Appellant’s sworn statement in defense and found that the prosecution had proved the offence of defilement beyond reasonable doubt. The Appellant was consequently found guilty and was convicted accordingly and sentenced to serve 30 years imprisonment. 6.Being aggrieved by the sentence the Appellant lodged the appeal herein vide Memorandum of Appeal dated 17th August 2023 on the following grounds:- 1.That the Magistrate erred in fact and in law in misdirecting himself that as per the dictates of law in not cautioning the accused of their right to legal representation as to the offence that they were facing. In as far as the said charges were serious in nature and that the said gravity of representing himself in person was not clearly spelt out to him in the circumstances. 2.That the Magistrate erred in fact and in law when he failed to evaluate and or scrutinize the entire evidence presented in court which apparently was full of falsehoods and malice on the part of the state witnesses and the said Complainant. 3.That the Magistrate erred in fact and in law when she passed a judgment that was derived of inconsistencies and which could not be substantiated as to the nature of exhibits/ Treatment books the PRC forms, the medical examinations conducted on the subject and the accused person which were in conflict and were not consistent and in tandem with the evidence presented before the court. 4.That the Magistrate erred in fact and in law when she entered a judgment and sentencing that was full of errors in as far as the evidence of the minor was concerned as to the number of times that she might have been defiled by the person and as such the evidence are wanting in nature which also goes against the tenets of the constitution and the rights of the accused persons. 5.That the Magistrate erred in fact and in law by arriving at a ruling that is unconstitutional and illegal in nature and the statutes which are against the natural cause of justice. 6.That the Magistrate erred in fact and in law by arriving at a judgment and sentencing that was not an equivocal based on the facts read out and the response adduced by the accused persons in answering to the facts read out and the demeanor of the said witnesses. 7.That the ruling of the Trial Magistrate goes against the rules of natural justice consequently the said judgment and sentencing is a nullity in law.REASONS WHEREFORE the Appellant prays that the court be pleased to reverse the said judgment and sentence against the Appellant thereby:- a.Allowing the appeal and setting aside the entire judgment and sentence of the Trial Magistrate delivered on 9th August 2023 and/ or quash the said judgment.b.Costs of the appeal be borne by the Respondentc.Any further relief and orders be granted by the court as deemed fir in the circumstances. 7.The prosecution tendered evidence by PW1 9 years old minor who said that the Appellant who was known to her lured her to his house using her friend known as Fay and that he defiled her repeatedly from 16th September 2022 to 28th September 2022. PW1 said that she reported to her grandmother and to her teacher and she was taken to the police station and she led police to where the Appellant lived and he was arrested. The Complainant was treated at Rongo Sub-County Hospital and she later recorded her statement and the Appellant was charged. 8.PW2 B. T. testified that she received a call that the Complainant had been absent from school for 3 days and that it was found she was defiled by a known person. That when she interrogated the child, she told her she was sick and that is why she did not attend school. 9.PW3 the Complainants teacher stated that on 30th September 2022 she noted that the Complainant had been absent from school and that on interrogating her the Complainant narrated that a person known to her had been defiling her. That the Complainant took PW3 to where the perpetrator lived next to the school and that the police arrested the Appellant. 10.PW4 M. O. the mother of the Complainant testified and said that the Complainant said the Appellant had defiled her severally and that the Complainant led her and the police to the Appellant and he was arrested. PW4 also said that the Complainant was 9 years old at the time of the incident and she identified the birth certificate. 11.PW5 Lilian Nyaboke Clinical Officer from Rongo Sub-County Hospital examined the Complainant and established that her hymen was broken with healed scars on the labia majora. She also found the minor was having colourless vaginal discharge. 12.On carrying out laboratory tests she found epithelial cells in the urine and high vaginal swab. PW5 treated the Complainant and filled P3 and PRC forms 13.PW6 the Investigating Officer P.C Rosalia Chepchirchir Maiyo testified that on 3rd October 2022, she was assigned the duty to investigate the offence herein. That Complainant identified the perpetrator as Rasta and led her teacher to his house and he was arrested and taken to the station. She said that both the minor and the Appellant were escorted to the hospital and examined and P3 and PRC forms duly filled. 14.Upon close of the prosecution case the Appellant was placed on his defence and he gave sworn statement and said that he did not commit the offence. He said that 3rd October 2022 at around 5.00pm a person known to him approached him and asked whether the room he was facing was vacant as he had 2 clients. That he accompanied him to his house and opened other doors and the mother to the person who wanted a room came with 2 pupils in uniform. Two adults came and introduced themselves as the teachers. The minor claimed that on several occasions on 27 / 10/ 2022, 28 / 10 / 2022 to 30th October 2022 he had defiled her. That police came and arrested him and on 5th November 2022 he was taken to court and charged. 15.In cross examination the Appellant said he lived in Rongo and he knew the Complainant. He said that the statement, P3form and filter form that was supplied to him showed that the Complainant was defiled. He said he knew Milka who had been his neighbour for 2 years. He said he was not aware the grandmother lived with the child. He said he knew Milka’s house as they are neighbours. He did not know PW2 who was the aunt to the Complainant. The Appellant also said he had not differed with the grandmother to the Complainant. 16.The appeal was canvassed by way of written submissions. 17.The Appellant’s submissions are dated 6th March 2025 and were filed by the firm of M/S Ongoso and Company Advocates. 18.The Appellant’s Advocate submitted that there are various flaws and teething contradictions in the statement by the complainant including date of the offence whether it was from 16th September 2022 to 28th September 2022 or 30th September 2022 as claimed by PW3 who said the child told her that the defilement occurred from the dates of September 30th 2022 and yet according to PW4 she did not know the accused person and according to the investigating officer the minor had told her that the defilement had taken place between the 27th -28th September to 30th September 2022. The Appellant’s Counsel questioned when the offence took place. 19.It was also submitted that of interest is the fact that the said defilement was kept under wraps despite the said allegations asserted by the minor and it is only the last occasion that she alleges that she was injured from the said act. 20.It was also submitted that FAYI who is a friend to the said minor was never called to ascertain the said fact that it was her who was sent to call the said complainant on the first occasion, by the said accused of which her evidence could have greatly buttressed the minors allegations this is despite the fact that she was mentioned severally by the victim (minor) as the one who was constantly calling her ( being sent by the accused to call her on several occasions as is being alleged. 21.The Appellant’s Counsel further submitted that PW2 ROSE AWINO OUMA – the mother to the Complainant said she was informed on the 1 6th day of September 2022 that her child had had not been attending school for over 3 days in direct contraction of the evidence by the minor who stated that she had even attended school up to the 28th day of September 2022. It was also said that PW2’s evidence also contradicted evidence of PW 3, who now stated that the minor had attended school on the 30th day of September 2022. 22.Further submissions were that PW4 – MILKAH OCHIENG stated that when she interrogating the minor as to whom had been defiling her, she stated that she does not know the name and yet when she gave her evidence, she was certain whom the perpetrator was by mentioning the name RAS, so it begs the question, did the minor actually know the perpetrator. 23.It was similarly submitted that of interest was the fact that the said minor did not disclose what was happening to her. 24.That the issue of FAITH cropped up again when she learnt was being used by the accused to call the complainant, who actually the prosecution deemed it wise not to call her as a crucial witness. 25.On the evidence of PW5 THE CLINICAL OFFICER it was submitted that the approximate age of the injuries is not recorded and as such its quite evident that the court is at loss as to when the said incidence actually took place. That the P3 had not captured whether the child was examined after a period of what time. 26.That from the P3 form under Section C Part A it is noted that there were healed tears on the labia minora , so this leaves unanswered question as to if the healed tears were evident , how long ago was this defilement? and if at all Genetalia was found to be normal from the general observation in the said section albeit the presence of a broken hymen ..from the records from the PRC form and the P3 form, it is hard to tell whether the injuries were indeed fresh if at all the last defilement incidence occurred on the 3rd day of September 2022. 27.It was contended that from further analysis of the P3 its equally puzzling that if at all the said minor had ruptures the same could have been noted and not the inverse of a healed labia minora. 28.I t was further submitted that if at all there was forceful defilement as being alleged, the filter clinic card of the accused concluded presence of a normal genitalia, no bruises/ lacerations on his penis, which if at there was forceful penetration, the same could have been captured. 29.That from the PRC FORM the date and time of the incidence is left hanging and it is noted as such the said PRC is incomplete in its entire form. 30.That from the PRC, form the said defilement was now captured to have been taking place in a deserted building and not the accused house as had been stated by the minor. 31.Concerning the evidence of PW6- the investigating officer it was submitted that she stated that the defilement occurred between the 27th -28th September 2022 to 30th September 2022, so when did this defilement occur? since the charge sheet was categorical that the incidence happened between the 16th -28th day of September 2022, and as such the charge sheet is not only omnibus „ but defective in all aspects. 32.The Appellant’s Counsel submitted that the evidence of the medical doctor exonerated the accused from the serious charges which seemed fabricated, concocted and manufactured to get at the accused. It was also submitted that the Complainant was a lying witness and unreadable and not credit-worthy to be trusted. 33.The Appellant’s Advocate referred to the case of PETER NGURE MWANGI VS REPUBLIC 2014 eKLR to fortify their position that a defective charge which particulars does not support the charge was enumerated and expounded further in the case of YONGO VS REPUBLIC where the evidence was at variance with the facts and the charge like in this case scenario where the evidence, the documents the statements and lack of a very crucial witness FAYI are in total variance as the day and darkness. 34.The Appellant’s Advocate took notice of the fact that in sexual offences as was held in case of J.W.A. Vs Republic (2014) eKLR that pursuant to the provision of Section 124 of the Evidence Act corroboration in sexual offences is not necessary especially if the said victim is a child and seen to be telling the truth, but in this case scenario the said FAYI who has been adversely mentioned by the complainant and several witnesses could have placed the accused at the scene of the crime as she was the main agent who was constantly used as a messenger to call the complaint for the accused. 35.Further submission was that this case fails the required standards to afford a conviction in the circumstances as was also held in the case of John Gatheru Wanyoike V Republic [2019] eKLR where the court held that:“It is clear that the offence of the offence of attempted defilement are similar to those of defilement save that there was no penetration. The prosecution must prove that the victim was a minor, that there was act to cause penetration, which was not successful, and that there was positive identification of the accused defiler.” 36.That in determining this appeal, the court has to establish the followinga.the age of the complaint was provedb.there was an act to cause penetration, which was not successful.c.Whether the appellant was positively identified by the minor as the assailant. 37.The Appellant’s Counsel submitted that the answer to 1 above was not in dispute. That on the second issue the said act of defilement cannot be known from the conflicting dates and narrations of the various complainants. 38.That on the 3rd issue the minor complainant was at times stating that she knows the perpetrator and at times when being interrogated, she seems not to know the perpetrator. 39.Regarding the sentence it was submitted that The Supreme Court in the Francis Karioko Murwatetu case (supra) set out guidelines to assist the courts in the determination of the sentence where mitigation was not considered prior to the said case. The guidelines are as follows:“As a consequence of this decision, paragraph 6-4-6-7 Of the guidelines are no longer applicable. To avoid a lacuna, the following guidelines with regard to mitigating factors are applicable in a re-hearing sentence for the conviction of a murder charge:a.age of the offender;b.being a first offender;c.whether the offender pleaded guilty;d.character and record of the offender;e.commission of the offence in response to gender—based violence;f.remorsefulness of the offender;g.the possibility of reform and social re-adaptation of the offender;h.any other factor that the Court considers relevant 40.The Appellant’s Counsel submitted and made it very clear that these guidelines in no way replace judicial discretion. They are advisory and not mandatory. They are geared to promoting consistency and transparency in sentencing hearings. They are also aimed at promoting public understanding of the sentencing process. This notwithstanding, they pointed out that at paragraph 25 of the 2016 Judiciary Sentencing Policy Guidelines states that:“Where there are guideline judgments, that is, decisions from the superior courts on a sentencing principle, the subordinate courts are bound by it. It is the duty of the court to keep abreast with the guideline judgments pronounced. Equally, it is the duty of the prosecutor and defense counsel to inform the court of existing guideline judgments on an issue before it," 41.And as such Counsel submitted that the sentence was excessive in the circumstances bearing in mind the age of the accused. 42.It was further submitted that there were several contractions which they wished to highlight based on the tendered evidence as presented by the prosecutions 1.The dates of the alleged offence are in conflict. 2.The PRC. Form do not disclose when the offence occurred. 3.The complainant at times knows the perpetrator and at times does not know him, 4.The PRC. Talks of healed scars in the labia minora. 5.The bruises in the vagina of the minor were not evident in the penis of the accused. 43.Crim. App. No 139 of 2001, (200311-GCA, 6. Was cited by the Appellant’s counsel to support their ground that there were contradictions in the prosecution evidence where Lt was stated that-“With regard to contradictions in the prosecution case (from the evidence of the minor, the clinical officer the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution case” 44.The Appellant submitted that in this case the witnesses were either said to be there and denying at the same time, while some saying they witnessed the crime, while others came after the occurrence, whilst some only heard. 45.It was also submitted that inconsistencies unless satisfactorily explained would usually but not necessarily result in the evidence of a witness being rejected. The question to be addressed is whether PWI, PW2, PW3, PW4 PW5and PW6 testimonies are all contradictory on the occurrence of the event and whether the contradictions (if any) are grave and point to deliberate u untruthfulness or whether they affect the substance of the charge, That in this regard, the respondent stands to benefit from the definition by the Court of Appeal of Nigeria in David Ojeabuo v Federal Republic of Nigeria6 that:-See Uganda v Rutaro {1976) HCB; I-Joan da vs George W. Yiga {1979} HCB 217. 46.{2014} LPELR-22555(CA), Adamu JA; Ngolika JA; Orji-Abadua JA; & Abiru JA... „.....stat ed and I quote „“NOW, contradiction means lack of agreement between two related facts. Evidence contradicts another piece of evidence when it says the opposite of what the other piece of evidence has stated and not where there are mere discrepancies in details between them. Two pieces of evidence contradict one another when they are inconsistent on material facts while a discrepancy occurs where a piece of evidence stops short of, or contains a little more than what the other piece of evidence says or contains." 47.The Appellant’s counsel further submitted that contradictions in evidence of a witness that would be fatal must relate to material facts and must be substantial. It must deal with the real substance of the case. Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. 48.It was argued and rightly so that not every trifling inconsistency in the evidence of the prosecution witness that is fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court and therefore necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit there from- Minor or trivial contradictions do not affect the credibility of a witness and cannot vitiate a trial. The correct approach is to read the evidence tendered holistically. It is only when inconsistencies or contradictions are substantial and fundamental to the main issues in question before the court that they can necessarily create some doubt in the mind of the trial court that an accused is entitled to benefit thereWe invite the court See Osetola vs State {2012} 17 NWLR (Pt1329) 251. 49.And also See Theophilus vs State {19%} 1 nwlr (Pt.423) 139. in this regard there is mor e inconsistencies to warrant the accused to be found guilty of the said offence, what must be borne in mind, is that the conclusion which is reached (whether it be to convict or to acquit must account for all the evidence. Some of the evidence might be found to be false, some of it might be found to be unreliable, and some of it might be found to be only possibly false or unreliable, but none of it may simply be ignored. The facts found to be proven and the reasons for the judgment of the trial court must appear in the judgment of the trial court. If there was evidence led during the trial, but such evidence is not referred to in any way in the judgment, it is safe for a court of appeal to assume that such evidence was either disregarded or not properly weighed or even forgotten out at the time of delivering the judgment. The best indication that a court has applied its mind in the proper manner is to be found in its reasons for judgment including its reasons for the acceptance and the rejection of the respective witnesses like in the instant case, 50.In a nutshell it is the submissions of the defense that due to the inconsistencies and anomalies presented by the prosecution, its case falls short of the threshold to sustain a re-opening of the same and thus the same is lacking in substance and form and the court should interfere with the lower courts judgement and set aside the entire sentence and or use its discretion in meting out the sentence. 51.The Respondents submissions are dated 23rd January 2025 and are to the effect that the prosecution had proved that the minor was defiled by the Appellant and when she was taken to hospital PW5 examined her and confirmed that her hymen was torn. This led her to conclude that the minor had been defiled. 52.It was also submitted that the age of the minor was proved to be 9 years by the testimony of the minor herself and production of the certificate of birth. 53.Further the Respondent also submitted that the Complainant testified that the Appellant she lived next to their home and that the Appellant used her friend Fayi to lure her into his house as she thought he was going to send her but he locked her in his house and defiled her after which he threatened to kill her and her family members if she informed anyone of what had happened to her. 54.It was submitted that the Complainant was candid in her testimony and that she knew the Appellant well and recognized him as the person who defiled her in his house in broad daylight and identification was proved. 55.It was also submitted by the Respondent that the sentence meted by the Trial Court was as per the discretion of the court as the sentence provided for by the Act is life imprisonment. It was submitted that having defiled the minor in 4 occasions the sentence passed was definite and justified in the circumstances and should not be disturbed. ANALYSIS AND DETERMINATION 56.This being a first appeal, the duty of this Court is to re-evaluate and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was well stated in Okeno v Republic. 57.Similarly, the duty of the court was stated in Mark Oiruri Mose vs. R (2013) eKLR thus;“…. the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.” 58.Having re-considered and re-evaluated the grounds of appeal, the records of the trial court and the rival submissions of the parties herein the issues for determination are:-1.whether the ingredients of the offence of defilement was proved by the prosecution to the required standards.2.Whether the Appellant’s rights to legal representation was violated3.whether there were material contradictions in the prosecution case;4.whether the Appellant's constitutional rights were violated;5.whether the sentence was lawful. 59.The Appellant herein was charged with the offence of defilement contrary to Section 8(1) of the Sexual Offences Act which provides,“A person who commits an act which causes penetration with a child is guilty of the offence termed defilement". 60.Section 8(2) of the Sexual Offences Act further provides that:“A person who commits an offence of defilement with a child between the age of eleven years or less shall upon conviction be sentenced to imprisonment for life.. 61.On whether the Appellant's constitutional rights were violated; The applicable law on the right to legal representation is Article 50(2)(g) and (h) of the Constitution which provides that an accused person has the right—a).to choose and be represented by an advocate;b).to be informed promptly of that right; andc).Article 50(2)(h) further provides for State-funded legal representation only where substantial injustice would otherwise result. 62.This court has perused the trial court record and established that on 5th October 2022 when the Appellant was arraigned in court, he was informed of the right under Article 50(2)(g) and (h) of the Constitution and he acknowledged that he had been informed. Subsequently the court proceeded to read the charge to him and he responded that it was not true. 63.The matter then proceeded to hearing and the Appellant ably cross examined the Complainant and all prosecution witnesses. 64.From the material before the trial court here there is no indication that the Appellant requested for an Advocate and there is no indication that legal representation was denied to the Appellant or that he was unable to effectively cross-examine witnesses. Indeed, his defence shows he cross-examined witnesses and gave sworn evidence. The Appellant understood the proceedings and he filed written submissions on appeal through counsel. There is nothing to suggest that the trial became unfair merely because he conducted his own defence. Accordingly, this ground fails. 65.As regards inconsistencies and contradictions in the prosecution evidence, the Appellant argues that the complainant was inconsistent regarding how many times she was defiled. The question to be asked is whether the evidence was so contradictory that it created reasonable doubt. Where a child merely estimates "several occasions" and the charge itself alleges "diverse dates", such evidence is not necessarily inconsistent. This court finds that the prosecution evidence was not materially contradicted by the witnesses and this ground equally fails. 66.Grounds 5, 6 and 7 of the appeal on constitutionality, legality and natural justice are couched in a general manner and are largely omnibus grounds. The allegations that the judgment is unconstitutional, illegal, against natural justice not equivocal and a nullity have not been particularized and the court cannot interfere on the basis of generalized allegations that are unsupported by legal argument. There must be specific demonstration of prejudice for the finding of the trial court to be interfered with. 67.In his defence the Appellant admitted that he knew the complainant as a neighbour and he had no grudge with the complainant's family. His defence did not provide an alibi nor did it explain why the child would falsely implicate him. The trial court which had the opportunity to see and hear the Complainant testify believed her and gave reasons why it believed her and this court finds that the requirement under Section 124 of the Evidence Act was met and it will not be proper to interfere with the trial court’s discretion. The finding of the trial court was supported by the evidence of the other prosecution witnesses that the Complainant was indeed defiled and she led the police to where the Appellant was and he was arrested. 68.The ground that plea was not unequivocal was particularly misconceived because the phrase "unequivocal plea" relates to plea-taking. In the instant case, the matter proceeded to full trial; witnesses testified and the Appellant defended himself. The concept of an equivocal plea is therefore irrelevant. 69.Regarding whether the offence of defilement was proved, the prosecution is required to prove the age of the complainant, penetration and identity of the perpetrator. 70.The Respondent submitted that the complainant was aged 9 years and a birth certificate was produced to that effect. That was sufficient proof of the Complainant’s age. There was no dispute to the fact that the Complainant was a child as prescribed by Section 8(2) of the Sexual Offences Act. 71.Regarding the element of penetration Section 2(1) of the Sexual Offences Act defines penetration to mean partial or complete insertion of the genital organs of a person into the genital organs of another person. 72.PW1 testified that on 16th September 2022 her friend Fayi told her that Rasta was calling her. That she entered his house and he locked the door and told her he would kill her if she screams. That the said Rasta whom she identified as the Appellant herein touched her breasts and kissed her and then told her to remove her clothe. That she removed her skirt and panty and the Appellant removed his trouser and panty and told her to lie on bed. That the Appellant then lay on her and he inserted his dudu in her dudu. That was the 1st act. That the Appellant repeatedly defiled her consecutively on 4 different occasions. 73.PW5 examined the complainant and found a torn hymen with tears on the labia majora. PW5 concluded that penetration had occurred. There was therefore proof that there was penetration both by the evidence of the Complainant and medical evidence. 74.The Complainant had failed to attend school on three occasions and this prompted her teacher PW3 to find out. She told the teacher that Ras had been defiling her and that she was sick. PW1 said Ras had threatened to enter their house through the window and kill all her family members if she reported. That Ras gave her tea and bread and her 10/= after defiling her. PW1 said the Appellant had told her not to go to school but on 30th September 2022 she went to school and on interrogation led the teacher and police to where the perpetrator was and it turned out to be the Appellant herein. The complainant knew the Appellant beforehand because he lived near their home; she recognized him; she entered his house and the offence occurred during daytime. This was therefore a case of recognition rather than identification of a stranger. Recognition is generally considered more reliable than identification of an unknown person. The element of identification of the perpetrator was therefore proved. 75.The Appellant’s defense, was essentially a mere denial. He did not suggest a grudge, mistaken identity or an alibi. Indeed, in cross-examination he admitted that he knew the complainant; he knew her family as they were neighbours and there was no disagreement with the complainant's grandmother. His evidence therefore did little to weaken the prosecution case. 76.On whether the sentence was harsh and excessive, the Appellant was sentenced to serve a term of 30 years imprisonment. Section 8(2) provides for life imprisonment where the child is aged eleven years or less. 77.Following the advisory in Francis Karioko Muruatetu & Another v Republic (as clarified) the mandatory minimum and maximum sentences in sexual offences remain lawful unless and until the law is amended. 78.The sentence of 30 years is below life imprisonment and is too lenient to reflect appropriate punishment for repeated sexual abuse of a 9-year-old child. The same cannot be said to be manifestly excessive. There is therefore no basis for appellate interference. 79.In the circumstances of the above findings, this court finds that the appeal lacks merit and the same is dismissed in its entirety. The conviction is affirmed and the sentence of thirty (30) years' imprisonment is upheld. DATED, SIGNED AND DELIVERED AT MIGORI THIS 16TH DAY OF JULY, 2026.HON. ANNE ADWERA- ONG’INJO JUDGEIn the Presence of:Victor – Court Assistant