https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13029

Nyongesa v Republic (Criminal Appeal E039 of 2021) [2026] KEHC 13029 (KLR) (20 August 2026) (Judgment) Neutral citation: [2026] KEHC 13029 (KLR) Republic of Kenya In the High Court at Eldoret Criminal Appeal E039 of 2021 RN Nyakundi, J August 20, 2026 Between Benard Nyongesa Appellant and Republic Respondent (From Original S.O. Criminal Case No. 67 of 2019 at the Chief Magistrate's Court at Eldoret) Judgment 1.The Appellant, Benard Nyongesa, was arraigned before the Chief Magistrate's Court at Eldoret in S.O. Criminal Case No. 67 of 2019 upon two counts of defilement. In the first count he was charged with defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act, No. 3 of 2006, the complainant being JJ, a girl aged nine years. In the second count he was charged with defilement contrary to Section 8(1) as read with Section 8(3) of the same Act, the complainant being MC , a girl aged twelve years. To each count there was laid an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Act. The particulars were that on the 17th of February 2019 at [Particulars Withhheld] village within Uasin Gishu County the Appellant intentionally and unlawfully caused his genital organ, namely the penis, to penetrate the genital organs of the two complainants. 2.The Appellant pleaded not guilty. The Prosecution called six witnesses, and at the close of its case the trial Court found a prima facie case established and placed the Appellant on his defence, whereupon he gave an unsworn statement and called no witness. The learned trial Magistrate, Hon. D. Milimu (Resident Magistrate), convicted the Appellant on both counts, and upon conviction he was sentenced to serve life imprisonment for count I in which he defiled a victim JJ aged 9 years old whereas conviction on Count II the victim MC was aged 12 years a sentence of 30 years imprisonment was in addition to life imprisonment imposed by the learned trial Magistrate. 3.Being aggrieved by the conviction and sentence, the Appellant lodged this appeal, brought under Sections 349, 350(1) and 351 of the Criminal Procedure Code, and prosecutes it in person from the Eldoret G.K. Prison. 4.Four grounds are urged, which may be summarized as follows: that the trial Court erred in failing to hold the charge sheet fatally defective; that it erred in failing to observe that the evidence of the witnesses was inconsistent and uncorroborated; that it erred in failing to hold that the evidence of identification and recognition was not conclusive; and that it erred in shifting the burden of proof from the Prosecution to the Appellant when the evidence failed to link him to the offence. The Appellant prays that the appeal be allowed, the conviction quashed, the sentence set aside and the Appellant set at liberty. The Prosecution Case 5.PW1, the first complainant JJ, testified that on the material afternoon she was in the company of her friend MC , the second complainant, when the Appellant, who was herding cattle, called them, held their hands and took them into the forest. She stated that their pants were removed and that they were both defiled, the second complainant being defiled first while she stood by crying, and she thereafter. She described the act of penetration, stated that she cried and threw away her pant and went home, and that upon disclosure they were taken to hospital and P3 forms were filled. She stated that the Appellant was a person she saw herding cattle every day, and she identified him in Court. 6.PW2, the second complainant MC , testified that she had gone to the sugarcane plantation with her friend JJ when they were called and taken to the forest, that their pants were removed and they were defiled, that she was defiled first and described the act of penetration, and that she took her pant and went home, where her mother noticed that she was walking badly and, on inquiry, was told what had happened, following which they were taken to hospital. She stated that she knew the Appellant as she regularly saw him herding cattle for a neighbour, and she identified him in Court. 7.PW3, the first complainant's mother, testified that the two girls, who were friends and habitually walked together, had gone to the sugarcane plantation, and that the following day the girls were seen to be unwell, upon which they disclosed what had happened. She stated that she knew the Appellant, who had been living with her sister, a neighbour, since 2018. 8.PW4, the second complainant's mother, testified that the children had gone to the sugarcane plantation, and that the following day she saw the second complainant walking as though hurt and in pain in her private parts, and was told what had happened. She stated that she had known the Appellant for over two years, as he used to live in a neighbour's house herding cattle. 9.PW5, the examining Clinician, testified that she examined both complainants and filled their P3 forms. On the second complainant she found healed hymenal tears, redness of the labia minora and whitish discharge, and on a high vaginal swab found spermatozoa and high epithelial cells, and concluded that the complainant had been defiled. On the first complainant she found hymenal tears and redness of the labia minora and labia majora, and likewise concluded that the complainant had been defiled. The age assessment reports and the complainants' health records were also produced in evidence. 10.PW6, the Investigating Officer, testified as to the report of the offence, the escorting of the complainants for medical examination, the recording of statements and the production of the documentary exhibits, including the birth records and age assessment reports. The defence 11.The Appellant, in an unsworn statement, testified that the complainantswere lying and that he had not been herding cattle. He called no witnesses. The judgment of the trial Court 12.The learned trial Magistrate framed for determination the following issues: First, whether the complainants were defiled. Second, whether they were defiled by the Appellant, and finally whether the offence had been proved beyond reasonable doubt. 13.On the first question the Court found, on the evidence of the two complainants and the medical evidence of PW5, that both had been defiled. On the second issue, the Court found on the evidence of recognition that the perpetrator was the Appellant, a neighbour known to the complainants and their mothers as one who herded cattle in the locality. With regard to age, the Court found on the charge sheets, the P3 forms, the health cards and the age assessment reports that the first complainant was a child of about nine to ten years and the second a child of about twelve years, so that both were minors. The Court found the defence to be a bare denial that did not displace the Prosecution case, convicted the Appellant on both counts, and he was thereafter sentenced as aforesaid. Analysis and determination Jurisdiction of an Appeal’s Court 14.This being a first appeal, the Court is under a duty to reconsider and re-evaluate afresh the whole of the evidence tendered before the trial Court and to reach its own conclusions, giving allowance for the fact that it did not see or hear the witnesses, as required by Okeno v Republic [1972] EA 32 and Kiilu & Another v Republic [2005] 1 KLR 192. Whether the burden of proof was shifted 15.It is convenient at the outset to restate two governing principles. The first is the burden of proof. As Viscount Sankey L.C. put it in Woolmington v Director of Public Prosecutions [1935] AC 462, there runs through the criminal law “one golden thread”, namely that it is for the Prosecution to prove the guilt of the accused, and the accused bears no burden of proving his innocence. The second is the standard of proof. As stated in Miller v Minister of Pensions [1947] 2 All ER 372, proof beyond reasonable doubt does not mean proof beyond a shadow of doubt, and the law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. 16.There is nothing on the record to suggest that the Trial Court required the Appellant to prove his innocence. The conviction rested upon the strength of the Prosecution evidence, the direct and mutually corroborative accounts of the complainants, the medical findings, and the evidence of recognition, and not upon any weakness in the defence. The Appellant's unsworn denial was considered and found not to raise a reasonable doubt. Consistently with the golden thread affirmed in Woolmington (supra). In criminal law, the Prosecution must prove every element of an offense beyond a reasonable doubt, a standard defined classically in Miller v Ministry of Pensions as a high degree of probability that excludes fanciful or remote possibilities, rather than absolute certainty. The fundamental principles on this standard and burden of proof as founded Sections 107(1), 108, 109 & 112 of the Evidence Act include inter alia the following: Burden of Innocence: The accused does not have to prove innocence; the duty rests entirely on the Prosecution to substantiate guilt. Suspicion vs. Proof: Legal convictions cannot rely on an aggregation of suspicions or strong speculation, no matter how grave the suspicion appears. Benefit of the Doubt: Any lingering, reasonable doubt generated by gaps or inconsistencies in the evidence must be resolved in favor of the accused 17.What does the expression ‘beyond a reasonable doubt’ mean? The term ‘beyond a reasonable doubt’ has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning. A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt. On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high. In short if, based upon the evidence before the Court, you are sure that the accused committed the offence you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.” (See R v Lifchus [1997] 3 SCR 320) 18.This is the threshold issue in this appeal and according to the judgment of the Trial Court she ruled as follows in her judgment dated 29th January 2021:In a nutshell, the Prosecution has managed to prove all the critical ingredients forming the offence of defilement overwhelmingly, beyond reasonable doubt and I find it safe to convict the accused person for the two counts of the offense of defilement contrary to section 8(2) (for the 1st count) and 8(3) for the (second count) of the Sexual Offences Act No. 3 of 2006. 19.This is a case in which prove of beyond reasonable doubt was attained from the evidence both direct and circumstantial from witnesses who were called by the Prosecution for the purpose of establishing the same. The overwhelming evidence pointing to the Appellant as the perpetrator of the crime of defiling the two complainants/victims of the offence. Undoubtedly the Appellant did not provide alternative evidence to controvert the pieces of evidence by the Prosecution. The burden remained on the Prosecution throughout and was discharged. This ground has no merit. Whether the charge sheet was fatally defective 20.The Appellant asserts, in general terms, that the charge sheet was fatally defective, but he does not identify the defect said to be fatal. Examining the charges for myself, each count disclosed the offence of defilement, naming the complainant, the place, the date and the nature of the act, and each was accompanied by an alternative count under Section 11(1). The requirement of the law is that stated in Sigilani v Republic [2004] 2 KLR 480, that an accused should be charged with an offence known in law, disclosed in clear and unambiguous terms. The Court state as hereunder:“The principle of the law governing charge sheets is that an accused should be charged with an offence known in law. The offence charged should be disclosed and stated in a clear and unambiguous manner so that the accused may be able to plead to a specific charge that he can understand. It will also enable an accused person to prepare his defence. 21.A charge sheet is declared defective by a Court when it fails to disclose the essential ingredients of the alleged offence meaning that is vague or ambiguous or if allowed to be the instrument to prosecute the accused it would occasion an actual miscarriage of justice and prejudice the accused’s rights to a fair trial under Article 50 of the Constitution. This should not be confused within minor omissions or technical errors which are generally treated by both the Court and the Prosecutor as curable irregularities unless they mislead the accused. It is now settled law that any of these grounds cited below if established to be present in the entire scope of the charge sheet and particulars of the offence the Court should declare it as a defective charge sheet. Thus: Vagueness and Ambiguity: Lacks clear particulars or essential facts regarding the time, place, or manner of the alleged crime. Omission of Core Ingredients: Fails to state the fundamental statutory elements required to constitute the specific offense. Prejudice to the Accused: Hinders the ability of the accused person to understand the case against them or prepare an adequate defense. Discrepancy with Evidence: Materially diverges from or fails to accord with the evidence collected during the police investigation or committal proceedings. 22.What is curable in the event the charge sheet is found defective during the pendency of the proceedings? Clerical errors, minor misnomers, or missing administrative stamps are typically curable under procedural law such as Section 382 or Section 464 of Criminal Procedure Code if they did not result in a failure of justice. (See also the principles in Nyamai Musyoka v Republic (2014) eKLR). 23.To the extent that the first count was expressed as defilement contrary to Section 8(2) rather than Section 8(1) as read with Section 8(2), the imperfection is one of form. The substance of the offence was plainly disclosed, the Appellant understood the charges he faced and cross-examined the witnesses, and he has shown no prejudice. Any such defect is curable under Section 382 of the Criminal Procedure Code, which provides that no finding shall be reversed on account of an error or irregularity in the charge unless it has occasioned a failure of justice. I am satisfied that no failure of justice or prejudice or miscarriage of justice arose, and the first ground of appeal therefore fails. Whether the evidence was inconsistent and uncorroborated 24.The complaint that the evidence was inconsistent is not made out on the record. The two complainants gave consistent accounts of being called from where they were, taken into the forest, and each defiled in the presence of the other, and each spoke of the act of penetration. Their accounts were corroborated by the medical evidence of PW5, who found hymenal tears in both, redness of the labia, and, in the case of the second complainant, spermatozoa on the high vaginal swab, a finding strongly probative of penetration. The mothers, PW3 and PW4, spoke to the girls' distress and to the disclosure made to them, and the Investigating Officer, PW6, spoke to the reporting and the documentary exhibits. The evidence, far from being uncorroborated, was mutually supporting, each complainant being an eyewitness to the defilement of the other. 25.In any event, corroboration is not a condition of a conviction for a sexual offence. 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.” 26.As the Court of Appeal observed in JWA v Republic [2014] eKLR, the Courts are no longer hamstrung by the requirement of corroboration where the victim of a sexual offence is a child, once satisfied that the child is truthful, and “corroboration… is not mandatory.” The trial Court addressed the credibility of the complainants and found them truthful, a conclusion properly open to it. Penetration having been established both by the direct evidence of the complainants and by the medical findings, this ground fails. 27.A child witness is competent under Section 124 as read with 125 of the Evidence Act to testify before a Court of law. Her/his evidence can only be discarded by the Court if material contradictions show the child witness is wholly unreliable or deeply tutored. I consider these to be the guideline principles in so far as evidence of the child is concerned before Court of law: No Blanket Rejection: Age is never a bar to testify; Courts must test if the minor understands questions and gives rational answers. Evaluating Consistency: Minor variances, normal fears, or fading memory details do not destroy an otherwise credible narrative. The Tutoring Test: Courts look for inherent triggers of tutoring; if the core statement remains solid and natural, minor discrepancies do not vitiate the trial. Need for Caution: Because children are impressionable, judges apply a heightened test of close scrutiny rather than outright dismissal. 28.This Court takes judicial notice that children in Kenya experience gruesome crimes more specifically under the Sexual Offences Act for which they are the main actors or victims and as per the law established they are required to testify before the Court of law as provided for in the law of Evidence Act. Notwithstanding that, re-living the psychological traumatic experience the rigors of the criminal justice process in Kenya which is also adversarial makes things very challenging for the children witnesses. However, their evidence in a criminal trial is indispensable. The position of children testimonies in our legal system faces serious challenges one may be because of illiteracy or the difficulties to understand how Courts works and what it means to be a truthful witness. I can state firmly that there are no standard procedures of briefing witnesses who are vulnerable and have no idea about the process of justice dispensation. The evidence taking before a Court of law in a criminal trial is participatory as between the prosecutor and the defence commonly referred to as examination in chief, Cross Examination by the defence and further Re-Examination by the Prosecution Counsel. The learned author Charles Stafford once remarked about the child as a witness captured 37 Washington Law Review 303 (1962) as follows:“Children are often in the right place at the right time to see people, things and events that are never witnessed by adults. As we know from experience, they often overhear things that adults have felt were said in confidence or were said because they felt there were no witnesses. While this faculty is often a mere source of annoyance to the adult members of the family, it may have considerable impact upon the outcome of some legal action.” 29.In the criminal justice administration at various levels of Court involved in trials against accused people’s credibility of witnesses is key and the same is generally assessed around the following criteria:“Honesty: Is the witness making a good faith effort to fully and accurately give evidence, or conversely, is the witness deliberately lying or at least not disclosing certain information?Memory: How accurate and complete is the memory of the witness?Suggestibility: Has the memory of the witness been distorted as a result of conversations or questions with others?Communication Ability: How well does the witness understand the questions and how well is the witness able to communicate about the matters at issue?” 30.In the judgment of the Trial Court weightage of credibility of witnesses was assessed and found that each of their testimony was truthful and honest as to the events leading to the commission of the offence by the Appellant in this case. That reliability evidence was never challenged by the Appellant in a manner which could dislodge their testimonies before the Court of Law. It is also trite that a trial Court has a better view of examining the demeanor of witnesses so as to make an appropriate finding as to their credibility and reliability. I have reviewed the trial record and I find no discrepancy or inconsistencies which could render the conviction unreliable. The elements of the offence to be proven First it is all about penetration of the Appellant against his victims 31.The offence of defilement is created by Section 8 of the Sexual Offences Act provides expressly as follows:(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.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if—(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5)(b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the Court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children’s Act, 2001 (No. 8 of 2001).(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity.Therefore “a person who commits an act which causes penetration with a child is guilty of an offence termed defilement,” penetration being defined by Section 2 as the partial or complete insertion of the genital organs of one person into the genital organs of another. From another comparative jurisdiction within the common law heritage Section 3 of the Sexual Act of India it defines penetrative sexual assault to constitute the following elements if: a. He penetrates his penis, to any extent, into the vagina, mouth, urthera or anus of a child or makes the child to do so with him or any other person; b. He inserts, to any extent, any object or a part of the body, not being the penis, into the vagina or urthera or anus of the child or makes the child to do so with him or any other person; or c. He manipulates any part of the body of the child so as to cause penetration into the vagina, urthera, anus or any part of the body of the child or makes the child to do so with him or any other person; d. He applies his mouth to the penis, vagina, anus, urthera of the child or makes the child to do so to such person or any other person. The Prosecution is required to prove three ingredients, namely the age of each complainant, penetration, and the identity of the Appellant as the perpetrator. The applicable sentence turns on age: by Section 8(2), defilement of a child aged eleven years or less attracts imprisonment for life, and by Section 8(3), defilement of a child between the ages of twelve and fifteen years attracts imprisonment for a term of not less than twenty years. In so far as this element is concerned the trial Court received and admitted evidence of PW1 and PW2 which gave a chronology of events on how they encountered the Appellant who was herding cattle belonging to Kirwa. He sounded them in which they agreed only to be lured into the forest and the Appellant proceeded to commit a sexual act against them in turn. The evidence was found to be consistent by the learned Magistrate as to the date, time and place of the offence. With regard with the evidence of PW2 she testified and told the Court that she was in accompany of PW1 when they were asked by the Appellant that they join him as he was looking after cattle in the same locality. According to the evidence innocent as the request by the Appellant was because he was known to them prior to this material day, they moved along with him to a forest only to be confronted with the act of defilement from the Appellant. Their respective testimonies were supported by the medical evidence of Dr. Taban who filled the P3s both dated 26th February 2019. It is that evidence which facilitated in the decision making of the Learned Trial Magistrate who established the element of penetration had been proved beyond reasonable doubt. The age of the complainants and the soundness of the convictions 32.In sexual offence cases involving minors such as defilement proving the exact age of the victim is a foundation requirement of the law because it is tied with the issue of punishment to be imposed at the end of the trial in the event the accused is found guilty of the offence. The Court in Kaingu Kasomo vs Republic (2010) held as follows:Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim”.In furtherance to this Rule 4 of the Sexual Offences Rules provides that:“When determining the age of a person, the Court may take into account evidence of the age of that person that may be contained in a birth certificate, any school documents or in a baptismal card or similar document."Hence also in PMM vs Republic [2018] eKLR it was held thus:“…whilst the best evidence of age is the birth certificate followed by age assessment, the mother’s evidence of the complainant’s age together with the combination of all other evidence available can be relied on to determine the age of the complainant…" 33.Interestingly my reading of this record raises a lot of concerns on how Trial Courts mix up issues on age assessment. What the case law provides are various parameters in which the Prosecution can adduced evidence to prove the age of a complainant/victim of the defilement. It is not a mixed grill of evidence or hybrid evidential material. The age assessment has got to be individualized of the circumstance of each individual case before the trial Court. It is the duty of the Investigating Officer to place reliance to any of the parameters outlined in the authorities which have construed and interpreted this element for purposes of proof beyond reasonable doubt. What is my view on this matter, there are on record the vaccination cards of one MC and JJ which is a tool internationally recognized for any birth child whom must mandatorily be vaccinated or immunized immediately a declaration is made before a hospital or any such facility. It is a must the biological mother or the guardian to provide the exact date when the child was born and has nothing to do with the age assessment or approximation of the age of his/her birth. With this documentary evidence of the child health card any other medical assessment to me is a waste of resources and medical time. This confirmation by scientific evidence has never and can never be the exact age of a child or a person. The best such evidence can do is to give an acceptable range of the age of that person who has presented herself/himself that the age can be determined so that he or she can use it to procure certain documentation. The Court was not told that the biological mother did not know the age of her children to warrant a medical assessment. The gestation and birth of humans as generally known in law between a man and a spouse is a matter within the conception of a mother. This is what the mother PW3 told the Court tracing the birth date of her children who are complainants to this case. Therefore, for the purpose of this appeal, the correct ages of the two complainants must remain to be the one documented in the vaccination card being that MC was born on 28th May 2006 computing her age at the time of offence as 12 years 8 months whereas for JJ it is stated to be born on 27th August 2008 computing her age at the time of the offence as 10 years 5 months. 34.With regard to the medical assessment one for MC dated 12th June 2019 the estimated age was placed to be 11 to 12 years while the one of JJ estimated age was 10 years. It is therefore trite that a medical assessment age of a child or an adult cannot be exacting. The major global health care organization states that the chronological age cannot be precisely determined through medical procedures. Generally speaking, from the legal perspective medical age estimation is an inexact science. It provides a statistical estimate and not a definitive birth date. It is heavily influenced by biological variability, genetics and socioeconomic factors. I have been made to understand that medical assessment measures biological and skeletal maturity, which may not correspond with chronological age, thereby resulting in a distortion of the assessment of biological age. Thus: Malnutrition: Severe lack of food delays bone and tooth development. Institutionalization: Children raised in orphanages or high-stress environments often show developmental delays. Socioeconomic Status: Poor health infrastructure and poverty slow down physical growth markers. Ethnic Variations: Most standard reference charts are based on specific Caucasian populations and fail to accurately reflect other ethnic groups 35.Cumulatively on all this definition dimension from both oral and documented evidence, the countdown of the exacting age of both minors is deducible from the health vaccination cards as correlated by their respective evidence with a minor variation on the mathematical computation of the cluster of the birth date, I would therefore in my view find the assessment of the health card to be appropriate to be applied in so far as the ages of the two minors are concerned. Incidentally the variances do not prejudice or occasion an injustice to the Appellant when interpreting and applying the provisions of Section 8(2) and 8(3) of the Sexual Offences Act. The other documents can only be said to be collateral to the main evidence from the health card. It is therefore safe to affirm that the age of the two minors was and is never in dispute. Whether identification and recognition were conclusive 36.This was not a case of the identification of a stranger but one of recognition. Both complainants knew the Appellant as a neighbour who herded cattle in their locality and whom they saw regularly, PW1 saying she saw him every day; PW3 knew him as one who had lived with her sister since 2018, and PW4 had known him for over two years. The offence was committed in the afternoon, in conditions favourable to observation, and the complainants named the Appellant and identified him in the dock. On the evidence of recognition, the Court of Appeal in Anjononi & Others v Republic [1980] KLR 59 held that recognition is “more satisfactory, more assuring, and more reliable than identification of a stranger,” because it rests on the previous personal knowledge of the person recognized. 37.The Court is nonetheless enjoined to test such evidence with care, for even honest recognition may occasionally be mistaken, and, as was cautioned in Wamunga v Republic [1989] KLR 424, evidence of identification or recognition must be examined carefully to be sure that the circumstances were favourable and free from the possibility of error before it can found a conviction. Applying that caution here, the recognition was of a person long and well known to the complainants and their mothers, in daylight, and named at once. The Appellant in this case was already known to the complainants prior to the commission of the crime of defilement. In such a case the issue is one of direct recognition rather than the identification of a Stanger. Therefore, it can be stated without any point of contradiction that an identification parade is only vital when the witness did not know the suspect before and first encountering him/her during the fleeting moments of the crime. In essence where a prior relationships or familiarity exists formal parade procedures are redundant. In so far as this appeal is concerned there is no room for a mistaken identity of the Appellant. This ground too fails. Sentence 38.It has been stated severally by Superior Courts that sentencing is a function and mandate of the trial Courts who exercise discretion based on various factors as stipulated in the past precedence, Policy Guidelines of the Judiciary and the statutory provisions in which Parliament has given a prescription on the nature and sentences to be imposed by the Courts. The legislative scheme of the Sexual Offences Act provides for distribution of sentences based on the age of the complainants/victims. In the instant appeal there were two Complainants/Victims stated to have been defiled by the Appellant as premised in the charge sheet. 39.From the proceedings and judgment from the trial Court the first victim JJ was at the time of the charge sheet stated to be nine years but on computation of the health card her exact age has been established to be 10 years 5 months placing her within the bracket of Section 8(2) of the Sexual Offences Act. The Learned Trial Magistrate on conviction of the Appellant on regard on Count I being defilement contrary to Section 8(1) of the Act made a finding of guilty of that offence against the Appellant and proceeded to convict and sentence him to a life imprisonment as provided for under 8(2) of the Sexual Offences Act. In the second Count of defilement which on the same day being on the 17th of February 2019 the Appellant was stated to have defiled MC a minor aged 12 years. This means that the penalty for this offence is provided for under Section 8(3) of the Act. The learned trial Magistrate having established that the Prosecution case had been proven beyond reasonable doubt on the key elements as per the law establish entered a verdict of guilty against the Appellant and thereafter proceed to convict and sentence him to a custodial sentence of 30 years. The minimum sentence is set at 20 years by Parliament. The Appellant is aggrieved with these two modes of sentences and to review them downwards he argued and submitted that the sentences by their very nature are harsh and punitive. 40.The law in this area is settled to the extent which an appeal’s Court can review the sentence of a trial Court. The illuminating principles are well outlined by the Court of appeal in the Bernard Kimani Gacheru vs Republic [2002] eKLR in which it held as follows:“It is now settled law, following several authorities by this Court and by the high Court, that sentence is a matter that rests in the discretion of the trial Court. Similarly, sentence must depend on the facts of each case. On appeal, the appellate Court will not easily interfere with sentence unless, that sentence is manifestly excessive in the circumstances of the case, or that the trial Court overlooked some material factor, or took into account some wrong principle. Even if, the appellate Court might itself not have passed that sentence, these alone are not sufficient grounds for interfering with discretion of the trial Court on sentence unless, anyone of the matters already states is shown to exist.” 41.This position was also taken by the persuasive case in S vs Malgas 2001 (1) SACR 469 (SCA) at para 12 where it was held that:“A Court exercising appellate jurisdiction cannot, in the absence of material misdirection by the trial Court, approach the question of sentence as if it were the trial Court and then substitute the sentence arrived at by it simply because it prefers it. To do so would be to usurp the sentencing discretion of the trial Court...However, even in the absence of material misdirection, an appellate Court may yet be justified in interfering with the sentence imposed by the trial Court. It may do so when the disparity between the sentence of the trial Court and the sentence which the appellate Court would have imposed had it been the trial Court is so marked that it can properly be described as “shocking”, “startling” or “disturbingly inappropriate" 42.The Courts in Kenya particularly Superior Courts possess the power to review any judgment or order pronounced by the Subordinate Courts or by it governed by structured procedural rules. When reviewing criminal sentences particularly capital punishments or severe terms a Superior Court like the High Court apply established principles centered on proportionality, individualization and fundamental fairness. Essentially sentencing in Kenya’s criminal justice system is a nuanced and evolving aspect of judicial discretion that balances deterrence, retribution and rehabilitation. There is also formalized sentencing guidelines but the judicial discretion remains pivotal often resulting in varied for similar offences. In Kenya, the Courts have clarified that life imprisonment means imprisonment of the convict’s natural life unless remitted or commuted by the Executive under Article 133 of the Constitution on the prerogative of mercy. This interpretation underscores the severity of life sentences in Kenya particularly under the Sexual Offences Act contrasting it with practices in some other jurisdiction where life sentences are often capped at a specific number of years dependent upon other factors like the age of the offender. The way I see it the sentencing framework within Kenya’s criminal justice system is underpinned by several theoretical perspectives which internally seek to balance the objectives I mentioned elsewhere in this judgment being deterrence, rehabilitation and societal protection. There is quite some emphasis that punishment should be proportionate to the crime committed by the offender emphasizing moral culpability and just desserts. 43.Based on the above analysis the question which must be answered by this Court is whether in shaping the sentencing landscape and balancing the objectives which governed exercise of judicial discretion and the jurisprudential dicta on this matter there is room and jurisdiction for this Court to review the sentences imposed by the Trial Courts. Given the recent progressive jurisprudence as espoused by the Supreme Court of Kenya in the cases of R v Joshua Gichuki (2024) eKLR and R v Julius Kitsao Manyeso (2015) eKLR the Court affirmed that mandatory life sentences prescribed under Section 8(2) of the Sexual Offences Act for defiling of a child aged 11 years or less is fully constitutional and lawful. The Court went further to state that Trial Courts or Appeal Courts have no legal leeway to hand down lesser custodial sentence below the specific floor set under Section 8(2) of the Sexual Offences Act. 44.This mandatory minimum penalty is often seen to conflict with the fundamental principles of sentencing and the doctrine of judicial discretion. It can be said that they contribute to the respect of the law and a maintenance of a justice society when it comes to Sexual Offences Act and gender-based violence. I bear in mind that the appropriate sentence for a crime in Kenya is a hotly contested issue. There are some people from other quarters who feel that more weight should be accorded by Judges and Magistrates when sentencing offenders to the objectives of deterrence and punishment while the other members of our society want the Courts to focus in rehabilitation of offender. In summary the purpose of sentencing as it is practice at all levels of Courts is deducible to the following:a.To denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;b.To deter the offender and other persons from committing offences;c.To separate offenders from society, where necessary;d.To assist in rehabilitating offenders;e.To provide reparations for harm done to victims or to the community; andf.To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. 45.I am being asked to review the sentence by the Appellant but my brief answer is that sentence review is not a mechanical process but a Court process in which Judicial discretion is called upon to look at a criminal punishment again within the principles in the Bernard Gacheru Case (supra). In addition to what the Court of Appeal illuminated the highlights on review include legal errors, new evidence, time spent in pre-trial custody that was left out, rehabilitation and proportionality. As for the Appellant to this appeal none of these grounds can be availed to him in view of the provisions of Section 8(2) of the Sexual Offences Act and the precision principles by the Supreme Court in connection with the mandatory and minimum sentence being constitutionally legal and valid and that no Court should deviate by correcting the law making of the Legislature. The appeal on sentence as adverted to by the Appellant fails and the same is dismissed for want of merit in view that the Appellant is serving sentence on two counts based on different legislative scheme, it is the view of this Court on closer scrutiny the custodial sentence of 30 years as much as it has been upheld as a lawful sentence in consonant with Section 8(3) of the Act my advisory opinion to the correctional facilities is to have it in abeyance as the Appellant shall be serving the life imprisonment sentence imposed within the context of Section 8(2) of the same Act. These are the orders of this Court. DATED, SIGNED AND DELIVERED VIRTUALLY AND PUBLISHED VIA CTS THIS 20TH DAY OF AUGUST 2026._________________________\R. NYAKUNDIJUDGE