https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6340

DMJ v Republic (Criminal Appeal E013 of 2025) [2026] KEHC 6340 (KLR) (11 May 2026) (Judgment) Neutral citation: [2026] KEHC 6340 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E013 of 2025 DKN Magare, J May 11, 2026 Between DMJ Appellant and Republic Respondent (Being an appeal from the judgment of the trial court, Hon. S. K. Nyaga SPM, in Kenol MCSO No. E005 of 2024, delivered on 14-01-2025.) Judgment 1.This appeal arises from the judgment of the trial court, Hon. S. K. Nyaga SPM, in Kenol MCSO No. E005 of 2024, delivered on 14-01-2025. The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, at 10.02.2023 between 0800 hours and 0900 hours at ithangi/Kakuzi Sub-County within Muranga County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of ANN, a child aged 9 years. 2.There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars of the offence were that the Appellant, at 10.02.2023 between 0800 hours and 0900 hours at Ithangi/Kakuzi Sub-County within Murang’a County of the Republic of Kenya, intentionally and unlawfully touched the vagina of ANN, a child aged 9 years. 3.The Appellant was arraigned in court on 13.02.2023. He denied the charges. The appellant was granted bond of Ksh. 300,000/= with one surety of the same amount. He was supplied with witness statements and supporting documents. 4.Upon full hearing, he was convicted and sentenced to life imprisonment. 5.The Appellant, aggrieved, lodged this Appeal vide a Petition of Appeal dated 17th January, 2025 on the following grounds that:1.The learned trial Magistrate erred in law and fact in ignoring a cardinal principal in criminal law and procedure that the burden of proof lies on the prosecution and that they must prove each and every ingredient of the charge beyond reasonable doubt which they did not dispense.2.The learned trial magistrate failed to test the evidence of the prosecution witnesses and caution the circumstances thereby convicting on flimsy, inconsistent and evidence that was not watertight enough which was marred with contradiction.3.The learned trial Magistrate erred in law and fact by basing a conviction in relying on the suspicious and fictitious evidence of witnesses.4.The learned trial magistrate erred in law and fact by failing to consider that appellant herein was of little knowledge coupled with mental issues which made him be admitted at Mathari Mental Unit and this if well evaluated; would have necessitated for probono legal assistance.5.The appellant was not afforded the services of an advocate at the onset of his trial thus compromising his right to fair trial as provided for in Article 50 2(g and h) taking into consideration that he is illiterate and could not understand matters of law thus there was miscarriage of justice.6.The learned trial magistrate erred in law and fact by passing a sentence without considering the time I spent in remand as elucidated under section 333(2) of the CPС.7.The learned trial magistrate erred in matters of law and facts by not calling for presentencing report as required for by the Judiciary Sentencing Policy Guidelines 2023.8.The learned trial magistrate erred on both law and facts by meting a minimum mandatory harsh sentence without considering the appellant plausible mitigation there by contravening Article 50(2) (q) of the constitution and other binding jurisprudences.9.More grounds to be adduced on the hearing of this appeal once the appellant receives certified typed proceedings. Submissions 6.The appellant submitted that the court failed to consider the mental status at the time of commission of the offence. 7.The appellant relied on the case of Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), where the court of appeal posited as follows:It has been said over and over again that the first appellate court has the duty to revisit the evidence tendered before the trial court, afresh analyse it, evaluate 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 to give allowance for that. The well known case of Okeno vs Republic (1977) EA 32 which sets out that principle has been referred to in several decisions of this Court and of the High Court. 8.They posited that the court proceeded to convict without proof of ingredients. The evidence of PW4 cast doubt on the minor’s clothes. Further that the court failed to consider the provisions of section 164 of the criminal procedure code at trial and sentencing. The appellant claimed to be 100 years old but the court proceeded without confirming fitness to stand trial. He prayed for the finding of guilty but insane. He lamented that the court did not appreciate the distention. Resulting in an unfair punishment. 9.He posited that the appellant was found unfit and taken for treatment for two months and it is only a year late that he was found fit to plead. He posited that the entire trial was a nullity. It was his submission that this was a misdirection in law. He prayed for a special verdict under section 166 of the Evidence Act. 10.He submitted that the court failed to have regard to Article 50(2) (c), (g) and (h) of the Constitution. He stated that the right to be informed of his right to counsel and the right to be represented were non-derogable. He posited that he had a right to choose. He requested that the court should distinguish the right imposed under 50(2) h on the right to representation. He stated that the duty is mandatory and immediate. 11.He also submitted that the ingredients of the offence were not proved, that is age, penetration, and identity of the perpetrator. Reliance was placed on the case of Hadson Ali Mwachongo Vs. Republic [2016] eKLR. He submitted that the minor stated that she was 5 years, the age assessment placed her at 9-10 and the mother at 9 years and no exact date of birth was given. He stated that this reflected uncertainty. He stated that age was not supported by concrete documentary evidence. PW4 also did not disclose the age of the minor and was not the maker of the document. Reliance was placed in a civil appeal, which has no relevance to the case at hand. he stated that the child could as well be 12 years. 12.He submitted that he agreed with the decision of the court of appeal in the case of Mark Oiruri Mose v Republic [supra] as regards penetration, where it was stated as follows:In any event the offence is against penetration of a minor and penetration does not necessarily end in release of sperms into the victim. Many times, the attacker does not fully complete sexual act during commission of the offence. That is the main reason why the law does not require that evidence of spermatozoa be availed. So long as there is penetration whether only on the surface, the ingredient of the offence is demonstrated, and penetration need not be deep inside the girl's organ. 13.The court was invited to find that there was no evidence of penetration. He stated that he expected bruises in the genitalia and they were not available. This was a misdirection on part of the appellant. What was there was more than bruises, there were lacerations. The appellant posited that no-one witnessed the offence being committed hence the evidence of a single witness ought to be taken with caution. On reliance on section 124 of the Evidence Act, the appellant submitted that it was a misdirection. Reliance was made on the decision of Omumbo v Republic [2008] KECA 315 (KLR) and Michael Odhiambo v Republic, Criminal Appeal No. 280 of 2004 (unreported). The cases are of no relevance to the question at hand. 14.On sentence he submitted that the power of the high court to review sentences is not curtailed, by the decision of Republic v Manyeso [2025] KESC 16 (KLR), as to bar resentencing. He submitted that this is breach of individualized justice. By imposing predetermined sentence determined by statute stripped the court of its inherent discretion. The rest were AI generated quotes which the court cannot take into consideration. 15.The state filed submissions dated 24.12.2025 in opposition to the appeal. It was submitted that five witnesses testified and the case was proved beyond reasonable doubt. It was their position that the court failed to consider mental status. They stated that this ground was not borne out of the record. They submitted at some stage the prosecution applied for mental assessment which was carried out. When the appellant was found fit to resume the court gave directions under section 164 of the Criminal Procedure Code. These directions were proper and fit according to the law. 16.They stated that the appellant was mentally incapacitated the report confirmed his fitness to plea. The plea for insanity is not legally tenable. They submitted that such a plea is tenable in circumstances obtainable under section 12 of the penal code and not these circumstances. There was no evidence adduced at the trial showing the appellant was suffering at the trial at the time of defiling them minor. 17.It was submitted that temporary insanity during the trial does not relate to the commissions of the offence. 18.It was submitted that the mere absence of an advocate does not vitiate the trial pursuant to Article 50(2) (c ), (g) and (h) of the Constitution. On the question of defilement not being proved, they submitted that it was proved beyond reasonable doubt. On the question of age, it was shown that the minor was between 9-10 years. The minor stated that she was five but un grade 3. The complainant’s mother testified that the minor was 9 years old. Reliance was placed on the decision of the Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR, stated as follows in respect of proving the age of a victim in cases of defilement:“... the question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 19.They submitted that the minor was proved to be defiled by the evidence of PW5, which showed that the injury was hours, the victim was in soiled school uniform, with a laceration on the lower side of the vaginal opening, hymen was recently broken and she had bloody foul sell discharge from the genitalia, white in colour. The minor confirmed that the appellant inserted his penis into her vagina. They also submitted on consent, which is irrelevant in matters of this kind and I need not address the same. 20.It was also confirmed by PW3 who witnessed the incident and made a citizen arrest. On life sentence, they submitted that it is a mandatory minimum sentence. Evidence 21.The minor was taken though voir dire and interested in giving unsworn evidence. The minor gave evidence that she was sent from school to go and get PTA money. She found her mother and she was crying. Ma had held her badly by force and she had not fully recovered. The court noted that the child was crying. M laid on top of her and has sex with her. They had met with the appellant on the road and pulled her to a thicket near the road. The appellant pulled up her school uniform. He removed her panty and blue stockings and had sex with her. He lay on top of the witness as she lay on her back. The appellant removed his trouser and underwear halfway and lay on top of her with his whole body. He inserted his penis into her vagina. She had a bloody discharge. 22.Mungai found him on the act and took then to Kahuku police post and found a police officer. She was taken to hospital and examined. She felt pain. She was not cross examined, though the appellant was given an opportunity to do so. He identified the appellant on the dock. 23.PW2 was EN, is the minor’s mother. The minor was on 21.12.2013. She was 9years old. On 10.2.203 she was called by the deputy headteacher that the minor had been found with a man. The minor had come for money but was told to go back so that she could pay on Monday. They went to the assistant chief and found the complainant and the appellant. She took the minor to the hospital. The panty was blood stained. The witness washed the panties. 24.They went to Ithanga police station and later to Ithanga hospital. They were issued with a P3. The child was treated. The minor told her that the met the appellant who is nicknamed Makoni when she as from school and he defiled her. The accused had HIV but the minor was given medication, PEP. The child was under medication, walking with difficulties and had not yet healed. She identified the P3, PRC, treatment notes. She was to take the daughter for HIV test to confirm whether she was infected. The appellant was a neighbour and had a good relationship. He identified the appellant on the dock. She was not cross examined, though the appellant was given an opportunity to do so. 25.PW 3 was MN a watchman in a nearby primary school. She knew both the complainant and the appellant. On 10.2.2023, he saw the accused and the child at 9.00am at a bridge. I saw the child pulling down a dress and her trouser was halfway. The accused was half dressed. I took the child to the deputy teacher who told me the case is a police case. I went with the child, the father and the appellant to the headmen and went to Kaguku police post. the child knew him as the school watchman. he asked the accused to dress upstretched was crying. He identified the appellant on the dock. He was not cross examined, though the appellant was given an opportunity to do so. 26.PW4 was Simon Karanja Muturi a registered clinical officer from Ithanga health centre. He produced a document under section 77 of the evidence on behalf of nelson Kabati. A colleague after being examined on the suitability to tender the evidence. The appellant had no objection. 27.He produced the P3 for ANN, who was taken to the hospital on 10.2.2023, with a history of defilement on the same day. The clothes were soiled but with no blood stains. She had lower, abdominal pains, scared and angry. The hands and were not able to be straights. She could not stand properly. The age of injury was hours. She had the injuries on lower side and the right side of the vaginal opening, hymen was recently broken and bloody foul-smelling discharge from the external genitalia, white in colour. The high vaginal swap was bloody noted pus cells laceration of vaginal opening. tests carried out and results were VDRL negative, urine test bloody, HIV Negative. The child was traumatized and emotionally unstable. Referred for counselling. 28.Degree of injury was harm. She was given treatment. All medical documents were filled by one person and they tallied. He produced treatment notes, PRC form, and p3 form. He was not cross examined, though the appellant was given an opportunity to do so. He concluded that the victim was defiled. 29.PW4 was PC (W) Penina Njau stationed at Ithanga police station testified on oath that on 10.2.2023, she received a call from the area assistant chief. The father and mother of PW1 went to the station accompanied by a watchman and the appellant. They informed the winters that the watchman was heading home at about 0900 hours about 300m, found the complainant and the appellant at a trench. The appellant’s trouser was half warn and the complainant sat next to him. The accused was sked by the watchman to go to the school and explain why he had his trousers pulled down. He was asked to the duo to the assistant chief and call the parents. The child was shocked, and a booked a report of attempted defilement. They took the complainant to hospital and confirmed she was defiled. 30.The complainant was issued with a p3 and taken to hospital to be filled. She visited the scene but it was disturbed. She recorded the statement and took the minor to thika level 5 for age assessment. The minor was about 9-10 years. The accused was placed in the cells and later charged. The age assessment report was produced as exhibit 4. 31.The minor was shocked and could not talk until 2 days later, when she explained what happened. She stated that she had been sent away for PTA money the deputy head teacher and found parents had no money and went back to school. She met m, the appellant who removed her clothes, stocking; she had worn a dress uniform. She felt pain and cried. Then the watchman met them. The P3 form confirmed she was defiled. He identified the appellant on the dock. She was not cross examined, though the appellant was given an opportunity to do so. 32.The appellant was placed on his defence and section 211 of the criminal procedure code was complied with. He opted to give sworn evidence. He stated that he was 100 years old. The court stepped him down for mental assessment. 33.A mental assessment showed that he was not fit to plead. He was taken to Mathare National Referral Hospital and continued with treatment until 7.1.2025, when he was found to have become fit to plead. 34.The court took the position that the matter was to proceed under Section 164 of the Criminal Procedure Code from where it had reached. section 164 of Criminal Procedure Code provides as follows:Wherever a trial is postponed under section 162 or section 280, the court may at any time, subject to the provisions of section 163, resume trial and require the accused to appear or be brought before the court, whereupon, if the court considers the accused to be still incapable of making his defence, it shall act as if the accused were brought before if for the first time. 35.On the other hand, section 162 of the Criminal Procedure Code provides as follows:(1)When in the course of a trial or committal proceedings the court has reason to believe that the accused is of unsound mind and consequently incapable of making his defence, it shall inquire into the fact of unsoundness.(2)If the court is of the opinion that the accused is of unsound mind and consequently incapable of making his defence, it shall postpone further proceedings in the case.(3)If the case is one in which bail may be taken, the court may release the accused person on sufficient security being given that he will be properly taken care of and prevented from doing injury to himself or to any other person, and for his appearance before the court or such officer as the court may appoint in that behalf.(4)If the case is one in which bail may not be taken, or if sufficient security is not given, the court shall order that the accused be detained in safe custody in such place and manner as it may think fit, and shall transmit the court record or a certified copy thereof to the Cabinet Secretary for consideration by the President.(5)Upon consideration of the record the President may by order under his hand addressed to the court direct that the accused be detained in a mental hospital or other suitable place of custody, and the court shall issue a warrant in accordance with that order; and the warrant shall be sufficient authority for the detention of the accused until the President makes a further order in the matter or until the court which found him incapable of making his defence orders him to be brought before it again in the manner provided by sections 163 and 164. 36.Further, section 280 of the of the Criminal Procedure Code provides as follows:(1)If an accused person being arraigned upon an information stands mute of malice, or neither will nor by reason of infirmity can, answer directly to the information, the court may order the Registrar or other officer of the court to enter a plea of "not guilty" on behalf of the accused person, and plea so entered shall have the same force and effect as if the accused person had actually pleaded it; or else the court shall thereupon proceed to try whether the accused person be of sound or unsound mind, and, if he is found of sound mind, shall proceed with the trial, and if he is found of unsound mind, and consequently incapable of making his defence, shall order the trial to be postponed and the accused person to be kept meanwhile in safe custody in such place and manner as the court thinks fit, and shall report the case for the order of the President.(2)The President may order the accused person to be confined in a lunatic asylum, prison or other suitable place for safe custody. 37.The appellant resumed his hearing. Upon being requested on how he wished to proceed he opted to keep quiet. The court analyzed the evidence and found him guilty. In mitigation, he admitted the offence in the most subtle way. He stated that:I pray for forgiveness. It was an accident committing the offence 38.The court sentenced the appellant to life imprisonment as per section 8(2) of the sexual offences Act. this resulted in this appeal. Analysis 39.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 40.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 41.The legal burden is the burden of proof, which remains constant throughout a trial. According to established principles, it rests upon the prosecution to prove the guilt of an accused person beyond reasonable doubt. This burden does not shift to the accused, save in a few exceptional statutory instances where the law expressly provides otherwise. According to Halsbury’s Laws of England, 4th Edition, Volume 17, paras 13 and 14:The legal burden is the burden of proof which remains constant throughout a trial; it is the burden of establishing the facts and contentions which will support a party’s case. If at the conclusion of the trial he has failed to establish these to the appropriate standard, he will lose. The legal burden of proof normally rests upon the party desiring the court to take action; thus a claimant must satisfy the court or tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom substantiation of that particular allegation is an essential of his case. There may therefore be separate burdens in a case of with separate issues. 42.Brennan addressed the standard of proof required in such cases, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 43.Within these boundaries, the Court is obliged to conduct a fresh and thorough examination of the evidence, reassess the credibility of witnesses, and evaluate any conflicting testimony to reach its own independent conclusions. Throughout this exercise, the legal burden of proof remains unchanged, resting entirely on the prosecution to establish the appellant’s guilt beyond reasonable doubt. Only by meticulously scrutinizing all the evidence, while adhering strictly to the statutory framework, can the Court ensure that the appellant is afforded a full and fair reevaluation of the case. 44.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma and can only be justified based on indisputable evidence. 45.The appellant understood the trial and followed. he had been caught in flagrante delicto. Looking at the trial, the appellant understood and followed the proceedings and the nature of the proceedings. Article 50 (2) (g) and (h) of the constitution provides as follows:“(2)every accused person has the right to a fair trial, which includes the right-(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.” 46.I do not find that there was any substantial injustice that was occasioned. The court and the prosecution went out of their way to ensure a very fair trial despite the heinous nature of the offence committed herein. The mere fact that the sentence is likely to be long does not amount to an injustice. It is failure to follow the proceedings. The appellant did not raise any question and when asked about documents he understood the questions and proceeded to answer. At the end of the end he also admitted that he committed the offence. 47.I do not find that there were procedural lapses that vitiated the trial. The trial was properly conducted. the right to be informed of counsel is important but does not vitiate a trial, especially where an accused understands the trial as in this case. It is important that the courts indicate that they have informed the accused of the right to be represented. However, not every failure result in a mistrial. in the case of Manyeso v Republic [2023] KECA 827 (KLR), the court of appeal [P Nyamweya, JW Lessit & GV Odunga, JJA] held as follows:This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated. 48.The above case was appeal and the supreme court in Republic v Manyeso [2025] KESC 16 (KLR) held as follows:similarly, in Gitonga v Republic (Petition 11 of 2017) [2020] KESC 61 (KLR) we faulted the Court of Appeal for entertaining the question of legal representation as one of the grounds of appeal despite acknowledging that it was never raised in the courts below. In our determination, we stated as follows:“It is in that regard not disputed that the question as to whether the appellant’s right to fair trial was infringed by failure to accord him legal representation at the expense of the state or by failure to inform him of the right to legal representation was raised for the first time at the Court of Appeal. We have also interrogated the record before us and confirmed that the issue was neither raised at the Resident Magistrate’s Court nor at the High Court. None of the articles of the Constitution in the present appeal was also the subject of interpretation and application at the High Court….”55.Therefore, we agree with the submissions made by the appellant that the Court of Appeal acted ultra vires when it determined in the first instance whether the life sentence imposed upon the respondent was constitutional. In the same vein, this court cannot delve into the question of the constitutionality of the sentence of life imprisonment, as it has not been raised and determined by the High Court and cascaded through the proper channels 49.The question of legal representation was not addressed by the appellant in the court below. It was not one of the matters that court was deciding. However, this being the first appellate court, it is entitled to look at the legality of the proceedings. the proceedings as a whole upheld the appellant’s right to fair trial there was no substantial loss suffered by the question of the two legal provisions deal with above. 50.The court will now turn to the substantive question of defilement. In dealing with this the court is aware of the dictates of article 53(2) of the Constitution as thus:(2)A child’s best interests are of paramount importance in every matter concerning the child. 51.The case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, addressed the essential elements constituting the offence of defilement, that is, the age of the complainant, proof of penetration, and positive identification of the assailant. 52.These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR are;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 53.I must add that the penetration is of a genital organ, by a genital organ. Penetration by other parts or other organs creates different offences. Section 2 of the sexual offences Act, defines penetration as:penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 54.On the other hand, genital organs are defined in the same section 2 of the said act as follows:“Genital organs" includes the whole or part of male or female genital organs and for purposes of this Act includes the anus; 55.The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:8. (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. 56.The first element, age, is a bit relaxed, especially for children of tender years. It can be proved, though, by a birth certificate, baptism card, or by oral evidence of the child if the child is sufficiently intelligent, or by the evidence of the parents or guardian, or medical evidence, among other credible forms of proof. The key element in proof of age is credibility. In more grown-up children, the difference between young adults and children is razor sharp. The court must be vigilant to prevent adults masquerading as children. The Court of Appeal in Edwin Nyambogo Onsongo vs. Republic (2016) eKLR stated as follows in respect of proving the age of a victim in cases of defilement:... The question of proof of age has finally been settled by recent decisions of this court to the effect that it can be proved by documents, evidence such as a birth certificate, baptism card or by oral evidence of the child if the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. We think that what ought to be stressed is that whatever the nature of evidence preferred in proof of the victim’s age, it has to be credible and reliable. 57.While addressing the question of age of the victims in the Sexual Offenses Act, the court in Kaingu Elias Kasomo vs. Republic, Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:Age of the victim of the 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. 58.The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 5 or 11, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), addressed this aspect as follows:In the case of Kaingu Elias Kasomo V R, Malindi CR. NO. 504 OF 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence.However, as the Court clarified in Tumaini Maasai Mwanya V R, MSA CR.A. No. 364 of 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. 59.It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that:In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. 60.The minor did not possess sufficient intelligence to be placed on oath. She was traumatized and given her tender age, she could say she was 5 years old, probably the lastage she recalled being told. However, she was in grade three. This is for 8-10 years old. Common sense dictates that the evidence of the mother, which was not challenged be allowed, the age assessment was unnecessary. However, the prosecution proceeded and had the age of the minor assessed. This was 9-10 years old. This was a minor of tender years in grade 3. The age was thus properly proved. 61.The same way, the appellant wants the court to believe that he is not 100 years old, it is the same way, the court that observed the minor found that the minor is 9 years. The PRC, P3 and the age assessment showed her age. Concomitantly I find and hold that the court below was correct in finding that the age of the minor was 9 years. I dismiss this limb of appeal. 62.The next question is whether the perpetrator was properly identified. However, in this case, the appellant was a neighbour known to the minor. further he was caught in flagrante delicto by PW 3, MN a watchman in a nearby primary school. She knew both the complainant and the appellant. testified that on 10.2.2023, he saw the accused and the child at 9.00am at a bridge. he took action and never left the duo apart until they were handed over to the police. 63.The incident occurred at 9.00 am. this was thus not just identification but recognition. In the case of Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), the court of appeal [ Madan, Law & Potter JJ A)] posited as follows:The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 64.The court is satisfied that both the appellant and the minor were found in the locus in quo by P3, as such there is no error whatsoever. This court is reminded of the appellant’s words in mitigation. This limb is thus dismissed. 65.The last aspect is penetration. The minor was penetrated by the appellant. She was exposed to HIV, and the parents were awaiting the result of the same. The appellant penetrated the minor, making her unable to walk. The documents that were impugned were properly produced in evidence. They showed severe injuries, disfiguring the minor and completely altering her vaginal morphology. There were laceration noted at 6.0clock extending to the 3’o’clock with bruises noted with hymen recently broken and bloody. There was a whitish foul-smelling discharge at the external genitalia and serous fluid discharge from vaginal orifice. 66.The medical evidence thus showed penetration. Further the minor’s word was also clear. She knew who penetrated her and where. She identified the person who rescue her as PW3. He needs to be considered for a national award for courage for risking his life to rescue the minor. I find and hold that all ingredients were proved. 67.The higher courts need to give more cogent directions on section 124 of the Evidence Act. Courts have used it as if it sets aside the burden of proof and the presumption of innocence. There has always been an understanding that all three conditions of the proviso to section 124 have to be met for a conviction to occur. in this matter, the minor’s evidence was cogent and consistent. Even if the section was used, the evidence available was water tight. In the case of Tekerali s/o Korongozi & 4 Others –vs Rep (1952) 19 EACA 259 the importance of the first report was appreciated, where the court posited as follows:Their importance can scarcely be exaggerated for they often provide a good test by which the truth or accuracy of the later statements can be judged, thus providing a safeguard against later embellishment or the deliberately madeup case. Truth will often [came] out in the first statement taken from a witness at a time when recollection is very fresh and there has been no opportunity for consultation with others. 68.There was no break of the chain of handling the appellant. after being caught in flagrante delicto by PW3, whose evidence was also consistent, the appellant was handed over to the police and them minor was taken for examination. the evidence was consistent and there were no inconsistencies. the case was thus proved beyond reasonable doubt. 69.The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life years imprisonment. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows:11.Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed12.Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below.13.The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 70.Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [supra , where is stated as follows:Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:94.We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.65.From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. 71.The appellant prayed that he be found guilty but insane. First, he is not insane. He was examined and taken for medical examination. He was found to have had substance induced psychosis. This was self-inflicted. He was treated and found fit to plead. Instead of giving evidence he opted to remain silent. It is his right to do so. However, he did not call any evidence that he was insane at the time of occurrence of the offence. every person has a presumption of sanity. the duty was on the appellant to prove that he was insane at the time of occurrence of the offence. there is no evidence of having any form of insanity before the temporary insanity that was substance induced that occurred at the tail end of the trial. section 12 of the penal code provides as follows:A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or of knowing that he ought not to do the act or make the omission; but a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission 72.However, intoxication does not constitute of a defence. section 13 of the Penal Code provides as follows:(1)Save as provided in this section, intoxication shall not constitute a defence to any criminal charge.(2)Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and—(a)the state of intoxication was caused without his consent by the malicious or negligent act of another person; or(b)the person charged was by reason of intoxication insane, temporarily or otherwise, at the time of such act or omission.(3)Where the defence under subsection (2) is established, then in a case falling under paragraph (a) thereof the accused shall be discharged, and in a case falling under paragraph (b) the provisions of this Code and of the Criminal Procedure Code (Cap. 75) relating to insanity shall apply.(4)Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence.(5)For the purpose of this section, "intoxication" includes a state produced by narcotics or drugs. 73.Therefore, the defence of insanity cannot in any event be available to the appellant, the doctor having found that the same is drug induced. 74.The next effect is that the defence of insanity was not and cannot be availed to the appellant. It is unnecessary to deal with the question of guilt but insane, having found that intoxication though abuse of substances is not insanity. 75.The offence charged provide for a life sentence. Consequently, the sentence meted out in the court below is affirmed. Orders: 76.In the circumstances, I make the following orders:a.The Appeal on conviction and sentence is dismissed. The life sentence is affirmed.b.Right of appeal 14 days.c.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 11TH DAY OF MAY, 2026. JUDGEMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:Appellant Present In personPC Nkuta at Nyeri MaximumMr. Mwakio for the RespondentCourt Assistant – Michael / Martin