https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6955

Gacheru v Republic (Criminal Appeal E093 of 2024) [2026] KEHC 6955 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6955 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E093 of 2024 DKN Magare, J May 20, 2026 Between Antony Kimotho Gacheru Appellant and Republic Respondent (Being an appeal from the judgment of the trial court, Hon. M. E. Analo (SRM) in Mûrang’a MCSO No. E010 of 2023, delivered on 17.12.2024.) Judgment 1.This appeal arises from the judgment of the trial court, Hon. M. E. Analo (SRM) in Mûrang’a MCSO No. E010 of 2023, delivered on 17.12.2024. 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, on 09.02.2023 at around 1520hrs in Nyakihai location within Murang’a County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of PWM, a child aged 6 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, 09.02.2023 at around 1520hrs in Nyakihai location within Murang’a County of the Republic of Kenya, intentionally and unlawfully touched the vagina of PWM, a child aged 6 years with his penis. 3.The appellant was convicted and sentenced to life imprisonment. He set forth the following grounds of appeal:1.The learned magistrate erred in fact and in law in convicting him despite there being no evidence in support of the charges.2.The learned magistrate erred in fact and in law in convicting the appellant without the prosecution providing the elements of defilement to the required standards of proof of beyond reasonable doubt.3.The learned magistrate erred in fact and in law in ignoring the defence evidence which weakened the prosecution case.4.The learned magistrate erred in fact and in law in ignoring the glaring discrepancies in the evidence adduced by the prosecution witnesses.5.The learned trial magistrate erred in law in failing to warn himself that it was unsafe to convict on the evidence of a child of tender years unless there was corroboration.6.The learned trial magistrate erred in law in finding that the evidence of PW1 was corroborated by the evidence of all the prosecution witnesses and the evidence produced.7.The learned trial magistrate erred in law and misdirected himself when he shifted the burden of proof to the Appellant.8.The learned magistrate ignored and failed to consider the inconsistencies in the testimony of PW1, PW2 and PW3 vis a vis the medical report and PRC form.9.The learned magistrate failed to consider the lengthy delay that was evident before PW1 was taken to hospital and eventually reporting the matter to the police station after the date of the alleged offence.10.The learned magistrate failed to consider at all the discrepancies in the recorded statements and the evidence adduced in court during hearing.11.The learned magistrate failed to consider the inconsistencies and contradictions in the prosecution witnesses testimonies which did not corroborate each other.12.The learned magistrate gave an exceedingly harsh sentence.13.The evidence adduced during trial could not support a conviction. Evidence and Proceedings 4.The Appellant was arraigned in court on 2.03.2021 and denied the charges. The matter started for hearing on 31.07.2023. The court carried out voir dire on the minor. 5.The minor gave unsworn evidence as PW1. The minor straight away pointed to the appellant in the dock and said that the appellant did bad manners to her. He did bad manners to her buttocks. His name is Tony. She stated that she had gone to pick bananas from Tony’s place when the appellant told her to climb onto the bed. After removing her biker (pant) the appellant did bad things to her. He used a pen to insert into her private part pointing at the vagina. She clarified that he used the part that he uses to urinate into her private part, vagina, that is her object of urinating. She told her grandmother. Tony, the appellant is her uncle. This is where we may need to teach our children who to call uncle and who not to. This is however for another day. 6.On cross examination, she stated that her father told her to come to court and the father told her what to tell the court. She came to court because of Tony. They do not stay in the same compound and nobody sent her to Tony’s compound. She had entered Tony’s compound. She went to Tony’s place alone. The place had a door, a bed and a chair. Tony placed the bananas into a bag the grandmother had given her. The house is a single room but could not recall the date. The bed had a blanket. She told the grandmother after the incident. 7.The grandmother examined her but she did not have blood. She was not taken to hospital. She stayed with her uncle, grandmother and father in the compound. She does shower herself and she told father about the incident. The father used to wash her and even touch the private parts before she knew how to shower. She was later taken to hospital but not Murang’a Level 5 Hospital. She had difficulty walking after the incident. 8.On re-examination she pointed at the appellant as the person to whose house she had gone. 9.PW2 was PWX from (Particulars withheld). She sent the victim on 9.2.2023 to pick bananas. On coming back, the complainant informed her that the appellant, Tony Kimotho did bad manners to her. She was in shock and told the minor’s father to take her to hospital. Called the minor. She stated that they have no dispute as the appellant is a neighbour. She denied that the appellant snatched any money from her. 10.On cross examination by Ms. Murira she stated that she sent the minor but she was not too old to work. She sent for bananas. She did not know that the incident could happen as they come from the same locality with the appellant. She recalled that the appellant had given her money in several occasions. The said incident was at about 5 pm. She also received the bananas. She sent the minor but the minor took about 2 hours time before coming back. She stated that she had memory issues and had no phone at home. She supported her statement as true and stated that the minor was unable to spread her legs. 11.She tried examining the minor but she declined, though she had blood on her clothes. She had bad eye sight. She saw the complainant walking in a different way. The father took the minor to hospital and she remained silent. It was the appellant who injured the child. She was not the one who told the minor’s father on the incident. There is no dispute with the appellant but they are not in good terms. She stated that the minor told her but she did not see Tony. 12.PW3 was the minor’s father. On 14.2.2023 he had gone for some casual work when his mother called him that the minor had been taken by Kimotho who gave her bananas. He took the minor to hospital and identified the PRC Form, birth certificate, P3, treatment notes and patient record. The appellant was the one who defiled the minor. The appellant always supplied the mother, PW2 with bananas. He did not have any grudge with the appellant. 13.On cross examination, he stated that he has a wife but they separated and he remained with the minor who was 6 years. It was his mother who took care of the victim in her house. The minor told the mother about the defilement and did not tell him. The mother told the witness about the defilement. When the minor told him of the incident, he reported to the police station the following day. The said incident took place in the appellant’s home. 14.He denied saying that he was looking for the appellant and they had no grudge or dispute as a family. He stated that it is the appellant who told PW2 that he should go with them to get bananas, for the minor to come back with bananas. The mother is fond of sending people for errands to collect milk and other things. The mother told him of the incident after 4 days. The mother was ailing and fond of forgetting. The appellant was arrested after 2 weeks. They went to hospital on 15.02.2023. 15.On reexamination, he stated that the minor went to collect bananas when the mother had requested the appellant for the bananas. They did not go back to hospital. 16.PW4 was Alphin Mungai Kimani, the Assistant Chief, who was informed on 1.3.2023 by a Nyumba Kumi elder that the appellant had been arrested by members of the public who wanted to kill him. He told the police who went to the scene and re-arrested the appellant. He had known the appellant since he was appointed. He identified the appellant in the dock. 17.On cross examination, he stated that the matter had been reported earlier before 1.3.2023 in relation to the incident in February 2023 but could not recall the exact date. He did not know if the appellant had gone to the police station before being arrested but was called by an officer by the name Mercy. They used Nyumba Kumi people to look for the appellant. He went to the appellant’s home on three occasions but found the appellant’s brother. He never asked the brother or mother. He knew the appellant’s compound as they are residents. The appellant was later arrested by a mob of about 30 people. 18.PW4 was John Derrick Mwangi a Clinical Officer at Murang’a Hospital where he had worked for 6 years. He wrote the PRC, outpatient report, and P3 in the minor’s name. The victim was brought to the hospital by the father accompanied by police officers. The minor reported that the grandmother sends her to get bananas from a man who later took her to his house and had sexual intercourse. She was a gentle girl. The vaginal wall was swollen, whitish discharge and hymen freshly torn, high vaginal swaps were taken and bacterial cells were seen. He produced the said documents as exhibits 1-4 including the lab findings. He concluded that there was a history on penile penetration. 19.On cross examination, he stated that he examined the minor on 15.5.2023 and filed the P3 on 1.03.2023. He referred to treatment notes of 15.03.2023. The age of the injuries is not included and the type of weapon is probably not included. The issue of penile penetration is in the treatment notes. He stated that inflammation is caused by an object and not infection. He did not examine the appellant. There were no spermatozoa seen. The P3 was filled on 1.03.2023. The incident occurred on 09.02.202 and not 15.02.2023. On re-examination, he stated that treatment notes are proper first contact for the victim. 20.PW5 was PC Mercy Mumo of Muranga Police Station. She received a report on 15.02.2023 at 1200 hours. It was the minor herein and her father, PW3, who made a report that on 09.02.2023, the minor was defiled by a person known to them, one Anthony, who was a neighbour. She accompanied the minor to Murang’a Level 5 Hospital where the minor was treated and discharged the same day. A P3 and PRC forms were filled. She recorded a statement from the victim, mother and grandmother. She visited the scene. They arrested the appellant and charged him with the offence. 21.On cross examination, she stated that the incident took place on 9.02.2023 but she could not know if it was a school day. The minor had gone to see the grandmother. The chief confirmed when the appellant was at home. The incident was reported on 15.02.2023. The victim did not disclose immediately. She informed the grandmother and waited for the father. The grandmother was informed the same day. She was 78 years old, and had to wait for the victim’s father. She was not aware of the incident. She was aware that after the incident the appellant ran away. The appellant had promised the grandmother bananas but she got unripe bananas instead of ripe ones. At the time of the incident the father was not at home. She stated that the appellant was a neighbour and the minor identified him. The P3 was filled almost three weeks hence he was arrested by the area chief and a P3 form filled on 1.3.2023. 22.The court found the appellant had a case to answer. The court then complied with section 211 of the Criminal Procedure Code. The appellant opted for unsworn testimony with no witnesses. Later the appellant changed to sworn testimony. He stated that on 15.2.2023, he got information that a person had sent a child to his house to get bananas and he defiled her. On 1.03.2023, he was arrested when he was on his land. There were 4 people; that is the minor, minor’s father, sister to the minor and in charge. 23.They later met the Assistant Chief and the police later on. He was farming at the home of Karuri Mwangi, DW2. He testified that when the incident occurred, he was at Karuri’s at 1700 hours. The victim did not go to his house at 1520 hours. He stays with the wife and brother Nicholas Kimaru. There are many people in the compound. He had no dispute with the minor. They had a dispute with the grandmother over firewood in 2022. He does not sell bananas and never promised the minor any or the family bananas. When the incident occurred they were not in good terms and there were suspicions that the father was the one who committed the offence. He stated that he once went to the house and found that the father and minor sleep on the same bed. 24.On cross examination, he stated that the father was the one sleeping with the minor. The issue of defilement he just heard in the village. 25.DW2 was Stanley Karuri Mwangi who said he was the employer of the appellant. It was his testimony that the appellant cares for goats and farms land. He reports from 10.00 am and leaves at 16.30. He recalls that on 09.02.2023, the appellant was at his home between 1030 hours and 1630 hours. He was not aware that the appellant ran away. He stated that the houses are neighbours with the complainants. They are separated by the access road. The witness knew of the incident when the appellant was arrested. On the material day the appellant was at home. Submissions 26.The appellant filed submissions dated 17.09.2025. The appellant basically raised three issues, that is: contradictions and inconsistencies, proof beyond reasonable doubt and failure to consider the defence. They set out the duty of the court as set out in the case of Okeno v Republic [1972] EA 32 at 36 for guidance on the court's duty in a first appeal. 27.He submitted that the three key ingredients of the offence of defilement as elucidated in the case of George Opondo Olunga v Republic [2016] eKLR were not proved. He stated that the evidence showed that the father used to wash her. He then conjoined the difficulty in walking with the details related to the father washing the minor. It was stated that the truth was lacking in the minor’s testimony. It was posited that the unsworn testimony was not credible or believable and needed corroboration with medical and other material evidence. Reliance was placed on the case of Mercy Kajuju & 4 Others V Republic [2009] KEHC 2951 (KLR), where it was posited as follows:I also discussed at some length the nature and value of unsworn statement, and on authorities held that unsworn statements have no probative or evidential value unsworn statements are not in evidential sense, facts which either go prove or disprove a point alleged by one party and disputed by another. Facts in issue must be proved and unsworn statements are inappropriate subject of evidence. 28.He submitted that hyperemic and inflamed walls were not shown to have resulted from defilement. 29.He stated that the law as set out in Oloo v Republic (2009) eKLR is that the court must warn itself of the dangers of relying on unsworn evidence of a minor. This must have been per incurium in as far as sexual offences are concerned. They stated that there was no proof of penetration as the absence of a hymen is not of itself sufficient proof of penetration. Reliance was made on a case whose citation I cannot trace. 30.He submitted that in determining penetration, courts rely on evidence of a minor duly corroborated by medical evidence. He submitted that in respect of section 124 of the Evidence Act, this court decided in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), where the court of appeal [Githinji, Karanja & J. Mohammed, JJ.A.] held as follows:With regard to the issues of corroboration and the appellant being proved as the one who defiled the complainant, section 124 of the Act is clear that the court may convict on the evidence of the alleged victim alone provided that the court is satisfied that the alleged victim was truthful. From the record it appears that the trial court was satisfied that the victim told the truth. In its judgment the trial court stated:“Though it [was] only PW1’s evidence which is incriminating the accused person to me this evidence is unchallenged. … I have too considered the accused person’s alibi defence, which to me remains to be a mere statement which is uncorroborated or unsubstantiated. No doubt I am convinced the accused whom the complainant knew very well before this incident, thus the offence of defilement. P3 form put the complainant at 13 years old. Though this is a single witness testimony, only PW1 [sic] I find it convincing and believable besides all prosecution witnesses were credible and honest.”The evidence on record shows that the complainant identified the appellant as the one who had defiled her. She knew him as he was a family friend and neighbor and recognized him. Similarly, the medical examination of the Complainant showed that her injuries were “suggestive of sexual defilement”. From all of the above, we are satisfied that the prosecution did indeed discharge its burden of proof. 31.He submitted further that the fact that the minor gave unsworn evidence is evidence that it is not true and genuine. The court erred in relying on it. 32.The appellant submitted that while PW1 stated that bad manners was in the buttocks, she also stated that the insertion of the pen was in her private parts. Further that PW2 stated that there was blood on the clothes while she was taken to hospital the minor reported to the father the same day it happened. PW3 indicated that the minor was taken to hospital the following day. They also contradicted on who told who about the defilement. They stated in view of the forgoing, it is unclear on when the offence occurred. 33.He also submitted that the stories and evidence of PW1, PW2 and PW3 does not align. The contradictions were not explained. Reliance was placed on the case of Jackson Mwanzia Musembi v Republic [2017] KECA 748 (KLR), where the court of appeal [Kihara Kariuki (PCA), W. Karanja & Okwengu, JJ.A] posited as follows:She found the appellant being held by some boys who informed her about the incident. As noted by the Uganda Court of Appeal in Twehangane Alfred vs. Uganda- Criminal Appeal No 139 of 2001, [2003] UGCA, 6 it is not every contradiction that warrants rejection of evidence. As that court put it:“With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case.” 14.Similarly in Philip Nzaka Watu vs. R [2016] eKLR this Court in its own words expressed itself thus-“However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognized in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question.” Like the trial court, we find that the said inconsistency which related to how the minor’s mother learnt about the incident neither went to the root of the prosecution’s case nor prejudiced the appellant’s defence. 34.He submitted that the case did not meet the threshold required in law and the appeal ought to be allowed. 35.On the other hand, the respondent filed submissions dated 20.11.2025 and maintained that the appellant was correctly sentenced. The respondent invited the court to rely on the case of Okeno v Republic [1972] EA 32 at 36 for guidance on the court's duty in a first appeal. 36.It was the State’s submission that it had discharged the burden of proof by establishing the three elements it was required to prove as held in the case of George Opondo Olunga v Republic [supra]. Accordingly, the Respondent addressed the Court on three sub-issues, namely:a.Proof of Penetrationb.Proof of Age of the victimc.Identity of the perpetrator 37.They submitted that section 151 of the Criminal Procedure Code requires the witnesses to be sworn with the exceptions being minors as arising from Section 19 of the Oaths and Statutory Declarations Act as doth:(1)Where, in any proceedings before any court or person having by law or consent of parties authority to receive evidence, any child of tender years called as a witness does not, in the opinion of the court or such person, understand the nature of an oath, his evidence may be received, though not given upon oath, if, in the opinion of the court or such person, he is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth; and his evidence in any proceedings against any person for any offence, though not given on oath, but otherwise taken and reduced into writing in accordance with section 233 of the Criminal Procedure Code (Cap. 75), shall be deemed to be a deposition within the meaning of that section.(2)If any child whose evidence is received under subsection (1) wilfully gives false evidence in such circumstances that he would, if the evidence had been given on oath, have been guilty of perjury, he shall be guilty of an offence and liable to be dealt with as if he had been guilty of an offence punishable in the case of an adult with imprisonment. 38.They sought refuge in the case of Jamaar Omari Hussein vs. Republic [2019] eKLR, where the court held as follows:This is nonetheless not to say that unsworn evidence is totally worthless. It only means that the court considering such evidence has to consider it with circumspection and look for corroboration from other evidence adduced in the matter.” 39.On contradictions, they submitted that there were no contradictions. It only showed that the incident happened on 09.02.2023, reported to PW3 on 14.2.2025 and minor taken to hospital on 15.02.2023. They sought reliance on the case of the Uganda Court of Appeal in Twehangane Alfred vs. Uganda- Criminal Appeal No 139 of 2001, [2003] UGCA. This was buttressed by the decision of the court of appeal [W Ouko, F Sichale & S Ole Kantai, JJA] in Munene v Republic [2018] KECA 186 (KLR), where the court stated as follows:As they say, the prosecution must present a watertight case that meets the threshold of beyond reasonable doubt in order to obtain a conviction. Contradictions, discrepancies and inconsistencies in evidence of a witness go to discredit that witness as being unreliable. Where contradictions, discrepancies and inconsistencies are proved, they must be resolved in favour of the accused. 40.It is a settled principle of law however, that it is not every trifling contradiction or inconsistency in the evidence of the prosecution witness that will be fatal to its case. It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt in the mind of the trial court that an accused person will be entitled to benefit from it. 41.The court was urged to dismiss the appeal as the sentence and conviction were proper. Analysis 42.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 ern 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. 43.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 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. 44.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. 45.Brennan addressed the standard of proof required in such cases, 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. 46.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the l probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 47.The powers of this Court are circumscribed by Section 382 of the Criminal Procedure Code, which permits a first appellate court to confirm, reverse, or vary any finding, sentence, or order of the trial court. The section reads as follows:382:subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or during the trial or in any inquiry or other proceedings under this Code, unless the error, omission or irregularity has occasioned a failure of justice:Provided that in determining whether an error, omission or irregularity has occasioned a failure of justice the court shall have regard to the question whether the objection could and should have been raised at an earlier stage in the proceedings. 48.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. 49.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. 50.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. 51.In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence.d.and {I must add that the penetration is of a sexual organ, [of the vagina or anus] by a sexual organ}. 52.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. 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. 53.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. 54.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 6, 7 or even 10, 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. 55.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. 56.Start with the appellant’s case, the defence of alibi was given. However the alibi was not an alibi at all. It was a sieve. The appellant was working at the next house. The alibi is otiose and is no answer to the prosecution case. The appellant did not bother to raise questions on his absence or the question of bananas. The defence was pierced by the complainant’s evidence. The minor went to the appellant’s juggler immediately she was allowed to testify. She identified what the appellant did and was known to her by name. The duty to prove falsity of an alibi is on the state. There is however, no duty to prove a non-alibi or false alibi. In the case of Bernard Odongo Okutu v Republic [2018] KEHC 1052 (KLR), R.E.Aburili held as follows:109.On Issue 6, the appellant claims that his defence of alibi was not considered in his favour. On the Appellant’s defence of alibi, the appellant complained that his defence of alibi was not considered by the trial magistrate. In the case of Charles Anjare Mwamusi V. R CRA No. 226 of 2002 the Court of Appeal stated:“An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to the charge preferred against him does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable Kiarie V. Republic (1984) KLR 739 at page 745 paragraph 25.”110.I thus take cognizance of the principle that by setting up an alibi defence, the accused does not assume the burden of proving the alibi- see Ssentale vs. Uganda [1968] EA 36-. The foregoing was restated in the case of Wang’ombe vs. Republic [1976-80] 1 KLR 1683 where it was stated “the prosecution always bears the burden of disproving the alibi and proving the appellant’s guilt.”111.However, this defence should also be raised at the earliest opportune time as was held in the case of R VS SUKHA SINGH S/O WAZIR SINGH & OTHERS (1939) 6EACA 145 that:“ if a person is accused of anything and his defence is an alibi, he should bring forward that alibi as soon as he can because, firstly, if he does not bring it forward until months afterwards, there’s naturally a doubt as to whether he has not been preparing it in the interval, and secondly, if he brings it forward at the earliest possible moment, it will give prosecution an opportunity of inquiring into that alibi and if they are satisfied as to its genuineness proceedings will be stopped.”112.And in the case of Victor Mwendwa Mulinge vs Republic, the Court of Appeal rendered itself on the issue of alibi thus:- 57.It is trite law that the burden of proving the falsity, if at all, of an accused’s defence of alibi lies on the prosecution; see Karanja vs Republic, where this court held that in a proper case, a trial court may, in testing a defence of alibi and in weighing it with all the other evidence to see if the accused’s guilt is established beyond all reasonable doubt, take into account the fact that he had not put forward his defence of alibi at an early stage in the case so that it can be tested by those responsible for investigating and thereby prevent any suggestion that the defence was an afterthought. 58.The alibi is thus dismissed as not answering the case. Even the appellant did not raise the questions of bananas with the witnesses who were present. The appellant was seen by the complainant who recognized, nay, knew him. There could be no possibility of error as to the person she saw, to have penetrated her. 59.There was no possibility of error. 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). 60.The second aspect is contradictions and penetration. The minor talked of tabia mbaya on the buttocks. She also talked of the penetration of the vagina. This was said to be contradiction. It is not. A mere fact that there was vaginal penetration does not mean that there was no holding of buttocks, vagina entry from behind and other gymnastics. Penetration is not a discrete event, that occurrence of one rules out the other. It is a messy affair and only the person involved knows what they went through. The medical evidence showed that the offence occurred. The injury to the minor were serious. The minor was unable to walk after the incident and the medical evidence established the same 7 days letter. 61.The appellant had the audacity to use village rumours as the reason for the defilement. That it is the father who did this. However, it was common ground among the prosecution witnesses that the complainant’s father was away. I do not find the defence tenable. 62.There was expert medical evidence on penetration. In addressing expert evidence, the court must have regard to the entire gamut of evidence, not just expert evidence. Courts have consistently emphasized the value of expert opinions in judicial proceedings; such evidence is not necessarily conclusive or binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so. 63.Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so. 64.Courts must give proper respect to the opinions of experts; such opinions are not, as it were, binding on the courts, and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eklr; [19951998] 1 EA 29, that:It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say: Because this is the evidence of an expert, I believe. 65.The medical evidence supported the prosecution’s case. There were very minimal contradictions but they did not go to the root of the defilement. The question of contradictions was dealt with in the case of Philip Nzaka Watu vs. Republic [2016] eKLR, where the Court of Appeal held that:The first question in this appeal is whether the prosecution case was riddled with contradictions and inconsistencies of the magnitude that would make the conviction of the appellant unsafe. It cannot be gainsaid that to found a conviction in a criminal case, where the trial court has to be satisfied of the accused person’s guilt beyond reasonable doubt, the prosecution evidence must be cogent, credible and trustworthy. Evidence that is obviously self contradictory in material particulars or which is a mere amalgam of inconsistent versions of the same event, differing fundamentally from one purported eyewitness to another, cannot give the assurance that a court needs to be satisfied beyond reasonable doubt. However, it must be remembered that when it comes to human recollection, no two witnesses recall exactly the same thing to the minutest detail. Some discrepancies must be expected because human recollection is not infallible and no two people perceive the same phenomena exactly the same way. Indeed as has been recognised in many decisions of this Court, some inconsistency in evidence may signify veracity and honesty, just as unusual uniformity may signal fabrication and coaching of witnesses. Ultimately, whether discrepancies in evidence render it believable or otherwise must turn on the circumstances of each case and the nature and extent of the discrepancies and inconsistencies in question. 66.It was the primary duty of the trial court to carefully analyze the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In Erick Onyango Ondeng’ vs. Republic [2014] eKLR, the Court of Appeal held that:The hearing before the trial court invariably entails consideration of often contradictory, inconsistent and hotly contested facts. The primary duty of the trial court is to carefully analyse that contradictory evidence and determine which version of the evidence, on the basis of judicial reason, it prefers. It is the trial court, when it comes to questions of fact, which has the singular advantage of seeing and hearing the live witness testify and being subjected to cross-examination, that time-honoured devise for testing the truth or correctness of evidence. Next is the first appellate court which by law, it is its bounden duty to re-consider, re-evaluate and analyse the evidence that was before the trial court, to determine whether, on the basis of those facts, the decision of the trial court is justified. (See OKENO VS REPUBLIC (1972) EA 32). It is in the above context that this Court has said time and again that it will defer to and respect findings of fact by the trial court as affirmed by the first appellate court after due re-evaluation and analysis, because the second appellate court operates from the distinct advantage of not having seen or heard the witnesses. This Court will therefore not interfere with findings of fact by the two courts below unless it is demonstrated that the trial court and the first appellate court considered matters they ought not to have considered or that they failed to consider matters they should have considered or that looking at the evidence as a whole, the courts below were plainly wrong in their decision, in which case such omission or commission would be treated as matters of law. 67.The court has examined the so called contradictions and found them to be a contradiction without a difference. They are not of such a magnitude that if not satisfactorily explained, will usually but not necessarily lead to the evidence of a witness being rejected. As was noted in Twehangane Alfred vs. Uganda, Crim. App. No. 139 of 2001, [2003] UGCA, 6:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 68.In my overall reevaluation of the evidence, I agree with the trial court that the prosecution proved the offence beyond a reasonable doubt. 69.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 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. 70.The appellant was of the view that the evidence of the minor ought to have been corroborated. This is not the position of law. Section 124 settles the question and it is overriding unless there is failure of other conditions. However, in this matter, the evidence was corroborated by the witnesses. PW2 received the information immedicable. She is the one who had sent the minor to the appellant. There was no circumstances that could have intervened in between. 71.All evidence points to one and only one person as the perpetrator. Courts have addressed circumstantial evidence, to the extent that for the same to be useful, it must be inconsistent with the accused’s innocence. In the case of Ahamad Abolfathi Mohammed and Another v Republic [2018] eKLR, [P. KIHARA KARIUKI, PCA, M’INOTI & MURGOR, JJ.A] the court had this to say on circumstantial evidence:“However, it is a truism that the guilt of an Accused person can be proved by either direct or circumstantial evidence. Circumstantial evidence is evidence which enables a court to deduce a particular fact from circumstances or facts that have been proved. Such evidence can form a strong basis for proving the guilt of an Accused person just as direct evidence. Way back in 1928 Lord Heward, CJ stated as follows on circumstantial evidence in R v Taylor, Weaver and Donovan [1928] Cr. App. R 21: -‘It has been said that the evidence against the Applicant is circumstantial. So it is, but circumstantial evidence is very often the best evidence. It is evidence of surrounding circumstances which, by intensified examination is capable of proving a proposition with the accuracy of mathematics. It is no derogation from evidence to say that it is circumstantial.” 72.All said and done, the circumstances, evidence and explanation, all point to the guilt of the appellant. Consequently, the appeal on conviction is dismissed. 73.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. 74.Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), 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. 75.The Supreme Court has guided on the proper sentence for sexual offences. There is no option about the sentencing. The appellant is 50 years. However life imprisonment. Determination 76.In the circumstances, I make the following orders: -a.The appeal on conviction and sentence is dismissed.b.Right of appeal 14 days.c.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 20TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Gichuki for the AppellantMr. Kihara for the ODPPAppellant present at Nyeri Maximum PrisonPC Pius Kimanzi at Nyeri Maximum PrisonCourt Assistant – Martin