https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12863

Gakunga v Republic (Criminal Appeal E069 of 2024) [2026] KEHC 12863 (KLR) (27 July 2026) (Judgment) Neutral citation: [2026] KEHC 12863 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E069 of 2024 DKN Magare, J July 27, 2026 Between Lewis Wambugu Gakunga Appellant and Republic Respondent Judgment 1.This appeal arises from the judgment of the trial court, Hon. Mary Makena, SRM, in Nyeri MCSO No. E001 of 2023 delivered on 6.08.2024 and sentence meted on 26.09.2024. 2.The Appellant was charged with defilement contrary to Section 8(1) & (3) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that the Appellant, on 05.07.2022, at around 0730 hours at [Particular Withheld] village, Tetu, Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to penetrate the vagina of BWM, a girl aged thirteen (13) years. The appellant was convicted and sentenced to 20 years' imprisonment commencing the date of remand. 3.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, on 05.07.2022, at around 0730 hours at [Particulars Withheld] village, Tetu, Sub-County within Nyeri County of the Republic of Kenya, intentionally and unlawfully caused his penis to come touch the vagina of BWM, a girl aged thirteen (13) years. 4.The Appellant, aggrieved, lodged this appeal vide a memorandum of appeal on 5.10.2024. The Court issued directions to substitute by way of amendment of a petition. He filed the same on 20.1.2026, with the following grounds:a.The learned Magistrate erred in law and in fact in failing to appreciate that the evidence of the complainant was inconsistent, doubtful, lacking in credibility, thereby occasioning a miscarriage of justice.b.The learned Magistrate erred in law and in fact by convicting the appellant despite the prosecution’s failure to prove the essential elements of the offence of defilement to the required standard beyond reasonable doubt.c.The learned Magistrate erred in law and in fact in failing to consider material contradictions and discrepancies in the prosecution evidence, which were substantial and capable of unsettling the conviction.d.The learned Magistrate erred in law and in fact by failing to adequately consider and evaluate the appellant’s sworn evidence, which was not controverted by the prosecution and raised reasonable doubt.e.The overall evidence tendered by the prosecution fell far below the required threshold of proof, rendering the conviction unsafe and untenable in law.f.The proceedings, judgment and sentence violated the appellant's constitutional right to a fair trial under Article 50(2) of the Constitution.g.The sentence of twenty years' imprisonment was harsh, excessive, and disproportionate in the circumstances, and the trial court failed to properly consider mitigation and prevailing sentencing jurisprudence 5.The Appellant was arrested on 6.1.2023 and arraigned in court on 09.01.2023. He pleaded not guilty. He was granted Ksh. 300,000/= bond. He was supplied with witness statements and supporting documents. The matter was listed for hearing on 26.09.2022 after compliance with preliminaries. 6.PW1 was the complainant. She was taken through voir dire and found fit to give sworn evidence. She testified that on 5.07.2022 she was sent to buy milk. She got to the shop, which is near a coffee farm. Lewis grabbed her and took her to the coffee farm. He held her hands and mouth, removed her clothes and then inserted his penis into her vagina. She wore her clothes after the events, but somewhere else. 7.She stated that on reaching the road, her cousin TNN asked her why she was the way she was. She promised to tell her at home. She went home and told her mother, and they started looking for Lewis. They found him, and he denied defiling her. They took him to the police station with the mother, uncles, J and PW, her mother's father, and the appellant and herself. She was examined and given a document to take to the police station. She identified the appellant in the dock. She pointed out that she tried to scream, but Lewis held his hand over her mouth. 8.On cross-examination by Mr. Gichuki, she indicated that the P3 was filled at 7.30 am. She went to collect milk 300m away; she knew Lewis, who is her cousin. The appellant removed clothes with one hand, and afterwards they were dirty with dust and dew. She did not go to the shop since after the incident she found a cousin who was looking for her. They had no quarrel with Lewis’s family. 9.PW1 was later recalled and produced the clothes that she stated she had been wearing on 05.07.2022. During cross-examination, she testified that she had handed the mud-stained clothes to the police. However, she stated that she could not identify or see the mud stains on the clothes at the time they were produced in court. On re-examination, she explained that the mud had dried by the time the clothes were produced as exhibits. 10.PW2, the complainant's mother, testified that the complainant was born on 29.10.2008 and produced the complainant's birth certificate. She stated that on 05.07.2022 at about 7.30 a.m., she sent the complainant to collect milk. When the complainant took longer than expected to return, she became concerned and sent a cousin to look for her. She returned with a cousin; PW2 observed that the complainant was dirty and crying. When she inquired what had happened, the complainant informed her that the appellant, Levi, had chased her, taken her to a coffee farm, and defiled her. 11.PW2 testified that they immediately commenced a search for the appellant and later found him. The matter was then reported to the police. She further stated that the complainant was taken to hospital for examination and treatment. She identified the complainant's birth certificate, the P3 form, and the PRC form. 12.Following the incident, they went to the grandmother's house with the appellant and the complainant. The appellant’s father and a brother-in-law. The appellant denied having defiled the complainant. She further stated that after the incident, the appellant disappeared and was not seen again until December 2022, when he resurfaced. PW2 identified the appellant before the court as the person alleged to have defiled the complainant. 13.On cross-examination, she stated that they did not take the complainant to PGH. She further stated that the complainant sought treatment at Gichira Health Centre. She also stated that the appellant was found at about 8.00 a.m. on the same day. When confronted, he denied committing the offence and maintained that he had not seen the complainant that day. 14.According to her, the complainant had returned home at about 8.00 a.m. She further testified that it was J and PW who went in search of the appellant and found him on the road. She maintained that the complainant did not change her clothes before they proceeded to the police station and later to the hospital. She testified that she was not related to the appellant. There was a family relationship between the parties in that the appellant’s father and her husband were brothers. However, she maintained that they did not have any dispute or grudge with the appellant or his family. 15.PW3 was Collins Muyaka, a Clinical Officer attached to Gichira Health Centre. He testified that he holds a Diploma in Clinical Medicine from the Kenya Medical Training College. He examined the complainant and completed a Post Rape Care Form in July 2022. He found no external injuries or lacerations on the complainant's general body. On genital examination, he noted that the hymen was broken and inflamed and the labia minora were also inflamed. The anal examination revealed no abnormalities. He further observed that the complainant's clothes were dusty. On the basis of the findings, he concluded that it was possible defilement. He testified that the broken hymen and inflammation of the labia minora were consistent with penetration. 16.On cross-examination, he stated that he observed blood stains on the underpants. The post-rape care form indicated seminal stains, meaning whitish discharge. He performed a high vaginal swab, but this is not indicated in the PRC. The hymen was broken and inflamed. He stated that he did not indicate whether it was freshly broken. 17.PW4 was PC Victor Okumu of Gichira Police Station; he was the arresting officer. On 5.7.2023, he arrested the appellant. He was accompanied by PC Salam Gogo. He arrested the appellant following identification by the complainant. On cross-examination, he stated that he was accompanied by the complainant and her mother, though she did not mention the people accompanying him in his statement. 18.PW5 was PC(W) Christine Musau of Gichira Police Station. On 5.07.2022, the complainant and her mother went to the police and reported that the complainant had been defiled by the appellant. She took the minor to Gichira Medical Centre. The doctor confirmed that the minor had been defiled. She accompanied the minor and two of her colleagues. They found that the appellant had run away. On 5.1.2023, she reported that the appellant had been sighted. She preferred charges. The minor was 13 years old at the time she went to the scene. She noted that when the complainant reported, her clothes were dirty. She produced the minor’s trousers, pink T-shirt, and pink knickers as exhibits. 19.On cross-examination, PW5 testified that she was the investigating officer in the case. She stated that she did not visit the appellant's homestead, explaining that it was not the scene of the alleged offence. She confirmed that she prepared the investigation diary. She further stated that the complainant's father had apprehended the appellant, but that the appellant managed to escape. She also testified that the clothes produced as exhibits were not clean. She confirmed that she did not record a statement from the appellant. According to her investigations, the complainant's family had indicated that there was no existing dispute between the two families. She further stated that she accompanied the appellant to Nyeri Provincial General Hospital (PGH), but he was not medically examined. 20.On re-examination, PW5 clarified that the appellant's homestead was not the scene of the crime. 21.PW6, Marvin Nderitu, holds a Bachelor of Medicine and Bachelor of Surgery (MBChB). A P3 was completed by Dr. Muriuki, who was out of the country for two years. The P3 concerned the complainant, aged 13 years. The minor's underpants were stained, and it was reported that she had been sexually assaulted. The injuries were hours old. It was established that there had been penile penetration. The degree of injury was harm. The external genitalia were normal. The right tibial minora was inflamed, and the hymen was broken; the conclusion was that the minor was defiled. 22.On cross-examination, he stated that P3 was filled on 20.07.2022, but the incident was reported on 05.07.2022. He stated that P3 should ideally be completed in the presence of the complainant unless an examination had previously been conducted. However, the PRC is the repository of the age of the injuries. He stated that penetration of the vaginal canal would cause inflamed and bruised labia minora. He stated that a broken hymen does not necessarily indicate defilement. He stated that stains on clothes would have dried. 23.On re-examination, he stated that the P3 is not filled on the date of examination. The PRC form is filled first and then a patient allowed to recover. The anterior of the vagina was bruised hence confirmation that there was penetration. A stain is any fluid that has dried. 24.The court found that the appellant had a case to answer and complied with Section 211 of the Criminal Procedure Code. The appellant opted for sworn evidence. 25.The appellant testified on oath as DW1. He stated that he was aware of the allegations against him but denied committing the offence. He testified that on 05.07.2022 he was in Nanyuki, having been called there by his cousin to work at a construction site. According to him, he had left his home on 04.07.2022 and was therefore not in Mungania on the material date. He knew the complainant, whom he described as his cousin. He further denied that he had gone into hiding or run away, maintaining that no one was looking for him and that the police never searched for or pursued him. He also stated that there was a strained relationship between his mother and the complainant's mother. 26.On cross-examination, the appellant stated that he worked at the construction site in Nanyuki until October 2022, although the construction project had not been completed by then. He testified that after leaving the construction site in October 2022, he stayed at his aunt's home until later that month, before eventually returning to his home in December 2022. Impugned Judgment 27.The court analysed the evidence. The court equally analysed the defence evidence and found it difficult to believe. The court identified the three ingredients that must be proved under section 8 of the Sexual Offences Act. The court relied on the case of Raphael Mutunga Mutinda v Republic [2019] KEHC 11054 (KLR), where Odunga J, as he then was, stated as follows:26.It is now trite that for the accused to be convicted of the offence of defilement, certain ingredients must be proved. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. See the case of Charles Wamukoya Karani vs. Republic, Criminal Appeal No. 72 of 2013, where it was stated that:“The critical ingredients forming the offence of defilement are; age of the complainant, proof of penetration and positive identification of the assailant.” 28.On the question of proof, the court relied on the case of Mwalango Chichoro Mwanjembe v Republic [2016] KECA 183 (KLR), where the court of appeal posited as follows: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 documentary 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. It has even been held in a long line of decisions from the High Court that age can also be proved by observation and common sense. See Denis Kinywa v R,Cr.Appeal No.19 of 2014 and Omar Uche v R,Cr.App.No.11 of 2015. We doubt if the courts are possessed of the requisite expertise to assess age by merely observing the victim since in a criminal trial the threshold is beyond any reasonable doubt. This form of proof is a direct influence by the decision of the Court of Appeal of Uganda in Francis Omuroni v Uganda, Crim.Appeal No.2 of 2000. We think that what ought to be stressed is that whatever the nature of evidence presented in proof of the victim’s age, it has to be credible and reliable. 29.The court found that penetration was proved. This was based on the case of Mohamud Omar Mohamed v Republic [2020] KEHC 2085 (KLR), where C. KARIUKI J, posted as follows:31.The test to be applied inter alia to the principles in the cited cases elsewhere in this analysis is to be found in the case of Bassita v Uganda S. C. Criminal Appeal No. 35 of 1995 where the Supreme Court held:“The act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victim's own evidence and corroborated by the medical evidence or other evidence. Though desirable, it is not a hard and fast rule that the victim's evidence and medical evidence must always be adduced in every case of defilement to prove sexual intercourse or penetration. Whatever evidence the prosecution may wish to adduce, to prove its case, such evidence must be such that is sufficient to prove the case beyond reasonable doubt.”“For evidence to be capable of being corroborated it must:(a)Be relevant and admissible Scafriot {1978} QB 1016.(b)Be credible DPP v Kilbourne {1973} AC 729(c)Be independent, that is emanating from a source other than the witness requiring to be corroborated Whitehead J IKB 99(d)Implicate the accused. 30.In respect of identity, the court found that the appellant was properly identified. The court relied on the case of Maitanyi v Republic [1986] KECA 39 (KLR), where the court of appeal [Nyarangi, Platt & Gachuhi JJA)] posits as follows:Although the lower courts did not refer to the well known authorities Abdulla Bin Wendo & Another vs Reg (1953) 20 EACA 166 followed in Roria vs Rep (1967) EA 583, it may be that the trial court at least did have them in mind. It is important to reflect upon the words so often repeated and yet bear repetition:“Subject to well-known exceptions it is trite law that a fact may be proved by the testimony of a single witness but this rule does not lessen the need for testing with the greatest care the evidence of a single witness respecting identification, especially when it is known that the conditions favouring a correct identification were difficult. In such circumstances what is needed is other evidence, whether it be circumstantial or direct, pointing to guilt, from which a judge or jury can reasonably conclude that the evidence of identification, although based on the testimony of a single witness, can safely be accepted as free from the possibility of error. Submissions 31.The Appellant filed submissions dated 11.02.2026. Reliance was placed on the case of Okeno v Republic [1972] EA 32 at 36, on the duty of this court. Further reliance was placed on the case of Kiilu & Another vs. Republic [2005]1 KLR 174, where the Court of Appeal stated as follows:1.An Appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination 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.2.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; 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. 32.The appellant further relied on the case of David Njuguna Wairimu v Republic [2010] KECA 495 (KLR), where the Court of Appeal [SEO Bosire, PN Waki & DKS Aganyanya, JJA] provides as follows:In Okeno v R [1972] EA 32, the Court of Appeal for East Africa, laid down what the duty of the first appellate court is. Its duty is to analyse and re­evaluate the evidence which was before the trial court and itself come to its own conclusions on that evidence without overlooking the conclusions of the trial court. There are instances where the first appellate court may, depending on the facts and circumstances of the case, come to the same conclusions as those of the lower court. It may rehash those conclusions. We do not think there is anything objectionable in doing so, provided it is clear that the court has considered the evidence on the basis of the law and the evidence to satisfy itself on the correctness of the decision. In Okeno v R (supra) the Court said:“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.” 33.He submitted that the state is duty-bound to prove its case. It was argued that proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. Reliance was placed on the case of Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372, who 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 least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 34.Reliance was also placed on the case of Bakare v State (1987) 1 NWLR (PT 52) 579, where the Supreme Court of Nigeria emphasised what it means for proof beyond reasonable doubt, stating:“Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace the presumption, the evidence of the prosecution must prove beyond reasonable doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure, including the administration of criminal justice. Proof beyond reasonable doubt means just what it says it does not admit of plausible possibilities but does admit of a high degree of cogency consistent with an equally high degree of probability. 35.He posited that this duty was also discussed in the case of Pius Arap Maina v Republic [2013] KEHC 1762 (KLR), where G. Kimondo J, stated as follows:It is gainsaid that the prosecution must prove a criminal charge beyond reasonable doubt. As a corollary, any evidential gaps in the prosecution’s case raising material doubts must be interpreted in favour of the accused. 36.He submitted that the court failed to interrogate the circumstances of the occurrence of the offence. He relied on the case of Nthenya v Republic [2024] KEHC 12854 (KLR), where DKN Magare, J, held as follows:It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as follows:“What then amounts to “reasonable doubt”? This issue was addressed by Lord Denning in Miller v. Ministry of Pensions, [1947] 2 ALL ER 372 where he stated:-‘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 least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’” 37.Further reliance was placed on the case of the Supreme Court of Canada in R vs. Lifchus[infra]. On penetration, they posited that the court must be satisfied that the same was proved beyond reasonable doubt. Further reliance was placed on the cases of JND v Republic [2025] KEHC 9446 (KLR) and Wanyama v Republic [2025] KEHC 11170 (KLR). 38.He submitted that section 124 of the Evidence Act can only be used where there is evidence for believing the complainant. They supported this assertion with the decision of Lumbasi v Republic [2016] KEHC 2942 (KLR), where E C Mwita J, as he then was, stated as follows:5.A proper reading of the whole of section 124 of the Evidence Act showed that corroboration was still required on evidence by minors, but not mandatory in sexual offences as long as the witness was truthful and reasons were recorded. And as the long line of decisions had shown, proof in sexual offences could still be achieved through the victim’s evidence, medical evidence, circumstantial evidence or a combination of any or all of them. In sexual cases, corroboration was necessary as a matter of practice to support the testimony of the complainant. Therefore, the proviso to section 124 was not discriminatory, unconstitutional, or a violation of articles 25 and 27 of the Constitution of Kenya, 2010. 39.It is noted that an appeal from the decision was dismissed vide a decision of the Court of Appeal reported as Lumbasi v Republic [2022] KECA 1097 (KLR). 40.The appellant submitted that the court summarily dismissed his defence. It was his submission that there was no independent verification of the evidence. He wondered how the complainant did not have any other external injuries if this happened in a coffee farm. The complainant was dusty when it was said that she was muddy. On failure to consider defence, reliance was placed on the case of Ogolla s/o Owuor v Republic, [1954] EACA 270. 41.The Respondent filed submissions dated 3.03.2026. They submitted that the facts prove that the appellant defiled the complainant. Reliance was placed on the case of George Kioji v Republic Cr. App No. 270 of 2012, the Court of Appeal had this to say on proof in sexual offences;“Where available, medical evidence arising from examination of the accused and linking him to the defilement would be welcome. We however hasten to add that such medical evidence is not mandatory or even the only evidence upon which an accused person can properly be convicted for defilement. The court can convict if it is satisfied that there is evidence beyond reasonable doubt that the defilement was perpetrated by the accused person. Indeed under the proviso of Section 124 of the Evidence Act, Cap 80 Laws of Kenya, a Court can convict an accused person in a prosecution involving a sexual offence on the evidence of the victim alone, if the court believes the victim and records the reasons for such belief.” 42.The respondent submitted that the medical evidence established penetration, noting that the complainant had a broken hymen and bruises on the labia minora. It was further submitted that the complainant positively identified the appellant as the perpetrator. It was argued that the complainant knew the appellant well, as they were cousins, thereby eliminating the possibility of mistaken identity. On the appellant's alibi defence, it was submitted that no evidence was tendered to support his claim that he was in Nanyuki on the material date. They submitted that the alibi remained unsubstantiated and did not displace the prosecution's case. The court finds the last submissions on alibi erroneous. Analysis 43.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 differing from the Judge or magistrate even on a question of fact turning on the credibility of witnesses whom the appellate court has not seen.” 44.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 [1972] EA 32 at 36, where the East Africa Court of Appeal stated the following 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. 45.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. 46.Brennan J, 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. 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 carry 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.(3)A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years.(5)…(8)The provisions of subsection (5) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 51.These key ingredients of the offence of defilement, were elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as follows:a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 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 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. 53.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 7 or 8, 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. 54.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. 55.The minor was 13 years old. The birth certificate, issued shortly after birth, indicated it was issued on 28.11.2008. It is genuine and proves the minor's age. 56.This brings me to the second question, that is, the defence. The appellant indicates that he left for Nanyuki on 4.07.2022. He went to Nanyuki. He did not indicate which area, which place and where exactly he was. It must be remembered that it is not necessary to disclose an alibi early enough. This is because of the repeal of section 307(2) of the Criminal Procedure Code. Further, the defence should be able to raise the questions that challenge his present evidence in cross-examination. The said section 307, before repeal provided as follows:307(1)The accused person or his advocate may then open his case, stating the facts or law on which he intends to rely, and making such comments as he thinks necessary on the evidence for the prosecution; the accused person may then give evidence on his own behalf and he or his advocate may examine his witnesses (if any), and after their cross-examination and re-examination (if any) may sum up his case.(2)Notwithstanding the provisions of subsection (1), the accused person or his advocate shall not, without the leave of the court, the reasons for which shall be recorded, adduce alibi evidence unless details thereof, and the names and addresses of any witnesses in support thereof, were provided at the committal proceedings or in writing to the committal court and the prosecution within fourteen days thereafter. 57.However, with the repeal of section 307(2), the disclosure is not mandatory. However, an alibi must be an alibi. An alibi is defined by the Black's Law Dictionary 11th Edition as follows:The quality, state, or condition of having been elsewhere when an offense was committed. 58.However, once an alibi is raised, it must be considered and evaluated against the evidence on record. In the present case, the alibi raised is not an alibi. In the case of Wachera v Republic [2025] KEHC 11843 (KLR), this court posited as follows:43.The court was wrong in blaming the appellant on having the alibi at the tail end. However, the court was correct in finding that these questions were not put to the witnesses. This is important since the offence occurred at home.44.The court found that the appellant and the minor lived in the same house. The appellant was the perpetrator. In this case, there are no doubts on who the perpetrator was. It was the Appellant. The appellant raised a defense of alibi. His defence was supported by witnesses. The state had an opportunity to call rebuttal evidence which they did not call. With reference to alibi evidence, the court of appeal in Erick Otieno Meda vs. Republic [2019] eKLR stated thus:In considering an alibi, we observe that:a.An alibi needs to be corroborated by the other witnesses, and not just a mere regurgitation of the events from the accused’s point of view.b.An alibi defence needs to be introduced at an early stage so as to allow it to be tested, especially during cross-examination of the trial.c.The alibi defence or evidence may often rest on the credibility of the accused and the reliability of the evidence that he or she has presented in court.d.The accused does not need to prove the alibi, but the prosecution must have presented its case that the accused is guilty beyond a reasonable doubt so as to allow the alibi to fail.49.A successful alibi defence entirely rules out the accused as the perpetrator of the offence. There is no burden of proof on the accused to prove an alibi. If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof, and the accused must be given the benefit of the doubt. In the case of Kiarie – v- Republic [1984] KLR, this Court stated:An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge 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.46.In the South African case of S -v- Malefo en andere 1998 (1) SACR 127 (W) at 158 a - e the court set out five principles with respect to the assessment of alibi evidence:i.There is no burden of proof on the accused to prove his alibiii.If there is a reasonable possibility that the accused's alibi could be true, then the prosecution has failed to discharge its burden of proof, and the accused must be given the benefit of the doubt.iii.The alibi must be evaluated in light of the totality of the evidence and the court’s assessment of the witnesses [An alibi moet aan die hand van die totaliteit van getuienis en die hof se indrukke van die getuies beoordeel word.[translated from Afrikaner]iv.If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable (betroubaar)v.The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt -and for this purpose a court may take into account the fact that the accused had raised a false alibi.47.The burden of proving the falsity of an alibi was addressed in case of Victor Mwendwa Mulinge –v- R, [2014] eKLR as follows: -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....48.In another persuasive South African case of R - v - Biya 1952 (4) SA 514 (A) at 521C - D Greenberg JA said:‘If there is evidence of an accused person's presence at a place and at a time which makes it impossible for him to have committed the crime charged, then if on all the evidence there is a reasonable possibility that this alibi evidence is true it means that there is the same possibility that he has not committed the crime. 59.In short, an alibi must be considered using the following principles:a.Totality of evidence, that is, the court does not look at an alibi in isolation but must fit with the rest of the case.b.An accused does not assume the onus of proving it is true.c.It is the state's duty to prove its falsity beyond a reasonable doubt. If the alibi might reasonably be true, the accused must be acquitted.d.The court decides who tells the truth based on these impressions. 60.The appellant gave what appears to be an alibi defence. It is, however, not an alibi at all. It is a non-alibi alibi. Where, for example, an accused alleges to be in the high seas, or was on the moon, there must be reasonable prospects and means and capacity to be in the said place. 61.The Appellant advanced what appears, at first glance, to be an alibi defence. However, upon closer examination, it is not an alibi at all, but rather a non-alibi alibi. Where, for instance, an accused person alleges that he was in the high seas or even on the moon, the court must consider whether there were reasonable prospects, means and capacity for an accused to have been in the place alleged. An alibi must be reasonably capable of being true and must be considered in the context of the totality of the evidence on record. Alibi evidence must have the following: the actual place one was in, the names and addresses, contact of any witnesses who can verify this. 62.Therefore to give a general postulation that he was in a construction site, in Nanyuki, later went to an aunt, sometimes in October 2022 and came in December 2022 to his village is not to set an alibi as it lacks specificity. 63.Therefore, a general assertion that the Appellant was at a construction site in Nanyuki, later went to stay with an aunt, sometime in October 2022, and only returned to his village sometime in December 2022 does not amount to an alibi. The assertion lacks the requisite specificity as to the precise place, date and circumstances in which the Appellant claims to have been at the stated locations. Nanyuki is an area of more than 140 square kilometres with a myriad of construction sites. Surely there has to be an owner, a contractor, a particular site in a particular locale in Nanyuki. An aunt is a generic name covering over 100 people in one’s life; surely someone knows the aunt's name and contact. 64.The appellant failed to set up a proper alibi. In the circumstances, the same was rightly dismissed, not as an afterthought but as unbelievable and not an alibi. When a party decides to lie, even in defence of his life, there should be a reasonable imitation of the truth in his case. 65.Still, it must be recalled that the appellant, as an accused, has no duty to help the state prove its case, as he remains innocent until proven otherwise. The presumption remains throughout the trial and can only be displaced if the prosecution proves, by the evidence adduced, beyond reasonable doubt that the accused is guilty of the offence charged. If any reasonable doubt remains, the accused is entitled to the benefit of that doubt and must be acquitted. In the case of R vs. Lifchus {1997}3 SCR 320, the Supreme Court of Canada [Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter De Carteret; Mclachlin, Beverley; Lacobucci, Frank; Major, John C] explained the standard of proof as follows:39.Instructions pertaining to the requisite standard of proof in a criminal trial of proof beyond a reasonable doubt might be given along these lines:The accused enters these proceedings presumed to be innocent. That presumption of innocence remains throughout the case until such time as the Crown has on the evidence put before you satisfied you beyond a reasonable doubt that the accused is guilty. What does the expression “beyond a reasonable doubt” mean? The term “beyond a reasonable doubt” has been used for a very long time and is a part of our history and traditions of justice. It is so engrained in our criminal law that some think it needs no explanation, yet something must be said regarding its meaning.A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence.Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.In short, if, based upon the evidence before the court, you are sure that the accused committed the offence, you should convict since this demonstrates that you are satisfied of his guilt beyond a reasonable doubt.40.This is not a magic incantation that needs to be repeated word for word. It is nothing more than a suggested form that would not be faulted if it were used. For example, in cases where a reverse onus provision must be considered, it would be helpful to bring to the attention of the jury either the evidence which might satisfy that onus or the absence of evidence applicable to it. Any form of instruction that complied with the applicable principles and avoided the pitfalls referred to would be satisfactory. 66.The appellant stated that he left the area shortly before the offence was committed and travelled to Nanyuki. However, his alibi lacked the particulars necessary to render it reasonably verifiable. He did not state where in Nanyuki he stayed, the period he remained there, or the specific persons with whom he was. Although he asserted that his cousin secured him employment at a construction site before he later stayed with his aunt, he failed to identify either his cousin or his aunt by name, nor did he identify the construction site or any other person capable of confirming his account. 67.It is settled that an accused person bears no burden of proving an alibi. Nevertheless, an alibi must contain sufficient particulars to enable the prosecution to investigate and, where appropriate, rebut it. This is consistent with section 212 of the Criminal Procedure Code. Without identifying which aunt, which cousin, or which construction site he referred to, which area of Nanyuki, the prosecution had no realistic opportunity to verify or challenge the alibi. Such an alibi is what I call a non alibi. 68.More significantly, the prosecution evidence placed the appellant at the scene. The complainant identified him as the perpetrator, and the other prosecution witnesses testified that they saw him before he fled. According to the evidence, the appellant disappeared immediately after the offence, and the police subsequently made efforts to trace and arrest him. His explanation that he happened to secure employment in Nanyuki on the eve of the alleged offence, without any supporting particulars, is unpersuasive when weighed against the prosecution evidence. There was no suggestion that the investigating officer’s grudge against the appellant. Police officers had no reason to lie that they went to look for the appellant on 5.07.2022. The appellant suggested that or the complainant's mother and his mother did not like each other but he did not know why. 69.There was nothing placed on the record to show that the complainant harbored a grudge against the appellant that would have motivated them to falsely implicate him. In those circumstances, the appellant's conduct of leaving the area immediately after the offence, coupled with the inadequacy of his alibi, lends further support to the prosecution case. 70.The prosecution was wrong to submit that the appellant had a duty to prove his alibi as this is not the law. The court of appeal in the case of Victor Mwendwa Mulinge v Republic [2014] KECA 710 (KLR), where, Kihara Kariuki (PCA), Musinga & Gatembu, JJ.A) stated as follows:In this case, we do not know whether the appellant in his statement to the police had stated that on the material day and time he was in a college class. This is an issue that ought to have been dealt with by the trial court but that court failed to discharge that duty.But even assuming that the appellant raised the defence of alibi for the first time while in court, as rightly submitted by Mr. Oguk, pursuant to the provisions of Section 309 of the Criminal Procedure Code the prosecution could have sought leave to adduce further evidence in reply to rebut the appellant’s defence. The section states as follows:“309.If the accused person adduces evidence in his defence introducing new matter which the advocate for the prosecution could not by the exercise of reasonable diligence have foreseen, the court may allow the advocate for the prosecution to adduce evidence in reply to rebut it.”The prosecution failed to do so.In all, we find and indeed hold that for the reasons stated herein, the appellant’s conviction was unsafe and accordingly allow this appeal. 71.The alibi was so general that it does not amount to an alibi. The evidence of DW1, reminds me of the lamentations by Odunga J, as he then was, in Kioko Peter v Kisakwa Ndolo Kingóku [2019] KEHC 11387 (KLR)….Parties and Counsel ought to give the court’s some credit that the courts are not manned by morons who can be easily duped into believing all manner of incredible stories with little or no iota of truth. It is these kinds of allegations that Madan, J (as he then was) had in mind when in N vs. N [1991] KLR 685 he expressed himself in the following terms:“I wish people would not tell me absurd and unbelievable lies. I feel disappointed if a lie told in court is not reasonable imitation of the truth and is not reasonably intelligently contrived. I wish people who tell lies before me would respect my grey hair even if they consider that my intelligence is not of high order. I wish the witness had not told me the most stupid of his lies, which both disappointed and made me feel intellectually insulted.” 72.In any case the complainant was recognized and known by the complainant. The incident occurred at 7.30 am, when it was broad daylight. Parties knew each other and the appellant took no steps to conceal the identity. The witnesses recognized to be the appellant as a person known to them. The appellant himself did not question the Recognition. The issue of recognition was addressed in the case of Reuben Taabu Anjononi ,Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), where 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). 73.The respondent's evidence as to the identity of the perpetrator was cogent and credible. Indeed, aspects of the appellant's own defence tended to corroborate the respondent's case. This is in particular the aspect that the appellant disappeared from July 2022 until December 2022. The appellant admitted that in July 2022, he left his home and relocated. He further acknowledged that he had been working at a construction site at Kwa Gunyaka but abruptly left that employment. There was no evidence that he had been dismissed or that there existed any compelling reason necessitating his sudden departure. His explanation that he simply secured work elsewhere lacked sufficient detail and was unconvincing. 74.The appellant's conduct immediately after the offence also constitutes relevant circumstantial evidence. For circumstantial evidence to found a conviction, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of guilt. In the present case, the appellant's sudden departure from his place of work, his unexplained relocation immediately after the offence, and his absence from July 2022 until his arrest in December 2022 are circumstances that are consistent with the prosecution's case. 75.The appellant offered no plausible explanation for abandoning his place of work and disappearing from the locality. When these circumstances are considered alongside the direct evidence identifying him as the perpetrator, the only reasonable inference is that the appellant fled the area to evade arrest following the commission of the offence. In the case of Ahamad Abolfathi Mohammed & another v Republic [2018] KECA 743 (KLR), The Court of Appeal [P. Kihara Kariuki, PCA, M’Inoti & Murgor, Jj.A.)] , 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.” 76.Were there any material contradictions regarding the identity of the perpetrator? In addressing alleged contradictions, the court must distinguish between minor inconsistencies, which do not necessarily affect the credibility of the prosecution’s case, and material contradictions that go to the root of the case. Contradictions of such magnitude as to create reasonable doubt must be resolved in favour of the accused, unless they are satisfactorily explained. In the present case, the question is whether the alleged contradictions were material enough to cast doubt on the identity of the perpetrator. In the case of Watu v Republic (Criminal Appeal 29 of 2015) [2016] KECA 696 (KLR), the Court of Appeal [MS ASIKE-Makhandia, W Ouko & K M'Inoti, JJA] held that:17.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.18.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.19.In Dickson Elia Nsamba Shapwata & Another v. The Republic, Cr. App. No. 92 of 2007, the Court of Appeal of Tanzania addressed the issue of discrepancies in evidence and concluded as follows, a view we respectfully adopt:“In evaluating discrepancies, contradictions and omissions, it is undesirable for a court to pick out sentences and consider them in isolation from the rest of the statements. The Court has to decide whether inconsistencies and contradictions are minor, or whether they go to the root of the matter.” 77.The primary duty of the trial court is to carefully analyse the contradictory evidence and determine which version of evidence, on the basis of judicial reason, it could prefer. In the case of Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR), the Court of Appeal [Githinji, Musinga & M’Inoti, JJ.A] 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 V 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. 78.The question of a huge magnitude of contradictions which must be satisfactorily explained, lest they lead, usually but not necessarily, to the evidence of a witness being rejected was addressed in the case of 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. 79.I find that there were no material contradictions or inconsistencies in the prosecution's case that required explanation or that would cast doubt on the credibility of any of the prosecution witnesses. 80.The appellant's defence of alibi did not withstand scrutiny and was effectively displaced by the cogent evidence adduced by the prosecution. There was no evidence capable of removing the appellant from the scene of the offence at the material time. 81.Equally, there was no evidence of any grudge between the complainant and the appellant that would have provided a motive for a false accusation. Although the appellant attempted to tender evidence suggesting that the complainant's mother and the appellant's mother did not enjoy a cordial relationship, such evidence, without more, cannot reasonably be construed as a basis for fabricating an allegation that the appellant sexually penetrated the complainant, who was a child. 82.There was no evidence led or elicited by way of cross-examination to demonstrate that the complainant herself harboured any ill will towards the appellant. If there was such a grudge, it should have been raised with the witnesses. This is not a scenario that is expected under section 212 of the Criminal Procedure Code. The section provides as follows:If the accused person adduces evidence in his defence introducing a new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the court may allow the prosecutor to adduce evidence in reply to rebut that matter. 83.Finally, I do not find it necessary to address the submission regarding the absence of mud on the complainant's clothes several months after the incident. The clothes were recovered and stayed long after the offence before they were tendered in evidence. Their condition at that stage had no probative value in determining whether the offence of defilement had occurred. That submission is therefore of no consequence to the determination of this appeal. The court therefore finds that the appellant was the perpetrator of the offence. The conviction is safe. 84.This then leaves one aspect on conviction, that is, whether there was penetration. When considering penetration, section 2 comes in handy. The said section provides as follows:“Penetration" means the partial or complete insertion of the genital organs of a person into the genital organs of another person; 85.The complainant’s evidence was consistent and corroborated by the medical evidence, which was thorough. Though corroboration was not necessary, the court cannot ignore the corroboration. In considering medical evidence, the court must look at all evidence. These was expert evidence. 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. 86.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. 87.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, it was held 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. 88.The evidence on penetration was well corroborated. The minor was penetrated and the labia minor was inflamed. Inflammation is evidence of penetration. The appellant posited that anything could have done penetration. That could be true in theory. However, the appellant was present when she was penetrated by the applicant. The court below found her evidence cogent and credible. I have read the same evidence. While giving room that I did not see the witnesses, the same is consistent and steady under very intense cross examination. 89.The medical evidence also supports the finding of penetration. While the state of the hymen, standing alone, may not conclusively prove penetration, the inflammation of the labia minora is a significant clinical finding. The labia minora are the inner, hairless folds of the vulva situated immediately adjacent to the vaginal opening, unlike the labia majora, which are the larger, outer folds that are typically hair-bearing after puberty. Owing to their delicate and highly vascular nature, the labia minora are particularly susceptible to inflammation or swelling following recent trauma or penetration. 90.In this case, the doctor observed that the complainant's labia minora were inflamed. That finding is consistent with recent injury to the genitalia and, when considered together with the complainant's testimony and the other medical findings, provides cogent evidence supporting penetration. The appellant argued that the clinician did not expressly state that the hymen had been "freshly broken." That submission is of little consequence. A finding of inflammation denotes a recent inflammatory response to trauma or injury. It would therefore be unnecessary and indeed tautological to separately describe the injury as "fresh" where the clinical findings already demonstrate an acute inflammatory process. The absence of the word "fresh" does not diminish the probative value of the medical evidence. 91.The court has meticulously reevaluated the entire record as is the first appellate court. I am satisfied that the prosecution proved all the essential ingredients of the offence of defilement beyond reasonable doubt. The complainant's age was proved by the birth certificate, which established that she was 13 years old at the time of the offence. The medical evidence, together with the complainant's testimony, proved penetration. I have also found that the appellant was positively identified as the perpetrator and that his defence of alibi did not raise any reasonable doubt, having been displaced by the cogent prosecution evidence. 92.Consequently, I find that the conviction for the offence of defilement contrary to section 8(1) as read with section 8(3) of the sexual offences act was safe. The appeal against conviction is accordingly dismissed, and the conviction is upheld. 93.The court then has to address the issue of sentencing. The nature of sentences under the Sexual Offences Act is circumscribed. This offence under section 8(1) and (3) of the Sexual Offences Act provides for a mandatory minimum sentence of 20 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] stated 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 committed.12.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. 94.Further, the same position was reiterated by the Supreme Court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where it 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. 95.The appellant was properly convicted and sentenced to 20 years' imprisonment. Consequently, the appeal on conviction and sentence is dismissed. 96.Before I leave, I need to address the question of the commencement of sentence. The appellant was arrested on 6.01.2023. Section 333(2) of the Criminal Procedure Act provides as follows:(2)Subject to the provisions of section 38 of the Penal Code (Cap. 63) every sentence shall be deemed to commence from, and to include the whole of the day of, the date on which it was pronounced, except where otherwise provided in this Code.Provided that where the person sentenced under subsection (1) has, prior to such sentence, been held in custody, the sentence shall take account of the period spent in custody.d.The sentence cannot be ordered to run from the date of arrest given that he was serving other sentences. The court will not disturb the decision for sentences in the two counts to run concurrently. However, I decline to make an order relating to other offences committed in other files. 97.The appellant is entitled to have the period spent in custody taken into account in sentencing. Although the trial court indicated that the sentence would commence from the date the appellant was remanded in custody, the record does not clearly indicate that date. Accordingly, to give effect to section 333(2) of the Criminal Procedure Code, I direct that the sentence shall commence on 06.01.2023, being the date of the appellant's arrest. Determination 98.In the circumstances, I make the following orders: -a.The appeal on conviction and sentence is dismissed.b.However, I direct that the sentence shall commence on 06.01.2023, being the date of the appellant's arrest.c.14 days right of appeal.d.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 27TH DAY OF JULY, THE YEAR OF OUR LORD TWO THOUSAND AND TWENTY-SIX. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORMKIZITO MAGAREJUDGEIn the presence of; -Mr. Maina for the appellantAppellant presentMr Kihara and Ms. Akinyi for the State/RespondentCourt Assistant – Timothy