https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11073

Adera v Republic (Criminal Appeal E116 of 2025) [2026] KEHC 11073 (KLR) (21 July 2026) (Judgment) Neutral citation: [2026] KEHC 11073 (KLR) Republic of Kenya In the High Court at Kisumu Criminal Appeal E116 of 2025 AK Ithuku, J July 21, 2026 Between Kevin Otieno Adera Appellant and Republic Respondent (Being an appeal from the conviction and sentence of Hon. L. N. Kiniale, Senior Principal Magistrate, in Nyando Senior Principal Magistrate's Court Sexual Offence Case No. E073 of 2023, delivered on 23rd December 2025) Judgment Background 1.The appellant, Kevin Otieno Adera, was convicted of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act and sentenced to imprisonment for life. He appeals against both conviction and sentence. 2.The principal charge alleged that on 1st December 2023 at about 5.30 p.m. at [Particulars Withheld] Village, Atoyieng Sub-location, Agoro West Location in Nyakach Sub-county within Kisumu County, the appellant intentionally and unlawfully caused his penis to penetrate the vagina of CN, a child stated in the charge sheet to be eight years old. In the alternative, he was charged with committing an indecent act with a child contrary to Section 11(1) of the Act. The charge sheet alleged contact with the child's vagina. The wider reference in the typed trial judgment to her breasts and buttocks did not form part of the charge as pleaded. 3.The appellant pleaded not guilty on 18th December 2023. Bond was fixed at Kshs. 200,000 with one surety, although the subsequent record consistently records him as being in custody. The prosecution called five witnesses. The appellant gave sworn evidence and called no witness. 4.PW1 was CN Following a voir dire examination, the trial court found that she was a child of tender years who could respond rationally but did not fully understand the nature of an oath. Her evidence was therefore received on affirmation. She testified that she was in class one and that on 1st December 2023 she was playing hide-and-seek with Emma, Lorna and Quinter near Quinter's home. When it was her turn, she hid behind a tree and found another person there. He pulled her into a bush. Her account of the assault was recorded in these terms:“He covered my mouth, then removed my clothes. He threatened that if I cry, he will cut me with a panga. He hurt me here. He used his hand then removed something between his legs and put into mine.” 5.PW1 pointed to her private part. She said that the act caused pain and bleeding. She went home, put on a sweater and slept. Her mother returned later, washed her and was told what had happened. PW1 was taken to hospital and admitted. She did not know the assailant's name, but said that she had seen him at home and that he herded cattle for them. She pointed to the appellant in the dock. 6.In cross-examination PW1 was concise and categorical: “I saw you when the incident happened. You are the one who raped me.” In re-examination she repeated that she saw the appellant and that he was the person who assaulted her. 7.PW2, EAO, was nine years old and gave sworn evidence after the trial court satisfied itself that she understood the duty to speak the truth and the nature of an oath. She said that CN was her seven-year-old sister. The children were playing hide-and-seek when CN went to hide at Mama Quinter's farm. PW2 and Lorna later found her there crying and bleeding. CN said that someone had raped her. They took her home, changed her clothes and panty, and waited for their mother. 8.PW2 said that their mother returned at about 6.00 p.m. and took CN to hospital. CN did not give the perpetrator's name but described him and later showed them the person. PW2 knew him as Kevin, a cattle herder at Umoja or Nunda. She had seen him before and saw him herding the following day, at a distance of about 100 metres, in clothes corresponding with the description she had received. In re-examination she was careful to say that she did not witness the assault. 9.PW3, RAO, was the complainant's mother. She testified that CN was born on 25th July 2016 and produced birth certificate serial number A95xxx29 as PExh. 1. She said that on returning from the farm at about 7.00 p.m. she noticed that the child had difficulty standing. When the child rose to take away her plate, PW3 saw blood on the chair where she had been sitting. The children then explained the assault. CN did not know the man's name but said that she knew who he was. 10.PW3 took the child to the hospital at Pap Onditi. Because of the continued bleeding and suspected internal injuries, she was transferred by ambulance to Jaramogi Oginga Odinga Teaching and Referral Hospital, where she remained admitted for four days. PW3 said that the appellant was new in the area but herded cattle at Umoja and regularly brought them to graze about 100 metres from their home. She had no grudge against him. Her son returned home while she was at the hospital, and the appellant was arrested. 11.PW4, Police Constable Crispine Ochieng, was the officer who took over the investigation after the two initial investigating officers were transferred. He produced exhibit memos dated 24th May 2024 and 15th October 2024. His evidence included an unexplained statement which became central to the appellant's submissions:“Later when she had a child, pursuant to court order DNA samples were taken from the accused, the complainant and child.” 12.PW4 did not identify the child to whom he referred; say when, where or through whom the alleged birth had been established; produce a birth or medical record; explain the relationship between the two exhibit memos; or give any DNA result. He said that the area assistant chief arrested the appellant and the police re-arrested him. The appellant did not cross-examine PW4. 13.PW5, Keziah Tanui, was a clinical officer at Jaramogi Oginga Odinga Teaching and Referral Hospital. She produced the P3 form, post-rape care form and discharge material made by her former colleague, Leah Omondi. PW5 had worked with the maker, was familiar with her handwriting and signature, and understood the records. The appellant expressly raised no objection to her testifying or producing the documents. 14.The contemporaneous post-rape care record showed that CN was first examined at 12.30 p.m. on 2nd December 2023 and gave a history of an assault at about 7.00 p.m. on 1st December 2023. She was actively bleeding. There was a first-degree tear at the six o'clock position, a deep cut, a superficial laceration around the anus and a freshly torn hymen. She was admitted and immediately taken to theatre for surgical treatment. Urinalysis disclosed red blood cells. Tests for HIV, VDRL and hepatitis B were negative. The later P3 examination recorded healed and repaired vaginal, perineal and anal injuries. The injuries were classified as grievous harm. 15.The P3 history, unlike the contemporaneous post-rape care record, referred to 7th December 2023 and described the perpetrator as a domestic servant. Clothes were collected and sent for analysis. On 25th November 2025 Police Constable Albert Agunda produced an exhibit memo, a brown jumper, a torn and stained black skirt and a brown T-shirt. No scientific report concerning those garments was tendered. 16.The prosecutor had sought summons for the Government Analyst. On 7th October 2025 the trial was adjourned because the samples had not been processed. When the investigation officer was recalled in November, the prosecutor closed the case in these express terms: “We intended to call the Government Analyst but his report was not ready. We pray that the evidence on record is sufficient to sustain this charge.” 17.In his sworn defence, the appellant said that he came from Kawuondo Village and worked as a cattle herder. The chief and some young men arrested him at the home of his employer. Neither the chief nor the employer told him why he was being arrested. He denied knowing CN, Emma or Quinter, denied the offence and said that he first learnt of the allegation after his arrest. He called no witness and elected not to make final submissions at the trial. 18.The trial court found that age was proved by the birth certificate and the mother's evidence; penetration by PW1's account and the medical findings; and identity by recognition. It reasoned that the incident occurred in daylight, that the appellant herded cattle near the child's home and that the witnesses knew him. It rejected the defence as a denial which was insufficient to rebut what it considered cogent prosecution evidence. It convicted the appellant under Section 215 of the Criminal Procedure Code and made no finding on the alternative charge. 19.The prosecution reported that the appellant had no previous conviction. In mitigation he said that he was an orphan, had no family or siblings, lacked a means of livelihood and sought leniency. The trial court considered the complainant's tender age and the aggravated injuries and imposed imprisonment for life on 23rd December 2025. THE APPEAL 20.The petition raises three grounds:a.that the ingredients of defilement were not proved beyond reasonable doubt;b.that the trial magistrate relied on evidence full of contradictions and without analysing the evidence on record; andc.that the trial court failed to appreciate that the prosecution evidence lacked corroboration. SUBMISSIONS 21.The appellant submits that PW1's evidence did not place PW2 among the children playing hide-and-seek and did not say that PW2 found her or changed her clothes. He argues that PW2's statement that CN later showed her the offender is irreconcilable with CN having gone directly home and then having been admitted for four days. He characterises PW2's evidence about the appellant's clothing as invented and malicious. 22.On identification, he relies on Wamunga v Republic [1989] KLR 424 and Anjononi & others v Republic [1980] KLR 59. He accepts that recognition may be more reliable than identification of a stranger but argues that the trial court converted his occupation and opportunity to herd cattle near the scene into proof of guilt. He maintains that a parade and the first description were necessary safeguards. 23.On the forensic evidence, the appellant submits that the court would not have ordered samples unless DNA was necessary. He argues that the prosecution was obliged to call the analyst even if the evidence was adverse, and that its failure should be resolved in his favour. He also argues that PW4's evidence of a later delivery was inconsistent with an eight-year-old complainant and displaced the birth certificate. 24.The appellant further submits that the trial court shifted the burden when it held that his defence did not rebut the prosecution case. On sentence, he invokes Articles 27 and 28 of the Constitution, his status as a first offender and his mitigation, and asks the Court to replace life imprisonment with the least severe lawful term. 25.The respondent, through Ms Catherine Onyango, Principal Prosecution Counsel, submits that the complainant's date of birth was proved by the birth certificate and her mother. It argues that penetration was established by PW1's direct evidence, the immediate bleeding, the vaginal and perineal tears, the freshly torn hymen, the admission and surgery. 26.The respondent submits that identity was proved by recognition because the appellant worked as a cattle herder near the complainant's home and was known to her, PW2 and PW3. It contends that there was no material contradiction and that, in any event, Section 124 of the Evidence Act permits conviction on the credible evidence of a victim of a sexual offence without independent corroboration. It asks that the appeal be dismissed. ANALYSIS AND DETERMINATION 27.The appeal presents seven questions: whether the record proves the complainant's age; whether penetration was proved despite the inconsistent dates in the medical history; whether the appellant was identified beyond reasonable doubt; whether the discrepancies materially impaired the prosecution case; what consequence follows from the absent DNA report and PW4's reference to a child; whether the defence and burden of proof were handled lawfully; and whether the sentence may be disturbed. 28.This is a first appeal. The Court must subject the whole evidence to an independent and exhaustive evaluation, draw its own conclusions and give due allowance for the trial court's advantage in seeing and hearing the witnesses. Okeno versus Republic [1972] EA 32 states the central obligation:“An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination.” 29.That duty is not performed by searching for isolated evidence capable of supporting the result. The Court must confront the weaknesses, reconcile what can properly be reconciled and decide whether every ingredient remains proved after the prosecution and defence cases are considered together. The legal and evidential burden of proving guilt never shifted from the prosecution. 30.Defilement under Section 8(1) of the Sexual Offences Act consists of an act causing penetration with a child. Section 2 defines penetration to include partial or complete insertion of one person's genital organ into another person's genital organ. The prosecution therefore had to prove that CN was a child in the statutory age band, that penetration occurred and that the appellant was the perpetrator. 31.Age is both an ingredient and the fact which selects the penalty band. It must therefore be proved by credible evidence, not assumption. Charles & Another versus Republic [2024] KECA 1902 (KLR) affirms that age may be established through documentary, parental, child or medical evidence, but stresses the quality required:“Whatever the nature of evidence preferred in proof of the victim's age, it has to be credible and reliable.” 32.In the instant case, PW3 produced a birth certificate recording 25 July 2016 as CN's date of birth. PW2 independently said that CN was seven years old and in class one. The documentary and oral evidence therefore converged on 2016 and an age of seven years. The appellant did not challenge the authenticity of the certificate or cross-examine PW3 about the date of birth. 33.The typed proceedings contain an obvious transcription error that the date of birth was 25th July 2026. The same sentence says that PW3 gave birth to the child in 2016; the certificate number is recorded; PW2 said the child was seven; and the prosecution submissions reproduce 25 July 2016. The reference to 2026 is chronologically impossible and is plainly a recording error. The trial judgment also alternated between April and July 2016 and referred once to the incident as occurring in 2024. Those errors should not have occurred, but the primary evidence resolves them: the birth date was 25th July 2016 and the offence date was 1st December 2023. 34.CN was consequently seven years and a little over four months old at the material time, not eight. The one-year error in the charge and trial court's arithmetic did not move her outside Section 8(2), which applies to a child aged eleven years or less. The appellant knew throughout that the prosecution alleged defilement of a class-one child within that bracket; he did not advance an age-dependent defence; and the punishment prescribed by the pleaded subsection remained the same. Under Section 382 of the Criminal Procedure Code, an error warrants reversal only if it occasioned a failure of justice. This one did not. 35.PW4's statement that the complainant later had a child required attention, but it did not prove a different age. PW4 was a takeover investigator. He did not claim to have witnessed a delivery, identify a maternity facility, produce a birth notification or explain the source of his information. No clinician testified that CN conceived or delivered. The exhibit memos were not DNA results and did not prove paternity, maternity or age. 36.The appellant's reasoning also substitutes assertion for evidence. Chronological age is established by the date of birth, not retrospectively inferred from assumptions about puberty or reproductive development. This Court cannot take judicial notice that pregnancy below a particular age is biologically impossible, nor can it infer an adult age from an unexplained police statement when a contemporaneous public document and three witnesses place the child in class one and at seven years. I make no finding that a birth did or did not occur; it is unnecessary. I find that the isolated statement, lacking primary or expert support, does not displace PExh.1. 37.The prosecution therefore proved beyond reasonable doubt that CN was seven years old and within Section 8(2). Correcting the exact age is important for factual fidelity, but it does not alter the conviction or statutory provision. 38.Penetration was proved by two mutually reinforcing bodies of evidence. PW1 described the appellant using his hand and then inserting “something between his legs” into her private part. A child of seven was not required to employ anatomical terminology. Her demonstration, description of pain and immediate bleeding communicated an act of genital penetration with sufficient clarity. 39.The medical findings were objective and severe. On the first examination, less than a day after the charged incident, CN was actively bleeding, her hymen was freshly torn, and she had a vaginal tear, a deep cut and an anal laceration. She required admission and immediate surgery. Those findings were consistent with her account of recent forceful penetration. The later healed and repaired injuries recorded in the P3 form were the expected consequence of treatment, not evidence that no penetration occurred. 40.The first discrepancies concern the estimated time. The charge fixes the act at about 5.30 p.m.; PW2 estimated 6.00 p.m.; PW3 and the initial medical history referred to about 7.00 p.m. These were estimates of a late-afternoon or early-evening event by a traumatised seven-year-old, children who were playing and a mother who returned later. The date remained 1st December 2023 throughout the contemporaneous evidence. 41.The P3 form dated 2nd December 2023 was a later summary after treatment. Read against the contemporaneous record, it did not create a credible alternative incident or prejudice the defence. 42.Section 124 of the Evidence Act permits conviction in a sexual offence on the victim's evidence where the court records reasons for believing the victim. Its operative safeguard is expressed in these terms:“The court shall receive the evidence of the alleged victim and proceed to convict … if satisfied that the alleged victim is telling the truth.” 43.In this case it is unnecessary to rest penetration upon the proviso alone. PW1's evidence was corroborated by PW2's observation of bleeding, PW3's observation of blood and impaired movement, and the medical evidence. Corroboration is not a mechanical count of witnesses: the medical evidence independently confirms the recent penetrative injury, although it does not by itself identify the perpetrator. 44.Identification is the more exacting question. Where a conviction depends wholly or substantially on visual identification, the court must examine the original observation, prior familiarity, lighting, duration, distance, impediments, the first report and the possibility of honest mistake. Wamunga versus Republic [1989] KECA 47 (KLR) gives the necessary warning:“Recognition may be more reliable than identification of a stranger; but … mistakes in recognition of close relatives and friends are sometimes made.” 45.Anjononi & others v Republic [1980] KECA 23 (KLR) explains why recognition is ordinarily more assuring: it rests on prior personal knowledge. It does not create an irrebuttable presumption. The reliability of this recognition must therefore be tested from the evidence, not assumed from the label. 46.PW1 did not know the appellant's name. That is not conclusive proof that he was a stranger. A seven-year-old may repeatedly see an adult worker without knowing his formal name. Her material evidence was that she saw him at home and knew his role as the person who herded cattle for them. PW2 knew a cattle herder in the same place as Kevin; PW3 knew the appellant as a recently arrived herder who grazed cattle about 100 metres from their home; and the appellant admitted that he was arrested at his employer's home where he worked as a cattle herder. 47.The encounter was not fleeting. PW1 first saw the man behind the same tree, was pulled into a bush, physically restrained, threatened with a panga, undressed and assaulted at close range. The event occurred outdoors in the late afternoon or early evening. There was no evidence that it was dark, that her eyes were covered or that any disguise obstructed her view. Her proximity and the sequence afforded an adequate opportunity to recognise someone she had previously seen. 48.The first physical description and the evidence of the initial report were not produced. Neither initial investigating officer nor the assistant chief testified. The Court therefore lacks the best evidence of the precise words used before the appellant was arrested. That omission diminishes the available corroboration and requires caution. It does not, however, convert the courtroom identification into the first identification. PW1's evidence was that she knew the offender by prior sight and occupational role. PW2 testified that the child described the person before PW2 associated that description with Kevin. 49.PW2's sighting of the appellant on the following day did not make her an eyewitness to the offence. I do not use it as independent proof that he committed the act. It is relevant only to the continuity of the role-based description: the person known locally as Kevin was in the vicinity herding cattle, as he had done before. The proof of the assault and recognition remained PW1's. 50.The appellant further faults the failure to hold an identification parade. Katana & another v Republic [2022] KECA 1160 (KLR) distinguishes a genuinely uncertain stranger identification from recognition. The Court stated that a parade:“would only become necessary where the victim of the crime did not know the accused before his acquaintance with him during the commission of the offence.” 51.Katana (Supra) also recognises the need for a parade where the original conditions were difficult and a mistake remained a real possibility. Its purpose is to test whether a witness can select an unknown suspect under controlled conditions. Here, PW1's case was prior recognition of a particular local herdsman, not selection of a stranger whose identity remained unknown. In those circumstances, a parade conducted after the appellant's arrest would have added little and risked testing exposure after arrest rather than memory from the event. 52.The absence of a parade does not cure poor recognition, and I do not treat Katana as dispensing with scrutiny. The safeguards here lie in the prior familiarity claimed by PW1, the close and unobstructed encounter, the occupational description, and PW1's unwavering answer under cross-examination. The absence of a name and of the first-report witness has been weighed. On the whole evidence, the possibility that PW1 honestly mistook another cattle herder for the appellant is remote and is excluded beyond reasonable doubt. 53.The discrepancies in the immediate aftermath must next be confronted. PW1 said that after the man left, she went home, put on a sweater and slept. PW2 said that she and Lorna found CN crying at Mama Quinter's farm, took her home, changed her clothes and put her to bed. Read literally, the accounts differ on whether the child walked home alone or was accompanied. 54.That difference concerns a short interval after the assault. Both accounts converge that CN reached home bleeding, had her clothes changed and slept until her mother returned. PW1 was seven, in evident distress during testimony, and described the core assault before compressing the aftermath into “I went home.” Her statement did not expressly exclude the presence or assistance of the other children. PW2, who did not witness the offence, supplied greater detail about that later interval. 55.Other variances include whether the mother returned at 6.00 or 7.00 p.m.; whether Quinter was among all the children at every stage; and the imprecise meaning of PW2's word “later” when she said the child showed them the person. These matters deserved reconciliation, but none concerns the act of penetration or the features by which PW1 recognised the assailant. Richard Munene versus Republic [2018] KECA 186 (KLR) states the materiality threshold:“It is only when such inconsistencies or contradictions are substantial and fundamental to the main issues in question and thus necessarily creates some doubt.” 56.Human recollection, particularly by children recounting a traumatic event at different times, will not be uniform in every collateral detail. The Court must neither trivialise genuine contradictions nor demand a rehearsed identity of language. The differences here do not destroy the consistent core: the child disappeared while hiding, was found or returned injured and bleeding, described the offender by a familiar occupational role, was taken for emergency treatment, and sustained injuries objectively consistent with her account. 57.I turn to DNA. Section 36 of the Sexual Offences Act empowers, but does not compel, a court to direct forensic sampling where it may assist in determining whether the accused committed the offence. DNA is one evidential method; it is not a statutory ingredient of defilement. Oungo v Republic [2025] KECA 2280 (KLR), a Section 8(2) appeal, states the proposition directly: “The absence of a DNA test does not negate the prosecution's case.” 58.That proposition does not license investigative indifference. Once the court ordered samples and the prosecution elected to send garments and biological material for analysis, reasonable diligence required the result to be pursued and produced if available. The delay from 2024 until the close of the prosecution case in November 2025 is unsatisfactory. The extraordinary reference to samples from a “child” made proper forensic clarification especially desirable. 59.The record nevertheless shows non-completion, not suppression. The prosecutor sought summons for the analyst, informed the court on 7th October 2025 that the samples had not been processed, obtained an adjournment, and later disclosed that the report remained unready. There is no evidence that a completed result existed and was withheld, destroyed or selectively omitted because it was adverse. 60.Section 143 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. Under Bukenya & others versus Uganda [1972] EA 549, an adverse inference may arise where essential and available evidence is withheld and the prosecution case is barely adequate. In Yokongwa versus Republic [2022] KECA 897 (KLR), applying Bukenya and subsequent authority, the Court of Appeal reaffirmed the controlling condition:“It is only where the evidence called by the prosecution is barely adequate, that the court is entitled to draw an adverse inference.” 61.The analyst would not have proved age. Depending on what was sampled and the scientific result, the evidence might have supported or excluded a biological connection; but the Court cannot invent its contents. The prosecution case was not barely adequate. It contained direct recognition evidence, immediate complaint and bleeding, and compelling medical proof of recent penetration. I therefore decline to presume that an uncompleted report would have exonerated the appellant. 62.Nor is this an appropriate case for additional evidence or a retrial. Section 358 of the Criminal Procedure Code permits additional evidence on a first appeal where the Court considers it necessary and records reasons. There is no application supported by evidence that a report now exists, no proposed analyst or document before the Court, and no basis on which the probative content can be evaluated. An appellate court does not reopen a trial merely to discover whether an investigative lead might prove useful. 63.The alternative request for a retrial is also misconceived. The original trial was neither illegal nor rendered defective by the absence of optional forensic evidence. Fatehali Manji versus Republic [1966] EA 343 cautions that:“A retrial will be ordered only when the original trial was illegal or defective; it will not be ordered … to fill up gaps.” 64.The appellant seeks a retrial precisely so that the prosecution may complete evidence it did not have at the first trial. That would not serve the protective purpose of a retrial and could expose him to renewed proceedings without any vitiating error. Since the evidence already proves the charge, the request is unnecessary; if it did not, a retrial would not be used to rescue an insufficient case. 65.The trial court's statement that the defence was “not sufficient to rebut” the prosecution evidence was a misdirection in language. The appellant bore no duty to prove innocence, explain why the witnesses accused him or rebut a prima facie case. The presumption of innocence under Article 50(2)(a) of the Constitution remained operative until the prosecution proved guilt beyond reasonable doubt. 66.I have accordingly evaluated the sworn defence without placing any burden on the appellant. His evidence confirmed only that he worked as a cattle herder and was arrested at his employer's home. That is consistent with the occupational role by which PW1 said she knew the assailant, but occupation is not proof of identity and I attach no independent inculpatory weight to it. The appellant's denial of knowing the children did not explain away PW1's recognition, but he was not required to provide an explanation. The question is whether his account, viewed with all the evidence, raises a reasonable doubt. It does not. 67.The trial court also relied on the absence of a grudge. Lack of a proved motive to fabricate may be relevant when assessing a suggested frame-up, but it cannot substitute for proof of identity. I have not used it as such. The conviction rests on PW1's tested recognition, the surrounding evidence and the proof of penetration, not on any obligation upon the appellant to show why he might have been falsely accused. 68.On my independent evaluation, the prosecution proved each element beyond reasonable doubt: CN was seven years old; she suffered recent forceful genital penetration; and the appellant, a herdsman she had previously seen near home, was the person who penetrated her. The record errors, discrepancies and absent forensic result do not, singly or cumulatively, create a reasonable doubt. 69.I turn finally to sentencing. Section 8(2) of the Sexual Offences Act fixes the punishment for defilement of a child aged eleven or less in unequivocal terms:“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.” 70.The appellant's complaint draws together two related but distinct questions. The first is compulsion: whether Section 8(2) constitutionally permits only one punishment, so that mitigation cannot alter its form. The second is indeterminacy: whether imprisonment without a legislatively defined expiry or ordinary release date is constitutionally valid. The latter question cannot be answered merely by describing the offence as grave. 71.The constitutional concern is substantial. Article 28 provides:“Every person has inherent dignity and the right to have that dignity respected and protected.” 72.Article 29(f) prohibits cruel, inhuman or degrading punishment, a freedom which Article 25(a) makes non-derogable. Article 51(1) preserves for a prisoner every right except to the extent that it is clearly incompatible with incarceration, while Article 51(3) requires legislation for the humane treatment of persons imprisoned. To the extent that Articles 28 and 51 are capable of limitation, Article 24 requires legality, necessity and proportionality. Together, those provisions require punishment to respect the offender's continuing humanity. The strongest objection to an irreducible whole-life term is therefore not simply that it is long. It is that imprisonment without a realistic and reviewable prospect of release may extinguish hope, render rehabilitation legally irrelevant and detain a person after the penological grounds for continued confinement may have changed. 73.Constitutional invalidity, however, is neither presumed nor properly declared abstractly. Articles 165(3)(b) and (d) confer first-instance constitutional jurisdiction upon the High Court, but the impugned provision must be identified precisely, pleaded against the relevant constitutional text, and tested upon submissions and evidence from the affected parties. Here, the petition of appeal challenged proof of the ingredients, contradictions and corroboration. The constitutional attack upon life imprisonment appeared only in written submissions. The reliance on Article 27 was not particularised by identifying any comparator, differential treatment or prohibited ground. There was no pleaded prayer declaring section 8(2) of the Sexual Offences Act invalid; the Attorney-General and the correctional authorities were not parties; and no evidential record was developed on the operation of release and review mechanisms. This Court must decide the legality of the sentence, but this criminal appeal is not a procedurally adequate vehicle for a free-standing declaration of constitutional invalidity. 74.The doctrinal history matters. In Muruatetu & another versus Republic; Katiba Institute & 5 others (Amicus Curiae) [2017] KESC 2 (KLR), the Supreme Court declined to determine whether indeterminate life imprisonment was unconstitutional because the issue had not been sufficiently argued or passed through the judicial hierarchy. It nevertheless recognised the underlying problem:“A life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time.” 75.Muruatetu recommended legislation defining life imprisonment, possibly including a minimum period before parole or remission and provision for exceptional whole-life terms. It did not itself define life as a fixed number of years, invalidate every life sentence or extend its holding on the mandatory death penalty for murder to the Sexual Offences Act. 76.Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) (Petition E018 of 2023) [2024] KESC 34 (KLR) then held that a declaration against a statutory sentence requires a precise, properly filed and fully argued challenge. It distinguished the mandatory death sentence considered in Muruatetu from statutory sentencing floors and emphasised the constitutional allocation of legislative and judicial functions:“Where a sentence is set in Statute, the Legislature has already determined the course, unless it is declared unconstitutional.” 77.The Supreme Court did not in Mwangi (supra) conduct a merits adjudication validating every minimum or mandatory punishment. Its dispositive holding was narrower but binding: the Court of Appeal could not make a blanket declaration on an issue first raised in submissions, and the sentence imposed under section 8(2) remained lawful while that section remained valid. 78.The Supreme Court in Republic versus Ayako [2025] KESC 20 (KLR) applied the same reasoning to a life sentence under section 8(2). It set aside the Court of Appeal's conversion of life imprisonment into thirty years. On the constitutional question, which had not passed through the proper judicial hierarchy, it stated that it:“cannot delve into the question of the constitutionality of the sentence of life imprisonment, as it has not been cascaded through the proper channels.” 79.Republic versus Manyeso [2025] KESC 16 (KLR), delivered the same day, concerned the Court of Appeal's substitution of a forty-year term for life imprisonment under Section 8(2). It held that Muruatetu did not invalidate mandatory or minimum sentences in other statutes and that a court could not cure the absence of a legislative definition by selecting its own term. The separation-of-powers conclusion was expressed thus:“It is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts.” 80.Manyeso (supra) reinstated life imprisonment and held that the “life imprisonment sentence remains lawful.” Article 163(7) binds this Court to Ayako, Manyeso and Mwangi. The earlier Court of Appeal judgments in Manyeso v Republic [2023] KECA 827 (KLR) and Ayako versus Republic [2023] KECA 1563 (KLR), which declared an indeterminate term unconstitutional or translated life into forty or thirty years, were set aside and cannot now authorise that course. 81.The present statutory regime shows both the sentence's legal operation and its unresolved practical difficulty. Life imprisonment is not defined as a number of years. Section 46(1)(ii) of the Prisons Act excludes a prisoner sentenced to life from the ordinary one-third remission earned by industry and good conduct. Section 49 permits only a temporary absence on parole, for no more than fourteen days and within three months before a date on which a prisoner is already due for release; it therefore supplies no release date for a life prisoner. Rule 98 of the Prisons Rules requires periodic reports on prisoners serving life for consideration of the residue of sentence, but it does not create a judicially enforceable release date. 82.There is also the constitutional power of mercy. Under Article 133, the President, acting on the advice of the Advisory Committee, may pardon, postpone, substitute or remit punishment. Sections 19, 21 and 22 of the Power of Mercy Act permit a petition and allow the Committee, when considering admissibility, to take account of whether a life prisoner has served at least five years, followed by factors including the offence, time served, age, first-offender status, rehabilitation and the victim's representations. That mechanism means release or substitution is legally possible; it does not make release automatic. It remains an executive power of mercy, not a determinate judicial sentence or an entitlement to release upon rehabilitation. 83.The current position can therefore be stated precisely. A sentence of life imprisonment under Section 8(2) is lawful, operative and cannot be judicially converted into an arbitrary term of years. The normative question whether the combined absence of a defined term, ordinary remission and an enforceable periodic release review sufficiently protects dignity, proportionality and rehabilitation remains a serious one for a properly pleaded first-instance constitutional challenge. It is not an issue that this Court may resolve contrary to the binding orders in Ayako and Manyeso (supra) on the submissions and record in this appeal. Nor could the Court repair any constitutional defect by legislating thirty or forty years from the Bench. 84.The trial court received the appellant's mitigation and recorded that he was a first offender. Those considerations remain humanly and penologically relevant, but section 8(2), as the law presently stands, does not permit a sentence below life imprisonment. The facts were, in any event, gravely aggravating: a seven-year-old was pulled into a bush, silenced, threatened with a panga, penetrated and injured so severely that she bled actively, required ambulance transfer, surgery and a four-day admission. The trial court committed no sentencing error by imposing the punishment prescribed by law. 85.The record indicates that the appellant remained in pre-sentence custody for a substantial period. Ordinarily section 333(2) of the Criminal Procedure Code requires meaningful credit for pre-sentence custody against a determinate custodial term. The binding answer for an indeterminate life sentence is, however, supplied by Pascal versus Republic [2025] KECA 1559 (KLR):“Being an indefinite, indeterminate as opposed to a term sentence, the provisions of Section 333(2) of the CPC … do not apply.” 86.I am bound by Pascal (supra). There is therefore no lawful basis to convert, reduce or backdate the life sentence by reference to the period spent in remand. The challenge to sentence fails. DISPOSITION 87.The appeal against conviction is dismissed. The conviction for defilement contrary to section 8(1) as read with Section 8(2) of the Sexual Offences Act is upheld. 88.The appeal against sentence is dismissed. The sentence of imprisonment for life imposed on 23rd December 2025 is lawful and is affirmed. 89.Orders accordingly. DATED, SIGNED AND DELIVERED AT KISUMU THIS 21ST DAY OF JULY 2026HON. ALEX K. ITHUKUJUDGEDelivered Electronically…………………………………. For the Appellant…………………………………. For the RespondentMr. Gitonga – Court Assistant