https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6421

Muchoki v Republic (Criminal Appeal 123 of 2023) [2026] KEHC 6421 (KLR) (12 May 2026) (Judgment) Neutral citation: [2026] KEHC 6421 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal 123 of 2023 DKN Magare, J May 12, 2026 Between Francis Gichiri Muchoki Appellant and Republic Respondent (Being an appeal from the Judgment of the trial court, Hon. J. Irura (Principal Magistrate) in Kigumo PMCSO No. 87 of 2019 delivered on 22.2.2023.) Judgment 1.This appeal arises from the Judgment of the trial court, Hon. J. Irura (Principal Magistrate) in Kigumo PMCSO No. 87 of 2019 delivered on 22.2.2023. 2.The Appellant was charged with rape contrary to Section 3(1)(a)(c ) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 8.7.2019 in Magarua Subcounty of Murang’a County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of JMW without her consent. 3.There was an alternative charge of committing an indecent act with an adult contrary to Section 11(A) of the Sexual Offences Act, 2006. The particulars were that on 8.7.2019 in Magarua Subcounty of Murang’a County, the Appellant intentionally and unlawfully touched the vagina of JMW with his penis against her will. 4.The Appellant was arraigned on 09.12.2019 and he denied the charges. A plea of not guilty was consequently recorded. 5.The trial court considered the case and rendered Judgment. The Court found the Appellant guilty and convicted him of the offence of rape and the offence of robbery with violence. The Appellant was also sentenced to 10 years imprisonment. 6.The Appellant, aggrieved, lodged this appeal. The Petition of Appeal raises the following material grounds:a.The learned trial magistrate erred in law and fact in convicting the Appellant against the weight to evidence.b.The learned trial magistrate erred in law and fact in failing to find that the Respondent had not proved case beyond reasonable doubt.c.The learned trial magistrate erred in law in failing to find that the complainant was a person of mental disability and therefore the charge sheet was fatally defective.d.The learned trial magistrate erred in law in imposing a harsh and excessive sentence. Evidence 7.At trial, PW1 was the grandmother of the complainant. It was her case that on 8.7.2019, about 6 am, she sent the complainant to the shop to collect clothes. She took long to come back. PW1 then went asking if someone had seen her. To the shop where she sent the complainant, it was said the complainant had not come. There was a sound in the nearby home sounding like a metal being hit. The Appellant’s brother’s wife told PW1 that the complainant had been locked in the house and they were breaking the door to get her out. The Appellant was removed by his father. The complainant was shouting that she was naked. 8.Her further testimony was that the Appellant then emerged from the house after it was broken into. He threated to kill PW1 wondering whether it was her who he had slept with. There was commotion and she went to her home. Later on in the evening the complainant was brought by the Appellant’s brother’s wife. She observed that the complainant had discharge from her vagina. In the morning, she took the complainant to hospital. 9.The Appellant had fled after the incident. After some days, PW1 got wind that the complainant was again seen with the Appellant. She trolled them and found the duo in a maize plantation. She screamed and the Appellant ran away. The complainant was about 24 years and she had mental retardation. She could not cook. 10.In cross examination, it was her stated case that the Appellant’s father broke the house. The appellant was seen fleeing the scene. 11.PW2 was JM, the complainant. Voire Dire was done. She was found not to understand the meaning of oath, though was an adult. It had been recognized earlier that she was suffering from mental disabilities. 12.PW2 gave unsworn testimony. Her grandmother sent her to take clothes to the tailor. The Appellant met her along the way and took her to his house and locked her in the house and had not consented. She did not marry him but the appellant did bad manners to her. On another day, she was sent to take milk for sale in the morning. The Appellant again met her and asked her they go into bushes. She did not want to go to the bushes. The Appellant again did bad manners to her. On cross examination, she testified that the Appellant got hold of her and took her to his house. She was taken to hospital. 13.PW3 was Moses Karingi Gichiki, the Clinical Officer attached to Maragua subcounty hospital. He examined PW2 on 8.7.2019. She had abnormal discharge. Hymen was old broken. There were numerous pus cells indicating infection. He produced P3 form, treatment notes, lab request form and PRC. He concluded that the complainant had been raped. He produced exhibits. On cross examination, he stated that the rape took place on 8.07.2019 at around 8.00 am and was brought to the hospital the same day. 14.PW4 was No. 51xxx CPL Nicholas Korir of Maragua Police Station. PW1 reported that PW2 had been raped. He referred PW2 to be examined in hospital. They went to look for the Appellant. He had fled to Nanyuki. He returned in the same year. He was arrested. He was culpable and so was charged. The complainant was 24 at the time of the rape. 15.DW1 was the Appellant. He gave unsworn testimony. He had been working for the complainant’s grandmother, PW1. They had a dispute over money. She falsely accused him. PW2 was not found in his house and there was no witness to testify as such. Submissions 16.The Appellant filed submissions dated 23.12.2024. It was submitted that the court erroneously relied on medical evidence including abnormal discharge, old broken hymen and infection to convict when the ingredients of the offence were not proved. 17.It was submitted that there was no evidence that PW2 was of mental incapacity as no psychiatrist or mental examination report was produced. 18.He also submitted that if PW2 was of mental disability, the correct charge should have been Section146 of the Penal Code. The said section states as follows:Any person who, knowing a person to be a person suffering from mental illness, has or attempts to have unlawful carnal connection with him or her under circumstances not amounting to rape, but which prove that the offender knew at the time of the commission of the offence that the person was a person suffering from mental illness, is guilty of a felony and is liable to imprisonment with hard labour for fourteen years. 19.He cited Musa Kiprotich Kitilit v Republic (2012) eKLR and prayed that the conviction be quashed as the charge sheet was fatally defective. He submitted that infections are not evidence of rape. Reliance was placed on Reuben Muoki Mulei v Republic [2014] KEHC 4208 (KLR), where LN Mutende J, held as follows:The trial court believed that the infection was circumstantial evidence. It has been stated that circumstantial evidence must be closely examined before basing a conviction on it. In Teper versus Republic [1952] AC at page 489 Lord Normand said:“Circumstantial evidence must always be narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another… it is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference”.Urinary tract infection may be caused by bacteria or germs. They may be of different types like urethritis, cystitis or pyelonephritis. The clinical officer said both the appellant and the complainant had pus cells which were indication of urinary tract infection but he did not classify what type each had. It was also not stated when exactly each one of them contracted it. It could therefore not be said with certainty that the infection was as a result of the contact as stated by the trial magistrate. 20.The Appellant submitted a broken hymen is not proof of sexual assault. Reliance was placed on the case of P.K.W v Republic [2012] KECA 103 (KLR), where the court of appeal [K.H. Rawal and D.K. Maraga]stated, [in a judgment not signed by O’Kubasu JA but delivered pursuant to the provisions of Rule 32(3) of the Court of Appeal Rules(repealed)], as follows:16.Hymen, also known as vaginal membrane, is a thin mucous membrane found at the orifice of the female vagina with which most female infants are born. In most cases of sexual offences we have dealt with, courts tend to assume that the absence of hymen in the vagina of a girl child alleged to have been defiled is proof of the charge. That is, however, an erroneous assumption. Scientific and medical evidence has proved that some girls are not even born with hymen. Those who are, there are times when hymen is broken by factors other than sexual intercourse. These include insertion into the vagina of any object capable of tearing it like the use of tampons. Masturbation, injury, and medical examinations can also rupture the hymen. When a girl engages in vigorous physical activity like horseback riding, bicycle riding, and gymnastics, there can also be natural tearing of the hymen. See the Canadian case of The Queen Vs Manual Vincent Quintanilla, 1999 ABQB 769. 21.He submitted that there was no evidence of mental incapacity as the medical officer found that the complainant was mildly retarded. He noted that the court relied on her testimony and not medical evidence. 22.He submitted that he was not properly identified. He stated that eye witnesses were not called and he was convicted on hearsay. He cited the case of Paul Kanja Gitari v Republic [2016] KECA 741 (KLR), where the court of appeal [Nambuye, Koome & Kiage, JJA] stated as follows:However, it has long been the law that when the prosecution calls evidence that is barely adequate, then the failure to call vital witnesses may entitle the court to draw an inference that had such witnesses been called, their evidence would have been adverse to the prosecution case. See Bukenya & Others Vs. Uganda [1972] EA 549. 23.He submitted that the offence he was charged with could not be charged under section 3 of the Sexual Offences Act. He relied on the case of Edwin Odongo Aol v Republic [2021] KEHC 2732 (KLR), where R.E. Aburili posited as follows:29.As a preliminary issue, I observe that the appellant was charged with and convicted of rape contrary to section 7 of the Sexual Offences Act. I also observe that the offence of rape is created both under the Sexual Offences Act and the Penal Code. Section 7 of the Sexual Offences Act provides as follows:“ 7.A person who intentionally commits rape or an indecent act with another within the view of a family member, a child or a person with mental disabilities is guilty of an offence and is liable upon conviction to imprisonment for a term which shall not be less than ten years.” 30.The Section 7 of the Sexual Offences Act offence is not an offence for the rape of a person with mental disabilities. The latter is the subject of an offence under section 146 of the Penal Code. Section 7 of the Sexual Offences Act proscribes the rape or committing an indecent act with another within the view of a family member, a child or a person with mental disability. In the section 7 of the SOA offence, the person with mental disability is the spectator while in section 146 of the Penal Code offence, the person with mental disability, therein called an XXXXXXXXle, is the victim. It therefore follows that the appellant was charged with an offence that falls under a different statute-the Penal Code instead of under the Sexual Offences Act.31.The question to be resolved by the court is the impact of a defective charge upon which the appellant was convicted and sentenced by the trial court. The remedy for defective proceedings is retrial. The court must however consider the facts and circumstances of the case to determine whether the proceedings were defective and whether there should be an order for a retrial or whether the court should quash the conviction and set aside the sentence without more. (Redaction by myself). 24.On sentence, it was submitted that 10 years was excessive and harsh. 25.The Respondent filed submissions dated 24.11.2025 by which it was submitted that the Respondent proved the ingredients of the offence and the court properly convicted and sentenced the Appellant. 26.It was submitted that the Respondent framed and proved the charges under section 3 of the Sexual Offences Act and section 146 of the Penal Code governing circumstances not amounting to rape. This case related to circumstances amounting to rape of a 24-year-old mentally challenged woman who could not consent and which categorized it as nonconsensual sexual penetration. Reliance was placed on Charles Ndirangu Kibue v Republic [2016] eKLR). The complainant lacked capacity to consent. Reliance was placed on section 43(4) of the Sexual Offences Act. The offence was said to have been constituted under section 3(1) of the Sexual Offences Act. 27.On the sentence, it was submitted that the sentence imposed against the Appellant was lawful and there was no basis to interfere with the court’s discretion in sentencing. They submitted that section 3(1)(a)(c) of the Sexual Offences Act provides for minimum sentence. He can also be liable for life sentence under section 3(3) of the Penal Code. Reliance was placed on Benard Kimani Gacheru v Republic (2002) eKLR. It was submitted that the sentence given was minimum. Reliance was placed on the Supreme Court decision in Republic v Manyeso [2025] KESC 16 (KLR). The sentence was stated to be lawful, but arguably lenient. Analysis 28.This being a first appeal, this court is under a duty to reevaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence firsthand. The Court of Appeal for Eastern Africa in Pandya vs Republic [1957] EA 336 held as follows:On a first appeal from a conviction by a Judge or magistrate sitting without a jury the appellant is entitled to have the appellate court’s own consideration and views of the evidence as a whole and its own decision thereon. It has the duty to rehear the case and reconsider the witnesses before the Judge or magistrate with such other material as it may have decided to admit. The appellate court must then make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it. When the question arises which witness is to be believed rather than another and that question turns on manner and demeanor, the appellate court must be guided by the impression made on the judge or magistrate who saw the witness but there may be other circumstances, quite apart from manner and demeanor which may show whether a statement is credible or not which may warrant a court different. 29.On a first appeal, the appellant is entitled to a fresh and exhaustive reevaluation of the evidence on record, with the appellate court drawing its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. In the case of Okeno v Republic [supra], the East Africa Court of Appeal stated on the duty of the court on a first appeal:An appellant on a first appeal is entitled to expect the evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v. R., [1957] E. A. 336) and to the appellate court's own decision on the evidence. The first appellate court must itself weigh conflicting evidence and draw its own conclusions. (Shantilal M. Ruwala v. R., [1957] E.A. 570). It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to support the lower court's findings and conclusions; it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate's findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses, see Peters v. Sunday Post, [1958] E. A. 424. 30.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. 31.Brennan addressed the standard of proof required in such cases, in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at page 36164 that:The accused, during a criminal prosecution, has at stake interests of immense importance, both because of the possibility that he may lose his liberty upon conviction and because of the certainty that he would be stigmatized by the conviction…Moreover use of the reasonable doubt standard is indispensable to command the respect and confidence of the community. It is critical that the moral force of criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned. 32.Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. Lord Denning in Miller vs. Ministry of Pensions, [1947] 2 ALL ER 372 had this to say:That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. 33.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. 34.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. 35.Courts dealing with criminal matters must always remain mindful of the high standard of proof required and the serious consequences that a conviction imposes on an accused. The standard of proof beyond reasonable doubt applies, particularly given the nature of criminal offences, whose consequences extend beyond the individual to society at large. A conviction and sentence as a sexual offender carries a lifelong stigma and can only be justified based on indisputable evidence. 36.Therefore, this Court will not interfere with the exercise of judicial discretion by the court below unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 37.This court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted afresh to be subjected to exhaustive examination to guide the court towards its own decision on the evidence. In Kiilu & Another vs. Republic [2005]1 KLR 174, 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. 38.The issue for this court’s determination is whether the prosecution proved the offence of rape and robbery with violence as against the Appellant beyond reasonable doubt. 39.The offence of rape is created under Section 3 of the Sexual Offences Act as follows:1.A person commits the offence termed rape if-a.He or she intentionally and unlawfully commits an act which causes penetration with his or her genital organs;b.The other person does not consent to the penetration; orc.The consent is obtained by force or by means of threats or intimidation of any kind.2.In this section the term "intentionally and unlawfully" has the meaning assigned to it in section 43 of this Act.3.A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life 40.Section 43 (4) of the Sexual Offences Act provides thus:Intentional and unlawful acts…(4)The circumstances in which a person is incapable in law of appreciating the nature of an act referred to in subsection (1) include circumstances where such a person is, at the time of the commission of such act-a.Asleep;b.Unconscious;c.In an altered state of consciousness;d.Under the influence of medicine, drug, alcohol or other substance to the extent that the person's consciousness or judgment is adversely affected;e.Mentally impaired; orf.A child.(5)This section shall not apply in respect of persons who are lawfully married to each other. 41.Proof beyond reasonable doubt does not impose a standard of proof beyond the shadow of a doubt. Where the evidence tendered is so strong as to leave only a remote possibility in favour of the accused person, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, then it can be said in law that the case is proved beyond reasonable doubt. It was held by the Court of Appeal in Moses Nato Raphael vs. Republic [2015] eKLR as doth:“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.’” 42.PW1 and PW2 testified in support of the charge. PW1 testified that PW2 was in the house of the Appellant. When the house was broken in in order to remove PW1, the Appellant emerged therefrom and warned PW1, asking her to go back home. Albeit she was described to be of retarded mind, the unsworn evidence of PW2 was clear that the Appellant did bad manners to her on two occasions. The first one was taking clothes to the tailor and the second was when she was taking milk for sale. 43.On identification, this was by recognition by virtue of neighborhood. The Appellant did not challenge identification. In R –vs- Turnbull & Others (1973) 3 ALL ER 549, which decision has been generally accepted and greatly used in our judicial system, the Court considered the factors that ought to be considered when the only evidence turns on identification by a single witness. The Court stated doth:The Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have with the Accused under observation? At what distance? In what light? Was the observation impeded in any way...? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? how long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? Recognition may be more reliable than identification of a stranger but even when the witness is purporting to reorganize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made…. 44.On penetration, the oral evidence tendered by PW2 and PW1 was corroborated by medical evidence. There were numerous pus cells. The treatment notes noted a mild tenderness. No tears seen. There was no spermatozoa in her vagina. I find no basis to disturb the factual finding of the learned trial magistrate. 45.The ingredients for the offence of rape to be proved are;PenetrationLack of consentCoercion/Force to obtain consent 46.PW2 was said to be of low mental capability. In any event, the charge was not that she consented to the sex in her state. It was that the Appellant forced her into sex. That was her testimony. Psychiatric or mental assessment report were unnecessary since what was lacking was consent. Once the prosecution proved that the sex was not consensual, it was irrelevant whether the complainant was mentally retarded. The prosecution charged under a proper section. 47.However, it is noted that the sentence under Section 146 is more severe. If the appellant wishes that the court increase the sentence to 14 years, he can apply. However, in so far as the offence of rape is concerned, it was proved that there was no consent from the complainant. She testified that she did not want sex and she was not married to the Appellant. The appellant forced her into sex. The appellant was caught in flagrante delicto. It is his own father who broke the house to rescue the complainant. 48.The defence by the Appellant did not reveal that he might have taken her by her consent through her conduct. It was also not his defence that he did not know her to be of low mental capacity. The defence was a sieve that could not stand. 49.Further, Section 146 of the Penal Code applies to an offence that does not amount to rape. In this case, it was rape. Section 146 is thus not the proper section. There was no defect in the charge that was preferred. 50.The proper and applicable section was 3, but the circumstances did not bar a charge properly brought under Section 7 as read with Section 43 of the Sexual Offences Act. I dismiss the submission by the Appellant that the charge was defective merely because it ought to have been framed under the Penal Code. 51.I am also fortified by the reasoning in Republic -vs- Oyier [1985] KLR 35 where the Court of Appeal observed as follows:1.The lack of consent is an essential element of the crime of rape. The mens rea in rape is primarily an intention and not a state of mind. The mental element is to have intercourse without consent or not caring whether the woman consented or not.2.To prove the mental element required in rape, the prosecution had to prove that the complainant physically resisted or, if she did not, that her understanding and knowledge were such that she was not in a position to decide whether to consent or resist.3.Where a woman yields through fear of death, or through duress, it is rape and it is no excuse that the woman consented first, if the offence was afterwards committed by force or against her will; nor is it any excuse that she consented after the fact. 52.The last aspect is identification. The appellant was identified by the complainant. It was clear that she was recovered from the appellant’s house with the help of the appellant’s father. The appellant was recognized by the complainant. The recognition was not lost. In the case of Reuben Taabu Anjononi, Benjamin Akisa Anjononi and Monya Anjononi v Republic [1980] KECA 23 (KLR), the court of appeal [ Madan, Law & Potter JJ A] posited as follows:The proper identification of robbers is always an important issue in a case of capital robbery, emphatically so in a case like the present one, where no stolen property is found in possession of the accused. Being night time the conditions for identification of the robbers in this case were not favourable. This was, however, a case of recognition, not identification, of the assailants; recognition of an assailant is more satisfactory, more assuring, and more reliable than identification of a stranger because it depends upon the personal knowledge of the assailant in some form or other. We drew attention to the distinction between recognition and identification in Siro Ole Giteya v The Republic (unreported). 53.In the end the appeal fails and is accordingly dismissed. The appeal against conviction fails. 54.The sentence imposed of 10 years was not the maximum, as the maximum would be life imprisonment. Section 3(3) of the Sexual Offences Act provides as follows:(3)A person guilty of an offence under this section is liable upon conviction to imprisonment for a term which shall not be less than ten years but which may be enhanced to imprisonment for life. 55.What does liable to mean? section 26 of the Penal code provides as follows:1)A sentence of imprisonment for any offence shall be to imprisonment or to imprisonment with hard labour as may be required or permitted by the law under which the offence is punishable.(2)Save as may be expressly provided by the law under which the offence concerned is punishable, a person liable to imprisonment for life or any other period may be sentenced to any shorter term. 56.The sentence meted out was not the maximum sentence. The Supreme Court has settled the question of minimum sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life years imprisonment. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] where it was posited as follows:11.Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed12.Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu, which had to remain binding to all courts below.13.The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 57.Further, the same position was reiterated by the supreme court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where it 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. 58.From the foregoing, the appeal on sentence lacks merit and is accordingly dismissed for lack of merit. 59.The only question not done was the period for starting the sentence. The appellant was sentenced on 22.2.2023. The appellant was arrested on 6.12.2019. He was on bond between 16.1.2020 and 22.2.2023. There is always need to have regard to the time spent in custody. Determination 60.I make the following final orders:a.This appeal on conviction and sentence is unmerited and is dismissed in limine.b.However, the sentence shall run from the date of arrest, 6.1.2019 excluding the period the appellant was on bond between 16.1.2020 and 22.2.2023.c.14 days right of appeal.d.File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 12TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ms. Mutava for Juma for the AppellantMr. Kihara for the RespondentAppellant presentPC Pius Kimathi at Nyeri Maximum Security PrisonCourt Assistant – Michael/Martin