https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8283

Muthoni v Republic (Criminal Appeal E062 of 2022) [2026] KEHC 8283 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 8283 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E062 of 2022 DKN Magare, J June 3, 2026 Between Isaac Ndungu Muthoni Appellant and Republic Respondent Judgment 1.This appeal arises from the Judgment of the trial court, Hon. E. Agade (Senior Resident Magistrate) in Kigumo SO No. 61 of 2019 given on 18.10.2022. The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. The particulars of the offence were that on 24.8.2019, at Makuyu location of Murang’a County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of MN, a child aged 10 years. 2.There was also an alternative charge of committing an indecent act with a child contrary to Section 11(1) of the Sexual Offences Act, 2006. The particulars were that the Appellant on 24.8.2019, at Makuyu location of Murang’a County intentionally touched the vagina of MN, a child aged 10 years. 3.The Appellant was arraigned on 26.08.2019 and he denied the charges. A plea of not guilty was consequently recorded. He was granted bond of Ksh. 100,000/=. Later the appellant attempted to have the matter withdrawn in vain. 4.The trial court considered the case and rendered Judgment on 18.10.2022. The Court found the Appellant guilty and convicted him of the offence of defilement. The Appellant was also sentenced to serve 20 years imprisonment. The Appellant, aggrieved, lodged this appeal. The Petition of Appeal dated 11.11. 2022 raising the following grounds:a.That, the learned trial magistrate erred in law and fact by convicting and sentencing on a case that violated unlimited right of fair hearing under Article 25 and 50 (2) of the CoK.b.That, the learned trial Magistrate erred in law and fact by failing to find that the ingredients of the offence were unproven.c.That, the learned magistrate erred in law and fact by convicting and sentencing on case that evidence was not corroborated, thus scanty to warrant conviction and harsh sentence.d.That, the learned trial magistrate erred on both law and facts by relying on evidence full of material contradictions and afterthoughts.e.That, the learned trial magistrate erred on both law and facts by failing to take into account the appellant’s plausible defense and mitigation and shifting the burden to the appellant.f.That, the learned trial magistrate erred on both law and facts by imposing a minimum mandatory sentence, that is unconstitutional and violates Article 160 of the CoK.g.That, the learned trial magistrate erred on both law and facts by failing to consider the time I in remand pursuant to section 333(2) of the CPC. Evidence 5.At trial, PW1 was the minor. She was born in 2007 and was in class 6. The Appellant was her father. On 24.8.2019 at 1000hrs, her mother sent her to the shop to buy flour. On way back, she met the Appellant. He took her to a vegetable farm and did bad manners to her. He removed her panties but she had her outer clothes on. She was lying on the ground. While the Appellant had his clothes on, he opened his trouser zip and removed his private part which he put into her private part. She felt a lot of pain. Some white things came out and fell on the ground. They were like mucus. He used his shirt to wipe them. This was the second time. She wore her panty and he escorted her up to the gate home. She went in and told her mother what had happened. 6.In cross examination, she testified that she went to the shop alone. It was Saturday. He took her to the scene by force. He forced her to lie down. No blood came out, just white things. She was coming back from shop. He was seated by the road side. He called her mum to find out if the minor had reached home but her mum said she had not and then he waited for her on the road. 7.PW2 was Erick Mwangi Njoroge. He was a clinical officer from Makuyu Health Centre. He relied the PRC and P3 forms. He examined PW1 on 24.8.2024. The hymen was partially broken. There were epithelial cells indicative of trauma in the vagina. No discharge noted. There were lacerations on labia. On cross examination, lacerations showed fresh vaginal trauma. 8.PW3 was No. 97314 PC Antoine Adhiambo. He was not at the police station when the incident was reported. He arrested the Appellant in the absence of the victim. He was arrested at Kwa Wanjiku Shopping Centre. 9.PW4 was No. 229827 PC Njoroge Joseph. He was the investigating officer in the matter. The minor was born on 10.3.2007 and was 12 years. He produced the birth certificate. He perused the P3 and PRC Forms and listened to the minor. Upon investigations, the Appellant was suspected to be person who committed the offence and therefore charged with the offence. 10.The Appellant also testified on oath as DW1 after the court found him with a case to answer. He chose to give unsworn testimony. He testified that he married in 2017. He used to work on a farm. He we home and found his wife with other men in the house. The wife ran away. On 25.8.2019, he woke up in the morning and prepare to take milk to the shop. His wife came and said she would return the children to him. He advised that the children were too young. She abused him and said he would spend his days in jail. The chief came and arrested him and he was surprised it was not a case of domestic disputes but defilement. Submissions 11.The Appellant filed submissions on 4.8.2024. He submitted that the ingredients of the offence were not proved. Further reliance was based on the case of Alfayo Gombe Okello v Republic [2010] KECA 319 (KLR), where the court of appeal [J.E. Gicheru, S.E.O. Bosire and P.N. Waki] held as follows:In its wisdom, Parliament chose to categorise the gravity of that offence on the basis of the age of the victim, and consequently, the age of the victim is a necessary ingredient of the offence which ought to be proved beyond reasonable doubt. That must be so because dire consequences flow from proof of the offence under section 8 (1). Does the reference to “a child under the age of sixteen years” invalidate a charge framed under section 8 (3) of the Act which only relates to a “child aged between the age of twelve and fifteen”? We do not think so. That is because the provisions of the Act are amenable to the test of “failure of justice” provided for under section 382 of the Criminal Procedure Code, stating in relevant part that:“…..no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered on appeal….. on account of an error, omission or irregularity in the complaint………..charge or other proceedings………..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.” 12.They submitted that the court did not prove age of the minor and the clinical officer did not assess the age. 13.They submitted that the appellant’s identity was not proved or DNA on the suspect. The Appellant also submitted that the Sexual Offences Act was used to settle disagreements with his wife. It was further submitted that there were material contradictions. He relied on the case of Maitanyi v Republic [1986] KECA 39 (KLR), where the court of appeal [Nyarangi, Platt & Gachuhi JJA] addressed the question of a single identifying witness 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.”In this case there is no other evidence, circumstantial or direct. The decision must turn on the need for testing with the greatest care the evidence of this single witness. Is that what the courts below really did? 14.He relied on Holy Scriptures to buttress his point. This was set out in Deuteronomy 19:11. He however quoted a nonexistent verse. The most relevant should be verse 21, where in is decreed that, show no pity: life for life, eye for eye, tooth for tooth, hand for hand, foot for foot. Unfortunately, as a minster of the law, the court is not qualified to disseminate any theological instructions. The court shall keep itself within the altar of justice, in the light of separation of state and religion. 15.Further reliance was given to the case of Roria v. Republic [1967] E.A. 583, where the court of appeal held as follows:“A conviction resting entirely on identity invariably causes a degree of uneasiness, and as Lord Gardner L.C. said recently in the House of Lords in the course of debate on S.4 of the Criminal Appeal Act 1966 of the United Kingdom which is designed to widen the power of the court to interfere with verdicts. There may be a case in which identity is in question, and if any innocent people are convicted today I should think that in nine cases out of ten - if there are as many as ten - it is in a question of identity". 16.They placed further reliance on the cases dealing with the power of the first appellate court. 17.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 vs Republic [1957] EA 336 and Okeno v Republic [1972] EA 32 at 36. 18.He submitted that the case is based on suspicions. He relied on the case of Sawe v Republic [2003] KECA 182 (KLR). He did not elaborate on submissions. He submitted that there was no evidence of penile penetration and identity of the identity of the attackers was not known. reliance was placed on the case of Fappyton Mutuku Ngui versus Republic [2012] eKLR. He relied on the case of JOO v Republic (2015) eKLR: 19.He maintained that the investigator was wrong to believe the minor and not him. He submitted that the hymen was partially broken and the age of the break was not established. He relied on the case of Ben Maina Mwangi v Republic [2006] KEHC 974 (KLR), where J, held as follows:The next issue to determine is whether there was conclusive evidence given to show that the Complainant had been defiled. I was not happy with the Doctor’s evidence. He was meticulous to record all his finding on the Complainant and even the Appellant. However, he overlooked the most important aspect of the examination which was to show the age of the injuries he found on the Complainant. It is unacceptable that the Doctor saw the hymen missing and presence of laceration on the anus but failed to give the age of these injuries. That appears to have been deliberate and in my view the learned trial magistrate should not have let the Doctor go free. At the end of the day the Doctor’s findings were very important, were positive to findings of defilement but fell short of connecting the findings to the Appellant by failing to connect the injuries to the time of the offence. The Doctor’s findings did not connect the date of the alleged defilement of the Complainant with the age of the injuries noted. It was worthless evidence for purposes of this case. 20.He submitted that lack of the hymen does not mean that there was defilement. The same way that it could also prove lack of penile penetration. Reliance was placed on the case of PKW V Republic. He submitted that there were material contradictions. He relied on the case of Paul Kanja Gitari v Republic [2016] KECA 741 (KLR), where the court of appeal held as follows:The first appellate court seems not to have dealt with those contradiction and inconsistencies in the prosecution evidence with the effect that we find merit with the appellant's complaint that his appeal did not benefit from the thorough, exhaustive and independent re-evaluation that he was entitled to. They should have been interrogated and resolved in the appellant's favour. 21.The discrepancies could not be assumed to be trivial but substantive. Reliance was placed in the case of John Mutua Munyoki v Republic [2017] KECA 376 (KLR), where the court of appeal [Makhandia, Ouko & Murgor, JJ.A.)] held as follows:Clearly the High Court failed to evaluate the veracity of all these contradictions and discrepancies. To our mind these contradictions and inconsistencies are not minor as submitted by the respondent. They were critical and go to the root of the prosecution case and whether the complainant was a credible and truthful witness. If the complainant could lie as to what led her to report to school late, what else did she lie about 22.He submitted that no investigations were carried out on the grudge and proof was below standards. He stated that there were substantial doubts and the appellant needed only to raise a single doubt. He relied on the cases of Elizabeth Waithegani Gatimu v Republic [2015] eKLR to argue that any benefit of doubt should go to an accused and that the guilt must be proved beyond reasonable doubt. 23.He submitted that the sentence was manifestly excessive. He submitted that if the appeal fails, the mandatory sentence of 20 years is manifestly harsh, excessive, emotional and not based on actual evidence. He submitted that the court can reduce the same. Reliance was placed on the case of Nyale v Republic [2018] KEHC 4441 (KLR), where Odinga J, as he then was stated as follows:43.the approach to be adopted in determining an appropriate sentence where a minimum sentence is prescribed was set out in S v Malgas 2001 (2) SA 1222SCA 1235 paragraph 25 as follows:“What stands out quite clearly is that the courts are a good deal freer to depart from the prescribed sentences than has been supposed in some of the previously decided cases and that it is they who are to judge whether or not the circumstances of any particular case are such as to justify a departure. However, in doing so, they are to respect, and not merely pay lip service to, the Legislature's view that the prescribed periods of imprisonment are to be taken to be ordinarily appropriate when crimes of the specified kind are committed.”44.Therefore the provisions of a legislation that was in force before the Constitution of Kenya, 2010 such as the Sexual Offences Act. No. 3 of 2006 must be construed with the said adaptations, qualifications and exceptions when it comes to the mandatory minimum sentences and particularly where the said sentences to not take into account the dignity of the individuals as mandated under Article 27 of the Constitution as appreciated in the Muruatetu Case. 24.He made further reliance on the case of Philip Maingi Mueke v Republic [2021] eKLR, and Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [2024] KESC 34 (KLR). 25.The Respondent filed submissions on 9.9.2025. They submitted that the case was proved beyond reasonable doubt. They relied on Okeno v Republic (1972) EA 32 and George Opondo Olunga v Republic (2016) eKLR, Mark Oiruri Mose v Republic [2013] KECA 67 (KLR), Kennedy Harold Ouma v Republic [2020] KEHC 1896 (KLR) 26.It was their submissions that age of them minor can be proved by medical document, credible evidence and not necessarily the exact month of birth. They relied on the case of Onsongo v Republic [2016] KEHC 4738 (KLR). 27.Reliance was placed on the case of Keter v Republic (2007) eKLR and Section 124 of the Evidence Act. They submitted that the court may convict on sole evidence of complainant. 28.It was also submitted that there were no inconsistencies and contradiction that were material. Reliance was placed on Peter Ngure Mwangi v Republic (20140) eKLR. On sentence, it was submitted that sentence was in accordance with the minimum by law stipulated. Reliance was placed on section 8(2) of the Sexual Offences Act. Analysis 29.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. 30.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. 31.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. 32.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. 33.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. 34.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. 35.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. 36.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. 37.The law under which the appellant was charged is provided under Section 8 of the Sexual Offences Act as hereunder:8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(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.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen 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.1.On the other hand, the appellant was charged with an alternative count under Section 11 of the Sexual Offences Act, which provides as follows:(1)Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.(2)It is a defence to a charge under subsection (1) if it is proved that such child deceived the accused person into believing that such child was over the age of eighteen years at the time of the alleged commission of the offence, and the accused person reasonably believed that the child was over the age of eighteen years.(3)The belief referred to in subsection (2) is to be determined having regard to all the circumstances, including the steps the accused person took to ascertain the age of the complainant.(4)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act (Cap. 92) and the Children's Act (Cap. 141)(5)The provisions of subsection (2) shall not apply if the accused person is related to such child within the prohibited degrees of blood or affinity. 39.In the case of Charles Wamukoya Karani v. Republic, Criminal Appeal No. 72 of 2013, it was held that the essential elements constituting the offence of defilement are the age of the complainant, proof of penetration, and positive identification of the assailant. These key ingredients of the offence of defilement, were similarly elucidated in the case of George Opondo Olunga v Republic [2016] eKLR as;a.Proof of the age of the complainant,b.Proof of penetration andc.Proof that the appellant was the perpetrator of the offence. 40.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. 41.The issue for this court’s determination is whether the prosecution proved the offence of defilement against the Appellant beyond reasonable doubt. The subsidiary question relates to sentence. 42.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.” 43.At trial, the material testimony of the minor as to the charges before the trial court was that on the 24.8.2019, her mother sent her to the shop at about 1000hrs. She was coming back from the shop when the Appellant forced her into the vegetable plantation where he lay her on the ground. He then removed her pants without removing her outside clothes which however were never described. He also unzipped his trouser without removing it and he projected his penis which he inserted unto her vagina. She felt pain. 44.She stated that there was no one else who witnesses. The appellant then escorted her up to the get home. She went in and finding her mother, she narrated to her what had happened. Her mother took her to Makuyu Hospital. The next day, the chief came but did not find the Appellant in the morning. Later, Wangeci, a neighbour came and took the Appellant away. 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.The standard of proof required in such cases was addressed by Brennan, J in the United States Supreme Court decision in Re Winship 397 US 358 {1970}, at pages 361-64 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 stigmatised 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.Courts in criminal cases should consider the standard of proof and the effect of a conviction on the accused person. In this case, the Appellant was sent in for life imprisonment. This must be a serious offense that requires the clearest view of the evidence to justify keeping the Appellant behind bars for life. Proof beyond reasonable doubt was the standard, also based on the nature of criminal offences, whose punishment went beyond the effect on the individual to the state. Conviction and sentence as a sexual offender were a badge that a convict could only deserve based on undoubted evidence. 48.In proving the case against the Appellant, the Respondent had the burden to dislodge the 3 key ingredients of the offence of defilement as held in George Opondo Olunga v Republic [2016 ] eKLR which are:i.Proof of the age of the complainant,ii.proof of penetration andiii.proof that the appellant was the perpetrator of the offence. 49.Section 8 of the Sexual Offences Act provides as follows:“8.(1)A person who commits an act which causes penetration with a child is guilty of an offence termed defilement.(2)A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life.(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.(4)A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.(5)It is a defence to a charge under this section if -(a)it is proved that such child, deceived the accused person into believing that he or she was over the age of eighteen years at the time of the alleged commission of the offence; and(b)the accused reasonably believed that the child was over the age of eighteen years.(6)The belief referred to in subsection (5) (b) is to be determined having regard to all the circumstances, including any steps the accused person took to ascertain the age of the complainant.(7)Where the person charged with an offence under this Act is below the age of eighteen years, the court may upon conviction, sentence the accused person in accordance with the provisions of the Borstal Institutions Act and the Children’s Act.(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.” 50.The first element is age. 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.” (emphasis added). 51.Age had to be proved just like penetration and identity for conviction to be sustained. In the case of Kaingu Elias Kasomo vs. Republic Malindi, the Court of Appeal in Criminal Appeal No. 504 of 2010 stated as follows:Age of the victim of the sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 52.The 3 ingredients were reiterated in 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.” 53.In this case, age was proved by birth certificate. The minor was born on 10.3.2007. There was no basis to state in the charge sheet that the minor was 10 years old as at the alleged 24.8.2019, date of the offence. She was clearly 12 years 5 months and 13 days old. The parity was material as it would affect sentence under Sections 8(2) and (3) of the Sexual Offences Act. If the age would be proved to be 11 years and below, the Appellant on conviction would be imprisoned for life imprisonment and if the age was 12-15 years, it was 20 years imprison. In this case, there was no basis for granting 20 years imprisonment when the charge sheet stipulated 10 years as the age and the birth certificate proved 12 years as the age. The Court of Appeal in the case of Edwin Nyambogo Onsongo Vs Republic (2016 eKLR stated as follows on the proof of age:“... the question of proof of age has finally been settled by recent decision of this court to the effect that it can be proved by documents, evidence such as birth certificate, baptism, card or by oral evidence of the parents or the guardian or medical evidence among other credible form of proof. We think that what ought to be stressed is that whatever the nature of the evidence preferred in proof of the victims age it has to be credible and reliable. 54.In any case this was a daughter. The appellant knew the age. There is nothing thus the appellant produced to challenge the age. The question of age is thus dismissed. 55.Turning to 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…. 56.Identification was by recognition as the Appellant had lived with the minor and her mother in the same house and the minor knew him as her father. 57.On penetration, the same was proved by evidence of the minor and the medical evidence. The minor testified that the Appellant removed his penis via his zip and inserted it into her vagina and she felt pain. The medical report found partially broken hymen with laceration on the labia. There was no blood or discharge. Penetration was thus proved. 58.The Appellant was convicted on evidence of the daughter. The grudge between her mother and the appellant could be there. However, there is no evidence of a grudge between the minor and the father. The offence was done not once but twice. In the circumstances, I find that the case was proved. The testimony of the minor was also that the Appellant called her mother to inquire whether she had come home from the shop. Her mother responded that she had not come. The Appellant then waited for the minor by the road. The trial court did not consider this testimony which discredited the truthfulness of the minor. The minor could have not known that the Appellant called her mother. However, this did not raise doubt as to the veracity of the evidence by the minor on the offence itself. Some of the matters, like the call between parents is hearsay but does not remove the offence from having been committed. 59.Courts have held that minor and not major contradictions in the glare of overwhelming evidence to establish the guilt of the Accused person cannot go to the root of disproving guilt. 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.” 60.The alleged contradictions are minor and of no effect to the guilt of the appellant. 61.The appellant submitted that he was not given a fair trial since he was facing a serious sentence. He was facing a life sentence . He stated that tenets of Article 50 (2)(g) and (h) were not complied with. This provide that the court should not just inform the appellant as an accused the rights, but where a substantive injustice is likely to occur, to direct that legal representation be provided. The said sub-Articles provide as follows:(g)to choose, and be represented by, an advocate, and to be informed of this right promptly;(h)to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly; 62.The articles must be read in conjunction with other provisions of the constitution, so that the constitution is read holistically. There was no indication that the appellant was informed of his right to legal representation. However from the proceedings it is apparent that the appellant did not suffer any substantial injustice. It is important that the courts indicate that they have informed the accused of the right to be represented. However, not every failure results in a mistrial. In the case of Manyeso v Republic [2023] KECA 827 (KLR), the court of appeal [P Nyamweya, JW Lessit & GV Odunga, JJA] held as follows:This court (Kairu, Mbogholi-Msagha and Nyamweya JJA) held in William Oongo Arunda (Hitherto referred to as Patrick Oduor Ochieng) v Republic (Criminal Appeal 49 of 2020) [2022] KECA 23 (KLR) that the operative circumstance that triggers the necessity of legal representation in criminal proceedings is where substantial injustice would occur arising from the complexity and seriousness of the charge against the accused person, or the incapacity and inability of the accused person to participate in the trial. The court also noted that it should be standard practice in every criminal trial for the accused person to be informed, at the onset, of his right to legal representation since the Constitution demands it. However, in the present appeal, the appellant did not raise the issue of legal representation either in the trial court and the High Court, and the record of the trial court shows that the appellant participated in the trial and cross-examined the witnesses, and it is not evident that he suffered any or any substantial injustice. For these reasons, we do not find any merit in the appellants arguments that their rights to a fair trial on under articles 50(2)(g) and 50(2)(h) of the Constitution were violated. 63.The above case was appealed and the Supreme Court in Republic v Manyeso [2025] KESC 16 (KLR) held as follows:similarly, in Gitonga v Republic (Petition 11 of 2017) [2020] KESC 61 (KLR) we faulted the Court of Appeal for entertaining the question of legal representation as one of the grounds of appeal despite acknowledging that it was never raised in the courts below. In our determination, we stated as follows:“It is in that regard not disputed that the question as to whether the appellant’s right to fair trial was infringed by failure to accord him legal representation at the expense of the state or by failure to inform him of the right to legal representation was raised for the first time at the Court of Appeal. We have also interrogated the record before us and confirmed that the issue was neither raised at the Resident Magistrate’s Court nor at the High Court. None of the articles of the Constitution in the present appeal was also the subject of interpretation and application at the High Court….”55.Therefore, we agree with the submissions made by the appellant that the Court of Appeal acted ultra vires when it determined in the first instance whether the life sentence imposed upon the respondent was constitutional. In the same vein, this court cannot delve into the question of the constitutionality of the sentence of life imprisonment, as it has not been raised and determined by the High Court and cascaded through the proper channels 64.The right to fair trial was not affected at all. In any case the court is obligated in making its decisions to act in the best interest of the minor, who was aged 10 years, as injuncted in article 53(2) of the Constitution. The appeal on conviction is therefore dismissed. 65.The court then has to deal with the issue of sentence. The nature of sentences under the Sexual Offenses Act is circumscribed. This particular offence under section 8(1) and (2) of the Sexual Offences Act provides for a mandatory sentence of life years imprisonment. The question of such sentences was addressed in the case of Republic v Mwangi; Initiative for Strategic Litigation in Africa (ISLA) & 3 others (Amicus Curiae) [supra] where the Supreme Court, [MK Koome, CJ, MK Ibrahim, SC Wanjala, N Ndungu & I Lenaola, SCJJ] posited as follows:11.Mandatory sentences and minimum sentences as punishment in law have been commonly prescribed by legislatures worldwide but recently, various apex courts of several countries such as Canada, the USA, Australia, and South Africa as well as the European Court of Human Rights have struck down both mandatory life imprisonment as well as minimum sentences in an effort to move towards the approach of proportionality in punishment based on the actual crime committed12.Before Kenyan courts could determine whether or not the prevailing trends and decisions were persuasive, there ought to be a proper case filed, presented and fully argued before the High Court and escalated through the appropriate channels on the constitutional validity or otherwise of minimum sentences or mandatory sentences other than for the offence of murder. That was the Supreme Court’s approach and direction in Muruatetu , which had to remain binding to all courts below.13.The Court of Appeal failed to identify with precision the provisions of the Sexual Offences Act it was declaring unconstitutional, left its declaration of unconstitutionality ambiguous, vague and bereft of specificity. That approach was problematic in the realm of criminal law because such a declaration would have grave effect on other convicted and sentenced persons who were charged with the same offence. Inconsistency in sentences for the same offences would also create mistrust and unfairness in the criminal justice system. Yet the fundamental issue of the constitutionality of the minimum sentence may not have been properly filed and fully argued before the superior courts below. 66.Further, the same position was reiterated by the Supreme Court in its decision in Republic v Manyeso [2025] KESC 16 (KLR), where is stated as follows:Paragraph 11 to 14 of the Muruatetu directions are very clear that the decision in the Muruatetu case did not invalidate mandatory sentences or minimum sentences in the Penal Code, Sexual Offences Act or any other statute. Further, that the Muruatetu case cannot be said to be the authority for stating that all provisions of the law prescribing minimum sentences are inconsistent with the Constitution. Paragraphs 93 to 97 of the Muruatetu decision are also explicit that it is not for the court to define what constitutes a life sentence. While we appreciated that a life sentence could mean a certain minimum or maximum time to be set by a judicial officer, this court made the following recommendations to the Attorney General to develop legislation on what constitutes a life sentence:94.We recognize that although the Judiciary released elaborate and comprehensive Sentencing Policy Guidelines in 2016, there are no specific provisions for the sentence of life imprisonment, because it is an indeterminate sentence. Nevertheless, we are in agreement with the High Court decision in Jackson Wangui, supra, which found that it is not for the court to define what constitutes a life sentence or what number of years must first be served by a prisoner on life sentence before they are considered on parole. This is a function within the realm of the Legislature.95.We also acknowledge that in Kenya and internationally, sentencing should not only be used for the purpose of retribution, it is also for the rehabilitation of the prisoner as well as for the protection of civilians who may be harmed by some prisoners. We find the comparative jurisprudence with regard to the indeterminate life sentence is compelling. We find that a life sentence should not necessarily mean the natural life of the prisoner; it could also mean a certain minimum or maximum time to be set by the relevant judicial officer along established parameters of criminal responsibility, retribution, rehabilitation and recidivism.96.We therefore recommend that the Attorney General and Parliament commence an enquiry and develop legislation on the definition of ‘what constitutes a life sentence’; this may include a minimum number of years to be served before a prisoner is considered for parole or remission, or provision for prisoners under specific circumstances to serve whole life sentences. This will be in tandem with the objectives of sentencing.65.From the above paragraphs of the Muruatetu case any reading of that decision ought to lead to the conclusion that it is upon the Legislature to enact legislation on what constitutes a life sentence and not the courts. 67.The minor was aged 10 years. Even if the minor had been aged 17 years, given that the appellant was her father, he was still to be sentenced for life imprisonment, had he been charged with incest. In this matter, he was charged with defilement under section 8(2) that carries a mandatory life sentence. The 20-year sentence is thus unlawful. A life sentence is therefore proper. Determination 68.I make the following final orders:a.This appeal on conviction and sentence is devoid of merit and is dismissed in limine.b.The sentence is set aside and substituted with a life sentence.c.14 days right of appeal.d.File is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 3RD DAY OF JUNE, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Mr. Kihara for the RespondentPC Martin Kimanzi at Nyeri Maximum Security PrisonPro se AppellantCourt Assistant – Martin