https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6352

Ndirangu v Republic (Criminal Appeal E032 of 2025) [2026] KEHC 6352 (KLR) (6 May 2026) (Judgment) Neutral citation: [2026] KEHC 6352 (KLR) Republic of Kenya In the High Court at Nyeri Criminal Appeal E032 of 2025 DKN Magare, J May 6, 2026 Between Francis Nyingi Ndirangu Appellant and Republic Respondent Judgment 1.This Appeal arises from the Judgement of the Trial Court, Hon. M. Gituma, Senior Resident Magistrate in Nyeri CMCSO No. E018 of 2024. 2.The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. 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. 3.The particulars of the offence were that on 16.3. 2024 at around 1400hrs [Particulars Withheld] village within Tetu subcounty of Nyeri County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of RWG, a child aged 8 years. 4.The Appellant was arraigned and he denied the charges. A plea of not guilty was consequently recorded. 5.The Trial Court considered the case and rendered the Judgement on 3.6.2025. The Court found the Appellant guilty and convicted him of the offence of defilement. The Appellant was sentenced to 50 years imprisonment. 6.The Appellant, aggrieved, lodged this Appeal. The Petition of Appeal dated 4.6. 2025 and amended on 4.8.2025 raised the following Grounds:a.The learned trial magistrate erred in convicting the Appellant to serve a life sentence contrary to the prevailing circumstances and law.b.The learned trial magistrate erred in law and fact in failing to find that the prosecution had not proved its case beyond reasonable doubt as key ingredients were not proved.c.The learned trial magistrate erred in law and fact in failing to consider that the Appellant was unrepresented and was it informed of right to legal representation.d.The learned trial magistrate erred in law and fact in failing to consider the Appellant’s defence. Evidence 7.At trial, PW1, the minor testified that on 16.3.2024 she had gone to her friend and was returning home. The Appellant held her hand. He locked her to his bedroom. He removed her clothes and did tabia mbaya to her. He inserted his private part into her private part. He said he would kill her if she told anyone. 8.The Appellant told her to leave. She wore her clothes near the tree and left for home. When the appellant did tabia mbaya, she felt pain. It was Saturday. She told her mother on Sunday night. Her mother took her to Gichira Hospital. They also went to police station. On cross examination, it was her case that she had testified on what the Appellant did. It was Saturday 16.3.2024. She did not go to his house; he dragged her into his house. He dragged her from the gate. She tried to scream but he held her. 9.PW2 was JKL, the complainant’s mother. PW1 was her daughter. The Appellant was her neighbour. PW1 was 9 years. She was born on 24.5.2015. On Sunday 17.3.2024 while they were watching news, PW1 told her that she had something to tell her. PW1 then said that the Appellant came to the shop and asked if PW1 could accompany him. She refused. On 16.3.2024, he dragged her when she was outside his gate, into his house and defiled her. They reported the matter to the police. On cross examination, PW2 testified that she did not send any persons to the Appellant’s house. She did not ask the Appellant to lent her money. 10.PW3 was PC Monica Isika, No. 26xxx3 of Gichira Police Station. The matter was reported to her on 17.3.2024. she escorted PW1 to the health facility. Based on the evidence in the medical records- PRC and P3 forms and the birth certificate, she was satisfied that the Appellant was culpable and hence recommended that he be charged. 11.PW3 was Maxwell Mwangi, the registered nurse at Gichira Health Centre. She produced the PRC form. On examination of the private parts of PW2, the hymen was broken. The upper genitalia was swollen. There was blood discharge. 12.PW5 was Dr. Nderitu Marvin Gathigu. He was senior medical officer at the Nyeri County Referral Hospital. He produced the P3 Form. It was dated 24.4.2024. Approximate age of injuries was 1 month. The degree of injury was harm. The external genitalia had mild edema. Hymen was broken with signs of penetration. There was bloody discharge vaginally. On cross examination, there was inflammation he could not confirm who the offender was. 13.The Appellant also testified on oath as DW1. He testified that he was 77 years old. The complainant was his neighbour. He had disputes over the macadamia he had sold to PW2. She complained that it was 1 Kg when in fact it was 3Kg. On 16.3.2024, he was at work making clothes. His work place was at his home, outside his house. He saw the complainant. She was sent to see if he was at work. She did not enter his house. It was 1030am. She left. After 30 min, he went to check who PW1 had said was looking for him. He saw two people near boda-boda. He came back. The next day, 17.3.2024 he went to buy cigarettes from PW2. PW1 was the one in the shop selling. He paid Ksh. 50 for the cigarettes and PW1 gave change if Ksh. 30. Later at 7pm, he heard a knock on the door and the people arrested him. Submissions 14.The Appellant filed submissions. They are dated 4.8.2025. He submitted that the mandatory minimum sentence imposed breached the constitution on proportionality and ought to be overruled. He cited Articles 23(1),27,28, 50 and 165 of the constitution. He also relied on Protas Buliba Shikuku v AG (2012)e KLR. 15.He submitted that a noncustodial sentence ought to have been imposed and relied on Section 4 of the Probation of Offenders Act. He also cited the International Convention on Civil and Political Right’s article 10(2) based on which he submitted that the principal consideration ought to be his rehabilitation. 16.Further, the Appellant submitted that he was not informed of his right to counsel. He cited Section 43 of the Legal Aid Act and also relied on inter alia, Joseph Kiema Philip v Republic to submit that the trial was unconstitutional. 17.It was also submitted that the Respondent did not prove the ingredients of the offence. He cited the case of Fappyton Mutuku Ngui vs. Republic [2012] eKLR Joel Ngugi J. said:Going by this definition of defilement, I agree with Mr. Mwenda on the issues which the court needs to determine. The first is whether there was penetration of the complainant’s genitalia; the second is whether the complainant is a child; and finally, whether the penetration was by the Appellant. 18.It was also submitted that the Appellant’s defence was not considered. He stated that what was stated in cross examination was not considered. Reliance was placed on Boniface Mweresa Ahosi v Republic (2018)eKLR, in regard to the question where a grudge is raised. he submitted that when a reasonable defence of false accusation renders an accusation unfair. 19.The Respondent also submitted via the submissions dated 26.2.2026 that all the ingredients of the offence being defilement, penetration, age and identity were proved beyond reasonable doubt. Reliance was placed inter alia on Simon Kipngetich Rotich Republic (2021) eKLR. 20.It was also submitted that at page two of the proceedings, that the Appellant requested to be given a pro bono lawyer. He appointed an advocate after he was found with case to answer. The Respondent submitted that the defence of the Appellant was considered. 21.On sentence, it was submitted that the sentence was proper as prescribed under the law and should be upheld. Reliance was placed on Section 8(1) (2) of the Sexual Offences Act. Analysis 22.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. 23.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. 24.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. 25.Brennan addressed the standard of proof required in such cases, J 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. 26.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. 27.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. 28.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. 29.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. 30.The Appellant was charged with defilement contrary to Section 8(1) & (2) of the Sexual Offences Act No. 3 of 2006. I note this to be in error as PW1 was said to be 11 years old. I reproduce Section 8 (1)-(4) of the Sexual Offences Act as follows:Defilement(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. 31.This court dealing with the instant appeal is entitled to consider the evidence in the trial court as a whole as being submitted a fresh 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. 32.The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt and whether the sentence was excessive. 33.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.’” 34.The parameters that were to be proved in cases such like the instant case were settled in the case of George Opondo Olunga vs Republic [2016] eKLR that the ingredients of the offence of defilement are proof of complainant’s age, proof of penetration and proof of the identification of the perpetrator. 35.At trial, PW1 was candid. The court conducted voire dire and established her proper understanding of the significance of oath. To this court, I have no doubt that the then 9-year-old minor’s testimony was explicit and comprehensive about what transpired. She is a well-articulated girl and I must commend her. She displayed her versions of the events that led to her ordeal thus: when she was passing by the Appellant’s gate, the Appellant held her. He dragged her to his bedroom. He locked it. He removed her clothes and inserted his private into her private part, He did tabia mbaya. She tried to scream but he held her. She felt pain. After he finished, he warned her that he would kill her if she told anyone. She left. Outside where there was a tree, she stopped and wore her clothes and then went home. It was Saturday the 16.3.2024. She did not tell her mother as she feared. She however told her mother the next day, 17.3.2024 which was a Sunday. 36.The above testimony was corroborated by PW2 and the medical evidence of PW4 and PW5. It was their uncontroverted medical evidence was that PW1 had blood in her genitalia and the upper genitalia was swollen with edema. The home was broken. They formed the opinion that PW1’s vagina was penetrated. 37.On the issue of identification, in my close reevaluation, I note that identification was by recognition and was equally not a disputed fact that the Appellant was known to PW1 as her neighbour. The Appellant’s defence was only that the allegations were not true and that he saw PW1 on the material day when she was sent to enquire whether he was at work. He never elaborated the manner in he could not be at the locus quo and appeared to agree that he was at home at the material time when the incident was alleged to have occurred at his house. His allegation that he was at the work place did not create any alibi following his admission that his work place was within his home. 38.Therefore, the evidence of PW1, PW2, PW4 and PW5 left no doubt in my mind that the Appellant committed the offence herein. Emphatically, the evidence of PW1 was typically unshaken in cross examination. 39.Age is such a crucial component in sexual offences that it points to the extent of punishment for the offenders. This was also the position of the court in Kaingu Kasomo vs. Republic, Criminal Appeal No. 504 of 2010 (UR), where the Court of Appeal stated doth:“Age of the victim of 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.” 40.The age of the minor herein could be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof. In Mwalengo Chichoro Mwajembe vs Republic, Msa. App. No. 24 of 2015 (UR) the court held:“…………. the question of proof of age has finally been settled by decisions of this court to the effect that it can be proved by documentary evidence such as a birth certificate, baptism card or by oral evidence of the child is sufficiently intelligent or the evidence of the parents or guardian or medical evidence, among other credible forms of proof…. 41.Medical evidence is not necessary in determining the age of the victim, unless there is contestation. A doctor is the only person who could professionally determine the age of the victim. In Francis Omuroni vs Uganda, CR. A 2/200 it was held:“In defilement cases, medical evidence is paramount in determining the age of the victim and the doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from medical evidence age may also be proved by a birth certificate, the victim’s parents or guardian and by observation and common sense. …. 42.The age herein was proved by the production of the Birth Certificate. There was no necessity of medical evidence. The birth certificate stated that PW1 was born on 24.5.2015 and so was 8 years old. The birth certificate was registered on 31.5.2015 which was proper and credible analyzed with the surrounding evidence and circumstance. 43.Consequently, I have no basis to interfere with the discretion of the trial court who, based on the birth certificate and the projection by the medical report applied the age of 8 years. The court exercised discretion in accordance with the law. In the case of Ramakant Rai vs. Madan Rai, Cr LJ 2004 SC 36, the Supreme Court of India rendered itself thus on the issue of judicial discretion:“Judicial discretion is canalized authority not arbitrary eccentricity. Cardozo, with elegant accuracy, has observed:“The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not a yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life.’ Wide enough in all conscience is the field of discretion that remains”. 44.The Appellant also lamented that his right to legal representation was infringed as he was not accorded an opportunity to be represented by counsel. The court notes that he was recommended for a pro bono lawyer and there was an advocate who emerged as representing him during defence hearing. 45.It would indeed be mandatory if the Appellant, charged with an offence whose penalty was death, presented a case that substantial injustice would be occasioned against him if he was unable to afford legal representation, and none was availed at the expense of the Respondent. in the case of Mokaya v Republic (Criminal Appeal E020 of 2023) [20241 KEHC 4607 (KLR) it was held W.A Okwany, J that“In the instant case, I note that even though the trial Court did not inform the Appellant of his right to legal representation, such failure was not fatal or prejudicial to the Appellant’s case as the record shows that he understood the charges brought against him and that he competently cross examined all the prosecution wellnesses. Il is also noteworthy that the Appellant h)as not charged with a capital offence whose penalty is death so as lo necessitate the mandatory requirement for legal representation, I find that the trial court conducted a fair trial and that the Appellant did not suffer any injustice due to lack of legal representation. 46.In this case, I do not see any way in which the fact that the Appellant had no legal representation in the trial court affected his right to a fair hearing. The hearing was done within the tenets of the law and the Appellant was given full opportunity in which he chose the language to use and proceeded to cross examine all witnesses. 47.I do not find that there were procedural lapses that vitiated the trial. the trial was properly conducted. The right to be informed of counsel is important but does not vitiate a trial, especially where an accused understands the trial as in this case. It is important that the courts indicate that they have informed the accused of the right to be represented. this was done in this case. However, not every failure result 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. 48.The above case was appeal 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 49.The question of legal representation was not addressed by the appellant in the court below. It was not one of the matters that court was deciding. However, this being the first appellate court, it is entitled to look at the legality of the proceedings. The proceedings as a whole upheld the appellant’s right to fair trial there was no substantial loss suffered by the question of the two legal provisions deal with above. 50.The Appellant appealed that the sentence was excessive and harsh. He was sentenced to serve life imprisonment. Under Section 8(2) of the sexual offences Act, the term of imprisonment was life imprisonment for defilement of a child aged 11 years and below. 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. 51.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. 52.The sentence was therefore the mandatory minimums created by statute and the trial court cannot be faulted for imposing it. I dismiss the Appeal. Determination 53.I make the following final Orders:i.This Appeal is devoid of merit and is dismissed in limine.ii.Right of appeal 14 days.iii.File is closed. DELIVERED, DATED AND SIGNED AT NYERI, VIRTUALLY ON THIS 6TH DAY OF MAY 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ms. Muchomba for Mr. Kimani for the Appellant.Appellant present.Mr. Kihara for the RespondentCourt Assistant – Michael / MartinM.D. KIZITO, J.