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Ngugi v Republic (Criminal Appeal E023 of 2025) [2026] KEHC 6503 (KLR) (12 May 2026) (Judgment) Neutral citation: [2026] KEHC 6503 (KLR) Republic of Kenya In the High Court at Murang'a Criminal Appeal E023 of 2025 DKN Magare, J May 12, 2026 Between Moses Mutogia Ngugi Appellant and Republic Respondent Judgment 1.This appeal arises from the Judgment of the trial court, Hon. E. W. Wambugu (Senior Resident Magistrate) in Kandara PMCSO No. E052 of 2020. 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 12.7.2020 at around 10.00 am at Chania Coffee Estates in Muthuri location, Gatanga subcounty of Murang’a County, the Appellant intentionally and unlawfully caused his penis to penetrate the vagina of MW, a child aged 9 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 of the offence were that on 12.7.2020 at around 10.00 am at Chania Coffee Estates in Muthuri location, Gatanga subcounty of Murang’a County, the Appellant intentionally touched the vagina of MW, a child aged 9 years with his penis. 3.The Appellant was arraigned on 15.07.2020 and he denied the charges. A plea of not guilty was consequently recorded. He was granted bond of Ksh. 150,000/= and released on 22.07.2020. 4.The court is constrained to observe that the charge, as drafted by the Office of the Director of Public Prosecutions, leaves much to be desired. The name of the minor is set out in full instead of being anonymised. The prosecutor’s guide to children in the criminal justice system provides at 2.2.3 as follows:The prosecutor shall ensure that the name of the child, identity, home, last place of residence, school, particulars of the child’s parents and/or relatives and any other information that may disclose the identity of the child is not revealed by using initials in the charge sheet and any other public document, including statements and publications. 5.The foregoing is in line with section 94 of the Children’s Act which provides as follows:Where in any proceedings relating to an offence against or by a child, of a sexual nature, a person who, in the opinion of the Court, is under the age of eighteen years is called as a witness, the Court shall direct that such witness be protected by one or more of the following measures-(a)allowing such witness to give evidence under the protective cover of a witness protection box;(b)directing that the witness shall give evidence through an intermediary pursuant to Article 50(7) of the Constitution;(c)directing that the proceedings do not take place in open Court;(d)prohibiting the publication of the identity of the complainant or of the complainant’s family, including publication of any information that may lead to the identification of the complainant or the complainant’s family;(e)any other measure which the Court deems just and appropriate; or(f)any other safeguards provided under the Witness Protection Act, 2006 (No. 16 of 2006) or any other written law. 6.It is my sincere hope that this is the last time that the breach will occur. Anonymising is not option but peremptory. This was also the position under Section 76(5) of the repealed Children Act. It provided as follows:In any proceedings concerning a child, whether instituted under this Act or under any written law, a child’s name, identity, home or last place of residence or school shall not, nor shall the particulars of the child’s parents or relatives, any photograph or any depiction or caricature of the child, be published or revealed, whether in any publication or report (including any law report) or otherwise. 7.The trial court considered the case and rendered Judgment. The Court found the Appellant guilty and convicted him of the offence of defilement. The Appellant was also sentenced to life imprisonment. 8.The Appellant, aggrieved, lodged this appeal. The Petition of Appeal challenged the findings on conviction and sentences materially on the ground that the offence was not proved beyond reasonable doubt, the defence and submissions of the Appellant were not considered, existence of contradictions and, that no independent witnesses were called. Evidence 9.The court carried out voire dire and gave unsworn evidence. At trial, PW1, the minor testified that on 12.7.2020, it was Sunday and she was along the road. She was fetching twigs to make a broom. She testified that she resided with her grandmother at [Particulars Withheld] Estate. At about 10.00 am, the Appellant requested her to accompany him to his house, and she obliged. Upon arrival, she remained at the doorway. The Appellant gave her Kshs. 10/= and instructed her not to disclose the matter to anyone, before pulling her into the house and locking the door. He took her to his bed, removed her clothes and did tabia mbaya. He was wearing a black trouser and purple short which he removed. She screamed and a neighbour came and knocked. 10.The Appellant jumped out of bed and sat on the chair. It was a man who knocked but the Appellant opened. The man asked if the appellant could do such a thing. He denied and gave the complainant a pen and paper to write 1-10. Her grandmother found her there and asked what she was doing but she kept quiet. The minor later went home and told her mother. She was born 30.12.2011. She was 9 years. On cross examination, she knew the Appellant. Her friend P told her the name of the Appellant, Mose. 11.On cross examination, she went to police station. She had gone to the Appellant before. He would give her work. He could charge her grandmother’s phone. He had not done such a thing earlier. She had gone to the Appellant to eat sugar cane. On that day, the radio was on in the Appellant’s house and was playing loud music. When the Appellant opened the door, she was wearing her clothes. 12.PW2 was TN. On 12.7.2020, she went to her mother’s house. She helped her to wash clothes. PW1 used to be called L though her true name was MW. She asked P where PW1 was and P said the Appellant had called PW1. Later, PW1 came walking abnormally. She refused to say who gave her the Ksh. 10/= until she assured her she will not beat her. PW1 then said the Appellant gave her. He also did tambia mbaya by removing her clothes and putting his thing into her thing. They went to report to police. On cross examination, P was a daughter to her friend. The doctor confirmed what PW1 said. 13.PW3 was LW. She found PW1 inside the Appellant’s house. She asked PW1 what she was doing. She kept quiet. She then asked PW1 to leave. She found PW1 dressed and writing down with a pen. She did not know what had happened. They reported to Ndururumo Police Station. 14.PW4 was Dr. Gachanja, the medical doctor. He examined the minor on 12.7.2020 and noted a bruised hymen and vaginal walls. There was mucus discharge. Epithelial cells seen. On cross examination, no spermatozoa. Any blunt object including penis would cause injury. The injuries were one day old. 15.PW5 was PN. She could not remember the date. The Appellant called PW1. She did not know where they went. When she was going to mama N, she saw PW1’s sweater on the ground. She took it to PW1’s mother. On cross examination, no one told her what to say. 16.PW6 was No. 60106 Sgt. Isaac Ngugi of Ndurumo Police Station. Sgt. Kavai was on duty on 12.7.2020 when the incident was reported. The birth certificate showed PW1 was born on 30.3.2011. He did not know the Appellant. 17.PW7 was Inspector Geoffrey Kavai. He investigated the matter. He recorded witness statements of the witnesses. He relied on P3 form and medical evidence and established that the Appellant was culpable and recommended that he be charged with the offence before court. 18.The Appellant testified as DW1. On 12.7.2020, he worked at [Particulars Withheld] Estates and was in charge of coffee nursery. He knew PW1. He met her at 11 am on the road. He met PW1 on a road through a bush. He questioned where she was from. She followed the Appellant on his route home. PW1 said she wanted sugarcane. It was 20m from his house. They got to his house. He asked PW1 to pick a panga and check if there was ready sugarcane to harvest. She found and cut. LM, a neighbor, was out washing clothes. 19.The Appellant said he did not commit the offence. PW1’s grandmother was looking for her. She found PW1 in his house. The case was fabricated. PW1’s mother wanted work but there was none. He advised her to wait until vacancies arise. On cross examination, he stated that they fixed him because they thought he refused to employ PW1’s mother. 20.PW2 was LMM. He was the Appellant’s neighbour. He saw a female child eating sugarcane. He was outside doing his chores. He entered his house for about 20 minutes. When he came out, he did not see PW1. He did not hear any happening or screams. Submissions 21.The Appellant filed submissions. They are dated 17.9.2025. It was submitted that the trial court did not consider evidence and submissions of the Appellant. It was submitted that the court relied only on the evidence of the complainant contrary to Section 11 of the Evidence Act. Section 11 of the Evidence Act provides as follows:Facts not otherwise relevant are relevant -(a)If they are inconsistent with any fact in issue or relevant fact; or(b)If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable. 22.The Appellant further submitted that there were contradictions which ought to have been interpreted in favour of the Appellant. He relied inter alia on DOO v Republic (2019) eKLR. It was further submitted that the ingredients of the offence were not proved beyond reasonable doubt. He relied inter alia on Section two of the Sexual Offences Act and Wanyonyi v Republic (Criminal Appeal 312 of 2018) [2019] KECA 679 (KLR), where the court of appeal stated as follows:19.The complainant PW 1 testified she had sexual intercourse with the appellant as a result of which she became pregnant. On his part, the appellant did not challenge the evidence on having sexual intercourse with the complainant; the age of the complainant as 14 years is not disputed; his defence is that he is not the one who impregnated the complainant.20.An essential ingredient in the offence of defilement is penetration not impregnation. In F O D - v -Republic [2014] eKLR, it was stated in order to secure a conviction for the offence of defilement under the Sexual Offences Act, the prosecution must establish that the person has committed an act which causes penetration with a child. Penetration under section 2 of the Act means, the partial or complete insertion of the genital organs of a person into the genital organs of another person.21.The appellant asserts he is not the person who impregnated the complainant. Whether the victim of a sexual offence is impregnated or not is irrelevant to the ingredient of the offence of defilement. The appellant contends that no DNA was conducted to prove that he was responsible for impregnating the complainant. In Aml v Republic [2012] eKLR (Mombasa), this Court upheld the view that:The fact of rape or defilement is not proved by way of a DNA test but by way of evidence.22.This was further affirmed in the case of Kassim Ali v Republic Cr. App. No. 84 of 2005 (Mombasa) where the court stated:… [The] absence of medical examination to support the fact of rape is not decisive as the fact of rape can be proved by the oral evidence of a victim of rape or by circumstantial evidence. 23.On sentence, it was submitted that the sentence was harsh, excessive and punitive. He cited the sentencing guidelines in Francis Karioko Muruatetu & Another v Republic [2017] eKLR. He submitted that that his constitutional rights under article 50 (2)(p) were violated. 24.The Respondent also submitted via the submissions dated 26.1.2026. It was submitted that the 3 ingredients of the offence were proved beyond reasonable doubt. It was also submitted that there were no inconsistencies. Reliance was placed inter alia on Erick Onyango Ondeng’ v Republic [2014] KECA 523 (KLR), where the court of appeal [Githinji, Musinga & M’inoti, JJ.A] stated as follows:The alleged contradictions on where the defilement took place does not amount to much when it is borne in mind that the charge and the evidence adduced related to the defilement in the appellant’s house, although PW2 had testified that the appellant had put his penis in her vagina on another occasion at the communal sink.Nor do we think much turns on the alleged contradictions on the time of commission of the offence. The trial court, after hearing all the evidence accepted that the offence was committed at about 7 pm in accordance with the evidence of PW2. As noted by the Uganda Court of Appeal in TWEHANGANE ALFRED VS UGANDA, Crim. App. No 139 of 2001, [2003] UGCA, 6 it is not very contradiction that warrants rejection of evidence. As the court put it:With regard to contradictions in the prosecution’s case the law as set out in numerous authorities is that grave contradictions unless satisfactorily explained will usually but not necessarily lead to the evidence of a witness being rejected. The court will ignore minor contradictions unless the court thinks that they point to deliberate untruthfulness or if they do not affect the main substance of the prosecution’s case. 25.They also submitted that any minor inconsistency is not fatal as it is trifling. They relied on the case of Ndolo Musyoki v Republic [2022] KEHC 26917 (KLR), where the court stated as follows:19.As was stated in John Cancio De SA vs. V N Amin Civil Appeal No. 27 of 1933 [1934] 1 EACA 13:Probably every judge has had occasion at some time or other to regard discrepancies as showing veracity, and to regard uniformity as showing fabrication, but it depends upon the nature of the discrepancies and the uniformity. If two people allege that they made a journey together from Kampala to Nairobi and they differ on such details as the time the train stopped at Eldoret, what they had for lunch and dinner, and whether it rained on the journey and where, it would be more reasonable to argue a difference in memory than that the journey was never undertaken. But if one says they made the whole of the journey by rail, and the other says they went to Entebbe by car and thence by air to Nairobi, it would be more reasonable to argue that the journey never took place than that one or both suffered from a defective memory.20.This was the position in Willis Ochieng Odero vs. Republic [2006] eKLR, where the Court of Appeal held:As for the contradictions in the prosecution evidence it may be true that such contradictions, particularly with regard to the date indicated on the P3 form as the date of the offence, is different. But that per se is not a ground for quashing the conviction in view of the provisions of section 382 of the Criminal Procedure Code.21.In the case of Njuki vs. Rep 2002 1 KLR 77, the court said the following in respect of discrepancies in the evidence of witnesses:In certain criminal cases, particularly those which involve many witnesses, discrepancies are in many instances inevitable. About what is important is whether the discrepancies are of such a nature as would create a doubt as to the guilt of the accused… however, where discrepancies in the evidence do not affect an otherwise proved case against the accused, a court is entitled to overlook those discrepancies and proceed to convict the accused. 26.It was also submitted that the Appellant placed himself at the scene of the crime and his defence was considered. On sentence, it was submitted that the sentence was proper and should be upheld as it was stipulated by section 8(2) of the Sexual Offences Act. Analysis 27.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. 28.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. 29.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. 30.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. 31.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. 32.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. 33.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. 34.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. 35.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. 36.It is trite that 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. 37.The issue for this court’s determination is whether the prosecution proved the offence of defilement as against the Appellant beyond reasonable doubt. 38.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.’ 39.The parameters that were to be proved in cases 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. 40.At trial, the court conducted voire dire and established her proper understanding of the significance of oath. To this, I have no doubt. PW1 displayed her versions of the events that led to her ordeal. The Appellant gave her Ksh. 10/=. He pulled her into his house and placed her on his bed. He did tambia mbaya to her and she screamed. Someone knocked on the door and the Appellant jumped out of bed and sat on the chair. The Appellant opened. The person was male. He asked if the Appellant could do that. 41.The above testimony was corroborated. PW3 corroborated the evidence of PW1. She saw PW1 in the house of the Appellant. The Appellant himself conceded in cross examination that PW3 saw PW1 in his house. 42.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 neighbors within the [Particulars Withheld] Estate. The Appellant’s defence was only that the allegations were not true and that he was framed. 43.The Appellant lamented about there being inconsistencies in the prosecution witnesses. In Dickson Elia Nsamba Shapwata & Another vs. 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: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. 44.I have no doubt that there were no inconsistencies and contradictions in the evidence of the witnesses. All unequivocally pointed to the fact of the defilement of PW1 and the Appellant being at the center of the crime. There could be trivial discrepancies and contradictions which were not fundamental as to cause prejudice to the Appellant as human nature is not memory-proof. In Joseph Maina Mwangi vs. Republic CA No. 73 of 1992 (Nairobi) Tunoi, Lakha & Bosire JJA held:In any trial there are bound to be discrepancies. An appellate court in considering those discrepancies must be guided by the working of Section 382 of the Criminal Procedure Code, viz whether such discrepancies are so fundamental as to cause prejudice to the Appellant or they are inconsequential to the conviction and sentence. 45.Therefore, the evidence of PW1 was unshaken. She was consistent. Her evidence was flowing naturally despite her age. PW2 received a consistent story from the minors. PW3 found the minor almost immediately after event. The fact that the appellant got away the first time does not change the defilement in the current matter. And PW4’s evidence also left no doubt in my mind that the Appellant committed the offence herein. Emphatically, the evidence of PW1 was typically unshaken in cross examination. 46.Questions regarding to lack of spermatozoa is irrelevant. The case related to penetration and not ejaculation. PW4 wisely refused to answer questions related to past injuries. The question is specifically prohibited under section 34 of the Sexual Offences Act.1.No evidence as to any previous sexual experience or conduct of any person against or in connection with whom any offence of a sexual nature is alleged to have been committed, other than evidence relating to sexual experience or conduct in respect of the offence which is being tried, shall be adduced, and no question regarding such sexual conduct shall be put to such person, the accused or any other witness at the proceedings pending before a court unless the court has, on application by any party to the proceedings, granted leave to adduce such evidence or to put such questions.2.Before an application for leave contemplated subsection (1) is heard, the court shall direct that any person, other than the complainant, whose presence is not necessary, may not be present at the proceedings.3.The court shall, subject to subsection (4), grant the application referred to in subsection (1) if satisfied that such evidence or questioning-a.relates to a specific instance of sexual activity relevant to a fact in issue;b.is likely to rebut evidence previously adduced by the prosecution;c.is likely to explain the presence of semen or the source of pregnancy or disease or any injury the complainant, where it is relevant to a fact in issue;d.is not substantially outweighed by its potential prejudice to the complainant's personal dignity and right to privacy; ore.is fundamental to the accused's defence. 47.On the aspect of age, 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. 48.The age of the minor is relevant to the extent that it is to make a distinction between those aged 18 and under 18. If, for any reason, it is proved that a person is a child under the age of 18, but there is a difference in respect of whether the child is 7 or 8, then such a difference is irrelevant. Where the age flows into the next age for purposes of the offence, an acquittal cannot follow. The offence of defilement is complete upon proof that a person is under the age of 18. The actual age is required only when the court is considering, for purposes of sections 8(2), 8(3), and 8(4). The Court of Appeal in the case of Stephen Nguli Mulili v Republic [2014] KECA 408 (KLR), addressed this aspect as follows:In the case of Kaingu Elias Kasomo V R, Malindi CR. NO. 504 of 2014, the Court of Appeal stated that age is a key ingredient to the offence of defilement and failure to prove it beyond reasonable doubt amounts to failing to prove the offence.However, as the Court clarified in Tumaini Maasai Mwanya V R, MSA CR.A. NO. 364 OF 2010, proof of age for the purpose of establishing the offence of defilement, which is committed when the victim is under the age of 18 years, should not be confused with proof of age for the purpose of appropriate punishment for the offence in respect of victims of defilement of various statutory categories of age. 49.It is only when there is evidence of doubtful origin that a doctor can determine the age scientifically. In the case of Francis Omuroni Vs Uganda Court of Appeal No. 2/2000, the court held that:In defilement cases, medical evidence is paramount in determining the age of the victim. The doctor is the only person who could professionally determine the age of the victim in the absence of any other evidence. Apart from Medical evidence age may also be proved by birth certificate, the victim’s parents or guardian and by observation and common sense. 50.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…. 51.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 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. …. 52.Consequently, age herein was proved by the production of the Birth Certificate. The birth certificate stated that PW1 was born on 30.3.2011 and so was 9 years. The birth certificate was registered on 31.10.2014 which was proper and credible. 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 9 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. 53.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. I do not find basis to fault the trial court on granting 50 years imprisonment instead of life imprisonment. 54.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] 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. 55.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. 56.The appeal on conviction and sentence is dismissed. Determination 57.I make the following final orders:a.This appeal is devoid of merit and is dismissed.b.14 days right of appeal.c.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: -Appellant presentMr. Lokitano for the AppellantMr. Kihara for the RespondentPC Job Kitheka at Kamiti MaximumCourt Assistant – Michael